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The Pamphlet Collection of Sir Robert Stout: Volume 2

Land Laws of Germany

Land Laws of Germany.

Even Prussia, and others of the German states, felt something of this impulse. The first sign they showed was by secularising, as it was gently called, the vast possessions of the Church; and later, when Prussia was at its lowest ebb, the legislation of Stein and Hardenburg did much to renovate page 32

Land Laws of Germany.

her and reanimate her people, by modernizing her land laws, favouring the creation of absolute owners, and substituting full ownership for feudal dependency.

It may be worth while to dwell shortly upon the changes which occurred in Prussia,1 as they were the model on which many other states have subsequently acted. Indeed it may be said that two methods have been followed by Europe, in getting rid of the feudal land system—the French method of the Revolution, where little regard was paid to private interests, where feudal services and dues were abolished without compensation, and feudal tenures were converted into absolute ownerships; and the Prussian method, or the legal method, by which the values of feudal rights were commuted, or a partition was made of the land occupied by the tenants, a portion being awarded to their feudal superiors in compensation for the loss of rights.

In Germany, as in France, the feudal system had not extinguished altogether the anterior existing class of small proprietors. They were indeed brought within the feudal system, and were considered as serfs; but they continued in possession of their small holdings, and exercised the rights of property and of bequest in respect of them.

page 33
The subjection of the peasant to their lords

Land Laws of Germany.

was so great that "the air makes us serfs" became a common expression. The oppression of the serfs was carried to the utmost, and they were not unfrequently sold to foreign governments as soldiers; but notwithstanding this, the class continued in possession of their small holdings of land. The power of the lord did not extend to the appropriation of the peasant's lands. The lord cultivated his own demesnes, either personally or by his bailiffs, with the aid of the services of his feudal dependents, and by the labour of the serfs due in respect of their separate holdings.
It appears, however, that there was from an early date a disposition on the part of the nobility and feudal lords to encroach upon the lands of their peasants, and gradually to convert the latter more completely into labourers without land of their own. We find, for instance, that in the fifteenth and sixteenth centuries the small country towns petitioned the King of Prussia to protect and maintain the yeomanry and peasantry, on commercial and political grounds; on the former, because the nobles traded with the large commercial towns, while the yeomanry traded with the small country towns; and on the latter, because it was good for the state that the yeomanry and peasantry should not disappear and leave nothing but nobles and labourers. The Hohenzollern princes took this view of the case, and directed their policy page 34

Land Laws of Germany.

to the maintenance of the peasantry. They prohibited the nobles from annexing the peasants' lands; and later they even forbad the eviction of a peasant, except upon well-founded grounds, and upon the lord of the manor replacing him by mother peasant. Frederick the Great, actuated probably by military motives, issued severe edicts on this subject, prohibiting the absorption of peasants' lands.

At the beginning of this century Prussia had retained the feudal system in some of its most objectionable features. Her subjects were divided into three classes—Nobles, Townsmen, and Peasants. Each class was carefully restricted by law from mingling with the others in any way. The lands of each class were compulsorily maintained in its possession. The nobles' lands were for the most part the subject of unlimited entails. Freedom of commerce in land did not exist. Though the peasants were sustained and protected in their holdings, they were subject to the most arbitrary, capricious, and galling services and dues to their lords.

The French Revolution and the humiliating defeat of the Prussian armies by the French, brought on a crisis in this political and social system. After the treaty of Tilsit, the Prussian statesmen set to work to remodel her system, to modernize her land laws, and to abolish the remains of the feudal system. This great work was mainly page 35 accomplished by the legislation of Stein and Hardenburg.

Land Laws of Germany.

It was temporarily arrested in 1816 by the reaction which set in after the close of the French war, and was not finally accomplished till 1850. after the revolutionary rising of 1848. The effect of this legislation was to convert the feudally subjected peasant, with more or less imperfect rights of property in land, into a perfectly free peasant with absolute ownership, subject only to a temporary rent-charge for commutation of the feudal services; to convert the feudally restricted lord, with more or less perfect rights of property in his land, into a perfectly independent landowner; to relax the system of entails; to abolish all restrictions on the sale of land as between the different classes; and to establish the great principle of freedom of sale of land. The operation was assisted by the creation of Land Credit Banks, supported by loans from the State, and which in their turn lent money to the tenants, repayable by instalments spread over a term of years, for the redemption of their rents.
The result of this legislation is that the land in: Prussia is now the absolute property of a large number of owners, and that each owner is quite independent of any other owner. The law recognizes no distinction between land and other property in respect of succession, and both are equally divided among the children on the death of the owner Comparatively little land is now withdrawn from page 36

Land Laws of Germany.

