JURISTIC FEATURES AND ADVANTAGES OF THE ALLMEND
We will now endeavour to determine the juridical nature of these communities of owners to whom the Allmends belong; but it is very difficult to do so in a few words because the terms, which we are accustomed to use, are borrowed from the Roman 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, in proportion as the influence of antiquity became more decided, they shewed themselves more hostile to these primitive institutions, which formerly existed everywhere, but which had already disappeared from the Empire when the Roman law was formed. In France, this hostility of the jurists destroy ed the peasant family communities even before the French Revolution: it likewise prevented the communities of occupiers being developed as in Switzerland, where they had already escaped the solvent action of feudalism. This is the explanation of their having preserved their integrity there, and having even 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 not form a universitas, as that term was understood at Rome, but a civil person, a juristic corporation, such as the German law has established so widely. It is not constituted by the union of individual rights, associated in pursuit of gain, as are modern commercial companies. The corporation has within itself a peculiar vitality and a distinct object, which is the economic prosperity of the country. It subsists of its own force, for the permanent advantage of the village, and not for the immediate and transitory benefit of its several members. For this reason the latter are forbidden to sell or to diminish the value of the common property. This prohibition is generally the first article of their statutes, and the commune or the State is charged with the task of enforcing it. These civil persons are developed within the State under its control and with its support; but they are anterior to it. The mark preceded the commune and the State, and its administrative organization served as a pattern for them. The communities of occupiers, which are lineally descended from the ancient mark, have preserved a public character. Their regulations, like English byelaws, or the decisions of the assemblies of the polders in Holland, are applied by the tribunals. Resolutions passed by the majority are binding on the minority, and public force can compel submission by the latter. 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 a collection of individuals: it belongs to a perpetual corporation, which is preserved unchanged for centuries, whatever may be the number of persons who form part of it. The individual occupant has no share in the landed property, he has merely a right 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 certain periods, the commoners are entitled to depasture their herds on the lands of individuals. The latter may not cut the woods belonging to them, as they please; for, if they destroy them, they will have to come to the communal forest for completely more firewood. There are many regulations, forbidding them to enlarge their house or their outbuildings, without the consent 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 sense attached to the word by the Roman law. it is a remnant of the primitive agrarian organization. Private property developed out of common property; it is not yet completely free, and is still subject to the trammels of the latter. There are abundant proofs 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.
The economic corporation, which owns the allmends, is distinct from the political body which constitutes the commune. Thus at Stanz in the Nidwald, the inhabitants of the commune form a body called die dorfleute zu Stanz. They meet in a general assembly and regulate directly the affairs of the commune; and they take part in the communal banquet, which is held every year, in commemoration of the battle of Rossberg fought in 1308. The economic corporation is called Theilsame, and is composed of the commoners of Oberdorf and Stanz together. The separation between the inhabitants who have the right of common and those who are without it, dates from 1641, and is always respected. This example shews that, absolute, or actually equal, democracies are very conservative. Thus the constitutions of the states of New England, which are likewise ultra-democratic, are the oldest in existence.
