APPENDIX [From the Engineering and Mining Journal-Press, December 6, 1924] THE LAW OF MINES AND THE FREEDOM OF THE MINER (By T. A. Rickard) At first, in the dawn of civilization, all mines belonged to the ruler of the land. The natural treasures of gold and silver, more especially, were the property of the king, who exploited them with the labor of criminals and captives. The conqueror forced the subjugated people to work in the mines of their native land. Mining became associated with the most cruel phase of oppression, incompatible with the development of technique. So long as the laborers were slaves and the overseers were slave drivers, the winning of the metals continued to be merely an unintelligent grubbing in the ground. Slavery starved ambition and initiative and stifled invention. The Carthaginians compelled the natives of Iberia, now Spain, to work in their mines, and, in turn, the Spaniards impressed the people of Mexico and Peru as workers in the mines of the conquered countries. In ancient days it was the custom to enslave prisoners of war, but it was deemed proper-among the Greeks, for example-to reserve the best of them for occupations less debasing than forced labor underground. That was the worst that could befall a man; it was even more dreadful than being sent to the galleys. Tacitus says of the Gotini, a German tribe, that "to complete their degredation, they actually work in the iron mines." Nor is this view surprising, having regard to the conditions under which underground operations were conducted: in small holes, damp and dark, foul for lack of ventilation, lighted by an ill-smelling little lamp. Theophrastus, writing in 300 B. C., tells us how they mined on the island of Samos in his day: "Those who dig in the mines cannot stand upright at their work, but are obliged to lie down either on their backs or on one side; for the vein of the earth they dig runs lengthwise, and is only of the depth of 2 feet, though considerably more in breadth." The slaves at Laurion worked in excavations from 2 to 3 feet in width and height. Pliny describes how the fragments of ore were carried out of the mine "on the shoulders of the workers, night and day, each man passing them on to his neighbor in the dark, so that only those at the outlet ever see the light." Agatharchides, as quoted by Diodorus, in his description of the Egyptian gold mines in 170 B. C., speaks feelingly of the fate of the slaves. He says: "Of those condemned to this disastrous life, such as excel in strength of body pound the shining rock with iron hammers, applying not skill but sheer force to the work; these men, on account of the windings of the passages, live in darkness, and carry lamps attached to their foreheads. * * * As these workers can take no care of their bodies and have not even a garment to hide their nakedness, there is no one who, seeing these luckless people, would not pity them because of the excess of their misery, for there is no forgiveness or relaxation at all for the sick, or the maimed, or the old, or for woman's weakness, but all with blows are compelled to stick to their labor until, worn out, they die in their servitude. Thus the poor wretches ever account the future more dreadful than the present because of the excess of their punishment, and look to death as more desirable than life." It is no wonder that Galgacus, the British chief, besought his soldiers to fight fiercely against the Romans under Agricola by warning them of their fate if they failed; they would become subject, if conquered by the Romans, he said, "to tribute and mines and all the other penalties of slavery." The employment of slaves in mines survived to modern days. As late as 1719 a proprietor of lead mines in Missouri, named Renault, on his way to France, stopped at the island of Santo Domingo to purchase 500 slaves for employment 273 in his mines. On October 30, 1777, the Congress of the United States directed the Board of War to write to the government of the State of New York, recommending it forthwith to start work on the lead mines of that State, and promising, in case laborers were scarce, to supply prisoners of war for the purpose. Convicts were employed in the coal mines of Alabama and Kentucky less than 40 years ago. Indentured Chinese labor was brought to the gold mines of the Transvaal in recent years, but even this humane practice aroused resentment in England, because the idea of any kind of forced labor underground is repugnant to men of liberal thought. The work of mining is arduous and hazardous; it calls for strength and intelligence, a combination of qualities usually to be found only among free men. During the dark ages in which the miner was shackled, the technique of mining languished; when he won his freedom the art of mining was born. To the ancients in general a mine was treasure trove, a place of metallic riches that needed but to be gathered by the finder or by him who dispossesed the finder. It is probable that the idea of an ore deposit as a natural treasure was reinforced when the use of metallic currency was introduced, because the privilege of coining money has rested with the ruler of the land from time immemorial. This regalian right pertained more particularly to deposits of gold and silver, which were regarded as peculiarly the perquisite of the king. Thus the pharaohs exploited the gold mines of Nubia for themselves, Philip of Macedon worked the gold mines of Thrace on his own account, and the Roman emperors filled their private coffers with the treasure that came from the diggings of Dacia and Dalmatia. The Greek democracies adopted the idea of state ownership; Athens