The further documents which have been brought forward by the Officers of the Crown being unaccompanied with any observation, it is not clear in all cases what particular points they are intended to establish.
The following is a list of the documents :— [click on number to navigate up/down]
1 Proceedings in the 6th Edward I. against the Bishop of Exeter. 2 A Grant of the Custody of the Silver Mines in Cornwall and Devon by the King in the 11th Edward III. 3 A similar Grant in the 16th Edward III. 4 A similar Grant of Gold and Silver Mines in the 38th Henry VI. 5 Appointment in the 20th Edward IV. of two officers to superintend the working of Gold and Silver Mines in Devon and Cornwall, which had been granted by the King to Sir John Fogge, in the IIth year of the King's reign. 6 Grant by the King to the Prince of Wales of all fines, issues, forfeitures, and amerciaments pertaining to the Crown, from a Session of the Justices in Devon and Cornwall, 29th Edward III. 7 Particulars of an Aid levied in Cornwall in the 20th Edward III., for making the King's eldest son (i. e., the Black Prince) a Knight. 8 Special Commission, issued 13th Charles I., to inquire into the marsh lands and lands gained from the sea in Cornwall. 9 Extract from the Pipe Roll, 8th James I. 10 Escheator's Account for Cornwall, 29th Edward III. 11 The like in the 35th Edward III. 12 Inquisition taken 48th Edward III., stating the tenure of the Manor of Tregony, in Cornwall. 13 Escheator's Account of 49th Edward III., showing some profits from the Manor of Tregony, answered for to the King in consequence of the death of Henry de Pomeraye. 14 Escheator's Accounts for Cornwall in the 13th Henry IV. 15 Account of goods and chattels of felons forfeited in Cornwall and Devon, without date. 16 The King's Writ to the Barons of the Exchequer, 2nd Henry IV., ordering the Duchy possessions and the arrears due to the King therefrom to be delivered to the Prince. The Officers of the Duchy propose to remark upon these documents in the above order.
1. The Proceedings against the Bishop of Exeter of the 6th Edw. I.
These proceedings are imperfectly set out by the officers of the Crown : a more full extract from the Record has been obtained, and accompanies these papers (see post, Part III). It is presumed that the object of the officers of the Crown in producing it is to lead to an inference that the sea sand in Cornwall, and consequently the sea-shore from which it was taken, was
---------------------------bottom of page 5 (first text page)---------------------------
vested in the King, but it is submitted that no such inference can legitimately be drawn. The proceedings had reference to certain sand stated to have been taken into the hands of the King near the sea-shore. The sea-shore was not, nor was any sand taken therefrom in any way in question.
The locus in quo seems to have been Lanwythek, for although the Sheriff stated that the writ set out in the Bishop's plea had not come to his hands, it is highly improbable that the assertion of there having been such writ was false ; but assuming that the assertion of such writ was false, the answer given to the Bishop's plea by the Crown was not that the alleged proceeding was insufficient but that notwithstanding such proceeding, if it existed, it was lawful for the King to prosecute his right, thus showing that there was not any dispute as to the locus in quo; in short, that that locus was in the King's fee of Lanwythek. Indeed it is manifest from the Earl of Cornwall himself being a complainant at the same time against the Bishop in respect of the Bishop having fined parties for getting sand between high and low-water marks, that the King's complaint must have had reference to sand in a particular locality only, and that that locality was not between high and low-water marks. What interest, if any, the King had in this sand is left in obscurity, but the substance of this and the other complaints on the part of the King against the Bishop was the Bishop's excommunication of parties in respect of a variety of matters of which the taking of the sand in question without the Bishop's licence was only one.
The sentences of excommunication and the renewals of those sentences were the subjects of the complaint, and were described as being to the injury and prejudice of the Crown of the Lord the King. Even had the sand in question been sand gotten between high and low-water marks, the King would have had an interest in protecting all parties holding of him in capite (including even the Earl himself), in the enjoyment of the right which Earl Richard had granted to all the inhabitants of the County, or of any right which such parties might have irrespective of that charter, for at this time the King, apparently, had not parted with all the fees of the King in the County, as Edward III. afterwards did to the Black Prince by the 3rd charter to him. The fee of Lanwythek being one of the King's fees in respect of which there were tenants in capite, would sufficiently account for the King asserting against the Bishop the right to get the sand mentioned in the proceedings, and it would seem that it was sand which a great number of persons described as men of the vicinage of Lanwytheck had gotten in this fee of Lanwythek, and which being gotten the King had seized.
It is quite consistent with the title of the Earl to the sea-shore in general, that the King in respect of the fee of Lanwythek might bring a complaint against the Bishop. The act of the King in taking the sand into his hands must have been only a formal step in the proceedings against the Bishop, in order that this usurpation on the part of the Bishop might not be passed over at a time when the Bishop's excommunications in respect of other matters were made the subject of complaint ; for had the dispute been as to the sea-shore itself the King could not, if he had been owner of the sea-shore, have had occasion to take seizin. It should not be overlooked that this preliminary step was not taken as regards any of the other matters of complaint against the Bishop, and that no separate damages were assessed in respect of the Bishop's act of excommunicating the parties who had gotten the sand.
