Part IV
Resumé of the Duchy Case
OBSERVATIONS
Prepared on behalf of the Duke of Cornwall since the attendance of Counsel before Sir John Patteson in pursuance of the arrangement then come to.
Previously to making some observations on behalf of the Duke of Cornwall on the various printed documents and the position of the case in general, it is necessary to give some explanation as to the statements, &c. already submitted to Sir J. Patteson.
The original “Statement” on behalf of the Duke of Cornwall was prepared at the instance of the officers of the Crown, not as a case presenting the claims of the Duke in a complete form, but as a statement showing, by way of answer to the Crown's “Preliminary Case,” that the Duke's claim was one of substance and a fit subject for arbitration or compromise.
The step next taken was the “Observations” on behalf of the Crown. On these being forwarded to the officers of the Duke of Cornwall they made upon them remarks which are printed in red ink on the opposite side of each page to the “Observations” on behalf of the Crown. The remarks in red ink were not, like the “Observations” of the Crown, drawn up or settled by counsel, but were framed in order to aid the Duke's counsel in the consideration and argument of the case. But although the remarks printed in red ink were only meant for the use of the counsel of the Duke, otherwise they would have been differently framed, the officers of the Duke at a later state of the controversy thought it right to place these “red ink remarks” in the hands of the officers of the Crown and Sir John Patteson, the Duke's advisers being equally desirous with the officers of the Crown that the controversy should be conducted in the most open and candid manner. The Duke´s advisers have the satisfaction of being able to refer to these “red ink remarks” as meeting the “Observations” on behalf of the Crown, in all material respects, and showing that the documents referred to in those “Observations” were in some instances inaccurately stated, as appears by the documents themselves where set out fully in the Appendix.
The next step was the “Reply” on behalf of the Duke of Cornwall. This short document was not intended, as a perusal of it will at once show, to be a detailed answer to the Crown's “Observations.” It was considered that such “Observations” contained some irrelevant matter and that a great portion thereof was either incapable of being substantiated by the documents when referred to in extenso, or could be well dealt with in argument.
In the investigations preparatory to the intended argument, some additional documents were discovered ; in particular, the Inquisition ad q.d. of 7 Edward II., Appendix, p. 16, and the Inquisition of 3 Henry IV., Appendix, p. 61; and attention was drawn to the peculiar terms of the Fordington Charter of 16 Edward III., Appendix, p. 60. The printed document intituled “Case of His Royal Highness the Duke of Cornwall” was then prepared by the officers of the Duke. That case was not prepared by or submitted to the Duke's counsel, but was, in fact, prepared for and meant to be their brief, and it is not therefore by any means complete. It, however, has been furnished to the advisers of the Crown, and the Duke´s advisers refer to it with some confidence as deserving of much attention. The course which the case
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took at the meeting before Sir J. Patteson was not foreseen, but the Duke's advisers were quite content to leave the case as was then arranged, satisfied that although the whole of it might have been presented in a more complete and well arranged form, its substance and merits were to be found in the documents furnished, that such documents would be carefully examined, and that in the result the Duke's claim would prove to be well founded.
The Crown had just previously to the meeting before Sir J. Patteson printed certain documents headed by them “Amongst the Records,” &c. and “Further Documents,” &c., respectively. No observations upon these two new prints accompanied them when delivered to the Duchy officers. It became necessary of course for the Duke's advisers to make some observations upon them, and in so doing they have been to a great extent left to conjecture the objects with which the new documents were produced by the Crown, as they were unaccompanied with any explanation.
These observations are headed “Observations on behalf of the Duke of Cornwall on further Documents,” and are prefixed hereto (Part I. ante). It is now proposed to make some observations on the various printed documents submitted on both sides to Sir J. Patteson, and on the position of the case in general.
The two main questions are:-
First. Did the property claimed by the Duke of Cornwall form part of a territorial Earldom of Cornwall previously to the grant to the Black Prince ?
Second. Was such property granted to the Black Prince ?
The Duke's advisers submit that the answers to both these questions should be in the affirmative; but that an affirmative answer to the second only would decide the case in the Duke's favour.
I. It is clear that there were Earls and Dukes of Cornwall for centuries before the time of the Black Prince being created Duke of that County, and even long before the Conquest. See the lists of Earls and Dukes of Cornwall, Appendix, pp. 3 & 4 ; and see the Patent of the Earl of Salisbury, Appendix, p. 58, where the creation of the Black Prince as Duke of Cornwall is mentioned, with this addition, “over which awhile ago Dukes for a long time successively presided as chief rulers.” And in the first Charter one of the objects of the creation of the Black Prince to be Duke of Cornwall is stated to have been to adorn places of note with their pristine honours.
II. But it is not only clear that there was an Earldom of Cornwall existing before the time when the Black Prince was created Duke of Cornwall, but that this Earldom was not simply a dignity but a baronial Earldom, or Seignory. It will suffice, in reference to this position, to refer to a few of the many proofs afforded by the documents and by legal authorities.
The subject of Land Baronies is treated of at large in Madox, “Baronia Anglicana,” and pages 3, 36, 91, 116 & 183 may be particularly referred to. We there find the Earldom of Cornwall expressly mentioned.
The existence of the Earldom as a Seignory is also shown by the grants printed in the Appendix, p. 12, to Henry Fitzcount and to Earl Richard ; and the third Charter to Queen Isabella, Appendix, p. 14, in which note these words, “and of the other counties in which the fees of that county lie,” showing that the fees of the County or Earldom of Cornwall extended even beyond Cornwall itself. See also the Charter to P. Gaveston, to whom “our whole County of Cornwall” was granted. Pages 42 & 47 of Appendix
Lord Hale, Harg. Law Tracts, 56, also mentions the Earldom of Cornwall as a territory. He says the Earldom of Cornwall descended to Edw. III., and he granted the Earldom to Edward the Black Prince.
This Earldom, like other land Baronies, did not, when vested in the Crown from want of Earls, merge in the Crown, but remained a separate
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territorial property ; the Crown being seized of the Barony, and the tenants holding of the Crown. not jure coronæ, but as of the “Comitatus” or Earldom “in manu Regis existente.” Mad. Bar. Ang. 183 ; and see p. 4. Duchy original “Statement,” and Appendix F., pp. 13,and 3, Mann. & Ryland, 255, note, “neither the ancient territorial Earldom nor the Duchy of Cornwall appear to merge in the Crown,” &c.
The Petition of the Bishop of Exeter as to St. Burian shows the right of presentation to have been appendant to the Earldom (Comitatus) of Cornwall, Appendix L., p. 58, and see also in Appendix, p. 30, “Of Churches.”
The Fordington Charter, 16 Edw. III., p. 60 of Appendix, expressly deals with “the Earldom of Cornwall, now called the Duchy of Cornwall,” as a, Barony, some of the possessions of which had been dismembered.
In the grant by Edw. III., on the death of the Black Prince, of the Shrievalty of Cornwall, it is stated that upon his death “the Comitatus” (it will be observed there was then no Duke, although the Duchy had been created) had reverted to the Crown.
As an example of several manors being held as an Earldom, see Somerset v. France, Fortescue, 4, and Patteson's argument in Rowe v. Brenton (p. 97 Concannen's Report, and 3 Mann. & Ryland, 147) and as an example of a whole County passing as an Earldom, see 2 Mad. Exch. 138, grant of County of Hereford.
