FOOTNOTES:

END OF BOOK IV.

FOOTNOTES:[Pg 77][1]The nomenclature in this chapter has given unusual difficulty, because the organisation of mines, either past or present, in English-speaking countries provides no exact equivalents for many of these offices and for many of the legal terms. The Latin terms in the text were, of course, coined by the author, and have no historical basis to warrant their adoption, while the introduction of the original German terms is open to much objection, as they are not only largely obsolete, but also in the main would convey no meaning to the majority of readers. We have, therefore, reached a series of compromises, and in the main give the nearest English equivalent. Of much interest in this connection is a curious exotic survival in mining law to be found in the High Peak of Derbyshire. We believe (see note on p.85) that the law of this district was of Saxon importation, for in it are not only many terms of German origin, but the character of the law is foreign to the older English districts and shows its near kinship to that of Saxony. It is therefore of interest in connection with the nomenclature to be adopted in this book, as it furnishes about the only English precedents in many cases. The head of the administration in the Peak was the Steward, who was the chief judicial officer, with functions somewhat similar to theBerghauptmann. However, the term Steward has come to have so much less significance that we have adopted a literal rendering of the Latin. Under the Steward was the Barmaster, Barghmaster, or Barmar, as he was variously called, and his duties were similar to those of theBergmeister. The English term would seem to be a corruption of the German, and as the latter has come to be so well understood by the English-speaking mining class, we have in this case adopted the German. The Barmaster acted always by the consent and with the approval of a jury of from 12 to 24 members. In this instance the English had functions much like a modern jury, while theGeschwornenof Saxony had much more widely extended powers. The GermanGeschwornenwere in the main Inspectors; despite this, however, we have not felt justified in adopting any other than the literal English for the Latin and German terms. We have vacillated a great deal over the termPraefectus Fodinae, the GermanSteigerhaving, like the Cornish "Captain," in these days degenerated into a foreman, whereas the duties as described were not only those of the modern Superintendent or Manager, but also those of Treasurer of the Company, for he made the calls on shares and paid the dividends. The term Purser has been used for centuries in English mining for the Accountant or Cashier, but his functions were limited to paying dividends, wages, etc., therefore we have considered it better not to adopt the latter term, and have compromised upon the term Superintendent or Manager, although it has a distinctly modern flavor. The word forareahas also caused much hesitation, and the "meer" has finally been adopted with some doubt. The title described by Agricola has a very close equivalent in the meer of old Derbyshire. As will be seen later, the mines of Saxony were Regal property, and were held subject to two essential conditions,i.e., payment of a tithe, and continuous operation. This form of title thus approximates more closely to the "lease" of Australia than to the old Cornishsett, or the Americanclaim. Thefundgrubeof Saxony and Agricola's equivalent, thearea capitis—head lease—we have rendered literally as "head meer," although in some ways "founders' meer" might be better, for, in Derbyshire, this was called the "finder's" or founder's meer, and was awarded under similar circumstances. It has also an analogy in Australian law in the "reward" leases. The term "measure" has the merit of being a literal rendering of the Latin, and also of being the identical term in the same[Pg 78]use in the High Peak. The following table of the principal terms gives the originals of the Latin text, their German equivalents according in the Glossary and other sources, and those adopted in the translation:—Agricola.German Glossary.Term Adopted.Praefectus MetallorumBergamptmannMining Prefect.Magister MetallicorumBergmeisterBergmeister.Scriba Magister MetallicorumBergmeister's schreiberBergmeister's clerk.JuratiGeschwornenJurates or Jurors.Publicus SignatorGemeiner siglerNotary.DecumanusZehenderTithe gatherer.DistributorAussteilerCashier.Scriba partiumGegenschreiberShare clerk.Scriba fodinarumBergschreiberMining clerk.Praefectus fodinae}Steiger{Manager of the Mine.Praefectus cuniculiManager of the Tunnel.Praeses fodinae}Schichtmeister{Foreman of the Mine.Praeses cuniculiForeman of the Tunnel.FossoresBerghauerMiners or diggers.IngestoresBerganschlagenShovellers.VectariiHespelerLever workers (windlass men).DiscretoresErtzpucherSorters.LotoresWescher und seiffnerWashers, buddlers, sifters, etc.ExcoctoresSchmeltzerSmelters.Purgator ArgentiSilber brennerSilver refiner.Magister MonetariorumMüntzmeisterMaster of the Mint.MonetariusMüntzerCoiner.Area fodinarumMasseMeer.Area Capitis FodinarumFundgrubeHead meer.DemensumLehenMeasure.[2]The following are the equivalents of the measures mentioned in this book. It is not always certain which "foot" or "fathom" Agricola actually had in mind although they were probably the German.Greek—Dactylos=.76inches16=Pous=12.13inches6=Orguia=72.81inches.Roman—Uncia=.97"12=Pes=11.6"5=Passus=58.1"German—Zoll=.93"12=Werckschuh=11.24"6=Lachter=67.5"English—Inch=1.0"12=Foot=12.00"6=Fathom=72.0"The discrepancies are due to variations in authorities and to decimals dropped. Thewerckschuhtaken is the Chemnitz foot deduced from Agricola's statement in hisDe Mensuris et Ponderibus, Basel, 1533, p. 29. For further notes seeAppendix C.[Pg 80][3]Subcisivum—"Remainder." German Glossary,Ueberschar. The term used in Mendip and Derbyshire wasprimgaporprimegap. It did not, however, in this case belong to adjacent mines, but to the landlord.[4]Adversum. Glossary,gegendrumb. TheBergwerk Lexicon, Chemnitz, 1743, givesgegendromorgegentramm, and defines it as themasseor lease next beyond a stream.[5]Quadratum. Glossary,vierung. Thevierungin old Saxon title meant a definite zone on either side of the vein, 31/2lachter(lachter= 5 ft. 7.5 inches) into the hangingwall and the same into the footwall, the length of onevierungbeing 7lachteralong the strike. It[Pg 81]must be borne in mind that the form of rights here referred to entitled the miner to follow his vein, carrying the side line with him in depth the same distance from the vein, in much the same way as with the Apex Law of the United States. From this definition as given in theBergwerk Lexicon, p. 585, it would appear that the vein itself was not included in the measurements, but that they started from the walls.[Pg 82][6]Historical Note on the Development of Mining Law.—There is no branch of the law of property, of which the development is more interesting and illuminating from a social point of view than that relating to minerals. Unlike the land, the minerals have ever been regarded as a sort of fortuitous property, for the title of which there have been four principal claimants—that is, the Overlord, as represented by the King, Prince, Bishop, or what not; the Community or the State, as distinguished from the Ruler; the Landowner; and the Mine Operator, to which class belongs the Discoverer. The one of these that possessed the dominant right reflects vividly the social state and sentiment of the period. The Divine Right of Kings; the measure of freedom of their subjects; the tyranny of the land-owning class; the rights of the Community as opposed to its individual members; the rise of individualism; and finally, the modern return to more communal view, have all been reflected promptly in the mineral title. Of these parties the claims of the Overlord have been limited only by the resistance of his subjects; those of the State limited by the landlord; those of the landlord by the Sovereign or by the State; while the miner, ever in a minority in influence as well as in numbers, has been buffeted from pillar to post, his only protection being the fact that all other parties depended upon his exertion and skill.The conception as to which of these classes had a right in the title have been by no means the same in different places at the same time, and in all it varies with different periods; but the whole range of legislation indicates the encroachment of one factor in the community over another, so that their relative rights have been the cause of never-ending contention, ever since a record of civil and economic contentions began. In modern times, practically over the whole world, the State has in effect taken the rights from the Overlord, but his claims did not cease until his claims over the bodies of his subjects also ceased. However, he still remains in many places with his picture on the coinage. The Landlord has passed through many vicissitudes; his complete right to minerals was practically never admitted until the doctrine oflaissez-fairehad become a matter of faith, and this just in time to vest him with most of the coal and iron deposits in the world; this, no doubt, being also partially due to the little regard in which such deposits were generally held at that time, and therefore to the little opposition to his ever-ready pretentions. Their numbers, however, and their prominence in the support of the political powersde jurehave usually obtained them some recognition. In the rise of individualism, the apogee of thelaissez-fairefetish came about the time of the foundation of the United States, and hence the relaxation in the claims of the State in that country and the corresponding position attained by the landlord and miner. The discoverer and the operator—that is, the miner himself—has, however, had to be reckoned with by all three of the other claimants, because they have almost universally sought to escape the risks of mining, to obtain the most skilful operation, and to stimulate the productivity of the mines; thereupon the miner has secured at least partial consideration. This stands out in all times and all places, and while the miner has had to take the risks of his fortuitous calling, the Overlord, State, or Landlord have all made for complacent safety by demanding some kind of a tithe on his exertions. Moreover, there has often been a low cunning displayed by these powers in giving something extra to the first discoverer. In these relations of the powers to the mine operator, from the very first we find definite records of the imposition of certain conditions with extraordinary persistence—so fixed a notion that even the United States did not quite escape it. This condition was, no doubt, designed as a stimulus to productive activity, and was the requirement that the miner should continuously employ himself digging in the piece of ground allotted to him. The Greeks, Romans, Mediæval Germans, old and modern Englishmen, modern Australians, all require the miner to keep continuously labouring at his mines, or lose his title. The American, as his inauguration of government happened when things were easier for individuals, allows him a vacation of 11 months in the year for a few years, and finally a holiday altogether. There are other points where the Overlord, the State, or the Landlord have always considered that they had a right to interfere, principally as to the way the miner does his work, lest he should miss, or cause to be missed, some of the mineral; so he has usually been under pains and penalties as to his methods—these quite apart from the very proper protection to human life, which is purely a modern invention, largely of the miner himself. Somebody has had to keep peace and settle disputes among the usually turbulent miners (for what other sort of operators would undertake the hazards and handicaps?), and therefore special officials and codes, or Courts, for his benefit are of the oldest and most persistent of institutions.Between the Overlord and the Landowner the fundamental conflict of view as to their respective rights has found its interpretation in the form of the mineral title. The Overlord claimed the metals as distinguished from the land, while the landowner claimed all beneath his[Pg 83]soil. Therefore, we find two forms of title—that in which the miner could follow the ore regardless of the surface (the "apex" conception), and that in which the boundaries were vertical from the land surface. Lest the Americans think that the Apex Law was a sin original to themselves, we may mention that it was made use of in Europe a few centuries before Agricola, who will be found to set it out with great precision.From these points of view, more philosophical than legal, we present a few notes on various ancient laws of mines, though space forbids a discussion of a tithe of the amount it deserves at some experienced hand.Of the Ancient Egyptian, Lydian, Assyrian, Persian, Indian, and Chinese laws as to mines we have no record, but they were of great simplicity, for the bodies as well as the property of subjects were at the abject disposition of the Overlord. We are informed on countless occasions of Emperors, Kings, and Princes of various degree among these races, owning and operating mines with convicts, soldiers, or other slaves, so we may take it for certain that continuous labour was enforced, and that the boundaries, inspection, and landlords did not cause much anxiety. However, herein lies the root of regalian right.Our first glimpse of a serious right of the subject to mines is among some of the Greek States, as could be expected from their form of government. With republican ideals, a rich mining district at Mount Laurion, an enterprising and contentious people, it would be surprising indeed if Athenian Literature was void on the subject. While we know that the active operation of these mines extended over some 500 years, from 700 to 200B.C., the period of most literary reference was from 400 to 300B.C.Our information on the subject is from two of Demosthenes' orations—one against Pantaenetus, the other against Phaenippus—the first mining lawsuit in which the address of counsel is extant. There is also available some information in Xenophon's Essay upon the Revenues, Aristotle's Constitution of Athens, Lycurgus' prosecution of Diphilos, the Tablets of the Poletae, and many incidental references and inscriptions of minor order. The minerals were the property of the State, a conception apparently inherited from the older civilizations. Leases for exploitation were granted to individuals for terms of three to ten years, depending upon whether the mines had been previously worked, thus a special advantage was conferred upon the pioneer. The leases did not carry surface rights, but the boundaries at Mt. Laurion were vertical, as necessarily must be the case everywhere in horizontal deposits. What they were elsewhere we do not know. The landlord apparently got nothing. The miner must continuously operate his mine, and was required to pay a large tribute to the State, either in the initial purchase of his lease or in annual rent. There were elaborate regulations as to interference and encroachment, and proper support of the workings. Diphilos was condemned to death and his fortune confiscated for robbing pillars. The mines were worked with slaves.The Romans were most intensive miners and searchers after metallic wealth already mined. The latter was obviously the objective of most Roman conquest, and those nations rich in these commodities, at that time necessarily possessed their own mines. Thus a map showing the extensions of Empire coincides in an extraordinary manner with the metal distribution of Europe, Asia, and North Africa. Further, the great indentations into the periphery of the Imperial map, though