8. In the canton of Appensell also the peasants have recently founded two societies to purchase two pastures, the Wiederalpand the Fählen. The farming is carried on in common; and the shares of the societies are at a premium. See Journal destatistique Suisse , 1866, p. 59.
9. See the interesting work of M. Rowalewsky translated into German, Umriss einer Geschichte der Zerstückelung derFeldgemeinschaft im Kanton Waadf . Zurich 1877.
10. The Stoss , like the Kuhessen , is the indefinite extent necessary to support one cow in summer 11. See Das alte Staatsvervögen des Kantons SchwijzBericht des Regierungsraths an den H. Kantonarath , Schwyz, 1870.
12. See Rau, Lehrbuch der politischen Oeconomie , Vol. II. p. 171.
13. Zeller ( Zeitschrift für die landw. Vereine des Gr. H. Hessen , 1848, p. 62, 213, 269) quotes several examples in theSouth of Germany, where, after the definite partition of the communal lands, the poorest of the cultivators could notpreserve their share. They sold their portion, and fell into distress. The common patrimony, repartitioned from time to time,had been an obstacle to pauperism.
Chapter VI
JURISTIC FEATURES AND ADVANTAGES OF THE ALLMENDWe will now endeavour to determine the juridical nature of these communities of owners to whom the Allmends belong; butit is very difficult to do so in a few words because the terms, which we are accustomed to use, are borrowed from theRoman Law, to which this kind of association was unknown. It does not correspond exactly with either the dominium , the condominium , or the universitas of the Roman jurists. The jurists of the middle ages at first refused to notice them;afterwards, they attempted to bring them within the compass of the laws of the Digest. Finally, after the Renaissance, inproportion as the influence of antiquity became more decided, they shewed themselves more hostile to these primitiveinstitutions, which formerly existed everywhere, but which had already disappeared from the Empire when the Roman lawwas formed. In France, this hostility of the jurists destroy ed the peasant family communities even before the FrenchRevolution: it likewise prevented the communities of occupiers being developed as in Switzerland, where they had alreadyescaped the solvent action of feudalism. This is the explanation of their having preserved their integrity there, and havingeven accomplished a regular evolution and a progress determined by new wants, arising from time to time.
According to a learned professor of the university of Basle, M. Andréas Heusler, the association of commoners does notform a universitas , as that term was understood at Rome, but a civil person, a juristic corporation, such as the German lawhas established so widely. It is not constituted by the union of individual rights, associated in pursuit of gain, as are moderncommercial companies. The corporation has within itself a peculiar vitality and a distinct object, which is the economicprosperity of the country. It subsists of its own force, for the permanent advantage of the village, and not for the immediateand transitory benefit of its several members. For this reason the latter are forbidden to sell or to diminish the value of thecommon property. This prohibition is generally the first article of their statutes, and the commune or the State is chargedwith the task of enforcing it. These civil persons are developed within the State under its control and with its support; butthey are anterior to it. The mark preceded the commune and the State, and its administrative organization served as a patternfor them. The communities of occupiers, which are lineally descended from the ancient mark, have preserved a publiccharacter. Their regulations, like English byelaws, or the decisions of the assemblies of the polders in Holland, are applied bythe tribunals. Resolutions passed by the majority are binding on the minority, and public force can compel submission by thelatter. For the alienation of any part of the territory, however, or for the admission of new associates, unanimity is necessary.
According to M. Heusler, the right, exercised by the communities over their domain, is not a right of "collective ownership," Miteigeuthumsrecht ; it is a right of "common ownership," Gesammteigenthumsrecht . The domain does not belong to acollection of individuals: it belongs to a perpetual corporation, which is preserved unchanged for centuries, whatever may bethe number of persons who form part of it. The individual occupant has no share in the landed property, he has merely aright to a proportional part of the produce of the common domain.
Private ownership is, in more ways than one, subordinated to the ownership residing in the community. Thus, at certainperiods, the commoners are entitled to depasture their herds on the lands of individuals. The latter may not cut the woodsbelonging to them, as they please; for, if they destroy them, they will have to come to the communal forest for completelymore firewood. There are many regulations, forbidding them to enlarge their house or their outbuildings, without theconsent of the experts of the corporation, because such enlarged buildings would require more timber to keep them in repair.
In all times and places, communal property gives a right of way over private property. This is not a servitude in the senseattached to the word by the Roman law. it is a remnant of the primitive agrarian organization. Private property developedout of common property; it is not yet completely free, and is still subject to the trammels of the latter. There are abundantproofs of this fact. We know from history that the districts of Uri and Schwytz origiually formed a single common mark .
The Tratrecht or right of common pasturage, -- klauwengang in Holland, -- is still called by the inhabitants of Schwytz Gemeinmark , the "common mark," from which it is in fact directly derived.
