According to Alciat, the village common lands were called Vicanalia, ex eo quod ad pagum aliquem, seu vicum, et illiushabitatores, in universum pertinerent . Even under the empire, Agenus Urbicus, a commentator of Frontinus, speaking ofthese common lands, tells us that they were the object of endless usurpations on the part of the powerful: Relicta sunt etmulta loca, quae veteranis data non sunt. Haec variis adpellationi bus per regiones nominantur: in Etruria COMMUNALIA nominantur; quibusdam provinciis PROINDIVISA. Haec ferè pascua data sunt depascenda sed incommuni; quae multi per potentiam invaserunt .
The German invasions do not seem to have been fatal to the collective domain; for in Germany the greater part of the soilwas still common property. But in France, as in England, the feudal nobility abused the power, which the habit of carryingarms gave them, to reduce the lands of the communes in the middle ages,and more especially in the parts of the countrywhere the soil attained most value. Not only did the lords claim to have the eminent domain of the communal lands andespecially of the forests, which originally belonged entirely to the villages; but they also invaded the arable land, and droveout the inhabitants to re-afforest them, and enlarge their chases. To this fact the traditions refer, that exist in many provincesas to the origin of the woods with which they are covered. According to Hévin ( Questions féodales , p. 211), "William theBastard, Duke of Normandy, destroyed twentysix parishes in this province, to make a forest of thirty leagues." The forest ofNantes, which stretched from Nantes to Clisson, to Machecoul and to Rincé, was likewise formed on the ruins of numerousvillages, that the Duke of Retz might hunt as he went from one of his castles to the other! The Norman kings introduced thesame custom in England. Ducange on this subject says:
"William the Bastard, according to the narrative of Walter Mappeus, an ancient Breton historian, took the land from Godand men, and handed it over to wild beasts and to the chase, destroying thirty-six parishes and exterminating theirpopulation. According to Brompton, in the hunting domain1 called the New Forest, the same prince ordered severalchurches and villages to be burned, their inhabitants to be driven out, and the land stocked with wild beasts. Further on,speaking of William Rufus, he talks of `this new royal forest, called in English Ithene, for which his father, William theBastard, had expelled the inhabitants, depopulated villages and pillaged churches, and turned an area of more than thirtymiles into a forest and refuge for wild beasts'..."The work of Championnière ( Prop. des eaux cour .) should be referred to, for an account of how the villeins, who cultivatedthe soil, were despoiled of their property and their independence.
At the time when the customary law was systematized, almost all the villages were still in possession of common lands: nullus est ferè in Gallia pagus (Mornac, ad Dig . viii. 3) qui hujusmodi pascua commuma non habeat. In the South, allwaste land was presumed to be the common property of the inhabitants: Terres herbidce et incultae, quae a neminereperientur occupatae, praesumentur esse universitatis in cujus territorio sitae sunt ." (Championnière, Prop. des eauxcourantes , p. 344)
In the sixteenth century, especially, when the nobility adopted habits of luxury and extravagance, they strove to appropriatethe common lands. "The principal commentators of the feudal law," says Dalloz ( Jurisp. génér ., "Commune," tit. VI. ch. 3),"Legrand, Pithou, Imbert, Salvaing, de Sainctyon, Duluc, Fréminville, and M. Henrion de Pansey, trace the deprivation oftitles, the violence and the fraud made use of to despoil the communities of their property, as far back as the time of FrancisI. Many means were employed with this object. The destruction of titles was easily effected by the lords, because the recordswere in the hands of their officers. The titles once destroyed, the lands, to which they referred, belonged to the lord in virtueof the rule omnia censentur moveri a domino territorii . Sometimes even the production of a regular title was of no avail:
certain customs ordained that the tailles and other feudal charges were paid for the right of common pasturage; and ascommon pasturage could always be suppressed for the sake of agriculture, its suppression was effected and the communalland was united to the lord's domain." (M. Latruffe, Droits des Communes , vol. I. pp. 57, 79 and 90.)Royal ordinances also prove the existence of these abuses. One of Henry III., in April, 1567, runs: "We forbid all persons,whatever their rank or condition, to take or appropriate waste lands, which are the commonage and pasture of theirsubjects." The ordinance of Blois, 1575, is still more explicit: ART. 284"We command our procureurs to lay informationwith all diligence and secrecy, against those persons who, of their own authority, have taken or made away with the letters,titles and other evidences of their subject vassals, in order to appropriate the common lands, which such vassals hadpreviously enjoyed; or who, under pretext of agreements, have compelled such vassals to submit to the decision of suchpersons as seemed good to them; and we enjoin our procureurs to institute proceedings with all diligence, and to declare allsuch submissions, compromises, transactions or decisions so made to be henceforth of no effect." An ordinance of 1629,reproducing the same dispositions, shews that the abuse had not ceased.
Royalty, in its struggle with the nobility whose power it sought to diminish, finally took the part of the communes, whichneither the sovereign, nor the parliament, which represented the aristocracy, had done in England.