exploited the silver mines of Laurion for the citizens as a whole; the people of the island of Siphnos divided the wealth gained from their mines among themselves, annually; the tin and silver that the Phoenicians obtained in Iberia were deposited in the national treasury at Carthage. In the early days of the Roman Republic the proprietor of the soil was the owner of all that lay beneath, but this custom expressed an ignorance of the character of mineral land rather than a reasoned policy. When the Roman dominion spread across Europe the mines in conquered territory became part of the public domain, the ager publicus, to be exploited by the state, either directly or by means of lessees, who paid a tribute, usually a tithe of the product. Such taxes were farmed by publicans. Even in Italy the mines on private lands were treated as sources of public revenue, but the owners were accorded that right to exploit the mineral deposits. If ore was found on land that did not belong to the finder, he paid a tithe to the owner as well as to the state. However, it may be said safely that there was comparatively little mining in Italy in republican times, for the industry, according to Pliny, was distinctly discouraged by the Senate. EARLY LEASING NOT A SUCCESS The Romans, like their predecessors, operated the mines with slave labor; and in the main the work was done inefficiently. Then they tried a system of leasing, the lessee, of course, employing slaves, but supervising the operations himself. This leasing system proved disappointing, we are told, because the lessees extracted only the rich ore and neglected to safeguard the workings, in which respects they were only too sadly like the lesees of mines today. The stopes, it is recorded, were allowed to collapse and the levels were choked with waste rock, until economical work became impracticable. Thereupon the state again tried its hand; the workings were cleared and the stopes rendered safe by means of rock-walls; substantial improvements likewise were made on the surface; but even then the results were disappointing, for the Romans were poor miners and depended upon others for the skill needed to render profitable their mining and metallurgical enterprises. Moreover, their mines were on the frontiers of the empire, and therefore exposed to attack by the barbarians, so that when the Roman dominion began to collapse the mining industry was one of the first to suffer. GOLD AND SILVER PROPERTY OF THE STATE AT FIRST The Roman idea of regalian right, or mines royal, survived long after the imperial eagle came fluttering to earth; indeed, the claims of the Caesars to the ownership of metals in the earth have persisted to modern days. Under early English and German law any discovery of precious metals accrued exclusively to the crown. Later this claim was modified if the ore contained the base metals as well as gold and silver. Such deposits of complex ore belonged to the owner of the soil, but were subject to a tax, which, being payable into the king's treasury, was known as a royalty, a word in which is preserved the idea of regalian prerogative. Later the rights of the landlord gained recognition, as in Cornwall, where the tinner paid a part of his product to the owner of the land, instead of paying it all to the king. The origin of these prescriptions is obscure; some commentators trace them from the Roman custom, others ascribe them to independent usage in England. During the Middle Ages the idea of property in mines found expression in two conflicting theories. According to the first, the ruler was the absolute proprietor of ore deposits, and the owner of the soil had no rights save to a reasonable indemnity for any damage done by mining operations. According to the second theory, the ownership of the surface carried with it the ownership also of the mineral resources underground; but if the owner was unwilling or unable to exploit such resources he had to permit another to do so, both of them, however, being obliged to recognize the sovereign by the payment of a tithe. This, in effect, brought the two theories into accord.1 MEDIEVAL STRUGGLE FOR MINING RIGHTS In Germany, the idea of regalian right was introduced at the time when, in the eleventh century, the assumption of the crown of the Caesars coincided with the revival of Roman law. The code of Justinian and the constitution of Gratian were cited by the Lombard commentators in support of the pretensions of the German emperors, who thereupon took the miners under their peculiar care. The history of mining during the medieval period records the struggle for an adjustment of, rights as between the emperors and the feudatory princes, and as between these landlords and the miners, who, concurrently, became segregated into a class that was accorded special exemptions, duties, and privileges, in consequence of the skill acquired in the winning of the metals, and the increasing demand for the metals themselves. A period of migration marked the expansion of German mining between the eighth and twelfth centuries. This migration, stimulated by the discovery of silver ore on the receding eastern frontier, created novel legal conditions, among which was a scramble for the right to collect toll on the produce of the new mining districts. Kings and potentates of various degrees, including bishops, assumed possession of the mines, and operated them on their own account with the labor of their serfs. Others leased the mines as they had leased their agricultural lands, the lord either reserving for himself a share in the mine or taking a fixed proportion of the output. He, in turn, had to