Extracted from – ‘A Treatise on the Law of Mines & Minerals'. By William Bainbridge, F.G.S. 1856. Pages 556-74
The peculiar customs of the above counties apply exclusively to mines of tin, in the same manner as those of Derbyshire are only applicable to lead.
The tin mines of Cornwall and Devon must be ranked amongst the most ancient in Europe. Their existence and prosecution seem coeval with the first records of civilization.
Like all mining customs, the origin of those of the Stannaries is involved in great obscurity. It would seem, however, that the tin of these counties has, in all earlier ages, been claimed as part of the royal domain. It is quite clear from the terms of the charters of Edward the First, that it was then considered to belong exclusively to the Crown. By those charters, the King granted liberty to the tinners of Devon and Cornwall to dig tin everywhere in the lands, moors, and wastes of the Crown, and of all other persons whomsoever in the two counties.
It was contended, in a case cited below, that the custom should be regarded before Cornwall or Devon were parts of England, rather than a common custom within a certain district. But the argument was held to fail both in historical certainty and in legal authority. Such a claim would amount to imperium in imperio. (an order within an order). It may be thought probable that these mining rights are descended from a very remote antiquity, even from the times of Tyre and Sidon, surviving all changes of conquest, language and race, and recognised by successive conquerors as provisional laws. Such, indeed, was the actual practice of the Romans, who confirmed the rights of previous mineral owners, and claimed only the rights of the government that was over-thrown. But all claims of this kind, whatever may be their origin, can only exist as customs incorporated into a new social system, and not as a ruin of the ancient fabric. The law of England allows no supremacy of this kind. It tolerates a lexi loci as a reasonable usage, and it only admits the written Pandects of Justinian and the decretals of Gregory in the same humble garb of custom.
The privileges thus conferred upon the tinners of the western counties were afterwards regulated by local parliaments or convocations. We may first notice those of Cornwall.
The Stannary Parliaments of Cornwall are summoned and presided over by the Lord Warden or Vice-Warden, who are officers of the Duchy. These assemblies consist of twenty-four representatives returned in equal numbers from each of the Stannaries of Foymore, Blackmore, Tywarnhaile, and that of Penwith and Kirrier, and who are generally some of the principal gentlemen of the county. Sixteen of these Stannators form a binding majority. They are returned by the mayors of the four Stannary towns, and they select, during their sittings, as many assistants from those practically concerned in tin works as they think proper, who form a lower house of convocation. The customs of this county have been ascertained at various times by convocations thus held successively in the 22 James I, (1625); 11 Charles I (1636); 2 James II (1685); 2 Anne (1704), and 26 George II (1753).
The right of working tin mines was originally conferred upon all free tinners upon the render of a certain proportion of the minerals raised to the owner or lord of the soil. This proportion is called toll tin, and is usually one-fifteenth of the produce. By particular custom it amounts to one-tenth.
But it could not be supposed that adventurers in search of tin mines should continue to exercise their rights over such valuable property in the same manner as the occupiers of a common quarry, or as if they were only interested in the common minerals of a public waste. The attainment of all metallic ores, even in those remote times, required some expenditure and labour, and was liable to fluctuations of success and misfortune. It thus became necessary to prevent other adventurers from reaping the profits discovered by the skill and labour of the successful miner. From this source, therefore, may be traced the origin of tin bounds, by which, as in Derbyshire, and the Forest of Dean, the adventurer acquired an exclusive and indefeasible title to the property proposed to be explored, and was, in return, restricted in his operations within defined limits.
The manner of acquiring tin bounds has been often defined by the local parliaments. Any tinner is allowed to bound any unappropriated waste lands, or any several or inclosed lands which have been formerly waste land, and subject to the custom, by delivery of toll tin to the lord of the soil. In all lands exempt from the custom, the tin must be considered to have been appropriated to the owners of the soil. The assessionable or conventionary manors of the Duchy of Cornwall are equally subject to the custom. In lands not subject to the custom of bounding, the right to tin mines is regulated by the general law of the realm.
