PRELIMINARY STATEMENT
Showing the Grounds upon which is founded the Right of the Duchy of Cornwall to the Tidal Estuaries, fore-shore, and Under-sea Minerals within and around the Coast of the County of Cornwall.
It does not appear from the case stated on behalf of the Crown, that any act of ownership on the part of the Crown has ever been exercised over the property now forming the subject of consideration, or that any other title is asserted than the primá facie common law prerogative right of the Crown in general, to property of this description, and which is now asserted, for the first time, in opposition to the Duchy, after the lapse of many hundred years.
It is contended, on the part of the Duchy, that this general primá facie right of the Crown has not application, as against the Duke of Cornwall, within his Duchy or County of Cornwall, and, consequently, not to the particular property forming the subject of the present question; inasmuch as, that in very ancient times, - long before legal memory - probably from the time when the Britons were driven by the Saxon invasion to the extremities of the kingdom in the West, Cornwall appears to have been, like Wales, a distinct principality. That, at the time of the Conquest, and subsequently, it was still treated in many respects as distinct from England; and when it afterwards became an English county
it still retained many, if not all the rights of a county palatine, and was granted, sometimes with more, sometimes with fewer, Jura Regalia to the successive Earls of Cornwall, and was ultimately granted as a Duchy, when, for the first time, a Dukedom was created in England in favour of the eldest son of the King, - and it is not to be conceived that the new title was to be attended with less dignity, power, and prerogative than the Earls had enjoyed: That the grant to the Dukes has always been construed in accordance with this view, and has been so treated, not only by the solemn resolutions of courts of justice, but also by the legislature of the country.
There is evidence to show that from the earliest times Cornwall was distinct from the kingdom of England, and under separate government, "olim cum titulo Regni," as is said in Hofman's Lexicon. As an historical fact, it is believed this cannot be disputed. See Carew's Survey of Cornwall, published in 1602, pp. 76 et seq., where the circumstances of its ancient history are minutely detailed. The following may be adduced as evidence of its having so continued subsequently to the conquest.
A Charter granted by Reginald of Cornwall, natural son of Henry I. to the Burgesses of Truro, is thus addressed : “Reginaldus Regis filius Comes Cornubiæ omnibus Baronibus Cornubiæ et omnibus militibus et omnibus libere tenentibus et omnibus tam Anglicis quam Cornubiensibus Salutem. Sciatis quod concessi liberis Burgensibus meis de Triueru,” &c.
An Inspeximus Charter of 13 Edward I. recites a Charter of King Hcnry II. to the same parties, addresses as follows : “Henricus Dei gratia Rex Angliæ, &c., Archiepiscopis, Episcopis, abbatibus, comitibus, Baronibus, Justiciariis Vice-comitibus, Ministris etc. totius Angliæ ct Cornubiæ Salutem,” &c.
And in the Acts of the council of the first Duke of Cornwall, 25th Edward III, c. 65, (in the chapter house,) certain returns were ordered relative to the property of the Duke in Cornwall and England.
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There would seem also this peculiarity attached to the Earldom, that it did not become merged in the Crown, when, from the want of a possessor, the title had reverted : thus, in the 7th Edward II., when there was no Earl, the King took the fealty of Joan Crispyn for lands which her brother Roger had held of the King in chief, not jure coroniæ, but “ut de Comitatu Cornubiæ in manu Regis existente.” See Orig. vol. i. p. 203. And there are other instances of a similar nature, thus showing, that in law, the Crown and the Earldom were distinct.
It is, of course, extremely difficult at this distance of time to show from recorded acts of ownership, the extent and nature of the rights, property, and privileges of the ancient Earls of Cornwall, and the difficulty is increased by the fact, that a large number of the records relating to the Earldom and Duchy of Cornwall, which would naturally be referred to for this purpose, and which were kept at Lostwithiel, were destroyed there many years ago ; and it must be also remembered that the public records of the county, whilst they would, doubtless, contain entries showing any dealings on the part of the Crown, would not, ordinarily, contain such entries as regards any acts or dealings on the part of the Earls, who, of however high a nature their rights may have been, were still merely subjects of the Crown : the evidence from this source, therefore, must be principally of a negative character.
The printed copies of the Originalia, described in the preface of the Record Commissioners as “Extracts transmitted from the Court of Chancery into the Lord Treasurer's Rememberancer's Office in the Exchequer, of all grants of the Crown enrolled on the Patent and other Rolls whereon any rent is reserved, any salary payable, or any service to be performed," may be here referred to as affording evidence of this nature. In these records any dealings with the property in question by the Crown would appear, and as regards other counties than Cornwall (not palatinate), they do appear regularly and in successive order, containing, amongst other things, grants of wastes, forest rights, fisheries, &c., &c. ; but not so with regard to the county of Cornwall.
These published records commence with the 20th Henry III. 1235, and they continue down to the end of the reign of Edward III. 1377. From 1235 to 1299, (temp. Earls Richard and Edmund,) a period of 64 years, not a single entry of any grant occurs with reference to Cornwall; but subsequently to the decease of Earl Edmund, we find grants by Edward I. and Edward II. in Cornwall, and, amongst these, being at a time when there was no Earl in existence, we find grants of Royal minerals in Cornwall made by the Crown, a fact deserving of particular notice. See the grant to John de Wylrynworth, Orig. 18th Edward II., Rot. 6; and a grant to William de Somerhill de Asperton, Orig. 20th Edward II., Rot. 2.
