De re metallica (1912)/Book IV
BOOK IV.
Now the miner, if the vein he has uncovered is to his liking, first of all goes to the Bergmeister to request to be granted a right to mine, this official's special function and office being to adjudicate in respect of the mines. And so to the first man who has discovered the vein the Bergmeister awards the head meer, and to others the remaining meers, in the order in which each makes his application. The size of a meer is measured by fathoms, which for miners are reckoned at six feet each. The length, in fact, is that of a man's extended arms and hands measured across his chest; but different peoples assign to it different lengths, for among the Greeks, who called it an ὀργνιά, it was six feet, among the Romans five feet. So this measure which is used by miners seems to have come down to the Germans in accordance with the Greek mode of reckoning. A miner's foot approaches very nearly to the length of a Greek foot, for it exceeds it by only three-quarters of a Greek digit, but like that of the Romans it is divided into twelve unciae[2].
Now square fathoms are reckoned in units of one, two, three, or more "measures", and a "measure" is seven fathoms each way. Mining meers are for the most part either square or elongated; in square meers all the sides are of equal length, therefore the numbers of fathoms on the two sides multiplied together produce the total in square fathoms. Thus, if the shape of a "measure" is seven fathoms on every side, this number multiplied by itself makes forty-nine square fathoms.
The sides of a long meer are of equal length, and similarly its ends are equal; therefore, if the number of fathoms in one of the long sides be multiplied by the number of fathoms in one of the ends, the total produced by the
Shape of a Square Meer.
multiplication is the total number of square fathoms in the long meer. For example, the double measure is fourteen fathoms long and seven broad, which two numbers multiplied together make ninety-eight square fathoms.
Shape of a Long Meer or Double Measure.
Since meers vary in shape according to the different varieties of veins it is necessary for me to go more into detail concerning them and their measurements. If the vein is a vena profunda, the head meer is composed of three double measures, therefore it is forty-two fathoms in length and seven in width, which numbers multiplied together give two hundred and ninety-four square fathoms, and by these limits the Bergmeister bounds the owner's rights in a head-meer.
Shape of a Head Meer.
The area of every other meer consists of two double measures, on which- ever side of the head meer it lies, or whatever its number in order may be, that is to say, whether next to the head meer, or second, third, or any later number. Therefore, it is twenty-eight fathoms long and seven wide, so multiplying the length by the width we get one hundred and ninety-six square fathoms, which is the extent of the meer, and by these boundaries the Bergmeister defines the right of the owner or company over each mine.
Shape of a Meer.
Now we call that part of the vein which is first discovered and mined, the head-meer, because all the other meers run from it, just as the nerves from the head. The Bergmeister begins his measurements from it, and the reason why he apportions a larger area to the head-meer than to the others, is that he may give a suitable reward to the one who first found the vein and may encourage others to search for veins. Since meers often reach to a torrent, or river, or stream, if the last meet cannot be completed it is called a fraction[3] . If it is the size of a double measure, the Bergmeister grants the right of mining it to him who makes the first application, but if it is the size of a single measure or a little over, he divides it between the nearest meers on either side of it. It is the custom among miners that the first meer beyond a stream on that part of the vein on the opposite side is a new head-meer, and they call it the “opposite,”[4] while the other meers beyond are only ordinary meers. Formerly every head-meer was composed of three double measures and one single one, that is, it was forty-nine fathoms long and seven wide, and so if we multiply these two together we have three hundred and forty-three square fathoms, which total gives us the area of an ancient head-meer.
Shape of an Ancient Head-meer.
Every ancient meer was formed of a single measure, that is to say, it was seven fathoms in length and width, and was therefore square. In memory of which miners even now call the width of every meer which is located on a vena profunda a “square”[5] . The following was formerly the usual method of delimiting a vein: as soon as the miner found metal, he gave information to the Bergmeister and the tithe-gatherer, who either proceeded personally from the town to the mountains, or sent thither men of good repute, at least two in number, to inspect the metal-bearing vein. Thereupon, if they thought it of sufficient importance to survey, the Bergmeister again having gone forth on an appointed day, thus questioned him who first found the vein, concerning the vein and the diggings: “Which is your vein?” “Which digging carried metal?” Then the discoverer, pointing his finger to his vein and diggings, indicated them, and next the Bergmeister ordered him to approach the windlass and place two fingers of his right hand upon his head, and swear this oath in a clear voice: “I swear by God and all the Saints, and I call them all to witness, that this is my vein; and moreover if it is not mine, may neither this my head nor these my hands henceforth perform their functions.” Then the Bergmeister, having started from the centre of the windlass, proceeded to measure the vein with a cord, and to give the measured portion to the discoverer, in the first instance a half and then three full measures; afterward one to the King or Prince, another to his Consort, a third to the Master of the Horse, a fourth to the Cup-bearer, a fifth to the Groom of the Chamber, a sixth to himself. Then, starting from the other side of the windlass, he proceeded to measure the vein in a similar manner. Thus the discoverer of the vein obtained the head-meer, that is, seven single measures; but the King or Ruler, his Consort, the leading dignitaries, and lastly, the Bergmeister, obtained two measures each, or two ancient meers. This is the reason there are to be found at Freiberg in Meissen so many shafts with so many intercommunications on a single vein which are to a great extent destroyed by age. If, however, the Bergmeister had already fixed the boundaries of the meers on one side of the shaft for the benefit of some other discoverer, then for those dignitaries I have just mentioned, as many meers as he was unable to award on that side he duplicated on the other. But if on both sides of the shaft he had already defined the boundaries of meers, he proceeded to measure out only that part of the vein which remained free, and thus it sometimes happened that some of those persons I have mentioned obtained no meer at all. To-day, though that old-established custom is observed, the method of allotting the vein and granting title has been changed. As I have explained above, the headmeer consists of three double measures, and each other meer of two measures, and the Bergmeister grants one each of the meers to him who makes the first application. The King or Prince, since all metal is taxed, is himself content with that, which is usually one-tenth.
