CHAPTER XXIII.

COMMON LANDS IN BELGIUM.

In the west of Belgium, where industry and commerce have from the middle ages created populous cities, agriculture advanced rapidly and common lands disappeared; but in the sandy district of the Campine and beyond the Meuse, in the Ardennes region, the want of communication and the absence of large towns tended to preserve the ancient form of property and cultivation. In 1846, the common lands still comprised 162,896 hectares, of which 80,055 were in the Campine district, and 80,864 in Ardennes district. Formerly under the Spanish rule, the government promoted clearings by the grant of waste lands (15721586). The ordinance of Maria Theresa, of June 23, 1772, declared that the waste lands of communes and corporations were at once to be sold. It had however scarcely any effect. The law of March 25, 1847, which is still in force, authorizes the government to sell communal lands not under cultivation, whenever grants of them are demanded by individuals. This law caused the sale of 33,000 hectares between 1847 and 1860; and since then these alienations have been continuing. At the present time there only remains about 100,000 hectares of common land. In a great many charters lands are mentioned as belonging to the inhabitants of a village in common;⁽¹⁾ but except in the Ardennes, the lord had succeeded in usurping the eminent domain, without however destroying the inhabitants' right of user. This right, maintained to the present day, has given rise to long and intricate suits. In the documents these common lands are called in Latin pascua communia, communia, warescalli; in Walloon, wareschart; in Flemish, hemede, opstal, warande, which corresponds to the German word warsehaft, the right of sharing in the mark, as indicated by Maurer (Markverfassung, p. 15). The community itself was called communitas; in Flemish, meentucht; and the co-partners, commarcani, genossen, ganerben. By the side of the owners of houses, mansionarii, massuiers, there were the cotarii, cossati (in Flemish, koter, cossaeter), who lived in a cabin, kot, built on another man's ground, and had no regular share in the enjoyment of the communal property.

The towns themselves preserved their communal lands for a very long time. We will quote some examples from M. Vanderkindere

"Antwerp has its hemede, 1186, `Pascua et terrae ad communem justitiam pertinentes qiun vulgo hemethe vocantur' (Mert. and Torfa, Gesch. v. Antwerpen, I. 31; Wauters, Preuves, p. 48), and also its Opstalle (Brab. Yeesten, Codex, I. p. 677; Keure d,'Anvers of February 21, 1291).

"At Louvain, an enquiry was made, in 1323, with regard to the commonable meadows, ghemeene veeweyde (Brab. Yeesten, Codex, I. p. 764. See also Chron. de J. de Kierk, I. 641, in 1234, and for the Opstalle, Brab. Yeesten, I. p. 730, Keure of September 17, 1806).

"At Ypres an Upstal is mentioned in 1111 (Gheldof V. p. 320).

"At Ghent, the Keure of 1192 forbids private individuals disposing of lands toti oppido communia, and building upon them (Gheld. m. p. 226, § 17; cf. Gheld. IL p. 26).

"At Malines, in 1264, Walter Berthout grants to the inhabitants land, `usu communi absque clausura bereditario jure perpetuo possidendam' (Wauters, Preuves, p. 212).

"There is also the case of Soignies, in 1142 (Wauters, Preuves, p. 19) ; of Montigny-sur-Sambre, in 1253 (Ibid. p. 182); of St Trond, in 1324 (Cart. de St Trond, I. p. 462), etc.⁽²⁾

"We must guard against the idea that these communal lands were only the remnant of a primitive state of things, to which hardly any importance was attached. The Keure de Grammont, 1068 (Warnkönig II. 2, 163), will shew the contrary. This town, as we know, was founded by Baldwin VI. on an allod, which had belonged to a certain Gerard; but this land being insufficient, the Count granted the town as a fief to the Lord of Bouilaere, and he, in exchange, provided the new city with the pasturage that it required: `In recompensationem feudi praenominati, Balduino comitis ad usus Geraldimontensium Buzemont, sicut ipse possedit, et Cortelake et pasturam (all the pastures are here enumerated) addidit insuper quod quibuscumque aquis et pascuis homines sui uterentur, liceret Geraldimontensibus uti communiter.'