On the other hand, where positive evidence is to be found, it testifies to the high nature of the rights attached to the Earldom of Cornwall.
Of course, the searches and investigation in this respect may be carried to an almost unlimited extent, and the few instances about to be mentioned must not by any means be taken as the whole of the testimony which may be capable of being adduced on this head, should further searches be deemed necessary.
It is clear that the Earls exercised the prerogative right of granting by charter, as in the case of the Crown. See the charters by Earl Reginald, already referred to in this statement. Additional instances of this can be adduced to almost any extent, but it is not thought necessary to incumber this statement with them. There is, however, one which will be more particularly referred to in a, subsequent part of this statement, which it may be well to mention here. It was a charter by which Earl Robert, in or about the year 1085, granted to the monks of the church of St. Michael de Periculo Maris, the Island or Rock of Mount St. Michael, and founded there a cell of the church of St. Michael de Periculo Maris, and in legal proceedings which were subsequently had with reference to this ecclesiastical foundation, the ground of the Earl's title to make the grant is stated to have been, that, “being Lord of the county of Cornwall, he was seized of the Castle and Honor of Launceston, and of Mount St. Michael as appertaining to the Castle and Honor aforesaid.” Having regard to the locality of Mount St. Michael, this shows the great extent of the Honor in question, which Honor, it may be observed, was expressly named in the Duchy Charter as forming parcel of the inalienable possessions of the Dukedom.
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It is moreover deserving of notice, that the charters granted by the Earls were recognised and treated by the Crown as Royal Charters. They were made the subjects of Inspeximus and Confirmation, as in the case of charters granted by the Crown. Almost any number of instances of this may be adduced; but it will be sufficient to refer to an Inspeximus Charter of the 13 Edward I. reciting and confirming the charter before mentioned from Earl Reginald to his Burgesses of Truro. And it will be seen that this course of proceedings was exactly that adopted with regard to charters granted by Palatinate Earls. See, for example, an Inspeximus Charter of the 28th King Henry III., dated 8th December, 1237, which recites and confirms a charter granted by Ranulph, Earl of Chester, to the citizens of Chester, and it is remarkable that, in both these instances, there was in one case an Earl of Cornwall, (viz., Earl Edmund), and in the other an Earl of Chester, (viz. John Le Scot, the last Earl preceding the annexation of the Earldom to the Crown), in existence at the periods when the confirmations by the Crown took place.
In the Placitorum Abbrev. in the 3rd of King John, it is said of Earl Reginald, “Comitatum Cornubiæ habuit et omnia quae ad dominum Regem pertinebant.” And it appears from the same entry that the Earl pardoned outlawries, &c. And by his charter, before mentioned, he granted to his Burgesses of Truro, to be free of toll “per totem Cornubiam.”
In the charter roll 45th Henry III. is recited a grant made by Richard, Earl of Cornwall to the inhabitants of the county of the right to take sand from the sea shore for the fertilization of their lands, affording the strongest evidence that, at the time of such grant, the very species of property about which the present question has been raised, was dealt with as appertaining to the Earldom.
The same Earl also granted by charter to his Burgesses of Helleston certain privileges, and amongst these, a freedom from tolls, “per totum comitatum nostrum Cornubiæ.” See charter recited in Acts of the Council of the Black Prince, September, 28th Edward III. c. 34, at the Chapter House.
In the 6th of Edward I., when proceedings were taken against the Bishop of Exeter for that “usurpavit super regalitatem Regni et Regis,” in matters within Cornwall, it was upon the complaint, not of the King, but of the Earl of Cornwall. See Plac.Abbrev.; Rot. 12 in dors.
The next cited case is one deserving of particular attention. On referring to the charter granted to Earl Richard, King of the Romans, it will be found that no mention is made in the charter of the prerogative right to wreck of the sea in Cornwall; and it appears that in the Reign of Edward I. the Crown disputed the title of Earl Edmund, who inherited the Earldom from his father, to this right; and proceedings for asserting the prima facie prerogative right of the Crown to wreck were instituted against the Earl, which is believed to have been the last occasion of such a claim on the part of the Crown, as regards Cornwall, having been brought before the courts of judicature of the kingdom. The result of the proceedings entirely supports and confirms the view taken on the part of the Duchy, for the right was adjudged to be in the Earl throughout the whole county of Cornwall. See Plac. Abbr. 14 Ed. 1st, Rot. 6.
A similar observation applies to the prisage of wines in Cornwall, to which it appears from the return to the inquisitio post mortem of Earl Edmund, that the Earl was entitled. This right is not mentioned in the charter to Earl Richard, nor does there appear to have been any express grant of it. The prisage of wines is stated by Lord Hale to be an ancient inheritance of the Crown of England, and one which could not be transferred except by express grant of the right itself. The inference to be drawn from this is, that this right as regards Cornwall was vested in the Earls by virtue of their tenure of the Earldom as distinct from the Crown of England.
