The German tribes who remained conquerors were composed of the different
groups of Franks, Saxons, Thuringians, Bajuvarians, Burgundians, etc.,
each composed of families aggregated into communal hordes with an
elected Duke (_dux_, _Herzog_, _Graf_, _Fürst_), organized for war, each
in itself a socialistic and economic organization known as _Mark_,
owning a territory in common, the members or _Markgenossen_ forming a
republic. Outside of house, yard and garden, there was no private
property; the land surrounding the settlement, known as _Allmende_,
(commons) was owned in common, but assigned in parcels to each family
for field use, the assignment first changing from year to year, then
becoming fixed. The outlying woods, known as the _Marca_ or _Grenzwald_,
forming debatable ground with the neighboring tribes, were used in
common for hunting, pasturing, fattening of hogs by the oak mast, and
for other such purposes, rather than for the wood of which little was
needed. In return for the assignment of the fields, the free men, who
alone were fully recognized citizens of the community, had to fulfil the
duties of citizens and especially of war service.
Only gradually, by partition, immigration and uneven numerical
development, was the original Mark or differentiation into family
associations destroyed and a more heterogeneous association of neighbors
substituted. At the same time, inequality of ownership arose especially
from the fact that those who owned a larger number of slaves (the
conquered race) had the advantage in being able to clear and cultivate
more readily new and rough forest ground. Those without slaves would
seek assistance from those more favored, exchanging for rent or service
their rights to the use of land; out of this relationship a certain
vassalage and inequality of political rights developed.
Under the influence of Roman doctrine, a new aspect regarding newly
conquered territory gained recognition, by which the Dukes as
representatives of the community laid claim to all unseated or
unappropriated land; they then distributed to their followers or
donated to the newly established church portions of this land, so that
by the year 900 A.D., a complete change in property relations had been
effected. By that time the large baronial estates of private owners had
come into existence which were of such great significance in the
economic history of the Middle Ages, changing considerably the status of
the free men, and changing the free mark societies into communities
under the dominion of the barons.
The first real king, who did not, however, assume the title, was Clovis,
a Duke of the Franks, who had occupied the lower Rhine country. About
500 A.D., picking a quarrel with his neighbors, the Allemanni, he
subdued them and aggrandized himself by taking their Mark. In this way
he laid the foundation for a kingdom which he extended by conquest
mainly to the westward, but also by strategy to the eastward, the
warlike tribes of Saxons and other Germans conceding in a manner the
leadership of the Franks.
A real kingdom, however, did not arise until Charlemagne, in 772, became
the ruler, extending his government far to the East.
At times, the kingdom was divided into the western Neustria, and the
eastern Austria, and then again united, but it was only when the dynasty
of Charlemagne became extinct with the death of Louis the Child (911),
that the final separation from France was effected, and Germany became a
separate kingdom, the eastern tribes between the Rhine and Elbe choosing
their own king, Conrad, Duke of Franconia. There were then five tribes
or nations, each under its own Duke and its own laws, comprising this
new kingdom, namely the Franks, Suabians, Bavarians, Saxons on the
right, and the Lorainers on the left bank of the Rhine, while the
country East of the Elbe river was mostly occupied by Slovenians.
With Clovis began the new order of things which was signalized by the
aggrandizement of kings, dukes and barons.
In addition to the rule regarding the ownership of unseated lands there
developed, also under Roman law doctrine, the conception of seignorial
right, _i.e._, the power of the king to jurisdiction over his property.
This right, first claimed by the duke or king for himself, is then
transferred with the territory given to his friends and vassals, who
thereby secure for themselves his powers and jurisdiction, immunity from
taxes and from other duties, as well as the right to exact taxes and
services from others, the favored growing into independent knights and
barons.
* * * * *
The forest, then, originally was communal property and the feeling of
this ownership in common remains even to the present day. Indeed,
actually it remained in most cases so until the 13th century, although
the changes noted had their origin in the 7th century when the kings
began to assert their rights of princely superiority.
In these earlier ages, the main use of the forests was for the hunt, the
mast and the pasture, and since wood was relatively plentiful, forest
destruction was the rule. Those who became possessed of larger
properties through the causes mentioned tried to secure an increased
value of their possessions by colonization, in which especially the
slaves or serfs were utilized. These often became freedmen, paying rent
in product or labor, and acquiring the rights of usufruct in the
property, out of which developed the so-called _servitudes_ or _rights
of user_, the _praedium_ of the Romans, a limited right to use the
property of another.
With the development of private property there naturally also developed
the right of preventing the hunting on such lands, this being then their
main use. This exclusive right to the chase or hunt we find recognized
as a part of the property of the kings and barons in the 8th century,
when the kings forbade trespass under penalty of severe fines; the
king’s _ban_ (interdiction) of 60 shillings being imposed upon the
trespassers. Indeed, by the end of the 8th century the word _Forst_
(_voorst_--_foresta_) which until then had been used merely to denote
the king’s property was exclusively used to designate not necessarily
woodland (the latter being referred to as _silva_ or _nemus_), but any
territory in which the hunt had been reserved.
