Since this subject was under the consideration of the Law Officers and Counsel of the Duchy in the spring of last year, further searches have been made amongst the ancient records of the Country, which have resulted in the production of some additional evidence, which seems materially to support the conclusions previously arrived at, and has enabled the Duchy Officers to present the Case of His Royal Highness the Duke of Cornwall in a more precise and definite form than was done in the Preliminary Statement prepared in the spring of 1855.
It is requested that the following Case may be read in conjunction with the Preliminary Case, and the remarks previously made (in red ink) upon the observations of the Officers of the Crown.
Duchy of Cornwall,
Somerset House,
12th February, 1857.---------------------------bottom of page 2 (first text page)---------------------------
THE TIDAL ESTUARIES,
FORESHORES, AND UNDER-SEA MINERALS,
WITHIN AND AROUND THE COAST
OF THE
COUNTY OF CORNWALL.CASE of H. R. H. the DUKE of CORNWALL
It is submitted on the part of His Royal Highness-
That for a very long period, two thousand years or thereabouts anterior to Norman Conquest, Cornwall was distinct from England, and governed by princes of its own, who were usually styled “Dukes of Cornwall.”
That about one hundred years before the Norman Conquest (AD 937), when the ancient inhabitants of Britain, who had been driven into Wales and the western Counties of Devonshire and Cornwall by the invasions of the Saxons, were conquered by King Athelstan in Devonshire and driven into Cornwall, history records that the water of Tamar was to be the boundary of their country, and that although Cornwall. formed no part of the English Heptarchy, the inhabitants were after this conquest by Athelstan more or less subject to the dominion of the Kings of England. But that, in the reign of Edward the Confessor, although Cornwall was subject to his dominion, and its inhabitants were included in the taxation of the kingdom generally, still that monarch had no territorial possessions in Cornwall, as he had in the Counties of England.
That immediately before the Conquest (viz. in the reign of the Confessor) Cornwall was held, as to part of it, by two powerful Saxons, Earl Harold and Brictric ; as to other part, by the Ecclesiastics ; and as to the whole of the residue, with the exception, perhaps, of two comparatively insignificant estates, one containing a ferling, and the other one carucute of land, by a British prince (supposed to be Cadocus) who bore the title of Earl of Cornwall, and the ancient Britons his dependents.
That upon the Norman Conquest the King took into his own possession sixteen manors or estates, which had previously been held by Earl Harold and Brictric, and conferred upon his half brother Robert, Earl of Moretain, as Earl of Cornwall, the residue of the county, with the exception of the ecclesiastical possessions and the two small estates before referred to.
That these possessions of Earl Robert were, after the death and forfeiture of his son, conferred under the description of the County of Cornwall by the King, either at the close of the reign of Henry 1., or early in the reign of Stephen (the Grant being not now extant, and therefore its precise date not being capable of being ascertained), upon Reginald de Dunstanville, supposed to have been an illegitimate son of Henry I., who was thenceforth known as Reginald, Earl of Cornwall.
That on the death of this Earl, in the 21st of Henry II., this possession, known as the County or Earldom of Cornwall, reverted to the King, and was retained in the hands of the Crown during the remainder of the reign of Henry II., and until the first year of the reign of King Richard 1., when that monarch conferred this possession, with others, upon his brother John, afterwards King of England, who held it until the fifth year of King Richard, when, having usurped upon the rights of the King during his absence from England, he was, upon the return of that Monarch, deprived of his possessions, whereupon the County of Cornwall again came into the hands of the Crown, and was retained
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by King Richard during the remainder of his reign, and was afterwards held by King John until nearly the close of his reign, when, on the 17th September, 1215, a temporary Grant of it was made to Henry Fitz Count, who claimed it as the son and heir of Earl Reginald, but which Grant appears to have been almost immediately afterwards revoked, the County being on the 16th November, 17th John, 1215, committed by the King to Robert de Cardinan,, as the King´s Sheriff.
That in the 1st of Henry III., the County, with its appurtenances, was again granted to Henry Fitz Count, to be held by him, as Reginald, Earl of Cornwall, his father, had held it.
That in the 4th of Henry III., this Grant was revoked, and the possession was retained in the hands of the Crown until the 9th year of that King's reign, when it was granted by the King to his brother Richard, to be held during pleasure. And that in the 15th year of the same King's reign, the possession, under the description of “ the County of Cornwall with the Stannary of Cornwall, and all the mines and other appurtenances of the same County and Stannary aforesaid,” was granted to the same Richard, who thereupon, if not before, became Earl of Cornwall.
That on the death of Earl Richard this possession descended upon his son and heir Edmund, who thereupon became Earl of Cornwall and held the possession until his death in the 28th of Edward I., when that Monarch succeeded to the possession as the cousin and heir of Earl Edmund.
