of thieves and smugglers of
cinnabar in 1700–1701
lords or sectors could be fined according to mining regulations from 1580 (for minor offences), or according to valid penal codes, depending of course on the joint value of stolen goods.
(When stolen goods exceed the limit of twenty-five gulden crimes were subject to penal codes). The trial and punishment of acts that were subject to the mining order were conducted by a mine judge, who was responsible for public safety, civil and commercial law, punishment of minor offences; this was the case up until the mine administration reforms at the end of the 1820s and beginning of the 1830s (cf.: Terpin, 2007: 86, Ver-bič 1969: 60-79). Complaints could be addressed to the mine manager (Verweser) in the second instance and then to the Inner Austrian government and chamber in Graz in the third instance (Innerösterreichische Regierung und Kammer) (Va-lentinitisch 1989: 141-142). Judging from criminal trial prac-tices during the second half of the sixteenth century, the sev-enteenth and most of the eighteenth century the larger thefts that fell under so-called causa maiores were tried by special criminal court judges (Bannricher) that were appointed to the smaller Hereditary Lands (Kambič 1996: 1-8). The more se-rious criminal cases (so-called maleficent affairs) were exclud-ed from the mine court’s jurisdiction, which was straightfor-wardly controlled only in the Carniolan mining regulations (Berwerkordnung) (Kambič 1996: 14). Similar legal delimi-tation was shown in both the mining regulations for Idrija (Verbič 1969: art. 27 and 28) and in criminal practice in Idrija.
Valentinitsch interprets article 28 in such a way that he con-cludes that even subjects were excluded from the patrimonial power of their landowner during temporary departure to their native dominion (or manor) (Valentinitsch 1981: 142).3
We can conclude the following hypotheses from an analy-sis of the criminal trial of 1700:
1. The criminal process of 1700 can prove some general cha-racteristics of criminal procedure and substantive law, even in some matters that fell under the jurisdiction of special courts.4The process shows not only the plurality of existing criminal norms and practices (particularly in relation to legal guidelines) but also emphasizes a desire for the unification of criminal law which involved in its procedure authorities in charge of public order on the lowest level.
2. Segments of the population involved in thefts were mainly those subjects and miners who were in difficult social sit-uations.
3 Or jurisdictions for trial for minor offences in the hereditary land Gorizia/
Gorica/Görz.
4 In Carniola (Krain) and Gorica (Gorizia) as a part of the Holy Roman Empire s. c. inquisitional system was still in use in criminal cases, in which the criminal judge had a central role.
Judges on different levels of administration decide on a penalty and declare the verdict. In other cases they just propose the verdict to the final ad-ministrative-judicial level.
Trial for the theft of cinnabar ore in 1700 compared to other similar trials in Idrija
Trials for theft in the year 1700 (1701) in comparison with some other cases of theft and the smuggling of ore were not extensive according to the number of people imprisoned (four).5They cannot even remotely compete with the most high profile case during 1778–1779 in which fifty-five people were interrogated while the actions of twenty-six individuals (Hodnik 1995: 22-27) were so incriminating that they de-manded trial before a criminal court judge. The trial in 1700 was slightly more extensive due to the social status of the im-prisoned, and was somewhat larger than the process that took place between 1729 and 1731, which was analysed in detail by M. Terpin (Terpin 2007: 84-97). Nine people were suspected of involvement in crimes in 1729, among them three miners.
Only three were imprisoned, and none of them were the in-criminated miners.
According to a few other cases there was quite some ore extricated in the case tried in 1700. Initially, four suspects6 were imprisoned and included in the investigative process be-fore a criminal court judge:
Jakob Gatej (Götte), approximately thirty years old, born in Otalež (Tolmin dominion) had to present his case in front of a criminal court judge as a thief and a trafficker.7He lived in Spodnja Idrija and worked as a replacement work-er, was married and the father of one child.
A thief and trafficker slightly more incriminated than Gatej was the forty-year-old miner Anže Arhar (Hanse Archer), otherwise known as Štefič, born in Žiri (Loka dominion), the father of four and a tailor by profession who lived in Idrija with his family.8
Mihael Jež, a broker and a buyer of ore from Berdašnica (Werdaschniz) at Sevnicain Tolmin dominion, a fifty-five-year-old widower with six children, found himself in front of the court.9
Hilarij or Jeller Mažgon (Maschgon) from Šebrelje (Tol-min do(Tol-minion), father of five, appeared before a cri(Tol-minal court judge merely as a reseller. The criminal court judge labeled him a foolish man, and according to criminal pro-cedure he lowered the level of his criminal responsibility.
