Three Divisions of Tithe

Tithes were divided into three types: predial (from Latin praedium ‘farm’), mixed and personal.

1.Predial tithes are such as arise immediately from the soil, as corn, grain, hay, wood, and all sorts of fruit and herbs. Predial tithes are to be paid without any deduction of the costs or charges of cultivation.

2.Mixed tithes are such as do not proceed immediately from the ground, but are produced mediately by animals which are depastured or kept upon the ground, as colts, calves, wool, lambs, milk and eggs. They are called mixed tithes, because they are partly predial and partly personal and are to be paid without any deduction or abatement, on account of the labour and expense of their production.

3.Personal tithes are such as arise wholly from the labour and industry of man, as tithes of mills and fishing or, more properly speaking, of the labour and industry of millers and fishermen, because these tithes are properly payable of the profits made by millers and fishermen in their respective occupations. Personal tithes are not due of common right but only by the special customs and usages of particular parishes.⁸

Lewis compares the distinction between personal and predial tithes – where the former, but not the latter, permitted an allowance for expenses – with the difference between self-employed earnings and employment income under the modern UK tax regime.⁹

The Tithe on Lead Ore

In general, tithes were not payable in respect of minerals and things which were not of the increase, but of the substance of the earth. But by particular custom, any mineral substances may have been subject to the payment of tithes. In Derbyshire, tithes were thus payable for lead ore. The pretence for claiming tithe is said to have originated in the once prevalent notion that metallic ores are in a constant state of growth and increase in the veins. The tithe of mines could be either in the nature of a predial tithe, by the dish or drill, in its natural state, without any deduction for expenses, or as a personal tithe, with an allowance for labour and other incidental charges.¹⁰

In the thirteenth and fourteenth centuries, there were differences of opinion about the tithability of minerals: by canon law, minerals, including lead, were subject to tithe, but under common law in England they were held to be exempt, unless made payable by some special custom. Adams gives several instances of tithes paid on minerals during those centuries, including lead ore in Derbyshire and Bangor, tin from the royal tin mines of Devonshire and iron from the Forest of Dean.¹¹

Custom, or customary law, was an established element of the legal obligation to pay tithes, with much wider application than the lead ore tithe.¹² The validity of customs frequently led to tithe disputes. In most tithing situations, custom operated to provide some sort of easement in the payment of tithes but, for the lead ore tithe, the liability to tithe ore depended on proving the custom in a particular locality.

In 1701, a Private Bill was brought by several Low Peak parsons, ‘The Case Relating to the Bill for Preventing Vexatious Suits’, in an attempt to establish a statutory liability to lead ore tithe across the whole of Derbyshire. A pamphlet relating to this bill presented the contemporary case for the clergy. This admitted that the payment of tithe ore was not found in ordinary tithing tables, nor was due of common right, but claimed that it was not a novel or unknown duty and had been paid for centuries, and it was right that miners should pay it because ‘in searching for Lead Oar there … vast quantities both of Pasture, Meadow, and Arable Land, are turned into heaps, and made Barren, which would otherwise yield a good Tyth in another kind’.¹³

The question of whether the lead ore tithe was predial and payable gross or personal and payable net of expenses incurred in its mining was disputed during the sixteenth to eighteenth centuries. The most widespread practice seemed to be a hybrid position that tithe ore was due as dressed ore, that is, after it had been washed, allowing a modest deduction for the costs of washing, but without any allowance for other mining costs.¹⁴

Table 2.1 Historical Context – Timeline

^a Act granted religious liberty but tithes remained payable to the Anglican Church.

Legal Framework and Administration of the Derbyshire Lead Industry

The structure of the old lead industry in Derbyshire, from the mining of ore to the sale of smelted lead, grew out of the ancient (pre-1066) claim of the monarch to all mineral rights. The Derbyshire lead deposits remained a royal possession after the Norman Conquest and royalties from mined lead continued to benefit the Crown for centuries afterwards. The Crown could only realise value from the possession of mineral deposits to the extent that the minerals were mined and thus brought into the commercial sphere. The lead deposits in Derbyshire were widely spread over inhospitable countryside, and it was often difficult, and sometimes dangerous, to gain access to underground deposits and bring them to the surface. For many centuries – until the need arose for capital investment by commercial enterprises – it was in the Crown’s interests to encourage lead mining, and fundamental to this was the right of ‘free mining’, permitting anyone to mine lead ore anywhere, with a few specific exceptions, and profit from their efforts, subject to paying royalties to the Crown.