All tin bounds generally consist of about an acre of land, and are required to have four corners, and to be defined by twenty-four turfs or stones, six to each corner. There may be a side bound, generally of a triangular form. The shape of a bound is thus delineated:
Every bounder is required, however, to proclaim at the next Stannary Court the date his possession, the names of his partners, and of the person who cut the bound, and the limits. If this is not complied with, the boundary is void. The same proclamation must be made in the two following Courts, and posted up in the Court. Any person disputing the title of the bounder must forthwith proceed to resist it by an action of trespass. Notice, in writing, of the cutting was originally required to be given to the owner of the soil, or his agents, within one year, and toll tin to be delivered within three years, or the bounds to be effectually worked (1743). But it was afterwards required that all future bounds should be void unless three months’ notice in writing, previous to the cutting, be given to the owner of the soil, and that if the latter should think fit to cut the intended bounds to his own use, he may, within three months after notice, proceed to do so; but in case of neglect, the bounder, upon proof of notice, may, after three months, cut the bounds and establish his title in the usual way (1753). This provision, of course, effectually prevented the acquisition of many new bounds.
If the claim of the bounder is not successfully resisted, he then becomes, after the competent period, entitled to his writ of possession. The right of the bounder is then absolute, and it may be exercised without any other compensation to the landowner than the toll tin. The peculiar property thus acquired constitutes chattels real, and devolves upon the personal representative of the owner for the time being, subject to the payment of debts and legacies, and to absolute disposition by deed or will (1605).
But if the bounds be unworked for twelve months, any other tinner may, by notice to the owners and declaration on oath, of the limits, owners, time and manner of notice, within two months afterwards, be permitted to work the bounds, on payment of the usual farm, and upon giving a bond for the effectual and proper working of the bounds, on breach of which the owner may enter again (1625 & 1636).
All bounds also require to be annually renewed. This ceremony is preformed on specific saint days, and consists in cutting a turf from each corner, and placing it on the adjacent hillocks; it is also declared in whose names the bounds are renewed. But if the day of renewing is suffered to pass, the bounds may be afterwards effectually renewed, if no tinner has previously made a new title to them (1625). It is also provided, that if a keeper of any bounds for another person or a partner shall suffer bounds to be unrenewed, without reasonable warning to the other owners, any new claim or cutting shall enure for the benefit of the old owners, not privy to any fraud, in exclusion of offending partner. Any keeper or other person guilty of fraud in cutting new bounds, in such cases, or any keeper being unwilling to show the limits of the bounds to the owners, or defacing the bounds, is liable to a penalty of £50. A partner guilty of fraud is also liable to a penalty of £20. A bounder, renewer or keeper neglecting upon request to show the limits to the owner of the soil or his agent on the day of renewal, is liable to a penalty of £20 (amended 1753).
An owner of bounds who has been in possession for a year and a day cannot be dispossessed or disturbed by any order, injunction, or any other proceeding except a verdict. If neither party has been in possession for that period, the party first acquiring possession shall continue to retain it till verdict is given against him, but the farm tin in the mean time is to be sequestered and deposited in different hands (1625 & 1636).
The owner of the bounds often demise them to others, subject to the payment of farm tin or tin dues. But the bounds still continue liable to the render of toll tin to the owner of the soil, and the bounder himself is responsible for its being rendered. Farm tin is an ascertained payment to the bounder of one-twelfth of the remainder, or, by peculiar custom, of one-tenth. It is stated by a recent writer on this subject, that the owner of the soil may elect to take the bounds himself, or even demise them to others, subject to the usual payment (Basset’s Letter on the Bounding Custom, 1839. But see Pryce’s Min. Cor. Chap. III. There is no provision of this kind in the lex scripta). If the bounds are let for one chosen by the working partners, another by those not working, and the third by the steward of the Court (1625, 1636 & 1743).
Any partner is permitted to contribute his proportion of any mining materials which are required instead of a money payment, and the value of such materials is to be fixed by a majority at the time the accounts are passed, of which one week’s notice is always to be given to each partner or his agent (1743).
Every partner is required to give notice, in writing, of the name and habitation of any person purchasing his share, and notice must be given by all parties of the persons appointed to manage on their behalf.
The creditors and labourers of a firm can only sue the partners who contracted with them, subject, however, to contribution amongst themselves, for which their proportion of the tin may be sequestrated till the matter be tried (1636). Every tinner defrauding his partner to the amount of one-shilling (5p) is liable to a penalty not exceeding £50 (1636).