"Similarly, at Douay, in 1241 (Warnk. ii. 2, p. 261), the Count of Flanders recognized the right of the burgesses to the pasture and marsh land surrounding the town; they are entitled to take whatever is necessary for their personal use, without any charge: `car ils n'estoient tenus anchiennement en nulle cose pour chou.' The Count, moreover, engages not to give any one any part whatsoever of those pastures, over which the inhabitants of Douay have an absolute right, nor to allow their enclosure."

In a Soignies document, of the date 1248 A. D., we learn that, in case of a transfer of property, the land was surrendered into the hands of the mayor, who alone could invest the new occupant. "All the lands of the commune must be conveyed into his hands for him `desireter et aireter.'"⁽³⁾

At Louvain the adhérance and desheritance of allodial lands was effected by the mayor in presence of the aldermen, tanquam allodii consortes, assisted by two of the fellow allodial proprietors, with symbolical ceremonies, cum cespite et ramo. The alienor began by consigning (supportare) the property into the hands of the mayor; then the two allodial "peers" pronounced the adjudication to the new purchaser, to whom the mayor surrendered the property "by branch and clod."⁽⁴⁾ This is evidently a relic of the primitive period, when the chief of the commune presided over the partition and distributed to each member his share in the communal domain. The cooccupants are often called "parcheniers," or "parceniers," as having a part or share in the lands of the commune. In the coal district we find collective property applied to coal-mines,⁽⁵⁾ of which the "parceniers" have the use.

We have no ancient documents to shew how private ownership of land was developed in Belgium, but the appearance of certain villages gives us some insight into the subject. The houses are arranged in a line along the road. Behind each house stretches a long strip of ground, which is nothing but the terra salica,the appendage of the izba in Russia, which has been gradually enlarged at the expense of the common mark.⁽⁶⁾ The best preserved type of this archaic form is the village of Staphorst, to the north of Zwolle in Over-Yssel. In Flanders, when industry developed and the population increased, intensive agriculture was introduced, and with it private property. When a man had improved and manured land, he strove to retain it, and such improvements in Flanders date from the earliest times of the Middle Ages.⁽⁷⁾ The town of Termonde probably once had a common mark, for it possessed large herds of swine, sheep and goats. The ancient regulations forbid the inhabitants to let their sows run about in the streets of the town; the young pigs may be sent out in herds, under the care of the herdsman. Whoever maims one accidentally pays a fine.⁽⁸⁾

There was to be found quite lately at Ghent, on a pasturage which had evidently been a mark, a right of user altogether exceptional, inasmuch as the commoners had quitted the locality where the right had been established. This pasturage was called Hernisse, and had an area of about 50 hectares. Regulations issued by the bailiffs, auditors and aldermen, der herrlykheid, roede ende vierschaere van Sinte Baefs, shew that the meadows were formerly subject to a right of a peculiar nature, recalling that of the Swiss Allmends. The right of depasturing beasts at certain periods, alternately on the meadows of the "great Hernisse" and "little Hernisse," was recognized by a regulation of 1572, solely for the benefit of certain persons who were inhabitants of the commune of Saint-Bavon in 1578, when the territory of Saint-Bavon was comprised in the new circle, of fortifications of Ghent, though still retaining a distinct magistracy. To keep up the number originally fixed, well-todo inhabitants of. the magistracy of Saint-Bavon might be allowed to fill vacancies, if they could shew each step of their descent through inhabitants of Saint-Bavon from ancestors who were inhabitants in 1578, and who at that date possessed the qualifications of proprietors. In order to the strict observation of this rule, it was ordained that persons qualified should be entered, by the Hernismeesters (Masters of the Hernisse), in a special register, with a declaration on oath of their birth and parentage.