Subsequently to the death of Earl Edmund without male issue in 1299, the Earldom was granted by Edward II. to his favourite Piers Gavestone, but the vicissitudes that occurred during the short period for which he held the Earldom render it impracticable to form any decided opinion as to the extent of the privileges bestowed upon, or the rights exercised by him. The grant made to him in 1307 was resumed in 1311, and he had been previously expelled the kingdom. The next and last, created Earl was John of Eltham,
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younger brother of Edward III. created in 1331, who held the Earldom for a few years only. There may be some grounds for supposing that the grant to this Earl comprised fewer Jura Regalia than had been enjoyed by former Earls, but this is not a matter of material importance : and as he was for nearly, if not quite the whole of his tenure of the Earldom under 21, there is not likely to be any evidence connected with it bearing materially upon the present question.
We now come to the period of 1337, when the Earldom was augmented into a Duchy. Here it may be remarked, that the difficulty before adverted to in the case of the Earldom, namely of showing from recorded acts of ownership the nature and extent of the rights, property and privileges of the early Dukes of Cornwall again presents itself. The former observations upon this point may be referred to, and it will be obvious, that in this case also the evidence must be principally of a negative character.
Upon referring again to the Originalia from the 11th of Edward III. 1337, (when the Duchy was created in favor of the Black Prince, who was then only seven years of age), to the 25th of Edward III. when he attained 21, we find entries of dealings with the property Cornwall, on the part of the Crown, as was done also with reference to other portions of the Duchy possessions during the Prince's minority ; for example, a grant of the custody of the Manor of Berkhampsted was made by the King in 1349 : Berkhampsted being expressly named in the Charter of Creation as parcel of the possessions of the Duchy. But from the period of the Prince attaining 21, until his death in 1376, a period of 25 years, there is no entry as regards Cornwall, excepting one in 1358, where the Sheriff was ordered to deliver seisin to a certain party of the lands of an outlaw, being at a time when the Duke was probably absent in France ; and one in 1374, which referred to a fine paid by the Prior of St. Peter's, Bodmin, for the confirmation by the Crown of a Charter of Earl Reginald, containing a grant in mortmain, which would be nothing more than a licence under a particular Act of Parliament (18th Edward III. stat. 3, c.3) to hold in mortmain.
So, in the case of royal minerals of gold and silver, with one exception, which occurred during the period that the Black Prince was under 21, when the custody of silver mines in Devon and Cornwall was granted by the King, and which was in the nature of an appointment of a mineral surveyor ; all grants relating to royal minerals by the King, subsequently to the creation of the Duchy, and they are numerous, are, so far as Counties are named, confined expressly to the Counties of Devon and Somerset, in the latter of which silver was supposed to exist. See these grants in the Originalia in the 12th, 13th, 23rd, 32nd, 33rd, 43rd, and 47th years of King Edward III.
In the 32nd of Henry VI. a Bill was introduced to Parliament for authorizing the working of mines of silver in the Counties of Devon, Cornwall, Dorset, and Somerset, under the oversight of such officers as by the King, for that which the Sovereign belonged, should be ordained, and for that which to the Prince belonged, under the oversight of such persons as by him thereto should be ordained. The King to have for that which pertained to the Crown 1/13th part of the ore gotten, and the Prince for that which to him belonged a similar proportion, and the owner of the soil to have 1/15th part of the residue. See Roll of Parliament, Vol. 5, page 272.
This Bill was not passed into a law, but taken in connection with the fact that royal minerals in Cornwall ceased to be granted by the Crown when there was a Duke of Cornwall ; it is very significant to show the view taken at that period of the prerogative rights of the Duke in Cornwall.
On the other hand, where positive evidence is to be obtained, it shows that the Dukes of Cornwall enjoyed and exercised in connection with their Duchy high prerogative rights, at least, as extensive as those previously enjoyed and exercised by the Earls.
The Duke seized and confiscated the enemies' ships in time of war, and the enemies' merchandize contained in them, as well as in neutral vessels, whenever they came within the precincts of the Duchy. See Minister's Accounts for the 29th and 31st Edward. III. and other years.
The Duke addressed the inhabitants of Cornwall as his “faithful subjects.” See Acts of the Council of the Black Prince, November, 35th Edward III.
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Writs of inquiry “ad quod damnum,” were issued in the name of the Duke. See a writ of this nature in the 21st Edward III.
Under the authority of the Duke, prisoners charged with high felonies, such as manslaying, were admitted to bail. See Acts of the Council of the Black Prince, 26 th Edward III. cap. 2.
The next instance is one deserving particular attention. –
When the Lord of the Manor of Winianton (probably now Winnington, on the Eastern Coast of Mount's Bay, and not very far distant from Trewavas Mine), interfered with parties taking sand for the fertilization of their lands, a privilege granted by Earl Richard as has been before shown, he was stopped by order of the Duke. See Acts of the Council of the Black Prince, in November, 31st Edward III., and in February, 35th Edward III.
Orders for the protection of poor fishermen upon the sea were issued from the Duke; and under his authority their wrongs were redressed. See Acts of the Council of the Black Prince in November, 31st Edward III.