many were rich from an agricultural point of view, had no lure to the Roman because they had no mineral wealth. On the Roman law of mines the student is faced with many perplexities. With the conquest of the older States, the plunderers took over the mines and worked them, either by leases from the State to public companies or to individuals; or even in some cases worked them directly by the State. There was thus maintained the concept of State ownership of the minerals which, although apparently never very specifically defined, yet formed a basis of support to the contention of regalian rights in Europe later on. Parallel with this system, mines were discovered and worked by individuals under tithe to the State, and in Pliny (XXXIV, 49) there is reference to the miners in Britain limiting their own output. Individual mining appears to have increased with any relaxation of central authority, as for instance under Augustus. It appears, as a rule, that the mines were held on terminable leases, and that the State did at times resume them; the labour was mostly slaves. As to the detailed conditions under which the mine operator held his title, we know less than of the Greeks—in fact, practically nothing other than that he paid a tithe. The Romans maintained in each mining district an official—theProcurator Metallorum—who not only had general charge of the leasing of the mines on behalf of the State, but was usually the magistrate of the district. A bronze tablet found near Aljustrel, in Portugal, in 1876, generally known as the Aljustrel Tablet, appears to be the third of a series setting out the regulations of the mining district. It refers mostly to the regulation of public auctions, the baths, barbers, and tradesmen; but one clause (VII.) is devoted to the regulation of those[Pg 84]who work dumps of scoria, etc., and provides for payment to the administrator of the mines of acapitationon the slaves employed. It does not, however, so far as we can determine, throw any light upon the actual regulations for working the mines. (Those interested will find ample detail in Jacques Flach, "La Table de Bronze d'Aljustrel: Nouvelle Revue Historique de Droit Francais et Etranger," 1878, p. 655;Estacio da Veiga, Memorias da Acad. Real das Ciencias de Lisbon, Nova Scrie, Tome V, Part II, Lisbon, 1882.) Despite the systematic law of property evolved by the Romans, the codes contain but small reference to mines, and this in itself is indirect evidence of the concept that they were the property of the State. Any general freedom of the metals would have given rise to a more extensive body of law. There are, of course, the well-known sections in the Justinian and Theodosian Codes, but the former in the main bears on the collection of the tithe and the stimulation of mining by ordering migrant miners to return to their own hearths. There is also some intangible prohibition of mining near edifices. There is in the Theodosian code evident extension of individual right to mine or quarry, and this "freeing" of the mines was later considerably extended. The Empire was, however, then on the decline; and no doubt it was hoped to stimulate the taxable commodities. There is nothing very tangible as to the position of the landlord with regard to minerals found on his property; the metals were probably of insufficient frequency on the land of Italian landlords to matter much, and the attitude toward subject races was not usually such as to require an extensive body of law.In the chaos of the Middle Ages, Europe was governed by hundreds of potentates, great and small, who were unanimous on one point, and this that the minerals were their property. In the bickerings among themselves, the stronger did not hesitate to interpret the Roman law in affirming regalian rights as an excuse to dispossess the weaker. The rights to the mines form no small part of the differences between these Potentates and the more important of their subjects; and with the gradual accretion of power into a few hands, we find only the most powerful of vassals able to resist such encroachment. However, as to what position the landlord or miner held in these rights, we have little indication until about the beginning of the 13th century, after which there appear several well-known charters, which as time went on were elaborated into practical codes of mining law. The earliest of these charters are those of the Bishop of Trent, 1185; that of the Harz Miners, 1219; of the town of Iglau in 1249. Many such in connection with other districts appear throughout the 13th, 14th, and 15th centuries. (References to the most important of such charters may be found in Sternberg,Umrisse der Geschichte des Bergbaues, Prague, 1838; Eisenhart,De Regali Metalli Fodinarium, Helmestadt, 1681; Gmelin,Beyträge zur Geschichte des Teutschen Bergbaus, Halle, 1783; Inama-Sternegg,Deutsche Wirthschaftsgeschichte, Leipzig, 1879-1901; Transactions, Royal Geol. Soc. CornwallVI, 155; Lewis, The Stannaries, New York, 1908.) By this time a number of mining communities had grown up, and the charters in the main are a confirmation to them of certain privileges; they contain, nevertheless, rigorous reservation of the regalian right. The landlord, where present, was usually granted some interest in the mine, but had to yield to the miner free entry. The miner was simply a sort of tributer to the Crown, loaded with an obligation when upon private lands to pay a further portion of his profits to the landlord. He held tenure only during strenuous operation. However, it being necessary to attract skilled men, they were granted many civil privileges not general to the people; and from many of the principal mining towns "free cities" were created, possessing a measure of self-government. There appear in the Iglau charter of 1249 the first symptoms of the "apex" form of title, this being the logical development of the conception that the minerals were of quite distinct ownership from the land. The law, as outlined by Agricola, is much the same as set out in the Iglavian Charter of three centuries before, and we must believe that such fully developed conceptions as that charter conveys were but the confirmation of customs developed over generations.In France the landlord managed to maintain a stronger positionvis-à-viswith the Crown, despite much assertion of its rights; and as a result, while the landlord admitted the right to a tithe for the Crown, he maintained the actual possession, and the boundaries were defined with the land.In England the law varied with special mining communities, such as Cornwall, Devon, the Forest of Dean, the Forest of Mendip, Alston Moor, and the High Peak, and they exhibit a curious complex of individual growth, of profound interest to the student of the growth of institutions. These communities were of very ancient origin, some of them at least pre-Roman; but we are, except for the reference in Pliny, practically without any idea of their legal doings until after the Norman occupation (1066A.D.). The genius of these conquerors for systematic government soon led them to inquire into the doings of these communities, and while gradually systematising their customs into law, they lost no occasion to assert the[Pg 85]regalian right to the minerals. In the two centuries subsequent to their advent there are on record numerous inquisitions, with the recognition and confirmation of "the customs and liberties which had existed from time immemorial," always with the reservation to the Crown of some sort of royalty. Except for the High Peak in Derbyshire, the period and origin of these "customs and liberties" are beyond finding out, as there is practically no record of English History between the Roman withdrawal and the Norman occupation. There may have been "liberties" under the Romans, but there is not a shred of evidence on the subject, and our own belief is that the forms of self-government which sprang up were the result of the Roman evacuation. The miner had little to complain of in the Norman treatment in these matters; but between the Crown and the landlord as represented by the Barons, Lords of the Manor, etc., there were wide differences of opinion on the regalian rights, for in the extreme interpretation of the Crown it tended greatly to curtail the landlord's position in the matter, and the success of the Crown on this subject was by no means universal. In fact, a considerable portion of English legal history of mines is but the outcropping of this conflict, and one of the concessions wrung from King John at Runnymede in 1215 was his abandonment of a portion of such claims.The mining communities of Cornwall and Devon were early in the 13th century definitely chartered into corporations—"The Stannaries"—possessing definite legislative and executive functions, judicial powers, and practical self-government; but they were required to make payment of the tithe in the shape of "coinage" on the tin. Such recognition, while but a ratification of prior custom, was not obtained without struggle, for the Norman Kings early asserted wide rights over the mines. Tangible record of mining in these parts, from a legal point of view, practically begins with a report by William de Wrotham in 1198 upon his arrangements regarding the coinage. A charter of King John in 1201, while granting free right of entry to the miners, thus usurped the rights of the landlords—a claim which he was compelled by the Barons to moderate; the Crown, as above mentioned did maintain its right to a royalty, but the landlord held the minerals. It is not, however, until the time of Richard Carew's "Survey of Cornwall" (London, 1602) that we obtain much insight into details of miners' title, and the customs there set out were maintained in broad principle down to the 19th century. At Carew's time the miner was allowed to prospect freely upon "Common" or wastrel lands (since mostly usurped by landlords), and upon mineral discovery marked his boundaries, within which he was entitled to the vertical contents. Even upon such lands, however, he must acknowledge the right of the lord of the manor to a participation in the mine. Upon "enclosed" lands he had no right of entry without the consent of the landlord; in fact, the minerals belonged to the land as they do to-day except where voluntarily relinquished. In either case he was compelled to "renew his bounds" once a year, and to operate more or less continuously to maintain the right once obtained. There thus existed a "labour condition" of variable character, usually imposed more or less vigorously in the bargains with landlords. The regulations in Devonshire differed in the important particular that the miner had right of entry to private lands, although he was not relieved of the necessity to give a participation of some sort to the landlord. The Forests of Dean, Mendip, and other old mining communities possessed a measure of self-government, which do not display any features in their law fundamentally different from those of Cornwall and Devon. The High Peak lead mines of Derbyshire, however, exhibit one of the most profoundly interesting of these mining communities. As well as having distinctively Saxon names for some of the mines, the customs there are of undoubted Saxon origin, and as such their ratification by the Normans caused the survival of one of the few Saxon institutions in England—a fact which, we believe, has been hitherto overlooked by historians. Beginning with inquisitions by Edward I. in 1288, there is in the Record Office a wealth of information, the bare titles of which form too extensive a list to set out here. (Of published works, the most important are Edward Manlove's "The Liberties and Customs of the Lead Mines within the Wapentake of Wirksworth," London, 1653, generally referred to as the "Rhymed Chronicle"; Thomas Houghton, "Rara Avis in Terra," London, 1687; William Hardy, "The Miner's Guide," Sheffield, 1748; Thomas Tapping, "High Peak Mineral Customs," London, 1851.) The miners in this district were presided over by a "Barmaster," "Barghmaster," or "Barmar," as he was variously spelled, all being a corruption of the German Bergmeister, with precisely the same functions as to the allotment of title, settlement of disputes, etc., as his Saxon progenitor had, and, like him, he was advised by a jury. The miners had entry to all lands except churchyards (this regulation waived upon death), and a few similar exceptions, and was subject to royalty to the Crown and the landlord. The discoverer was entitled to a finder's "meer" of extra size, and his title was to the vein within the end lines,i.e., the "apex" law. This title was held subject to rigorous labour[Pg 86]conditions, amounting to forfeiture for failure to operate the mine for a period of nine weeks. Space does not permit of the elaboration of the details of this subject, which we hope to pursue elsewhere in its many historical bearings. Among these we may mention that if the American "Apex law" is of English descent, it must be laid to the door of Derbyshire, and not of Cornwall, as is generally done. Our own belief, however, is that the American "apex" conception came straight from Germany.It is not our purpose to follow these inquiries into mining law beyond the 15th century, but we may point out that with the growth of the sentiment of individualism the miners and landlords obtained steadily wider and wider rights at the cost of the State, until well within the 19th century. The growth of stronger communal sentiment since the middle of the last century has already found its manifestation in the legislation with regard to mines, for the laws of South Africa, Australia, and England, and the agitation in the United States are all toward greater restrictions on the mineral ownership in favour of the State.[Pg 87][7]?De Limitibus et de Re Agrariaof Sextus Julius Frontinus (about 50-90A.D.)[Pg 90][8]Such a form of ownership is very old. Apparently upon the instigation of Xenophon (seeNote 7, p. 29) the Greeks formed companies to work the mines of Laurion, further information as to which is given innote 6, p. 27. Pliny (Note 7, p. 232) mentions the Company working the quicksilver mines in Spain. In fact, company organization was very common among the Romans, who speculated largely in the shares, especially in those companies which farmed the taxes of the provinces, or leased public lands, or took military and civil contracts.[9]The Latin text gives one-sixth, obviously an error.[Pg 91][10]Asymposiumis a banquet, and asymbolais a contribution of money to a banquet. This sentence is probably a play on the old GermanZeche, mine, this being also a term for a drinking bout.[11]In the Latin text this is "three"—obviously an error.[Pg 92][12]SeeNote 9, p. 74, for further information with regard to these mines. The Rhenish gulden was about 6.9 shillings, or $1.66. Silver was worth about this amount per Troy ounce at this period, so that roughly, silver of a value of 1,100 gulden would be about 1,100 Troy ounces. The Saxon thaler was worth about 4.64 shillings or about $1.11. The thaler, therefore, represented about .65 Troy ounces of silver, so that 300 thalers were about 195 Troy ounces, and 225 thalers about 146 Troy ounces.[13]Opera continens. The Glossary givesschicht,—the origin of the English "shift."[Pg 93][14]The terms in the Latin text aredonator, a giver of a gift, anddonatus, a receiver. It appears to us, however, that some consideration passed, and we have, therefore, used "seller" and "buyer."[Pg 95][15]SeeNote 29, p. 23.[Pg 96][16]Decemviri—"The Ten Men." The originalDecemviriwere a body appointed by the Romans in 452B.C., principally to codify the law. Such commissions were afterward instituted for other purposes, but the analogy of the above paragraph is a little remote.[Pg 100][17]This work was apparently never published; seeAppendix A.