Several regulations are made with respect to blowing, and the modern mode of smelting tin, the removal of tin from smelting houses, and the periodical coinage of tin. By a late statute, however, the coinage of tin is altogether dispensed with, and the duties abolished (1838).
Tinners are free from all taxes and tolls in selling their goods at fairs or markets (1625 & 1636), and from all tithes in respect of their wages or profits (1625 & 1636).
Tinners may carry an adit for the water through the bounds of any other persons in wastes without leave, but all tin which may be discovered must be left for the owners of the bounds. But this privilege does not extend to lands held in severalty (1636).
Any person using violence, and forcibly taking away any tin from any work, is liable to pay double the value, and to be fined £5 or £20 (1636).
Any person suspected, either in several or waste lands, of working tin in the lands of others, may be complained against to the vice-warden, who may order an inspection by three different persons. An action of trespass may be brought against any persons persisting to work wrongfully, or refusing to refund the tin so carried away. The owners of adjoining lands or mines may also go down to examine the workings of others, and to solve any doubt as to trespass. In cases of resistance, an injunction may be obtained for restraining further operations (1685, repealed and amended in 1753).
No vice warden, steward, bailiff, attorney, lawyer, or any other officer in the Stannary Courts, nor any man of power, nor their children, clerks, servants or friends in trust for them, are to be made owners in any tin works in litigation. All rights so disposed may be forfeited to the poor. A penalty is affixed to the offence of maintenance (1625 & 1636).
No person is entitled to spoil or divert any waters running to houses for the service of the family, nor from any ancient mill; and any person disturbing any running water out of malice is liable to a penalty of £5 (1753). If any lands be overflowed by streamers suffering their stones and gravel to fall into rivers, and the streamer shall not upon two day’s notice clear the river so as to prevent the overflow, he is liable to damages and costs occasioned, and to a penalty of £5 (1753).
By 1532 and 1536, it was enacted upon complaint of the inhabitants of Plymouth, Dartmouth, Teignmouth, Falmouth and Fowey, that no persons work stream tin works in the two counties near any fresh waters, rivers or low places, descending to those ports, nor unless the owner or washer shall make sufficient hatches and ties (levels) in the end of the buddles and cords, to keep the gravel and rubbish from the rivers and water-courses. A penalty of £20 is imposed upon such offenders, and a fine of forty marks by the custom.
The right to divert water for the use of the tin bounds is affirmed in the charters of John and Edward I. The tinners are empowered “divertere aquas – sicut consueverunt.” The practice, as shown by the Court Rolls, has been extensive in both counties.
This right is supposed to have been much impaired by a late case at nisi prius (Bastard v. Smith). In that case, which occurred in Devon, the custom claimed a right not only to divert water from any stream, but to dig trenches in any lands for the watercourse. The trenches had been made through the lawn, garden and woods of the plaintiff. Tindal, C.J., in his address to the jury, gave no opinion on the validity of the custom in point of law, but, with respect to its existence in fact, he said, it interfered so much with the rights of private property, as to require strong evidence for its support. The jury were not called on to say whether it was a reasonable custom or not, for that was a matter of law not submitted to them by the pleadings; yet they might look to its nature as affecting the evidence required for it. They were not to conclude that the inhabitants of a large district surrendered their rights over their own soil, unless repeated acts of exercise were proved, with acquiescence. The jury found against the custom.
It has been inferred from this case, that such a custom cannot be claimed in any modified manner. But if it can be found to exist as a matter of fact, there seems to be no ground for that conclusion. It is stated that such a custom would probably be found to exist in Cornwall where bounding is more practiced. In point of law, it is by no means determined that the custom, in its most enlarged sense, would not be valid. For such a custom, once reasonable, but afterwards becoming grievous and oppressive, is no less of the nature of an inheritance, which cannot be taken away, except by act of parliament. The custom of bounding may be considered oppressive with respect to inclosed lands. But its origin was reasonable, and the acts of the landowners themselves have rendered it grievous.
The customs of the Stannaries of Devon have been also partially ascertained by the local parliaments of that county.
