"By the general law of France, inheritances are only ` en defense ,' and ` en garde ,' so long as the crops are standing, and assoon as they are gathered in, the land, by a kind of jus gentium , becomes common to all men, rich and poor alike. This rightof common pasture is inalienable and imprescriptible, like the right of gleaning, of grapter , and drawing water from publicrivers, which consist only in a faculty or natural liberty, and are not lost by non-user." (Edit. Dupin, v. I. 6, 251). Here aretwo other rules of Loysel (l. ii. t. ii. Art. 17): "Underwood is not to be cut for four years and a month, after which time everyone is at liberty to cut it."Art. 16. "Vineyards, gardens, and warrens are always enclosable." Davot says: "All land sownwith grain is legally enclosable." Art. 18. "Meadows are enclosable from the middle of March until All Saints' Day, or tillthe hay is declared to be all made and carried."Art. 20. "Waste pastures are free between parish and parish, but the` grasses' pastures belong only to the commoners of the parish." "According to this rule," says Laurière, "in common pasture,there is a right of cominonage between the inhabitants of neighbouring villages who can bring their beasts ` champayer etvainpaturer ,' on each other's lands from parish to parish ( de clocher clocher )." We see here a trace of the right exercisedover the whole mark, before it was divided into parishes. "The ` grasses' pastures are the meadows not mown, the fields andwoods in the acorn time, where beasts are put to fatten." As a rule the proprietor could not put all his land " en défense ." Hemight only exercise this right over a small portion of his inheritance. Thus the custom of the Boulonais, Art. 131, says:
"Every one may lawfully enclose the fifth part of his flef; and by this means hold it free, at all times of the year, and enjoy itfreely to himself, his tenants or lessees. Every one may also lawfully enclose an area not exceeding one mesure or five quarterons of land whether arable or not, bordering the road or path, and by reason of the said enclosure hold it freethroughout the year, provided that he makes the said enclosure to be cultivated, that he plants it and builds thereon a gooddwelling-house." This is obviously the terra salica , the enclosure of the Russian izba , private property in the midst of thecollective territory. Laurière gives the reason of this rule: "If all who owned lands were pleased to stop and enclose them,and to put them thus ` en défense ,' the result would be that there would be no more common pasture, and the beasts of thosewho had no land would perish, which would be against the common advantage, and pernicious to the State." We see here acurious application of a principle, formerly universally admitted, that the general interest prevails over private property andsets limits to it. The earlier existing and superior right of the community can alone justify such a limitation of individual right.
In obedience to the inspirations of economists, whose only aim was to increase the production of wealth, without anyconsideration for the still more important point of its distribution, the French Revolution abolished common pasture by thelaw of September 28, 1791, which says (Sect. IV., Art. 4): "The right of enclosing, or destroying the enclosures of,inheritances, is a necessary result of the right of property, and cannot be denied to any proprietor." This was not merelydepriving the rural population of a hereditary right, but was also striking a fatal blow against the very basis of civil order, byignoring the superior right of the community, and by sacrificing collective to individual interest. In Spain, the same reform,accomplished more recently, excited violent resentment in the peasants, which found vent in the recent civil war. Theyoverthrew the enclosures, as the inhabitants of the rural districts did in England in the sixteenth century. In the majority ofSpanish provinces the land became public domain after the harvest, and during all the time that it lay fallow. The proprietors,applying the principles of the civil law, have endeavoured to enclose it, and preserve for themselves the enjoyment of theirinheritance throughout the whole of the year. The peasants endeavour to put once more in force the old collective right. In aspeech, delivered May 10, 1873, and quoted by M. Cherbuliez ( Revue des Deux-Mondes , 15 November, 1873), M. Silvelasaid to the Cortes:
This idea of socialism is with us an inheritance of the ancient system, which gave it its letters of naturalization. In themajority of our villages the revolution is regarded as a lawful return to communistic habits, which have abided in our blood.
It signifies free access to municipal property, and, at times, to private property, the destruction of enclosures, and commonoccupation of the fallow and of the rest after harvest. This interpretation of liberty is not the child of modern doctrines, norof demagogues' promises, nor of the abuse of the press; it springs from memories and traditions which nothing can efface.
So it is less `widely spread in the great towns than in the country districts and hidden corners of our territory."This example shews in a striking manner how, by destroying, instead of improving the practical application of the collectiveright to which the ancient system had still secured an important place, jurists and modern economists have, with their ownhands, cast into the upturned soil of our societies the seeds of violent and revolutionary socialism.