The Duchy of Lancaster was created in 1265, when Henry III gifted certain baronial lands to his son, then, a year later, added the estate of Robert Ferrers, the rebel Earl of Derby, followed by the ‘honour, county, town and castle of Lancaster’, together with the title of Earl of Lancaster (elevated to Duke of Lancaster in 1351). Further lands and estates were added later to the inheritance. One of Henry IV’s first acts as king in 1399 was to stipulate the conditions in which the Lancaster inheritance should be held, specifying that it should be held separately from all other Crown possessions, and should descend through the English monarchy as a private estate.¹⁶ Most of the land in Derbyshire that was rich in lead ore – the lead field – formed part of the Duchy of Lancaster’s possessions, and the conditions attaching to the Duchy inheritance provided a powerful incentive to the monarch to protect the income from lead mining. The industry structure was designed to facilitate the collection by the Duchy of the king’s royalties. In practice, the king’s royalties were generally farmed out, so that the miners paid them to the ‘king’s farmer’.

In 1288, Edward I ordered an inquisition into local mining practices to be held at Ashbourne in Derbyshire. It is thought that this was the result of challenges to the custom of free mining by local landowners. A quo warranto (‘by what warrant/authority?’) was an inquiry into whether a claimed custom or right was well founded: it did not grant rights, but rather codified pre-existing popular practice established ‘time out of memorie of man’. The Ashbourne Quo Warranto considered whether the right of free mining did indeed exist in ‘the Peak’ and confirmed 14 customs associated with free mining. The jurymen, ‘good and lawful men from the district’, swore on oath that they had enjoyed the liberties set down ‘from time immemorial throughout all the estates of the lord King in the Peak until now’ in accordance with ‘ancient mining custom’.¹⁷ The Ashbourne Quo Warranto proved very powerful over the centuries as written proof that free mining had been the custom in the Derbyshire lead field since time immemorial (determined as 1189, according to legal convention). It is notable that Edward I refers to the miners in the Quo Warranto as ‘my miners of the Peak’ (minoritores mei de Pecco). The terminology of the Quo Warranto enabled the miners to identify themselves as the king’s miners working in the king’s field and the confirmation of their rights

by a long dead monarch … created the impression that the right of free mining was the creation of royal authority … This allowed the miners in their complaints to higher authorities to cast attacks upon their rights as assaults upon royal justice.¹⁸

The 14 customs set out in the 1288 Quo Warranto were modified and extended over the centuries. By the time of the Great Barmote Court held in Wirksworth in 1557, the 14 provisions had expanded to 33, and by 1665 there were 59 customs recorded for Wirksworth.¹⁹

In 1644, George Hopkinson, a lawyer and member of the Inns of Court, wrote a treatise on the customary mining laws of Wirksworth Wapentake, which appears to be the first published study of the subject.²⁰ Later, in 1661, Hopkinson was appointed steward of Wirksworth Barmote. In 1653, another steward of Wirksworth Barmote set out the Low Peak mining customs in 292 lines of rhymed couplets in The Rhymed Chronicle of Edward Manlove concerning the Liberties and Customs of the Lead Mines Within the Wapentake of Wirksworth, Derbyshire.²¹ Whilst of questionable poetic merit, this provided an accurate rendition of the customs, and the verse format presumably assisted the miners in memorising them. The customary laws of the High Peak, the Low Peak, Stoney Middleton and Eyam, Ashford, Litton and Tideswell were published in 1734 by George Steer as The Compleat Mineral Laws of Derbyshire.²²

Hopkinson confirms the all-important custom of free mining:

It may seem strange and Repugnant to the Common Law which saith … It is not Lawfull for any Man to Enter into the Land of another without his Licence. That a Miner should Dig, and get Lead ore, in another Mans soil, yea, and have an Inheritance in the mine therein without the owner of the soil, his Licence, or given any Recompence or satisfaction for the same. And yet that is most Clearly the Custom.²³

Despite George Hopkinson’s explicit confirmation of the custom of free mining, the Hopkinson family did not respect the custom in practice, and George and his brother William ejected free miners from Hopkinson-owned land in the 1640s and 1650s, and again in 1678.²⁴ Any man who could demonstrate to the Barmaster that he had found a significant source of ore was allowed to open a mine and retain title to it for as long as he continued to work it. Within the king’s field, mining took precedence over land ownership, and no land owner or farmer could interfere with lead mining, although many attempted to impose restrictions.