Of the width of every meer, whether old or new, one-half lies on the footwall side of a vena pwfunda and one half on the hangingwall side. If the vein descends vertically into the earth, the boundaries similarly descend vertically; but if the vein inclines, the boundaries likewise will be inclined. The owner always holds the mining right for the width of the meer, however far the vein descends into the depth of the earth.[6] Further, the Bergmeister, on application being made to him, grants to one owner or company a right over not only the head meer, or another meer, but also the head meer and the next meer or two adjoining meers. So much for the shape of meers and their dimensions in the case of a vena profunda.
I now come to the case of venae dilatatae. The boundaries of the areas on such veins are not all measured by one method. For in some places the Bergmeister gives them shapes similar to the shapes of the meers on venae profundae, in which case the head-meer is composed of three double measures, and the area of every other mine of two measures, as I have explained more fully above. In this case, however, he measures the meers with a cord, not only forward and backward from the ends of the headmeer, as he is wont to do in the case where the owner of a vena profunda has a meer granted him, but also from the sides. In this way meers are marked out when a torrent or some other force of Nature has laid open a vena dilatata in a valley, so that it appears either on the slope of a mountain or hill or on a plain. Elsewhere the Bergmeister doubles the width of the head-meer and it is made fourteen fathoms wide, while the width of each of the other meers remains single, that is seven fathoms, but the length is not defined by boundaries. In some places the head-meer consists of three double measures, but has a width of fourteen fathoms and a length of twenty-one.
Shape of a Head-meer.
In the same way, every other meer is composed of two measures, doubled in the same fashion, so that it is fourteen fathoms in width and of the same length.
Shape of every other Meer.
Elsewhere every meer, whether a head-meer or other meer, comprises forty-two fathoms in width and as many in length.
In other places the Bergmeister gives the owner or company all of some locality defined by rivers or little valleys as boundaries. But the boundaries of every such area of whatsoever shape it be, descend vertically into the earth; so the owner of that area has a right over that part of any vena dilatata which lies beneath the first one, just as the owner of the meer on a vena profunda has a right over so great a part of all other venae profundae as lies within the boundaries of his meer ; for just as wherever one vena profunda is found, another is found not far away, so wherever one vena dilatata is found, others are found beneath it.
Finally, the Bergmeister divides vena cumulata areas in different ways, for in some localities the head-meer is composed of three measures, doubled in such a way that it is fourteen fathoms wide and twenty-one long ; and every other meer consists of two measures doubled, and is square, that is, fourteen fathoms wide and as many long. In some places the head-meer is composed of three single measures, and its width is seven fathoms and its length twenty-one, which two numbers multiplied together make one hundred and forty-seven square fathoms.
XXI CXLVII XXI Shape of a Head-Meer.
Each other meer consists of one double measure. In some places the head-meer is given the shape of a double measure, and every other meer that of a single measure. Lastly, in other places the owner or a company is given a right over some complete specified locality bounded by little streams, valleys, or other limits. Furthermore, all meers on venae cumulatae, as in the case of dilatatae, descend vertically into the depths of the earth, and each meer has the boundaries so determined as to prevent disputes arising between the owners of neighbouring mines.
The boundary marks in use among miners formerly consisted only of stones, and from this their name was derived, for now the marks of a boundary are called " boundary stones." To-day a row of posts, made either of oak or pine, and strengthened at the top with iron rings to prevent them from being damaged, is fixed beside the boundary stones to make them more conspicuous. By this method in former times the boundaries of the fields were marked by stones or posts, not only as written of in the book "De Limitibus Agrorum,"[7] but also as testified to by the songs of the poets. Such then is the shape of the meets, varying in accordance with the different kinds of veins.
Now tunnels are of two sorts, one kind having no right of property, the other kind having some limited right. For when a miner in some particular locality is unable to open a vein on account of a great quantity of water, he runs a wide ditch, open at the top and three feet deep, starting on the slope and running up to the place where the vein is found. Through it the water flows off, so that the place is made dry and fit for digging. But if it is not sufficiently dried by this open ditch, or if a shaft which he has now for the first time begun to sink is suffering from overmuch water, he goes to the Bergmeister and asks that official to give him the right for a tunnel. Having obtained leave, he drives the tunnel, and into its drains all the water is diverted, so that the place or shaft is made fit for digging. If it is not seven fathoms from the surface of the earth to the bottom of this kind of tunnel, the owner possesses no rights except this one : namely, that the owners of the mines, from whose leases the owner of the tunnel extracts gold or silver, themselves pay him the sum he expends within their meer in driving the tunnel through it.
