The Origin of Property in Land: With an introductory chapter on the English manor by W. J. AshleyFustel de Coulanges
History
The Origin of Property in Land: With an introductory chapter on the English manor by W. J. Ashley
Fustel de Coulanges
Land tenure -- Law and legislation -- History; Manors -- Great Britain; Real property -- History
Professor Lamprecht cannot deny that the Salic law mentions enclosures
round corn-fields, meadows, and vineyards, and that this is an
indication of private property. According to him, it was the kings who
altered the old condition of things and introduced these novelties. But
this is mere hypothesis. He maintains that the forest and meadowland
at any rate continued to be common, and refers to article 27 of the
Salic law. You turn to the passage quoted, believing you will there
find a mention of a common forest, a forest where all are free to take
wood. You find exactly the contrary: “If any one has taken wood from
the forest of another, he shall pay a fine of three _solidi_.”[194]
This, then, is a forest which is someone’s private property, a forest
wherein none besides the owner has any rights. But Dr. Lamprecht is
not troubled by this. According to him, the words _silva aliena_ mean
a common forest. But what should lead him to attribute this unusual
meaning to the words? “Because,” says he, “in the Salic law the
word _silva_ is always used in the sense of common forest” (p. 48).
But the word _silva_ occurs nowhere else except in this section. He
then translates _aliena_ as if it signified “foreign.” Here we have,
indeed, to do with a word which recurs as often as thirty-one times
in Salic law; but in each of these thirty-one cases its meaning is
unmistakably “belonging to another.” The law, for instance, speaks of
_messis aliena_, _sepem alienam_, _hortum alienum_, _vinea aliena_,
_servus alienus_, _litum alienum_, _caballus alienus_, _sponsa aliena_,
_uxor aliena_. The word is always synonymous with _alterius_, which is
often found taking its place; and these very words _silva aliena_ are
replaced in several manuscripts by the words _silva alterius_.[195]
We must also notice that the whole of this section 27 concerns theft
committed “in the field of another,” “in the garden of another,” “in
the vineyard of another,” and, finally, “in the forest of another.”
Doubt is impossible. In every case it is a matter of private property;
and the law uses precisely the same expressions about a forest as
about a vineyard or garden. Professor Lamprecht’s reading of the
passage is opposed to all the evidence. But it was necessary for his
argument that the forests should be common; he was only able to find a
single section of the law which bore upon forests, and, although this
section related to a forest belonging to a single owner, he could not
refrain from making use of it; and so he maintains that _silva aliena_
means exactly the opposite of what it does mean.
Public-domain text, read in full here on John Shaqi.
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