The very act of taking possession seems to show that the title to the sand was not then in the Crown, assuming the sand to have come from the sea-shore. If the King was then seized of the shore throughout the whole County, this act of taking seizin could not be necessary. It is manifest from the subsequent part of the proceedings at the instance of the Earl, that the complaint of the Crown had no reference to the sea-shore as a whole, and that the Earl was the party prosecuting as regards sand gotten between high and low-water marks. The complaint of the Earl not relating to certain sand near the sea-shore, but to sand gotten between high and low-water marks. The Bishop would seem to have made some endeavours to prevent the getting of sand without his licence, and if the King's complaint should even be
---------------------------bottom of page 6---------------------------
regarded as having reference to sand between high and low-water marks, then it may be that the Bishop disputed the right of the men of the vicinage of Lanwythek to get the sand without his licence in that particular locality, notwithstanding the charter of Earl Richard. The district to which these proceedings referred was apparently within the Manor of Penryn, adjacent to St. Melor, the parson of which place was implicated in the proceedings. From this, it seems probable that the locus in quo was or was claimed to be parcel of the Rectory, by reason whereof the Bishop asserted that his concurrence as ordinary was requisite. But the real question at issue in the whole of the proceedings was one of jurisdiction only, and this is represented in the Plac. Abb., .6 Edw. I. Rot. 12, where the proceeding is stated to have been a complaint against the Bishop, by reason that “usurpavit super Regalitatem regni et Regis,” see Preliminary Duchy Statement, p. 5. It is submitted that these proceedings on the whole are rather favourable to the case of the Duke of Cornwall than otherwise.
2 to 5. The Grants of Royal Minerals in Cornwall by the King.
Most, if not all, of these documents have been before mentioned in one or other of the papers.
It will be observed, on reference to the Appendix 0. to the Duchy Case, that these grants were all made by the King when the Duke of Cornwall was under 21 years of age. At the time of the grant to Gawin de Sawthorpe (No. 1), the Black Prince was only 7 years of age.
At the time of the grant to John Moneroun (No. 2), who was the Duke's Receiver in Cornwall and Devon (See Appendix M. No. 2), the Duke was 12 years of age.
At the time of the grant to John Ormond (No. 3), in the 38th of Henry VI., the Duke Prince Edward, his son, was 6 years old.
Edward, son of Edward the Fourth, was 9 months old, and, at the date of the appointment of the two parties to superintend the workings, the Duke was under 10 years of age.
It is worthy of remark, that no instance has been adduced of any grant of Royal minerals in Cornwall being made by the King at a period when there was a Duke of Cornwall of full age in existence; and from the diligent searches which have been made, it must now be concluded as a fact, that no such grant was ever made. Several instances have already been shown by the Duchy (Appendix 0. Nos. 4, 5 & 6), of grants of Royal minerals by the Crown, when there was a Duke of Cornwall of full age in existence, being confined to the County of Devon, whilst all the grants which were made either when there was no Duke or Earl in existence, or the Duke for the time being was under 21, extend to the Counties both of Cornwall and Devon. But it is considered that the question as to the right to the Royal minerals of gold and silver has not any important bearing upon the questions now to be disposed of. It may, however, be remarked, that during the minority of George the Fourth, all leases of the Duchy property were granted by the Crown, being by letters patent under the Exchequer seal.
6. A Grant of Edward III., in the 29th year of his reign, to the Prince of Wales, of all fines, issues, forfeitures and amerciaments which pertained to the King from the late Session of the Justices assigned to hear and determine divers felonies, trespasses, &c. in the counties of Devon and Cornwall.
There is nothing to show distinctly the object with which this document is referred to by the officers of the Crown ; but assuming it to be for the purpose of showing that, notwithstanding the Duchy charters, the King retained the right to things of this nature in Cornwall, it is submitted that
---------------------------bottom of page 7---------------------------
the document affords no evidence favourable to their case. The words “in the Counties of Devon and Cornwall” are merely descriptive of the commission issued for the two counties, and the language of the document is quite consistent with the fines, &c. arising in Devon only, being granted by it ; for all that the King granted thereby, was such fines as belonged to the King from the Session of the Justices assigned to hear felonies, &c. in Devon and Cornwall. This grant is quite consistent with the grants contained in the 2nd and 3rd Charters to the Black Prince.
The document under consideration, in reality favours the argument on the part of the Duke, for it grants only such fines, &c. as “pertain to the Crown,” thereby showing that there were fines, &c. not so pertaining ; and even if there were any fines, &c. in Cornwall, which did not pass by the 2nd or 3rd Charters, this would not affect the question now to be disposed of.
7. Particulars of an Aid levied in Cornwall, in the 20th of Edward III. for knighting the King's eldest Son, the Black Prince.
The object of the officers of the Crown in referring to this document is probably to show that inasmuch as the King could legally levy aids only upon the tenants who held of the Crown without mesne lord, the parties upon whom this aid was levied were tenants in chief of the Crown in Cornwall, notwithstanding the Duchy charters.
The account itself shows that the parties charged were not confined to tenants in capite of the Crown, inasmuch as several of them are therein mentioned to be tenants of the Duke.
The names both of persons and places are so misspelt in the account that there is great difficulty in identifying them with those in the accounts of the Duke's ministers. Some of them are, however, capable of being identified ; and in these cases the Duchy ministers' accounts show that the estates were not held in chief of the Crown, but of the Duke ; and the revenues arising from these estates, in respect of wardships, reliefs, &c., were accordingly accounted for to the Duke.
The following may be referred to as instances, and in order to facilitate the identification, it has been found expedient to refer to the list of fees set out in “Carew´s Survey of Cornwall,” in which the names are more correctly given, and which evidently was the foundation of the list adduced by the officers of the Crown :
List adduced by the Officers of the Crown
List in Carew's Survey
References to Ministers' Accounts of the Duke
Hundred of Lesnewith
John Wytham and Ralph de Carminon for one fee in Trewyott and West Disant, which William Wytham and John de Carminon held.