That the property so granted to and held by all these Earls under the description of the County of Cornwall was a great honor or land barony which comprised the Lordship of the county and gave to its possessor, as against the Crown,
1st. The territorial ownership of the county -
2nd. The revenue of the county generally,
And particularly,--
The issues of the Stannary - The coinage duty and the right of pre-emption of tin –
The amercements of the forest -
The wastes and purprestures of the county –
Wreck of the sea and prisage of wines –
The profits arising from the fisheries and the drying of fish on the sea shore
Anchorage, described as a customary payment or toll For boats coming
to land or sullage –
3rd. And other important privileges, some of them being in the nature of
prerogative rights:
Such as, -
The right of appointing the Sheriff -
The right of making free Boroughs -
The right of granting freedom from toll throughout the County –
and the right of holding fairs, markets, &c.To prevent a, misconception which is likely to arise from the description of this possession as “the County of Cornwall,” it will be necessary accurately to define what is meant by this expression ; the division of the kingdom into, counties by Alfred was for the purposes of civil government and the administration of justice. A county simply as such was unconnected with the tenure of land as established in this country after the Norman Conquest. To say that lands were holden as of a county taken simply as above, would therefore be an unmeaning expression. All lands in England were presumed to be held originally of the King in capite as of his crown, or in other words, the Realm of England was a great seignory in the Crown, as of which lands were holden ; and Madox states that in this there were many subordinate seignories – to wit, honors and baronies (Mad. Exch. vol. 1. p. 107,) and lands were held of the chief Lords of these honors or baronies in capite as of their honors or baronies, in the same way that lands were held in capite of the King “ ut de corona.” When, therefore, we find lands mentioned as being held as of a county “ ut de comitatu” it follows that the word county is not used in its simple sense, meaning a division of the kingdom for the
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purposes of civil government, &c.., but as denoting also an honor or land barony, to which the tenure of land was incident, and if such an honor became vested in the Crown, the lands would be held in capite of the Crown but still “ut de honore in manu Regis existente.” See the authorities quoted in “The Duke of Beaufort v. The Mayor of Swansea,” 3 Exch. nep. 416 ; see also Madox's Baron. Angl. We find the County of Cornwall very frequently mentioned in this way.
It appears from the 3rd Charter to Queen Isabella, that the fees of the County of Cornwall were not confined to the limits of that county, taken simply as a division of the kingdom, for the purposes of civil government, but extended into other counties, which would be inexplicable under any other construction than that the County of Cornwall was an honor or land barony, of which lands in other counties were parcel : see also 1 Madd. Exch. p. 642, where, treating of Earl Reginald having been charged for scutage, he states that he was charged but was acquitted of it, because his honor or barony was then in the King's hands.
The Grants, therefore, of the Comitatus Cornubiæ to the Earls of Cornwall must be taken to be not of the County of Cornwall simply as a division of the kingdom, made for the purposes of civil government, &c., which is the sense in which, in the Grants of the Comitatus ordinarily made to Sheriffs, the word is to be understood, but as a Territorial Grant, comprising a great honor or land barony, of or to which lands situate in other Counties might be parcel or appertain.
It appears also from numerous documents, that the possession of this honor, called the County of Cornwall, conferred upon its possessor the lordship of the territory from which the honor derived its name, which territory was called the “terra de Cornubia,” and comprised, as against the Crown, the territorial ownership of the County generally ; that is to say, of the whole County, with the exception of some particular estates, such as the Terra Regis, &c.
In considering the question of the extent of the territorial rights, vested in the Earls of Cornwall by reason of this lordship, there can be no better criterion by which to try it than that suggested by the Officers of the Crown (page 11 of the Observations), as to the property in the Stannaries or tin mines. If it can be shown that, during the existence of the ancient Earls, the property in these belonged to the Crown, it would doubtless afford very strong evidence that the ownership of the soil of the County generally was in the Crown, and not in the Earls; at the same time the converse of the proposition would also be true.
Connected with the tin mines in Cornwall was the right of purchasing the tin when raised, called the right of pre-emption, and also the coinage duty.
There is no question whatever but that the right to both of these was in the King when there was no Earl. The former of these, is stated by Lord Coke to belong to the Crown, not by any prerogative, but as an ancient rent and inheritance due to the King, as well of tin in the land of a subject as in his proper demesnes. Co. nap. 12. 9b.
