Reading this page will be a bit like having the answer but not knowing the question.  I apologise for this and will eventually bring on-line (with navigation) the missing pieces viz. The Crown's "Observations" - if sanity remains at an acceptable level!  The point of doing it this way - rather than both together - is, firstly, it gets it “out there” and, secondly, that readers will see how confident the Duchy are and how the Crown seems, even then, to misrepresent the truth.

1   That the sea shore is land in intendment of law, as well as in fact, and the right to it a territorial right, which can only be passed by instruments framed in terms apt to pass real estate, is a proposition not questioned by the Duchy ;  and the fact of the right in question being a territorial right is the foundation of the Duchy title.   It will therefore not be necessary to notice more in detail these opening observations.

2   The Duchy rights are evidently derived from the Charters, but the true and proper construction of these Charters is the real question in issue.

3   The Duchy statement contains such antiquarian and historical facts, rather than suggestions, as appear necessary to be considered in order to arrive at the true construction and real effect of the charters, and the not attending to which, it is submitted, has given rise to a misapprehension on the part of the Officers of the Land Revenue as to the effect of the Charters.

4   There is no complaint on the part of the Duchy as to the mode in which the claim of the Officers of the Land Revenue, as representing the Crown on behalf of the public, is stated ;  the allusion in the Duchy statement is to the fact which existed of nothing more than the primá facie title being stated.   If there is anything in the nature of a complaint, it is of the fact of a claim on such grounds, so easily made and so difficult to refute, having been put forward without a full and very mature consideration of the attendant circumstances having previously taken place ;  especially as it did not, and it does not now appear that any positive act of ownership had ever exercised by the Crown in the assertion of such primá facie right in the locality to which the question refers.   The last occasion of any such assertion is believed to have been, as referred to in the Duchy statement, when the right to wreck of the sea throughout Cornwall was claimed by the Crown, in opposition to the claim of the son of the King of the Romans as Earl of Cornwall, nearly 600 years ago, when it was found that the primá facie title of the Crown could not be sustained ;  and this fact was, and is still considered by the Officers of the Duchy as fitting to have suggested the greatest caution on the part of those entrusted with the keeping of very high prerogative rights in the assertion of such rights in the same locality.   There could have been no possible objection on the part of the Duchy to the Officers of the Land Revenue making, as indeed it was their duty to do, the fullest enquiry into the case ;  but that was a very different thing from an actual stoppage of the grants from the Duchy, without previous enquiry, a course which imperilled the very existence as regards value of the rights in question, and has undoubtedly, whatever may be the result of the enquiry, done very material injury in this respect.

5   There is no analogy between the two cases.   It is not contended by the Duchy that the mere conferring by the Crown of the title or dignity of Earl or Duke of Cornwall any more than that of the Prince of Wales, would pass such a territorial right as the one in question.

What is contended for by the Duchy, and which, though denied, has, it is submitted, not been disproved by the Officers of the Land Revenue, is :   That at and prior to the Conquest, there existed in Cornwall, or rather Cornwall itself was a great Seignory in the hands of a temporal Lord independent of the Crown :   That after the Conquest this great Seignory was taken by the Crown from the party then in possession (see Camden, p. 123), and conferred by the Crown upon an individual under the name of an Earldom :  That this great Seignory has continued to exist from that time to the present, sometimes, though not necessarily, vested in an Earl of Cornwall, when such a title was in existence, at other times in the Crown, and ultimately in the Dukes of Cornwall, under the name of a Duchy, and that this Seignory covered the right in question.   [TGG Note - underlined by hand in transcript!!]

6   It is admitted in the Duchy statement, that the County is not, expressly granted eo nominee by the Duchy Charters. It is also expressly admitted, that the whole rights of the Crown, for instance, the comprehensive rights comprised under the term  “Royal Jurisdiction,” were not vested in the Earls or the Dukes. It is contended, that the Duchy in its creation was co-extensive with the County, in the sense in which that term is used :  not that its possessor was entitled to every acre of land in the County, but to the great seignorial rights throughout the County, which, under other circumstances would have been vested in the Crown.

7   There is considerable confusion in the arguments of the Officers of the Land Revenue on this point.   They appear mainly to be directed against the supposition, that it is contended on the part of the Duchy, that the Crown never had the primá facie title, or the power of conferring it. No such position is taken by the Duchy.   What is contended for is, that this right being parcel of, or annexed to the Seignory, ceased to exist in the Crown, when that Seignory was vested (under the grant of the Crown) in the Duke of Cornwall.   There is nothing so peculiar in such a state of things as to render it likely to be alluded to either by Glanville or the other authorities referred to.   Lord Hale, indeed, seems expressly to recognize it, when he says, the County, which must mean the Seignory or Earldom, had many Royalties belonging to it.

8   The position, had it been contended for, could scarcely be said to be inconsistent with English law, as it undoubtedly holds in Palatinate Counties.  The words “as against the Duke within his Duchy or County of Cornwall,” appear to be overlooked in the arguments. See the preceding remark.

9   In the opinion of the Duchy Officers, the circumstances of the early history of Cornwall are material to be considered, in order to arrive at a correct conclusion as to facts connected with its more recent history. The principle stated in the latter part of this paragraph is, of course, not disputed as a principle ;  although as a fact, it may not be true that the King was the original proprietor of all the lands in his kingdom.

10   Chester and Durham were Palatinates by prescription.   Lancaster was created such by Act of Parliament at a much later period

10a   It is not contended that Cornwall was a County Palatine, but that it was held with several rights similar to those enjoyed by a Palatinate Lord.

11   The subject of which Lord Coke treats in his 4th Institute is confined to the jurisdiction of Courts.   This description therefore is properly confined to those rights and privileges comprised under the head of “Royal Jurisdiction.” He does not purport in his 4th Institute to treat of Seignory in any way.

12   The contrary is expressly admitted in the Duchy Statement.  Royal Jurisdiction, to which Lord Coke's definition applies solely, is expressly stated not to have been vested in the Dukes.