[Pg 77][1]The nomenclature in this chapter has given unusual difficulty, because the organisation of mines, either past or present, in English-speaking countries provides no exact equivalents for many of these offices and for many of the legal terms. The Latin terms in the text were, of course, coined by the author, and have no historical basis to warrant their adoption, while the introduction of the original German terms is open to much objection, as they are not only largely obsolete, but also in the main would convey no meaning to the majority of readers. We have, therefore, reached a series of compromises, and in the main give the nearest English equivalent. Of much interest in this connection is a curious exotic survival in mining law to be found in the High Peak of Derbyshire. We believe (see note on p.85) that the law of this district was of Saxon importation, for in it are not only many terms of German origin, but the character of the law is foreign to the older English districts and shows its near kinship to that of Saxony. It is therefore of interest in connection with the nomenclature to be adopted in this book, as it furnishes about the only English precedents in many cases. The head of the administration in the Peak was the Steward, who was the chief judicial officer, with functions somewhat similar to theBerghauptmann. However, the term Steward has come to have so much less significance that we have adopted a literal rendering of the Latin. Under the Steward was the Barmaster, Barghmaster, or Barmar, as he was variously called, and his duties were similar to those of theBergmeister. The English term would seem to be a corruption of the German, and as the latter has come to be so well understood by the English-speaking mining class, we have in this case adopted the German. The Barmaster acted always by the consent and with the approval of a jury of from 12 to 24 members. In this instance the English had functions much like a modern jury, while theGeschwornenof Saxony had much more widely extended powers. The GermanGeschwornenwere in the main Inspectors; despite this, however, we have not felt justified in adopting any other than the literal English for the Latin and German terms. We have vacillated a great deal over the termPraefectus Fodinae, the GermanSteigerhaving, like the Cornish "Captain," in these days degenerated into a foreman, whereas the duties as described were not only those of the modern Superintendent or Manager, but also those of Treasurer of the Company, for he made the calls on shares and paid the dividends. The term Purser has been used for centuries in English mining for the Accountant or Cashier, but his functions were limited to paying dividends, wages, etc., therefore we have considered it better not to adopt the latter term, and have compromised upon the term Superintendent or Manager, although it has a distinctly modern flavor. The word forareahas also caused much hesitation, and the "meer" has finally been adopted with some doubt. The title described by Agricola has a very close equivalent in the meer of old Derbyshire. As will be seen later, the mines of Saxony were Regal property, and were held subject to two essential conditions,i.e., payment of a tithe, and continuous operation. This form of title thus approximates more closely to the "lease" of Australia than to the old Cornishsett, or the Americanclaim. Thefundgrubeof Saxony and Agricola's equivalent, thearea capitis—head lease—we have rendered literally as "head meer," although in some ways "founders' meer" might be better, for, in Derbyshire, this was called the "finder's" or founder's meer, and was awarded under similar circumstances. It has also an analogy in Australian law in the "reward" leases. The term "measure" has the merit of being a literal rendering of the Latin, and also of being the identical term in the same[Pg 78]use in the High Peak. The following table of the principal terms gives the originals of the Latin text, their German equivalents according in the Glossary and other sources, and those adopted in the translation:—Agricola.German Glossary.Term Adopted.Praefectus MetallorumBergamptmannMining Prefect.Magister MetallicorumBergmeisterBergmeister.Scriba Magister MetallicorumBergmeister's schreiberBergmeister's clerk.JuratiGeschwornenJurates or Jurors.Publicus SignatorGemeiner siglerNotary.DecumanusZehenderTithe gatherer.DistributorAussteilerCashier.Scriba partiumGegenschreiberShare clerk.Scriba fodinarumBergschreiberMining clerk.Praefectus fodinae}Steiger{Manager of the Mine.Praefectus cuniculiManager of the Tunnel.Praeses fodinae}Schichtmeister{Foreman of the Mine.Praeses cuniculiForeman of the Tunnel.FossoresBerghauerMiners or diggers.IngestoresBerganschlagenShovellers.VectariiHespelerLever workers (windlass men).DiscretoresErtzpucherSorters.LotoresWescher und seiffnerWashers, buddlers, sifters, etc.ExcoctoresSchmeltzerSmelters.Purgator ArgentiSilber brennerSilver refiner.Magister MonetariorumMüntzmeisterMaster of the Mint.MonetariusMüntzerCoiner.Area fodinarumMasseMeer.Area Capitis FodinarumFundgrubeHead meer.DemensumLehenMeasure.

[Pg 77][1]The nomenclature in this chapter has given unusual difficulty, because the organisation of mines, either past or present, in English-speaking countries provides no exact equivalents for many of these offices and for many of the legal terms. The Latin terms in the text were, of course, coined by the author, and have no historical basis to warrant their adoption, while the introduction of the original German terms is open to much objection, as they are not only largely obsolete, but also in the main would convey no meaning to the majority of readers. We have, therefore, reached a series of compromises, and in the main give the nearest English equivalent. Of much interest in this connection is a curious exotic survival in mining law to be found in the High Peak of Derbyshire. We believe (see note on p.85) that the law of this district was of Saxon importation, for in it are not only many terms of German origin, but the character of the law is foreign to the older English districts and shows its near kinship to that of Saxony. It is therefore of interest in connection with the nomenclature to be adopted in this book, as it furnishes about the only English precedents in many cases. The head of the administration in the Peak was the Steward, who was the chief judicial officer, with functions somewhat similar to theBerghauptmann. However, the term Steward has come to have so much less significance that we have adopted a literal rendering of the Latin. Under the Steward was the Barmaster, Barghmaster, or Barmar, as he was variously called, and his duties were similar to those of theBergmeister. The English term would seem to be a corruption of the German, and as the latter has come to be so well understood by the English-speaking mining class, we have in this case adopted the German. The Barmaster acted always by the consent and with the approval of a jury of from 12 to 24 members. In this instance the English had functions much like a modern jury, while theGeschwornenof Saxony had much more widely extended powers. The GermanGeschwornenwere in the main Inspectors; despite this, however, we have not felt justified in adopting any other than the literal English for the Latin and German terms. We have vacillated a great deal over the termPraefectus Fodinae, the GermanSteigerhaving, like the Cornish "Captain," in these days degenerated into a foreman, whereas the duties as described were not only those of the modern Superintendent or Manager, but also those of Treasurer of the Company, for he made the calls on shares and paid the dividends. The term Purser has been used for centuries in English mining for the Accountant or Cashier, but his functions were limited to paying dividends, wages, etc., therefore we have considered it better not to adopt the latter term, and have compromised upon the term Superintendent or Manager, although it has a distinctly modern flavor. The word forareahas also caused much hesitation, and the "meer" has finally been adopted with some doubt. The title described by Agricola has a very close equivalent in the meer of old Derbyshire. As will be seen later, the mines of Saxony were Regal property, and were held subject to two essential conditions,i.e., payment of a tithe, and continuous operation. This form of title thus approximates more closely to the "lease" of Australia than to the old Cornishsett, or the Americanclaim. Thefundgrubeof Saxony and Agricola's equivalent, thearea capitis—head lease—we have rendered literally as "head meer," although in some ways "founders' meer" might be better, for, in Derbyshire, this was called the "finder's" or founder's meer, and was awarded under similar circumstances. It has also an analogy in Australian law in the "reward" leases. The term "measure" has the merit of being a literal rendering of the Latin, and also of being the identical term in the same[Pg 78]use in the High Peak. The following table of the principal terms gives the originals of the Latin text, their German equivalents according in the Glossary and other sources, and those adopted in the translation:—

Agricola.German Glossary.Term Adopted.Praefectus MetallorumBergamptmannMining Prefect.Magister MetallicorumBergmeisterBergmeister.Scriba Magister MetallicorumBergmeister's schreiberBergmeister's clerk.JuratiGeschwornenJurates or Jurors.Publicus SignatorGemeiner siglerNotary.DecumanusZehenderTithe gatherer.DistributorAussteilerCashier.Scriba partiumGegenschreiberShare clerk.Scriba fodinarumBergschreiberMining clerk.Praefectus fodinae}Steiger{Manager of the Mine.Praefectus cuniculiManager of the Tunnel.Praeses fodinae}Schichtmeister{Foreman of the Mine.Praeses cuniculiForeman of the Tunnel.FossoresBerghauerMiners or diggers.IngestoresBerganschlagenShovellers.VectariiHespelerLever workers (windlass men).DiscretoresErtzpucherSorters.LotoresWescher und seiffnerWashers, buddlers, sifters, etc.ExcoctoresSchmeltzerSmelters.Purgator ArgentiSilber brennerSilver refiner.Magister MonetariorumMüntzmeisterMaster of the Mint.MonetariusMüntzerCoiner.Area fodinarumMasseMeer.Area Capitis FodinarumFundgrubeHead meer.DemensumLehenMeasure.

[2]The following are the equivalents of the measures mentioned in this book. It is not always certain which "foot" or "fathom" Agricola actually had in mind although they were probably the German.Greek—Dactylos=.76inches16=Pous=12.13inches6=Orguia=72.81inches.Roman—Uncia=.97"12=Pes=11.6"5=Passus=58.1"German—Zoll=.93"12=Werckschuh=11.24"6=Lachter=67.5"English—Inch=1.0"12=Foot=12.00"6=Fathom=72.0"The discrepancies are due to variations in authorities and to decimals dropped. Thewerckschuhtaken is the Chemnitz foot deduced from Agricola's statement in hisDe Mensuris et Ponderibus, Basel, 1533, p. 29. For further notes seeAppendix C.

[2]The following are the equivalents of the measures mentioned in this book. It is not always certain which "foot" or "fathom" Agricola actually had in mind although they were probably the German.

Greek—Dactylos=.76inches16=Pous=12.13inches6=Orguia=72.81inches.Roman—Uncia=.97"12=Pes=11.6"5=Passus=58.1"German—Zoll=.93"12=Werckschuh=11.24"6=Lachter=67.5"English—Inch=1.0"12=Foot=12.00"6=Fathom=72.0"

The discrepancies are due to variations in authorities and to decimals dropped. Thewerckschuhtaken is the Chemnitz foot deduced from Agricola's statement in hisDe Mensuris et Ponderibus, Basel, 1533, p. 29. For further notes seeAppendix C.