free exchange by entail. Entails are not absolutely prohibited by law; though the prohibition of them was promised by the Constitution. The law of obligatory heritage (as it is called), by which a proportion of every man's property must descend to his children (in Prussia one-third of the property must go to the children equally if there be two children, and one-half if there be more than two), tends to prevent the accumulation of very large landed properties, and the equal division of real as well as personal property on intestacy, runs counter to any existing custom of primogeniture. Title to land has been made clear and almost indefeasible. The law of mortgages has been simplified; foreclosure and public sale are facilitated. By all these measures, and above all by the prevalence of absolute ownership of numerous owners, the free exchange of land has been fully attained.
The present state of Prussia as regards her land ownership is this: exclusive of the Rhine provinces and Westphalia, it consists of 70,000,000 acres, of which about 50,000,000 acres are cultivated and 17,000,000 are forest. The land is owned by 1,300,000 proprietors, of whom about 10,000 are large proprietors with properties of over 400 acres 350,000 are medium-sized proprietors and 925,000 are small proprietors. About half of the latter are wholly employed on their small holdings, and the remainder are occupied mainly as day labourers or page 37

Land Laws of Germany.

have other industries. The large proprietors, who own between them about 45 per cent, of the country, of which however a large part is forest, either farm themselves or through their bailiffs, and the relation of landlord and tenant is comparatively rare; there are not more than 30,000 farm tenants. Of the total area not more than 1/13th is withdrawn from free exchange by reason of entails; new entails are very seldom created, and old entails are dying out.

In the Rhine provinces and Westphalia, owing to the fact that they were subjected to the French laws at the beginning of the century, the land is even more distributed; with an area of about 11,000,000 of acres, there are said to be 1,157,000 proprietors, giving an average of 10 acres to each.

Of the beneficent results of this legislation with respect to land in Prussia, extending over a period of nearly fifty years, and but recently completed, there cannot be a doubt. The universal testimony of the country is in its favour. It promotes ownership versus tenancy; it aims at free exchange; the discouragement of entail and the withdrawal of sanction to primogeniture prevent accumulation of land; and the concurrence of all economists and statesmen is in favour of the yeomanry class as the main support of the empire. There are nearly a million owners of land living wholly upon the results of their own labour; they are said to form the most valuable section of page 38 Prussia's population, although not the most wealthy.

Land Laws of Germany.

Many of them have raised themselves from the rank of day labourers. A well-known economist says of them :—"The inclination of the German to establish his family upon its own plot is a blessed trait of the greatest moral advantage. It has been sufficiently shown that the possibility of acquiring land fosters hope, encourages energy, and never allows useful activity to flag."

It has been thought well to dwell upon this Prussian legislation, because it formed the model which many other States have subsequently taken for their legislation with respect to land. Austria, Saxony, Hanover, Hungary, and Denmark, followed in the wake of Prussia; and the general principles under-lying the more recent changes in Russia and the abolition of serfdom in that great empire, have been to a great extent borrowed from the same source. Generally it may be said that the French Revolution gave the first impulse to these changes: a reaction occurred at the close of the war in 1814, which stopped further advance, and in some cases, caused a return to the old system; the revolution of 1848, as a rule, compelled a final change.

It is not too much, then, to say that for the last ninety years a large part of the Continent, and for the last thirty years nearly the whole of the Continent, has been moving in the direction of more absolute and more distributed ownership of land, Its legislators have not been content with merely page 39 abolishing primogeniture and entail; they have

Land Laws of Germany.

more actively thrown the weight of their laws and their institutions in favour of individualism, and in favour of ownership as distinguished from tenancy. The sale of Church property and State domains has largely assisted in this process. In some countries, as in Sweden, old entails are permitted to wear themselves out, but new entails cannot be created. In Denmark the constitution of 1849 forbade the creation of new entails, and promised that entailed estates should be converted into free property. This last promise, however, has not yet been fulfilled.
In Portugal, it is reported to our Government,


"that every opportunity is seized to necessitate the transfer of land. The extinction and dispersion of old estates ensuing from the laws now in force have been sought for rather than prevented; there is a direct movement towards democratic institutions, to which all measures of the legislature have for some years tended. Another blow dealt against the agglomeration of landed property is the abolition of Prasos de Vita, a sort of right of primogeniture which allowed property of a certain kind to be left as an undivided inheritance for three generations."
Of Gallicia, it is said, the local tribunals greatly


facilitate dispersion and division of land. The Austrian civil code of 1869 accords no preference to eldest sons; exception is made in favour of page 40

Land Laws.

majorats, or family entails, but these cannot be constituted without the consent of the legislature.


Even in Sicily, one of the most backward parts of Europe, changes have been made in the same direction. Since 1812, when the feudal tenures which had their origin in the Norman Conquest, were abolished, the tendency of legislation has been to favour the alienation and division of landed property. In 1819 entails were put an end to, and the testamentary power of a father was limited to one-half of his property. In 1862 a law was proposed for the disposal of the Church lands, which amounted to one-sixth of the landed property in the island; by 1869 about 20,00 lots of 451,000 acres were disposed of, averaging 23 acres; yet we are told that, in spite of these legislative changes, the greater part of the soil of the island is still in possession of the few. It has not been found possible as yet to extirpate brigandage.

1 This account of the Reform of the Land Laws in Prussia is taken mainly from Mr. Harriss Gastrel's able report in the papers laid before Parliament in 1870