There is proof that this right, in the time of Edward II., was in the King, not jure coronæ, but as the heir of Earl Edmund, to whom it pertained by reason of his lordship of the County of Cornwall. This would seem of itself almost sufficient to settle the question in favour of the Earls ; but as it may be answered to this, that Earl Edmund would at all events have had this right under the express grant to his father Earl Richard, of the Stannary of Cornwall, although the Stannaries clearly passed by the 1st Charter to that Earl without being named, and although such a construction would be scarcely consistent with the statement that the right was vested in the Earl ratione dominii comitatus, it will be more satisfactory to trace the history of these tin mines still further back. During the tenure of the Earldom by Earl Reginald, there is no account of any profit whatever being derived by the Crown in respect of the Stannaries, whereas, immediately upon the decease of the Earl the farm or profits of the tin mines are accounted for to the Crown, as included in the farm of the County. As no Grant of the County to Earl Reginald is extant, it may perhaps be contended on the Part of the Crown, that the Grant, if produced, might show the Stannary to have been expressly named as in the subsequent Grant to Earl Richard ; this is improbable, inasmuch as the Stannary had not, before the 8th of Richard I., been separated from the body of the County. And if we refer to the subsequent Grant of the 1st Henry III. to Henry Fitzcount, we find it is simply of the “Comitatus Cornubiæ” with the appurtenants as his father Earl Reginald had held
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it ; and as no mention is there made of the Stannaries, it must be concluded either that these had not been mentioned in the previous Grant to his father, or that if they had, it was intended to exclude them from the subsequent Grant, which was not the case, as it is clear from subsequent accounts, that Henry Fitzcount took the Stannaries under his Grant, inasmuch as, during its continuance, all profit from this source ceases to be answered to the Crown ; and on his forfeiture of the County in the 4th Henry III., the farm of the Stannary is again immediately answered to the Crown. And it is quite evident that after his possession had been declared forfeited, he still kept possession of the coinage stamp. It would seem to follow almost conclusively from this, that the Stannaries would have passed to Earl Richard by the Grant of the comitatus without their having been expressly named, and that consequently the pre-emption of Tin was vested in Earl Edmund, as stated in the inquisition of the 7th of Edmund II., “ratione dominii comitatus,” and not in consequence of the express Grant of the Stannaries to his father.
The authorities quoted by the Crown officers at pp. 11 and 12, of the observations refer to periods when there was no Earl of Cornwall, and at those times, the Stannaries were beyond all doubt in the hands, or as stated, in the Charter of King John, (p. 11, of the Observations one of the authorities referred to), were part of the demesnes of the King, and the profits are regularly accounted for to successive Kings accordingly, but the officers of the Crown may be safely challenged to produce any such evidence at periods when the great Honor or Lordship of the County of Cornwall was in the hands of an Earl. So far, therefore, as the proprietorship of the tin mines is to be taken as an evidence of the ownership of the soil of the County generally, as between the Crown and the Earls, the evidence, it is submitted, is conclusive in favour of the latter.
In addition to the evidence of the territorial ownership of the County generally, strong evidence of the right of the Earls to the particular property now the subject of question is afforded by the actual Grant by Earl Richard, King of the Romans of the right to take sand from the sea-shore. This Charter of the Earl, was recited and confirmed by the King in the 45th of Henry III : the confirmation by the King appears in these words : “We the said Grant holding firm and accepted for us and our heirs, do grant and confirm the same as much as to us pertains, as the aforesaid Charter of the same King our brother reasonably witnesseth.” The Crown officers observe upon this (page 15 of the Observations), that “it may be inferred from the terms of the confirmation, that the Earl was considered to have exceeded his authority, as on no other ground could it have been necessary that the confirmation Charter of the King should have been obtained.”
The cautious expression “exceeded his authority” in this Observation, has no doubt been used advisedly ; it would not have done to have stated that the Earl had no state in the subject of the Grant, had no right to make it, for in that case the Grant would have been simply void, and so not capable of confirmation ; it was therefore advisable to admit some right in the Earl, in respect of the property which is the subject of Grant, although there is no attempt to define or explain the nature or extent of such limited right. But in truth the very fact of the confirmation, as well as the terms in which it is expressed, lead to contrary conclusion to that arrived at by the officers of the Crown. The fact of the King´s confirmation having been granted, shows that the Grant itself must have been brought under the particular notice of the law officers of the Crown of that period, and the natural conclusion is, that they must have been satisfied that the estate of the Earl in the thing granted, was of a nature to justify him in making the Grant, or they would not have sanctioned the confirmation of it by the Crown. And it surely must be admitted that the opinion of the officers of the Crown of that day, as to a contemporaneous matter of fact, viz., the right of the then Earl to the sea-shores of Cornwall, is entitled to great weight.
At the period when the Grant took place (the reign of Henry III.) we know that the tenants in capite of the Crown were in the habit of obtaining licences from the Crown to enable them to make any alienation of their tenures ; but the fact of their obtaining such licences, so far from disproving the fact of their tenure, was, in truth, the very reverse ; and the great probability is, that the Earl, being a tenant in capite of the Crown, and not having obtained the previous licence of the Crown, the confirmation was procured as a waiver on the part of the Crown of any objection to the Grant in this respect. The terms in which
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the confirmation is expressed also confirms this view. In the preceding reign of King John there is an instance recorded where the King confirmed a Grant made by a party whose right to make it appears to have been questioned. To the confirmation of this Grant, a note, of which the following is a translation, is appended:-
" Note. - That in this Charter of confirmation is not inserted ‘rationabiliter neque rationabilem donationem,’ by the special command of the Lord the King, because the Grant was made by the gift of Hugo de Monteforte, who had not the right to make the Grant.”
The confirmation of Earl Richard's Charter contains, as will have been observed, this particular expression.
It is submitted that the fact of this Grant having been made by the Earl, and of its having been allowed and recognized by the King, coupled with the evidence of the receipt of the revenue and profit arising from the sea-shore, as hereafter shown, affords most cogent evidence of the ownership of the sea-shores having been vested in the Earls of Cornwall ; and, as there is no mention of them in any Grant, the reasonable conclusion would appear to be, that this property, as the property in the Stannaries, was vested in the Earls “ratione dominii comitatus;” that is, by reason of the Lordship or great Seignory which they held, viz, the Honor of the County of Cornwall.