The High Peak Hundred was dominated by two high-ranking aristocratic families, the Cavendishes, Earls then Dukes (from 1694) of Devonshire, and the Manners, Earls then Dukes (from 1703) of Rutland, whereas the land in Wirksworth Wapentake – by the seventeenth century the major source of lead ore in Derbyshire – was owned by a combination of aristocratic and major landowners, together with many smaller landowners, including lesser gentry and yeomen who either worked in or financed the mines.²⁵

Customary Law in Derbyshire

Behind both the Peak’s customary mining laws and the lead ore tithe was the legal concept of ‘custom’. Medieval treatises described the English legal system as the ‘law and custom of England’,²⁶ and England’s common law could be described as general customs applicable nationwide. Custom is a local exception to the general law of the realm; it is essentially local common law.²⁷ Entirely consistent with this, Hopkinson states in his 1644 treatise on the mining customs that he ‘will only treat of such Customs … which seem to be diverse from or unknown to the said Common Law’.²⁸

Customs of the countryside in England which differed from general custom (or common law) were only accepted by the courts if they had originated before 1189.²⁹ Customary law arose from the immemorial usage of the community³⁰ of a clearly defined local area, and it must meet a test of ‘reasonableness’.

When custom was litigated, the existence of an ancient custom was a question of fact for the jury, most often proved by the oral testimony of older members of the community, and it had to be demonstrated by the person asserting the custom. The burden of proving that a custom was unreasonable lay with those who challenged the custom and was a question of law for judges to determine. The legal foundation underlying custom was not well established in the medieval period but, by the seventeenth century, the four elements of the judicial doctrine of custom as local common law were in place.³¹ Once the existence of a custom had been proved as a fact, the judge applied the tests of antiquity, continuity, certainty and reasonableness:

1.Antiquity: the custom must have originated before 1189.

2.Continuity: the customary right or licence must have been exercised without interruption. Any significant interruption in the exercise of a customary right created a presumption that the custom never existed or was not truly a custom at all.

3.Certainty: common law required that local custom be certain, applicable only in a definite district and limited in scope so that local exceptions did not encroach on common law.

4.Reasonableness – the custom must be reasonable, or at least not unreasonable. Custom was by definition contrary to the common law but custom that conflicted with any fundamental principle of the common law could be declared unreasonable.³²

Local customs derived from popular practices and belonged in the realm of oral tradition; they were usually tested through oral testimony from members of the local community. There is perhaps a fundamental conflict between courts of law, which seek to operate in the realms of certainty and proof, and the potentially ephemeral nature of oral evidence. As noted previously, the Derbyshire mining customs benefited from the written proof afforded by the 1288 Ashbourne Quo Warranto that they had existed from time immemorial, but they were still susceptible to attack. In 1726, Sir John Statham, a lawyer and a surveyor for the Duchy of Lancaster, stated that the miners’ rights were ‘all pompous pretence’: the customary laws were oral and never in writing, the Barmote Court was not a Court of Record so ‘no record or footsteps remain’, and it was impossible to give authorities ‘other than what occurs to everyone’s memory’.³³

The customs protecting and regulating ‘free mining’ survived for more than 700 years but, in their final two centuries, they were ill-suited to cope with the consolidation of the ownership of mines and mineral rights into company structures. They were finally incorporated into statute law in 1851 and 1852 for the High Peak and the Low Peak respectively, which was rather late in the day, as by then the lead mining industry was in steady, indeed terminal, decline.³⁴

The Barmaster and the Barmote Court

The Barmaster and the Barmote Courts constituted an ancient system of jurisdiction governing the lead mining region of Derbyshire. The Ashbourne Quo Warranto refers to the responsibilities of the ‘bailiff, who is called the Berghmayster’ and to the Berghmot, which ‘should be held from three weeks to three weeks at the mine’,³⁵ so clearly the system was well established by 1288. (‘Berghmot’/’Barmote’ from Saxon bergh ‘mountain’ and mot ‘assembly’.)

As Hopkinson records, ‘And the whole Execution of the Laws of the Mine is committed unto and Entrusted with the Barrmaster’; he also sets out 13 points concerning the Barmaster’s office, the first being that ‘the Barrmaster is made by the King’, which he expands: ‘he being Lord of the said Mines in Right of his Duchey of Lancaster’.³⁶

The Barmaster and the Barmote Courts had wide-ranging responsibilities, including awarding mining rights, overseeing disputes and ensuring that royalties due to the Duchy of Lancaster were collected. By the beginning of the fifteenth century, two Great Barmote Courts with wider powers to deal with more serious issues were in place, meeting twice yearly at Easter and Michaelmas, one at Monyash for the High Peak and the other at Wirksworth for the Low Peak. These had 24 jurors, and were run by the Barmaster with the assistance of a steward, who was a lawyer and whose impartiality was important. Deputy Barmasters adjudicated in disputes and enforced compliance with the customs of the mines. Their duties extended to acting as the coroner in the case of fatal accidents at the mines. The Barmote jury was not conceived as an impartial, random collection of people. Rather, Barmote jurors were drawn from the mining community, and jurymen were required to be knowledgeable in mining matters and bring practical experience to bear in adjudicating disputes and trials.³⁷