And in addition to wreck of the sea, prisage and customs of wines, and profits of ports (ordinarily), the Duke in Cornwall took the great customs of wools, wool-fels, and leather, and had his seal of coquet or cocket, by which the merchants exporting these articles, had there quietus. See Minister's accounts for the 21st Edward III., and various other years.
The Duke had also a duty or custom under the name of Maletot, being a proportion of the monies produced by sale of salt, corn, &c., a right which, as in the case of the coquct, was a “jus regium.” See Minister´s accounts for the 31st Edward III., et passim.
The inhabitants of the islands of Guernsey, Jersey, Alderney, and Sark, were by the King exempted from the payment of what was called the alien's custom within the realm of England ; but by the express command of the Duke and his council, this custom was exacted from them within the precincts of the Duchy. See Acts of the Council of the Black Prince in October, 31st Edward III.
These latter, it is submitted, were fiscal regulations, inconsistent with any other supposition than that the Duke was quasi Sovereign within his Duchy.
In the reign of Edward IV., an Act of Parliament was passed relating to offences against the coin, and certain forfeiture were imposed, which were directed to go expressly to the use of the King's household. But there is a provision that as regards Cornwall, the forfeitures should go to the Duke, in the same manner as they would in other places go to the King. This provision, as will appear from a perusal of the Act, was in the nature of a saving clause ; its operation, therefore, being not to give to the Duke any new right, but rather as recognizing and preserving to his Royal Highness a right previously vested in him as a prerogative of the Duchy. See 17 Edward IV. c. 1.
The Dukes also had their own escheators in Cornwall, and it is deserving of notice that in the saving clause of the Act of Escheators, 1 Henry VIII., c. 8, s. 5 (as is the case in numerous other acts of Parliament), the Duchy of Cornwall is classed with counties undoubtedly palatinate.
Having regard, therefore, simply to the rights actually exercised by the Dukes of Cornwall, there is reason to suppose that the Dukes were invested with rights and privileges at least as extensive as those enjoyed by the most potent of the Earls. But in addition to this, it will be necessary to consider the circumstances which attended the creation of the higher dignity.
Here it may be remarked, that this was the first occasion, after the Conquest at least, of a Dukedom or Duchy being created in England ; and that its creation was attended with a pomp and solemnity far exceeding any that had before attended the creation of the Earls. The first person to receive the new dignity was the heir apparent to the throne, and it was conferred upon him in the presence and with the unanimous Consent of the Prelates, Earls, Barons, and others of the King's Council in Parliament assembled, accompanied by a solemn Act of the Legislature.
It is scarcely possible to conceive, that in thus augmenting the Earldom into a Duchy, and conferring that Duchy upon so distinguished a personage as the heir apparent to the throne, the intention could have been to have invested its possessor with less extensive rights and privileges than had previously been annexed to the lower dignity and enjoyed by the Earls, who were persons of inferior rank.
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Lord Coke, in his Report of the Prince's case, states that the Judges confirmed their opinion, - in that case, first by reason, and then by authorities in the law, - and he states that one of their reasons was “ex absurdo” that six others being created Earls at the same time for the honour of the Prince, all their creations and donations should be firm and good in law to some of them and the heirs of their bodies, and to others in fee simple. And that the creation of the Prince himself and of such a most noble prince, and the grant to him of the said castles, manors, &c., should be either void in law or but an estate at will, in such a time when the Judges (who always attended Parliament) were most wise and learned in the law.” 8 Rep. 17 b. A similar argument may not inappropriately be applied to negative the idea that it was intended in augmenting the Earldom into a Duchy, to confer upon its royal possessor rights less extensive than those which had been enjoyed by the Earls. It is submitted, that on the contrary the circumstances were such as to afford the strongest presumption that these rights and privileges, of however high a nature they may have been, were intended to be maintained at least in their full integrity ; and that nothing short of the most positive evidences of a contrary intention can avail to rebut the presumption thus arising.
It will be found on examination, that generally speaking, the charters of the Earls of Cornwall contained no specific description in detail of the particular possessions, rights, or privileges attached to the Earldom. The description was usually in general terms, such as “Our County (or Earldom) of Cornwall,” or “Our whole County (or Earldom) of Cornwall,” and the absence of this or some equivalent general expression in the 1st of the Duchy Charters, called the Great Charter or Charter of Creation, dated the 17th March, 11th Edward III., is calculated at first sight, without mature consideration of the attendant circumstances, to create an impression, and undoubtedly has done so, that the grant was of something less than had been comprised in the previous grants.
Now, if the charter had granted “our whole Earldom of Cornwall,” it would manifestly have been incorrect, inasmuch as the Earldom was intended to have no longer any existence, the less being absorbed into the higher dignity. It would also have been incorrect to have specified in this charter “our whole County of Cornwall” as distinguished from the Earldom, inasmuch as the expression would have included the fees of the Crown, which had not been attached to or formed part of the possessions of the Earldom, and were subject of separate grant in the 3rd Charter, dated 3rd January, 11th Edward III.
It would also have been equally incorrect to have used the expression “our Duchy of Cornwall,” as until the completion of the grant, there was no such thing in existence.