To a depth or height of three and a half fathoms above and below the mouth of the tunnel, no one is allowed to begin another tunnel. The reason for this is that this kind of a tunnel is liable to be changed into the other kind which has a complete right of property, when it drains the meers to a depth of seven fathoms, or to ten, according as the old custom in each place acquires the force of law. In such case this second kind of tunnel has the following right ; in the first place, whatever metal the owner, or company owning it, finds in any meer through which it is driven, all belongs to the tunnel owner within a height or depth of one and a quarter fathoms. In the years which are not long passed, the owner of a tunnel possessed all the metal which a miner standing at the bottom of the tunnel touched with a bar, whose handle did not exceed the customary length ; but nowadays a certain prescribed height and width is allowed to the owner of the tunnel, lest the owners of the mines be damaged, if the length of the bar be longer than usual. Further, every metal-yielding mine which is drained and supplied with ventilation by a tunnel, is taxed in the proportion of one- ninth for the benefit of the owner of the tunnel. But if several tunnels of this kind are driven through one mining area which is yielding metals, and all drain it and supply it with ventilation, then of the metal which is dug out from above the bottom of each tunnel, one-ninth is given to the owner of that tunnel ; of that which is dug out below the bottom of each tunnel, one-ninth is in each case given to the owner of the tunnel which follows next in order below. But if the lower tunnel does not yet drain the shaft of that meer nor supply it with ventilation, then of the metal which is dug out below the bottom of the higher tunnel, one-ninth part is given to the owner of such upper tunnel. Moreover, no one tunnel deprives another of its right to one-ninth part, unless it be a lower one, from the bottom of which to the bottom of the one above must not be less than seven or ten fathoms, according as the king or prince has decreed. Further, of all the money which the owner of the tunnel has spent on his tunnel while driving it through a meer, the owner of that meer pays one-fourth part. If he does not do so he is not allowed to make use of the drains.
Finally, with regard to whatever veins are discovered by the owner at whose expense the tunnel is driven, the right of which has not been already awarded to anyone, on the application of such owner the Bergmeister grants him a right of a head-meer, or of a head-meer together with the next meer. Ancient custom gives the right for a tunnel to be driven in any direction for an unlimited length. Further, to-day he who commences a tunnel is given, on his application, not only the right over the tunnel, but even the head and sometimes the next meer also. In former days the owner of the tunnel obtained only so much ground as an arrow shot from the bow might cover, and he was allowed to pasture cattle therein. In a case where the shafts of several meers on some vein could not be worked on account of the great quantity of water, ancient custom also allowed the Bergmeister to grant the right of a large meer to anyone who would drive a tunnel. When, however, he had driven a tunnel as far as the old shafts and had found metal, he used to return to the Bergmeister and request him to bound and mark off the extent of his right to a meer. Thereupon, the Bergmeister, together with a certain number of citizens of the town in whose place Jurors have now succeeded used to proceed to the mountain and mark off with boundary stones a large meer, which consisted of seven double measures, that is to say, it was ninety-eight fathoms long and seven wide, which two numbers multiplied together make six hundred and eighty-six square fathoms.
Large Area.
But each of these early customs has been changed, and we now employ the new method.
I have spoken of tunnels ; I will now speak about the division of ownership in mines and tunnels. One owner is allowed to possess and to work one, two, three, or more whole meers, or similarly one or more separate tunnels, provided he conforms to the decrees of the laws relating to metals, and to the orders of the Bergmeister. And because he alone provides the expenditure of money on the mines, if they yield metal he alone obtains the product from them. But when large and frequent expenditures are necessary in mining, he to whom the Bergmeister first gave the right often admits others to share with him, and they join with him in forming a company, and they each lay out a part of the expense and share with him the profit or loss of the mine. But the title of the mines or tunnels remains undivided, although for the purpose of dividing the expense and profit it may be said each mine or tunnel is divided into parts[8].
This division is made in various ways. A mine, and the same thing must be understood with regard to a tunnel, may be divided into two halves, that is into two similar portions, by which method two owners spend an equal amount on it and draw an equal profit from it, for each possesses one half. Sometimes it is divided into four shares, by which compact four persons can be owners, so that each possesses one-fourth, or also two persons, so that one possesses three-fourths, and the other only one-fourth; or three owners, so that the first has two-fourths, and the second and third one-fourth each. Sometimes it is divided into eight shares, by which plan there may be eight owners, so that each is possessor of one-eighth; sometimes there are two owners, so that one has five-sixths[9] together with one twenty-fourth, and the other one-eighth; or there may be three owners, in which one has three-quarters and the second and third each one-eighth; or it may be divided so that one owner has seven-twelfths, together with one twenty-fourth, a second owner has one-quarter, and a third owner has one-eighth; or so that the first has one-half, the second one-third and one twenty-fourth, and the third one-eighth; or so that the first has one-half, as before, and the second and third each one-quarter; or so that the first and second each have one-third and one twenty-fourth, and the third one-quarter; and in the same way the divisions may be adjusted in all the other proportions. The different ways of dividing the shares originate from the different proportions of ownership. Sometimes a mine is divided into sixteen parts, each of which is a twenty-fourth and a forty-eighth; or it may be divided into thirty-two parts, each of which is a forty-eighth and half a seventy-second and a two hundred and eighty-eighth; or into sixty-four parts of which each share is one seventy-second and one five hundred and seventy-sixth; or finally, into one hundred and twenty-eight parts, any one of which is half a seventy-second and half of one five hundred and seventy-sixth.