Will. de Witha and Johan de Crammon hold in Trewint and in West Disant one fee.
See Ministers' Account, 23 Edw. III. Suppl. App. No. 6, title "Trewynt."
N.B.-The name there translated "White" has been found on a closer inspection of the original Roll to be "Whyte," or "Whyta."Hundred of Stratton
Ranulph de Whitchurch for one fee in Stratton.
Ranulphus de Albo Monasterio holds in Stratton one fee.
See Ministers' Account, 23 Edw. III. Suppl. App. No. 6, title ""Old Escheat of Stratton."
Hundred of East
John de Inkpenne for two fees in Alton, which Roger his grandfather heretofore held
Rogerus de Inkpenne holds two small fees Morteyn in Halton.
See Ministers' Account, 4 Edw. III. Suppl. App. No. 11, where the Manor of Halton (inter alia) is stated to have been taken into hands of the Lord the Prince, by reason of the death of John de Inkpenne, who held the same of the Lord the Prince in chief by Knight's service.
---------------------------bottom of page 8---------------------------
List adduced by the Officers of the Crown
List in Carew's Survey
References to Ministers' Accounts of the Duke
Hundred of East - continued
Ralph de Bovill for one small fee in Tredawyle, which Reginald his uncle heretofore held.
Regin. de Bovill hold there a small fee in Tredawil of William de Botrieux.
See Ministers' Account, 33 Edw. III. Suppl. App. No. 9, "Tredawel."
Hundred of West
Nicholas de Penfonder and Alicia his wife, for two fees in Trethat, Lamlowarne, Trelowian and Donnant, which Matthew de Trethant heretofore held.
Matthew de Trethake holds two small fees Morteyn in Trethake, Lambewarn, Trelewarn and Denant.
See Ministers' Account, 23 Edw. III. Suppl. App. No. 6, title "Trethak."
Richard de Hiwish for half a small fee in Meneley, which Maud de Hiwisch formerly held.
Matilda de Hewisch holds half a fee in Menely.
See Ministers' Account, 36 Edw. III. Suppl. App. No. 10.
Ralph de Wellinton and Wm. de Daubenay for the fourth part of one fee in Fawinton, which John de Wellinton and Reginald de Quinquins heretofore held.
John de Wellinton and Reginald Querquins hold a fifth part of one fee in Fawyton.
See Ministers' Account, 44 Edw. III. Suppl. App. No. 11, "of the issues of the lands of William Daubenye, within the Manor of Foyton, which he held of the Lord the Prince in chief by Knight's service.
Hundred of Trigg
The Earl of Warwick, for half a small fee in Bliston, which Robert Torn heretofore held.
Robert Thomy holds half a fee in Bliston, called Morteyn Fee.
See Ministers' Account, 44 Edw. III. Suppl. App. No. 11, "of the issues of lands, &c.," which were of the Earl of Warwick, in "Bliston," &c., who held the same of the Lord the Prince by Knight's service.
The Lord the Duke, for half a small fee in Lanowrmer, by reason of the minority of the heir of John Giffard, which Robert Giffard formerly held.
Robert Giffard holds in Lannomunnys half a fee Morteyn.
See Ministers' Account, 16 & 19 Edw. III. Suppl. App. Nos. 3 & 4, title "Lannamer."
The Lord the Duke, by reason of the minority of the heir of John le Ive, for half a small fee in Tremesconde, which John Tracy formerly held.
John Tracy and Hugh Peverell hold in Treviscoid and Hamatethy two fees Morteyn.
See Ministers' Account, 19 Edw. III. Suppl. App. No. 4, title "Trenyscoyt" old Escheat.
Hundred of Pidre
The Earl of Warwick, for the fourth part of a small fee in Carnaton, which Robert Stoney formerly held.
Robert Thomy holds in Carnanton the fourth part of one small fee.
See Ministers' Account, 4 Edw. III. Suppl. App. No. 11, "of the issues of the lands, &c.," which were of the Earl of Warwick, in "Carnanton," who held the same of the Lord the Prince by Knight's service.
Hundred of Powder
William de Champernoun, for two small fees in Tywardrayth, which William, his grandfather, heretofore held.
Wm. de Campo Arnulphi holds in Tiwardraith one fee.
See Ministers' Account, 28 Edw. III. Suppl. App. No. 8, title "Reliefs."
---------------------------bottom of page 9---------------------------
List adduced by the Officers of the Crown
List in Carew's Survey
References to Ministers' Accounts of the Duke
Hundred of Powder - continued
John de Montacute, for half a fee in Nanntyane, which John de Rivers heretofore held.
John de Riparys holds in Mauntain half a fee.
See Ministers' Account, 16 Edw. III. Suppl. App. No. 3, title "Old Escheats Nauntian."
John de Beaupré, for half a small fee in Trenewyth, and Trewygly, which Stephen de Beaupré, his grandfather formerly held.
Stephen de Bello Prato holds in Tremwith and Trewithgy half a small fee.
See Ministers' Account, 33 Edw. III. Suppl. App. No. 9, Relief on the Alienation of the Manor of Trenwith, by the heir of John de Beaupré, accounted for to the Duke.
Idonea de Lanladron, for one fee and a half in St. Gorgan and Little Lanteau, which Serlo de Landranon formerly held.
Serlo de Lanladron holds there and in St. Gorran and in Little Lantyan one small fee and a half.