A general expression might have been used which would have been free from any of these objections ; - it would have been this – “our whole Earldom of Cornwall under the name of a Duchy ;” and, although these words were not used, an examination of the circumstances will show that this was, in fact, the precise effect of the language of the charter. Instead of using this general expression, it was no doubt considered more desirable for the benefit of the Duchy, and with a view to prevent any alienation of the lands in future ages in contravention of the limitation contained in the charter, and to the impoverishment of succeeding Dukes, to specify by name and with a declaratory effect, what had been the particular possessions of the Earldom.
This course was adopted, and the description given is so precisely similar to, as evidently to have been carefully taken from that contained in the record (which fortunately exists) of the Inquisitio post mortem of Earl Edmund, who may be said to have been the last Earl who had been permanently and substantially in the enjoyment of the entire Earldom. The record of this inquisition, which, was taken upon the death of Earl Edmund, in the 29th of Edward I., professes to enumerate and describe with official correctness the whole of the possessions of which the Earl died seized. In it, however, as in the Duchy Charter, no mention occurs of the Earldom or County of Cornwall ; but that Earl Edmund died seized of “the whole county,” which he inherited from his father, Earl Richard, King of the Romans, in the sense in which the expression is used in the earlier charters, is clear from the charter to Piers
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Gavcston, in the 1st Edward II., by which the King granted to him “our whole County of Cornwall, with the castles, towns, manors, &c. To hold to the same Peter and his heirs of us and our heirs, with all things to the aforesaid county, castles, manors,” &c., “pertaining as is aforesaid for ever, as entirely as the aforesaid Edmund held the same on the day of his death, and as to the hands of the said Edward of celebrated memory, late King of England, our father, they came.” As therefore it was not considered necessary to mention by name in the inquisition the county, with the mines and other appurtenances (though there can be no doubt that Earl Edmund died seized of all these), so it was considered equally unnecessary to mention them by name in the Duchy Charter ; and the description of the Cornish possessions in this inquisition and in the charter being identical, it seems the only reasonable inference that the same property, which was undoubtedly comprised under the language of the one was intended to be comprised under the language of the other ; or in other words that what had previously constituted the possessions of the Earls in Cornwall in the name of an Earldom, passed under the Charter of Creation to and became vested in the Dukes in the name of a Duchy.
It is true that certain rights were expressed by name in the charter which were not so expressed in the inquisition, - for instance, the power of appointing the Sheriff of Cornwall is expressly named ; but it will be found upon referring to the record of an inquisition take in the 2nd year of the reign of Edward I., that the right of appointing the Sheriff had been a matter of dispute ; its express mention in the charter, therefore, is readily explained on that ground, and shows that at all events in that particular instance the right previously claimed and exercised by the Earls was not intended to be withdrawn. So also in connexion with wreck of the sea, as to which, as has been before shown, an actual contest had been carried on between the Crown and the Earl, the fullest enjoyment of that right, and all possible privileges incident to or in any way connected with it, are expressly confirmed.
On referring to the subsequent Duchy Charters dated respectively the 18th March and 3rd January, 11th Edward III., not only do we not find any evidence of an intention to diminish the high rights and privileges enjoyed and exercised by the Earls, but on the contrary, we find that additional rights and privileges, and these of the highest order, are granted and confirmed to the Duke. For instance, by the 2nd Charter (viz. that of the 18th March) the return of all writs and summonses in Cornwall was annexed to the Duchy, a right which it appears from a passage in the last-mentioned return (2nd Edward I.) the Earls of Cornwall, at least, so far as Earls Richard or Edmund were concerned, had not enjoyed ; and by the 3rd Charter, the Crown appears to have entirely denuded itself of every remnant of seignory and territorial dominion, which it could otherwise have enjoyed within the County or Duchy of Cornwall, and thus made the rights of the Duchy, so far as such seignory and territorial dominion were concerned, more extensive even than had ever been enjoyed by the Earls. See Doomsday Book, Title, “Cornvalgie.” Orig. 20 Ed. II. Rot. 6, &c. &c.
It will thus be seen that the evidence derived from this source, viz. the charters themselves, instead of rebutting, strongly supports and confirms the presumption above alluded to.
It is, moreover, submitted that the three Duchy Charters are sufficient in themselves to vest in the Dukes of Cornwall, not only the government of Cornwall, but the entire territorial dominion in and over the county which had previously been vested in the Crown, with all such royal prerogatives as would naturally accompany, and the enjoyment of which would only be consistent with a grant of so high a character, including most, if not all, of the rights and privileges enjoyed by the owner of a County Palatine, - for, on inspecting these charters, it will be found that not only all the territorial possessions of the Crown in Cornwall but every prerogative right and source of revenue (except royal jurisdiction, and it may be ecclesiastical patronage) were granted or confirmed to the Duchy by one or other of these charters.
In the note at the foot of page 10, will be found an enumeration of all the heads of prerogative rights mentioned in “Staundford´s Prerogative,” and on comparing this enumeration with the prerogatives enjoyed by the Dukes of Cornwall, it will be found, that they were all vested in the Duke, except
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two ; those being, first - the custody of insane persons, which was one of the branches of royal jurisdiction exercised by the Court of Chancery ; and secondly, - advowsons, comprising what had been mentioned above as ecclesiastical patronage. The advowsons pertaining to the Earldom, it will be observed, passed by the first Charter. *
It is remarkable, that the power of suing in the Kings' Courts is nowhere given by the Charters, and yet there is no doubt of its having been exercised by the Dukes of Cornwall from the earliest times.