Anciently the whole canton of Unterwalden formed a single community, the members of which had a right of common over the whole territory. When seignories and abbeys were formed, they gradually usurped a portion of the common domain of the mark. Serarate jurisdictions were constituted in this way, and each of them wanted to have its separate property. Such was the origin of the existing associations of commoners, which remained separate, even after the suppression of the seignories. The feudal lords had not sufficient power to invade the rights of the peasant partners, Markggnossen. On the contrary, the latter maintained their right of common over the lord's land, which never entirely freed itself from the eminent domain of the commun!ty. In his character of markgenoss, or "commoner," the lord had his share in the enjoyment of the Allmends. Thus, M. Heusler quotes a deed of the year 1227, by which Dietrich von Opphau sells to the monastery of Schoenau, "praedia sua in Sunthoven, agros, prata, curtes, areas, almeine." Mone copies another text, which has nearly the same sense: "Hoba cum omnibus utilitatibus, ad eamdem hobam rite attinentibus, id est marca, silvae, sagina, acquis, pascuis."(1) Land was sold with the rights of common attached to it, cum onni utilitate, or with the communio in marchis, In a suit between the bailiff and the inhabitants of Küssnacht, in 1302, the judgment recognized no greater right in the representative of the feudal seignory than in the other commoners. The free peasants had already gained such an ascendancy at this period, that, in 1355, we find the inhabitants of Arth purchasing all the rights of seignory of the place. See A. Heusler,(2)
Is this right of user over the common property a real or a personal right? Is it attached to the quality of the person, or is it appendant on landed property? Originally, there is no doubt, the right was purely personal, as it belonged to every Markgenoss, to every member of the association of commoners. It was the natural right of property belonging to the associated inhabitants of the mark. Later, however, when it was decided that, in order to exercise the right of common, the inhabitant must support cattle, which he wished to send on to the common pasture, on his individual property during a certain period, certain jurists, especially in the thirteenth century, declared it to he a real right; and speak of it as appendant to private property. This is altogether a mistake. In order to exercise the right of common, it is not enough to have property within the commune, or even to be a member of it; it is further necessary to be a member, by descent, of the association of commoners. The right of common cannot be assigned or transferred, which would be allowable if it were a real right. When the commoner has not kept cattle himself through the winter, he cannot exercise his right to common pasturage by means of cattle borrowed or purchased in the spring. His right exists none the less, although its exercise is, for the time, suspended. It is the same when he leaves the commune, he cannot let his right of common; but, if he returns, and keeps cattle through the winter, he is once more allowed to exercise his right. This right is inherent in his person, and he does not lose it except by entering another community, which is of very rare occurrence.
As a rule, the right of common belongs to every separate couple of hereditary usufructuaries, who have had "fire and light" within the commune, during the year or else at some fixed date : thus, at Wolfenschiessen, the commoner must have passed the night of March 15 there. In strict theory, it is only when he marries and founds a new family, that a young man can claim the right of common in "forest, pasture and arable"; but by an extension of this rule, the right is also recognized of a widow, or orphans living together, sometimes even of every son of an associate who attains the age of twenty-five, provided he live in a separate house. In the Nidwald unmarried daughters, living apart, Laubenmeidli, have the same right. Generally, natural children, whose parentage is known, may also claim their share in the "wood, alp and field," (Holz, Alp und Feld): sometimes, however, their right is restricted. Thus, at Beggenried, they are excluded from the use of the alp. The right of common may be purchased, but only with the unanimous consent of the commoners. Its price increased very rapidly, even during the middle ages -- thus, at Stanz, it was purchased in 1456 for 5 sols; in 1523 for 50; in 1566 for 100; in 1577 for 400. in 1630 for 800; and in 1684 for 1200.
The regulations, determining the mode of enjoyment, vary in different communities; the general principles are these. On the Alp, as we have seen, every one may send the cattle, which he has supported through the winter on his private property. If the alp is limited in extent, every one's right is reduced proportionally. In the spring general assembly, before the herds go up to the mountain-pastures, every commoner declares on oath the number of cattle he has kept through the winter. All fraud is precluded, because the experts know exactly how many every one can manage to support. The slightest attempt at fraud is punished by a heavy fine or by suspension of the right of common. At Giswvyl and Sachseln the alps are assigned by lot among the commoners. At Alpnach, a rotation has been established, so that the herds of all pass successively, year by year, over each alp. In many villages, in order to restore greater equality, they have, for some time past, imposed a tax on each head of large cattle, the amount of which is distributed among those who have no cattle.
When the forests were extensive and the population slight, every one took what wood he pleased: but now there are very stringent regulations determining the mode of use. Certain forests are placed under "ban," Bannwaelder, either because they preserve the valley and villages from avalanches, like the one which rises to the east of Altorf; or else, because they must be left for some time, to allow of their growing again. In the forests that are worked, Scheitwaelder, juries fix the annual cutting. Parcels are then formed, in proportion to the rights of each class of commoner. Lots are drawn for these parcels, and every one cuts and carries his own share, or else the communal administration delivers it at the dwelling. In some communities, as for example Uri, the firewood and timber are distributed according to the wants of the members. Elsewhere every one receives an equal part of the firewood; but the timber is necessarily allotted according to the requirements of the dwelling-house and out-buildings of each family. The necessary quantity is, however, determined by juries: any extra supply has to be paid for at market value. The sale of the wood from the communal forest outside the community is strictly forbidden; and this prohibition extends even to timber derived from demolitions.