III. as to what the Earldom of Cornwall comprised:-
By reference to Doomsday, Appendix, p. 7, we find the “Terra Regis” in Cornwall comprised only 16 parcels ; and we find that none of them were in the time of Edward the Confessor in the hands of that King, 12 of the parcels having been held by Earl Harold, and 4 by Brictric. The whole of the remainder of the lands in Cornwall are entered as held, partly by the Bishop or other ecclesiastics, and partly (except insignificant holdings) being by far the larger part of the lands in the County, of Earl Moreton, to whom the Conqueror granted this property. Only one small parcel. held by an ecclesiastic appears to have been theretofore in the hands of Edward the Confessor. This is sufficient to show the vast extent of the possessions granted to Earl Moreton.
We do not find the Crown answered by the Sheriff for demesne &c. during the time of Earl Reginald, or subsequently when there was an Earl. (See I Appendix B., column of “Observations,” p.4, and Appendix H., p. 17.) While there was an Earl the Earl must have received the whole revenue, and he certainly did so in the time of Earl Edmund, see pp. 22 to 24 of Appendix.
The uniform suspension of the Crown revenues when there was an Earl, their resumption when there was not an Earl, and the only minister's accounts extant during the time of an Earl showing the Earl to have received the revenue, which the Crown received when there was not an Earl, prove that the revenues of the Crown' in the County of Cornwall had all become annexed to and were held with the Earldom or Comitatus of Cornwall. Earl Reginald, as we collect from the charters to Henry Fitzcount (p. 12 of Appendix), held the “Comitatus” of Cornwall with all its appurtenances, and Henry Fitzcount had such County granted to him. Earl Richard had granted to him (p. 13 of Appendix) the whole of the County of Cornwall (“Comitatus Cornubiæ”). In the first charter to Henry Fitzcount (p. 12) we find the “County of Cornwall” mentioned as the County of Cornwall, with its demesnes and appurtenances. The demesnes are thus treated as part of the Earldom, and subsequently mentioned in that charter as “that County with its appurtenances.” The first charter to Earl Richard (p. 13, of Appendix) clearly shows that the King's “farms of the County” were included as parcel of the “Comitatus Cornubiæ” for it excepts for a period out of the “Comitatus Cornubiæ” the King´s farms of the same County. The Statute 34 & 35 Henry VIII., c. 16, shows that the ancient ferme for which the Sheriffs accounted included “the issues of such lands and tenements as from the Conquest until the 11th year of King Edward I. (the date of the Statute of Rutland) did remain in the hands of the King's noble progenitors, (and some of them do yet remain in the
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hands of the King's Majesty), under the charge and custody of the Sheriffs of the same Counties for the time being, as parcel of the ancient demesnes and inheritance of the Crown of England not granted nor given away, as also rents of assize, rents called common fines, Sheriffs' aids, and of other rents certain belonging to the same ferme.” Therefore, quite independently of any examination of specific acts of ownership, it seems impossible to doubt that the “Comitatus” as it existed in the time of Earl Reginald and thenceforth comprehended whatever the King retained when he made the grant to Earl Moreton, or, at all events, all such parts of the demesne as had not been granted out, and that the County, or whole County as it is described in the Earl's Charters, was descriptive of the Earldom, such Earldom being, in fact, so far as the revenue of which the Crown was then in receipt, geographically the whole County. Although the words “the County” are ordinarily used as descriptive of the Earldom, they are manifestly used also as referring to the whole of the geographical County, as far as regards the estates and interests, the profits of which were then received by the grantor.
A consideration of the various documents and authorities will show this to be the correct view.
Lord Hale, Harg. Tracts, p. 41, de Jure Maris, c. 7, says, “The Earl of Cornwall, which, though it were not a County Palatine had many Royalties belonging to it, had ‘wreccum maris per totum Comitatum Cornubiæ,´ ” &c. Earl Reginald is stated. (Plac. Abbr. 3rd John, Ro. 6) to have had “Comitatum Cornubiæ et omnia quæ ad dominum Regem pertinebant” (p. 15, Appendix). In the Pat. Rot. 28th Henry III., App. 16, the King describes the possessions of Earl Richard as “Terra de Cornubia of our beloved brother Richard, Earl of Cornwall,” and this at the same time that he describes the Crown's possessions in Devonshire as our “Terra Devoniæ,” Earl Richard's possession and ownership of land in Cornwall. are thus treated as identical with those of King Henry III. in Devonshire. In Madox, Bar. Ang. p. 5, it is said, that in ancient times a baronial estate was wont to be called by several names nearly of the same import, to wit,- Honor, Baronia, Terra, Feodum, and sometimes, but seldom, Tenementum. The Baronial Seignory of an Earl or other great Baron was commonly called an Honor, as well while it was vested in such Earl or Baron, as afterwards when it became vested in the Crown, and see other authorities cited in 3 Exch. p. 416. The second charter of Earl Richard (p. 13 of Appendix) was not only of the whole “County of Cornwall,” but included the Stannary of Cornwall and all the mines and other appurtenances of the same “County,” and that; without any retenement.
It may be proper here to advert to the analogous case of the County of Lancaster. The Earldom of Lancaster was granted to Edmund, surnamed Crouchback, by Henry III. In the time of Edward III. the Earldom was erected into a Duchy in favour of Henry Plantagenet, and afterwards of John of Gaunt, for whom the County was made a County Palatine. The sea-shore in the County of Lancaster is held by the Crown, not “jure Coronæ.” but “jure Ducatus,” but this Property in the sea-shore originated with the grant of the Earldom or County before it was made a County Palatine. The erecting of the Earldom into a Duchy left the possessions of the Earl, then become a Duke, as they were, and the subsequent making the County a County Palatine, only gave certain prerogative rights, and did not operate as a territorial grant. The sea-shore having in that case passed as part of the County or Earldom of Lancaster, it may fairly be contended that the sea-shore passed as part of the County or Earldom of Cornwall.
Having regard to what is stated above, an examination into particulars may not be necessary, but inasmuch as the Earl's enjoyment and acts embrace not merely one or two, but the several modes mentioned by Lord Hale of proving title in the absence of express grant, references will be given to some of the documents which furnish proofs under this head.
We find Earl Edmund asserting his title to wreck of the sea, and that right allowed, Appendix, 38, and see wreck answered for to him, p. 24. Appendix, and see Inquisition on death of Earl Edmund (Appendix, 24 & 25),
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which states Earl Edmund to have had “wreck of the sea” in the “County of Cornwall.” It is important to bear in mind that the Charter to Earl Richard (p. 13 of Appendix) under which Earl Edmund was entitled to “wreck" was a grant of the “County” without specifically mentioning “wreck,” and therefore that the “wreck” passed under a grant not expressly naming it. The enjoyment of “wreck” without express grant has been considered more favourable to a title to the soil than an express grant, although there are cases where this distinction seems not to have. been regarded. See per Tindal and Coltman in Calmade v. Rowe, 6 Com. B. 889, and see in Duke of Beaufort v, Mayor of Swansea, 3 Ex. 423 (Lord Hale's doctrine admitted by Crown), and in Constable's Case, 5 Co. there was an express grant of wreck
It seems manifest on examining the Charter of Earl Richard, (Appendix, p. 13), the Minister's account in the time of Earl Edmund (Appendix, pp. 22 to 24), and the Inquisition on the death of Earl Edmund (Appendix, p. 24), that “wreck,” which the Inquisition shows Earl Edmund died seized of, must have passed to Earl Edmund as claiming from Earl Richard along with the sea-shore ; and that the sea-shore was in the Charter of Earl Richard included in the grant of the whole County, without being specifically mentioned in it. The “profits of the sea-shore” are in the account answered as part of Earl Edmund's revenue (Appendix, p. 24): “wreck” being in such account stated to be included in the sum accounted for in respect of “profits of the sea-shore.” The “sea-shore” is treated as the principal, and “wreck,” as going along with it, as profits thereof. As the sea-shore is not expressly mentioned in the Inquisition, but the “profits thereof” are mentioned therein, in giving the revenue from the different enumerated properties, it (the sea-shore) must together with wreck have been included in some of the parcels enumerated in the Inquisition, as it was in the Charter included, without express description, in the grant of the “County.” The “sea-shore," therefore, was Included within the description. “The whole County,” in the grant, and within the description “the Honor of Launceston,” and the other specified estates in the Inquisition. It was thus parcel of the Honor, &c., and by reason of the Honor, &c., being included in the “County” parcel of the “County” also ; and it would therefore pass equally well under the larger or the lesser description.