pay tribute to his overlord, the petty princes to the dukes and kings, and these in turn to the emperor himself. A weak lord was compelled to concede rights to his superior; a strong one was allowed to share in the regalian exactions. Some measure of order was brought out of this confusion by Frederick Barbarossa who, in the twelfth century, established sundry principles that became established by usage; of these principles four were fundamental: (1) Mineral ownership was separate from surface tenure; (2) the sovereign was the sole proprietor of the mines, and the only person privileged to grant to others the right of working them; (3) if he did not care to operate the mines himself, he retained a part proprietorship in the proceeds; and (4) the management was appointed and controlled by him. More important, however, than the treatment of the mines as property was the treatment of the miners as human beings, for it was they who by their skill made the ore deposits a source of industrial wealth. The beginning of a recognition of the miner's better status in the community is to be seen in the charter granted by the Bishop of Trent in 1185, by virtue of which all the miners in his domain were accorded “the right of tarrying, laboring, and going and coming in the mountains, in the city, and wherever they might wish, freely and without hindrance." Still more important was the right given the miner to "a measured plot of ground for pursuing his discovery of ore." The miner had ceased to be a serf; he was now an artisan. Students of mining law do not agree as to the origin of the rights secured by the miner, in Germany and France, for example, during the medieval period. They agree as to the result, but not as to the cause, except that in general the rulers had discovered that if the production of metals was to be stimulated it 1 The Victoria History of Cornwall, article on mining by George R. Lewis. had become necessary to treat the miner differently from an agricultural laborer. To work the mines properly it was imperative that the men be free from interruption and that skilled workmen be attracted to the enterprise. In consequence, the Emperor and the feudal lords beholden to him were pleased to commute their rights to the mines for a part of the produce, and to throw open the mines to a special class of laborers under a series of charters by virtue of which they gained an increasing measure of independence. The competition between the territorial magnates for an adequate supply of skilled workers had the effect of aggrandizing the miners as a class; they became free not only from feudal subserviance but also from military service; they were made answerable to a special court, in order to protect them from the ordinary magistrates with whom in the course of their prospecting they were likely to come in conflict. The effect upon the mining industry was immediate; when the miner ceased to be rated as an agricultural laborer the work of mining began to be something better than a mere grubbing in the ground; a technique was developed. PEGGING CLAIMS IN CORNWALL A similar change was in progress in England. At the beginning of the twelfth century the social and political status of the miner was that of the villein, or feudal serf. He was tied to the land; he was subject to the payments and services exacted by his lord; he gave part of his time to agriculture; his occupation as a miner was not specialized as yet, because it was not performed with special skill. In Cornwall, however, a custom had become established that had the effect of separating the miner from the ordinary agricultural laborer; this custom was known as bounding; it conceded the miner the privilege of searching for tin wherever it might be found. The poorest villein could become his own master simply by pegging a claim and registering its boundaries (hence the term "bounding") with the proper official, who, in 1198, became known as the warden. He was appointed by the King, and issued regulations that had the effect of making the miners accountable to him rather than to the ordinary courts, the result being to give the tin districts, or stannaries, a special political character. The output of tin at this time, in the reign of Richard II, had increased to 450 tons per annum, so that it represented the major part of the revenue from Cornwall. To the growing importance of the industry the stannaries owed their first charter, granted by King John in 1201. For the English miners this charter was not less momentous than the Magna Carta, which the same King had to sign 14 years later; it confirmed the custom of "digging tin and turfs for smelting at all times, freely and peaceably and without hindrance from any man, everywhere in moors and in the fees of bishops, abbots, and counts. * * * and of buying faggots to smelt the tin without waste of forest, and of diverting streams for their works, and in the stannaries, just as by ancient usage they have been wont to do." Moreover, by removing the miners from the jurisdiction of the ordinary courts to that of the warden, they escaped finally from their feudal serfdom, and ceasing to be villeins, became freemen and artisans. The charter states that the privileges are granted because "the tinners are of our farm and always in our demesne." This statement indicates the idea underlying the momentous change in the miner's status: The King, by asserting his right to land on which ore had been discovered, claimed the discoverer as his own retainer, and thereby freed the miner from his feudal obligation to the previous owner of the land. ENGLISH KINGS HELP MINERS Furthermore, the