The right of common in the Allmends of the plain is regulated according to different principles from those in force for the forest and alp. The pasturage in the neighbourhood of the village was set apart for the maintenance of the cattle in autumn, when they returned from the heights; or of the few milking cows kept near home to supply the milk for daily consumption. Gradually the custom sprang up of allowing every family of commoners, whether they had private property or not, to turn one or two cows on to the Allmend, or even to let it to another for this purpose. At Kerns, in Unterwalden, the rule of 1672 entitled every commoner to send two cows on to the Allmend; but, by 1766, the population had so increased that they could only send one. If any one sent a second he paid a florin ; and members, who had no cow, were entitled to 100 toises of cultivable land. In 1826, the tax was put on all cows. In 1851 it was fixed at 7 francs, and the produce was divided among those who had no cow. -- At Sachseln every member is still allowed to turn two cows on to the Allmend. All, who do not use the alp, receive an indemnity , Allmendkrone, and a tax of 3 florins is imposed on every head of large cattle.(3) This is a great benefit to the poorer class, who have no stock to send on to the alp. The right is by this means made more and more a personal right: it is even transformed into a money rent for such as prefer it or cannot profit by the right of user in kind.
In order to give each family the means of obtaining, by its direct labour, a portion of its vegetable food, the custom has everywhere grown up, of devoting the Allmend in the immediate neighbourhood of the village to cultivation. It is divided into a large number of small parcels, five or six of which are united to form a lot, or else it is divided at once into as many lots as there are commoners. The shares so formed are distributed by lot. The occupier holds them for ten, fifteen or twenty years; -- or sometimes for life. At the expiration of each period, all returns to the common stock, and a new distribution by lot is carried out. On the death of a commoner, if his son or widow has the right of common, either of them may retain the parcel until the new allotment. As every new household that is formed is entitled to claim a share, and as the shares falling vacant by the death of the holders may be insufficient, some reserve lots are kept for disposal, which are let in the meanwhile. Every member is entitled to an equal share, which he may cultivate as he likes, or even let to others, provided they be commoners. He may plant fruit trees on it; and, in certain communes such as Wolfenschiessen, he is even compelled to do so under pain of fine.
Although they are only held in temporary occupancy, the Allmends are always admirably cultivated. In this respect they are quite different from the communal lands of the Russian village, although under exactly the same agrarian system. To be convinced of this, there is no necessity to go to far-off valleys. Two steps from Interlaken, the focus of fashion which so many thousands visit every year, the Allmend of Boeningen may be visited: it covers the whole delta formed by the Lutschine at the point where it falls into the Lake of Brienz. Looking at this surface from a neighbouring height, the Ameisenhügel on the Scheinige-Platte for instance, one sees it divided into a large number of small squares of land, occupied by different crops, potatoes, vegetables or flax, and here and there planted with fruit trees. They are so many small gardens of a few ares, cultivated with the spade, well manured, and well cleaned. The produce answers to the excellence of the cultivation. The Allmend contains 270 juchart; 343 families have a share in it, and each lot comprises 7 parcels. This extreme morcellement is retained, that every one may have a part in the different kinds of land.
These associations of commoners are real republics. Their form of government deserves attention, as they might serve as the model for the political organization of autonomic communes. To give some idea of it, we will analyze the constitution of the community of Gross in the canton of Schwytz. The constitutional rules of the land communities of several villages in the canton,Egg, Trachslau, Einsiedeln, Dorf-Binzen, Enthal, Bennau, Willerzell,contain nearly identical dispositions. They are subject to revision from time to time.