Because he had to take care of his children, he was re-leased from prison. He did not live to see the verdict since he quite unfortunately fell from a tree even before the first investigation process was concluded.
5 Only the final verdict belongs to 1701 that was passed by the Inner Aus-trian government in Graz.
6 The information that will be presented and inter-preted further on includes the hearings of Jakob Gatej (the ‘first’ hearing was held (in May or June) and the second on December 14, 1700); Anže Arhar (‘first’
hearing was held on May 8, 1700, the second on June 8, 10 and 11, 1700 and the
‘third’ on December 14, 15 and 18, 1700); broker and buyer Mihael Jež (interro-gated in Idrija only on June 26 and then June 30, 1700 when he was faced with the subsequently deceased Moš-kon); Moškon (interrogated June 18, 1700. May 8, 1700).
Another replacement work-er Mihael Pirc was intwork-erro- interro-gated. (StLA, IR, Cop, 1701-1-10, Cop 1701-1-109, Cop 1701-1-117).
7 http://www.rodoslovje.
com/index.php.
8 I used Slovene versions of names and surnames that were more often used for this environment, the exceptions are specifically noted.
9 Given that the military map with this geographical name only gives the stream Sevnica, it was obviously a solitary house.
The presentation of testimony of those imprisoned under in-vestigation confirms that the system of ore theft, the search for native mercury and its trafficking was a multifaceted process which involved many other brokers and mediators besides the thieves. Large scale vendors were included in the system of purchase who – as this particular court case emphasizes – bribed the miners. Most often they sent intermediaries to buy and traffic the ore, which is why they were more difficult to imprison. The biggest clients (ore buyers with their own clan-destine smelters) lived close to Idrija at the time but were in different dominions belonging to two Hereditary Lands: Loka dominion which belonged to Carniolan Hereditary Land and Tolmin dominion with its special district board belonged to Gorica (Gorizia) Hereditary Land. At least eight intermedi-aries, traffickers and resellers or buyers that were denounced by alleged thieves in the investigative process in 1700 remain-ed unpunishremain-ed even after a year’s time. It was probably because the intermediaries only occasionally came to Idrija that the Idrijan authorities could not imprison them. Not only Idrijan authorities but the criminal court judge Janez Jurij Hočevar demanded from the landlords of the alleged offenders (espe-cially the Škofja Loka governor) that they be apprehended, but the cooperation of other landlords was not always exem-plary in such cases. The more exemexem-plary collaboration was with the Tolmin dominion, which according to an urbarium from the beginning of the seventeenth century conducted cri-minal procedures even for Idrijan subjects (cross-referenced in Terpin, 2007: 85-87). According to this particular criminal court judge’s apology before supreme authorities he did not receive any kind of response from the Škofja Loka governor, and so the he avoided responsibility by labeling all of the ac-cused as fugitives to other Hereditary Lands and to the Republic of Venice. (StLA, IÖ, Cop 1700-4-138, 1700-7-71, 1700-11-87, 1701-1-10). According the system of public security estab-lished it was expected that these other governors would im-prison the alleged wrongdoers and conduct their initial inter-rogations (Žontar 1998). In his first letter addressed to the Inner Austrian government the judge believed they would ap-prehend some of the traffickers even before passing the ver-dict on those already imprisoned (StLA, IÖ, Cop 1700-4-138, 1700-7-71, 1700-11-87, 1701-1-10). In contrast to his expec-tations they did not manage to catch any of the denounced delinquents before the publication of the final verdicts. Škofja Loka subject Andrej Peternel or Boč (Wätsch), who had his own ore smelter, as well as Matija Jezeršek remained at large. There was also ‘some other’ Matija, a reseller who came from the same dominion and whom the investigators believed had fam-ily ties with Peternel and supposedly even lived with him for some time. Later on the criminal court judge notes that he
came from Škofja Loka. Other collaborators included Tolmin subjects Tomaž ‘Boučan’ and Andrej Plah (Plach) and al-legedly also Ivan Gatej, a vicar from Šebrelje who smelted ore with Mihael Jež somewhere on the Šebrelje plateau in a place called Zatrep (StLA, IÖ, Cop 1701-1-10). The Inner Austrian government was bothered by the fact that there were three subjects of the Idrijan dominion among the accused, including two tenants: Anže Jesenovc, who supposedly lived near Peter-nel under Ptičje Brdo, Sebastjan Likar (Liker) and Matevž Kenda10(Valentinitsch, 1981: 359). During the process sev-eral other suspected resellers were mentioned in court proto-cols, among them Mihael’s son Andraž Jež and Matija Kožuh.