See Ministers' Accounts, Suppl. App. No. 11, Account of £6 13s. 4d. received for two Knight's fees Morteyn, in the vill of Nansladron, and St. Goran, happening to the Lord, by reason of the death of John de Nansladron, who held the same fees of the Lord the Prince in chief, by Knight's service, &c.
Margery Hamely and Eleanor his sister, for the third part of one small fee in Alet, which Serlo de Lanladron formerly held.
Serlo de Lanladron holds in Alet the third part of one fee.
See Ministers' Accounts, 48 Edw. III. Suppl. App. No. 12.
Hundred of Kerrier
Roger de Carminon, for the twentieth part of one small fee, except the tenth part of the same twentieth part in Wynnienten and Thabotton.
Roger de Carminon holds the twentieth part of one fee Morteyn, except a tenth of the same twentieth, in Wynnenton, Merthyn, and Tamerton.
See Ministers' Account, 23 Edw. III. Suppl. App. No. 6, title "New Escheats."
No doubt the foregoing list could be extended, and evidence could be furnished, showing many more of the estates mentioned in the account of the aid to have been, in fact, held of the Duke, and not in chief of the Crown ; but it is submitted that sufficient has been shown to prove that the document under consideration does not, in fact, furnish the evidence for which it is assumed to have been brought forward, namely, that the parties charged with the aid were tenants in chief of the Crown.
That they were all the Duke's tenants is shown by the proceedings in the reign of Henry IV., (see Suppl. Appendix, No. 14', and original Appendix L., No. 8), when that sovereign attempted to levy an aid in Cornwall for the marriage of his eldest daughter ; but when it was found that this could not legally be done, inasmuch as—(with the most insignificant exception, viz., the moiety of one Knight's fee in Manely)—there was no estate in Cornwall held in capite of the Crown without mesne lord, because all the fees and lands within the County, with the exception aforesaid, were holden of the Lord the Prince as of his Duchy of Cornwall.
This finding is the more remarkable, because the Sheriff was furnished with an account of the aid levied in the time of Edward III., with a view to the aid desired to be levied for Blanche, the daughter of Henry IV. Yet, notwithstanding this account so furnished, none of the lands in the account temp. Henry IV. were treated as held of the King. The practice was to furnish the Sheriff with a transcript of the Roll of the preceding aid; thus the heading of the
---------------------------bottom of page 10---------------------------
account of the aid 20th Edward III. shows that the Sheriff was furnished with a transcript of the Roll when an aid was granted on the marriage of the daughter of Edward I. ; and this practice was followed in the case of the aid temp. Henry IV., as is stated in the document 30th January, 3rd Henry IV., p. 9. Suppl. Appendix.
As regards the aid levied in the time of Edward III., it seems that all the lands were, in fact, then held of the Duke. The aid was to make the Duke himself a Knight, and this may account for its being demanded ; it was probably considered the tenants could not set up the grant to the Black Prince as exempting them from liability to the aid, at least during his minority, and that if they could have done so, they would not have desired or ventured to raise such a contention, particularly when it is considered that the tenants of the same lands had paid the aid to marry the daughter of Edward I.; indeed, it seems that sometimes aids were paid by parties not immediate tenants in capite. See Mad. Ex. vol. 1, p. 582.
The description of the lands in the account of the aid is quite consistent with all the lands being held of or belonging to the Duke. The explanation of it is this,—the lands are described by reference to the tenants' names, except in those instances where there were a number of small holdings, in which cases the parties were described generally as tenants of the Lord Duke, and except, also, that any lands in the Duke's own hands are separately mentioned. There is half a fee described as in the hands of the King ; this is apparently a description of occupancy only, and is probably copied from the account of the aid in the time of Edward I.
It is not unlikely, if it were considered worth while to pursue the inquiry, that some explanation could be given as to the moiety of the Knights fee in Manely, but as it has no direct bearing upon the question as to the sea-shores, it has not been thought necessary to do this. See, however, the Supplemental Appendix, Nos. 2 & 10. The moiety of Manely seems to have been held of the Duke, 35, 36 Edward III. See pp. 7 & 8 Supplemental Appendix, where it is entered among the fees of the Duke. It may subsequently have come to the Crown by forfeiture for treason.
8. The Special Commission issued in 13 Charles I.
This is merely setting out at length the documents from which extracts are given in the Observations of the officers of the Crown. See “Observations,” page 38, and the explanation given in the
red ink remark No.111. See also Appendix 0, Nos. 11, 12, 13, 14 & 15. The Estuary of the Fowey, which is frequently mentioned in the inquisition, was undoubtedly parcel of the Duchy. See Appendix L., No. 3. See also the account adduced (No. 7) above by the officers of the Crown, of the aid levied in the 20th Edward III., in the Hundred of Powder, towards the end.
9. Extract from the Pipe Roll, 8 James I
The officers of the Duchy are unable to suggest the object of this document being referred to by the officers of the Crown. The first entries are taken from the account on the Pipe Roll. for 14 Edward III. See Supplemental Appendix, No. 1, from which it is clear that the Duke had the farm of the County “post terras datas,” amounting to £68 19s. 10d., and the profits of the County generally. This is entirely in accordance with the view taken by the officers of the Duchy, although there is no specific mention of these things in the Duchy Charters.
The document set out in Appendix O, No. 2, may account for the rent of 2s. 6d. paid by the Prior and Convent of Mount St. Michael, and the 2s. 6d. for the relief from the heir of William Rawle, may be accounted for on the supposition that the estates mentioned had been forfeited to the Crown for treason subsequently to the creation of the Duchy.