Earl Edmund possessed—
Profits of ports, (including Fisheries), Appendix, pp. 28 & 34; Customs
of Boats, Appendix, pp. 22 & 25.
De exitu marinæ, Appendix, p. 26. And he appointed a servant to keep the sea-shores. (This servant was, when appointed by the King, appointed by patent for all Cornwall, see Appendix, p. 40.)
Fines for drying Fish, Appendix, p. 28.
Tranentry, see Appendix, pp. 28 & 37, as to this, which seems to have included a right of charging for landing of boats, and setting stakes to fish, and to have been equivalent to a several fishery.It will be observed that the heading of and subsequent passages in the account on the Pipe Roll, 29 Edward I., pp. 27, 28 & 29, Appendix, show that the Crown, on Earl Edmund´s death, entered into possession as his heir, and was answered for what the Earl enjoyed as above ; i.e., that what the Crown is answered for in 29 Edward I., Earl Edmund was answered for while alive, and that a “servant to keep the sea-shore,” was allowed for, “as was allowed in the time of the said Earl” ; and that in the next Pipe Roll, 30 Edward I. (p. 29, Appendix), there are similar sums entered. These accounts, 29 & 30 Edward I., clearly show that Earl Edmund was in receipt of all the revenue (fisheries, profits of sea-shore, including wreck, profits of ports, tranentria, fines for dissaccaria, customs of boats, &c.) which the Crown subsequently received in the County; and that the grant to Earl Richard of the whole County of Cornwall included all the King's revenue from every source, and under whatever head accounted for in the County of Cornwall. Thus the entries in the Minister's accounts record
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the title of the Earl by his being answered, and the immediately subsequent accounts with the Crown state that, theretofore, the Earl was answered for the several matters mentioned in the Pipe Roll, 29 & 30 Edward I.
Further, Earl Richard by Charter granted licence to get sea-sand throughout all Cornwall. (Sec Appendix, p. 16. Sec Lord Halc, Harg. Law Tracts, pp. 26, 27.) It is not an objection to this, one of the many acts of ownership of the Earl, that it was confirmed by the King, or subsequently by statute in the reign of James I. The confirmation by the Sovereign of such grant was necessary, because such an alienation in perpetuity by the Earl, he being a tenant in capite (see Inquisition on death of Earl Edmund, Appendix, 25), without the King's licence (see Cruise's Digest, Title Deed, Chap. I.) would be invalid. Thus exchanges made by Earl Richard confirmed by the King (see top of p. 35, Appendix). And at this time part of the property held by the Earl was held in tail only. (See p. 15, Appendix ; Roger de Valletort's grant.) It may have been considered that, on the death of the Earl without heirs, the Crown would not be bound, and the rights of road granted over any lands whatsoever rendered a confirmation necessary, not by the Sovereign merely (although such confirmation would bind the Crown's right in respect of any fees of lands granted out, the fees of which might possibly not have been annexed to the Earldom), but by Parliament, and hence the statute of James, the Sovereign's confirmation having been insufficient. The form of the Charter of confirmation, with the addition of the words “as the Charter aforesaid of him the said King (the King of the Romans), our brother, doth reasonably testify,” shows (particularly when regard is had to the force of those words, as explained in the note to the Charter printed (p. 89 of the Appendix) that the Charter of the Earl was intended to be fully recognized and not questioned by the King.
The Earls had the soil of the Estuary of the Fowey. See Appendix, p. 36, and the explanation in p. 8 of “Case of His Royal Highness The Duke of Cornwall.”
With such evidence as is above mentioned, there can, it is submitted, be no doubt that the property in question was part of the Earldom of Cornwall. The conclusion would be the same, even if one or more than one of the proofs above adduced were wanting or displaced.
Before closing this branch of the case, some observations in reference to the accounts may be useful.
The Sheriff was entrusted with the collection of the King's revenue. He was the King's Foreman or Bailiff, 2 Mad. Exch. 137, 151. The Sheriff returned the revenue under different heads, part as the ferme of the County and part as the issues of the profits of the County, (these two coming under the general denomination of issues of the County) see Appendix, top of page 29), and part as the issues of the stewardship of the County, including divers manors, the Stannary, the profits of ports, with wreck, tranentry, fisheries, payments for drying fish, profits of sea-shore, and other similar profits. These, apparently, from the heading of the account (Appendix, p. 27), form parcel of the County, or of the lands and tenements specified. But although this was the form of making out the account, these were only so many sources of income, all of which were included within the description of the whole County ; for the charter of Earl Richard, which is of the whole County, clearly passed all this revenue ; it appearing from the accounts in the Appendix, that the Earls Richard and Edmund received all this revenue and that upon the death of Earl Edmund, the Crown as his heir became entitled thereto as parcel of the county granted to Earl Richard. Possibly a grant of a county may in some cases have been less extensive in its operation than it was in the case of Cornwall, as it is shown to have been by the Inquisition on the death of Earl Edmund, by the accounts, and by the Acts of the Earls.
It is not necessary to contend on behalf of the Duke that the Crown had not at any time after the grant of the whole County to Earl Richard any profit or land in the County. It is not disputed on behalf of the Duke that
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the Crown did not part with its fees, i.e., the services which were Particularly the subject of the 3rd Charter to the Black Prince prior to the date of that Charter.
The cases mentioned in p. 62 of the Appendix are instances to show that there were fees in Cornwall irrespective of the Earldom previous to the creation of the Duchy, and it is contended that the 3rd Charter operated upon these and similar fees. The statement in the “Observations” of the Crown (p. 28) as to the Escheator answering for the profits of land held of the King in capite, if correct, would only show that the fees contemplated in the 3rd Charter did not pass to Earls Richard and Edmund, and that upon a tenant of such a fee dying, there was an escheat to the King. It will be observed that the Crown in its “Observations” limits this state of things “up to the period of the creation of the Duchy.” With regard to that statement, however, and also the statement in the
“Red Ink Remark 71,” in Mad. Exc. vol. 2, p. 162, is referred to as showing that during the existence of the Earls, the fermes of some manors were accounted for by the Sheriff of Devon, some explanation is necessary. On reference to Madox it will be found that the statement in
As regards this “first question,” it is submitted in conclusion that the property now claimed by the Duke of Cornwall did form part of the territorial Earldom of Cornwall.