Now an iron mine either remains undivided or is divided into two, four, or occasionally more shares, which depends on the excellence of the veins. But a lead, bismuth, or tin mine, and likewise one of copper or even quicksilver, is also divided into eight shares, or into sixteen or thirty-two, and less commonly into sixty-four. The number of the divisions of the silver mines at Freiberg in Meissen did not formerly progress beyond this; but within the memory of our fathers, miners have divided a silver mine, and similarly the tunnel at Schneeberg, first of all into one hundred and twenty- eight shares, of which one hundred and twenty-six are the property of private owners in the mines or tunnels, one belongs to the State and one to the Church ; while in Joachimsthal only one hundred and twenty-two shares of the mines or tunnels are the property of private owners, four are proprietary shares, and the State and Church each have one in the same way. To these there has lately been added in some places one share for the most needy of the population, which makes one hundred and twenty-nine shares. It is only the private owners of mines who pay contributions. A proprietary holder, though he holds as many as four shares such as I have described, does not pay contributions, but gratuitously supplies the owners of the mines with sufficient wood from his forests for timbering, machinery, buildings, and smelting ; nor do those belonging to the State, Church, and the poor pay contributions, but the proceeds are used to build or repair public works and sacred buildings, and to support the most needy with the profits which they draw from the mines. Furthermore, in our State, the one hundred and twenty-eighth share has begun to be divided into two, four, or eight parts, or even into three, six, twelve, or smaller parts. This is done when one mine is created out of two, for then the owner who formerly possessed one-half becomes owner of one-fourth ; he who possessed one-fourth, of one-eighth ; he who possessed one-third, of one-sixth ; he who possessed one-sixth, of one-twelfth. Since our countrymen call a mine a symposium, that is, a drinking bout, we are accustomed to call the money which the owners subscribe a symbolum, or a contribution[10]. For, just as those who go to a banquet (symposium) give contributions (symbola), so those who purpose making large profits from mining are accustomed to contribute toward the expenditure. However, the manager of the mine assesses the contributions of the owners annually, or for the most part quarterly, and as often he renders an account of receipts and expenses. At Freiberg in Meissen the old practice was for the manager to exact a contribution from the owners every week, and every week to distribute among them the profits of the mines, but this practice during almost the last fifteen years has been so far changed that contribution and distribution are made four[11] times each year. Large or small contributions are imposed according to the number of workmen which the mine or tunnel requires ; as a result, those who possess many shares provide many contributions. Four times a year the owners contribute to the cost, and four times during the year the profits of the mines are distributed among them ; these are sometimes large, sometimes small, according as there is more or less gold or silver or other metal dug out. Indeed, from the St. George mine in Schneeberg the miners extracted so much silver in a quarter of a year that silver cakes, which were worth 1,100 Rhenish guldens, were distributed to each one hundred and twenty-eighth share. From the Annaberg mine which is known as the Himmelich Höz, they had a dole of eight hundred thaler; from a mine in Joachimsthal which is named the Sternen, three hundred thaler; from the head mine at Abertham, which is called St. Lorentz, two hundred and twenty-five thaler[12]. The more shares of which any individual is owner the more profits he takes.
I will now explain how the owners may lose or obtain the right over a mine, or a tunnel, or a share. Formerly, if anyone was able to prove by witnesses that the owners had failed to send miners for three continuous shifts[13], the Bergmeister deprived them of their right over the mine, and gave the right over it to the informer, if he desired it. But although miners preserve this custom to-day, still mining share owners who have paid their contributions do not lose their right over their mines against their will. Formerly, if water which had not been drawn off from the higher shaft of some mine percolated through a vein or stringer into the shaft of another mine and impeded their work, then the owners of the mine which suffered the damage went to the Bergmeister and complained of the loss, and he sent to the shafts two Jurors. If they found that matters were as claimed, the right over the mine which caused the injury was given to the owners who suffered the injury. But this custom in certain places has been changed, for the Bergmeister, if he finds this condition of things proved in the case of two shafts, orders the owners of the shaft which causes the injury to contribute part of the expense to the owners of the shaft which receives the injury; if they fail to do so, he then deprives them of their right over their mine; on the other hand, if the owners send men to the workings to dig and draw off the water from the shafts, they keep their right over their mine. Formerly owners used to obtain a right over any tunnel, firstly, if in its bottom they made drains and cleansed them of mud and sand so that the water might flow out without any hindrance, and restored those drains which had been damaged; secondly, if they provided shafts or openings to supply the miners with air, and restored those which had fallen in; and finally, if three miners were employed continuously in driving the tunnel. But the principal reason for losing the title to a tunnel was that for a period of eight days no miner was employed upon it; therefore, when anyone was able to prove by witnesses that the owners of a tunnel had not done these things, he brought his accusation before the Bergmeister, who, after going out from the town to the tunnel and inspecting the drains and the ventilating machines and everything else, and finding the charge to be true, placed the witness under oath, and asked him: “Whose tunnel is this at the present time?” The witness would reply: “The King's” or “The Prince's.” Thereupon the Bergmeister gave the right over the tunnel to the first applicant. This was the severe rule under which the owners at one time lost their rights over a tunnel; but its severity is now considerably mitigated, for the owners do not now forthwith lose their right over a tunnel through not having cleaned out the drains and restored the shafts or ventilation holes which have suffered damage; but the Bergmeister orders the tunnel manager to do it, and if he does not obey, the authorities fine the tunnel. Also it is sufficient for one miner to be engaged in driving the tunnel. Moreover, if the owner of a tunnel sets boundaries at a fixed spot in the rocks and stops driving the tunnel, he may obtain a right over it so far as he has gone, provided the drains are cleaned out and ventilation holes are kept in repair. But any other owner is allowed to start from the established mark and drive the tunnel further, if he pays the former owners of the tunnel as much money every three months as the Bergmeister decides ought to be paid.