The nomination of Hernismeesters was effected annually by an election consisting of two steps. The inhabitants of SaintBavon had to choose four electors. These drew up a list of eight of the principal persons, out of whom the bailiff, the écoutète and aldermen, selected the four Hernismeesters. These functionaries took oath on entering upon their office. No horned cattle were allowed on the two Hernisses, unless they had calved since the first of January. The right of a descendant of such as were inhabitants of Saint-Bavon in 1578 to depasture a cow on the Hernisse was inalienable. If the descendant of an inhabitant of Saint-Bavon (a vreye Bavenaer) returned to the territory of Saint-Bayou, and dwelt in a free house situated in SaintBavon (in een vry huis staende op Sint-Baefs). he might send one cow on to the common pasture (Art. 8 of the regulation of May 7, 1707). Finally, to fill the office of Hernismeester, it was necessary to be entitled in one's own right to send a cow on to the Hernisse, that is to be one's self a vreye Bavenaer.⁽⁹⁾ In a recent suit the right of enjoyment of the Hernisse has not been recognized by the tribunals, because the civil code allows no right of a similar nature.

Merlin, in his Répertoire, under the word Bouillion, mentioning what Caesar says of the periodic partition of lands among the Germans, tells us, "This custom had been preserved in the duchy of Bouillon, so that the majority of the inhabitants even now bold very little land in private ownership. The sovereign possesses a considerable extent of land which entirely surrounds the duchy. This land is called the Ban-l'évêque, because the Bishops of Liége had the enjoyment of it so long as they retained the duchy of Bouillon."

"This Ban, though forming part of the domain, is not cultivated or enclosed by the prince. The commissaries-general of his council distribute every year to the inhabitants of each village, a portion of the Ban-l'Evêque proportioned to the condition of each family. This distribution is altered every year. They give every inhabitant a different portion every year from that which he had the previous year. The distributions are called virées, because they change each year. There are also virées à bois, or distributions of woods.

"The inhabitants are not owners of the lands and woods, which are distributed to them in the virées: they have only the right of cultivation and user for the period for which they are granted. The lands which are so distributed to them do not yield two years together. They are cultivated for one year, and then left to rest for sixteen or seventeen, or sometimes even eighteen years, these lands not having the manure necessary for their fertilization."

In certain communes of the Ardennes these virées are still in use at the present time. A portion of the communal territory is divided into a number of parts equal to the nnmber of years necessary to allow the herbage removed by the écobuage to grow again. One of these portions is taken each year, and divided into as many parcels as there are households in the commune. These parcels are distributed by lot among the commoners, and assigned temporarily to those to whom they fall. Every one then removes the herbage from the surface. It is left to dry in the sun, and then is burned; and the ashes are spread on the ground. This dressing enables a crop of rye to be obtained. The following year parcels are assigned by lot in a second portion; and the same operation is carried on. But while rye is sown on the second parcel, the commoner may plant potatoes on his first parcel. The next year a new parcel is obtained by lot for the rye-crop, while the second parcel, which has yielded potatoes, is sown with broom. By this method every household has always three parcels bearing some crop: one sown with rye, a seoond bearing potatoes, and a third giving broom. This last plant is used by way of litter for the cattle in its first year's growth. After that it is left to grow for firewood. After the broom is cut the herbage re-appears on the surface, and then furze; and at the end of eighteen or twenty years it is again subjected to essartage. The whole of the communal territory is thus cultivated in turn, being allotted in private, though temporary, ownership.

This is exactly the system of agriculture described by Tacitus: "They change their field every year, and there is always land in reserve," and by Caesar, de Bello Gallico, vi. 22: "No one has enclosed fields or land in private ownership; but the magistrates and chiefs assign each year lands in such places and in such quantity as they think fit to the gentes and families living in community. The next year the magistrates make them remove elsewhere."

The portion of the communal land that is not allotted, and that which has returned to fallow, serves as common pasturage for the commoners' cattle. The produce of the communal woods is also divided among them.

The following rules generally govern the distribution of the right of user.

Every year a list is drawn up of persons who have lived in the commune for a year, and had a separate hearth or household. This is called the list of the affouagers. The division of the woods, and the distribution of broom, litter, &c., is effected in equal lots among the affouagers, without regard to the importance of their families, or to their requirements or necessities.

Sometimes the communes divide the temporary enjoyment of the communal lands among the inhabitants. For this purpose equal parcels are formed, and distributed by way of lot among the affouagers.

Sometimes the inhabitants have merely the right of making the essartage and afterwards sowing broom in the sarts; they have to restore the land to the disposition of the commune as soon as they have gathered in the broom. In this case the period of enjoyment is tbree or four years. Sometimes these lands are given over to the inhabitants for fifteen or twenty years. They pay the commune an annual rent; and at the expiration of the term the commune resumes possession of the lands as they then are.