IV. The Duke of Cornwall acquired the Earldom of Cornwall by Act of Parliament, 11 Edw. III., antecedent to the first Charter, and thus the property claimed by the Duke was granted to the Black Prince.
That there was such an Act of Parliament, and that it vested the Earldom in the Duke, is thus shown.
In the seventh year of the reign of Henry V. the King was desirous of annexing the Manor, &c. of Isleworth, which was part of the possessions granted to the Black Prince, and also part of the Earldom of Cornwall, to the Abbey of St. Saviour. But the Manor being inalienably annexed to the Duchy it was necessary first to disannex the Manor, and then to grant it. To effect this the aid of Parliament was necessary and accordingly by Act and authority of Parliament the manor was disannexed and granted to the Abbey ; and by the authority of Parliament certain other manors were substituted for Isleworth and annexed to the Duchy, such annexation requiring an
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Act of Parliament as much as the disannexation and grant of the Manors of Isleworth did. The statute which annexed to the Duchy the substituted manors is on the Rolls of Parliament (9 Hen. V.) It recites the Act of Parliament disannexing, &c. Isleworth, and then proceeds to annex the substituted manors ; but previous to, the recital of the disannexing Act the title of the Dukes of Cornwall to the manor of Isleworth and their other possessions is stated, and such statement is an express affirmation of the Duke's title as depending, not merely upon the first Charter of Edw. III., but as being under a grant to Edward the Black Prince of the County of Cornwall by Act of Parliament, antecedent to the Charter. In the Report of the Prince's Case, 8 Rep. p. 27, we find this extract from the statute 9 Henry V,, “Vide Act of 9 Hen. V., for there it is affirmed by the whole Parliament : 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 King Edw. III., amongst other things it was agreed that the eldest sons of the Kings of England, scilicet those who should be 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.” This is an accurate statement : the exact words are, “Fait assavoir q combien al Parlement tenuz a Westm' Iundy proschein après le feste de Seint Mathie l´Appostoil l´an du règne le Roi Edward Tierce après le conqueste XI., entre autres choses fuist accordée ; qe les fils eisnes des Rois d'Engleterre, c'est assavoir ceux q serroient heirs proscheins du Roialme d'Engleterre, fuissent Ducs de Cornewaille, et q le Countee de Cornwaille touts jours demoreroit come Duchée à les eisnes fils des Rois d'Engleterre q serroient heirs proscheins du dit Roialme sans estre ailleurs donée.”
It is important to show how this Act of Parliament, 11 Edward III. preceding the first Charter is dealt with in the Prince's Case, 8 Rep. That was the case of a scire facias to repeal Letters Patent of Queen Elizabeth, granting away certain property, which by an Act of Parliament, 32 Henry VIII. had been annexed to the Duchy, and which the King on the petition of his son Henry, Duke of Cornwall, sought to get back as members and parts of the Duchy. The King was the plaintiff in the proceeding, and he alleges “that by force of three Acts of Parliament, two in 11 Edward III., whereof the one is in the form of a Charter, by authority of Parliament, by which the Prince was created Duke of Cornwall, and the possessions of the Dukedom of Cornwall thereby given to him, with special limitation, and the possessions annexed to the said Duchy, so as they shall not be severed with a special clause of revivification, although the special limitation at any time should cease, and of the Act of 32 Henry VIII., by which the three manors are made parcels of the Duchy of Cornwall for ever, to all intents and purposes.” The Defendant pleaded as to the said two several Acts of Parliament, anno II Edward III., nul tiel record.
There were four questions raised. It is only necessary here to refer to the first and second questions, which are thus stated by Lord Coke.
“1. If the Instrument made 17th March, anno II Edward III., to Prince Edward, be a Charter made in time of Parliament, or a Charter established by authority of Parliament ? and this is the principal and fundamental point on which the whole depends. 2. If there was any other Act of Parliament but the said Charter, and if there is no other Act ; if the King's writ be good which alleges another Act. And as to the first point it was unanimously resolved by the Lord Chancellor and the said justices, that the said Charter was made by authority of Parliament. And as to the second point, it was resolved that the Charter, having authority and force of Parliament, is sufficient in itself, without having any other Act, and if the King's scire facias hath sufficient matter, it shall never abate for surplusage not material.”
In the course of the reasons for the resolutions given in the case, we find this:-
“And in Michaelmas, 30 Henry VIII., in Memorandis Scaccarii, Rot. 16, the record
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saith : ‘Ad Parliament : 11. Edward III. tent : inter alia, ordinatum et inactitatum fuit quod Comit. Cornubiæ imperpetuum moraretur ut Ducatus fil. senior. Regnum Angliæ qui essent hæred. propinquiores 'Regna, absque aliquo mode donari,' &c., and there is no opinion in law against it.”
It seems impossible to doubt that the second point in the Prince's case would, if necessary, have been decided in the affirmative, viz., that there was an Act of Parliament other than the Charter. It is stated that there were three Acts of Parliament, viz., two in 11 Edward III. and the statute of Henry VIII. annexing the particular property afterwards alienated by Queen Elizabeth. The two Acts of II Edward III. were, first, the Act which was the subject of the second point in the case, viz., the Act which was recited and set out in the statute 9 Henry V. ; and second, the 1st Charter, which the court held to have the force and effect of an Act of Parliament. How, then, can it now be said by the Crown that the first of these two Acts of Edward III. never existed ? Can it be said by the Crown that there was not any such Act, when the King himself, viz. Henry V., was a party to the statute 9 Henry V. which recited it, and when Parliament positively affirmed that there was such an Act ? Can the Crown say that the Duke did not acquire the Earldom, when it is considered that such Act of Parliament enacted that the County of Cornwall should remain as a Duchy, and that this was confirmed by the 30 Henry VIII. in Mem. Scacc. Rot. 16, alleging as that Mem. does, that Parliament enacted that the Comitatus Cornubiæ should remain as a Duchy. Further, the recital at the beginning of the first Charter of Edward III. to the Black Prince, itself recognizes and refers to what had previously occurred in Parliament and that the Duke of Cornwall acquired the Earldom, has been the universally received opinion since the creation of the Duchy.
It is submitted upon this view, that the present case must be decided in favour of the Duke, and that it is unnecessary to show what the effect of the Charters of the Black Prince was ; although, if necessary, there is no difficulty in showing that these Charters are amply sufficient to support the Duke´s title. It is submitted, in short, that the Duke´s case might with safety be left here, resting on its having been established :- first, that there was an Earldom of Cornwall, which included the property in question ;- and secondly, on the Act of Parliament above stated, having vested such Earldom in the B1ack Prince, and his successors Dukes of Cornwall.
As in the “Prince's case” (8 Rep.) it was considered sufficient to rely on the Charter ; so, in the present case, it may be considered sufficient to rely on the Act of Parliament preceding the first Charter.
But as the Duke´s case is also capable of being supported upon the Charters, they shall now be considered. Before passing to their consideration, it is proper to observe that much of what is mentioned hereafter will tend to support what is above stated as to the Act of Parliament. In particular the recognition of the Duke's title to the County, and the claim of the Crown to the property now in question in right of the Duchy, show that the Duke acquired a title which may well be referred to the Act of Parliament which preceded the first Charter.
