Are you lost? Go to Main Index and Home PageREPLY on behalf of The Duke of Cornwall
to the “Observations” on behalf of the Crown.
It is not deemed necessary that this Reply should extend to any great length.
A considerable portion of the “Observations” it is not necessary on behalf of the Duke of Cornwall to call in question. Indeed, a great part of the Statements in the “Observations” of the General Law of England as to the Ownership of the sea-shore - its character, and the mode of making a title to it, is part of the case on behalf of the Duke of Cornwall, although the Observations on behalf of the Crown seem to be framed as if this were not so.
Those parts of the “Observations” which relate to the Stannaries and to the disafforesting Charter of King John, and many other parts of the “Observations” also, relate to Acts, when there was no Earl or Duke of Cornwall ; and other parts relate to the Kings Acts during the time that the Earl or Duke for the time being was under 21 : for example, such are the Acts of Edward III. while Edward the Black Prince was under 21 and the Acts of Charles I. while Prince Charles was under 21.
These parts of the “Observations” are not therefore of sufficient importance to be answered in detail, but it may be observed, that Edward III. discontinued Grants of Minerals in Cornwall after the Black Prince attained the age of 21, confining subsequent Grants to Devon, and that an Inquisition in the 11th year of the Reign of Charles I. finds, that “Dartmoor belonged to the King,” although it was expressly granted by the first Duchy Charter.
This shows how little dependence can be placed on the acts of the Officers of the Crown at that period.
The proceedings upon the Commission issued in the 13th King Charles I. (See p. 35, of “Observations”) will be found on reference to and examination of the Commission and Inquisition, and to other Commissions issued about the same period, not to afford any argument against the Duke's claim – but rather the contrary. The King´s title was not, in fact, therein recorded as the “Observations” state. The Commission was not confined to lands held of the King only. The Inquisition finds not merely the King's lands. Some of the lands in the Inquisition were unquestionably Duchy lands.
On reference to Doomsday, it appears that none of the Terra Regis in Cornwall belonged to Edward the Confessor. Nearly all of the lands belonged to Earl Harold. The Statement in the “Observations” (p. 7), that the King's lands are confined to those which belonged to the Confessor, is not therefore correct as regards Cornwall. The Statement may be generally correct, if applied to the lands of those who fell in arms against the Conqueror. It appears by Doomsday, that Earl Morton had 248 estates, of which 22 were in the Earl's hands, and that Trematon, of which Sutton Pool, was parcel, was held of this Earl.
A great part of the “Observations” is occupied in commenting upon what is properly included within the “County” ; but it is submitted that this part of the “Observations” does not meet the statement on behalf of the Duke of Cornwall. The distinction between a grant of a Shrievalty and the grant of a County as a territorial grant, is manifested by the frame of the Charters themselves. As one example, - the two Charters to Earl Richard, stated in p. 14 of the “Observations,” may be referred to.
The instances stated in the “Observations,” of the Crown having exercised some prerogative rights, do not affect the contention on behalf of the Duke of
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Cornwall, it not being alleged that the Earls of Cornwall had vested in them all the prerogative rights of the Crown. Even if it were assumed that the Earls had not any prerogative rights whatever, it would not determine that ; their territorial ownership did not include the sea-shore. Thus, whether the King could, notwithstanding the territorial ownership of the Earls, enforce the Forest Laws in the Earl's territory is unimportant. It may, however, be observed, as the Forest Laws are more than once mentioned in the “Observations," that it would seem no person, not even a Lord of a Manor, could by common law justify sporting on another's soil, or even on his own, unless he had the liberty of free warren, and that a licence from the King was necessary to the creation of a warren, or the appropriation of animals feræ naturæ, 8 Rep. 108. 11 Rep. 87. 2 Bl. Com. 3.