[Pg 80][3]Subcisivum—"Remainder." German Glossary,Ueberschar. The term used in Mendip and Derbyshire wasprimgaporprimegap. It did not, however, in this case belong to adjacent mines, but to the landlord.

[Pg 80][3]Subcisivum—"Remainder." German Glossary,Ueberschar. The term used in Mendip and Derbyshire wasprimgaporprimegap. It did not, however, in this case belong to adjacent mines, but to the landlord.

[4]Adversum. Glossary,gegendrumb. TheBergwerk Lexicon, Chemnitz, 1743, givesgegendromorgegentramm, and defines it as themasseor lease next beyond a stream.

[4]Adversum. Glossary,gegendrumb. TheBergwerk Lexicon, Chemnitz, 1743, givesgegendromorgegentramm, and defines it as themasseor lease next beyond a stream.

[5]Quadratum. Glossary,vierung. Thevierungin old Saxon title meant a definite zone on either side of the vein, 31/2lachter(lachter= 5 ft. 7.5 inches) into the hangingwall and the same into the footwall, the length of onevierungbeing 7lachteralong the strike. It[Pg 81]must be borne in mind that the form of rights here referred to entitled the miner to follow his vein, carrying the side line with him in depth the same distance from the vein, in much the same way as with the Apex Law of the United States. From this definition as given in theBergwerk Lexicon, p. 585, it would appear that the vein itself was not included in the measurements, but that they started from the walls.

[5]Quadratum. Glossary,vierung. Thevierungin old Saxon title meant a definite zone on either side of the vein, 31/2lachter(lachter= 5 ft. 7.5 inches) into the hangingwall and the same into the footwall, the length of onevierungbeing 7lachteralong the strike. It[Pg 81]must be borne in mind that the form of rights here referred to entitled the miner to follow his vein, carrying the side line with him in depth the same distance from the vein, in much the same way as with the Apex Law of the United States. From this definition as given in theBergwerk Lexicon, p. 585, it would appear that the vein itself was not included in the measurements, but that they started from the walls.

[Pg 82][6]Historical Note on the Development of Mining Law.—There is no branch of the law of property, of which the development is more interesting and illuminating from a social point of view than that relating to minerals. Unlike the land, the minerals have ever been regarded as a sort of fortuitous property, for the title of which there have been four principal claimants—that is, the Overlord, as represented by the King, Prince, Bishop, or what not; the Community or the State, as distinguished from the Ruler; the Landowner; and the Mine Operator, to which class belongs the Discoverer. The one of these that possessed the dominant right reflects vividly the social state and sentiment of the period. The Divine Right of Kings; the measure of freedom of their subjects; the tyranny of the land-owning class; the rights of the Community as opposed to its individual members; the rise of individualism; and finally, the modern return to more communal view, have all been reflected promptly in the mineral title. Of these parties the claims of the Overlord have been limited only by the resistance of his subjects; those of the State limited by the landlord; those of the landlord by the Sovereign or by the State; while the miner, ever in a minority in influence as well as in numbers, has been buffeted from pillar to post, his only protection being the fact that all other parties depended upon his exertion and skill.The conception as to which of these classes had a right in the title have been by no means the same in different places at the same time, and in all it varies with different periods; but the whole range of legislation indicates the encroachment of one factor in the community over another, so that their relative rights have been the cause of never-ending contention, ever since a record of civil and economic contentions began. In modern times, practically over the whole world, the State has in effect taken the rights from the Overlord, but his claims did not cease until his claims over the bodies of his subjects also ceased. However, he still remains in many places with his picture on the coinage. The Landlord has passed through many vicissitudes; his complete right to minerals was practically never admitted until the doctrine oflaissez-fairehad become a matter of faith, and this just in time to vest him with most of the coal and iron deposits in the world; this, no doubt, being also partially due to the little regard in which such deposits were generally held at that time, and therefore to the little opposition to his ever-ready pretentions. Their numbers, however, and their prominence in the support of the political powersde jurehave usually obtained them some recognition. In the rise of individualism, the apogee of thelaissez-fairefetish came about the time of the foundation of the United States, and hence the relaxation in the claims of the State in that country and the corresponding position attained by the landlord and miner. The discoverer and the operator—that is, the miner himself—has, however, had to be reckoned with by all three of the other claimants, because they have almost universally sought to escape the risks of mining, to obtain the most skilful operation, and to stimulate the productivity of the mines; thereupon the miner has secured at least partial consideration. This stands out in all times and all places, and while the miner has had to take the risks of his fortuitous calling, the Overlord, State, or Landlord have all made for complacent safety by demanding some kind of a tithe on his exertions. Moreover, there has often been a low cunning displayed by these powers in giving something extra to the first discoverer. In these relations of the powers to the mine operator, from the very first we find definite records of the imposition of certain conditions with extraordinary persistence—so fixed a notion that even the United States did not quite escape it. This condition was, no doubt, designed as a stimulus to productive activity, and was the requirement that the miner should continuously employ himself digging in the piece of ground allotted to him. The Greeks, Romans, Mediæval Germans, old and modern Englishmen, modern Australians, all require the miner to keep continuously labouring at his mines, or lose his title. The American, as his inauguration of government happened when things were easier for individuals, allows him a vacation of 11 months in the year for a few years, and finally a holiday altogether. There are other points where the Overlord, the State, or the Landlord have always considered that they had a right to interfere, principally as to the way the miner does his work, lest he should miss, or cause to be missed, some of the mineral; so he has usually been under pains and penalties as to his methods—these quite apart from the very proper protection to human life, which is purely a modern invention, largely of the miner himself. Somebody has had to keep peace and settle disputes among the usually turbulent miners (for what other sort of operators would undertake the hazards and handicaps?), and therefore special officials and codes, or Courts, for his benefit are of the oldest and most persistent of institutions.Between the Overlord and the Landowner the fundamental conflict of view as to their respective rights has found its interpretation in the form of the mineral title. The Overlord claimed the metals as distinguished from the land, while the landowner claimed all beneath his[Pg 83]soil. Therefore, we find two forms of title—that in which the miner could follow the ore regardless of the surface (the "apex" conception), and that in which the boundaries were vertical from the land surface. Lest the Americans think that the Apex Law was a sin original to themselves, we may mention that it was made use of in Europe a few centuries before Agricola, who will be found to set it out with great precision.From these points of view, more philosophical than legal, we present a few notes on various ancient laws of mines, though space forbids a discussion of a tithe of the amount it deserves at some experienced hand.Of the Ancient Egyptian, Lydian, Assyrian, Persian, Indian, and Chinese laws as to mines we have no record, but they were of great simplicity, for the bodies as well as the property of subjects were at the abject disposition of the Overlord. We are informed on countless occasions of Emperors, Kings, and Princes of various degree among these races, owning and operating mines with convicts, soldiers, or other slaves, so we may take it for certain that continuous labour was enforced, and that the boundaries, inspection, and landlords did not cause much anxiety. However, herein lies the root of regalian right.Our first glimpse of a serious right of the subject to mines is among some of the Greek States, as could be expected from their form of government. With republican ideals, a rich mining district at Mount Laurion, an enterprising and contentious people, it would be surprising indeed if Athenian Literature was void on the subject. While we know that the active operation of these mines extended over some 500 years, from 700 to 200B.C., the period of most literary reference was from 400 to 300B.C.Our information on the subject is from two of Demosthenes' orations—one against Pantaenetus, the other against Phaenippus—the first mining lawsuit in which the address of counsel is extant. There is also available some information in Xenophon's Essay upon the Revenues, Aristotle's Constitution of Athens, Lycurgus' prosecution of Diphilos, the Tablets of the Poletae, and many incidental references and inscriptions of minor order. The minerals were the property of the State, a conception apparently inherited from the older civilizations. Leases for exploitation were granted to individuals for terms of three to ten years, depending upon whether the mines had been previously worked, thus a special advantage was conferred upon the pioneer. The leases did not carry surface rights, but the boundaries at Mt. Laurion were vertical, as necessarily must be the case everywhere in horizontal deposits. What they were elsewhere we do not know. The landlord apparently got nothing. The miner must continuously operate his mine, and was required to pay a large tribute to the State, either in the initial purchase of his lease or in annual rent. There were elaborate regulations as to interference and encroachment, and proper support of the workings. Diphilos was condemned to death and his fortune confiscated for robbing pillars. The mines were worked with slaves.The Romans were most intensive miners and searchers after metallic wealth already mined. The latter was obviously the objective of most Roman conquest, and those nations rich in these commodities, at that time necessarily possessed their own mines. Thus a map showing the extensions of Empire coincides in an extraordinary manner with the metal distribution of Europe, Asia, and North Africa. Further, the great indentations into the periphery of the Imperial map, though many were rich from an agricultural point of view, had no lure to the Roman because they had no mineral wealth. On the Roman law of mines the student is faced with many perplexities. With the conquest of the older States, the plunderers took over the mines and worked them, either by leases from the State to public companies or to individuals; or even in some cases worked them directly by the State. There was thus maintained the concept of State ownership of the minerals which, although apparently never very specifically defined, yet formed a basis of support to the contention of regalian rights in Europe later on. Parallel with this system, mines were discovered and worked by individuals under tithe to the State, and in Pliny (XXXIV, 49) there is reference to the miners in Britain limiting their own output. Individual mining appears to have increased with any relaxation of central authority, as for instance under Augustus. It appears, as a rule, that the mines were held on terminable leases, and that the State did at times resume them; the labour was mostly slaves. As to the detailed conditions under which the mine operator held his title, we know less than of the Greeks—in fact, practically nothing other than that he paid a tithe. The Romans maintained in each mining district an official—theProcurator Metallorum—who not only had general charge of the leasing of the mines on behalf of the State, but was usually the magistrate of the district. A bronze tablet found near Aljustrel, in Portugal, in 1876, generally known as the Aljustrel Tablet, appears to be the third of a series setting out the regulations of the mining district. It refers mostly to the regulation of public auctions, the baths, barbers, and tradesmen; but one clause (VII.) is devoted to the regulation of those[Pg 84]who work dumps of scoria, etc., and provides for payment to the administrator of the mines of acapitationon the slaves employed. It does not, however, so far as we can determine, throw any light upon the actual regulations for working the mines. (Those interested will find ample detail in Jacques Flach, "La Table de Bronze d'Aljustrel: Nouvelle Revue Historique de Droit Francais et Etranger," 1878, p. 655;Estacio da Veiga, Memorias da Acad. Real das Ciencias de Lisbon, Nova Scrie, Tome V, Part II, Lisbon, 1882.) Despite the systematic law of property evolved by the Romans, the codes contain but small reference to mines, and this in itself is indirect evidence of the concept that they were the property of the State. Any general freedom of the metals would have given rise to a more extensive body of law. There are, of course, the well-known sections in the Justinian and Theodosian Codes, but the former in the main bears on the collection of the tithe and the stimulation of mining by ordering migrant miners to return to their own hearths. There is also some intangible prohibition of mining near edifices. There is in the Theodosian code evident extension of individual right to mine or quarry, and this "freeing" of the mines was later considerably extended. The Empire was, however, then on the decline; and no doubt it was hoped to stimulate the taxable commodities. There is nothing very tangible as to the position of the landlord with regard to minerals found on his property; the metals were probably of insufficient frequency on the land of Italian landlords to matter much, and the attitude toward subject races was not usually such as to require an extensive body of law.In the chaos of the Middle Ages, Europe was governed by hundreds of potentates, great and small, who were unanimous on one point, and this that the minerals were their property. In the bickerings among themselves, the stronger did not hesitate to interpret the Roman law in affirming regalian rights as an excuse to dispossess the weaker. The rights to the mines form no small part of the differences between these Potentates and the more important of their subjects; and with the gradual accretion of power into a few hands, we find only the most powerful of vassals able to resist such encroachment. However, as to what position the landlord or miner held in these rights, we have little indication until about the beginning of the 13th century, after which there appear several well-known charters, which as time went on were elaborated into practical codes of mining law. The earliest of these charters are those of the Bishop of Trent, 1185; that of the Harz Miners, 1219; of the town of Iglau in 1249. Many such in connection with other districts appear throughout the 13th, 14th, and 15th centuries. (References to the most important of such charters may be found in Sternberg,Umrisse der Geschichte des Bergbaues, Prague, 1838; Eisenhart,De Regali Metalli Fodinarium, Helmestadt, 1681; Gmelin,Beyträge zur Geschichte des Teutschen Bergbaus, Halle, 1783; Inama-Sternegg,Deutsche Wirthschaftsgeschichte, Leipzig, 1879-1901; Transactions, Royal Geol. Soc. CornwallVI, 155; Lewis, The Stannaries, New York, 1908.) By this time a number of mining communities had grown up, and the charters in the main are a confirmation to them of certain privileges; they contain, nevertheless, rigorous reservation of the regalian right. The landlord, where present, was usually granted some interest in the mine, but had to yield to the miner free entry. The miner was simply a sort of tributer to the Crown, loaded with an obligation when upon private lands to pay a further portion of his profits to the landlord. He held tenure only during strenuous operation. However, it being necessary to attract skilled men, they were granted many civil privileges not general to the people; and from many of the principal mining towns "free cities" were created, possessing a measure of self-government. There appear in the Iglau charter of 1249 the first symptoms of the "apex" form of title, this being the logical development of the conception that the minerals were of quite distinct ownership from the land. The law, as outlined by Agricola, is much the same as set out in the Iglavian Charter of three centuries before, and we must believe that such fully developed conceptions as that charter conveys were but the confirmation of customs developed over generations.In France the landlord managed to maintain a stronger positionvis-à-viswith the Crown, despite much assertion of its rights; and as a result, while the landlord admitted the right to a tithe for the Crown, he maintained the actual possession, and the boundaries were defined with the land.In England the law varied with special mining communities, such as Cornwall, Devon, the Forest of Dean, the Forest of Mendip, Alston Moor, and the High Peak, and they exhibit a curious complex of individual growth, of profound interest to the student of the growth of institutions. These communities were of very ancient origin, some of them at least pre-Roman; but we are, except for the reference in Pliny, practically without any idea of their legal doings until after the Norman occupation (1066A.D.). The genius of these conquerors for systematic government soon led them to inquire into the doings of these communities, and while gradually systematising their customs into law, they lost no occasion to assert the[Pg 85]regalian right to the minerals. In the two centuries subsequent to their advent there are on record numerous inquisitions, with the recognition and confirmation of "the customs and liberties which had existed from time immemorial," always with the reservation to the Crown of some sort of royalty. Except for the High Peak in Derbyshire, the period and origin of these "customs and liberties" are beyond finding out, as there is practically no record of English History between the Roman withdrawal and the Norman occupation. There may have been "liberties" under the Romans, but there is not a shred of evidence on the subject, and our own belief is that the forms of self-government which sprang up were the result of the Roman evacuation. The miner had little to complain of in the Norman treatment in these matters; but between the Crown and the landlord as represented by the Barons, Lords of the Manor, etc., there were wide differences of opinion on the regalian rights, for in the extreme interpretation of the Crown it tended greatly to curtail the landlord's position in the matter, and the success of the Crown on this subject was by no means universal. In fact, a considerable portion of English legal history of mines is but the outcropping of this conflict, and one of the concessions wrung from King John at Runnymede in 1215 was his abandonment of a portion of such claims.The mining communities of Cornwall and Devon were early in the 13th century definitely chartered into corporations—"The Stannaries"—possessing definite legislative and executive functions, judicial powers, and practical self-government; but they were required to make payment of the tithe in the shape of "coinage" on the tin. Such recognition, while but a ratification of prior custom, was not obtained without struggle, for the Norman Kings early asserted wide rights over the mines. Tangible record of mining in these parts, from a legal point of view, practically begins with a report by William de Wrotham in 1198 upon his arrangements regarding the coinage. A charter of King John in 1201, while granting free right of entry to the miners, thus usurped the rights of the landlords—a claim which he was compelled by the Barons to moderate; the Crown, as above mentioned did maintain its right to a royalty, but the landlord held the minerals. It is not, however, until the time of Richard Carew's "Survey of Cornwall" (London, 1602) that we obtain much insight into details of miners' title, and the customs there set out were maintained in broad principle down to the 19th century. At Carew's time the miner was allowed to prospect freely upon "Common" or wastrel lands (since mostly usurped by landlords), and upon mineral discovery marked his boundaries, within which he was entitled to the vertical contents. Even upon such lands, however, he must acknowledge the right of the lord of the manor to a participation in the mine. Upon "enclosed" lands he had no right of entry without the consent of the landlord; in fact, the minerals belonged to the land as they do to-day except where voluntarily relinquished. In either case he was compelled to "renew his bounds" once a year, and to operate more or less continuously to maintain the right once obtained. There thus existed a "labour condition" of variable character, usually imposed more or less vigorously in the bargains with landlords. The regulations in Devonshire differed in the important particular that the miner had right of entry to private lands, although he was not relieved of the necessity to give a participation of some sort to the landlord. The Forests of Dean, Mendip, and other old mining communities possessed a measure of self-government, which do not display any features in their law fundamentally different from those of Cornwall and Devon. The High Peak lead mines of Derbyshire, however, exhibit one of the most profoundly interesting of these mining communities. As well as having distinctively Saxon names for some of the mines, the customs there are of undoubted Saxon origin, and as such their ratification by the Normans caused the survival of one of the few Saxon institutions in England—a fact which, we believe, has been hitherto overlooked by historians. Beginning with inquisitions by Edward I. in 1288, there is in the Record Office a wealth of information, the bare titles of which form too extensive a list to set out here. (Of published works, the most important are Edward Manlove's "The Liberties and Customs of the Lead Mines within the Wapentake of Wirksworth," London, 1653, generally referred to as the "Rhymed Chronicle"; Thomas Houghton, "Rara Avis in Terra," London, 1687; William Hardy, "The Miner's Guide," Sheffield, 1748; Thomas Tapping, "High Peak Mineral Customs," London, 1851.) The miners in this district were presided over by a "Barmaster," "Barghmaster," or "Barmar," as he was variously spelled, all being a corruption of the German Bergmeister, with precisely the same functions as to the allotment of title, settlement of disputes, etc., as his Saxon progenitor had, and, like him, he was advised by a jury. The miners had entry to all lands except churchyards (this regulation waived upon death), and a few similar exceptions, and was subject to royalty to the Crown and the landlord. The discoverer was entitled to a finder's "meer" of extra size, and his title was to the vein within the end lines,i.e., the "apex" law. This title was held subject to rigorous labour[Pg 86]conditions, amounting to forfeiture for failure to operate the mine for a period of nine weeks. Space does not permit of the elaboration of the details of this subject, which we hope to pursue elsewhere in its many historical bearings. Among these we may mention that if the American "Apex law" is of English descent, it must be laid to the door of Derbyshire, and not of Cornwall, as is generally done. Our own belief, however, is that the American "apex" conception came straight from Germany.It is not our purpose to follow these inquiries into mining law beyond the 15th century, but we may point out that with the growth of the sentiment of individualism the miners and landlords obtained steadily wider and wider rights at the cost of the State, until well within the 19th century. The growth of stronger communal sentiment since the middle of the last century has already found its manifestation in the legislation with regard to mines, for the laws of South Africa, Australia, and England, and the agitation in the United States are all toward greater restrictions on the mineral ownership in favour of the State.