13   This survey shows that the Earl of Cornwall was the great territorial Lord of the County, and that with a most insignificant exception, the whole of the Barons and other landholders, (excepting, of course, the King and the Ecclesiastics) held their estates of him ;  and besides the Earl, one party only is mentioned as holding of the King.   It is remarkable, though not probably of importance, that in enumerating the Earl's Demesnes, one estate only is expressly mentioned as as being held by him of the King ;  in the others, as in the case of the Ecclesiastics, no superior lord being mentioned.

14   It may be true, as a general proposition, that the King's lands (Terra Regis) in Doomsday are confined to those which belonged to the Confessor ;  the case of Cornwall, however, forms an exception, as it appears clearly that the King's lands there were held in the Confessor's time, principally by Earl Harold, slain at the Battle of Hastings, and a small portion by Brictric, the only other proprietor.   The survey states generally who were the holders of the Earl's lands in tlie time of the Confessor ;  but it is remarkable that, as regards the great Honor of Dunheved or Launceston, of which most of the principal estates in the County were held, it is not stated by whom it was held in the Confessor´s time. It would seem probable from history, that it was then held by one of the ancient British Princes or Dukes of Cornwall. See  Dugdale´s Baronage.

15   From the preceding remarks, it does not appear that prior to the Conquest, the King of England held any land in Cornwall.   The contrary would rather appear to have been the fact, at least in the Confessor's time.   That the Earl was a feudatory of the Crown, is a fact not questioned by the Duchy.

16   If Cornwall originally had, as shown in the Duchy Statement, some of the rights of a palatinate attached to it, there can be no inaccuracy in stating that it retained such rights, although the rights may not have comprised all those which constitute a County Palatine.

17   The first of these conclusions, viz., that the Crown had Jura Regalia to grant is not questioned by the Duchy ;  as regards the second, the expression; “annexed to the Earldom,” is an ambiguous one, and it is this ambiguity only that gives colour to the conclusion.   If by the expression is meant merely the title or dignity of Earl of Cornwall, the conclusion may be sound ;  but if by the word Earldom is meant (as in the Duchy Statement) the possessions granted as parcel of or attached to the dignity, the conclusion fails, unless it is shown that the possessions were the same in every case. See also No. 5.

18   The Duchy Statement does not assume, but refers to evidence from which it is concluded that the Earls had rights of the nature here referred to ;  and that the same, or equally high and even more extensive rights were conferred upon the Dukes—some of which were high prerogative rights ;  but it does not state that such prerogative rights per se included the sea-shore.   It treats the latter as a territorial right, whilst it refers to the prerogative, rights conferred as showing the high nature of the tenure or holding of the Dukes.   See also No. 5.

19   It is submitted, that authorities of a very high nature in support of this position are referred to in the Duchy Statement.   In controverting the position it would have been more satisfactory if some counter-evidence had been brought forward, rather than relying upon a simple denial of the fact, especially as no answer whatever is given to the authorities quoted, viz., : Acts of Parliament and decisions of the Courts of Justice, in both of which the position is clearly recognized.

The statement, that the creation of the Dukedom had no connexion with the previously existing Earldom ;  is a simple denial, without evidence or argument in support of it, of an inference drawn from facts referred to in the Duchy Statement.   The facts in the main are not disputed, and a simple denial can scarcely be considered an argument against the inference or conclusion drawn from those facts.   If there was no connexion between the two, why the same description as regards the Cornish property in the Duchy Charter as in the Inq. Post Mortem of Earl. Edmund.

It is undoubtedly true that, on the death Of John of Eltham, the  possessions of the Earldom reverted to the Crown, and became part of the hereditary revenues of the Sovereign ;  but it is equally true that, on the death of a former Earl, they had become vested in the King : and parties, previously holding of the Earls, held their estates of the King in capite ; but. they were so held, not ut de corona, but as of the Earldom, “in manu Regis existente.”   Orig. 7 Edw. II. Rot. 8 ; and there are other instances.

20   This may be quite correct as regards the custody or shrievalty of a County committed to Sheriffs and others ;  but such grants were of a totally different character from the grants, either to the Earls or the Duke.   This distinction is not kept in view in the observations of the Officers of the Land revenue.  There are numerous instances of the former as regards Cornwall when there was no Earl in existence.   Sometimes the parties to whom the grants were made had to account for a fixed rent or term, or for the profits ;  and sometimes they were allowed to retain them for their own benefit.   Of this nature was the first grant to Richard, before he was created Earl.   See the Mandate or Grant, 9 Hen. 111. page 14 of the Observations.  The grant to the same Richard, of the County or Earldom, 15 Hen. III. on the same page, is of a totally different character.   But the difference between these two documents is stated in the “Observations” to have been, that one was a temporary, and the other a permanent grant.   The arguments derived from the grants of the shrievalty or custody of Counties do not seem to have much, if any, bearing upon the question.

21   It is not, clear that the words referred to, as showing that the Earl could not grant the franchise of a market, bear that construction ;  they may, and ordinarily would, refer to a prior existing grant from the Crown.   This, however, does not appear to be material.   It is apparent from other cases, that the Crown frequently granted these franchises of the right to hold fairs and markets during the existence of the Earls.  This, it is submitted, is by no means inconsistent with the Duchy Statement.   It is nowhere alleged that the whole prerogative rights of the Crown were transferred to the Earls or Dukes ;   but, on the contrary, Royal Jurisdiction, comprising probably the Right to grant these franchises, is admitted to have been retained by the Sovereign.   There are, however, many instances on record of the Earls of Cornwall having granted these franchises, as well as freedom from tolls throughout the County.

22   This would show only that the possessions of the Earldom, whatever they were, were held under the Crown, which is not disputed.   It is clear from Madox that they were held by Barony.   See Mad. Baron. Angl.   Not any reason is adduced for the supposition that the possessions of Earl Reginald in Cornwall were less extensive than those, of the preceding Earl.

23   Here, as in other cases, an assertion is made without any evidence in support of it.   If, as alleged, it was not unusual for one Lord of a County in England (not Palatinate) to address a body of men as the Barons of that particular County, some one instance at least should have been adduced.   Madox mentions only one instance somewhat similar, in the case of the Royal Honor of the earldom of Gloucester ;  but even in that case the Barons are not addressed as the Barons of a particular County.