V. - The first Charter is the main Charter, and is the Charter meant when “the Charter” is afterwards referred to.
Putting the Act of Parliament, which preceded the Charter, entirely out of the question, the Charter itself assumes, before any enumeration of particular parcels, that the Duke was not merely possessed of the dignity, but was owner of the territory, which the charter subsequently shows to be the County. It is not material, therefore, whether the preceding Act of Parliament had passed or not, for the Charter supposes the Duke to have acquired a territory, and must be construed accordingly. The office of the Charter was not to originate a title to territory, it was auxiliary only, to prevent doubt whether all the parcels specified in it were parcel of something which the Duke is by the Charter itself assumed to have already. The Charter says, “lest hereafter in anywise it should be turned into doubt what or how much the same Duke or other the Dukes of the said place for the time
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being ought to have in name of the Duchy aforesaid, we have caused all things in kind which we will to pertain to the same Duchy to be inserted in this Charter. Therefore we have given and granted,” &c. There is a manifest anxiety to remove question as to whether certain properties were parcel of the Duchy, and would be enjoyed therewith without an express enumeration of, and confirmation of the Duke's title in them, but this specification of parcels or causing of things in kind (in specie) to be mentioned, was nothing more than what occurs in every grant where a manor is conveyed, in which reliance is not placed upon the simple words “the manor” as a sufficient description to pass everything that is parcel of the manor, but there is added a specification or setting forth in kind of the lands, &c. parcel of the manor ; which enumeration of parcels does not in any way control the force or operation of the conveyance of “the manor,” which in itself would pass all the parcels without being specifically mentioned, unless they had been severed or were not anciently part of the manor.
Such severances and new acquisitions and the desire of perpetuating evidence of what is parcel, has no doubt been the occasion of the enumeration, in ordinary conveyances, of parcels in addition to the general description ; and certainly there was great utility in a grant like that to the Black Prince proceeding upon these ordinary motives for enumerating parcels, for there had been undoubtedly severances of parcels from the Earldom, and there were undoubtedly new acquisitions which might or might not be deemed parcel of the Earldom.
The Charter itself expresses an anxiety to preserve testimony as to the parcels “lest hereafter,” &c.
There had been exchanges made upon which newly acquired parcels had been taken in exchange (see Exchanges, pp. 33 and 34, Appendix), and there were parcels which had been held only in tail (Appendix, p. 25).
The Charter enumerates some of those “flowers of the Crown” which we are informed by Lord Hale (Harg. Law Tracts, 58), were rendered disappendant by accession to the Crown ; and the fact of John of Eltham not having had the Earldom as a territory granted to him, but having had granted to him considerable property, parcel of the Earldom, which grant would operate as a severance, will at once account for the enumeration and in construing the Charter it must not be forgotten, that one of its main purposes was to limit the dignity, and the possessions which were to go along with it, in perpetuity in a special course of limitation. Other reasons for the enumeration of the parcels will be found stated in p. 12 of the “Case of His Royal Highness the Duke of Cornwall.”
That this enumeration was intended to be restrictive it is submitted is a position wholly untenable, looking at the liberal character of the whole Charter, and the reference in it to the former possessors of the dignity ; and having regard to the near relation which the Duke bore, and which his successors would always bear, to the reigning Sovereign, that of the first begotten son. Having regard also to the fact that the possessor for the time being would always be the heir apparent to the throne, and that the 2nd and 3rd Charters certainly manifested a desire to give the Duke every thing within the County which the King as Lord could confer.
There is no anxiety shown to except any thing, and seeing that the Charter enumerates all the parcels enumerated in the Inquisition on the death of Earl Edmund, and that Earl Edmund enjoyed the property in question as parcel of what was granted to his father Earl Richard, from whom he took by descent, it cannot be supposed that the Crown meant to except the property now in question. So far indeed from intending to curtail the Duke's property the Charter comprised estates in other counties which had not been parcel of the Earldom, and this affords a further reason for the enumeration of parcels, without the enumeration being intended to be limiting or controlling. Unquestionably property of a most important character both as regards extent and value was not specified, but nevertheless passed, e. g. the Scilly Islands, which do not appear to have been parcel of the Honor of Launceston although, after the Charter, they appear to have been held of the Duke AS OF the Honor of Launceston.
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This, however, is not descriptive of the islands being actually parcel of the honor (see 3 M. & R. 249), but as parcel of the Earldom, they would pass to the Black Prince, and this affords another argument in favour of the Black Prince having acquired the Earldom.
The above view of the enumeration of the parcels in the first Charter is sanctioned in the note to Rowe and Brenton, 3 Mann. & Ryland, p.475.
That it was intended to grant the whole Earldom, is further manifested by the Fordington Charter (Appendix, p. 60), which, after stating that the “Earldom of Cornwall, now called the Duchy of Cornwall,” had sustained a dismemberment of its rights, expresses the desire of the King to make integral (redintegrare) again the Duchy. This charter grants and re-unites to the Duchy the Manor of Fordington and other property, which it seems had been alienated and thus severed from the Earldom ; the expression, the said “Earldom of Cornwall, now the Duchy of Cornwall,” occurring as well in the granting part as in the preamble ; and it also re-unites the Town of Rockingham, which. the charter states to have been granted to John of Eltham who had not the “Comitatus” ; and the grant to whom had no doubt severed Rockingham from the Earldom. There is an inaccuracy in the Fordington Charter in describing Rockingham as a member of the Duchy, because it was not then part of it, but was by that charter to be re-united to the Earldom, then a, Duchy. This, however, seems unimportant.
VI. The charter specifies the “Vicecomitatus,” translated in the copy of the charter “Shrievalty of Cornwall,” “so that the aforesaid Duke make and appoint, and may be able to make and appoint the Sheriff of the aforesaid County of Cornwall, at their pleasure to execute and perform the office of Sheriff there, as hath hitherto been accustomed to be done, without the hindrance or impediment of us or of our heirs for ever.”
It is contended on the part of the Duchy, that the grant of the “Vicecomitatus” was in itself sufficient to pass all the property now in question.
It will be observed, that the reason of the grant is expressed to be, “in order that he may be able to sustain the state and support the burthens incumbent in that behalf.” Therefore, the grant of the “Vicecomitatus” was to pass a beneficial ownership, and not merely an office. If construed as placing the Duke in the position of the King in reference to the Sheriff, the Duke would thus be entitled to receive from the Sheriff the revenue for which the Sheriff answered to the Crown ; and thus the Duke would become entitled to all property of which the Sheriff received the profits ; including, as above shown, all the profits of the property in question in this case (see ante as to Ministers' account and Pipe Rolls).
This view is fortified by its appearing, as it does from the printed documents (see the Pipe Roll, 14 Edward III., Supplemental Appendix, p. 1 ; and the Pipe Roll, 8 James I., p. 9, in the “Further Documents in support of Case of the Crown,”) that the Duke had the ferme of the County. The charter grants the Bailiwick of Poudershire, which would of course pass all the profits of the Bailiwick, and in like manner the grant in question would pass all the revenue answered for to the Crown by the Sheriff. It has been already shown by reference to the statute 34 & 35 Henry VIII., that the Sheriff's receipts included the issues of all. lands and tenements which remained in the hands of the King “post terras datas,” being all the ancient demesne not for the time being granted out. And Madox states, 2 Exch. 137, 151, that the Sheriff was intrusted with the collection of the King's revenue, and was the King's Foreman or Bailiff. The Sheriff was not concerned merely with the corpus Comitatus. Even were this ordinarily so, it would not be important in the present case ; but it is not so. No doubt, as stated by Madox (2 Exch. 165), the principal part (not the whole) of the Sheriff's farm arose out of the “corpus Comitatus,” but the ferme of the County was not confined to the “corpus Comitatus,” and included the King's manors and lands. See 1 Mad. Exch. 334, and the statute 34 & 35 Henry VIII., c. 16.