It is asked in the “Observations” (p. 15), “If the creation of Earl of Cornwall had carried with it any territory or rights, why the first temporary grant ? Why the second grant in fee ?” And it is alleged that there is a fallacy as to this pervading the Duchy Statement. The answer to this inquiry is, that it is a fallacy to treat the contention on behalf of the Duke of Cornwall as is here done. The creation of the dignity of Earl would not carry with it territorial possessions ; but the grant of the County (or Earldom) would do so. Such first temporary grant did not even create the dignity of Earl.
The proceedings at the Iter of 12 Edw. I. (p. 18 to 21 of “Observations”) fortify the position contended for on behalf of the Duke of Cornwall. The Earl of Cornwall claimed the whole County (see p. 20). The Castle of Dunheved or Launceston was the Caput Baroniæ (See Doomsday.) The “Observations” state (p. 21), that Earl Edmund and his father claimed under the grant to Earl Richard as a grant of the whole County as a Lordship. The territorial grants to the Earls were grants of the whole County ; and thus the Lordship, Seignory, or Earldom of Cornwall was vested in them. The Castle itself would, it is conceived, have sufficed to describe all the territorial possessions of the Barony, Lordship, Seignory, or Earldom, whichever of these terms of description be adopted ; for, under the name of a Castle, any number of manors may pass. Co. Litt. 5a. The proceedings at these Iters should not be passed over without pointing out an inaccurate translation contained in the “Observations.” In p. 21 of the “Observations,” in stating what took place at the Iter of the 14th Edward I. the following words are not translated : “Et quia satis constat curiæ quod predictus Ricardus inde obiit seizitus.” These words afford a sufficient answer to that part of the “Observations” which is founded upon the incorrect statement therein of the proceeding in question.
The Grant by Richard Earl of Cornwall to get sand (p. 15 of “Observations”) is not, it is submitted, affected by the Charter having been made the subject of Inspeximus and Confirmation. Such Confirmations were not unusual, and, for reasons not at all affecting the general efficacy of the Grant, were not inexpedient. (See as to the Charters of Earls Palatine, p. 24 of “Observations.”) It seems to have been the opinion of Lord Hale (p. 26) that the statute 7 Jas. c. 18 recognizes the ownership of the soil of the sea-shore not being in the Crown. As shown in the Original Statement on behalf of the Duke of Cornwall, the first Duke of Cornwall enforced the right of getting sand as against a Lord of a Manor interfering with the exercise of that right.
With respect to the Grant to John of Eltham, (see p. 27 of the “Observations,”) the language of that Grant is not co-extensive with the language in the Duchy Grant ; thus, in the former, we find, “The Castle and Borough of Launceston in the County of Cornwall ;” in the latter we find, “The Castle, Borough, Manor, and Honor of Launceston, with the Park there, and other its appurtenances, in the Counties of Cornwall and Devon.” The latter description shows that this great Honor extended into Devonshire on the east, and it is clear that it extended to and comprised the Scilly Islands on the west, which are stated to be held of this Honor (see Inquisition taken 22nd Edward III. 1349) on the death of Ranulph de Albo Monasterio, (Blanch Minster,) and it has been shown that it comprised also St. Michael´s Mount on the southern coast. It appears, however, that even this Earl had under his grant the Seignory of the County. This appears from the Assessioning Commission of 7 Edward III., which is thus stated by Lord Tenterden in
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his judgment in Rowe v. Brenton, 3 Man. & Ryl. 351. “It (the assession Roll) appears to have been taken under a commission issued by Prince John, directed to several Commissioners, - and it is in the form which was used at that period of time in such cases. It recites thus : Whereas many of our tenants of our Seignory of Cornwall have long holden and do yet hold in divers manors great part of our demesne lands (that is, the Prince's own land) in convention, rendering for the same lands certain rents by the year ; and their terms only expire at the Feast of St. Michael next coming, as is and ought to be known in the County : and forasmuch as we have the power, without doing wrong to any one, to retake our said lands into our own hands and make thereof our profit, which may, perhaps, turn to the injury and damage of our said tenants ; nevertheless, we will for their case, that they may henceforth hold by new covenant the same lands in convention, so that they always render to us the true value thereof in manner as between them and our Ministers, whom we have sent thither for this purpose, may be agreed ; and therefore the Earl directs them to assess the lands.”