24   It is remarkable that, whatever rights or privileges Reginald Valletort possessed, he must have derived them either from the first Earl of Cornwall or those who had previously held the principality or Seignory of Cornwall as the great Honor of Trematon here referred to, of which a large portion of the fundus of the Sea and Foreshore, including Plymouth Sound, was undoubtedly parcel, was held of the Earl.   See Doomsday, title Cornvalgie— Terra Moritonensis.

25   This explanation can scarcely be considered satisfactory.   It might have had some point if the expression, being reversed, had been “as well Cornish as English,” but the explanation would scarcely then have reached the expression shown to have been used in another Charter, “tam Angliæ quam Cornubiæ

26   The Earldom of Gloucester was a high dignity, and its possessions very extensive.   There is evidence to show, that the Honor of Wynkelegh in Devon extended into Cornwall, and was parcel of this Earldom.   See No. 23.

27   It is submitted, that the fact of these Charters being made the subject of confirmation by the Crown, does not establish the conclusion drawn from it. But the fact does not appear material to the present question.   It is not alleged in the Duchy Statement, that the privilege of granting by Charter was peculiar to the Earls of Cornwall ;  it is referred to as included in Staundford's enumeration of prerogative rights, and it is shown to have been exercised by the Earls.

28   The fact of these profits being due by ancient custom to the King, by no means shows that the Earls when in existence did not take them ;  in fact, there does not appear to be any evidence on this point either way.   There are no Records in existence to show what Revenues were taken by the more ancient Earls.   [TGG Note - strikeout by hand in transcript!!]

29   No Earl in existence at this period.

30   There being no Earl in existence, the conclusion drawn from these documents does not appear warranted by the language, of the Charters.

31   No Earl in existence ;  the possessions consequently in the Crown.

32   This shows that the soil of the forests was not necessarily in the Crown : so that even if the Earldom had been full instead of the contrary, the disafforesting Charters would not have much bearing upon the question of territorial right.

33   This is scarcely intelligible, especially in connection with the preceding observation, and is certainly not in accordance with the evidence furnished by Doomsday as to the extent of the property of the Crown in Cornwall, independent of the Earldom.   Even allowing that the King was entitled to bona vacantia in Cornwall, such right was entirely irrespective and independent of the principles of tenure under the feudal system established at the Conquest.

34   It is submitted that is no evidence that this party (Henry FitzCount) ever enjoyed the title of Earl of Cornwall ;  he had the custody of the County committed to him in the 17th of John, and he appear afterwards to have had a grant of the County for a very short period.  In none of the documents is he styled Earl of Cornwall.

35   No grant to Earl Reginald has been shown.

36   This is one of the grants referred to in a preceding remark.   It is observable that in this case the Officers of the Land Revenue appear to recognize the distinction before pointed out between a grant of the custody of a County and a grant of the County itself.

37   *The tin was clearly not included in the previous grant to Henry FitzCount and was therefore at the period of this Charter vested in the Crown.
* [TGGcomment - the following handwritten note is indicated to be inserted hear viz.  “This observation appears to be ?? incorrect see ?? ?? ?? Mr H??? further searches pp 21 & 22 of ?? Report of the previous committal of the County to ?? FitzCount appears ?? to have been worked as the county was on the 16 Nov? 1216 17 John – committed to Robert de Cardinan?.   See Patent Roll 17 John m.13]

38   This quotation confirms the remark previously made as to the distinction between a grant of the custody of a County and a grant of the County itself.

39   The word “committed,” shows this to have been a grant of the custody only of the County, as stated by Dugdale.

40   The grant not being of the County, but of the custody only, there is no ground for the conclusion drawn from it.   Moreover, the exception shows that what was excepted was not to pass until the specified time, not that only what was ejusdem generis was to be included.   On the contrary, the exception would have been general until the specified time, if all was so intended to be excepted until the specified time.

41   The perusal of this Charter in connection with the other, shows most clearly the distinction between a committal of the custody of a County and an actual grant of the County itself.

42   These instances appear to be cited for the purpose of showing that the King retained prerogative rights in Cornwall, notwthstanding the grants to the Earls, a position not disputed by the Duchy, inasmuch as it is admitted that the Crown retained its Royal Jurisdiction within the County ;  and it is submitted that the instances cited in general prove nothing more.   Confirmations by the Crown of grants in mortmain, may readily be accounted for on particular grounds arising from particular Acts of Parliament.

43   It is submitted that the grant here referred to has a most important bearing upon the question in issue.   As regards the expression appertaining to the Earldom, the sense in which it is used in the Duchy statement has been already explained.  See No.l7.   The word “assumption” is scarcely applicable to an inference drawn from facts which are not disproved ;  and as to its being  a fallacy, there is nothing adduced to show that it is so.   In a petition in Parhament by the Bishop of Exeter, in the 18th Ed. II, the advowson of the Church of St. Burian is stated to have been appurtenant to the Earldom of Cornwall, “ so that at every time that the Earldom by grant or otherwise has been in the hands of Earls out of the hands of Kings, this advowson was in the hands of the Earls without being specified in the grant or in the livery.”   Parl. Roll. vol. 1, p. 421.  This advowson in like manner continued appurtenant to the Duchy on the creation of the new dignity, without being specified in the grant.  See 13 & 14 Vict. c. 76.

It is, moreover, submitted that the inference drawn from the fact of this Charter of the Earl having been confirmed by the Crown, cannot be supported.

It is believed that as a general rule, Royal Charters of Inspeximus and Confirmation do not denote any want of validity in the original Charter ; and that this can be proved by persons acquainted with ancient records.

In this particular case it is scarcely possible to observe the language of the King's Charter without arriving at an opposite conclusion.   If the sea-shore was the property of the Earl, he had the right to make the grant ;  and the Charter of the Crown appears clearly to recognize this right : “We the said grant holding firm, &c., do grant and confirm the same, as much as to us pertains.”    If the Charter throws a doubt on the title of either party, it is surely in the words underscored applying to the title of the Crown.   If the Earl had not the right, the grant would be simply void, and therefore not capable of confirmation ;  and the language of the Charter is not such as would be expected if the original grant had been an encroachment upon the rights of the Crown.   [TGG Note - underlined by hand in transcript!!]