The process of theft and trafficking of ore was dangerous and quite intense for the perpetrator; the risk of being caught was high, due to well-organized system of formal supervision and informal social control.11A thief would have to remove the ore from the worksite slowly. Nevertheless, Arhar claimed in his second and third interrogation that he could remove from one and a half to three pounds of ore from the pit at once;
from 0,789861 to 1,5802 kilograms (Valentinitsch, 1981: 428).
He hid it in a special pouch under his belt. If we believe Gatej’s statement then he would have accumulated around eighty pounds (42,12 kg) of ore that way in his hideout. That means he would have smuggled the ore under his clothes from the mine almost every day. He then had to hide the ore, for which he used more or less well-chosen hideouts: during winter he would hide it in a pile of leaves on the dominion garden that was close to the mine. Arhar even buried it. They also listed fire-wood, a chest in the foyer of his apartment and the space under the stairs there as hiding places. The perpetrator and the hide-out could have easily been discovered, or noticed in the same
10 Subjects in the immedi-ate vicinity of the mine fell under the jurisduiction of the mining manager from the beginning of the seven-teenth century (1606 acc-cording to Arko). Also, I am using the forms of sur-names that are most com-mon in this environment and to which the court records relate.
11 ‘Social control’ means the informal mechanisms by which people have always sought to put pressure on one another in traditional societies.
[18] A note about use of torture in case of Anže Arhar. Styrian Provincial Archives, Graz, StLA, IÖ, Cop-1701, May 10, 1700.
way that Gatej was observed (StLA, IÖ, Cop 1701-1-10).
Despite this danger he did not flee from Idrija, which was the obvious choice of some workers and miners, so the judge noted during the trial that this was a special extenuating cir-cumstance.
The investigative process was led by the Carniolan Janez Jurij Hočevar, active as a criminal judge between 1695 and 1702 –1703. 3 (Košir, 2001: 182). In historiography he is well-known mainly for his notoriety in persecuting witches which was to be the reason for deposing him as the Carniolan crimi-nal judge (after 1702 or 1703) but supposedly he nevertheless assisted during a witch trial in Idrija in 1706 (Terpin, 2007: 97).
As a composer with the nickname Candidus he was a member of an esteemed society of intellectuals, the Academy of Operosi (Academia Operosorum Labacensium), with which he engag-ed more deeply after he was deposengag-ed from his job as criminal court judge (Košir, 2001: 171-182). He worked during a time when the Inner Austrian government was certain that witch-craft in Carniola was spreading. He sentenced at least four women to death between 1696 and 1699 (Košir, 2001: 176-179). But his list of ‘famous’ convictions does not end here:
he also sentenced to death the notorious Kljukec gang (the group of robbers led by Anže Košir) in a trial in 1697 (Otore-pec, 1997: 143-152) which was mentioned in Valvasor’s Slava vojvodine Kranjske ‘The Glory of the Duchy of Carniola’. Right before criminal process in Idria he presided over the trial of two women accused of witchcraft in Ribnica in Idrija (Košir, 2001: 182).
The first part of the process he led in Idrija was accom-plished very quickly, and began approximately a month after the arrest of the first delinquent, Jakob Gatej. The interroga-tions of people under investigation and of witnesses began in the early May, and continued into the second half of June. It was easier to lead these more serious criminal cases due to the proximity of Idrija (StLA, IÖ, 1700-4-138, 1700-7-71, 1700-11-87, Cop 1701-1-10, 1701-1-109, 1701-1-117). Soon after the final passing of verdicts against the delinquents in Idrija in January 1701, Hočevar began a second large-scale process. At the end of 1701 he presided over the interrogative case of a woman accused of witchcraft (Košir, 2001: 182). He began the process in Ribnica despite procedural errors in con-ducting both interrogations in Idrija. High-level officials crit-icised Hočevar for not complying with criminal law even though he should be familiar with it. That is why the court au-thorities in Graz reprimanded him further after the first process and demanded that he perform his work more dili-gently and with greater fervour. He had to return to Idrija and once again interrogate the delinquents at the end of 1700.
Why ore theft was a criminal act
Mercury was used in professional and folk medicine to relieve many forms of suffering. It was used as a laxative, and for the cleaning and treatment of (festered) wounds and ulcers.
