A Brief History of Forestry.. Fernow Bernhard Eduard
for themselves the position of Obermärker, appointing the officials, and issuing strict forest ordinances to regulate the cutting of wood; finally, the original right which belonged to every commoner of supplying himself with wood material, became dependent upon permission in each case, and thus his title to ownership became doubtful.
Undoubtedly also through the influence of Roman institutions with which the Franks under their Merovingian kings came into close contact, there arose that social and political institution which became finally known as the feudal system. By the grants of lands which the kings made out of their estates to their kinsmen and followers with the understanding that they would be faithful and render service to their masters, a peculiar relationship grew up, based on land tenure, the land so granted being called a fief or feud, and the relationship being called vassality or vassalage. This vassalage denoted the personal tie between the grantor and grantee, the lord and the vassal; the lord having the obligation to defend the vassal, and the vassal to be a faithful follower of his lord. Similar relationship arose from the surrender by landowners of their estates to the church or to other powerful barons, to be received back again as fiefs and to be held by them as tenants in exchange for rent or service. In this way a complete organization of society developed in which, from the king down to the lowest landowner, all were bound together by obligation of service and defence, both the defence and service being regulated by the nature and extent of the fief. Finally, all kinds of property of whatever nature, as well as official positions which would give an income, were subject to be treated as fiefs. The obligations of the recipient were of various nature, but finally service in army or court became the main one, giving rise to the class of knights (Ritter) or barons, while the fiefs to the small farmer gave rise to the class of peasants (Bauern, this name appearing first in 1106 under Conrad II).
The fiefs of the higher class, while at first given only to the individual, became early hereditary, and hereditary succession to estates and offices generally became the rule. Primogeniture in the succession to the estates did then not as in England prevail in Germany; instead, either tenancy in common, or else equal division among the sons was practised. As a result the very many small principalities came into existence in the 14th and 15th centuries, these growing smaller and smaller by subdivision. The first to institute the primogeniture rule by law was the house of Brandenburg (in the 15th century).
In addition to the class of peasants and knights, there came into existence a third class, the burghers, when, by the order of Conrad I in the beginning of the 10th century, towns were built with walls and towers for defence against the encroachments of the Huns, who endangered the eastern frontier Mark. In order to encourage the settlement of these towns, any slave moving to town was declared a freeman; and the cities became free republics; gifts of land, including forest areas, were made to the cities, and the development of industries was encouraged in every way. These cities, favored by the kings, and, having become rich and powerful, in the later quarrels of the kings with the lawless nobility, gave loyal support with money and arms. In return for their loans, the forest properties of the kings were often mortgaged to the burghers; and, failing of redemption, were often forfeited to them. In this way and through purchases the city forests came into existence.
Still other property conditions arose when, under Otto the Great (960), colonization of the eastern country beyond the Elbe was pushed. In these cases, the Mark institution was absent, although the colonists did often become part owners in the king’s forest, or acquired parts of it as common property, or else secured rights of user in the nearest royal forest.
By the end of the period, due to these various developments, a great variety of property conditions in forest areas had developed, most of which continue to the present time, namely royal properties, which by the end of the eighteenth century and the beginning of the nineteenth were in part to become state property; princely and lordly possessions under separate jurisdiction, with or without entail, and mostly encumbered with rights of user; allodial possessions (held independent of rent or service); municipal possessions owned by city corporations; communal properties, the remnants of the Mark; and farmers’ woodlots (Bauernwald), resulting from partitions of the Mark.
All these changes from the original communal property conditions did not, of course, take place without friction, the opposition often taking shape in peasants’ revolts; hundreds of thousands of these being killed in their attempts to preserve their commons, forests and waters free to all, to re-establish their liberty to hunt, fish and cut wood, and to abolish tithes, serfdom and duties.
2. Forest Treatment
As stated, the German tribes which settled the country were herders and hunters, who only gradually developed into farmers while the country was being settled. At first, therefore, as far as the forest did not need to give way to farm lands, its main use was in the exercise of the chase and for pasture, and especially for the raising and fattening of hogs; the number of hogs which could be driven into a forest serving as an expression of the size of such a forest. Oak and beech furnishing the mast were considered the preferable species. It is natural, therefore, that, wood being plentiful and the common property of all, the first regulation of forest use had reference to these, now minor benefits of forest property, as for instance the prohibition of cutting mast trees, which was enforced in early times. The first extensive regulation of forest use came however, from the exercise of the royal right of the ban and merely for the avowed purpose of protecting the chase.
Real forest management, however, did not exist, the forestarii mentioned in these early times being nothing but policemen guarding the hunting rights of the kings or other owners. The conception that wood on the stump was of the same nature as other property and its removal theft had not yet become established: “quia non res possessa sed de ligno agitur” (wood not being a possessed thing), a conception which still pervades the laws of modern times to some extent.
The necessity of clearing farm lands for the growing population continued, even in the western, more densely populated sections, into the 12th and 13th centuries. The cloisters were especially active in colonizing and making farm land with the use of axe and fire, such cloisters being often founded as mere land speculations. Squatters, as with us, were a frequent class of colonists, and in eastern Prussia continued even into the 17th and 18th centuries to appropriate forest land without regard to property rights.
The disturbed ownership conditions, which we have traced, led also often to wasteful slashing, especially in the western territory, while colonization among the Slavs of the Eastern sections led to similar results. In the 12th century, however, here and there appear the first signs of greater necessity for regulating and restricting forest use in the Mark forest, and for improvement in forest conditions with the purpose of insuring wood supplies.
In that century, division of the Mark forest begins for the alleged reason that individual ownership would lead to better management and less devastation. In the 12th and 13th centuries also, stricter order in the fellings and in forest use was insisted upon in many places. In the forest ordinances of the princes and barons, which, of course, have always reference to limited localities, we find prescriptions like the following: The amount to be cut is to be limited to the exact needs of each family and the proper use of the wood is to be inspected; the timber is to be marked, must be cut in a given time and be removed at once; only dry wood is to be used for fuel and the place and time for gathering it is specially designated, similar to the present practice. The best oak and beech are to be preserved (this, however, merely with reference to the mast), and in the Alps we find already provisions to reserve larch and pine. The charcoal industry is favored (because of easier transportation of its product), but permitted only under special precautions. Bark peeling and burning for potash is forbidden. The pasture is regulated with regard to the young growth, and sheep and goats are excluded.
Such measures are, to be sure, found only here and there where local conditions gave rise to a fear of a timber famine; such communities may also be found making attempts to protect themselves against reduction of home supplies by forbidding the export of wood from their territory. An amusing restriction of this kind is found at Altenstadt where the bakers were forbidden to bake bread for any but the citizens of the town.
The first ordinance prohibiting for clearings is found at Lorsch in the Rhenish country in 1165, and other ordinances with such