At the time of the charter being granted, the usage in Cornwall
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had unquestionably been for the Sheriff to collect all the King's revenue, including all profits from the sea-shore. If the King had had any lands in Cornwall actually in hand, as they would not have yielded a profit, they would not have been accounted for by the Sheriff ; but although Madox mentions the King's demesne as one source of revenue, this was not excluded from the Sheriffs receipt, unless where, being in the King's own occupation, there was nothing to collect. The charter must, it is submitted, be construed with reference to the established usage as regards the collection of the revenue. Indeed it will hereafter appear that all the different sources of revenue were afterwards entered and dealt with as receipts in respect of the Duchy.
The words “so that the aforesaid Duke make and appoint,” &c. were inserted to prevent any question as to whether the old Charter to the men of Cornwall (see Appendix, p. 40), as to the mode of appointing the Sheriff would be abrogated or not ; and the words “as hath been accustomed to be done,” show that the Duke was intended to be in the same situation as the Earls who had appointed the Sheriff before. The reference to the former usage supposes that the Duke would fill the status of those who had formerly appointed the Sheriff ; and would thus be able to appoint the Sheriff. The custom had been that the possessor of the Earldom should appoint the Sheriff, and this custom is to be continued by the Duke as possessor of the Earldom in the name of a Duchy*.
The effect of the grant of the “Vicecomitatus” may indeed he put much higher. The term “Vicecomitatus” is one which was frequently employed as descriptive of the “Comitatus” when there was not an Earl. The reference in the Charter to “the County aforesaid,” there not being any previous mention of the County of Cornwall, unless indeed the word “Duchy” can be considered as being synonymous with it, is explained by this reading of “Vicecomitatus.” The term is rendered frequently by Madox as Sheriffdom ; and certainly frequently used by him as descriptive of a territorial ownership including the ferme of the County and as being in effect, as far as regards the Crown's revenue, the whole County. (See 2 Mad. Ex. 139).
The use of the term Vicomté, in Normandy, is not unimportant. La Vicomté was used as descriptive of the seignory of le Vicomte. See an example of this in L'Art de Verifier les Dates des Faits historiques, tome 9, p. 457, Paris, 1815, where “toute la Vicomté de Narbonne” is mentioned ; and see p. 467, where it is said of Pierre de Turieres le Vicomte, “il vendit par contrat passé à Tours le 26 Decembre la Vicomté de Narbonne avec ses dependances à Gaston IV. Comte de Foix, qui l'unit à son domaine. Mais avant cette vente il avait fait donation entre vifs de la même Vicomté,” &c. And Jean le Vicomte is afterwards, p. 468, stated to have had made to him by his father Gaston “donation de la Vicomté de Narbonne, mais il ne fait possession de ce domaine qu'après la mort de Gaston,” &c. &c. In the first Charter to Queen Isabella (Appendix, pp. 52 & 53), we find “Vicecomitatus” used as descriptive of the “Comitatus,” there not being then an Earl ; and see the Charter of King John (Charter Roll, 2 John, 9th Jan. 1201, Appendix, p. 38), committing to Richard le Fleming “Vicecomitatum Cornubiae;” and he commands William Brewer to deliver up to the said Richard, predictum “Comitatum cum Castello de
*There is an error in punctuation; in this portion of the 1st Charter, as printed by the officers of the Crown, in the Appendix to their “Observations,” which, if not corrected, is likely to mislead. The semicolon after the word “pleasure" appears to make the expression “as hath hither to been accustomed to be done,” refer to the performance of the Sheriff's duties. The original document has no such stop ; and the words which immediately follow those just quoted, viz. “without the hindrance or impediment of us or of our heirs for ever:” show that the words which immediately precede them have reference to the appointment, and not to the performance of the duties of the Sheriff, inasmuch as the exercise of the Crown's ordinary right might interfere with the former, but not with the latter; that is, with the appointment of but not with the duties of the Sheriff.
A correct copy of the original Charter will be found in the fifth Appendix to the “Reports from the Lords Committees touching the Dignities of a Peer of the Realm.” Vol. v. p. 35.
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Launceston.”
In each of the Pipe Rolls, 14 Edward III. (Supplemental Appendix, p. 1) and 8 James I. (p. 9, “Further Documents in support of the Case of the Crown”) the term “Vicecomitatus” occurs, and is manifestly used in a territorial sense, and not merely as giving a right to appoint to an office ; for, as before stated, those Rolls show that under the “Vicecomitatus,” the ferme of the County was included. In the King's Writ to the Barons of the Exchequer, 2 Henry IV. (No. 16 of the “Further Documents”) and also in the previous writ to the Escheator (Appendix, p. 61), there referred to, “Vicecomitatus” is manifestly used in the sense of “County,” (see the “Observations on behalf of the Duke of Cornwall on Further Documents,” &c. No. 16), which are prefixed to this.
It will be observed that what the Charter mentions is “Vicecomitatus, with, its appurtenances.” It is manifest from the Charter, that the “Vicecomitatus” is treated as, and included under the description of, a tenement which with its appurtenances, was to be enjoyed by the Duke ; and it is clear that the Duke was to have the revenue which the Sheriff collected. It is therefore submitted that whatever may be the true and exact meaning of the words “Vicecomitatus, with its appurtenances,” the Duke and his successors were to have and did acquire at least the beneficial interest in all the revenue for which the Sheriff had answered to the Crown when there was no Earl. And it has before appeared that this revenue included the revenue of the property now in question.
VII.- The Charter after specifying the “Vicecomitatus” next specifies “the Castle, Borough, Manor and Honor of Launceston with the park there and other their appurtenances in the Counties of Cornwall and Devon."
The castle (formerly called Dounheved) was the Caput Baroniæ, and the honor was one of vast extent. In the proceedings relative to the corody in Mount St. Michael (Appendix 15), Mount St. Michael (which is on the south coast) is described as appertaining to the Honor and Castle of Launceston, situate at some distance in the interior of the County. From the Sutton Pool Case it, appears that the honor extended into Devonshire on the east. With the Scilly.Islands which have been before mentioned, there passed unquestionably all the sea-shore, sounds, and right to wreck there. The property now in question might well pass as parcel of the Honor of Launceston. It may be that as far as regards those manors which were on the sea coast, the sea-shore immediately adjoining passed as parcel of such manors, but this is quite consistent with all being included in the Castle and Honor of Launceston, which, as the Caput Baroniæ, would comprise all the manors in Cornwall specified in the Charter. This view of the Duke's title to the property now in question, derives support from the Inquisition on the death of Earl Edmund, which finds that he had the “wreck,” and, as before explained according to this Inquisition, wreck must have passed as going along with the sea-shore, and the sea-shore as part of the honors, &c. mentioned in the Inquisition (see ante, page 7, as to wreck). The Earls Richard and Edmund, having had the sea-shore under a grant of the whole County of Cornwall, as has already been shown, the sea-shore, it is submitted, passed to the Duke of Cornwall either as part of the “Vicecomitatus,” or as part of the Honor of Launceston or as parcels of the particular manors of which that honor was composed ; or as part of the “County.” Which of these may be the correct view is unimportant to the Duke. Suffice it to say here, that there is sufficient ground for holding the sea-shore to have passed to the Duchy in the manner to which the last arguments have especial reference ; although it is conceived that the broad ground of the Earldom having passed to the Duke, is a ground of itself so clear and convincing as to render the consideration of any other grounds almost unnecessary.