This right to reserve the chase and the fishing, that is, to establish
_banforests_ was in the 10th century extended by the kings to territory
not belonging to them, the right to the chase being according to the
Roman doctrine a regal right over any property. Under this conception
fields and pastures, woods and waters, and whole villages with their
inhabitants became “inforested” grounds. The Norman kings, imbued with a
passion for the chase, exercised this right widely, especially in
England; the forests of Dean, Epping and the New Forest being such
inforested territories, the inhabitants of which were placed under
special “forest laws,” and adjudged by special “forest courts.”
Presently the king’s right of ban was granted with the land grants to
his barons and to the clergy. Banforests also grew up through owners of
properties placing themselves and their possessions under the protection
of kings or bishops or other powerful barons and giving in exchange this
hunting right, and in various other ways. At the same time the headmen
of the Mark (_Obermärker_, _Graf_, _Waldgraf_), who from being elected
officers of the people had become officials of the king, began to
exercise, by virtue of their office, the jurisdiction of the king, and
declaring the ban for their own or their friends’ benefit, excluded the
_Märker_ from their ancient right to hunt and fish freely over the
territory of the Mark.
While in this way the freedom of the communal owners was undermined, the
institution of banforests had nevertheless its value in that it led to
forest protection, restriction in forest use and restriction in
clearing, all this, to be sure, merely for the benefit of the chase.
Special officers to guard the rights of the king, _forestarii_, chosen
from the free and freedmen, and also superior officers, _forestmasters_,
were instituted, to administer the chase and enforce the restrictions
which went with it.
Gradually, with the loss of property rights, there came also a change in
the political rights of the märker or commoners, through the large
barons interfering with self-government, assuming for themselves the
position of Obermärker, appointing the officials, and issuing strict
forest ordinances to regulate the cutting of wood; finally, the original
right which belonged to every commoner of supplying himself with wood
material, became dependent upon permission in each case, and thus his
title to ownership became doubtful.
Undoubtedly also through the influence of Roman institutions with which
the Franks under their Merovingian kings came into close contact, there
arose that social and political institution which became finally known
as the _feudal system_. By the grants of lands which the kings made out
of their estates to their kinsmen and followers with the understanding
that they would be faithful and render service to their masters, a
peculiar relationship grew up, based on land tenure, the land so granted
being called a _fief_ or _feud_, and the relationship being called
_vassality_ or _vassalage_. This vassalage denoted the personal tie
between the grantor and grantee, the lord and the vassal; the lord
having the obligation to defend the vassal, and the vassal to be a
faithful follower of his lord. Similar relationship arose from the
surrender by landowners of their estates to the church or to other
powerful barons, to be received back again as fiefs and to be held by
them as tenants in exchange for rent or service. In this way a complete
organization of society developed in which, from the king down to the
lowest landowner, all were bound together by obligation of service and
defence, both the defence and service being regulated by the nature and
extent of the fief. Finally, all kinds of property of whatever nature,
as well as official positions which would give an income, were subject
to be treated as fiefs. The obligations of the recipient were of
various nature, but finally service in army or court became the main
one, giving rise to the class of knights (_Ritter_) or barons, while the
fiefs to the small farmer gave rise to the class of peasants (_Bauern_,
this name appearing first in 1106 under Conrad II).
The fiefs of the higher class, while at first given only to the
individual, became early hereditary, and hereditary succession to
estates and offices generally became the rule. Primogeniture in the
succession to the estates did then not as in England prevail in Germany;
instead, either tenancy in common, or else equal division among the sons
was practised. As a result the very many small principalities came into
existence in the 14th and 15th centuries, these growing smaller and
smaller by subdivision. The first to institute the primogeniture rule by
law was the house of Brandenburg (in the 15th century).
In addition to the class of peasants and knights, there came into
existence a third class, the burghers, when, by the order of Conrad I in
the beginning of the 10th century, towns were built with walls and
towers for defence against the encroachments of the Huns, who endangered
the eastern frontier Mark. In order to encourage the settlement of these
towns, any slave moving to town was declared a freeman; and the cities
became free republics; gifts of land, including forest areas, were made
to the cities, and the development of industries was encouraged in every
way. These cities, favored by the kings, and, having become rich and
powerful, in the later quarrels of the kings with the lawless nobility,
gave loyal support with money and arms. In return for their loans, the
forest properties of the kings were often mortgaged to the burghers;
and, failing of redemption, were often forfeited to them. In this way
and through purchases the city forests came into existence.
Still other property conditions arose when, under Otto the Great (960),
colonization of the eastern country beyond the Elbe was pushed. In these
cases, the Mark institution was absent, although the colonists did often
become part owners in the king’s forest, or acquired parts of it as
common property, or else secured rights of user in the nearest royal
forest.
By the end of the period, due to these various developments, a great
variety of property conditions in forest areas had developed, most of
which continue to the present time, namely royal properties, which by
the end of the eighteenth century and the beginning of the nineteenth
were in part to become state property; princely and lordly possessions
under separate jurisdiction, with or without entail, and mostly
encumbered with rights of user; allodial possessions (held independent
of rent or service); municipal possessions owned by city corporations;
communal properties, the remnants of the Mark; and farmers’ woodlots
(Bauernwald), resulting from partitions of the Mark.
All these changes from the original communal property conditions did
not, of course, take place without friction, the opposition often taking
shape in peasants’ revolts; hundreds of thousands of these being killed
in their attempts to preserve their commons, forests and waters free to
all, to re-establish their liberty to hunt, fish and cut wood, and to
abolish tithes, serfdom and duties.