The inhabitants have the right of turning on to the common pasture all their cattle, whatever the number, and without regard to the time when they came into possession of them. The owner of a large herd therefore derives more profit from the common pasture than the inhabitant who has few cattle or none at all; but hitherto there has been no attempt to alter this rule. It follows that the principal farmers, who generally are charged with the administration of the commune, have a great interest in preserving the common pasturage. Accordingly the communes are very much opposed to the alienation of the waste, which the law authorizes. In more than one instance, for fear of such alienation at the instance of a large neighbouring proprietor, a commune has been ready to divide among its inhabitants the domain which it supposed to be coveted. Thus, quite recently, in the village of Ville-duBois, the inhabitants, for fear of legal dispossession, allotted about 50 hectares in full ownership. The allotment was effected in this way. Equal parcels, of very moderate value, were formed; these were distributed by lot among the affouagers. Any parcels that were declined were put up for public sale, but affouagers alone had the right to bid for them.

In 1862 Vielsalm sold in the same way a large common waste; and a clause was inserted in the conditions to the effect that for five years the purchasers should not have the right of re-selling. A similar sale took place recently (1873) in the commune of Lierneux.

In certain communesthose, for instance, in the neighbourhood of Ciney, at Braibant, Sovet, and Emptinnecommunal lands are found divided for a long term. They are cultivated, like the Swiss Allmends, in a permanent manner, and even better than the large farms in the neighbourhood. At Braibant every "fire," or family, has the enjoyment of abeut a hectare of good land. The partition is effected in equal portions among all the "fires" of the commune,the greater part for terms of thirty years, the remainder for nine years. Formerly these lands were sarts cultivated every eighteen years; but now they are cultivated without any fallow, although the tenant-farmers still let a portion of their land lie idle. The parcels thus allotted are well manured, because the occupier is sure of retaining a long enjoyment of them, and also because the terms of allotment impose precise obligations in this respect. Whoever does not put on the prescribed quantity of lime and manure loses his parcel, which is granted or let to the oldest commoners, if there are any who have not yet received parcels. Lands distributed for nine years are not so well cultivated, because the occupier neglects them as the end of his occupancy draws near. This instance, which confirms that of the Swiss Allmend, shews that the Russian system, which is subject to so many attacks, may lead to good results, when it is applied in accordance with the prescriptions of well ordered agrarian economy. It is moreover an undoubted fact, that in the poorer villages of Luxemburg the least well-to-do of the inhabitants, who receive their fuel from the commune and have the right of depasturing their beasts on its meadows, have much less ground of complaint than those of the richer Flemish villages. The position of the Flemish labourers is also better when they have a small field for the cultivation of potatoes or rye.

1. This point has attracted little attention from historians; but it has been well demonstrated in the learned work recently published by M. Leon Vanderkindere: Notice sur L'origine des magistrate communaux, 1874. Many facts here given are borrowed from him.

2. At Soignies, the mayor with the assembled jury of surveyors (verejurati) allotted to every one his share in the lands of the commune of St Vincent:the cachepoul carries the rope, the Germanic reeb, used for the measurement.

3. Wauters: Preuves, p. 172.

4. See La propriété foncière au XV' Siècle dans le quartier de Louvain, par E. Poullet, 1866.

5. M. Gachard quotes a regulation of 1248, as to the extraction of the coal in the communes of St Guislain, Dour, Quaregnon, Boussu, &c. "Et en tous ces ovrages chi devant nommés ne puet-on foir carbon devens les 4 ans deseure escris, en toute l'oeuvre et le justice S. Gillain et ses parceniers ka xx pints, en le justice et l'uevre Sainte Wanidruth ka xx puits, etc.

6. Meitzen: Ueber Bildung von Dörfern in the Verhandlungen der Berliner Gesellschaft für Anthropologie, 1872, p. 134.

7. See the author's Economie rurale de la Belgique.

8. See Ordonnance, de Police for the town of Termonde, published by authority of the commune (1868).

9. Belgique judiciaire, 1869, p. 761.