A HISTORY OF GLOUCESTERSHIRE 



Few subjects are so little known or ap- 

 preciated as the special position and privileges 

 of the mediaeval free miner and the relation 

 in which he stood to the rest of the commu- 

 nity. The origin of these privileges is obscure. 

 Excluding England, two theories prevailed in 

 the Middle Ages with regard to property in 

 mines. 1 By the first the sovereign was looked 

 upon as absolute proprietor, and the landowner 

 had no rights, save to indemnification for property 

 damaged. By the second, ownership of the 

 surface carried with it a right to the mines 

 beneath, but a third person was given power 

 to acquire an interest when the owner was 

 unable, or unwilling, to exploit them. In both 

 cases the enjoyment of mines was subject to 

 regulations from the Crown, which also com- 

 monly established a claim to one-tenth or other 

 proportion of the produce, so that in practice 

 the two theories might coincide. 



In Germany, 2 the idea of a royalty in mines 

 is supposed to have made its first appearance and 

 to have obtained firmest footing ; but even there 

 no claims appear until the close of the eleventh 

 century, 3 when the revival of Roman law co- 

 operated with the assumed succession of the 

 emperor to the rights of the Caesars, to give 

 currency to the claims of sovereignty over mines. 

 According to the Justinian Code, 4 one might 

 work a gold mine upon condition of conforming 

 to certain regulations and of giving preference in 

 sales to the imperial fisc. By a constitution of 

 Gratian, 6 also, a general permission had been 

 given to take marble from the land of private 

 persons upon payment of a tenth to the owner. 

 The interpretation of these rules by the Lombard 

 commentators 6 made them applicable to mines 

 of all descriptions and in all countries, and the 

 emperors in the twelfth century succeeded in 

 enforcing their pretensions and in taking all 

 mines under their peculiar care. 7 



It was found, however, that attempts to treat 

 the miners as so many agricultural labourers 

 would be disastrous. The technical difficulties 

 connected with mining made it essential that 

 the men be secured from interruption, and also 



1 ' A Sketch of the Origin of Mining Laws in 

 Europe,' by J. Hawkins, Trans. Roy. Geol. Soc. Corn. 

 vi, 84-90. 



"Observations on the Mining Law of Germany, 

 by C. Lemon, Trans. Roy. Geol. Soc. Corn, vi, 1 50- 



72- 



3 Hullman, Geschichte ties Regalien, 62 ; Eichorn, 

 Deutsche Slants und Rechtsgeschichte, ed. 1834, ii, 424. 



1 Lib. xi, tit. -]b. 



'Ibid. 3; Theodosian Code, lib. x, tit. 19; 

 1. i, 8, 10, 11, 14. 



6 See extracts from the gloss of Accursius and the 

 Summa of Azo printed in Smirke, Vice v. Thomas, 

 App. 104. 



7 See Charters of Mines, printed in the Sficilegium 

 Eccksiasticum ; Luenig, Reichs. jirchiv. and cited by 

 Gmelin, Geschichte des Teutschen Bergbau, 220, 241. 



that skilled workmen be called in by special 

 grants of privileges. The upshot was that the 

 emperor, and his imitators, the lesser princes, 

 gradually commuted their mining rights for a 

 proportion of the produce, and threw open the 

 mines to all comers under a series of charters, 8 

 the provisions of which we shall find exemplified 

 in the main by the privileges of the Dean miners. 

 Germany's policy was followed some centuries 

 later by France, the edicts of Charles VI 9 and 

 Louis XI 10 removing the miner from the power 

 of the landlords and granting privileges to 

 prospectors. 



In England, in the same general period, we 

 meet with similar codes, applied, however, not to 

 all mines, but to several scattered communities 

 the lead miners of theMendipHills, 11 Derbyshire, 12 

 and Alston Moor, 13 the iron and coal miners of 

 the Forest of Dean, and the tinners of Cornwall. 14 

 It would simplify matters, could we regard these 

 codes as descended from Roman law, as was 

 probably the case upon the continent. This 

 explanation, however, is almost certainly inad- 

 missible. The early references to the English 

 miners' privileges give the impression of unwritten 

 customary law, rather than of rights formally 

 conferred by charter. 16 In Derbyshire the lead- 

 miners' customs rested upon immemorial usage, 16 

 which Edward I merely confirmed in I288. 17 

 The Alston miners received a charter from 

 Henry V, 18 but, again, nothing was granted which 

 had not been previously enjoyed. The same 

 may be said with regard to the Cornish and 

 Devonshire tinners, whose liberties, first embodied 

 in a royal charter of I2OI, 19 and later added to 

 in I3O5, 20 seem for the most part to have rested 

 upon tradition. What also seems strange is that, 

 although these mining camps were operated 

 under conditions of great liberality to the adven- 

 turer, all mines outside their limits should be the 



8 See von Cancrin, Grunds'dzze des Teutschen Berg- 

 rechts, 149. A specimen charter is that of Iglau, 

 Pcithner, Versuch, uber die Natilrliche und Politische 

 Geschichte der Bohmischen und M'drischen Bergwerke, 

 App.; Jare, Voyages Metallurgiques, iii, 461-511 ; 

 Reyer, Zinn, 35, 53, 54, 56, 79. 



9 Recueil des Anciennes Lois Francoises, vii, 386-90. 



10 Ibid, x, 623 ; 'The Mining Laws of France,' by 

 M. Migneron, Trans. Roy. Geol. Soc. Corn, vi, 239-58. 



11 Houghton, The Comfleat Miner, pt. iii. 



" Esch. Enr. Accts. 16 Edw. I, No. 34 ; Add. MS. 

 6682, fol. 65 ; Comfleat Mineral Laws of Dei b. 



"Pat. 4 Hen. V, m. 8 ; 30 Edw. I, pt. iii, m. 23 ; 

 Par!. R. i, 64. 



14 Pearce, Laws and Customs of the Stannaries. 



"'The Origins of Mining Law,' by J. Hawkins, 

 Trans. Roy. Geol. Soc. Cornui. vi, 90. 



16 It is said that William I expressly refrained front 

 disturbing them (Add. MS. 6682, fol. 197). 



17 Es.-h. Enr. Accts. 1 6 Edw. I, No. 34. 



18 Pat. 4 Hen. V, m. 8. 



19 Chart. R. 36 Her. Ill, m. 18. 

 w lbid. 33 Edw. I, m. 40, 41. 



220 