King, presumably, desired to encourage mining as a source of revenue, and to accomplish this purpose he found it advisable to give the miners greater opportunity to search for the tin ore and exploit it without hindrance from their feudal masters. These, naturally, opposed the charter, and succeeded for a time in causing it to be revoked. King John had to give way to the barons in this as in other matters, but his successor, Henry III, restored the rights granted to the miners by John's charter of 1201, and in 1305 Edward I issued regulations that had the effect of further differentiating the tinners from the rest of the community. These regulations continued in force as the written constitution of the stannaries until within a century of our own day. While the Cornish tinners were working their way to freedom, their comrades elsewhere in England were winning similar recognition. In the Forest of Dean, the iron miners were given a charter by Edward I by which the right of free mining was accorded to every dweller in the forest, and with it went the right of access for his ore to the king's highway, so that the road to market was made open. In the lead-mining district of the Mendip Hills, the territorial magnate, who was the Bishop of Bath and Wells, tried to deny the rights of the miners, whereupon the king, Edward IV, caused an inquiry to be made, the result of which was to embody the miners' customs into written law. The right to dig ore was allowed to anyone who first made application to the landlord and who would agree to pay "every tenth pound of lead blown at his hearth," or smelting furnace. The length of a miner's claim was the distance he could throw an ax. FIFTY-EIGHT YARDS ALONG THE VEIN In Derbyshire, it was the custom for the miner," as soon as he found ore, to fix a cross in the ground as a mark of possession; then he gave notice to the barmaster, who was analogous to the Bergmeister in Germany or the warden in Cornwall. This official in Derbyshire was "chosen by the miners and merchants to be an impartial person between the lord of the field and the miners, and between the miners and merchants." The barmaster received "a measure of ore," and thereupon allowed the miner two meers along the vein, a meer being 29 yards long and 14 yards wide. The origin of these unwritten laws is obscure. In the mining districts it is said that they are derived from usage time out of mind. The charters that were granted by the kings in the thirteenth century appear merely to have confirmed immemorial custom, just as the American mining law of the nineteenth century was based upon the regulations that had been formulated by the diggers in the mining districts of California and Nevada. The creation of special courts for the miners in medieval England had the effect of placing the miner and his fellows, within specified districts, "in a state within a state," as Lewis says. They paid their taxes as miners, not as Englishmen; they were subject to no feudal levy; they took orders from the king only through the warden. Apparently any villein could obtain complete release from serfdom simply by pretending to be a miner, and in that capacity proceeding to dig into the ground of his feudal lord or of his lord's neighbor. The reasonable interpretation for this anomaly is, as Lewis suggests, that the sovereign claimed all metal mines and enforced his claim wherever practicable. In the long struggle between the landlord and the miner, it suited the exigencies of regal revenue that the king himself should be on the side of the miner and against the feudatory princes on whose lands the ore was discovered. Out of the contest over legal rights came the idea of mining as an occupation to be conducted under the immediate supervision of the state; to this idea the miner owed his liberation from serfdom and his segregation into a class of free laborers made exempt from sundry forms of taxation. Thus he became the possessor of privileges that had the effect of raising his status in the medieval community. At the same time it is natural that these concessions should have exasperated the landlords, and it is not surprising that the miners occasionally overstepped their privileges, and caused trouble thereby. In 1237 the English king, Henry III, heard a complaint from the clergy that the miners of tin, lead, and iron were digging in land that belonged to the church. Eighty years later the people of Devon complained that the miners were destroying their tilled fields, woods, and gardens; to which the tinners replied that the local magnates "were impleading them for pleas of serfs." Evidently the miner's social status was still challenged in places. MINERS TAKE ADVANTAGE OF THEIR POSITION In 1318 another complaint was made from Devon that the stannary men assaulted citizens outside the boundaries of the tin districts and yet refused to be brought to justice, and when approached by the bailiffs they imprisoned these officers of the law until a ransom was paid. Apparently the wine of freedom had gone to the heads of the miners, and they had adopted an aggressive attitude. The struggle continued. In 1347, again from Devon, into which tin mining had spread from the adjacent county of Cornwall, comes complaint to the King that "under cover of the King's charters the tinners claim all manner of lands, arable or otherwise, overturn fields and woods, and turn the courses of streams, whereby the land is become wasted and barren." To the ordinary citizen the miner had become a public nuisance. The troubles of the Devonshire tinners 2 Compleat Mineral Laws of Derbyshire, 1734. 3 The Stannaries, by George R. Lewis, p. 75. |