44   If this were so, the recognition by the Crown of the power of the Earl to make the grant remains the same.   The latter part of the observation has no reference to the sea-shore, and the objection suggested may probably have given rise to the statute of James.

45   That the rights of the Earl depended on the grant to him is not disputed ; but, that they were not exercised by him as annexed to his Earldom, as before explained, appears to be an unsupported assumption.

46   The authorities here cited, as in No. 42, it is submitted, have little or no bearing upon the question of the territorial possessions of the Earls.   They are perfectly consistent with the supposition, that the territorial dominion or Seignory was vested in the Earls, whilst the Royal Jurisdiction remained in the Crown.   The only question which might possibly be raised would be as to the grant of free warren ;  but this, it will be observed, was in the party's own lands, and was, it is submitted, a Royal Franchise ;  the right to grant which would be in the King, as having the Royal Jurisdiction.

47   The conclusion drawn by the Officers of the Land Revenue from these and similar proceedings not being disputed by the Duchy, it is not necessary to notice in detail the evidence adduced ;  at the same time, it may be observed that, as it is clear that from this time to the death of Earl Edmund (1299) great disputes were continually going on between the Officers of the Crown and the Earl as to their respective rights, any evidence from Acts of the Crown during this period should be received with caution.

The presentments are very imperfectly set forth in the “Observations.” (See a more full recital of them in the Appendix to Concannen's Report of Rowe v. Brenton, p. 10, &c.)

47a   It would appear, that the right to wreck within the Islands was granted to the Monks there by Earl Reginald.   See Monast. Angl. vol. i, p. 1002, n. 50.   Where the Earl's Charter is set out, it reserves “whales and whole ships.”

47b   Notwithstanding this assertion of right, the claim of the Crown as against the Earl to wreck of the sea was not maintained.   This illustrates the nature of the disputes which were going on at this time.

48   A reference to the Duchy Statement (page 5) will show the incorrectness of this quotation.   What is stated is, that the proceedings by the Attorney General were taken upon the complaint, not of the King, but of the Earl : and this, it is submitted, is fully borne out by the cases cited.   It is probably not of much importance in the present question.   It may, however, be observed, that the disinherison complained of was that of the Earl only, and that to him only the damages were awarded.   The excommunication was probably the injury to the Crown referred to.

49   These instances do not appear to have any bearing upon the question of territorial possessions.   But it will be observed that the right to things of this nature was claimed by Earl Edmund.

The Abstract which the “ Observations” contain of these Presentments is very incomplete.   The Presentments are of great length, and there are some passages which appear to have a much more important bearing upon the question than any that are abstracted, particularly those relating to the Claim of the Earls to the “ Exitus Marinæ ” or profits of the Coast.

They are being examined, and further Extracts will be procured.

49a   In these cases, it will be observed, the Earl claimed, and his rights were not displaced.

49b   Nothing was decided.   The question raised would seem to have been, whether the King, having granted the wardship, and subsequently having made the grant to Earl Richard, this grant alone would, without attornment or other act, constitute the Earl Lord, and entitle him to homage.

49c   The Castle of Dunheved or Launceston was, no doubt, the Caput Baroniæ. See Doomsday.

50   The following is a correct translation of the Record :—

“ Pleas before the Lord the King at Westminster, 14th Edw. I. Cornwall.— It was presented heretofore in the Iter of the Justices on the last Iter in the County of Cornwall, that the Lord the King ought to have wreck of the sea in the County of Cornwall, but which wreck Edmund Earl of Cornwall now holds, who comes and says that one Richard his father died seized thereof, and prays judgment if he ought thereof to answer without the writ of the Lord the King, for that his father died seized thereof, &c.   And because it sufficiently appears to the Court that the aforesaid Richard died seized thereof, it is said to the aforesaid Earl that he may go thereof without day until the Lord the King by his writ against him shall be minded to declare otherwise thereof, &c.”   [TGG Note - underlined by hand in transcript!!]

50a   The authority for the Duchy Statement is given, viz.: Plac. Abbrev. 14 Edw. 1, Rot. 6 ;  it is quoted also by Lord Hale, part 1, cap. 7.    Whatever may have been the form of the proceedings, there can be no question as to the result, viz., that the claim of the Crown was abandoned ;  and this, it is submitted, is very important.

50b   It is submitted, that a most important conclusion may be drawn from the fact of the Earl's right to wreck, founded as the right clearly was, not upon any express grant of the right itself, affording, according to Lord Hale “ a great presumption ” that the soil of the sea-shore belonged to him as it would do if parcel of the Honor or Seignory to which the right appertained.

51   previous remarks on similar instances to those here referred to, apply here also.    It is very remarkable that the Royal Grants appear to be exclusively confined to rights vested in the Crown by reason of its Royal Prerogatives, irrespective of tenure.   In the single case amongst those here cited, where the title to any thing in the nature of a territorial right is pleaded. viz., the title of the Prior of Bodmin to a several* fishery, the claim is founded not on an actual grant from the Crown, but on prescription.
* [TGG Note - “several” had been changed, by hand in transcript, to “free” ]

52   The passage in the Duchy Statement to which this observation refers (see page 4), appears to have been misapprehended by the Officers of the Land Revenue.   The grants there referred to were territorial grants of Property ;  and it is not asserted that the Crown, during the period referred to, made no grants of Jura Regalia.   The evidence from which the inference was drawn was, as stated, negative only ;  but the inference must be considered as having received positive confirmation, from the fact of the diligent searches made on behalf of the Officers of the Land Revenue not having produced a single instance of any such grant.   It would probably have been more correct if the expression “Forest rights” had been omitted in this part of the Duchy Statement, though none such appeared in the record which was referred to.

53   See Remarks,  No. 43. on the subject of Charters of  Inspeximus and Confirmation, by the Crown.

54   These instances are of the same character as those previously remarked upon.    It will also be observed that these proceedings all occurred during the period of, and were consequent upon, the disputes between Earl Edmund and the Crown.

55   The omission to notice the County in this Inquisition is admitted and pointed out in the Duchy Statement ;  at the same time it is shown that Earl Edmund did hold the County as a territory at the time of his death ; and an argument, which can scarcely be said to have been answered, is founded on the fact of this omission.