There remain for discussion, the shares in the mines and tunnels. Formerly if anybody conveyed these shares to anyone else, and the latter had once paid his contribution, the seller[14] was bound to stand by his bargain, and this custom to-day has the force of law. But if the seller denied that the contribution had been paid, while the buyer of the shares declared that he could prove by witnesses that he had paid his contribution to the other proprietors, and a case arose for trial, then the evidence of the other proprietors carried more weight than the oath of the seller. To-day the buyer of the shares proves that he has paid his contribution by a document which the mine or tunnel manager always gives each one; if the buyer has contributed no money there is no obligation on the seller to keep his bargain. Formerly, as I have said above, the proprietors used to contribute money weekly, but now contributions are paid four times each year. To-day, if for the space of a month anyone does not take proceedings against the seller of the shares for the contribution, the right of taking proceedings is lost. But when the Clerk has already entered on the register the shares which had been conveyed or bought, none of the owners loses his right over the share unless the money is not contributed which the manager of the mine or tunnel has demanded from the owner or his agent. Formerly, if on the application of the manager the owner or his agent did not pay, the matter was referred to the Bergmeister, who ordered the owner or his agent to make his contribution; then if he failed to contribute for three successive weeks, the Bergmeister gave the right to his shares to the first applicant. To-day this custom is unchanged, for if owners fail for the space of a month to pay the contributions which the manager of the mine has imposed on them, on a stated day their names are proclaimed aloud and struck off the list of owners, in the presence of the Bergmeister, the Jurors, the Mining Clerk, and the Share Clerk, and each of such shares is entered on the proscribed list. If, ever, on the third, or at latest the fourth day, they pay their contributions to the manager of the mine or tunnel, and pay the money which is due from them to the Share Clerk, he removes their shares from the proscribed list. They are not thereupon restored to their former position unless the other owners consent; in which respect the custom now in use differs from the old practice, for to-day if the owners of shares constituting anything over half the mine consent to the restoration of those who have been proscribed, the others are obliged to consent whether they wish to or not. Formerly, unless such restoration had been sanctioned by the approval of the owners of one hundred shares, those who had been proscribed were not restored to their former position.
The procedure in suits relating to shares was formerly as follows: he who instituted a suit and took legal proceedings against another in respect of the shares, used to make a formal charge against the accused possessor before the Bergmeister. This was done either at his house or in some public place or at the mines, once each day for three days if the shares belonged to an old mine, and three times in eight days if they belonged to a headmeer. But if he could not find the possessor of the shares in these places, it was valid and effectual to make the accusation against him at the house of the Bergmeister. When, however, he made the charge for the third time, he used to bring with him a notary, whom the Bergmeister would interrogate: “Have I earned the fee?” and who would respond: “You have earned it”; thereupon the Bergmeister would give the right over the shares to him who made the accusation, and the accuser in turn would pay down the customary fee to the Bergmeister. After these proceedings, if the man whom the Bergmeister had deprived of his shares dwelt in the city, one of the proprietors of the mine or of the head-mine was sent to him to acquaint him with the facts, but if he dwelt elsewhere proclamation was made in some public place, or at the mine, openly and in a loud voice in the hearing of numbers of miners. Nowadays a date is denned for the one who is answerable for the debt of shares or money, and information is given the accused by an official if he is near at hand, or if he is absent, a letter is sent him; nor is the right over his shares taken from anyone for the space of one and a half months. So much for these matters.
Now, before I deal with the methods which must be employed in working, I will speak of the duties of the Mining Prefect, the Bergmeister, the Jurors, the Mining Clerk, the Share Clerk, the manager of the mine or tunnel, the foreman of the mine or tunnel, and the workmen.
To the Mining Prefect, whom the King or Prince appoints as his deputy, all men of all races, ages, and rank, give obedience and submission. He governs and regulates everything at his discretion, ordering those things which are useful and advantageous in mining operations, and prohibiting those which are to the contrary. He levies penalties and punishes offenders; he arranges disputes which the Bergmeister has been unable to settle, and if even he cannot arrange them, he allows the owners who are at variance over some point to proceed to litigation; he even lays down the law, gives orders as a magistrate, or bids them leave their rights in abeyance, and he determines the pay of persons who hold any post or office. He is present in person when the mine managers present their quarterly accounts of profits and expenses, and generally represents the King or Prince and upholds his dignity. The Athenians in this way set Thucydides, the famous historian, over the mines of Thasos[15].
Next in power to the Mining Prefect comes the Bergmeister, since he has jurisdiction over all who are connected with mines, with a few exceptions, which are the Tithe Gatherer, the Cashier, the Silver Refiner, the Master of the Mint, and the Coiners themselves. Fraudulent, negligent, or dissolute men he either throws into prison, or deprives of promotion, or fines; of these fines, part is given as a tribute to those in power. When the mine owners have a dispute over boundaries he arbitrates it; or if he cannot settle the dispute, he pronounces judgment jointly with the Jurors; from them, however, an appeal lies to the Mining Prefect. He transcribes his decrees in a book and sets up the records in public. It is also his duty to grant the right over the mines to those who apply, and to confirm their rights; he also must measure the mines, and fix their boundaries, and see that the mine workings are not allowed to become dangerous. Some of these duties he observes on fixed days; for on Wednesday in the presence of the Jurors he confirms the rights over the mines which he has granted, settles disputes about boundaries, and pronounces judgments. On Mondays, Tuesdays, Thursdays, and Fridays, he rides up to the mines, and dismounting at some of them explains what is required to be done, or considers the boundaries which are under controversy. On Saturday all the mine managers and mine foremen render an account of the money which they have spent on the mines during the preceding week, and the Mining Clerk transcribes this account into the register of expenses. Formerly, for one Principality there was one Bergmeister, who used to create all the judges and exercise jurisdiction and control over them; for every mine had its own judge, just as to-day each locality has a Bergmeister in his place, the name alone being changed. To this ancient Bergmeister, who used to dwell at Freiberg in Meissen, disputes were referred; hence right up to the present time the one at Freiberg still has the power of pronouncing judgment when mine owners who are engaged in disputes among themselves appeal to him. The old Bergmeister could try everything which was presented to him in any mine whatsoever; whereas the judge could only try the things which were done in his own district, in the same way that every modern Bergmeister can.