Had royal jurisdiction been added, it is conceived that Cornwall would have become thenceforth, to all intents and purposes, a County Palatine.
It is said by the judges in Davy´s Reports, folios 62 & 62a, that “every Count Palatine created by the King is Lord of an entire county, and has in it Jura Regalia, which consists of two principal points, viz. : 1st, Royal Jurisdiction ; and, 2ndly, Royal Seignory. By reason of his Royal Jurisdiction he has all the high courts and offices of justice which the King has ; and by reason of his Seignory, he has all the Royal services and Royal escheats which the King has.”
So far as Royal Seignory is concerned, it will scarcely be contended but that the Duke of Cornwall was placed precisely in the position of the King. He had all the Crown lands within Cornwall, whether in possession or reversion ; was entitled to all those feudal services and incidents which attached to those lands, and to all prerogative rights and emoluments, as wardships, marriages, primâ seizin, reliefs, escheats, &c. which belonged to the Crown as the ultimate and supreme lord of the soil.
It cannot, therefore, reasonably be doubted that this Royal Seignory, consisting of the King's demesne lands, reversions, feudal services, rights and emoluments, with the prerogatives above enumerated, did, in fact, comprehend the whole territorial. interest and dominion of the Crown in and over the entire county.
But the full and real effect of the Duchy Charters themselves will be more satisfactorily and conclusively shown by considering the construction put upon them in early times, not only in grants and legal proceedings in which they are recited or noticed, but also by the Courts of Judicature and the Legislature of the Country.
In a grant by the Duke to the Abbot of St. German's, in the 31st Edward III. the effect of the Duchy Charter is thus stated ; “And for that the Lord the King Edward our father gave to us the Duchy of Cornwall, with escheats, forfeitures, and all manner of liberties, prerogatives, actions, rights, and profits whatsoever, with all their appurtenances, as fully and entirely as the same our father could have had if he had retained them in his own hand.” (See Acts of the Council of the Black Prince in June, 31st Ed. III.)
*Prerogatives Enumerated in
"Staundford's Prerogative."Prerogatives vested in the
Duchy by,-Wards The Third Charter Primâ Seisin The Third Charter Marriages The Third Charter Forfeitures 2nd and 3rd Charters Advowsons The Advowsons pertaining to
the Earldom passed by the
1st. Charter.Insane Persons - Wreck 1st. Charter. Esceat The Third Charter Charters and Royal Grants Sanctioned by usage; as re-
gards the Earls but not
applicable to the Duchy, the
possessions of which were
inalienable.Peculiarities of the King's
Seizin, - Possession and
Title.All the three Charters Prerogative Process in the
Courts.Sanctioned by usage. ---------------------------bottom of page 10---------------------------
Again, in the 41st Edward III. it appears that the Prior of Mount St. Michael, the religious foundation referred to in the early part of this statement, refused to admit John Pusey, a nominee of the Crown, to a corody in his abbey or priory. Proceedings were instituted by the Crown against the Prior. The result of the proceedings, though not in favour of the nominee of the Crown, is probably not material ; but the plea upon which the Prior successfully resisted the claim of the Crown is important, as showing the idea then entertained of the Duke's rights in Cornwall, and the connection of the Duchy with the ancient Earldom. The following is a translation of the pleadings:-
" That Robert, some time Earl of Morton, and Lord of the County of Cornwall, was seized of the castle and honor of Launceston, and of the aforesaid Mount St, Michael, as appertaining to the castle and honor aforesaid. And he gave to God and the monks of the church of " St. Michael de Periculo Maris," there serving God, the aforesaid Mount St. Michael, where the priory is situated and founded, together with other lands and tenements, as in a certain charter which he here prefers, &c. is testified To be holden of him the said Earl and his heirs for ever, the estate of which Lordship the Lord the King that now is lately had.
And he says that the Priory of St. Michael in Cornwall is a cell. of the aforesaid house of " St. Michael in Periculo maris," which house or church de Periculo maris was and yet is an abbey.
And he says, that the Lord the King that now is granted to the Lord Edward, his eldest son, as Prince of Wales, the whole county of Cornwall, with the castle and honor aforesaid, &c., to the which, the aforesaid priory in Cornwall appertains, with the knights fees, advowsons of abbies, priories, churches, &c., with the prerogatives and profits, &c., as fully and entirely as the Lord the King, &c. To have to the same Prince and his heirs male, being the eldest son of the Kings of England, saving thereof to the Lord the King and his heirs the reversion as in the charter made to the same Prince, it is contained. At the time of which grant, and afterwards, one Roland Trewynard had the corody aforesaid at the asking of the said Lord the King by grant of the Prior of the place aforesaid.
And the same, now Prior, says, that he, by virtue of the grant aforesaid, is intendent to the aforesaid Prince as to his Lord Patron, and so holds the Priory aforesaid of the foundation of the aforesaid Robert, and of the patronage of the aforesaid Prince in form aforesaid."