---------------------------bottom of page 11---------------------------
10 & 11. Accounts of John Skirbeck, the Escheator of the Lord the King in Cornwall, 29 Edward III., and 35 Edward III.
It is presumed that the object of the officers of the Crown in bringing forward these documents, is to show that, notwithstanding the Duchy Charters, estates in Cornwall continued to be held in chief of the King without mesne Lord, after the creation of the Duchy. It is submitted that even if this should be shown by these or any other documents, the case of the Duke of Cornwall, as regards the property now in question, would not be affected. But such a conclusion is entirely opposed to the language of the third Duchy Charter, and the positive evidence adduced by the Duchy; especially in the Inquisition of the 3rd Henry IV., Appendix L., No. 8. These Escheator's accounts, however, do not support the view taken by the officers of the Crown.
The Escheator, according to these documents, seized certain lands which were held in free and perpetual alms, because they had been alienated without licence. Now even assuming that the 3rd Charter to the Black Prince did not pass the right to seize lands held in frankalmaigne for a forfeiture for alienating those lands without licence, this would not affect the Duke´s title to the property now in question.
It would appear from the proceedings of the Escheator, that there had been a statute passed which regulated the tenure of the property held by the Priors of St. German, and that the proceedings against the Prior were founded upon that statute. What the provisions of such statute were is not shown, and no correct view of the proceedings upon it can therefore be formed. This, however, is clear, that whoever was the party to take steps in respect of the forfeiture, the Duke, acting upon the forfeiture and seizure, subsequently dealt with the property ; for in the Appendix N. (VI., p. 78), there is a regrant by the Duke to the Prior. The King had previously ordered the possession of the property to be delivered to the Prior, but this redelivery conferring only an imperfect title, the Duke made the regrant, being entitled to do so under his Charters. The second set of Escheator's proceedings are not easily intelligible, but if, in fact, there was a second seizure, there must have been a second regrant by the Duke, because the Crown had no such property in the 3rd Henry IV. (See Appendix L., VIII., p. 61.)
12 & 13. An Inquisition taken in the 48th Edward III., stating the tenure of the Manor of Tregony, in Cornwall ; and an Escheator´s Account of the following year in which the sum of l3s. 6d. is answered for to the Crown in respect of this Estate.
The Inquisition in this case states that the party held this Manor in Cornwall with other Manors (which are named) in the County of Devon of the Lord the King in capite, by the service of one Knight's fee. This statement was, under the circumstances, of little importance. The heir of the deceased party was adult, and therefore there was not any right of wardship. The sum of 13s. 6d. was the only amount to which the Duke could have questioned the King's title ; and the Duke's death having occurred in the year following that for which the account was rendered, is the probable reason for the claim to so small a sum not being enforced. But the case was very peculiar.
The deceased party had held the Manor of Tregony, in Cornwall, and other manors in Devon, by one entire military service. It may be that notwithstanding the very extensive language of the Duke's 3rd Charter, that Charter would not operate to create a severance of a fee, and that a service which was not necessarily always commuted for money, but which might be rendered by actual personal performance, could not be severed or apportioned. The 3rd Charter, after conferring the King's prerogative right of wardship, proceeds as follows, with a non obstante clause, viz.:—“Our prerogative in this behalf, or although those holding the same fees and those holding of the same fees,
---------------------------bottom of page 12---------------------------
shall hold elsewhere of us or our heirs as of our Crown, or otherwise in capite, or in any other manner whatsoever out of or within the County aforesaid notwithstanding.”
The words “out of or within the County,” might well apply to a tenant holding of the Crown partly within and partly out of the County; indeed the words “or within the County,” except as applicable to future acquisitions of the Crown, seem scarcely susceptible of any other explanation, inasmuch as all the then fees of the Crown within the County of Cornwall are expressly granted to the Duke. It appears that Tregony was part of a fee partly within and partly out of the County, and the claim of 13s. 6d. may have been made on that ground. But it is not necessary even to explain the document under consideration in this way, for there is nothing to show when Tregony was acquired by the deceased party.
This Manor of Tregony may have been held by Pomeray under a grant from the King subsequently to the 3rd Charter, and the King's title may have accrued after such 3rd Charter, in which case the Crown's interest, of course, could not have passed by that Charter. It will be observed that the 3rd Charter provided for, and, it may be, contemplated such a state of things, for it says in the non obstante clause above quoted, “ although those holding the same fees “ and those holding of the same fees shall hold elsewhere of us, &c., out of or within the County aforesaid,” (i. e.) although the tenant shall have acquired a title under the Crown to lands within the County subsequently to the 3rd Charter, and thus become the King's tenant in capite within the County of Cornwall, yet the King's ordinary prerogative right to wardship, &c., over all the tenants fees without regard to seignory, shall not, in consequence of such tenure, prevail against the 3rd Charter.
It is submitted that this isolated instance of a tenure stated to be of the King in capite after the date of the 3rd Charter, can be entitled to no weight for these reasons:— 1st. Because it is opposed to much stronger evidence, particularly that of the Inquisition, 3 Henry IV., Appendix L. 8, p. 61. 2nd. Even assuming that a part of a fee so circumstanced was not included in the 3rd Charter, it would have no real bearing with reference to the property now in question, viz. the sea-shore. 3rd. Because this document bearing date 37 years after that of the 3rd Charter, a title may have accrued to the King by forfeiture for treason or otherwise subsequent to that charter. 4th. Because the small amount paid, and the death of the Black Prince so soon afterwards, deprive the proceeding of any weight. 5th. Because even if the 3rd Charter passed any interest in the fee in question, it being one entire fee, the King might well take the whole, subject to his accounting to the Black Prince for so much as he (the Prince) was entitled to.