But what has been said of the profits of the tin mines is applicable also to all income derived from the County generally, and especially from the particular sources before referred to, viz.:-
The amercements of the forest –
The wastes and purprestures of the County -
Wreck of the sea -
Prisage of wines -
The profits of the fisheries and the drying of fish on the sea-shore –
And the anchorage, described as a customary payment for boats coming to
land or sullage.The fact of all revenue from Cornwall entirely ceasing to be answered to the Crown during the existence of an Earl in possession of the Honor or Lordship of the County, and its immediate reappearance upon the Pipe-rolls on the vacancy of such possession, seems entirely to establish this assertion. And although the income derived from the particular locality now the subject of question, viz., the sea-shores at the early period to which the inquiry refers, was probably of trifling amount ; still, during the existence of the more ancient of the Earls, there is not the slightest evidence of any profit from this source being answered for to the Crown. And during the tenures of the later Earls, viz., Earls Richard and Edmund, there is evidence to show that whatever income was derived from this source was answered for, to, and taken, by the Earls ; but in examining the evidence of this, the difficulty pointed out in the original statement of the Duchy (p. 4) will have to be contended with, and the evidence must be adduced principally from acts emanating from the Crown, or from proceedings taken in pursuance of such acts, but which in some degree affected the Earls.
Thus, from the proceedings before the Justices in Eyre, 12 Edw, I., we find that the Earls took a payment from parties drying fish upon the sea-shore, and also a payment from fishermen arriving or coming to land with their boats. The right of the Earls to enforce these payments was questioned by the parties from whom they were claimed ; but the Earls' right to the first was recognized, and to the latter it was not disproved. If the right had not been thus questioned, we should not have had this evidence of its existence. It appears also from these proceedings, that the Sheriff of the County who was the Earl´s Sheriff and Officer, had the custody of the ports of the County, and that the Earls took wreck of the sea throughout the whole County, the right to which, though questioned by the Officers of the Crown, was never displaced ; and there is indisputable evidence that Earl Edmund continued in the enjoyment of this right until his death.
And from the proceedings before John de Kirby, at Launceston in the 13thEdw. I., it appears that the Earls enforced payments from the inhabitants in respect of the fisheries of the ports of Cornwall - a burden which, though complained of by the community, does not appear to have been got rid of. It will be remembered, that it was from the enjoyment of very similar rights in the Sutton Pool case that the soil of that water was decided to be parcel of the Duchy. (See the
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passage from Lord Hale, quoted in the Duke of Beaufort´s case, 3 Exch. Rep. p. 420.)
In the proceedings before the Justices in Eyre in the 30th Edward I., two years after the death of Earl Edmund, there is a presentment which throws considerable light upon the question as to the right of the Earls in respect of ships or boats coming to land. The presentment is in substance as follows :-
It appears that certain ships and barges arriving in the estuary of the water of Fowey were subject to the payment to the King (there being at that time no Earl) of a toll in the name of sullage (the exact meaning of which has not been ascertained, but it probably meant soilage or anchorage). The burgesses of Bodmin claimed to be exempt from this toll under a Charter of Liberties granted to the Prior and Burgesses by Earl Richard, and confirmed by the King (Edward I.). The Jurors find, upon their oath, that from the sealing of the Charter of Earl Richard (which must have been prior to the reign of Edward I., by whom the Charter was confirmed) until the King's confirmation (which was in the thirteenth year of his reign) never, until the fourteenth year, when William de Monckton (the Sheriff of Earl Edmund) was Sheriff had the Prior and Burgesses given anything for sullage in the water of Fowey, but that Sheriff as well as his successors, until the 22nd of Edward I., had exacted the payment from them ; when, upon appeal to the then Earl (Edmund), they were relieved by his order.
It is clear from this document that the profits arising from this toll of sullage for vessels arriving in the Fowey was taken by the Earls : and as there was no express mention of any such profit by name in the Earl's Grant, it affords a strong presumption that the soil of this estuary was parcel of the Earldom : there is clear evidence of its having afterwards formed parcel of the Duchy.
From the proceedings on the same Iter, it appears that the Keeper of the Ports took for the King (there being no Earl in existence) a payment from a class of persons called “Tranentarii” of 4d. or 3d. for getting fish at the sea-shore as he had been accustomed to do in the time of Earl Edmund.
The only direct actual evidence which is now known to exist of the revenues of Earls Richard or Edmund, is a Receiver's account of these revenues in the 25th Edward I., about four years previously to the death of Earl Edmund. In this account we find the Earl answered for the revenue arising from all the manors and estates in Cornwall enumerated in the Duchy Charter, as well as the fee farm rents of the County, which are not specifically named in the Duchy Charter. And we also find the Earl answered for the issues of the sea-shore (de exitu marinæ) with the wreck upwards of £40. And among the expenses are charged the wages of a Bailiff for keeping the sea-shore.