Among the upper classes, mercury was perceived to be an an-tidote for ‘illnesses of the elites’ – melancholy and some sex-ually transmitted diseases (Oriel, 1994: 85-87; Burton 1835:
325). Since the sale of ore was monopolised mercury was ex-pensive on the ordinary market in pharmacies and due to its high price was inaccessible to most people.
Any product that had been subjected to a monopoly spur-red a vibrant illegal trade whether it was oxen, salt, tobacco or mercury (or cinnabar ore). But vendors of other goods liked to avoid compulsory taxes and places where tolls, additional taxes or customs duties for maintenance of roads and bridges were collected. Tollhouses were densely planted in both Car-niola (Krain) and Gorica (Görz) in the Habsburg Hereditary Lands (Valentinitsch, 1989).
A vibrant illegal trade was also established for cinnabar ore. The investigative process in 1700 again showed that the demand for mercury was great, as was the system of illegal acquisition and sale of mercury. Wealthier individuals ap-peared as ore or mercury buyers, such as the priest of Šebrelje Ivan Gatej (Götte) and the aforementioned unknown Matjaž from Škofja Loka. Hočevar deftly packaged the forbidden ac-tivity of Šebrelje’s vicar uncovered during Arhar’s second and third interrogations as unverified rumours, as Arhar said that he heard of the priest’s activity from some messenger who bought the ore for him. Thus he justified his decision not to in-vestigate the priest’s involvement. The miners’ statements re-veal Ivan Gatej’s social standing: they describe him as dressed in “noble” cloth in comparison to the peasant traders (StLA, IÖ, Cop 1701-1-10). It is specifically mentioned that the parish-ioners drove the priest from Šebrelje before 1710 (Rupnik 1997: 59-60). Perhaps the charge also reflects the disagree-ments they had with him.
Besides the ore buyers, the judge and of course the mine authorities were interested in mining sites and elementary mercury sites. Therefore, the court clerk meticulously recorded all sites. Among other things, Arhar claimed to have found el-ementary mercury in the Nikova stream and ore at the domin-ion mill (StLA, IÖ, Cop 1701-1-10). In contrast with the miner’s testimony Hočevar seemed to represent the opinion of the mine administration that this elementary mercury could no longer be found. The judge labeled Arhar’s claims to be lies and proof that any kind of interrogative process can be used against him, including torture. Notwithstanding the likeli-hood of such finds, Arhar used these stories of veins of
ele-mentary mercury in his defence (StLA, IÖ, Cop 1701-1-10).
Such stories were obviously popular among the miners. It would be difficult for him to invent such excuses by himself.
Nevertheless the belief that such sites could be found per-sisted for some time. Even in 1737 the mining authorities hoped to find new mining veins and publicly promised their discoverers rewards (Arko, 1993: 101).
Mercury market: The social standing and economical situation of thieving miners
In all known judicial processes against thieves and smugglers of cinnabar, most of those convicted came from the lowest so-cial strata or lived on the edges of society. This claim applies to mine workers who stole ore and messengers alike. In the documentation of the process in 1700, large-scale buyers (and smugglers) of cinnabar and mercury appeared alongside ped-dlers. These buyers were quite wealthy and knew how to con-vince the miners to steal, a fact that was singled out by the judge in the trial presented here. Hočevar was also investigat-ing information regardinvestigat-ing the quantity of mercury that could be produced from ore. During his interrogation in 1700, Anže Arhar, who was one of the most experienced miners on trial, dismissed the judge’s belief regarding the enormous quantity of mercury produced from the ore in question. He responded that it was merely the boasting of the trafficker in order to convince the younger and less experienced Jakob Gatej to steal the ore (StLA, IÖ, Cop 1701-1-10). Just a few years prior, an order for the miners to come to work in pocketless uniforms to discourage theft was added to the main instructions for the Idrijan mine (Arko, 1993: 101). The authorities of neighbour-ing dominions obviously had no interest in discoverneighbour-ing illegal traders of cinnabar ore; the silence of the Škofja Loka gover-nor could be attributed to this circumstance.
Let’s first examine the ore thieves. In the description of circumstances surrounding the crime the criminal trial records (when read between the lines) reveal Hočevar’s belief that the traffickers sought ‘easy’ victims, i.e. poor miners. Persecution, denunciation and punishment of ore smuggling in the begin-ning of the eighteenth century focused primarily on the
Let’s first examine the ore thieves. In the description of circumstances surrounding the crime the criminal trial records (when read between the lines) reveal Hočevar’s belief that the traffickers sought ‘easy’ victims, i.e. poor miners. Persecution, denunciation and punishment of ore smuggling in the begin-ning of the eighteenth century focused primarily on the