[Pg 82][6]Historical Note on the Development of Mining Law.—There is no branch of the law of property, of which the development is more interesting and illuminating from a social point of view than that relating to minerals. Unlike the land, the minerals have ever been regarded as a sort of fortuitous property, for the title of which there have been four principal claimants—that is, the Overlord, as represented by the King, Prince, Bishop, or what not; the Community or the State, as distinguished from the Ruler; the Landowner; and the Mine Operator, to which class belongs the Discoverer. The one of these that possessed the dominant right reflects vividly the social state and sentiment of the period. The Divine Right of Kings; the measure of freedom of their subjects; the tyranny of the land-owning class; the rights of the Community as opposed to its individual members; the rise of individualism; and finally, the modern return to more communal view, have all been reflected promptly in the mineral title. Of these parties the claims of the Overlord have been limited only by the resistance of his subjects; those of the State limited by the landlord; those of the landlord by the Sovereign or by the State; while the miner, ever in a minority in influence as well as in numbers, has been buffeted from pillar to post, his only protection being the fact that all other parties depended upon his exertion and skill.

The conception as to which of these classes had a right in the title have been by no means the same in different places at the same time, and in all it varies with different periods; but the whole range of legislation indicates the encroachment of one factor in the community over another, so that their relative rights have been the cause of never-ending contention, ever since a record of civil and economic contentions began. In modern times, practically over the whole world, the State has in effect taken the rights from the Overlord, but his claims did not cease until his claims over the bodies of his subjects also ceased. However, he still remains in many places with his picture on the coinage. The Landlord has passed through many vicissitudes; his complete right to minerals was practically never admitted until the doctrine oflaissez-fairehad become a matter of faith, and this just in time to vest him with most of the coal and iron deposits in the world; this, no doubt, being also partially due to the little regard in which such deposits were generally held at that time, and therefore to the little opposition to his ever-ready pretentions. Their numbers, however, and their prominence in the support of the political powersde jurehave usually obtained them some recognition. In the rise of individualism, the apogee of thelaissez-fairefetish came about the time of the foundation of the United States, and hence the relaxation in the claims of the State in that country and the corresponding position attained by the landlord and miner. The discoverer and the operator—that is, the miner himself—has, however, had to be reckoned with by all three of the other claimants, because they have almost universally sought to escape the risks of mining, to obtain the most skilful operation, and to stimulate the productivity of the mines; thereupon the miner has secured at least partial consideration. This stands out in all times and all places, and while the miner has had to take the risks of his fortuitous calling, the Overlord, State, or Landlord have all made for complacent safety by demanding some kind of a tithe on his exertions. Moreover, there has often been a low cunning displayed by these powers in giving something extra to the first discoverer. In these relations of the powers to the mine operator, from the very first we find definite records of the imposition of certain conditions with extraordinary persistence—so fixed a notion that even the United States did not quite escape it. This condition was, no doubt, designed as a stimulus to productive activity, and was the requirement that the miner should continuously employ himself digging in the piece of ground allotted to him. The Greeks, Romans, Mediæval Germans, old and modern Englishmen, modern Australians, all require the miner to keep continuously labouring at his mines, or lose his title. The American, as his inauguration of government happened when things were easier for individuals, allows him a vacation of 11 months in the year for a few years, and finally a holiday altogether. There are other points where the Overlord, the State, or the Landlord have always considered that they had a right to interfere, principally as to the way the miner does his work, lest he should miss, or cause to be missed, some of the mineral; so he has usually been under pains and penalties as to his methods—these quite apart from the very proper protection to human life, which is purely a modern invention, largely of the miner himself. Somebody has had to keep peace and settle disputes among the usually turbulent miners (for what other sort of operators would undertake the hazards and handicaps?), and therefore special officials and codes, or Courts, for his benefit are of the oldest and most persistent of institutions.

Between the Overlord and the Landowner the fundamental conflict of view as to their respective rights has found its interpretation in the form of the mineral title. The Overlord claimed the metals as distinguished from the land, while the landowner claimed all beneath his[Pg 83]soil. Therefore, we find two forms of title—that in which the miner could follow the ore regardless of the surface (the "apex" conception), and that in which the boundaries were vertical from the land surface. Lest the Americans think that the Apex Law was a sin original to themselves, we may mention that it was made use of in Europe a few centuries before Agricola, who will be found to set it out with great precision.