The King took the Earldom on the death of Earl Edmund by descent, as his heir, and not by virtue of any sovereign right, or by escheat. See Lib. Ass. 45, Pl. 6.  

56   If the Officers of the Land Revenue could have adduced any facts of importance which occurred during this period, they would have done so, as they were perfectly at liberty to do ;  but their not having done so, tends to confirm the opinion of the Officers of the Duchy that, further inquiry would lead to no practical result.

57   This was a grant of the custody of the County when there was no Earl.

58   This grant is undoubtedly expressed in very comprehensive terms ;  but at the same time, it is clear that, as far at least as Cornwall was concerned  it comprised nothing more than what had been held by Earl Edmund at the time of his death.

59   No remark occurs upon this second grant, except, that it confirms the Duchy Statement, as to the vicissitudes that occurred.

60   See previous remark as to the Crown's grant of free warren ;  this, it. will be observed, was also in the party's own lands.

61   The grant to the Queen was to provide for the expenses of the household, and was a limited grant, to continue during pleasure only..

62   This was, no doubt, a forfeiture for treason ;  as to which, see subsequent remarks.

63   The other two instances here cited relating to minerals might have been of importance had the Earldom been full, which, however, was not the fact, there being no Earl in existence ;  and it would seem that, prior to the first of them being made, the limited grant to the Queen had been determined, and the custody of the County committed to another party.  See Orig. 18th Edward II., Rot. 3 & 4.   The grants are both noticed in the Duchy Statement to show that, during the vacancy of the Earldom, territorial grants of this nature were made by the Crown.

64   It is submitted that this Charter to John of Eltham was of a very different character from that by which the Duchy was created.   It seems that he had some time previously been created Earl of Cornwall, and that, subsequently to such creation, the King had granted him an annuity of £20 out of the revenues of the County, and that this Charter, which was of still later date, was in augmentation of his income ;  as to the extent of the rights conferred by this Charter, it would at this time be difficult and dangerous to attempt to form an opinion.   Having died either before or immediately upon attaining twenty-one, he could scarcely have exercised any of the rights conferred, whatever they may have been; or, indeed, scarcely be said to have been in the full possession of the property constituting the possessions of the Earldom.    Notwithstanding the Charter, the King continued, during the minority of the Earl, to make grants affecting the estates, undoubtedly comprised in the Charter.       The following are instances:—
7th Edward III.—The King granted in Howell ap Rivu the Bailiwick of the Royalty of Penlyne.  Orig. Rot. 10.   Penlyne being one of the Manors granted to John of Eltham.
8th Edward III.—The King committed to John Le Petit. the County of Cornwall and the King's Castle of Launceston, with the appurtenances. Orig. Rot. 17.   The Castle of Launceston being expressly granted to John of Eltham.—And immediately after the death of the Earl the King confirmed the customary grants, for seven years, to the Earl's conventionary tenants in Cornwall.   (see Orig. 11th Edward III. Rot. 2),  as well as other grants made By this Earl.    It appears, however, that even this Earl had under his grant the Seignory of the County.   See the Assessioning Commission of the 7th Edward III. in the Duchy Office, wherein this fact is recited.   This document was produced, and admitted as legal evidence in the case of Rowe and Brenton.

It appears also that this Earl had the ports of the County, wreck of the sea, and prisage of wines, though not mentioned specifically in his Charter. See the recitals in the grant of the Bailiwick of the Ports by the King, after the Earl's death, to a party to whom the Earl had promised the appointment ; but which promise he was prevented from fulfilling by his early death.

That no powers or rights of importance were, in fact, exercised by this Earl may be fully admitted by the Duchy ;  but as to what he would have done had he continued, in possession can be only matter of conjecture.   It is remarkable, however, that in describing what may be called the great possession of the Earldom, viz.—“Dunheved” or “ Launceston,” different language is used in this Charter from that of the Duchy.   In John of Eltham's Charter it is called the Castle and Borough of Launceston, in the County of Cornwall ;  in the Duchy Charter it is described as “The Castle, Borough, Manor, and Honor of Launceston, with the Park there and other its Appurtenances, in the Counties of Cornwall and Devon ;”  thus showing that this great Honor extended into Devonshire on the east, and it is clear that it extended to and comprised the Scilly Islands on the west, which are stated to be held of this Honor.  (See Inq. Post. Mort. of Ranulph de Albo Monasterio, 22nd Edward III.)    And it has been shown, also, that it comprised a Rock or Island (St. Michael's Mount) on the foreshore of the southern coast of the County.   The difference alluded to may not be of much importance, but it may afford some ground for a supposition that the rights conferred on this Earl may have been not so extensive as other Earls had enjoyed.

65   It is submitted that neither of the two instances here referred to has any material bearing upon the case.   The utmost they show is, that the King, notwithstanding the Duchy Charters, retained some of His Royal Prerogatives in Cornwall ;  a fact not questioned by the Duchy Statement.   The first of the two cases does not appear to have been the pardon of an outlawry, as suggested in the “Observations,” but was a precept, to the Sheriff (the Officer of the Duke) to deliver seizin of the lands of a felon who had been outlawed, not to the felon, but to another party.   The probability would seem to be, that the lands had been seized by the Sheriff as forfeited, and that the order was a mere formal one to that Officer to deliver possession after the year and day to the mesne Lord to whom they had escheated.   As to the second case, It may be observed, that the stat. 27th Edw. 1., requiring the writ of ad quod damnum, applied only to original takings in mortmain.   The lands in this case had been in the possession of the Prior from the time of Earl Reginald, long before the reign of Edward I.;  and it was probably, to avoid any question as to the due forms having been observed on the original grant in mortmain, that the security provided by the statute of Ed. III. (mentioned in the Duchy Statement) against the ultimate claim of the Crown in such cases, by reason of its Prerogative, was had recourse to.   This statute provided, that where parties were unable to show that the original entry was regular, their title was to be confirmed on payment of a convenient fine to the Crown.  If the word “dispensation” had been used in the Duchy Statement instead of  “licence,” as the confirmation would operate as a dispensation of the forfeiture, it might have been more strictly accurate.