These parliaments are composed of jurors returned by each of the Stannary Courts of Chaggeforde, Ashburton, Plympton and Tavistock. Each of these Courts return twenty-four jurors, whose united acts bind the rest of the county.
The written customs were determined in this manner in parliaments held in 2 Henry VIII. (1510); 24 Henry VIII (1533); 25 Henry VIII (1534; 6 Edward VI (1553); and 16 Elizabeth I (1575) (See Pearce’s Stannary Laws, 8,1.). Their provisions are very similar to those of Cornwall, though they are not conveyed in equally intelligible language or perspicuous order.
The leading points of difference seem to be, that the tin bounds of Devon do not constitute personal but real estate, subject to all the usual incidents; the removal of bounds are to take place between the feast of St. Peter and Michaelmas, and the new bounds to be made between Michaelmas and All Saints, in the presence of four or five tinners, subject to several special and some contradictory provisions; and the tinner is not to work in or under any bona fide meadow, orchard, garden, mansion-house, buildings or cartilages belonging to it, or tillage land during the growth of any corn, nor destroy any timber trees to the number of twenty, of the growth of twenty years, without the consent of the owner and tenant, subject to a penalty of £5 and treble damages. It is stated to be the custom in this county to give no toll tin to the landowner, or any other compensation. There is great reason for believing that such a custom could not be supported (Rogers v. Brenton, infra.).
The custom of tin bounding, which has in recent times fallen into some desuetude, has lately been much discussed, and particularly with reference to the manner in which the bounds are preserved as property.
It is quite clear, that a person unlawfully dispossessed of actual possession of tin bounds can recover them in an action of ejectment.
A mine was defended against the landowners as lying within certain bounds called tin bounds. The bounds had been removed for a period beyond living memory, and the mine had formerly been worked by the bound-owners. In 1834, the defendant had for some months tried to discover ore, and then abandoned the mine, and removed the machinery. In 1835, the plaintiff granted a set to another person, who was successful, and who was forcibly expelled by the defendant. The first trial as nisi prius (a court that tries questions or fact before one judge) failed for not presenting the interest of the bound-owner to the jury as depending on the custom. At the second trial, it was left to the jury to say whether the custom gave an easement only, or a right to enter and work, or such a right as might, for the purpose of getting tin, exclude the lord from the possession. It was put as a matter of fact; but it was stated that, if it turned out to be a matter of law, the Court above would deal with it. The jury found that the bound-owner had a right to the mine, and not a mere easement; that the bounds were immemorial; but that they had not been properly kept up. A verdict was then entered for the plaintiff, which was not disturbed.
But the custom will not preserve the bounds, unless the mines are actually worked. It has been usual for the bound-owners, on ceasing to work, annually to renew the bounds by turning up a turf at the four corners, as above mentioned; and bounds in this state have long been subjects of sale, settlements and devises. In a late important case, the defendant contended that the plaintiff, the alleged bound-owner, could only continue his right, under the custom, to work the mine by continued operations, and that the annual renewal was only designed to preserve and identify the boundaries. The evidence of professional persons differed, even as to the necessity of any annual renewal at all. Lord Denman, in giving the judgment, after adverting to the resolution in Plowden, which maintains the right of all proprietors, without reference to any county or district, to all the mines within their lands, except those of silver and gold, said that the custom of bounding, though a strong invasion of private rights, was reasonable, and prevented the landowner from locking up property which was of eminent benefit to the public; but that the right cannot be preserved without the real prosecution of the mine. Bounding empowered a stranger not only to extract the mineral, but to enter on the surface, and cumber it with machinery, buildings and refuse. The only thing which rendered this reasonable was the render of toll tin to the landowner, and the benefit to the public; but these were both lost, and possibly prevented, if the bounder declined to work, and retained the right to exclude the owner. Many bounds might become the property of the same owners, who might limit the supply and diminish competition, while the owner would decline to expand his capital on building, or agricultural improvements; because at any time the bounder might renew his operations, and, entirely and without compensation, defeat the purposes of his expenditure. If it were said, that the public good was best served by a regulated supply, and that the bounder would find it his interest to work, when the public required the supply, it might be answered, that where such a state of things has existed so long and so decidedly, as to amount to reasonable proof, that the original purpose, for which the bounds were inclosed, had been abandoned, it was unreasonable to maintain the bounds themselves. The owner himself may not have inclosed the land, or worked for the mineral, on account of temporary inability, or the same causes that are alleged to actuate the bounder. Why is he to lose his earlier and better right for ever, and the bounder, under the same circumstances, to preserve his? Besides, the purpose of the custom was not founded on the doctrine of demand and supply, but on the expediency simply of bringing the mineral to the surface for the use of men. Again, a render of a portion of the mineral is part of the consideration for the bounder’s right, part of the original compact, without which the landowner might never have consented to the bounds – quite independent of the question of profitable working by the miner. The mode of annual renewal is useful for keeping the limits well ascertained; but it is no substitute for the working itself, as the ground of reasonable custom.
