82 BOOK IV. 



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 



8 HisxoRicAL 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 indivi- 

 dualism ; 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 in- 

 fluence 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 Over- 

 lord, 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 n 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 