To each Bergmeister is attached a clerk, who writes out a schedule signifying to the applicant for a right over a mine, the day and hour on which the right is granted, the name of the applicant, and the location of the mine. He also affixes at the entrance to the mine, quarterly, at the appointed time, a sheet of paper on which is shown how much contribution must be paid to the manager of the mine. These notices are prepared jointly with the Mining Clerk, and in common they receive the fee rendered by the foremen of the separate mines.
I now come to the Jurors, who are men experienced in mining matters and of good repute. Their number is greater or less as there are few or more mines; thus if there are ten mines there will be five pairs of Jurors, like a decemviral college[16]. Into however many divisions the total number of mines has been divided, so many divisions has the body of Jurors; each pair of Jurors usually visits some of the mines whose administration is under their supervision on every day that workmen are employed; it is usually so arranged that they visit all the mines in the space of fourteen days. They inspect and consider all details, and deliberate and consult with the mine foreman on matters relating to the underground workings, machinery, timbering, and everything else. They also jointly with the mine foreman from time to time make the price per fathom to the workmen for mining the ore, fixing it at a high or low price, according to whether the rock is hard or soft; if, however, the contractors find that an unforeseen and unexpected hardness occurs, and for that reason have difficulty and delay in carrying out their work, the Jurors allow them something in excess of the price fixed; while if there is a softness by reason of water, and the work is done more easily and quickly, they deduct something from the price. Further, if the Jurors discover manifest negligence or fraud on the part of any foreman or workman, they first admonish or reprimand him as to his duties and obligations, and if he does not become more diligent and improve, the matter is reported to the Bergmeister, who by right of his authority deprives such persons of their functions and office, or, if they have committed a crime, throws them into prison. Lastly, because the Jurors have been given to the Bergmeister as councillors and advisors, in their absence he does not confirm the right over any mine, nor measure the mines, nor fix their boundaries, nor settle disputes about boundaries, nor pronounce judgment, nor, finally, does he without them listen to any account of profits and expenditure.
Now the Mining Clerk enters each mine in his books, the new mines in one book, the old mines which have been re-opened in another. This is done in the following way: first is written the name of the man who has applied for the right over the mine, then the day and hour on which he made his application, then the vein and the locality in which it is situated, next the conditions on which the right has been given, and lastly, the day on which the Bergmeister confirmed it. A document containing all these particulars is also given to the person whose right over a mine has been confirmed. The Mining Clerk also sets down in another book the names of the owners of each mine over which the right has been confirmed; hi another any intermission of work permitted to any person for certain reasons by the Bergmeister; in another the money which one mine supplies to another for drawing off water or making machinery; and in another the decisions of the Bergmeister and the Jurors, and the disputes settled by them as honorary arbitrators. All these matters he enters in the books on Wednesday of every week; if holidays fall on that day he does it on the following Thursday. Every Saturday he enters in another book the total expenses of the preceding week, the account of which the mine manager has rendered; but the total quarterly expenses of each mine manager, he enters in a special book at his own convenience. He enters similarly in another book a list of owners who have been proscribed. Lastly, that no one may be able to bring a charge of falsification against him, all these books are enclosed in a chest with two locks, the key of one of which is kept by the Mining Clerk, and of the other by the Bergmeister.
The Share Clerk enters in a book the owners of each mine whom the first finder of the vein names to him, and from time to time replaces the names of the sellers with those of the buyers of the shares. It sometimes happens that twenty or more owners come into the possession of some particular share. Unless, however, the seller is present, or has sent a letter to the Mining Clerk with his seal, or better still with the seal of the Mayor of the town where he dwells, his name is not replaced by that of anyone else; for if the Share Clerk is not sufficiently cautious, the law requires him to restore the late owner wholly to his former position. He writes out a fresh document, and in this way gives proof of possession. Four times a year, when the accounts of the quarterly expenditure are rendered, he names the new proprietors to the manager of each mine, that the manager may know from whom he should demand contributions and among whom to distribute the profits of the mines. For this work the mine manager pays the Clerk a fixed fee.