There were frequent disputes between miners and landowners over miners’ rights to free mining, the possession of mines and the payment of duties, and, whilst most were settled by Barmote Courts, plenty of cases proceeded to the Court of the Duchy of Lancaster. Important judgments of the Duchy Court in the sixteenth century established it as the superior court over the Great Barmotes and as the final court of appeal for Peak mining matters for the next century.³⁸ Initially miners resented what they saw as a usurpation of power from the Barmotes to the Duchy Court, but over time they accepted the jurisdiction of the Duchy Court, which appears to have given a fair hearing to mining customs. Subsequently, mining cases were pursued through other courts, including the County Assizes, Chancery and the Court of the Exchequer. Tithing matters could be heard by ecclesiastical courts, with the Consistory Court of Lichfield Diocese hearing numerous lead ore tithe cases.³⁹

The Derbyshire Lead Miners: The ‘Poor Miners of the Peak’

Customary laws relied on proving precedent and common usage, and older miners would be called to give evidence through oral testimony of events and practices from many years previously. Wood suggests that this gave the miners a sense of their own history and identity as a separate interest group in north-west Derbyshire.⁴⁰

The Barmote Courts enjoyed extensive freedom of action and were popular with the miners, who regarded them as the source of their peculiar liberties, resenting the encroachment by other sources of authority and law upon the jurisdiction of the Barmote. At a time when power lay with the aristocracy and landed gentry, the miners who helped to run their industry through the Barmote juries acquired a taste for democracy. The ideal role of the Barmaster, according to the miners, was to ensure that ‘noe man had more power than another’⁴¹ and to ‘doe right to them that be opprest’.⁴²

Enthused by a sense of their democratic rights and perhaps overestimating their own power and importance, the miners of Wirksworth petitioned Charles I to give Wirksworth two representatives in Parliament:

That the saide Towne is both a market towne and, and very ancient, and hath for many hundred years beene famous for the leade Mynes neare adjoining thereunto: That many thousands of your Majesties Myners live in and neere unto the said Towne, and that your Majestie is Lord, both of the saide Towne, and also of that whole hundred. That the Barmoote Corts are kept, and the mynerall controversies heard and determined in your Majesties hall in that Towne, and by your Majesties officer called a Barmaster.⁴³

The petitioners complained that ‘the said myners have not voyces either in choosing the knights of the shires, or the Burgesses of any Burrough for Parliament’.⁴⁴ Their petition was unsuccessful.

Lot

Lot was effectively a royalty paid in kind to the king and was the thirteenth dish of ore in each measuring. It is clearly set out in the Quo Warranto:

And of the ore won in work of this kind on his estates, the King as Lord of the land shall have the thirteenth dish, which is called the Loth, as has hitherto been the custom. In return for this however, the Lord King shall find for the miners free access to convey and carry their ore as far as the king’s highway, in such a way as they have been accustomed.⁴⁵

As ore was brought from a mine it was measured by the dish and the Barmaster collected every thirteenth dish. For the payment of lot, the miners had ‘liberty to work the ground within the Wapentake, and to have timber also in the King’s wastes … and egress and ingress from the highways to their Grooves or Mines’.⁴⁶

By the early eighteenth century, it appears that in the High Peak and Ashford, north of the River Wye, lot was paid on the twentieth dish.⁴⁷

Cope

The Quo Warranto does not mention the payment of cope, but does set out the king’s pre-emption right, which gives rise to the duty: ‘Regarding the ore which is won, the jurors say that the Lord King shall have the right to buy at the mine before all others, provided he give as much as the others.’⁴⁸ Cope (‘cope’: obsolete meaning ‘to buy, exchange, bargain’ – OED) was payable on the ore not purchased by the king. This was a payment made notionally to prevent pre-emption by the owner of the mineral rights. The mining customs were clear that the king’s cope was paid in return for the miners’ right to sell to whomever they wished and was payable by the ‘Merchant, Buyer or Miner, that carries away the ore’.⁴⁹

Cope was paid at sixpence a load – a load equalled nine dishes – in the king’s field, but the Duke of Rutland charged ninepence a load at his Hazelbadge lead mines.⁵⁰

The Barmaster’s responsibility for collecting cope obliged him to keep records of the names of ore buyers. The deputy Barmasters kept records of all changes of title and of the amounts of ore measured and the amounts of lot ore and cope collected at their regular reckonings at the mines. The lot and cope accounts involved quite complicated calculations and information collected included the period covered, the name of miner or mine, the amount of ore mined, the number of dishes of lot ore received, the amount of ore sold to each buyer and the sum of money chargeable to each buyer for cope. Many such records have survived.