The possession of this Honor or Lordship seems to have given to the Grantee the important privilege of appointing Sheriff of the County, and also other important rights usually vested in and exercised by the Sovereign - as that of granting free Boroughs - the right to hold fairs and markets - freedom from toll. There are numerous instances of these ; but as they have no direct bearing upon the present question, it will not be necessary to do more than refer to a few of them. And in the instance of the Grant by Earl Richard to Otho de Treverbyn, it will be observed that the terms of the confirmation clearly recognize the right of the Earl to make the Grant.
The territorial possessions of the ancient Earls, with the office of, but not with the power of appointing the Sheriff, was granted by King Edward III. upon his accession to the throne, to his minion Piers Gaveston, who thereupon became Earl of Cornwall, upon whose banishment shortly afterwards the possessions were resumed by the King. But upon his return in the 3rd year of the King's reign, they were again granted to the Earl and his wife Margaret, in tail, and were so held until the Earl's death on the 19th of June,. in the 5th of Edward II.
On the 25th July, in the 11th of Edward II., these possessions, but of course without the title, were granted by the King to his Queen Isabella, to be held during pleasure, in part satisfaction of a sum of money which the Queen received yearly at the Exchequer for the expenses of her household. This Grant by two subsequent Grants, one dated the 30th October, and the other the 20th of January, in the 12th of Edward II., was enlarged from an estate during pleasure, to an estate in dower, that is, during the life of the Queen.
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In the 18th year of the reign of this King, the possessions granted to the Queen were resumed by the King, but afterwards, probably upon the accession of Edward III., the Queen was restored to, and she retained possession until the 4th of Edward III., when she surrendered the property into the hands of the King.
King Edward III., either before or immediately upon this surrender, conferred upon his brother, John of Eltham, the title of Earl of Cornwall, and by a Charter dated the 1st of December, 4th Edward III., granted to this Earl (amongst other things, including the Villa de Rockingham) £20 annually out of the issues of the County ; and by a second Charter dated the 10th of October, 5 Edward III., granted to him the demesne manors which had been formerly held by the Earls in Cornwall, forming an important district, commonly known as the Assessionable Manors, as well as other estates in England and an additional rent out of the issues of the County of Cornwall, to be received yearly by the hands of the King's Steward or Sheriff there. And by a third Charter dated the 3rd of October, in the 7th of Edward III., the King granted to this Earl the Hundreds of the County, the town of Lostwithiel, the residue of the issues and profits of the County, the profits of the ports, wreck of the sea, prisage, and customs of wines, and the perquisites of the Mineral Court in Cornwall. But by none of these Charters did the King confer upon his brother the Honor, or land Barony, known as the County of Cornwall, or the Stannary of the County, or the power of appointing, or the office of the Sheriff of the County ; nor is there any evidence to show that he took the fee farm rents of the County. The appointment of Sheriff was regularly made by the King until the Earl´s death.
There does not appear to be any evidence of importance to be derived from the Grants, either to Piers Gaveston, or to Queen Isabella, made by Edward II., or from the Grants by Edward III. to John of Eltham. The Grants were made to this Earl in fee tail, with a condition that if he died without heirs of his body, the things granted should revert to the King in fee. And upon the Earl's death without issue, on the 13th September, in the 10th of Edward III., the estates granted to him reverted to, the King accordingly.
On the happening of this event, therefore, the Cornish Manors which had been held by Earl John of Eltham, distinct from the Honor, reverted to the King, who consequently at this period held, not only the Lordship of the County which his grandfather, Edward I., had inherited from Earl Edmund, and which, as has been shown, comprised the Stannaries of the County, and inferentially from that the general ownership of the soil throughout the County, but also the assessionable manors and other things which had been made the subject of express grant to John of Eltham.
In this state of things in the following spring, and previously to the 17th of March, the date of the 1st Duchy Charter, the King created his eldest son Duke of Cornwall, and invested him, probably in full Parliament, with, as it is contended, the great Barony or Lordship of the County of Cornwall in the name of a Duchy, referring on the occasion, not to the immediately preceding Grants to John of Eltham, or those to Queen Isabella, or Piers Gaveston, or even to the greater Earls who had held the great Honor of the County of Cornwall from the Conquest, but to the remoter period before referred to, when this territory was a separate kingdom, and was governed by Rulers and Dukes of its own. The particular time of this investiture, that is to say, that it preceded the 1st Duchy Charter, and was on some day between the 24th of February, the Feast of St. Mathias, and the 16th of March, is demonstrated by the patent of creation of the Earl of Salisbury, who, with others, was at that time created Earl in honour of the Prince, as stated by Lord Coke.