I will now speak of the duties of the mine manager. In the case of the owners of every mine which is not yielding metal, the manager announces to the proprietors their contributions in a document which is affixed to the doors of the town hall, such contributions being large or small, according as the Bergmeister and two Jurors determine. If anyone fails to pay these contributions for the space of a month, the manager removes their names from the list of owners, and makes their shares the common property of the other proprietors. And so, whomsoever the mine manager names as not having paid his contribution, that same man the Mining Clerk designates in writing, and so also does the Share Clerk. Of the contribution, the mine manager applies part to the payment of the foreman and workmen, and lays by a part to purchase at the lowest price the necessary things for the mine, such as iron tools, nails, firewood, planks, buckets, drawing-ropes, or grease. But in the case of a mine which is yielding metal, the Tithegatherer pays the mine manager week by week as much money as suffices to discharge the workmen's wages and to provide the necessary implements for mining. The mine manager of each mine also, in the presence of its foreman, on Saturday in each week renders an account of his expenses to the Bergmeister and the Jurors, he renders an account of his receipts, whether the money has been contributed by the owners or taken from the Tithe-gatherer; and of his quarterly expenditure in the same way to them and to the Mining Prefect and to the Mining Clerk, four times a year at the appointed time; for just as there are four seasons of the year, namely. Spring, Summer, Autumn, and Winter, so there are fourfold accounts of profits and expenses. In the beginning of the first month of each quarter an account is rendered of the money which the manager has spent on the mine during the previous quarter, then of the profit which he has taken from it during the same period; for example, the account which is rendered at the beginning of spring is an account of all the profits and expenses of each separate week of winter, which have been entered by the Mining Clerk in the book of accounts. If the manager has spent the money of the proprietors advantageously in the mine and has faithfully looked after it, everyone praises him as a diligent and honest man; if through ignorance in these matters he has caused loss, he is generally deprived of his office; if by his carelessness and negligence the owners have suffered loss, the Bergmeister compels him to make good the loss; and finally, if he has been guilty of fraud or theft, he is punished with fine, prison, or death. Further, it is the business of the manager to see that the foreman of the mine is present at the beginning and end of the shifts, that he digs the ore in an advantageous manner, and makes the required timbering, machines, and drains. The manager also makes the deductions from the pay of the workmen whom the foreman has noted as negligent. Next, if the mine is rich in metal, the manager must see that its ore-house is closed on those days on which no work is performed; and if it is a rich vein of gold or silver, he sees that the miners promptly transfer the output from the shaft or tunnel into a chest or into the strong room next to the house where the foreman dwells, that no opportunity for theft may be given to dishonest persons. This duty he shares in common with the foreman, but the one which follows is peculiarly his own. When ore is smelted he is present in person, and watches that the smelting is performed carefully and advantageously. If from it gold or silver is melted out, when it is melted in the cupellation furnace he enters the weight of it in his books and carries it to the Tithe-gatherer, who similarly writes a note of its weight in his books; it is then conveyed to the refiner. When it has been brought back, both the Tithe-gatherer and manager again enter its weight in their books. Why again? Because he looks after the goods of the owners just as if they were his own. Now the laws which relate to mining permit a manager to have charge of more than one mine, but in the case of mines yielding gold or silver, to have charge of only two. If, however, several mines following the head-mine begin to produce metal, he remains in charge of these others until he is freed from the duty of looking after them by the Bergmeister. Last of all, the manager, the Bergmeister, and the two Jurors, in agreement with the owners, settle the remuneration for the labourers. Enough of the duties and occupation of the manager. I will now leave the manager, and discuss him who controls the workmen of the mine, who is therefore called the foreman, although some call him the watchman. It is he who distributes the work among the labourers, and sees diligently that each faithfully and usefully performs his duties. He also discharges workmen on account of incompetence, or negligence, and supplies others in their places if the two Jurors and manager give their consent. He must be skilful in working wood, that he may timber shafts, place posts, and make underground structures capable of supporting an undermined mountain, lest the rocks from the hangingwall of the veins, not being supported, become detached from the mass of the mountain and overwhelm the workmen with destruction. He must be able to make and lay out the drains in the tunnels, into which the water from the veins, stringers, and seams in the rocks may collect, that it may be properly guided and can flow away. Further, he must be able to recognize veins and stringers, so as to sink shafts to the best advantage, and must be able to discern one kind of material which is mined from another, or to train his subordinates that they may separate the materials correctly. He must also be well acquainted with all methods of washing, so as to teach the washers how the metalliferous earth or sand is washed. He supplies the miners with iron tools when they are about to start to work in the mines, and apportions a certain weight of oil for their lamps, and trains them to dig to the best advantage, and sees that they work faithfully. When their shift is finished, he takes back the oil which has been left. On account of his numerous and important duties and labours, only one mine is entrusted to one foreman, nay, rather sometimes two or three foremen are set over one mine.
Since I have mentioned the shifts, I will briefly explain how these are carried on. The twenty-four hours of a day and night are divided into three shifts, and each shift consists of seven hours. The three remaining hours are intermediate between the shifts, and form an interval during which the workmen enter and leave the mines. The first shift begins at the fourth hour in the morning and lasts till the eleventh hour; the second begins at the twelfth and is finished at the seventh; these two are day shifts in the morning and afternoon. The third is the night shift, and commences at the eighth hour in the evening and finishes at the third in the morning. The Bergmeister does not allow this third shift to be imposed upon the workmen unless necessity demands it. In that case, whether they draw water from the shafts or mine the ore, they keep their vigil by the night lamps, and to prevent themselves falling asleep from the late hours or from fatigue, they lighten their long and arduous labours by singing, which is neither wholly untrained nor unpleasing. In some places one miner is not allowed to undertake two shifts in succession, because it often happens that he either falls asleep in the mine, overcome by exhaustion from too much labour, or arrives too late for his shift, or leaves sooner than he ought. Elsewhere he is allowed to do so, because he cannot subsist on the pay of one shift, especially if provisions grow dearer. The Bergmeister does not, however, forbid an extraordinary shift when he concedes only one ordinary shift. When it is time to go to work the sound of a great bell, which the foreigners call a “campana,” gives the workmen warning, and when this is heard they run hither and thither through the streets toward the mines. Similarly, the same sound of the bell warns the foreman that a shift has just been finished; therefore as soon as he hears it, he stamps on the woodwork of the shaft and signals the workmen to come out. Thereupon, the nearest as soon as they hear the signal, strike the rocks with their hammers, and the sound reaches those who are furthest away. Moreover, the lamps show that the shift has come to an end when the oil becomes almost consumed and fails them. The labourers do not work on Saturdays, but buy those things which are necessary to life, nor do they usually work on Sundays or annual festivals, but on these occasions devote the shift to holy things. However, the workmen do not rest and do nothing if necessity demands their labour; for sometimes a rush of water compels them to work, sometimes an impending fall, sometimes something else, and at such times it is not considered irreligious to work on holidays. Moreover, all workmen of this class are strong and used to toil from birth.