It will not escape observation that the heading of this document No. 13 shows that there were not any old escheats in Cornwall, and that the writ of possession to the heir is there shown to have been entered among the new escheats in Devon. The very fact of the Crown bringing forward no better instances, of itself affords a strong confirmation of the Duke's case as far as the construction of the 3rd Charter is concerned.
14. An Escheator's Account for Cornwall, 14 Henry IV.
This account commences with the issues of an old escheat, viz., 100s. from the Manor of Bree in the Hundred of Penwith, stated to be in the hands of the Crown, by reason of the forfeiture of Robert Trevilian. This is undoubtedly the same case as that mentioned in the original “ Observations ” of the officers of the Crown, page 35, although the name is differently spelt, and the issues are there mentioned to be £100 instead of 100s. The correct name is Robert Tresilian, and he was Chief Justice of the King's Bench, and probably the £100 will be found to be a mistake for 100s. It was suggested in the “red ink ” remarks, No. 100, that this was a forfeiture to the Crown for treason ; and on reference to the Rolls of Parliament in the reign of Richard II., it will be found not only that this suggestion was correct, but that he was hanged at Tyburn, and his estates were confiscated
---------------------------bottom of page 13---------------------------
to the Crown. The statute 21 Richard II., Rolls of Parliament, pl. 18, is directly applicable to this forfeiture.
The next two entries in the account under consideration, relate to the issues of the reversion of the 5th part of the Manors of Trewynt and Penbraan.
The first of these entries is scarcely intelligible, probably owing to some errors in the copying or translation of the original record. As far as the facts can be collected, they would seem to be these:—
The five parts are stated to be holden of others than the King, the fifth part of the Manor of Trewynt was held in socage of Arthur Hamely, as of his Manor of Alex (qy. Alet, which has been shown to have been held in capite of the Duke). The fifth part of the Manor of Penbraan, appears to have been held of William Botreaux, although this is not very clear, for there seems to be some omission in the statements (probably some passage explanatory of the tenure of William Botreaux). An annual rent of a grain of corn seems to have been payable either for all the five parts or for the fifth part of the Manor of Penbraan (which—is left in some obscurity). William Botreaux was a minor, and in wardship of the King in respect of estates not in Cornwall, (as must be assumed, otherwise the profits would appear upon this account). They were no doubt held elsewhere by his ancestor of the King in chief by Knight's service. The annual rent of the grain of corn is not accounted for, and therefore there seems nothing derivable from those entries.
It will, however, be observed that William Botreaux was not tenant in capite of the King in Cornwall, and it no where appears how, when, or from whom he had acquired title. It may well have been that his title was such that the 3rd Charter of the Black Prince could not in any way operate upon his interest ; and it is apparent from the entries, that all the five parts were holden of others than the King. From this it would seem that the tenure of William Botreaux and his son was not immediately under the Crown, but under a mesne Lord. In that state of things, there being no fee in the deceased holden of the King, the 3rd Charter would not operate. It will be recollected that the Inquisition, 3 Hen. IV., Appendix L. 8 (p. 61), states, that there were not any lands in Cornwall held of the King in socage without a mesne Lord.
The next entry in this Escheator's account, relates to the reversion in lands in Repringell. The lands appear to liave been held by Sir William Botreaux, probably, (see above) of a mesne Lord. Sir William Botreaux had granted them to William Scrapeday for life, at the annual rent of one red rose. Sir William and his son, William Botreaux, chevalier, being both dead, the reversion had descended upon William Botreaux, the grandson, who was a minor, in wardship of the King. The fact would seem to be that the ancestor of this minor, as in the preceding case, held lands out of Cornwall of the King in chief by Knight's service ; and that his heir being in wardship of the King, in respect of those lands out of Cornwall, the prerogative of the Crown attached, and gave the King as against the mesne Lord in Cornwall, the right to the profits of the lands in Cornwall, so holden subject to the estate for life of the grantee, William Scrapeday. But this mesne Lord was not the Duke ; and the case would not be one within the terms of the 3rd Charter.—See the Duchy “Case,” p. 10. There does not appear to have been any reason why the Crown should not have been entitled to receive the red rose ; and if it had been so received, it would not have affected the Duke's rights.
The next entry relates to a rent of one penny, issuing out of lands in Stanton, in Cornwall : The particulars of this entry are more fully set out in the account, and exemplify what has been attempted to be explained in the preceding remarks. The lands were held by the minor's ancestor, not of the King, nor of the Duke, but of a mesne Lord. The ancestor must have held lands elsewhere of the King in chief, in respect of which the minor was in wardship of the King ; and the issues of the lands in Cornwall, although not holden of the King, would, for the reasons before stated, belong to the King, as forming part of the revenues of the minor ; but the lands being in
---------------------------bottom of page 14---------------------------
lease, the issues would be confined to the penny rent, of which one farthing for a fractional part of the year appears to have been answered. It is remarkable that the lands referred to in this entry are stated to have been held by the ancestor by socage tenure, to which wardship, in the sense in which it was used in these accounts, would not attach. This exemplifies the difficulty of giving an accurate explanation of the entries in these ancient accounts.
It is an observation common to the above entries, that they must all have referred to holdings under a mesne Lord, or to fees acquired, and afterwards again granted out by the Crown subsequently to the Inquisition 3 Henry IV. (as to which see above).
The next entry relating to lands in Penhalet and Trethack appears to be similarly circumstanced with the last ; but in this entry it will be observed that nothing was answered for to the Crown.