This patent is dated the 16th of March, and recites the fact of the investiture of the Duke having previously taken place. The recital is a remarkable one, and is translated as follows :- “ We, at the request of the prelates and nobles and the commons of our realm, assembled in this our present Parliament convened at Westminster, willing more securely to establish the Royal Sceptre, as well by the creation of new Honors as by restoring old ones, and to augment the number of nobles, by whose counsels our realm may be directed in doubtful, and by their suffrages be supported in adverse circumstances, have advanced our most dear first begotten son Edward, (whom in the prerogative of honor as is meet, we have caused to have precedence of others), to be Duke of Cornwall, over
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which awhile ago Dukes for a long time successively presided as chief rulers, and of the said Duchy have given him investiture, by girding a sword upon him as is the custom.”
Subsequently to this creation and investiture, viz. on the 17th of March, in the 11th of Edward III., the 1st Duchy Charter was granted ; on the following day the 2nd Charter - and afterwards, viz. on the 3rd of January following, the 3rd Charter was granted to the Duke ; (see the Charters set out in extenso in the Appendix to the observations of the Officers of the Crown).
As a difference of opinion exists between the officers of the Crown and of the Duchy, as to the operation of the Charters granted by King Edward III. to his eldest son the Black Prince, it may be as well in the first instance to state the view taken of these Charters by the officers of the Duchy.
It is considered that by the investiture of the Prince, and the first of the Duchy Charters, the Honor previously known by the name of the Comitatus Cornubiæ, comprising the Terra Cornubiæ and the lordship or dominion of the County, together with all the demesne lands of the Crown in the County, and all other possessions, rights, and property whatsoever which had been held and enjoyed by the ancient Earls of Cornwall, with the possible exception hereinafter mentioned, passed to the Prince as Duke of Cornwall.
That by the second Charter was granted to the Duke the Return of the King's Writs, within the lends and fees of the Duke in Cornwall, and also other lights specified by name in the Charter, such as year-day and waste and what may be comprehended under the technical term of “the profits of the Green wax” within the same lands and fees.
Whether the property and rights comprised in this second Charter, or any of them, were enjoyed by the Earls may admit of question. Possibly they were not ; or it may have been considered at that period, especially having reference to the proceedings which had been instituted by the Crown in the reign of Edward I., that rights of this nature would not pass from the Crown except by an express grant of them. But however this may be, it is considered that upon the completion of the second Charter, the Duke became possessed of every property and right which the ancient Earls had enjoyed within the County : possibly also something more, but which is not material to the present question.
It is clear that after the completion of this Charter there were lands in Cornwall which were not parcel of the Honor formerly held by the Earls ; the ultimate fees in which were no doubt vested in the Crown jure coronæ.
It will be observed that the rights expressly granted by the second Charter did not extend to these lands ; and if a simple grant of these fees and of rights in respect of them similar to those granted by the second Charter had been made by the King to the Duke, the King would not even by that Grant have entirely denuded himself of all territorial rights in Cornwall, for there was still remaining in the Crown the prerogative right (which could not be transferred except by express Grant) which would entitle the Crown to the priority of Wardship Marriage, &c., so far as regarded such of the tenants of the Duke within the County as held elsewhere of the Crown in chief. A careful examination of the third Charter will show that by it not only were all these transferred by the King to the Duke, the Crown thereby, as set forth in the original Duchy statement, p. 9, having entirely denuded itself as against the Dukes, of every remnant of seignory and territorial dominion which it could otherwise have enjoyed within the County, and thus made the rights of the Duchy more extensive and more exclusive as against the Crown than had ever been enjoyed by the Earls ; but the Charter also conferred upon the Duke the prerogative right entitling the Duke in Cornwall to priority of Wardship, Marriage, &c., in the same manner as the Crown was entitled in other parts of the kingdom.
It will be important to observe, that notwithstanding this Charter, the Crown would still retain a seignorial right in Cornwall. In the case of sub-infeudations, where the sub-grantees held of other Lords not the Duke in Cornwall, and also elsewhere, of the King in chief, the Sovereign would retain the right of priority of wardship, &c., and instances of this may probably be cited by the officers of the Crown. But this, it will be observed, interfered in no way with the territorial superiority of the Duke, and only existed as against mesne Lords under him.
If this construction of the third Charter is the correct one, it is not too much
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to say that within Cornwall the Duke stood in the place of, or was quasi Sovereign, so far as regarded the territorial seignory. And looking to this high position thus conferred upon the Duke, it can scarcely be conceived that there could have been an intention to withhold from him the wastes of the County and other matters of inferior importance. And if by the omission of some technical expression in the Charters, this should be considered to have been the effect, it would surely, as suggested in the terms of reference, be a fitting case for the interference of the Legislature to supply what from the attendant circumstances would appear so clearly to have been an accidental omission.
The contention on the part of the Crown against this construction of the investiture of, and the Charters granted to the Duke, appears in effect to be - first, that there is no expression in any of the Charters which would comprise so as to pass to the Duke any such great Honor or Lordship as that which it has been submitted the Earls had enjoyed ; and, secondly, that the specific enumeration in the first Charter of what had been the demesnes and other sources of revenue which had been previously held and enjoyed by the Earls, would prevent any property not so specified from vesting in the Duke, and that consequently the Duchy, so far as Cornwall is concerned, is not co-extensive with the County, but is confined as regards territory to the manors and lands there specified, being in fact the seventeen ancient assessionable manors, with some of the borough towns of the County.