The chief kinds of workmen are miners, shovelers, windlass men, carriers, sorters, washers, and smelters, as to whose duties I will speak in the following books, in their proper place. At present it is enough to add this one fact, that if the workmen have been reported by the foreman for negligence, the Bergmeister, or even the foreman himself, jointly with the manager, dismisses them from their work on Saturday, or deprives them of part of their pay; or if for fraud, throws them into prison. However, the owners of works in which the metals are smelted, and the master of the smelter, look after their own men. As to the government and duties of miners, I have now said enough; I will explain them more fully in another work entitled De Jure et Legibus Metallicis[17].
- ↑ 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 the Berghauptmann. 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 the Bergmeister. 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 the Geschwornen of Saxony had much more widely extended powers. The German Geschwornen were 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 term Praefectus Fodinae, the German Steiger having, 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 for area has 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 Cornish sett, or the American claim. The fundgrube of Saxony and Agricola's equivalent, the area 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 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 Metallorum Bergamptmann Mining Prefect. Magister Metallicorum Bergmeister Bergmeister Scriba Magister Metallicorum Bergmeister's schreiber. Bergmeister's clerk. Jurati Geschwornen Jurates or Jurors. Publicus Signator Gemeiner sigler Notary. Decumanus Zehender Tithe gatherer. Distributor Aussteiler Cashier. Scriba partium Gegenschreiber Share clerk. Scriba fodinarum Bergschreiber Mining clerk. Praefectus fodinae Steiger Manager of the Mine. Praefectus cuniculi Manager of the Tunnel. Praeses fodinae Schichtmeister Foreman of the Mine. Praeses cuniculi Foreman of the Tunnel. Fossores Berghauer Miners or diggers. Ingestores Berganschlagen Shovellers. Vectarii Hespeler Lever workers (windlass men). Discretores Ertzpucher Sorters. Lotores Wescher und seiffner Washers, buddlers, sifters, etc. Excoctores Schmeltzer Smelters. Purgator Argenti Silber brenner Silver refiner. Magister Monetariorum Müntzmeister Master of the Mint. Monetarius Müntzer Coiner. Area fodinarum Masse Meer. Area Capitis Fodinarum Fundgrube Head meer. Demensum Lehen Measure - ↑ 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= .76 = inches 16 = Pous = 12.13 inches 6 = Orguia = 72.81 inches. Roman
Uncia= .97 = " 12 = Pes = 11.6 " 5 = Passus = 72.81 " German
Zoll= .93 = " 12 = Weckschuh = 11.24 " 6 = Lachter = 67.5 " English
inch= 1.0 = " 12 = Foot = 12 " 6 = Fathom = 72 " The discrepancies are due to variations in authorities and to decimals dropped. The werckschuh taken is the Chemnitz foot deduced from Agricola's statement in his De Mensuris et Ponderibus, Basel, 1533, p. 29. For further notes see Appendix C.
- ↑ Subcisivum “Remainder.” German Glossary, Ueberschar. The term used in Mendip and Derbyshire was primgap or primegap. It did not, however, in this case belong to adjacent mines, but to. the landlord.
- ↑ Adversum. Glossary, gegendrumb. The Bergwerk Lexicon, Chemnitz, 1743, gives gegendrom or gegentramm, and defines it as the masse or lease next beyond a stream.
- ↑ Quadratum. Glossary, vierung. The vierung in old Saxon title meant a definite zone on either side of the vein, 3 lachter (lachter = 5ft. 7.5 inches) into the hanging-wall and the same into the footwall, the length of one vierung being 7 lachter along the strike. It 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 the Bergwerk Lexicon, p. 585, it would appear that the vein itself was not included in the measurements, but that they started from the walls.
- ↑ 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 of laissez-faire had 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 powers de jure have usually obtained them some recognition. In the rise of individualism, the apogee of the laissez-faire fetish 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 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 200 b.c., the period of most literary reference was from 400 to 300 b.c. Our information on the subject is from two of Demosthenes' orations—one against Pantaenetus, the other against Phaenippis—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—the Procurator 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 who work dumps of scoria, etc., and provides for payment to the administrator of the mines of a capitation on 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 Serie, 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-Strenegg, Deutsche Wirthschaftsgeschichte, Leipzig, 1879–1901; Transactions, Royal Geol. Soc. Cornwall vi, 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 position vis-à-vis with 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 (1066 a.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 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 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. - ↑ ?De Limitibus et de Re Agraria of Sextus Julius Frontinus (about 50-90 a.d.)
- ↑ Such a form of ownership is very old. Apparently upon the instigation of Xenophon (see Note 7, p. 29) the Greeks formed companies to work the mines of Laurion, further information as to which is given in note 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.
- ↑ The Latin text gives one-sixth, obviously an error.
- ↑ A symposium is a banquet, and a symbola is a contribution of money to a banquet. This sentence is probably a play on the old German Zeche, mine, this being also a term for a drinking bout.
- ↑ In the Latin text this is "three" - obviously an error.
- ↑ See Note 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.
- ↑ Opera continens. The Glossary gives schicht, the origin of the English “shift.”
- ↑ The terms in the Latin text are donator, a giver of a gift, and donatus, a receiver. It appears to us, however, that some consideration passed, and we have, therefore, used “seller” and “buyer.”
- ↑ See Note 29, p. 23.
- ↑ Decemviri “The Ten Men.” The original Decemviri were a body appointed by the Romans in 452 B.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.
- ↑ This work was apparently never published; see Appendix A.
END OF BOOK IV.