The grant in the Charter of “our Stannary in the same County of Cornwall,” is strongly confirmatory of the Duke's title to all the mines therein without limitation to high or low-water marks, or even beyond the latter.
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VIII. - It has always been considered that the Duchy comprised the Earldom of Cornwall. It is considered, therefore, that even on the ground of contemporaneous construction and the unvarying view taken of the Charter, the Duke's title should prevail. The following are some of the instances and others will be found among the documents: -
The Fordington Charter, granted a few years (16 Edward III.) after the Charter, expressly states that the Earldom and Duchy were identical (Appendix, 60). And see Mad. Bar. Ang. 211, that a fief remained the same though the style or denomination of it was altered, to wit, from an Earldom or Duchy to a Kingdom. And as to names of reputation, see Sheppard's Touchstone, 246.
In a Charter of the Black Prince, 21 Edward III. (Appendix, p. 60), the coinage and preemption of tin were granted. In this the Stannary granted to Earl Richard by the description of the Stannary of Cornwall (Appendix, p. 13), is described as the “Stannary of the whole Duchy of Cornwall.” Thus the Duchy is treated as equal to and co-extensive with the description, “County of Cornwall,” and as the Stannary unquestionably extended over the whole County, it is manifest that the term Duchy was used in an equally extensive sense.
The King's Writ to the Barons of the Exchequer (2 Henry IV. No. 16 of the “Further Documents” and also the previous Writ to the Escheator (Appendix, p. 61) there referred to, show that the “County” was included in the “Duchy.” (See “Observations on behalf of the Duke of Cornwall on further Documents,” &c. No. 16.)
In a Charter of the Black Prince, 28 Edward III., Appendix, p. 76 (see p. 78), he states that the “Lordship of Cornwall” had come into his hands.
In the proceedings as to the corody in the Priory of Mount St. Michael, 41 Edward III. Appendix, p. 15, it is stated that the King granted to the Lord Edward, his eldest son, the “WHOLE COUNTY OF CORNWALL,” &c.
In the committal of the office of Sheriff, on the death of the Black Prince, it is stated that the “County” had by the death of the Duke come to the King's hands, p. 61, Appendix. That which was a “Duchy” being then again called a “County,” there being then no Duke.
In the 38 Henry VI., see p. 11 Duchy Statement (and also p. 474 Appendix to 3 Mann. & Ryland), in a Bill introduced into Parliament, it is stated that the “County” vested in the Black Prince under the Charters.
Lord Hale considered that the Duke had the “County” or “Earldom,” (see “ Reply,” p. 5, Harg. Law Tracts, p. 56).
Lord Redesdale states the “County” to have been granted. See Report from Lords' Committee, on Dignity of a Peer, 1829, 3rd Report, Vol. 2, p. 138. “John of Eltham, dying without issue, Edward III. in the 11th year of his reign, made a grant of the ‘County of Cornwall,´ and other large estates, to his eldest son Edward, then Earl of Chester. The Patent containing this grant is in many respects important. It recites the grants in these terms : ‘Inter cetera regni insignia illud arbitramur,´ &c., &c., (setting out a portion of the Charter of the 17th March, 11 Edward III.”)
“This Patent seems clearly to import that the dignity of Duke of Cornwall granted to the Prince was personal ; that the property was granted to him to enable him to maintain the dignity of Duke, according to his royal rank ; and that the King's Patent of creation, and not the grant of the property, made him Duke of Cornwall as a mere title or name of honour, and that the grant of the property did not make him Earl of Cornwall, or give him any title of dignity.”
The territorial Earldom of Cornwall seems to be treated as existing in the Duchy, 3 Mann. & Ryl. 255, note.
The proceedings in the Prince's case show the “County” to have been granted. Lord Coke certainly so considered it. 8 Rep. p. 26 ; and see ante, p. 10, as to the statute 9 Henry V. ; and as to the 30 Henry VIII. in Mem. Scacc. ; and see Duchy “Statement,” p. 11, as to Act of Parliament recited and confirmed, 4 Edward IV.
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IX. - In the 31st and 35th Edw. III., we find proceedings taken by the Duke in reference to the taking of sand, See Appendix, 79.
The Scilly Islands are parcel of the Duchy and are leased as such with the sounds, wreck, &c., Appendix, 82. The fishery and soil of the Fowey is also part of the Duchy, Appendix, 59.
The Minister's and other accounts in the office of the Duchy, Appendix, p. 63, show that the Duke, and when there was no Duke, the Crown in , right of the Duchy, had at least as extensive issues and profits as the Earls had, p. 63 of Appendix. Wreck, profits of ports, fines of merchants, with tranentry are mentioned, and in pp. 66 & 72, wardships and escheats are answered for, and see pp. 69 & 73, the profits of the fishery of Fowey are answered for, and in p. 70 wreck and fines of merchants with tranentry are mentioned, and see pp. 73 & 74. And in pp. 73 & 74 keelage and anchorage of ships are mentioned and are referred to, as having been answered to divers Princes and Dukes of Cornwall in preceding years.
Many similar accounts would no doubt be forthcoming but for the destruction of documents mentioned in the original “Statement” on behalf of the Duchy. It will be observed for how very few years since the creation of the Duchy there has been a Duke of Cornwall of the age of 21. We do not find the Crown answered for the profits of the property in question except in right of the Duchy, and the enjoyment of the Duke and of the Crown in right of the Duchy, show that the Duke's title to the property in question stands at least as high as that of the Earls, the corresponding accounts with whom and with the Crown upon the decease of Earl Edmund are in the Appendix and before referred to.
That the Duke had the “ferme of the County” appears from the Pipe Roll 14th Edw. III. and 8th James I., already referred to.
That the Crown had only half a knight's fee in Cornwall in the 3rd Hen. IV., appears from an Inquisition in that year, Appendix, 61. It is stated in the Inquisition that all the fees and lands within the same County, except the moiety of a fee, are holden of the Lord the Prince “as of his Duchy of Cornwall.” Such half may have been acquired by the Crown by forfeiture for treason or otherwise, and the Crown's possession thereof, or indeed of any other particular property can afford no argument against the Duke's title to the property now in question. This appears from the “Observations” on behalf of the Duke on “Further Documents” prefixed to this, to which, for the sake of brevity, reference is invited.
Reference may also here be made to Lopez v. Andrew, 3 Man. & Ryl. 329 n (a), where it appears that Littledale, J. considered that the Charter passed the soil between high and low-water mark.
The special commission, temp. Charles 1., quoted by the officers of the Crown, whilst his son was a minor and not in possession, is not entitled to any weight as regards the Duke's claim. It appears that the King issued one of these commissions for every sea-bordering county, including Lancaster, and further that even Dartmoor was found in one of them to belong to the King, though it was actually granted nominatim to the Dukes by the first Duchy Charter (see Appendix, 86 & 87). (See also as to those commissions
X. - The 2nd and 3rd Charters show the great anxiety of Edward III. to give the Duke every thing in the County of Cornwall. The 3rd Charter comprised all the Knight's fees, which would entitle the Duke to all the services, and all the escheats. (See Shepp.'s Touch. as to Knight's fees ; see also Trin. 7th Edward IV., p. 10, pl. 2.