As regards the first of these objections - If it were incumbent upon the Duchy officers at this distance of time to show precisely how or by what words the great Honor called the “Comitatus Cornubiæ,” could have passed to the Dukes, there is no difficulty in suggesting several ways in which it might have passed.
It might, it is conceived, in law have passed by the very act of the Investiture, and the recital in the first Duchy Charter, as well as that in the Patent before referred to creating the Earl of Salisbury, would seem strongly to favour this view. Or it might have passed by the Grant of the Castle and Honor of Launceston, which was the caput baroniæ of the Earldom (see Doomsday), and which at all events in a manner encircled the whole County : it extended into Devonshire on the east ; to the rock of St. Michael's Mount on the southern coast, and to the Islands of Scilly off the western coast of the County, including the foreshores, havens, and sounds around these Islands. Or it might have passed by the express Grant contained in the 1st Charter of the “vice-comitatus Cornubiæ cum pertinentiis,” which, so far as territory is concerned, is an expression at least equally extensive with “comitatus.” The comitatus denotes the territory presided over by the Earl, whilst the vice-comitatus denotes the territory under the jurisdiction of the Reeve of the Shire, who, it will be remembered, was in ordinary cases the officer of the King, and not of the Earl, and to whom the lands of the Crown and other profits within the Shire were ordinarily committed, and by whom, after the payment of the 3rd penny to the Earl, they were accounted for to the Crown ; and this construction is strongly supported by the words which follow those above quoted, viz. – “So that the Duke, the Sheriff of the aforesaid County of Cornwall (the County or comitatus not having been before mentioned in the Charter, unless considered as being comprised in the term vice-comitatus) may at his pleasure make and appoint, and may be able to make and appoint, to exercise and perform the office of Sheriff there as hath been heretofore accustomed to be done without any hindrance or impediment by us or our heirs for ever.”
It has already been shown, that the ancient Earls of Cornwall, having the Lordship of the County, had, in respect of that Lordship (for there is no express Grant of the right, independently of the Grant of the comitatus) been accustomed to appoint the Sheriff. And it is submitted, that a most reasonable conclusion would be, that the Duke, under the term vice-comitatus was to take that same Lordship which had passed to the Earls under the Grant of the comitatus, and which was to enable him to appoint the Sheriff as they had done.
What is here meant, may perhaps be made more clear by the following illustration :- Suppose A., the owner of a particular manor or estate, to have had in respect of such property, the right of appointing to some office, and the manor or estate coming to the hands of the Crown, it would be perfectly in the power of the Crown to grant to another the right of appointing to the office, and still to retain the manor or estate, but it would be most incorrect in such a case to say that the Grantee should have the power of appointing to office “as had been
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accustomed to be done,” and if there were any ambiguity in the terms of the Grant, as to whether or not the manor or estate were intended to pass, the addition of these words would afford a most cogent argument in support of the proposition that the estate itself to which the right had appertained, was intended to be passed.
The case of an advowson once appendant to a manor, but afterwards severed, and becoming an advowson in gross would afford a further illustration.
Secondly, as to the specific enumeration of the estates, &c., in the 1st Charter, preventing any property not so specified from passing. If the Honor or Lordship known as the Comitatus Cornubiæ, could not have passed by any act previously to the Charter, and the Charters themselves contain no term sufficiently comprehensive to comprise it, this objection loses its force, as independently of it the conclusion to which it leads would be arrived at. But supposing there to be an ambiguity in the language of the Charters, and a doubt as to the sufficiency of the language to comprise the Lordship of the County, then the objection will operate ; and it cannot be denied that it affords in such a case a fair argument as to the intentions of the framers of the Charters, and to support the conclusion that by such specification it was intended to exclude from the operation of the Charters, everything not specifically named in them. But if, on the other hand, a sufficient reason can be given for such a specification, without its being necessary to attribute to it the restrictive operation contended for, it will manifestly very much weaken, if not entirely remove the force of such argument. It is not difficult to suggest such a reason.