The nature of the lead field – numerous small mines spread over remote countryside – created the opportunity for small-scale evasion of lot and cope, and it would be remarkable if there had not been instances of evasion. For example, farmers of lot and cope in the Low Peak part of the king’s field made 10 separate complaints to the Duchy Court between 1520 and 1580 that smelters and miners were evading payment.⁵¹ There were various challenges over the centuries to the liability to lot and cope, but generally the miners acknowledged their obligations to the king’s farmer, and deputy Barmasters were deployed regularly at the mines to collect the dues. In theory at least, failure to pay lot and cope could result in the seizure of the offender’s mines.

Export Duty on Lead

Elizabeth I imposed a tax on exports of lead of eight shillings a fother. (A ‘fother’ was a measure of smelted lead; the exact volume or weight of a fother varied across the country, but was around 22½ hundredweight in Derbyshire.) The duty was increased by James I to 28 shillings and by Charles I to 48 shillings per fother in 1635, which had the effect of depressing both ore prices and the wages of mine workers.⁵²

The miners were very aware of the sums raised for the king from lead exports: in evidence to the Exchequer Court in 1622 they argued that, if the mines closed, the king would lose his revenue from them, also the ‘benefit of his Custome, for all the lead there gott and made and transported by sea being for every fodder of lead 28s., amounting to £10,000 a year’.⁵³

A petition headed by Lionel Tynley of Holmesfield, a wealthy Derbyshire mine owner and lead merchant, and supported by as many as 20,000 names, including 1912 miners, was placed before a Commons committee in 1641, which recognised that it was ‘a matter of great moment to the miners of the Peak’, and promptly agreed to reduce the duty to 20 shillings per fother of lead.⁵⁴

Miners’ Fighting Fund

Not only did the miners collectively have the confidence and knowledge to defend themselves against tithe holders’ suits, they were also prepared to set aside funds for legal fees for their defence. This was a major source of annoyance to tithe holders, who expressed irritation that the miners claimed not to be able to afford to pay tithe ore but freely put aside sums to challenge tithe lawsuits. It is hard to avoid the conclusion that the tithe holders’ resentment was at least partly based on class preconceptions: the miners as working men normally would not or could not resort to litigation.

In 1615, witnesses for the Leekes complained that the miners, a number of whom were named, had ‘paid money towards the maytenance of this suit’. An example was given of six miners who had contributed £9 10s of their own money, and they were collecting money from other miners. As late as 1691, the miners made a common purse to fight tithes. In the Low Peak parsons’ 1701 Bill, the clergymen claimed that the miners had spent over £12,000 in the previous 80 years in lawsuits.⁷⁰

There are no unambiguous references to any obligation to pay lead ore tithe in the mining customs, but the customs for Ashford Lordship incorporated an obligation to contribute to the costs of opposing a tithe ore suit:

It is ordered and set down by the Jury, That every Miner working and getting Ore within this Lordship, shall pay for every Load he or they get threepence, towards the paying of such Charge as is already spent, and shall hereafter be spent in the Suit, for the Tythe Ore, which is claimed; and the same three-pence shall be paid by him to the Barrmaster, or his Deputy, with the Cope and the same Payment to continue so long as shall be needful for discharging the same Suit.⁷¹

Bakewell Tithe Disputes

In her 1965 publication Lead Ore Tithe, Kirkham undertook a detailed analysis of the struggles in the 1600s by Sir Francis Leeke (and subsequently his son, also Sir Francis Leeke, who became Lord Deincourt), owner of two-thirds of the lead ore tithe in the parishes of Bakewell, Tideswell and Hope, and John Gell, who owned the remaining third, to recover their tithes.⁷² Leeke’s two-thirds had originally been granted to Lenton Abbey by William Peveril, but passed to Leeke following the Dissolution of the Monasteries. The remaining one-third had been in the hands of the Dean and Chapter of Lichfield Cathedral and the Gells had been tithe collectors before, it is presumed, purchasing the rights.

The tithe disputes in these three parishes were pursued over a period of more than 15 years through a variety of courts, and during the judicial journey most arguments for and against the liability for tithe were rehearsed by the parties.

