Mere habitation within the commune, or even the exercise of political membership, is not sufficient to constitute a title tothe enjoyment of the communal domain; descent from a family, which has possessed the right from time immemorial, or atleast from before the commencement of the present century, being necessary. Collective succession is based on succession inthe family, that is to say, descent in a privileged family gives the right to a share in the collective inheritance. In theory it isthe association of descendants of the original occupants of the mark continuing to enjoy what remains of its domain. Thus,in the same village, side by side with a group of persons using the commonable land, may be found inhabitants excludedfrom all the advantages which so materially improve the position of the former, and there are thus, as it were, two distinctcommunes involved one within the other. The Beisassen , or simple residents as they are called, have often complained ofthis distinction, which has given rise to violent struggles between the reformers, who demand equal rights for all, and theconservatives, who endeavour to maintain the old exclusion. (5) Even in those cantons where the most absolutely equaldemocracy that has ever existed is established, there is ground for a struggle between the spirit of tradition and the spirit oflevelling. As there is no general law on the subject, the results of this struggle have not been everywhere the same; butgenerally arrangements have been adopted securing certain rights to the mere residents, or Beisassen . Thus they may havefirewood from the forest, but not timber. They may only send the young cattle, and in some cases one or two milking cows,but no more, on to the alp. In the Allmends of the plain they are allowed even less: they are often entirely excluded; in somecases they only participate in the drawing of lots for the plots of cultivated land or gardens.
We have but little documentary evidence as to the primitive mode of occupying the Allmenden . When the population wasvery slight in proportion to the territory at its disposal, regulations were hardly necessary. Every one cut what wood herequired in the forest, and depastured on the alp all the cattle he possessed. It was only later on, when the number ofcopartners became too large to allow of an unlimited right of user, that the interposition of rules was called for, and theymerely sanctioned ancient custom. These regulations became stricter and more precise in proportion as the wants of thecommunity increased. There has thus been a certain juridical evolution; but the fundamental principles of the law havechanged as little as the alp itself, or the pastoral economy practised on it. The Swiss Allmend thus affords us even now apicture of the primitive life of the ancient inhabitants of the plateaus of the Iran.
The oldest rules of the Allmend which have been published date from the fifteenth century. Every community possesses anold chest, or ancient trunk, in which are preserved all the documents relating to the domain of the corporation. Besides thefundamental regulation, which may be called the constitution of the society, -- E inu ng or Genossenordnung , -- this chestcontains the judgments deciding any contested point, agreements with neighbouring villages, and the official reports ofdecisions passed in the ordinary assemblies of May and December. This respect for ancient tradition is a great source ofstrength in Switzerland; for, as they are more democratic and equal the higher they go back into antiquity, these traditionsare exactly in harmony with the requirements of the age which seeks to establish democracy. They have this great advantageover the innovations attempted in the present day, that they have lasted for thousands of years, being maintained andperfected by the free will of men who appreciate their advantages. This leads us to suppose that they are conformable tonatural law, that is, to the wants of human nature.
The mode in which the inhabitants exercise their right in the Allmend differs more or less in the several communes. It notalso varies according to the nature of the. property. It is the same for the alp, for the forest, for the turf and the cultivatedlands. When the group of habitations in the centre of the mark was transformed from a village into a town, it becamedifficult to maintain the ancient method of enjoyment. Nevertheless, at Berne, the woods are still allotted among the personsentitled. In the industrial town of Saint-Gall each of them receives annually half a fathom of wood and a hundred fagots, or aplot of arable land. The town of Soleure distributes among the occupiers a considerable supply of firewood, varying fromfive fathoms to a half fathom of beech and fir, according to the class of persons entitled. In many localities the communallands are let, and the profits applied to defray public expenses. Sometimes there is a surplus, which is apportioned in money;but nearly all the communes which have arable lands allot them among the commoners. There are infinite varieties of detailin the manner of enjoyment of the several communes. The methods can, however, as the Pastor Becker remarks, be classedwith sufficient accuracy according to the types afforded by the three cantons of Uri, Valais and Glaris.
