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.