The next entry relates to estates in Trevilias, Fawynton, Lanteglos and Polruan. These estates seem to have been taken possession of by King Richard II., in consequence of the idiotcy of the proprietor John Welyngton. Whether he took them as King under the statute referred to in the “Red Ink ” Remarks, No. 97, or in right of the Duchy, as was done in a similar case by Prince Edward, son of Edward IV. (See Appendix M. No. 7), does not appear ; but the estates seem to have been retained in the hands of the Crown until livery of them was sued for by the son and heir of John Wroth.
The officers of the Duchy find a difficulty in discovering for what reason this evidence is referred to by the officers of the Crown. It can hardly have been for the purpose of showing that the estates were held in chief of the Crown, as that fact is distinctly negatived by the record itself. If it is referred to as showing any territorial superiority in the Crown with reference to the idiotcy, the “Red Ink Remarks,” No. 97, will be a sufficient explanation to show that the title of the Crown was founded not on any such territorial superiority, but upon the provision of a particular Act of parliament.
15. Account of goods and chattels of Felons, &c., forfeited in Devon and Cornwall.
The only place in Cornwall mentioned in this account is Wyke St. Germans, the other places named are all in the County of Devon. The fact of there being only one forfeiture accruing to the Crown from the whole County of Cornwall during the time of this account, seems to be favourable to the view taken by the officers of the Duchy as to the proper construction and effect of the charters.
It will be observed that the grants by the charters to the Dukes are confined to the chattels of their own tenants, being felons, &c., within the County, and it is quite possible that the felon in the instance given may not have come within this description ; of course there might have been many people in Cornwall, persons, for instance, temporarily residing there, to whom the description in the charters would not apply.
Under any other view the forfeiture must have been erroneously answered for to the Crown. The document seems to have but little bearing upon the question in issue.
16. The concluding document adduced by the officers of the Crown is the King's Writ to the Barons of the Exchequer, 2nd Henry IV., ordering the Duchy possessions and arrears due to the King therefrom to be delivered over to the Duke.
It is scarcely possible to read this document without seeing that the word “ Vicccomiiatus” translated by the officers of the Crown “Shrievalty,” was, so far as territory was concerned, identical with the term “Comitatus” or County, therefore the document tends to confirm, in this respect, the view of the officers of the Duchy.
But the portion marked by the officers of the Crown is the recital which the document contains of the writs which had been previously issued to the
---------------------------bottom of page 15---------------------------
King's Escheator, to deliver to the Prince the Duchy possessions, which in the recital are described as “the castles, boroughs, towns, manors, honors farms, lands, and tenements, with the appurtenances, and all other things appertaining to the Duchy and shrievalty aforesaid in their bailiwicks.”
The presumed object of the officers of the Crown in referring to this recital, is to show that the Duchy possessions consisted merely of the particular manors and estates which are mentioned by name in the Duchy Charter, and did not comprise a territory such as “Terra de Cornubia” to which a general term, such as “Comitatus” would be applicable. A reference to one of the writs which the recital purports to set out (see Appendix L., No. 7). will show how little ground there is for such a conclusion. What the Escheator was ordered to deliver to the Prince was the “Ducatus Cornubiæ et Vicecomitatus ejusdem,” with the appurtenances with the castles, manors, lands, &c..' within the Escheator's bailiwick ; and the King is stated to have granted to the Duke the manors, &c., and all other things, “ad cosdem DUCATUM ET VICECOMITATUM qualitercunque et ubicumque spectantibus sive pertinentibus” &c. The language of the document itself seems to establish a position the very reverse of that for which the recital of it is, as is assumed, referred to by the officers of the Crown.
Another expression which the officers of the Crown, from its being printed in italics, seem to consider important in this document, is “The Duchy and County of Cornwall,” wishing it to be inferred, as is presumed (for the particular object for which the additional documentary evidence has been adduced is in no instance stated) that the Duchy was of less extent than, or at all events not co-extensive with the County. But this use of the double expression is accounted for by the Ducatus being at the time a comparatively modern expression, denoting what had for a long time previously been described as a County. And the double expression was really accurate, inasmuch as the possessions were, as has been before pointed out, a “Ducatus” or Duchy in the hands of a Duke, and a “Comitatus” or County in the hands of the King. The expression which occurs in the same document of “ Ducatus et Vicecomitatus ejusdem” entirely accords with this view.
----------------------------------------------------------
It will be observed that many of the further documents brought forward by the officers of the Crown, apparently have reference to the construction and effect of the third of the Duchy Charters, viz., that dated 3rd January, 11 Edward III., which is not referred to by the officers of the Duchy as operating directly upon the title of the Duke to the property now in question, but as indirectly supporting the position contended for, by showing a manifest intention, not only to divest the Crown of all territorial property in Cornwall, but to invest the Possessor of the Duchy with the same prerogative rights in respect of such property as would have attached if it had been retained in the hands of the Crown, and consequently negativing any restrictive construction of the Charters generally.