That the Crown in the exercise of its prerogative might, in some cases of sub-infeudation, claim wardship, &c., in Cornwall need not be questioned, on behalf of the Duke, nor need it be questioned that the Crown might acquire lands in Cornwall by reason of forfeiture for treason or otherwise, subsequent to the Duchy Charters, and thus become entitled to escheats, in the strict sense of that word. These matters are fully dealt with in the “Observations” on behalf of the Duke of Cornwall on “Further Documents” prefixed hereto, and reference is invited to them.
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As regards this “Second Question,” it is submitted to be a just conclusion from the preceding remarks, that the property now in question was granted to the Black Prince.
According to the principle laid down in the Duke of Beaufort v. Corporation of Swansea, 3 Exch. 424, in which the jury were told that the documentary evidence did not necessarily carry the title from the Crown to the Duke, all the evidence must be looked at, to ascertain whether what is claimed is vested in the Duke ; and it is submitted that, upon such a consideration of the case, the legitimate conclusion is, that the property in question did vest in the Duke and his successors. It is not material whether it passed by the Act of Parliament preceding the Charter, or by the Charter, or whether it passed as parcel of the Earldom, or under the grant of the “Vicecomitatus,” or of the Castle and Honor of Launceston, or as regards any parts of it as parcel of particular manors. It is sufficient that it could well pass in any of these ways, and that looking at all the Charters, the Acts of Parliament, the judicial proceedings, the accounts, and the other evidence, there are abundant grounds on which the Duke's title must prevail.
But the Crown endeavours to draw a distinction between the mines under the sea below low-water mark, and the mines down to low-water mark. As regards mines it will be recollected that Earls Richard and Edmund had them beyond all doubt as parcel of the “Earldom” or “County.” See the Charter of Earl Richard, p. 13 of Appendix. And as they were never severed from the Earldom, the Duke must have got the mines if he got, as is before shown he did get, the Earldom as a Duchy. The Duke's title to mines therefore seems undoubted, whatever view may be taken of his title in other respects. The distinction suggested as regards mines below low-water mark cannot, it is submitted, be maintained.
That a subject may have land below low-water mark is clear. See per Alderson, B. 3 Exc. 426, referring to Lord Hale ; and per Holroyd, J. in Blundell v. Cotterall, 5 B. & A., p. 302.
The Duke's title may thus be traced. Henry III. granted to Earl Richard the whole “County of Cornwall” (“without any retenement,”) upon whose death there was a descent to Earl Edmund ; and upon his death the Earldom descended to the King, as Earl Edmund's heir, and was subsequently regranted to the Black Prince as a Duchy. The subject of the grant was the Earldom which is described as the “whole County of Cornwall,” and, as before appears, comprised all that the Crown had then in the County.
In fact the grant transferred the whole lands of which the Crown was in possession in the County. Whatever therefore was the “County,” or might become so, is within the spirit and scope of the grant. The extension of the working of a mine below low-water mark would add to the boundaries of the County, and be within the words and spirit of the grant, for it seems that even derelict lands become part of the adjacent County. Callis, 52. And it would be absurd to suppose after a grant expressed in such large terms by a description which, as far as it has reference to the sea coast, must necessarily vary from time to time, that the Crown should desire to retain the minerals below low water, i.e. that all workings down to low water mark should be included in the grant, and that all below that mark should be retained by the Crown.
In Callis, p. 52, in reference to the Earl of Chester, it is said, “but the County Palatine vested in the Prince is prescribed within no other bounds than the word County doth confine it. And therefore this falling to be within the County should be properly his.” In re Hull and Selby Railway Company, 5 M & W. 327, Lord Abinger, in a somewhat novel case as to a right to the sea shore, there said that authority was not wanted, but only the principle which has obtained for the mutual adjustment and settlement of property. And in the case of The King v. Lord Yarborough, 2 Bligh, 147, Lord Wynford, referring to land formed by alluvium and to the neighbouring landowners' appropriation thereof, says, “These lands, which are of no use to the King, will be useful to the owner
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of the adjoining lands;” and again, after referring to Locke's Treatise on Government as proving the reasonableness of the custom which assigns lands gained by alluvium to the owner of the lands adjoining, his Lordship again says, “The reasonableness is further proved by this, that the land so gained is a compensation for the expense of an embankment and for losses which frequently happen from inundation to the owners of lands near the sea. This custom is beneficial to the public. Much land which would remain for years, perhaps for ever barren, is, in consequence of this custom, rendered productive as soon as it is formed. The sea being gradually and imperceptibly forced back, the land formed by alluvium will become of a size proper for cultivation and use, and in the meantime the owner of the adjoining lands will have acquired a title to it by improving it. The original deposit constitutes not a tenth part of its value ; the other nine tenths are created by the labour of the person who has occupied it, and in the words of Locke, the fruits of his labour cannot, without injury, be taken from him.”
The case of an owner of a mine worked to low-water mark seems to fall peculiarly within this reasoning. No doubt during the whole progress of the work, even to low-water mark, the adventurer has been subjected during every tide to very great peril from the superjacent sea. And his being allowed to continue his work, is only a fit compensation for his enterprise.
The public weal requires that valuable and available property should not be left wholly unproductive, which it must be unless the working of the mine be continued by the party who has worked as far as low-water mark, and when we add to this that the owner of the mine has title to property which has been described as being the whole “County,” a description which would certainly fluctuate with any variations occasioned by variations in high and low-water marks, and when it is considered that the underworkings would be within the County, it must, it is submitted, be held that the Duke of Cornwall acquired a title to the undersea mines in question.
The sea and the soil under it are vested in the Crown as a public trust, for the public benefit and advantage, but in this case the public benefit and advantage do not require that the Crown should have vested in it mines under the sea. On the contrary, the public benefit and advantage require the continuance of the workings of the mines, in order that minerals may be brought into the market, which, if the claims of the Crown were to prevail, must remain ungotten. Beyond a certain extent under the sea workings cannot be carried on ; the nature of the case is such, therefore, as to put itself a limit upon the workings ; the extent to which workings can be carried on will vary with the advance or receding of the sea, and it seems only reasonable therefore that the right of mining should be exercisable as far, as from time to time the circumstances of the case will allow. The Duke's claim is not only not opposed to any authority, but is reasonable in itself, seems to be called for by the public good, and to be supported by the authorities above referred to. The public can have no interest whatever, nor can the Crown, in minerals being left wholly unwrought, and below low-water mark they must be so left unless they can be worked in continuation of workings previously carried on down to that line. See further on this part of the case, pp. 12 & 13 of the Duchy “Statement.”
That the Black Prince was intended to be treated with peculiar dignity, and to be endowed with an extent of possessions up to that time unknown in a Subject, as the first-begotten son of Edward III., and as heir apparent to the Crown : that this provision for him was one made, not merely by a king and a father, but by Parliament, as representing the nation, in terms expressive of great regard and affection are, it is submitted, considerations not unworthy of attention in reference to the construction of the Duchy Charters, and to the general rights of the Duke in the County of Cornwall.
April 1857
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LONDON : PRINTED BY SHAW AND SONS, FETTER LANE
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