In 1612, Leeke served a Bill in the Exchequer Court on the Bakewell miners, which eventually led to depositions of evidence at Bakewell in September 1615. Kirkham gives a detailed account of these depositions by miners, Barmasters and tithe gatherers. Witnesses testified that tithes had not been paid for periods of years and that when lead ore was offered, miners ‘lay forth for the tythe the worst of the lead oare’ for when the tithe gatherer came, which ore the latter was glad to take ‘or els they must have gone without’. The deputy Barmaster to Lord Cavendish said he himself had refused to pay tithe except what he laid out. The elderly John Hancock, a mine maintainer and former tithe gatherer, testified that in the 1560s miners refused to pay any tithe at all, and tithe gatherers had been glad to ‘take what they could get … and what the Miners willingly gave them’. A number of witnesses for Leeke said that they believed ore was concealed by miners, and that the king as well as the church did not get their dues. A Barmote juryman said that at measuring the Barmaster measured nine dishes, and then the tenth for tithe, and then measured on to the thirteenth, which he set aside for the lot.⁷³

Witnesses stated that most miners could not afford to pay both lot and the one-tenth tithe on the gross amount of ore mined. The former deputy Barmaster of Ashford Liberty testified:

not one of the miners in Twenty weare able to maintain themselves and their families by working in the mines and pay all the duties and costs, not one miner in twenty made 1/10 of clear gain, after deducting all manner of charges.⁷⁴

The miners argued that Leeke and Gell ought to have their one-tenth tithe ore undressed ‘as it is drawn out of the mines’, and not dressed ore as measured for lot by the Barmaster. But the tithe holders asserted that tithe ore had always been cleaned and dressed at the miners’ charge, allowing 1d a dish for this, and so it had been paid by a deed from the Dean and Chapter of Lichfield dated 1252.⁷⁵

Despite the miners’ robust testimony, the Court of Exchequer gave a provisional order in 1616 in favour of Leeke. There had been 300 years of litigation between Lenton Abbey and the Dean and Chapter of Lichfield about the original grant of tithes to Lenton, so there would have been written documentation evidencing the past payment of tithe ore, which may have been accorded higher value than the miners’ oral testimony, which covered around 50 years. It is not clear whether the involvement of a member of the aristocracy influenced the outcome.

Between 1612 and 1627, the disputes followed a convoluted passage through a succession of courts, with Gell’s case sometimes taking a different route from the Leekes’. In the years following the Court of Exchequer’s 1616 provisional order there were two verdicts at the Court of Common Pleas, a decree at the Exchequer Court, and certificates from the Archbishop of Canterbury and the Lord President of the Council, all concurring that lead ore tithe was due. By November 1620, the suits of both Leeke and Gell were before the Privy Council, which, by order of the king, ordered that the whole cause should be dismissed. In 1621, the Lord Bishop of Lincoln, Lord Keeper of the Great Seal, confirmed Gell’s entitlement to one-third of the tithe and that this applied forever, not only to the defendants, but to all miners in the three parishes, and no further trial would be allowed to the miners. Despite the apparent finality of the rulings by the Privy Council and the Lord Bishop of Lincoln, in 1622 a group of Bakewell miners presented their Bill in the Exchequer Court requesting reversal of the 1616 ruling, using somewhat esoteric arguments. This was countered by Leeke the son, and the Court confirmed the tithe due to him.⁷⁶

However, the miners were tenacious and their response to the emphatic series of defeats was to propose a Bill in the House of Commons to abolish tithes. This was a bold move by the miners, evidencing their willingness to engage beyond their own locale and take their issues to the highest levels of politics. The Bill was twice read, committed and reported, and thrown out in 1624. A printed account about the Bill says that tithe had been paid from time immemorial in the High Peak, had only been refused lately ‘through the particular interest of powerful miners’ and that decrees for the tithe owners had been given in many courts. But, ‘notwithstanding these Verdicts and Decrees, neither the Leekes nor Gell could get possession of the lead ore tithes’ nor ‘enjoy the same’, so they petitioned the king. The Lordships certified that John Gell had prevailed in his suits at law, and the tithe was established. Later Gell obtained a decree in Chancery, ratified in 1627.⁷⁷ By 1632, Lord Deincourt was so wearied by the ‘litigious’ miners that he sold his share of the tithe lease to the Countess of Devonshire.⁷⁸

Further research is needed to establish just how much tithe ore was actually paid over the years, but the Oliverian Survey of the ‘Tythe of Lead Ore in the Jurisdiction of Bakewell’ taken in April 1650 describes the tithe as ‘of great profit’ and ‘worth more than one thousand pounds’.⁷⁹

As a postscript, John Gell supported parliamentary forces against the king in the civil war and raised a regiment to defend Derbyshire, using tithes due to him from the High Peak parishes to support the parliamentary cause. Despite being on the winning side, Gell’s conduct during the war in Derbyshire was investigated by a parliamentary committee from 1645. He was accused, inter alia, of tax evasion on business activities and large-scale corruption.⁸⁰