From these points of view, more philosophical than legal, we present a few notes on various ancient laws of mines, though space forbids a discussion of a tithe of the amount it deserves at some experienced hand.

Of the Ancient Egyptian, Lydian, Assyrian, Persian, Indian, and Chinese laws as to mines we have no record, but they were of great simplicity, for the bodies as well as the property of subjects were at the abject disposition of the Overlord. We are informed on countless occasions of Emperors, Kings, and Princes of various degree among these races, owning and operating mines with convicts, soldiers, or other slaves, so we may take it for certain that continuous labour was enforced, and that the boundaries, inspection, and landlords did not cause much anxiety. However, herein lies the root of regalian right.

Our first glimpse of a serious right of the subject to mines is among some of the Greek States, as could be expected from their form of government. With republican ideals, a rich mining district at Mount Laurion, an enterprising and contentious people, it would be surprising indeed if Athenian Literature was void on the subject. While we know that the active operation of these mines extended over some 500 years, from 700 to 200B.C., the period of most literary reference was from 400 to 300B.C.Our information on the subject is from two of Demosthenes' orations—one against Pantaenetus, the other against Phaenippus—the first mining lawsuit in which the address of counsel is extant. There is also available some information in Xenophon's Essay upon the Revenues, Aristotle's Constitution of Athens, Lycurgus' prosecution of Diphilos, the Tablets of the Poletae, and many incidental references and inscriptions of minor order. The minerals were the property of the State, a conception apparently inherited from the older civilizations. Leases for exploitation were granted to individuals for terms of three to ten years, depending upon whether the mines had been previously worked, thus a special advantage was conferred upon the pioneer. The leases did not carry surface rights, but the boundaries at Mt. Laurion were vertical, as necessarily must be the case everywhere in horizontal deposits. What they were elsewhere we do not know. The landlord apparently got nothing. The miner must continuously operate his mine, and was required to pay a large tribute to the State, either in the initial purchase of his lease or in annual rent. There were elaborate regulations as to interference and encroachment, and proper support of the workings. Diphilos was condemned to death and his fortune confiscated for robbing pillars. The mines were worked with slaves.

The Romans were most intensive miners and searchers after metallic wealth already mined. The latter was obviously the objective of most Roman conquest, and those nations rich in these commodities, at that time necessarily possessed their own mines. Thus a map showing the extensions of Empire coincides in an extraordinary manner with the metal distribution of Europe, Asia, and North Africa. Further, the great indentations into the periphery of the Imperial map, though many were rich from an agricultural point of view, had no lure to the Roman because they had no mineral wealth. On the Roman law of mines the student is faced with many perplexities. With the conquest of the older States, the plunderers took over the mines and worked them, either by leases from the State to public companies or to individuals; or even in some cases worked them directly by the State. There was thus maintained the concept of State ownership of the minerals which, although apparently never very specifically defined, yet formed a basis of support to the contention of regalian rights in Europe later on. Parallel with this system, mines were discovered and worked by individuals under tithe to the State, and in Pliny (XXXIV, 49) there is reference to the miners in Britain limiting their own output. Individual mining appears to have increased with any relaxation of central authority, as for instance under Augustus. It appears, as a rule, that the mines were held on terminable leases, and that the State did at times resume them; the labour was mostly slaves. As to the detailed conditions under which the mine operator held his title, we know less than of the Greeks—in fact, practically nothing other than that he paid a tithe. The Romans maintained in each mining district an official—theProcurator Metallorum—who not only had general charge of the leasing of the mines on behalf of the State, but was usually the magistrate of the district. A bronze tablet found near Aljustrel, in Portugal, in 1876, generally known as the Aljustrel Tablet, appears to be the third of a series setting out the regulations of the mining district. It refers mostly to the regulation of public auctions, the baths, barbers, and tradesmen; but one clause (VII.) is devoted to the regulation of those[Pg 84]who work dumps of scoria, etc., and provides for payment to the administrator of the mines of acapitationon the slaves employed. It does not, however, so far as we can determine, throw any light upon the actual regulations for working the mines. (Those interested will find ample detail in Jacques Flach, "La Table de Bronze d'Aljustrel: Nouvelle Revue Historique de Droit Francais et Etranger," 1878, p. 655;Estacio da Veiga, Memorias da Acad. Real das Ciencias de Lisbon, Nova Scrie, Tome V, Part II, Lisbon, 1882.) Despite the systematic law of property evolved by the Romans, the codes contain but small reference to mines, and this in itself is indirect evidence of the concept that they were the property of the State. Any general freedom of the metals would have given rise to a more extensive body of law. There are, of course, the well-known sections in the Justinian and Theodosian Codes, but the former in the main bears on the collection of the tithe and the stimulation of mining by ordering migrant miners to return to their own hearths. There is also some intangible prohibition of mining near edifices. There is in the Theodosian code evident extension of individual right to mine or quarry, and this "freeing" of the mines was later considerably extended. The Empire was, however, then on the decline; and no doubt it was hoped to stimulate the taxable commodities. There is nothing very tangible as to the position of the landlord with regard to minerals found on his property; the metals were probably of insufficient frequency on the land of Italian landlords to matter much, and the attitude toward subject races was not usually such as to require an extensive body of law.

In the chaos of the Middle Ages, Europe was governed by hundreds of potentates, great and small, who were unanimous on one point, and this that the minerals were their property. In the bickerings among themselves, the stronger did not hesitate to interpret the Roman law in affirming regalian rights as an excuse to dispossess the weaker. The rights to the mines form no small part of the differences between these Potentates and the more important of their subjects; and with the gradual accretion of power into a few hands, we find only the most powerful of vassals able to resist such encroachment. However, as to what position the landlord or miner held in these rights, we have little indication until about the beginning of the 13th century, after which there appear several well-known charters, which as time went on were elaborated into practical codes of mining law. The earliest of these charters are those of the Bishop of Trent, 1185; that of the Harz Miners, 1219; of the town of Iglau in 1249. Many such in connection with other districts appear throughout the 13th, 14th, and 15th centuries. (References to the most important of such charters may be found in Sternberg,Umrisse der Geschichte des Bergbaues, Prague, 1838; Eisenhart,De Regali Metalli Fodinarium, Helmestadt, 1681; Gmelin,Beyträge zur Geschichte des Teutschen Bergbaus, Halle, 1783; Inama-Sternegg,Deutsche Wirthschaftsgeschichte, Leipzig, 1879-1901; Transactions, Royal Geol. Soc. CornwallVI, 155; Lewis, The Stannaries, New York, 1908.) By this time a number of mining communities had grown up, and the charters in the main are a confirmation to them of certain privileges; they contain, nevertheless, rigorous reservation of the regalian right. The landlord, where present, was usually granted some interest in the mine, but had to yield to the miner free entry. The miner was simply a sort of tributer to the Crown, loaded with an obligation when upon private lands to pay a further portion of his profits to the landlord. He held tenure only during strenuous operation. However, it being necessary to attract skilled men, they were granted many civil privileges not general to the people; and from many of the principal mining towns "free cities" were created, possessing a measure of self-government. There appear in the Iglau charter of 1249 the first symptoms of the "apex" form of title, this being the logical development of the conception that the minerals were of quite distinct ownership from the land. The law, as outlined by Agricola, is much the same as set out in the Iglavian Charter of three centuries before, and we must believe that such fully developed conceptions as that charter conveys were but the confirmation of customs developed over generations.

In France the landlord managed to maintain a stronger positionvis-à-viswith the Crown, despite much assertion of its rights; and as a result, while the landlord admitted the right to a tithe for the Crown, he maintained the actual possession, and the boundaries were defined with the land.

In England the law varied with special mining communities, such as Cornwall, Devon, the Forest of Dean, the Forest of Mendip, Alston Moor, and the High Peak, and they exhibit a curious complex of individual growth, of profound interest to the student of the growth of institutions. These communities were of very ancient origin, some of them at least pre-Roman; but we are, except for the reference in Pliny, practically without any idea of their legal doings until after the Norman occupation (1066A.D.). The genius of these conquerors for systematic government soon led them to inquire into the doings of these communities, and while gradually systematising their customs into law, they lost no occasion to assert the[Pg 85]regalian right to the minerals. In the two centuries subsequent to their advent there are on record numerous inquisitions, with the recognition and confirmation of "the customs and liberties which had existed from time immemorial," always with the reservation to the Crown of some sort of royalty. Except for the High Peak in Derbyshire, the period and origin of these "customs and liberties" are beyond finding out, as there is practically no record of English History between the Roman withdrawal and the Norman occupation. There may have been "liberties" under the Romans, but there is not a shred of evidence on the subject, and our own belief is that the forms of self-government which sprang up were the result of the Roman evacuation. The miner had little to complain of in the Norman treatment in these matters; but between the Crown and the landlord as represented by the Barons, Lords of the Manor, etc., there were wide differences of opinion on the regalian rights, for in the extreme interpretation of the Crown it tended greatly to curtail the landlord's position in the matter, and the success of the Crown on this subject was by no means universal. In fact, a considerable portion of English legal history of mines is but the outcropping of this conflict, and one of the concessions wrung from King John at Runnymede in 1215 was his abandonment of a portion of such claims.

The mining communities of Cornwall and Devon were early in the 13th century definitely chartered into corporations—"The Stannaries"—possessing definite legislative and executive functions, judicial powers, and practical self-government; but they were required to make payment of the tithe in the shape of "coinage" on the tin. Such recognition, while but a ratification of prior custom, was not obtained without struggle, for the Norman Kings early asserted wide rights over the mines. Tangible record of mining in these parts, from a legal point of view, practically begins with a report by William de Wrotham in 1198 upon his arrangements regarding the coinage. A charter of King John in 1201, while granting free right of entry to the miners, thus usurped the rights of the landlords—a claim which he was compelled by the Barons to moderate; the Crown, as above mentioned did maintain its right to a royalty, but the landlord held the minerals. It is not, however, until the time of Richard Carew's "Survey of Cornwall" (London, 1602) that we obtain much insight into details of miners' title, and the customs there set out were maintained in broad principle down to the 19th century. At Carew's time the miner was allowed to prospect freely upon "Common" or wastrel lands (since mostly usurped by landlords), and upon mineral discovery marked his boundaries, within which he was entitled to the vertical contents. Even upon such lands, however, he must acknowledge the right of the lord of the manor to a participation in the mine. Upon "enclosed" lands he had no right of entry without the consent of the landlord; in fact, the minerals belonged to the land as they do to-day except where voluntarily relinquished. In either case he was compelled to "renew his bounds" once a year, and to operate more or less continuously to maintain the right once obtained. There thus existed a "labour condition" of variable character, usually imposed more or less vigorously in the bargains with landlords. The regulations in Devonshire differed in the important particular that the miner had right of entry to private lands, although he was not relieved of the necessity to give a participation of some sort to the landlord. The Forests of Dean, Mendip, and other old mining communities possessed a measure of self-government, which do not display any features in their law fundamentally different from those of Cornwall and Devon. The High Peak lead mines of Derbyshire, however, exhibit one of the most profoundly interesting of these mining communities. As well as having distinctively Saxon names for some of the mines, the customs there are of undoubted Saxon origin, and as such their ratification by the Normans caused the survival of one of the few Saxon institutions in England—a fact which, we believe, has been hitherto overlooked by historians. Beginning with inquisitions by Edward I. in 1288, there is in the Record Office a wealth of information, the bare titles of which form too extensive a list to set out here. (Of published works, the most important are Edward Manlove's "The Liberties and Customs of the Lead Mines within the Wapentake of Wirksworth," London, 1653, generally referred to as the "Rhymed Chronicle"; Thomas Houghton, "Rara Avis in Terra," London, 1687; William Hardy, "The Miner's Guide," Sheffield, 1748; Thomas Tapping, "High Peak Mineral Customs," London, 1851.) The miners in this district were presided over by a "Barmaster," "Barghmaster," or "Barmar," as he was variously spelled, all being a corruption of the German Bergmeister, with precisely the same functions as to the allotment of title, settlement of disputes, etc., as his Saxon progenitor had, and, like him, he was advised by a jury. The miners had entry to all lands except churchyards (this regulation waived upon death), and a few similar exceptions, and was subject to royalty to the Crown and the landlord. The discoverer was entitled to a finder's "meer" of extra size, and his title was to the vein within the end lines,i.e., the "apex" law. This title was held subject to rigorous labour[Pg 86]conditions, amounting to forfeiture for failure to operate the mine for a period of nine weeks. Space does not permit of the elaboration of the details of this subject, which we hope to pursue elsewhere in its many historical bearings. Among these we may mention that if the American "Apex law" is of English descent, it must be laid to the door of Derbyshire, and not of Cornwall, as is generally done. Our own belief, however, is that the American "apex" conception came straight from Germany.