66   It is difficult to meet a general assertion of this nature, when the reasons on which it is founded are not given.   If the latter part of the paragraph is intended as showing the grounds for the assertion, it is submitted that they are insufficient.   Assuming, for the purpose of argument, that Cornwall was originally what is termed by Madox, a genuine Honor or Land Barony, distinguished it might be by the name of an Earldom.   This Honor or Barony having reverted to, and being in the hands of the Crown, any re-grant of it would necessarily proceed from the King as King ;  and supposing the re-grant to comprise Prerogative rights not previously attached to the, Honor, or enjoyed by the persons who held it, as was the case in the instance of the Duchy, such rights would be properly treated as proceeding from the King Jure Coronæ.

67   That the grant of the Duchy was a new dignity in point of title or style is clear; but Madox states, that the change of style would make no difference in the rights attaching to the dignity.  See Mad. Baron. Angl. p. 211.

It is not very clear what is meant by the expression “ unconnected in point of legal title.”    If it is meant, that the Duchy was not derived from or through the Earls, the fact is not disputed, inasmuch as the title is derived from a higher source ;  but, if it is meant that the property forming the possessions of the Duchy was not that previously subject to the tenure of the Earls, such a conclusion, it is submitted, is disproved by the evidence referred to in the Duchy Statement, which shows the Cornish property of the Duke under the first Charter to have been identical with that which Earl Edmund held at the time of his death.

68   The introductory words of this first Charter, especially those immediately preceding the specification of the estates, would appear to negative the supposition that there was no connection between the Earldom and the Duchy.   If there were no such connection, what reason could there have been for supposing the possibility of doubt being entertained as to what was intended to be comprised in the Charter.   The simple enumeration of the estates would have prevented any such doubt, and all reference to the possibility of its existence would have been superfluous.   Take the case of an ordinary conveyance of lands from one party to another :  it would be a strange introduction to the grant to say, that in order to prevent the possibility of doubt as to what was intended to be conveyed, the particulars of the lands, i.e. the parcels, are set out.   It would rather appear to have been because it was felt at the time that there did and would exist that connection, or rather identity (except in name), between the two dignities, that the idea of the possibihty of such doubt occurred ;  and it was probably also felt that there would have been ground for such doubt, if, instead of a particular, any general description, such as “all the possessions of the Earldom, &c.” had been used ;  for it is clear that some of the manors named in the Duchy Charter had not originally formed, and, probably, in legal strictness, never were parcel of the Honor or Barony of which the Earldom consisted.

There were several of these ;  but it will be sufficient here to specify one instance,-- that of Tewington, which is specifically named in the Duchy Charter, but which is mentioned in Doomsday as part of the Terra Regis, and in the King's hands.   This manor, therefore, was not originally parcel of the Earldom, although it clearly formed part of the possessions of Earl Edmund at the time of his death ;  and whether it would have passed under a general grant of the possessions of the Earldom, there would not only be a possibility, but a great probabihty of doubt.    It is, therefore, reasonable to conclude that it was with a view to prevent these doubts that the specific enumeration of the manors was introduced into the Charter.   It would seem, however, to be suggested in a subsequent part of the “Observations ” of the Officers of the Land Revenue, (see. p. 31), that the, specific enumeration may have had reference to the extensive rights which had been claimed by the Earls under their grants ;  and that in order to prevent any such extensive or undefined claims on the part of the Dukes, the specific enumeration was inserted with the view of restricting their claims to the rights and properties specifically named.   A shght examination of the circumstances will show that this could scarcely have been the object in view, and that such a construction, if adopted, would lead to absurd results.

In the first place, it has not been attempted to be shown that there was any single right actually claimed by the Earls which was not granted, with other and more extensive rights, by one or other of the Duchy Charters : and further, in order to give any force to the presumed object which the framers of the Charter must have had in view, if this were the proper construction, it must be concluded that no right or property whatever which is not specifically named could have passed to the Dukes.   Take, for instance, the Honor of Launceston, which, with its appurtenances, is expressly granted. The effect of such a construction would be, that the Honor itself being specifically named, would pass ;  but that anything appurtenant to the Honor, although appurtenances generally are named, would not pass, because not specifically named.   It is believed that this is not putting the case too strongly, although, from the absurdity of the result, it would appear to be so ;  for if rights appurtenant to the Honor would pass under the words used, though not specifically named, the immediate question would be what was so appurtenant ?   And it will have been observed that the very rights about which the disputes had arisen, between Earl Edmund and the Crown, were rights claimed by the Earl, not as having been granted specifically by name, but as having passed under the grant to his Father of, or in other words, as appertaining to, the Castle or Honor of Dunheved, with the whole County of Cornwall.   It is submitted, therefore, that the specific enumeration of the. manors must have been intended to have a declaratory and not a restrictive effect ;  and that the particular estates of which Earl Edmund died seized are separately named, in order to insure their all passing by the grant, and not with the view of withdrawing from the Duchy any property, privileges, rights, or powers, which had been previously enjoyed or exercised by the Earls.    The case of the Scilly Islands is a forcible illustration of this. These Islands, as before mentioned, were parcel of the Earldom, and held as of the. Great Honor of Dunheved or Launceston ;  but although parcel of the Earldom, they are not expressly named in the Duchy Charter; but that the Seignory of these Islands did pass to the Dukes, though not specifically named in the Charter, is clear from the Inq. Post Mortem of Ranulph de Blanchminster, in the 22nd Edw. III., eleven years only after the creation of the Duchy, which states that he held of the King no land in Cornwall, but that he held of the Lord Edward Duke of Cornwall the Castle of Sully, with the Islands to the said Castle appertaining ;  and his heir, being under age, the profits in the, next year are accounted for to the Duke.   These Islands are, now held of the Duke in lease, the grants of them having been regularly renewed from the time of Queen Ehzabeth ;  and the description in the grants includes, beyond question, the soil of the foreshores, havens, and sounds.

69   There is nothing to show that the words here referred, to were intended to apply to Cornwall ;  and the fact of the County having been disafforested by King John, would lead to the inference, that they were intended to apply to lands in other Counties in which forest rights might be in existence.   They were a common form in grants of free warren.   See Manwood, c. 4, pt. 3.