It has been very usual to consider that this 3rd Charter had not, like the first and second Charters, the authority of Parliament. It is not difficult to point out the origin of this misconception. The recitals in the Act of Parliament of the 38 Henry VI., (vide printed Rolls of Parliament, vol. 5, p. 386,) set forth at length the three Charters, and from facility of reference, that document has usually been referred to for all information concerning these Charters, and especially the 3rd Charter ; indeed, until the publication of Mr. Serjeant Manning's Report of Rowe and Brenton, in which is reprinted this Act of 38 Henry VI., (see 3 Man. & RyL Appendix, p. 474,) it was not known that any other authentic copy of the Charter in print was in existence. On referring to this Document (38 Henry VI.), we find at the foot of the recital of each of the two first Charters the following words:—"Per ipsum Regem et totum Consilium in Parliamento ;” but with regard to the 3rd Charter, these words are omitted, and without doubt from this circumstance the idea has prevailed, that the Charter had not the authority
---------------------------bottom of page 16---------------------------
of Parliament. See 3 Man. & Ryl. Appendix, p. 482, n. (a.)
Now, seeing that one of the expressed objects of the Crown in granting the 3rd Charter, viz., the conferring upon a subject of rights vested in the Sovereign by reason of the prerogative, could not have been effected without the authority of Parliament, much of the reasoning in the Prince's case (8 Co.) would have been applicable to show that the Charter in question must be presumed to have had the authority of Parliament. But it is unnecessary to rely upon such a presumption, for upon an inspection which has been made of the original of the 3rd Charter, it has been found that it has exactly the same conclusion in this respect as the other Charters, having the very words “per ipsum Regem et totum Consilium in Parliamento,” and in addition to these words it will be observed, (see Appendix to the “Observations ” of the officers of the Crown, p. 10,) that it is especially addressed to parties who had previously held estates in Cornwall immediately of the Crown, and independently of the Earldom, viz., the Ecclesiastics, the Earl of Gloucester, and others, including Henry de la Pomeray.
Before concluding these remarks, it may not be out of place to refer to the first document set out in the Supplementary Appendix of the Duchy ; namely, the Pipe Roll of the 14 Edward III.
Attention has already been called to the fact that this account treats the Duke as entitled to the farm of the County “post terras datas,” and to the “proficuum” or profit of the County generally ; but the subsequent entries in the account are important as showing the small dependance to be placed upon entries on the Pipe Rolls of issues and profits, charged in account as due to the Crown, as affording evidence of the Crown's right to them.
Madox states “that the accounts of the Royal revenue enter into the Great Roll through divers channels as rivers flow into the ocean ;” and further, that “debts put in charge there could not be discharged unless by judgment or award of the Chief Justicier or of the Treasurer, the King's Chancellor or his Council, or the Barons of the Exchequer.” See Madox, Exch. Vol. 2, pp. 112, 113, and the practice seems to have been that when an annual rent or profit was once put in charge, it was annually re-charged with the arrears as a matter of course, until discharged in the manner pointed out by Madox. The Pipe Roll under consideration fully exemplifies this.
Amongst other instances the charge for the issues of the Manor of Liskeret (Liskeard) may be mentioned. This Manor formed part of the demesne lands of the Earl at the time of Doomsday. See Appendix D., title “Terra Comitis Moritoniensis,” (the second entry), and it no doubt continued to form parcel of the possessions of the Earldom until the death of Earl Edmund, 28 Edward I., (see Appendix H. Nos. 18 & 20, pp. 23 & 26), when it came to the Crown. There is no doubt, therefore, that it was comprised in the grants to Piers Gaveston, and that the issues would be taken by him until his death in the 5th of Edward II. (Appendix K. 4). From that period the issues would belong to the Crown, until the grant to Queen Isabella, in the 10th Edward II. (Appendix K. 5) ; and with the exception perhaps of the last year of that King's reign, the Queen would be, entitled to, and doubtless received the issues until the 4th of Edward III. (Appendix K. 13). In the following year, 5 Edward III., the manor was granted by name to John of Eltham (Appendix K. 18), and was doubtless retained, and the issues received by him, until his death in the 10th of Edward III. (Appendix K. 22), and on the 17th March following, 11 Edward III., the manor is expressly granted by name to the Duke of Cornwall.
Now the entry on the Pipe Roll under consideration is as follows :—
“Farm. The same Sheriff, of the issues of the Manor of Liskeret, for the 14th year and the 29 years last past, as it is contained in Roll 29 of King Edward, son of King Henry, and in the following Rolls.”On the death of Earl Edmund this manor was no doubt put in charge for King Edward I., in the 29th year of his reign, and the King ; probably
---------------------------bottom of page 17---------------------------
received the issues until the first grant to Piers Gaveston. On his banishment in 1308 the issues would be again in charge for the Crown ; but from the 5th August, 1309, when the Earl was reinstated, they should have been expunged. This, apparently, was neglected to be done, and the charge continued year after year not only up to, but also, as appears from this Roll, subsequently to the creation of the Duchy, until the 14th Edward III. (1339-40), when the issues for that year and the 29 preceding years, going back to the time of the second grant to Piers Gaveston (1309), are made to appear as owing to the Crown, when, in fact, nothing whatever was due.
There are numerous other entries of a similar kind in the account, and amongst them the charge against the Burgesses of Helston may be referred to.
It will not escape observation, however, that although the retaining of these charges upon the Pipe Roll does not afford evidence of the Crown's right to the property thus charged for, still, if instead of finding a charge continued upon the Pipe Roll we find it expunged, that fact must, as a necessary consequence, afford the strongest evidence of the right of the Crown having ceased or having been relinquished, a conclusion which it may not be unimportant to bear in mind in considering the effect of the evidence afforded by these records, as far as regards the possessions of the Earls and Dukes of Cornwall.
The officers of the Duchy submit that a consideration of these “Further Documents ” in support of the case of the Crown, do not, upon the whole, advance that case, or weaken the claims of the Duke of Cornwall to the property now in question.
April, 1857.
---------------------------bottom of page 18---------------------------