Wirksworth Tithe Disputes

Another protracted tithe dispute took place in the parish of Wirksworth in the 1620s and 1630s, of which Slack gives a detailed account.⁸¹ Richard Carrier, Vicar of Wirksworth, petitioned the Privy Council in 1615 to establish his right to lead ore tithe, and also brought a suit in the Court of the Exchequer, leading to a petition by the miners to stay the suit in that court and bring it before the Privy Council, where Leeke and Gell’s suits were being heard. In 1621, Carrier brought a Bill before Chancery naming 300 Wirksworth miners, and a decree in his favour was made in 1622. As a result of the miners’ claim that the 1622 decree only applied to the miners named in the Bill, Carrier brought a new Bill against four named miners in 1628 and obtained another decree in his favour in 1630.⁸² Other tithe holders, even if they had established their entitlement before the courts, experienced continuing difficulties in collecting the tithes due, but Carrier gained a particular advantage in 1623, when his father-in-law, Thomas Parker, inherited the 31-year lease of the lot and cope and the Barmastership in Wirksworth Wapentake. Carrier and his wife administered Parker’s lease for him and Carrier or his deputies were present, as of right, when ore was measured for the collection of lot. Carrier, his wife and deputy Barmasters were prepared to resort to violence to extract payments, as revealed in a number of court cases, and the miners often met violence with violence. Amongst others, Carrier clashed with the Gells of Hopton, one of the most influential families in the lead trade, and John Gell was equally willing to use violence. Gell, as a tithe holder in Bakewell, Tideswell and Hope, pursued his tithe claims vigorously through the courts, but in Wirksworth, as a mine owner, he owed tithes to Carrier and was as reluctant as the miners to pay them. In 1627, after complaints from miners, the Duchy Court ordered Carrier and his deputies to measure ore on request and without insisting on payment of tithes as a precondition. At the same time, the Star Chamber, Charles I’s court in London, began investigating allegations that Carrier coerced and intimidated miners and Barmote juries. Pending the outcome of the Star Chamber’s investigation, Carrier was allowed to continue collecting lot and cope, but forbidden to attend Barmote Court meetings until a provisional ruling in 1631 effectively ended Carrier’s career. ‘For the riots & forceable taking of guifter ore’, Carrier, his wife and four others were committed to Fleet Prison and heavily fined.⁸³

In 1676, the notable Brown v Vermuden⁸⁴ case was heard by the Lord Chancellor. Sir Cornelius Vermuyden/Vermuden came from the Netherlands in 1621 to drain the East Anglian fens, which earned him a knighthood.⁸⁵ In Derbyshire, he was brought in as a partner in the Dovegang Mine to use his expertise to drain the flooded mine. Thomas Brown, a successor to Richard Carrier as Vicar of Wirksworth, sought to enforce the lead ore tithe established by Carrier, but Vermuyden⁸⁶ argued that he was not bound because he had not been a party to the earlier suit. The Lord Chancellor held that Vermuyden and all the other mine owners and workers were bound by the original decree even though they were not individually named in the suit, ruling that ‘if the defendant should not be bound, suits of this nature … would be infinite and impossible to be ended’. This case is frequently cited as the first example of a class action, although there has been much discussion about how far the Chancellor’s judgment was a radical legal departure which could justifiably be regarded as the first class action. Marcin suggests that similar groupings of cases, basic versions of the class action, may have occurred previously in lower courts or even in Chancery, but concludes that Brown v Vermuden is justly recognised as the ‘first fully litigated decision sustaining a class action’.⁸⁷ Yeazell, on the other hand, examines (and ultimately rejects) the contention that the Carrier case was not so much a lawsuit as a declaration of the custom that lead ore tithe was payable in Wirksworth, and that the Chancellor in the Brown case was reasserting that declaration of custom.⁸⁸

Rector of Ashover Suit

Ashover lay in Scarsdale Hundred, outside the king’s field, and had never been governed by the Barmote Court system. There had been conflict over the lead ore tithe between the clergy and miners of Ashover since the end of the sixteenth century and there are records of tithe disputes heard in Lichfield Diocese Consistory Court from 1602 to 1605.