It is not our purpose to follow these inquiries into mining law beyond the 15th century, but we may point out that with the growth of the sentiment of individualism the miners and landlords obtained steadily wider and wider rights at the cost of the State, until well within the 19th century. The growth of stronger communal sentiment since the middle of the last century has already found its manifestation in the legislation with regard to mines, for the laws of South Africa, Australia, and England, and the agitation in the United States are all toward greater restrictions on the mineral ownership in favour of the State.

[Pg 87][7]?De Limitibus et de Re Agrariaof Sextus Julius Frontinus (about 50-90A.D.)

[Pg 87][7]?De Limitibus et de Re Agrariaof Sextus Julius Frontinus (about 50-90A.D.)

[Pg 90][8]Such a form of ownership is very old. Apparently upon the instigation of Xenophon (seeNote 7, p. 29) the Greeks formed companies to work the mines of Laurion, further information as to which is given innote 6, p. 27. Pliny (Note 7, p. 232) mentions the Company working the quicksilver mines in Spain. In fact, company organization was very common among the Romans, who speculated largely in the shares, especially in those companies which farmed the taxes of the provinces, or leased public lands, or took military and civil contracts.

[Pg 90][8]Such a form of ownership is very old. Apparently upon the instigation of Xenophon (seeNote 7, p. 29) the Greeks formed companies to work the mines of Laurion, further information as to which is given innote 6, p. 27. Pliny (Note 7, p. 232) mentions the Company working the quicksilver mines in Spain. In fact, company organization was very common among the Romans, who speculated largely in the shares, especially in those companies which farmed the taxes of the provinces, or leased public lands, or took military and civil contracts.

[9]The Latin text gives one-sixth, obviously an error.

[9]The Latin text gives one-sixth, obviously an error.

[Pg 91][10]Asymposiumis a banquet, and asymbolais a contribution of money to a banquet. This sentence is probably a play on the old GermanZeche, mine, this being also a term for a drinking bout.

[Pg 91][10]Asymposiumis a banquet, and asymbolais a contribution of money to a banquet. This sentence is probably a play on the old GermanZeche, mine, this being also a term for a drinking bout.

[11]In the Latin text this is "three"—obviously an error.

[11]In the Latin text this is "three"—obviously an error.

[Pg 92][12]SeeNote 9, p. 74, for further information with regard to these mines. The Rhenish gulden was about 6.9 shillings, or $1.66. Silver was worth about this amount per Troy ounce at this period, so that roughly, silver of a value of 1,100 gulden would be about 1,100 Troy ounces. The Saxon thaler was worth about 4.64 shillings or about $1.11. The thaler, therefore, represented about .65 Troy ounces of silver, so that 300 thalers were about 195 Troy ounces, and 225 thalers about 146 Troy ounces.

[Pg 92][12]SeeNote 9, p. 74, for further information with regard to these mines. The Rhenish gulden was about 6.9 shillings, or $1.66. Silver was worth about this amount per Troy ounce at this period, so that roughly, silver of a value of 1,100 gulden would be about 1,100 Troy ounces. The Saxon thaler was worth about 4.64 shillings or about $1.11. The thaler, therefore, represented about .65 Troy ounces of silver, so that 300 thalers were about 195 Troy ounces, and 225 thalers about 146 Troy ounces.

[13]Opera continens. The Glossary givesschicht,—the origin of the English "shift."

[13]Opera continens. The Glossary givesschicht,—the origin of the English "shift."

[Pg 93][14]The terms in the Latin text aredonator, a giver of a gift, anddonatus, a receiver. It appears to us, however, that some consideration passed, and we have, therefore, used "seller" and "buyer."

[Pg 93][14]The terms in the Latin text aredonator, a giver of a gift, anddonatus, a receiver. It appears to us, however, that some consideration passed, and we have, therefore, used "seller" and "buyer."

[Pg 95][15]SeeNote 29, p. 23.

[Pg 95][15]SeeNote 29, p. 23.

[Pg 96][16]Decemviri—"The Ten Men." The originalDecemviriwere a body appointed by the Romans in 452B.C., principally to codify the law. Such commissions were afterward instituted for other purposes, but the analogy of the above paragraph is a little remote.

[Pg 96][16]Decemviri—"The Ten Men." The originalDecemviriwere a body appointed by the Romans in 452B.C., principally to codify the law. Such commissions were afterward instituted for other purposes, but the analogy of the above paragraph is a little remote.

[Pg 100][17]This work was apparently never published; seeAppendix A.

[Pg 100][17]This work was apparently never published; seeAppendix A.

I

n the last book I have explained the methods of delimiting the meers along each kind of vein, and the duties of mine officials. In this book[1]I will in like manner explain the principles of underground mining and the art of surveying. First then, I will proceed to deal with those matters which pertain to the former heading, since both the subject and methodical arrangement require it. And so I will describe first of all the digging of shafts, tunnels, and drifts onvenae profundae; next I will discuss the good indications shown bycanales[2], by the materials which are dug out, and by the rocks; then I will speak of the tools by which veins and rocks are broken down and excavated; the method by which fire shatters the hard veins; and further, of the machines with which water is drawn from the shafts and air is forced into deep shafts and long tunnels, for digging is impeded by the inrush of the former or the failure of the latter; next I will deal with the two kinds of shafts, and with the making of them and of tunnels; and finally, I will describe the method of miningvenae dilatatae,venae cumulatae, and stringers.

Now when a miner discovers avena profundahe begins sinking a shaft and above it sets up a windlass, and builds a shed over the shaft to prevent the rain from falling in, lest the men who turn the windlass be numbed by the cold or troubled by the rain. The windlass men also place their barrows in it, and the miners store their iron tools and other implements therein. Next to the shaft-house another house is built, where the mine foreman and the other workmen dwell, and in which are stored the ore and other things which are dug out. Although some persons build only one house, yet because sometimes boys and other living things fall into the shafts, most miners deliberately place one house apart from the other, or at least separate them by a wall.

ShaftsThree vertical shafts, of which the first, A, does not reach the tunnel; the second, B, reaches the tunnel; to the third, C, the tunnel has not yet been driven. D—Tunnel.[Pg 103]ShaftsThree inclined shafts, of which A does not yet reach the tunnel; B reaches the tunnel; to the third, C, the tunnel has not yet been driven. D—Tunnel.[Pg 104]Now a shaft is dug, usually two fathoms long, two-thirds of a fathom wide, and thirteen fathoms deep; but for the purpose of connecting with a tunnel which has already been driven in a hill, a shaft may be sunk to a depth of only eight fathoms, at other times to fourteen, more or less[3]. A shaft may be made vertical or inclined, according as the vein which the miners follow in the course of digging is vertical or inclined. A tunnel is a subterranean ditch driven lengthwise, and is nearly twice as high as it is broad, and wide enough that workmen and others may be able to pass and carry their loads. It is usually one and a quarter fathoms high, while its width is about three and three-quarters feet. Usually two workmen are required to drive it, one of whom digs out the upper and the other the lower part, and the one goes forward, while the other follows closely after. Each sits upon small boards fixed securely from the footwall to the hangingwall, or if the vein is a soft one, sometimes on a wedge-shaped plank fixed on to the vein itself. Miners sink more inclined shafts than vertical, and some of each kind do not reach to tunnels, while some connect with them. But as for some shafts, though they have already been sunk to the required depth, the tunnel which is to pierce the mountain may not yet have been driven far enough to connect with them.

ShaftsA—Shaft. B, C—Drift. D—Another shaft. E—Tunnel. F—Mouth of tunnel.[Pg 105]It is advantageous if a shaft connects with a tunnel, for then the miners and other workmen carry on more easily the work they have undertaken; but if the shaft is not so deep, it is usual to drift from one or both sides of it. From these openings the owner or foreman becomes acquainted with the veins and stringers that unite with the principal vein, or cut across it, ordivide it obliquely; however, my discourse is now concerned mainly withvena profunda, but most of all with the metallic material which it contains.Excavations of this kind were called by the Greeksκρυπταιfor, extending along after the manner of a tunnel, they are entirely hidden within theground. This kind of an opening, however, differs from a tunnel in that it is dark throughout its length, whereas a tunnel has a mouth open to daylight.

I have spoken of shafts, tunnels, and drifts. I will now speak of the indications given by thecanales, by the materials which are dug out, and by the rocks. These indications, as also many others which I will explain, are to a great extent identical invenae dilatataeandvenae cumulataewithvenae profundae.

When a stringer junctions with a main vein and causes a swelling, a shaft should be sunk at the junction. But when we find the stringer intersecting the main vein crosswise or obliquely, if it descends vertically down to the depths of the earth, a second shaft should be sunk to the point where the stringer cuts the main vein; but if the stringer cuts it obliquely the shaft should be two or three fathoms back, in order that the junction may be pierced lower down. At such junctions lies the best hope of finding the ore for the sake of which we explore the ground, and if ore has already been found, it is usually found in much greater abundance at that spot. Again, if several stringers descend into the earth, the miner, in order to pierce through the point of contact, should sink the shaft in the midst of these stringers, or else calculate on the most prominent one.

Since an inclined vein often lies near a vertical vein, it is advisable to sink a shaft at the spot where a stringer or cross-vein cuts them both; or where avena dilatataor a stringerdilatatapasses through, for minerals are usually found there. In the same way we have a good prospect of finding metal at the point where an inclined vein joins a vertical one; this is why miners cross-cut the hangingwall or footwall of a main vein, and in these openings seek for a vein which may junction with the principal vein a few fathoms below. Nay, further, these same miners, if no stringer or cross-vein intersects the main vein so that they can follow it in their workings, even cross-cut through the solid rock of the hangingwall or footwall. These cross-cuts are likewise called "κρυπταί," whether the beginning of the opening which has to be undertaken is made from a tunnel or from a drift. Miners have some hope when only a cross vein cuts a main vein. Further, if a vein which cuts the main vein obliquely does not appear anywhere beyond it, it is advisable to dig into that side of the main vein toward which the oblique vein inclines, whether the right or left side, that we may ascertain if the main vein has absorbed it; if after cross-cutting six fathoms it is not found, it is advisable to dig on the other side of the main vein, that we may know for certain whether it has carried it forward. The owners of a main vein can often dig no less profitably on that side where the vein which cuts the main vein again appears, than where it first cuts it; the owners of the intersecting vein, when that is found again, recover their title, which had in a measure been lost.

The common miners look favourably upon the stringers which come from the north and join the main vein; on the other hand, they look unfavourably upon those which come from the south, and say that these do much harm to the main vein, while the former improve it. But I think that miners should not neglect either of them: as I showed inBook III, experience does not confirm those who hold this opinion about veins, so nowagain I could furnish examples of each kind of stringers rejected by the common miners which have proved good, but I know this could be of little or no benefit to posterity.