It was contended, in the above case, that the bounder took a profit in the soil of another, and that such a claim could not subsist by custom, but only by prescription. But it was held, that a prescriptive interest must have some person in whom to reside, as in the case of commoners claiming common in the lands of others in the name of the lord; and that necessity compelled a claim by custom on the part of persons having no permanent existence, as in the case of commoners in gross claiming in the waste of the lord.
It was also held, that the bounder be allowed all reasonable time for consideration, and preparation of plans and operations; that when he ceased to work, after having once bona fide worked, his conduct would be open to explanation, so as to prevent forfeiture; and that it was only when his conduct warranted the conclusion that he had ceased to be in good faith pursuing that object, which alone justified his entry, that forfeiture would occur.
The decision in the case of Rogers v. Brenton seems to defeat all such claims to bounds as have only been attempted to be preserved by yearly renewals without working. In other cases, several reasons have been assigned for considering that the right of bounding might be impeached as a valid custom. But these reasons do not appear to warrant the suggestion. The only one which seems to be of much weight arises from uncertainty of the area to be bounded, and, it is said, it has been attempted to bound the whole of Dartmoor. In the case just cited, it was stated by an experienced witness, that he remembered a pair of tin bounds “a quarter of a mile each way” – the largest he knew of. They are usually much smaller. The meers in Derbyshire are exactly defined by the customs. But the same evidence which proves the custom may also prove its extent. Id certum est quod potest redid certum. If too much land is bounded, there is an appeal to the Stannary Courts. A custom is not uncertain, because its exercise is left to reasonable discretion – as in the case of drying nets, or the building of bulwarks for public defence, in the lands of others.
Although several mines are worked, as tin bounds, there are very rare instances of acquiring new bounds according to custom. But if the custom is good at all, it will, of course, sanction the claim of new bounds within any waste land or land previously bounded, whatever may be the state of things does not seem to harmonise with the present state of society; and there are good grounds for appealing to the legislature for the abolition of the custom, subject to some provisions for existing rights. The absence of all compensation, in the case of inclosed lands, is a serious evil. The mixture of tin ores with those of other metals, which are not comprised in the custom, must also cause some embarrassment.
The Stannary Courts of Devon and Cornwall for the administration of justice amongst the tin mines of those counties are of very remote origin. They are mentioned in two charters of King John. Their privileges were confirmed by the charters of 33 Edward I. (1305), and by private statutes of 50 Edward III (1377), and explained by the 16 Charles I. (1641). These Courts were instituted for the convenience of the miners, and for the speedy, effectual and inexpensive settlement of mining questions. Accordingly, the tinners were declared by the charters of Edward to be exempt from the ordinary jurisdiction of the general Courts, except in pleas of land, life or limb.
No writ of error laid from the Stannary Courts, but an appeal might be made, in common law, from the steward to the vice warden, then to the lord warden, and finally to the privy council of the Duke.
All labouring tinners, dressers, smelters, and all persons actually employed in tin works, are called privileged tinners (1625). All privileged tinners who have discontinued their workings, all officers of courts, owners of tin works, adventurers, purchasers of tin, and all other that intermeddle with tin, are called tinners at large (1636).