70   See remarks on this Charter, infra, No. 118.

71   It is not contended that there are any words in the Charter expressly comprising the shores, &c., es nominee ;  but it is clear that if they were parcel of the Seignory, or of any honor or manor comprised within it, there would be words sufficient to pass them.   Assuming, as must be done, for the purpose of testing the operation of the Charters in this respect, that the right to the property now in question, had been vested in Earls Richard and Edmund, under the grant to the former, made in the 15th Hen. III.    That grant does not, any more than the Duchy Charter, contain any specific mention of this property ;  it must, therefore, have been vested in the Earls as being parcel of or appertaining to the Earldom, or great Land Barony, which they undoubtedly held.  (See Madox Baron. Angl.)    If, then, this particular property passed by, although not expressly named in the grant under which the Earls claimed, it cannot be said that its being omitted to be named in the Duchy Charter must prevent its passing thereby, and much less that its being omitted to be named was a designed omission in order to prevent its passing.   It is no sufficient answer to this conclusion to say, that although not expressly named in the Charter to Earl Richard, there, is a general expression, viz., “the whole County of Cornwall,” which would include the property in question ;  or in other words, that being vested in the Crown and forming part of the County, it would pass from the Crown, although not expressly named by the grant of the County ;  for on that construction, all the lands of the Crown within the County must have passed under that description, which it is clear was not the case.  This is admitted in the “ Observations ” (see page 28), from which it appears that, during the existence of the Earls, lands in the County continued to be held of the King in capite by other parties than the Earls.  See also Mad. Exch. vol. 2, p. 162, showing that, during the existence of the Earls, the ferms of some manors in Cornwall were accounted for by the Sheriff of Devon.

But this grant, though it did not comprise the whole of the County as distinguished from the Earldom, did comprise the whole of the Earldom or Land Barony, under the word “comitatus ;” and the only way in which the property in, question, could have passed, was as appertaining to the Earldom, as being parcel of the Land Barony of which that Earldom consisted.   This Barony, under the name of an Earldom, comprised a great honor (Dunheved), and divers manors and estates in the County of Cornwall, with their appurtenances ;  and we find that this great honor and every manor and estate of which Earl Edmund died seized within the County, with their appurtenances, are specifically named in and granted by the Duchy Charter ;  and it is submitted, that that which passed to the Earls under the grant of the comitatus or Earldom passed to the Dukes, not by the same description, which, as has been shown, would have been an improper description in any one of the Duchy Charters, but by a specific enumeration of the principal estates of which it was composed.

The case of the Deanery of St. Burian, before referred to (No. 43), is an illustration of this.   The advowson appears to have been appurtenant to the Earldom, and as such, without having been expressly named in the Charter, to have become parcel of the Duchv (see Petitions in Parliament, 18th Edw. II. and the recent Statute of 13 & 14 Vict. c. 76)--And the. King's writ, issued in Parliament in the 1st of Henry IV. (the century in. which the Duchy was created), to the escheator in Cornwall, after reciting the first Duchy Charter, proceeds as follows:—“Tibi precipimus quod Henrico filio nostro primogenito Ducatum predictum ac vice-comitatum ejusdem cum pertinentiis etc. liberes,” showing that the Ducatus of the Dukes was similar to that which had been the comitatus of the Earls.   See Cl Rot. I, Hen. 4, pt. 1, M. 27, at the Tower.   And it is plainly to be inferred from The third Duchy Charter, that the ultimate fee in all the tenures of the Earldom, which appear from Doomsday to have comprised upwards of 220 estates in the County, must have all passed to the Duke under the first Charter.   (See remarks on the third Charter, infra, No. 118).

This construction of the Charter moreover is recognized and confirmed, not only by the Acts of Parliament and other authorities referred to in the Duchy Statement, which are not noticed in the “Observations;” but it has been recognized and adopted, not by an isolated historian only, but by every text writer, legal or historical, who has treated of the subject.   Judge Doddridge says,“ King Edward III., in the llth year of his reign, did create Edward his eldest son the Black Prince of Cornwall, not only in title, but (cum feodo) with the Duchy of Cornwall.”   See, Doddridridge´s Treatise of Nobility, Title “ Dukes.”   Lord Hale, who from the fact of his having presided in the Court of Exchequer during the (seven years) discussion upon the Sutton Pool case, must, have been pecuharly conversant with the terms and effect of the Duchy Charter, states: “The Earldom of Cornwall and the Castle of Trematon decended to King Edward III.   He by Charter in Parliament grants the  Earldom of Cornwall to his eldest son.”   Hale, De Jure Maris, part 2, cap. 4. It being evident that Lord Hale must have meant, not the title of Earl, but the Seignory or Barony previously distinguished by the name of the Comitatus or Earldom.

Norden, in his History of Cornwall, written, as is supposed, nearly three Hundred years ago, states : “John, the son of Edward II., called John of Eltham, was Earl of Cornwall, and the last of that title ;  for, after the death of this Earl, Edward III., by Act of Parliament, advanced it from an Earldom to a Dukedom,”  p. 9.   And he also speaks of the Tamar as “dividing the Duchy from Devon,” p. 1.

Carew, in his History of Cornwall, states : “ The last title of this Earldom expired in John of Eltham, younger son of that King (Edw. II.) ;  after which King Edw. III., by Act of Parliament, in the 11th year of his reign, erected the same to a Duchy, the first in England,” p. 79.

And Borlase, in his Antiquities of Cornwall, refers to the Earldom as having been erected into a Duchy.

It does not appear that any valuable source of territorial income was retained by the Crown in Cornwall after the creation of the Duchy ;  and as the Foreshores were not at that period looked upon as an available source of income, more than any ordinary highway of the King, (except as regards profits, which were undoubtedly vested in the Duke under the Charter,) it would seem improbable that there should have been any such studious intention, as that supposed in the “Observations,” to exclude them from the operation of the Charters.

As regards the Shrievalty, the word is evidently used in the Duchy Charter in a different sense from that in which it, or some corresponding expression, is used in grants, committing the custody or Shrievalty of a County to particular individuals who were, in fact, baihffs of the King ; although it is believed that even these grants would confer on the party named the right to receive, as an accountant to the Crown, all the profits of the Crown within the County.   It will scarcely be contended that the Duke was to be an accountant to the Crown for the profits, although it would appear from an expression in page 33 (see No. 84.), of the “Observations,” that the Officers of the Land Revenue consider the Charter as having made the Duke himself the Sheriff.   The Duke to this day appoints the High Sheriff of the County.