If the miners find no stringers or veins in the hangingwall or footwall of the main vein, and if they do not find much ore, it is not worth while to undertake the labour of sinking another shaft. Nor ought a shaft to be sunk where a vein is divided into two or three parts, unless the indications are satisfactory that those parts may be united and joined together a little later. Further, it is a bad indication for a vein rich in mineral to bend and turn hither and thither, for unless it goes down again into the ground vertically or inclined, as it first began, it produces no more metal; and even though it does go down again, it often continues barren. Stringers which in their outcrops bear metals, often disappoint miners, no metal being found in depth. Further, inverted seams in the rocks are counted among the bad indications.

The miners hew out the whole of solid veins when they show clear evidence of being of good quality; similarly they hew out the drusy[4]veins, especially if the cavities are plainly seen to have formerly borne metal, or if the cavities are few and small. They do not dig barren veins through which water flows, if there are no metallic particles showing; occasionally, however, they dig even barren veins which are free from water, because of the pyrites which is devoid of all metal, or because of a fine black soft substance which is like wool. They dig stringers which are rich in metal, or sometimes, for the purpose of searching for the vein, those that are devoid of ore which lie near the hangingwall or footwall of the main vein. This then, generally speaking, is the mode of dealing with stringers and veins.

Let us now consider the metallic material which is found in thecanalesofvenae profundae,venae dilatatae, andvenae cumulatae, being in all these either cohesive and continuous, or scattered and dispersed among them, or swelling out in bellying shapes, or found in veins or stringers which originate from the main vein and ramify like branches; but these latter veins and stringers are very short, for after a little space they do not appear again. If we come across a small quantity of metallic material it is an indication; but if a large quantity, it is not an "indication," but the very thing for which we explore the earth. As soon as a miner who searches for veins discovers pure metal or minerals, or rich metallic material, or a great abundance of material which is poor in metal, let him sink a shaft on the spot without any delay. If the material appears more abundant or of better quality on the one side, he will incline his digging in that direction.

Gold, silver, copper, and quicksilver are often found native[5]; less often iron and bismuth; almost never tin and lead. Nevertheless tin-stone is not far removed from the pure white tin which is melted out of them, and galena, from which lead is obtained, differs little from that metal itself.

Now we may classify gold ores. Next after native gold, we come to therudis[6], of yellowish green, yellow, purple, black, or outside red and inside gold colour. These must be reckoned as the richest ores, because the gold exceeds the stone or earth in weight. Next come all gold ores of which each one hundredlibraecontains more than threeunciaeof gold[7]; for although but a small proportion of gold is found in the earth or stone, yet it equals in value other metals of greater weight.[8]All other gold ores are considered poor, becausethe earth or stone too far outweighs the gold. A vein which contains a larger proportion of silver than of gold is rarely found to be a rich one. Earth, whether it be dry or wet, rarely abounds in gold; but in dry earth there is more often found a greater quantity of gold, especially if it has theappearance of having been melted in a furnace, and if it is not lacking in scales resembling mica. The solidified juices, azure, chrysocolla, orpiment, and realgar, also frequently contain gold. Likewise native orrudisgold is found sometimes in large, and sometimes in small quantities in quartz,schist, marble, and also in stone which easily melts in fire of the second degree, and which is sometimes so porous that it seems completely decomposed. Lastly, gold is found in pyrites, though rarely in large quantities.

When considering silver ores other than native silver, those ores areclassified as rich, of which each one hundredlibraecontains more than threelibraeof silver. This quality comprisesrudissilver, whether silver glance or ruby silver, or whether white, or black, or grey, or purple, or yellow, or liver-coloured,or any other. Sometimes quartz, schist, or marble is of this quality also, if much native orrudissilver adheres to it. But that ore is considered of poor quality if threelibraeof silver at the utmost are found in each one hundredlibraeof it[9]. Silver ore usually contains a greater quantitythan this, because Nature bestows quantity in place of quality; such ore is mixed with all kinds of earth and stone compounds, except the various kinds ofrudissilver; especially with pyrites,cadmia metallica fossilis, galena,stibium, and others.

As regards other kinds of metal, although some rich ores are found, still, unless the veins contain a large quantity of ore, it is very rarely worth while to dig them. The Indians and some other races do search for gems in veins hidden deep in the earth, but more often they are noticed from their clearness, or rather their brilliancy, when metals are mined. When they outcrop, we follow veins of marble by mining in the same way as is done with rock or building-stones when we come upon them. But gems, properly so called, though they sometimes have veins of their own, are still for the most part found in mines and rock quarries, as the lodestone in iron mines, the emery in silver mines, thelapis judaicus,trochites, and the like in stone quarries where the diggers, at the bidding of the owners, usually collect them from the seams in the rocks.[10]Nor does the miner neglect the digging of "extraordinary earths,"[11]whether they are foundin gold mines, silver mines, or other mines; nor do other miners neglect them if they are found in stone quarries, or in their own veins; their value is usually indicated by their taste. Nor, lastly, does the miner fail to give attention to the solidified juices which are found in metallic veins, as well as in their own veins, from which he collects and gathers them. But I will say no more on these matters, because I have explained more fully all the metals and mineral substances in the books "De Natura Fossilium."

But I will return to the indications. If we come upon earth which is like lute, in which there are particles of any sort of metal, native orrudis, the best possible indication of a vein is given to miners, for the metallic material from which the particles have become detached is necessarily close by. But if this kind of earth is found absolutely devoid of all metallic material, but fatty, and of white, green, blue, and similar colours, they must not abandon the work that has been started. Miners have other indications in the veins and stringers, which I have described already, and in the rocks, about which I will speak a little later. If the miner comes across other dry earths which contain native orrudismetal, that is a good indication; if he comes across yellow, red, black, or some other "extraordinary" earth, though it is devoid of mineral, it is not a bad indication. Chrysocolla, or azure, or verdigris, or orpiment, or realgar, when they are found, are counted among the good indications. Further, where underground springs throw up metal we ought to continue the digging we have begun, for this points to the particles having been detached from the main mass like a fragment from a body. In the same way the thin scales of any metal adhering to stone or rock are counted among the good indications. Next, if the veins which are composed partly of quartz, partly of clayey or dry earth, descend one and all into the depths of the earth together, with their stringers, there is good hope of metal being found; but if the stringers afterward do not appear, or little metallic material is met with, the digging should not be given up until there is nothing remaining. Dark or black or horn or liver-coloured quartz is usually a good sign; white is sometimes good, sometimes no sign at all. But calc-spar, showing itself in avena profunda, if it disappears a little lower down is not a good indication; for it did not belong to the vein proper, but to some stringer. Those kinds of stone which easily melt in fire, especially if they are translucent (fluorspar?), must be counted among the medium indications, for if other good indications are present they are good, but if no good indications are present, they give no useful significance. In the same way we ought to form our judgment with regard to gems. Veins which at the hangingwall and footwall have horn-coloured quartz or marble, but in the middle clayey earth, give some hope; likewise those give hope in which the hangingwall or footwall shows iron-rust coloured earth, and in the middle greasy and sticky earth; also there is hope for those which have at the hanging or footwall that kind of earth which we call "soldiers' earth," and in the middle black earth or earth which looks as if burnt. The special indication of gold is orpiment; of silver is bismuth andstibium; of copper is verdigris,melanteria,sory,chalcitis,misy, and vitriol; of tin is the large pure black stones ofwhich the tin itself is made, and a material they dig up resembling litharge; of iron, iron rust. Gold and copper are equally indicated by chrysocolla and azure; silver and lead, by the lead. But, though miners rightly call bismuth "the roof of silver," and though copper pyrites is the common parent of vitriol andmelanteria, still these sometimes have their own peculiar minerals, just as have orpiment andstibium.

Now, just as certain vein materials give miners a favourable indication, so also do the rocks through which thecanalesof the veins wind their way, for sand discovered in a mine is reckoned among the good indications, especially if it is very fine. In the same way schist, when it is of a bluish or blackish colour, and also limestone, of whatever colour it may be, is a good sign for a silver vein. There is a rock of another kind that is a good sign; in it are scattered tiny black stones from which tin is smelted; especially when the whole space between the veins is composed of this kind of rock. Very often indeed, this good kind of rock in conjunction with valuable stringers contains within its folds thecanalesof mineral bearing veins: if it descends vertically into the earth, the benefit belongs to that mine in which it is seen first of all; if inclined, it benefits the other neighbouring mines[12]. As a result the miner who is not ignorant of geometry can calculate from the other mines the depth at which thecanalesof a vein bearing rich metal will wind its way through the rock into his mine. So much for these matters.

I now come to the mode of working, which is varied and complex, for in some places they dig crumbling ore, in others hard ore, in others a harder ore, and in others the hardest kind of ore. In the same way, in some places the hangingwall rock is soft and fragile, in others hard, in others harder, and in still others of the hardest sort. I call that ore "crumbling" which is composed of earth, and of soft solidified juices; that ore "hard" which is composed of metallic minerals and moderately hard stones, such as for the most part are those which easily melt in a fire of the first and second orders, like lead and similar materials. I call that ore "harder" when with those I have already mentioned are combined various sorts of quartz, or stones which easily melt in fire of the third degree, or pyrites, orcadmia, or very hard marble. I call that ore hardest, which is composed throughout the whole vein of these hard stones and compounds. The hanging or footwalls of a vein are hard, when composed of rock in which there are few stringers or seams; harder, in which they are fewer; hardest, in which they are fewest or none at all. When these are absent, the rock is quite devoid of water which softens it. But the hardest rock of the hanging or footwall, however, is seldom as hard as the harder class of ore.

Miners dig out crumbling ore with the pick alone. When the metal has not yet shown itself, they do not discriminate between the hangingwall and the veins; when it has once been found, they work with the utmost care. For first of all they tear away the hangingwall rock separately from the vein, afterward with a pick they dislodge the crumbling vein from the footwallinto a dish placed underneath to prevent any of the metal from falling to the ground. They break a hard vein loose from the footwall by blows with a hammer upon the first kind of iron tool[13], all of which are designated by appropriate names, and with the same tools they hew away the hard hangingwall rock. They hew out the hangingwall rock in advance more frequently, the rock of the footwall more rarely; and indeed, when the rock of the footwall resists iron tools, the rock of the hangingwall certainly cannot be broken unless it is allowable to shatter it by fire. With regard to the harder veins which are tractable to iron tools, and likewise with regard to the harder and hardest kind of hangingwall rock, they generally attack them with more powerful iron tools, in fact, with the fourth kind of iron tool, which are called by their appropriate names; but if these are not ready to hand, they use two or three iron tools of the first kind together. As for the hardest kind of metal-bearing vein, which in a measure resists iron tools, if the owners of the neighbouring mines give them permission, they break it with fires. But if these owners refuse them permission, then first of all they hew out the rock of the hangingwall, or of the footwall if it be less hard; then they place timbers set in hitches in the hanging or footwall, a little above the vein, and from the front and upper part, where the vein is seen to be seamed with small cracks, they drive into one of the little cracks one of the iron tools which I have mentioned; then in each fracture they place four thin iron blocks, and in order to hold them more firmly, if necessary, they place as many thin iron plates back to back; next they place thinner iron plates between each two iron blocks, and strike and drive them by turns with hammers, whereby the vein rings with a shrill sound; and the moment when it begins to be detached from the hangingwall or footwall rock, a tearing sound is heard. As soon as this grows distinct the miners hastily flee away; then a great crash is heard as the vein is broken and torn, and falls down. By this method they throw down a portion of a vein weighing a hundred pounds more or less. But if the miners by any other method hew the hardest kind of vein which is rich in metal, there remain certain cone-shaped portions which can be cut out afterward only with difficulty. As for this knob of hard ore, if it is devoid of metal, or if they are not allowed to apply fire to it, they proceed round it by digging to the right or left, because it cannot be broken into by iron wedges without great expense. Meantime, while the workmen are carrying out the task they have undertaken, the depths of the earth often resound with sweet singing, whereby they lighten a toil which is of the severest kind and full of the greatest dangers.

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