With respect to causes arising within the Stannaries, or relating to tin or tin works, the privileged tinner can only, by custom, sue and be sued in his own Court. Tinners, in general must also proceed against each other in the same place. But they may sue and be sued by foreigners – (strangers to the Stannaries) – at common law or in the local Courts, at the election of the plaintiff. But by 16 Charles I. c. 15, s. 4, (1636), if any defendant of the Stannary Courts shall swear that he is not a tinner, he may be discharged, unless the plaintiff shall swear that he is a true and working tinner, and that the cause of suit arose within the Stannaries, or concerning tin or tin works.
But the local Courts have no jurisdiction for any cause of action not concerning or arising in the Stannaries. All transitory actions, however, of this nature, between tinners, may be brought in these Courts, or at common law. If one of the parties only be a tinner, the action may be restrained by prohibition. But if the defendant does not plead to the jurisdiction of the Court, and judgment is given, the execution is good, unless, by the plaintiff’s own showing, the cause of action arose out of the Stannaries.
Courts leet are directed to inquire into all offences and breaches of the customs.
The Stannaries are defined to include all places where some tin work is situate and in actual operation.
It has been recently much doubted whether there existed in the Stannaries a right to equitable jurisdiction. In consequence of some recent cases, the Court suspended its equitable proceedings.
The whole jurisdiction and proceedings of the Stannary Courts have recently undergone a complete revision by the general legislature (1837).
The jurisdiction of the Court of the vice warden is extended to the county of Devon, and the Stannaries of both counties now form one entire district. But the common law jurisdiction of the vice warden in respect of causes of action arising in Devon only extends to matters relating to mines.
The Court of the Vice Warden is declared to be a Court of Record, to be held at Truro, at least once in three calendar months, and to be open to all barristers, and all attorneys of any of the Courts of Westminster.
The equitable jurisdiction of the vice warden of the Stannaries is extended to all cases arising with respect to the working or carrying on any mine worked for lead, copper or other metal or metallic mineral, or the searching for, working, smelting or purifying any lead, copper or other metal or metallic mineral, as fully as with respect to tin or tin mines. It also extends to non-metallic minerals found in the same mine and worked by the same adventurers. Plumbago or black lead is declared to be a metallic mineral.
The Equity Court of the Stannaries is guided by the same rules of equity which prevail in the Equity Courts at Westminster. The local Equity Courts are chiefly used for arranging the calls and liabilities of partnerships in cost-book mines, both amongst each other and with respect to the public. The mode of winding up an insolvent concern is cheap, simple and effectual. In accordance with the custom, every creditor, having an equitable lien, may, on petition, procure an order for payment, with costs. In cases of non-payment, a sale of the ores, machinery, materials and effects of the partners will be decreed, and the proceeds divided amongst the creditors. This process has been much improved by the late statute, which has, in case of deficiency after a sale of the partnership effects, authorised the Court to proceed against the shareholders as contributories (1856)
No claim affecting the freehold or inheritance of any person can be entertained by the Court, except by consent of the parties. But the remedy for actions of debt not above £50 is extended to actions of the same amount founded on tort or contract. Mining causes may be removed to the Stannary Court from the County Courts, at the request of either party. But they have a concurrent jurisdiction.
All the proceedings on the common law side may be removed by writ of certiorari, on showing cause that an impartial or sufficient trial cannot be had.
In all cases of partnership formed on the cost-book principle and adventurer may, without suit, and on affidavit showing sufficient grounds, compel the production of the list of shareholders.
Provision is made for the eventual establishment of a separate Court in Devon.
The vice warden may re-hear and vary his own decrees; and an appeal may be made to the lord warden, who, with the assistance of two or more members of the judicial committee of the Privy Council, or Judges of Equity or Common Law Courts at Westminster, may affirm, alter or reverse any decrees, orders or acts of the vice warden. The judgments of the lord warden must be transmitted to the Court of the vice warden, to be carried into effect, and are subject to an appeal to the House of Lords.
The courts of law held before the stewards of the respective Stannaries are now held before the vice warden, who thus exercises both an equitable and a legal jurisdiction. The latter jurisdiction is also extended to all the other mines, metals and minerals just mentioned. An appeal may be made to the lord warden, in the same manner and subject to the same final appeal as in equitable cases. But no appeal in any case is allowed where the debt or damage does not exceed £20, without question of jurisdiction or custom (1856).