In an Act of Parliament passed within a comparatively short period after the creation of the Duchy it is affirmed (as stated by Lord Coke, 8 Reports, 26) that, “At the Parliament held at Westminster the Monday next after the Feast of St. Matthias the Apostle, in the 11th year of the reign of Edward III., (amongst other things,) it was agreed that the eldest sons of the Kings of England, scilicet, those who should be the next heirs to the realm of England should be Dukes of Cornwall, and that the County of Cornwall should always remain as a Duchy to the eldest sons of the Kings of England who should be next heirs to the said realm, without being given elsewhere.”
See 9th Henry V., Parl. Rot. vol. 4. p. 140.
This statute was recited and confirmed in Parliament in the 4th year of the reign of Edward IV. See Parl. Rot. vol. 5. p. 553.
In the 38th year of the reign of Henry VI. we find a bill introduced into Parliament which, after reciting at length the three Duchy Charters, proceeds as follows : “By force of which Grants, Ordinances, Annexions, and Confirmations, the said Edward, then Duke of Cornwall, as Duke of Cornwall, was seized of all the said Duchie and Countie, Castell, Maners, Honoures, Parkes, Boroughs, Baillywyks, Bcddarics, Fyshings, Touncs, Mills, Prises, and Customes of Wynes, Proffitts of Portes and Havenes, Wreyks, Proffitts of Shires, Hundreds and Courtes, Stannarie with Cunage of the same, Percquisitcs of the Myncre and Stannar, with Water, with Franchises, Liberties, and all maner Proffitts and Possessions comprised in the said Letters Patent and Tenures of the same.
And the said Edward sometyme Duke of Cornwall and the said victorious Prince your fader, in the lyfe of your said Noble Aiell as Duke of Cornwall, used to have and had (amongst other) as parcel of the said Duchie, Fynes for alienation of all Lands, Tenementes, and Possessions holden of them in
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chief within the said Countie, and the first seizine of all Lands and Tenements of every tenant that held of them in chief within the said Countie, after their decesse and the issuez thereof taken to their owen use unto the time that they that right had to the same Landes and Tenementes sued and had lyvere thereof out of the said Duke's hands, as they should have doone oute of the King´s hands iff thay had holden them of the King in chief, an in like forme as your true liegemen doone and own to do within Counte Palatyne, notwithstandyng that thoo tenantez held in other places of the King in chief.”
After further mention, the Parliament Roll then proceeds : “Which Petition and Schedules were brought and deliberated upon by the Commons of the Kingdom of England in the same Parliament, to which the same Commons gave their assent in this form – ‘To this Bill, and to the Schedules to this Bill annexed, the Commons have assented.´ ”
“Which Petition, Schedules, and Assent having been read, heard, and fully understood. in the aforesaid Parliament, by the advice and consent of the Lords spiritual and temporal in the same Parliament, assembled by the authority of the same Parliament, an answer was given thereto in form following –
Let it be done as prayed, saving to the King certain things, in manner and form following - Soit fait come il est desire, saufes au Roy certyns choses, en manere & forme ensuantz –
Alway forseyn that all avoidances of Bishopriks, Dignities, and grete officers pertaynyng to the said Principalte and Duchie, be and stande at our will, nominatione, gift, and grante, this act notwithstanding.”
It will be observed, that there are two very remarkable features about this Act, which it is conceived must place beyond all doubt the title of the Duke to the County of Cornwall, and to all those prerogative and seignorial rights which would naturally accompany the grant.
In the first place, there is in effect an express declaration by the whole Parliament that, by virtue of the three recited charters, the Duke did become entitled to the whole County of Cornwall ; and, secondly, the fact of its having been considered necessary to except the appointment of Bishops from the operation of the Act, shows clearly the extensive and almost unlimited prerogative rights which at that time were considered to be attached to the Duchy.
In addition to these Acts of Parliament, and other entries in the Parliament Rolls, containing, as we have seen, positive declarations by the Legislature, as well as other evidence strongly confirmatory of the Prince's title to the county, we have also in the reign of James I. the highest judicial authority to the same effect. In the Prince's case before cited (8 Coke's Rep. 26), which was heard and argued several times before the Chancellor and Judges, the Act of the 9th Henry V. above mentioned was specially cited in the judgement, and must therefore be taken to have been approved and sanctioned by the Court. This Act, it will be remembered, distinctly affirms that, by the Charter of Creation, the County of Cornwall, (which expression probably refers to what had previously formed the possessions of the Earldom in Cornwall,) was always to remain as a Duchy to the eldest sons of the Kings of England.
Before concluding, it may be well to notice the distinction taken by the advisers of the Crown, between mines under the sea and under the sea shore ; and to show that it is entitled to little, if any, weight.
It is clear that land left derelict by the sea, or reclaimed by the labour of man, becomes part of the adjoining County ; and it is submitted that there is no substantial distinction between land so reclaimed and minerals reclaimed by means of under-sea workings.
The same reasons which. would apply to the case of surface land reclaimed, would equally apply to that of land reclaimed under the water; and it can hardly be doubted that if a murder were committed in one of these under-sea mines adjoining the County of Cornwall, the Coroner of Cornwall would have jurisdiction to hold an inquest, or that the offender might be tried in the County by a Cornish jury.
