1. _Development of Property Conditions._

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.

A Brief History of Forestry. In Europe, the United States and Other Countries · 第 34 / 157 题