BOOK IV.

The third book has explained the various and manifold varieties of veins

and stringers. This fourth book will deal with mining areas and the

method of delimiting them, and will then pass on to the officials who

are connected with mining affairs[1].

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 [Greek: orguia], 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].

[Illustration 79a (Square with lengths and area): Shape of a Square

Meer.]

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.

[Illustration 79b (Rectangle with lengths and area): Shape of a Long

Meer or Double Measure.]

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 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.

[Illustration 79c (Rectangle with lengths and area): Shape of a Head

Meer.]

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.

[Illustration 80a (Rectangle with lengths and area): Shape of a Meer.]

The area of every other meer consists of two double measures, on

whichever 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.

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 meer 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.

[Illustration 80b (Rectangle with lengths and area): 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 head-meer 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 profunda_ 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

head-meer, 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.

[Illustration 86a (Rectangle with lengths): Shape of a Head-Meer.]

[Illustration 86b (Square with lengths): Shape of every other 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.

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.

[Illustration 87 (Rectangle with lengths and area): 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

meers, 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.

[Illustration 89 (Rectangle with lengths and area): 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 gratuitiously 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 Himmelisch Hoez, 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, however,

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 head-meer. 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 defined 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; in 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 Tithe-gatherer 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, shovellers, 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].

END OF BOOK IV.

FOOTNOTES:

[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 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 _Bergmeister's schreiber_ Bergmeister's clerk.

Metallicorum_

_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_ _Muentzmeister_ Master of the Mint.

_Monetarius_ _Muentzer_ Coiner.

_Area fodinarum_ _Masse_ Meer.

_Area Capitis Fodinarum_ _Fundgrube_ Head meer.

_Demensum_ _Lehen_ Measure.

[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_ = .76 inches

16 = _Pous_ = 12.13 inches

6 = _Orguia_ = 72.81 inches.

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. 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.

[3] _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.

[4] _Adversum_. Glossary, _gegendrumb_. The _Bergwerk Lexicon_,

Chemnitz, 1743, gives _gegendrom_ or _gegentramm_, and defines it as the

_masse_ or lease next beyond a stream.

[5] _Quadratum_. Glossary, _vierung_. The _vierung_ in old Saxon title

meant a definite zone on either side of the vein, 3-1/2 _lachter_

(_lachter_ = 5 ft. 7.5 inches) into the hangingwall 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.

[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 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, Mediaeval 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 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--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

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,

_Beytraege zur Geschichte des Teutschen Bergbaus_, Halle, 1783;

Inama-Sternegg, _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-a-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.

[7] ?_De Limitibus et de Re Agraria_ of Sextus Julius Frontinus (about

50-90 A.D.)

[8] 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.

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

[10] 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.

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

[12] 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.

[13] _Opera continens_. The Glossary gives _schicht_,--the origin of the

English "shift."

[14] 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."

[15] See Note 29, p. 23.

[16] _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.

[17] This work was apparently never published; see Appendix A.