On referring to the authorities cited by the advisers of the Crown in support of this part of their case, it will be found that these authorities apply only to surface soil, and not to under-ground excavations.
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The question in Constable´s case, which is the leading authority upon the subject, was as to the relative extent of jurisdiction of the admiralty and Common Law Courts ; and it was held, that on the sea-shore bounding the open sea, the limit of their respective jurisdiction was the water´s edge, and that it accordingly varied in extent with flux and reflux of the sea.
It naturally followed from this decision that the extreme bounds of the county and of the jurisdiction of the county officers, the Sheriff and Coroner, must be the low water-mark. But in that case the possibility of under-sea excavations or of land being reclaimed, and being made the subject of property underground below the low water-mark was never contemplated, nor could the question in any shape arise, because it is clear from the very nature of Admiralty jurisdiction that it could never be meant to extend to land regions unconnected to the open sea, although those regions might, in fact, be locally situate under the bed of the ocean.
The case of Crosse v. Diggs, in Siderfin´s Report, p. 158, which is relied upon by the Crown, will be found (so far as it has any bearing at all upon the question) to be in favour of the Duchy, for it was there agreed that every suit relating to the rock itself, should be brought in the Temporal Courts, though the rock was situate in the open sea ; but as the profits of it belonged to the Admiral, he might sue for them in the Court of Admiralty, (See Crosse v. Diggs, translated from the precise language of the Report.)
CROSSE v. DIGGS.
"It was moved by prohibition in the Admiralty, that the suit was made there for profits of the beaconage of a rock in the sea near ----, in Cornwall. And it was said, that as the profits of the beacons belong to the Admiral, the suit for them ought to be in his Court, which is the Court of Admiralty (and that although the rock was parcel of the soil and freehold of another), in the same way that hospitals, &c., are visitable by the Bishop, although they are temporal inheritances ; and 4 Institute, Ia., title ‘Beaconage,´ was cited. And of this opinion were the whole Court ; and, moreover, they said that the beacon itself might be the inheritance of any private person, and impleadable in the King's Court."
With regard to the other ground taken by the Crown, viz.:- that the soil below low water-mark cannot be made the subject of grant or prescription, the principle upon which it is founded is this, that nothing can be made the subject of a grant (or of a prescription which implies a grant) but what can be made the subject of possession. “Nihil præscribitur nisi quod possidetur.” See Hale de Jure Maris, p. 32, and see Callis on Sewers, p. 49, where it is said, “A subject cannot have claim in any thing by prescription and custom, but that which lieth in use, which is the life of them both ; but lands and grounds which have always been sea, could not be or lie in use, and therefore they cannot be claimed, nor the same can be bounded out by prescription or custom.”
It is obvious, therefore, that this rule cannot apply to land under sea which has been reclaimed, for such land can and is made the subject of use and possession ; wherefore, as the reason of the rule fails in such a case, the rule itself ceases to, apply. And as there is no reason why the mines under sea thus reclaimed should not form part of the County of Cornwall, so there is no reason why, having become part of the County, they should not as such be subject to the prerogative rights of the Duchy.
A very apposite case in support of this view is put by Mr. Callis, in the 52nd and 53rd pages of his work on Sewers. The questions there discussed are, - 1st, whether certain lands which had been left derelict by the sea on the coast of the County Palatine of Chester from natural causes belonged to the King, as owner of the bed of the sea, or to the Earl of Chester, as owner of the County Palatine ? and 2ndly, whether an island which had risen out of the sea opposite the County Palatine should belong to the King or the Earl ? And the opinion arrived at by the learned author, after discussing the subject at some length, is that the land derelict by the sea, as it adjoined the county Palatine, became parcel of it, and therefore belonged to the Earl as the owner of the Palatinate ; but as regards the island, that belonged to the King,
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because it never adjoined the County, and could not without the King´s permission, be considered to form part of it.
In conclusion, it is submitted that the facts and authorities before referred to are sufficient to establish,-
1st. That Cornwall, like Wales, was at the time of the Conquest, and was subsequently treated in many respects, as distinct from England.
2nd. That it was held by the Earls of Cornwall with the rights and prerogatives of a County Palatine, as far as regarded the Seignory or territorial dominion.
3rd. That the Dukes of Cornwall have from the creation of the Duchy enjoyed the rights and prerogatives of a County Palatine, as far as regarded seignory or territorial dominion, and that to a greater extent than bad been enjoyed by the Earls.
4th. That when the Earldom was augmented into a Duchy, the circumstances attending its creation, as well as the language of the Duchy Charter, not only support and confirm the natural presumption, that the new and higher title was to be accompanied with at least as great dignity, power, and prerogative as the Earls had enjoyed, but also afford evidence that the Duchy was to be invested with still more extensive rights and privileges.
And lastly. That the Duchy Charters have always been construed and treated, not merely by the Courts of Judicature, but also by the Legislature of the Country, as having vested in the Dukes of Cornwall the whole territorial interest and dominion of the Crown in and over the entire County of Cornwall.
Duchy of Cornwall,
Somerset House,
May, 1855.---------------------------bottom of page 14---------------------------