Immanuel Bourne, Rector of Ashover, came to the parish in 1621. He embarked on a series of lawsuits and took a number of tithe cases to Lichfield Consistory Court between 1630 and 1639. In 1657, he brought a claim to establish his right to tithe ore in kind representing a full one-tenth, and to establish that he had not compromised his rights by accepting smaller monetary sums. This led to a case in the Exchequer Court with a series of depositions of witnesses taken at Ashover.⁸⁹ The examination of the witnesses on the question of the payment of tithe revealed considerable disparity in the way payment had been made in the past, where it had been made at all. Payment had been made in ore, smelted metal or some form of compensation. A servant to John Hancock, Bourne’s predecessor as Rector of Ashover, testified that the miners never paid tithe ore in kind, but most ‘did without compulsion from yeare to yeare compound with the said Mr Hancock’. The parties met on neutral ground in Bakewell in 1659, with the defendants still refusing to pay, and shortly afterwards a jury at Derby found in favour of the miners.⁹⁰

Bourne was an unpopular, litigious individual. However, his belief in his entitlement to tithes was based on religious conviction, and in 1659 he published A Defence and Justification of Ministers Maintenance by Tythes.⁹¹

Rector of Matlock Suits

In 1672, the Rector of Matlock, John Chappell, claimed lead ore tithe in a case in the Exchequer Court, but the decision went against him on a technicality (that tithable ore had not been properly defined). Chappell brought a second case⁹² in 1676, this time in the Court of the Duchy of Lancaster. Chappell claimed tithes had been paid to his predecessors but that the miners refused to pay him, and he cited Leeke, Gell and Carrier’s successful cases. Chappell’s description of tithe gathering in Matlock was contradicted by the evidence given by the miners. Not for the first time, the miners made the point:

That the payment of the said duty will bee disadvantage to his Majesty for that itt will discourage myners to get & seeke for leade oare and will not make them any profit, oare not being to bee gott but at very greate charge in tymber soughing or drayning the water att greate labour & industry⁹³

The Duchy Court, which might well be expected to be sympathetic to the miners, ruled in their favour.

A century later, in 1776, the then Rector of Matlock again brought a Bill into the Duchy Court, but the verdict and costs were again given against him.⁹⁴

Private Bill by the Parsons of Ashover, Matlock, Darley, Bonsall and Carsington

In 1701, the clergy of Ashover, Matlock, Darley, Bonsall and Carsington (including Obadiah Bourne, Rector of Ashover and son of Immanuel Bourne) together presented a Private Bill to Parliament to try to establish their rights to lead ore tithe in ‘An Act for preventing multiplicity of vexacious suits, and for settling the tythes of lead oare in the said County’. This referred somewhat bitterly to the earlier decision against the Rector of Matlock:

So also a certain Noble Lord, who upon like particular Issue, was pleased to try for his Impropriate Tyth of Lead Ore, Assizes at Derby; had Justice done to him by a Verdict for his Right; while the succeeding Jury on the very next day, were pleased (for Reasons best known to themselves) to give a Verdict against the Parson’s right.⁹⁵

Slack recounts the lobbying undertaken by the parsons and their opponents, the miners, of Parliament and of the Derbyshire aristocracy. The miners marshalled their arguments in a robust defence of their position. The parsons tried to emphasise that the Bill would only apply to the lead ore tithe in Derbyshire and not to other minerals in other counties, but it appears that there were worries that, if the Bill passed, a precedent might be set for a wider liability to tithes on minerals. The Committee of the Commons examining the bill represented the mining areas of the country, including Devon and Cornwall, and was dominated by mining interests, and this proved decisive in their rejection of the Bill.⁹⁶

Lead Ore Tithe in the Eighteenth Century

In the late seventeenth century and eighteenth century, the two leading aristocrats of the region, the Dukes of Rutland and Devonshire, expanded their ownership of mining rights across the Peak and thereby changed the power dynamics. Following the Restoration, the Duke of Rutland purchased the manors of Darley and Youlgreave, together with the lease of lead tithes for Youlgreave Parish. The Duke of Devonshire bought the lease of the Duchy’s lot and cope in the king’s field of the High Peak Hundred. Subsequently he acquired from the Earl of Northampton the lease of the lot and cope in the king’s field of Wirksworth Wapentake, giving him control over the entire king’s field, as well as Ashford Lordship and the lead tithes of Bakewell, Hope and Tideswell. The miners had long experience of exploiting conflicting interests within the lead industry for their own benefit, but this concentration of power in the Duke of Devonshire severely reduced their scope for playing off different interests within his sphere of influence.⁹⁷

In other parishes, tithe disputes continued during the eighteenth century, and it remained difficult for tithe holders, even those with decrees to enforce payment, to collect tithe ore without cooperation from the miners. In 1780, the maintainers of the Wirksworth mines met with the parsons of Wirksworth, Bonsall and Cromford and between them they agreed that instead of one-tenth, the lead ore tithe should be one-twenty-fifth. However, when the working miners heard of this, they refused to pay more than one-fortieth, and the parsons accepted this.⁹⁸

The liability to lead ore tithe was finally brought to an end by the mining statutes of 1851 and 1852.⁹⁹