In the time of John of Eltham, the whole of the manors, rights, and other sources of revenue in Cornwall, which are enumerated in the 1st Duchy Charter, except the power of appointing the Sheriff and the Stannaries, had by the Grants to that Earl been severed from the Honor or Lordship of the Comitatus Cornubiæ, which, during the life of that Earl, was retained in the hands of the Crown. It is possible that these estates and rights having reverted to the Crown, would by reputation, notwithstanding the previous severance, have passed by a Grant from the Crown of the Honor simply, but it can scarcely be said that they would without doubt have done so. “If a man make a feoffment in fee of an acre of land, parcel of a manor, and after re-purchase it, and then grant the manor, this acre will not pass by this Grant, for “it is not united by the new purchase.” Shep. Touch. p. 90. May not the doubt thus created, have been the very doubt referred to in the language of the 1st Charter, as being the motive for inserting the specific enumeration. Again, it is clear that as to some of the manors enumerated, they had not originally formed part of the ancient Honor, for instance, the manor of Tewington, as appears from Doomsday, was part of the terra Regis, and no part of the terra Moritoniensis or Earldom of Cornwall. A similar observation will apply to one of the Helstones - and the manor of Tintagel or Bossiney, had been acquired by Earl Richard in exchange. A similar doubt might also have existed with respect to these, as to whether, although they had been undoubtedly held by the later Earls, they had been so legally annexed to the Honor as to have passed by the Grant of it, without being specifically named. The Stannaries had been separated from the comitatus in the reign of Richard I., and had accordingly been expressly named in the subsequent Grant to Earl Richard, and the right to wreck of the sea had been the subject of legal proceedings between the Crown and the Earl in a preceding reign. There is no difficulty, therefore, in assigning a motive for the specification of these things from other causes than with the view of giving to the Charter the restrictive operation contended for by the other side. And this conclusion is fortified by the fact that some things at least, pertaining to the Honor, and which had not been severed from it, did pass to the Duke, although no express mention is made of them in the Charter ; as instances of these may be mentioned, - the fee farm rents of the County, the Deanery of St. Burian, and the soil of the water of the Fowey. Other reasons negativing such restrictive operation may also be urged. - See
red ink Remarks, No. 71.
It is, however, submitted, that if the officers of the Duchy can show by extrinsic evidence the fact that the Honor or Lordship previously known as the “Comitatus Cornubiæ,” or Earldom of Cornwall, did pass in some way or other to the Duke, it is not necessary for them at this distance of time to point out the precise mode in, or the exact words by which the operation took place. And on this point it is submitted that the evidence is abundant, precise and conclusive,
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and in opposition to it nothing has yet been, or, it is believed, will be capable of being advanced. It will be observed that it is not denied that the Dukes of Cornwall have the Duchy, whatever that term may comprise. Now in a Charter granted to the first Duke by the King who created the Duchy, we find part of the preamble as follows :- “Considerantes itaque qualiter Comitatus Cornubiæ jam Ducatus Cornubiæ nuncupatus magnam a jam diu suorum jurium sustinuit sectionem et desiderantes ipsum Ducatum redintegrare et ejus jura recolligere sic dispersa.” There are two conclusions to be drawn from these words, strongly confirmatory of what has been previously stated ; first, that the Comitatus Cornubiæ had a different meaning from the expression County of Cornwall, taken as a division of the kingdom for the purposes of civil government ; the latter portion of the sentence quoted, as well as the subject-matter of the Grant, is entirely inconsistent with such a construction, but entirely consistent with the view that the comitatus was a great Honor or Lordship, from which properties and rights (not in Cornwall) previously appertaining to it had been severed. And, secondly, which is the main point in this part of the case, that the Ducatus Cornubiæ entirely corresponded with what had been the Comitatus Cornubiæ in every respect except in name.
In the 21st of Edward III., the King confirmed a lease made by the Duke to Tideman de Limberg of the coinage of the tin of the whole Duchy of Cornwall, with the right of pre-emption of all the tin, as well within the said Duchy as the County of Devon. It is scarcely possible to read this document without arriving at the conclusion that the Duchy was considered to be co-extensive with and in fact was merely another name used for the County of Cornwall taken in its ordinary sense ; see 12 Co. Rep. p. 11, where the document is cited from the Patent Rolls of the 21st of Edward III. The Duke, it will be observed, was at this time under twenty-one years of age.
On the death of the Black Prince on the 8th June 50th, Edward III. 1376, the King granted the Shrievalty of the County of Cornwall, which said County (the writ proceeds to state), by the death of our most dear eldest son Edward, late Prince of Wales, deceased, has come into our hands. There can scarcely be any more conclusive proof of what the Prince had taken from the King as parcel of his Duchy than what upon his death reverted to the King, not as his heir, for his son Richard was his heir, but according to the special limitations of the Charter. This we find from the document above quoted to have been not only the seventeen manors and other things specifically named in the Duchy Charter, but the entire “Comitatus Cornubiæ.” The precision of language in this expression is remarkable, for it will be observed that it was not the “Ducatus” properly so called in the hands of a Duke, but actually the comitatus which reverted to the Crown on the death of the Duke, the Ducatus having in strictness under the special provisions of the Charter no existence under that name except when there is an heir apparent of the Crown being the eldest son of the reigning Sovereign.
In addition to these evidences, those mentioned in the original Statement of the Duchy (pp. 10, 11, and 12), from Acts of Parliament and other sources connected with legal proceedings, may be here referred to, as well as the historical evidences mentioned in the
And as to the workings under the deep sea, vide original Statement (pp. 12 and 13), and
On the whole, it is submitted that the ancient Earls of Cornwall had the Seignory or Lordship of the County, which comprised the territorial dominion and ownership of the County generally, including therein the soil of the sea-shores, estuaries, and wastes of the County, accompanied with many prerogative rights, such as are enjoyed by the Lord of a County Palatine.
And –
That these territorial and prerogative rights, as well as other prerogative rights in addition, were conferred upon the Dukes of Cornwall, and ought now (so far as the same are by law subsisting) to be enjoyed by His Royal Highness the present Duke of Cornwall.
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