In the Gross community, all the commoners above the age of eighteen assemble, of absolute right, every year in April to receive the report of accounts, and to regulate current affairs. In case of necessity, the president convokes the assembly, Genossengemeinde, for an extraordinary session. All officers are re-elected every two years; and no one may refuse to discharge the office to which he is nominated. An official report is kept of all resolutions. The executive power is vested in the hands of a council of seven, elected by the assembly. This council directs the management of the forest; divides the timber and firewood; apportions the arable; represents the corporation for judicial purposes; and executes works not exceeding 60 francs, all others having to be voted by the general assembly. It imposes fines and damages in case of a breach of the regulations; and, when necessary, presents indictments to the judicial authorities. The council assembles on the summons of the president. Members, not unavoidably prevented from attending, are fined in case of absence; they are rewarded by exemption from the days' work which they would have to render with the other commoners.
The president is elected by the general assembly, which he has to convene at any time on the requisition of a hundred members. He receives 80 francs, and for extraordinary days he receives a further payment. The other officers are the cashier, who keeps the accounts, and receives and pays out the common fund; the secretary, who draws up the official reports and carries on correspondence; the overseer of works, the forester and the auditor of accounts. All are paid, and are responsible for their acts.
Thus the administration of these land communities is, it will be seen, very complete; it stands midway between that of a political body and a joint-stock company. The commoners manage their own joint interests and collective property, according to precise and well-known rules. The constitutions date from the earliest days of the middle ages; but, having been constantly modified and improved, to suit the necessities of the period, they may be safely said to fulfil adequately the mission entrusted to them. The collective domain is well managed, and the produce equitably divided.
In the author's opinion, the advantages afforded by these institutions of the middle ages and primitive times are so great that he attributes to them the long and glorious existence of Swiss democracy. The advantages are alike political and economical.
In the first place, the commoners, by sharing in the administration of the joint domain, undergo an apprenticeship for political life, and are accustomed to take part in the conduct of public affairs. They assist at deliberations, and may join in them: they elect their delegates, and hear the annual accounts rendered for their discussion and approval; all which is an excellent initiation into the mechanism of parliamentary government. They are members of real agrarian cooperative societies which have existed from time immemorial, and there is thus developed in them all an administrative aptitude, indispensable in a country of universal suffrage. We should not forget that it is in the township that American democracy also has its roots.
When the natural right of property is really guaranteed to every one, society rests on a firm foundation, for no one is interested in its overthrow. There is no country where the people are more conservative than in the primitive cantons of Switzerland, which have preserved intact the Allmend system. On the other hand, in a country where there are only a small number of proprietors, as in England, the right of property is regarded as a privilege or monopoly; and it is before long exposed to the most dangerous attacks. While, in England, there are a million paupers living on official charity, and the agricultural labourers have neither proper lodging, instruction, nor comfort, the commoners in Switzerland are at least removed from the evils of extreme destitution. They have materials for firing, keep for a cow, and the means of growing potatoes, vegetables, and a little fruit.
Moreover, when, in consequence of certain economic causes, the price of coal and wood is doubled, as in the winter of 1873, it is a cause of unspeakable distress to the poorer families; to the Swiss commoner, however, who has his direct share in the produce of the soil, these fluctuations in price matter little. Whatever happens, he has the means of satisfying his actual necessities. This produces a happy security for the future of the labouring classes.
There is a further advantage in the Allmends: they retain the population in the country districts. A man who is entitled to a share in the "forest, field, and pasture" in his commune, will not lightly forego all these advantages to seek in the towns a higher salary, which is far from securing him a better condition. The immense cities, where thousands of men are accumulated without hearth, altar, or security for the morrow, and in which is formed the immense army of proletarianism, constantly panting for social revolution, are the peril and the curse of modern societies. If men have but some share of comfort and property in the country, they will abide there, for that is really the place provided for them by nature. Towns, the haunt of pride, luxury, and inequality, foster the spirit of revolt; the country begets calm and concord, the spirit of order and tradition.
When the labourers are attached to the soil by the powerful bonds of collective ownership and partial enjoyment of it, industry is not fetteredas Glans and the Outer Rhodes of Appenzell will testifybut it is obliged to establish itself in the country, where the workmen may combine agricultural and industrial labour, and where they will be surrounded by better conditions, moral, economic and sanitary. It is to be regretted that so many thousands of men depend for their daily subsistence on a single occupation, which is liable to interruption, from time to time, by every kind of crisis. When they have a small field to cultivate they can bear a stoppage of their trade without being reduced to the last extremity.