In a petition from the Bishop of Exeter to Edward II., in the 18th year of his reign, in reference to the Church of St. Burian, the Advowson is described as appurtenant to the Earldom of Cornwall, which is throughout the petition treated as a territorial Seignory. And it also appears that in respect of this Seignory (for there is no express mention of these things in the Earl's Charter) this Earl had the Ports of the County and the profits thereof, and the prisage of wine, as well as wreck of the sea. Thus in the grant of the custody of the Ports by the King after the Earl's death, dated 12th February, 11th Edward III., we find this recital, “Whereas John, late Earl of Cornwall, our brother deceased, for the good service which Thomas Fitz-Henry hath performed for our same brother for a long time whilst he lived, had promised that he would grant to the aforesaid Thomas the Bailiwick of keeping of all and singular the Ports in the County of Cornwall, and to receive the prisage of wines which should happen to be brought as well to the Port of the Town of Sutton, in the County of Devon, as to the other ports within the said County of Cornwall, also the custody of the wreck of the sea happening in the place aforesaid. To hold during the life of the said Thomas, so that concerning the issues arising from all the premises he should render a just account to our same brother, receiving from those issues Ten Marks yearly for his fee, and one Robe of the price of One Mark, during the life of the said Thomas, which ought to be allowed to him in his aforesaid account, as we have understood by credible testimony, which same Bailiwick appertained to our said brother whilst he lived, and now by his death doth appertain to us and our said brother before he could perform the said promise departed the way of all flesh.”
It is submitted that the construction put upon the Charters of Edward III. in the “Observations” is too narrow, having regard to the manifest assumption in them that a Duchy was granted, which would, without the specification of any lands, have conveyed some territorial possessions. Without here entering upon a lengthened examination and discussion of these Charters, it may be observed that lands of great value unquestionably passed by them, although not specifically described. The Sutton Pool case and the Scilly Islands are sufficient to prove this. A particular description was certainly proper with reference to those properties which had recently been acquired by Earls of Cornwall, as in the case of the Manor of Tewington.
Lord Hale, in his Statement of the Sutton Pool case (p. 56) states, that the Earldom of Cornwall and the Castle of Trematon descended to King Edward III., and that he by Charter in Parliament granted the Earldom of Cornwall to his oldest son, referring to the Prince's Case, 8 Rep. 8. The Charter has never been otherwise construed ; such was the construction put upon it in the very important statute of 9 H. 5, referred to in the Statement on behalf of The Duke of Cornwall, but not noticed in the “Observations.”
In Norden´s History of Cornwall, (p. 9), it is said - “After the death of this Earl (John of Eltham), Edward III. by Act of Parliament advanced it from an Earldom to a Dukedom, and dignified Edward his son (famous for his worthiness) therewith, as M. Camden reporteth, 'per sertum in capite annulum in digito et Virgam auream investituit.' ” About 60 years after
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the creation of the Duchy, we find in the Charter of 1st Henry IV. to Prince Henry, the eldest Son of that King, as follows : “We have made and created Henry our most dear first-begotten Son, Prince of Wales, Duke of Cornwall and Earl of Chester, and have given and granted, and by our Charter have confirmed to him the said Principality, Duchy, and Earldom, that he may preside there, and by presiding, may direct and defend the said parts. We have invested him with the said Principality, Duchy, and Earldom, per sertum in capite et annulum in digito aureum ac virgam auream juxta morem.”
As a conclusion to this reply, it is submitted that the “Observations” on behalf of the Crown do not contain any sufficient answer to the Statement on behalf of the Duke of Cornwall.
Duchy of Cornwall,
Somerset House,
June, 1856.---------------------------bottom of page 6---------------------------
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