The workman in the great modem industries is often a cosmopolitan wanderer, to whom `country' is a word void of meaning, whose only thought is to struggle with his employer for an increase of wages; this is simply because there is no tie to attach him to his native soil To the commoner, on the contrary, his native soil is a veritable alma parens, a good foster-mother. He has his share in it by virtue of a personal inalienable right, which no one can dispute, and which the lapse of centuries has consecrated. The patriotism of the Swiss is well known in history: it has worked wonders for them, and even now it brings them from the ends of the world home to their native place.
It has often been said that property is the true condition of liberty. He who receives from another the land which he cultivates is dependent on him, and cannot be completely independent. In England, France, Belgium,everywhere, where they wished to secure liberty of voting, they were obliged to introduce the ballot and to take great precautions that the tenants might be able to conceal from their landlords the knowledge of the vote they had left in the box. In this respect it was logical not to give the suffrage to those who did not exercise the right of property. In Switzerland, by means of the Allmends, a solution is arrived at: every one has the suffrage, but every one likewise enjoys the right of property.
Hitherto all democracies have perished, because after establishing equality of political rights, they have failed to create an equality of conditions such as to prevent the struggle between the rich and the poor leading to various revolutions, finally ending in civil war and a dictatorship. Macchiavelli declares. this truth in striking terms: "In every republic, when the struggle between the aristocracy and the people, between patricians and plebeians, is terminated by the final victory of democracy, there remains but one contest, which can only end with the republic itself: it is that between the rich and the poor, between those who have property and those who have none." This danger, so clearly indicated in the above passage, and perceived by all great politicians, from Aristotle to Montesquieu, in part escaped Tocqueville, who had not sufficiently studied the economic side of social problems. In the present day, the danger is apparent to every one, and recent events tend to shew once more that in this lies the real difficulty of definitely establishing a democratic government. By allowing the distribution among all of a part in the collective prosperity, the Allmends prevent excessive inequality opening a gap between the higher and lower classes. The struggle between rich and poor cannot lead to the ruin of these democratic institutions, for the simple reason that no one is very poor or very rich. Property is not threatened: who could threaten it, where all are proprietors?
In America and Australia, the new democracies, which are growing up on unoccupied lands, should reserve in each commune a collective domain of sufficient extent to establish the ancient Germanic system: otherwise, when increase of population creates distress, there will have to be established a poor-rate as in England. Surely it is a thousand times better to give, instead of relief, which only demoralizes the receiver, laud an instrument of labourby which, by his own efforts and in virtue of his natural right, he can obtain his means of subsistence. A comparison between the degraded inmate of an English workhouse and the proud, active, independent, and industrious commoner of the Swiss Allmend, is sufficient to illustrate the profound difference between the two systems. In all that regards the civil law, Anglo-Saxon colonies derive their inspiration from nothing but the feudal law of England: they would do better if they turned a glance towards the primitive institutions of their race, as seen still in full vigour in democratic Switzerland.
In Europe, economic reformers have everywhere insisted on the alienation of common lands, in spite of the opposition of the peasants and the conservative party. It was a right instinct that led the peasant to defend this legacy of the past, for it answered a social necessity. It is often imprudent to lay the axe to an institution hallowed by immemorial tradition, especially when its roots penetrate far into an age older than the establishment of great aristocracies and centralized monarchies. Before compelling the communes to sell their property, it would have been well to examine whether it could not be turned to profitable account, either by regularly planting woods, or by temporary grants of arable. The example of Switzerland shews us how this would have been possible. In the author's opinion, the increase of the communal patrimony should be fostered, but improvements should be introduced in the method of its cultivation.
1. Zeitschrift für die Geschichte des Oberrheins, v. i. p. 391.
2. Die Rechtsverhält, am Gemeinland, in Unterwalden.
3. See A. Heusler, Rechtsverh. Am Gemeinland in Unterwalden.