72   It is submitted, that there is no real difficulty in following the Duchy Argument, which shortly stated is this :   That looking to the Inq. Post Mortem of Earl Edmund, an official document of high legal authority, the Duchy officers find in it an enumeration in detail of the possessions which Earl Edmund held at the time of his death ;  and, on looking to the first Duchy Charter, they find the same enumeration in detail of these possessions ;  and the inference drawn from this is, that the Charter was intended to and did comprise, the possessions which Earl Edmund held at the time of his death.   It is submitted, that the argument is clear, and that the inference is not an improper one.   With regard to the impracticability of construing the Charter as if it had the words County and Earldom (it should have been Earldom alone, and not County) in it, when those words are omitted, it may be observed that in construing this, as other grants, a particular expression is not necessary to comprise a particular property, if an equivalent expression is used.   For instance, a manor may pass by the grant of a messuage or farm. See Shep. Touchst., p. 246.   And a grant to J. S., that as often as a church is void he shall name a clerk to the grantor, and he shall present him to the ordinary, will pass the advowson,* though that particular expression be not used.   It is not, indeed it cannot reasonably be denied, that Earl Edmund at the time of his death was in full possession of the Earldom.   The possessions which he held at his death are enumerated in the Inq.   The fact that he held the Earldom must have been notorious ;  and it is submitted that there is no reasonable ground for doubting that the description contained in that document was at the time considered sufficient to comprise the whole of the possessions in Cornwall, which at the Earl's death constituted the Earldom. It is not contended in the Duchy Statement, that this description comprised the whole County, in the sense in which that word appears to be used in this part of the “Observations,” but that it comprised the Seignory and territorial rights, whatever they were, of the Earl in the County.
* illegible note written in margin

73   It is presumed, that the conclusion here arrived at, is founded upon the assumption that the language of the Duchy Charters is such, that it cannot by any possible construction be held sufficient, whatever the intention may have been, to have comprised the property in question.   If this assumption be correct, cadit questio ;  but if on the other hand, as is submitted by the Officers of the Duchy, the contrary is true, the arguments referred to would appear to be entitled to great weight.   There is strong evidence to show, that the Castle of Dunheved or Launceston was the Caput Baroniæ of the Earls ;  and the grant of this, with the appurtenances, would, it is submitted, be sufficient to pass all the Barony ;  the expression however, in the Duchy Charter is much larger.   It is clear, from Madox, that the Earls had a Land Barony.

74   There is no such inconsistency as is here referred to ;  and the supposition that it exists would seem to show, that the Duchy Charters have not received at the hands of the Officers of the Land Revenue that consideration which must be given to them before their true effect can be understood.

75   With regard to the franchises, &c. being confined to the Duke's own lands, and being in respect of his own men and tenants, it is clear that they not only extended to the Duke's demesne lands, but to all the lands and fees transferred to the Duke from the Crown by the Charters, comprising, either in possession or reversion, probably all the lands ;  certainly all those of the Crown in the County.   If there is any distinction between the expressions “ Duchy” and “ County” the former expression is incorrectly used in this observation.

76   This is not an accurate representation of the Duchy Statement.   It is not Contended that all the Royal Prerogatives passed by the first, or indeed by any of or all the Duchy Charters ;  but that the possessions previously enjoyed by the Earls passed by the first Charter.   That the rights conferred by the second Charter were not enjoyed by the Earls, appears from the presentments under the Commission issued in the 2nd Ed. I., referred to at page 16 of the “Observations.”   One of these presentments says,—The County of Cornwall used to choose the Sheriff of the County by gift of John, King of England, and by the Charter of the same, and by the confirmation of Richard, Earl of Cornwall ;  and the same Earl Richard took away the same liberty from the said County, and Edmund, the Son of the same Richard, deforced them of the same.   “Also they (the jurors) say that, no one hath the return or estreat of writs except the King.”   That the rights conferred by the third Charter were of a higher nature even than any that had been enjoyed by the Earls, is apparent. See Remarks on this Charter, infra, No. 118.

77   That the King retained the Royal Jurisdiction over the County, is a fact not questioned by the Duchy ;  and it will be seen, that many of the instances cited show nothing more than this fact, and which therefore it will be unnecessary to notice in detail.

78   This grant was made whilst the Black Prince was under 21, as shown in the Duchy Statement.   It has been before shown, that whilst John of Eltham was under 21, a similar course was pursued by the Crown ;  and as regards the expression “our mines,” &c., it is remarkable, that the same expression is used in the King's Charter, granting the custody of the Castle of Launceston during the Earl's minority ;  It is described as the King's Castle of Launceston, although it had, without question, been previously granted to the Earl.   (See No. 64).

79   Mount St. Michael would appear to have been seized by the King in the preceding year, as having been in the possession of some foreigners, subjects of the King of France.   See Orig. 12 Ed. 3, Rot. 4.

80   This grant was also made during the minority of the Black Prince.   It is mentioned in the Duchy Statement ;  and it appears to have been the last grant of minerals by the King, in Cornwall, during the life of the Black Prince.   It will have been observed, that up to this time, when there Was no Earl in existence, the grants by the Crown were of Royal minerals in the Counties both of Cornwall and Devon :  after the Prince attained 21. Cornwall, as mentioned in the Duchy Statement, is excluded.   The following are instances :-- 32nd Edw. III.---The King granted to John Balauncer and another his mines of gold, silver and copper, in the County of Devon.   Orig. Rot.4. 33rd Edw. III.---The King granted to Henry Brislee and another all his mines of gold and silver in the County of Devon ;  that is to say, in the mountains, plains, and wastes.   Orig. Rot. 14. 17th Edw. III.—The King granted to Wm. de Notyngham all his mines of gold and silver in the Counties of Devon and Somerset ;  that is to say, in the mountains, wastes, &c.  Orig. Rot.27. But where a mineral grant or hcense, having the effect of an absolute ahenation, was made by the King, even during the time the Prince was under 21, it does not extend to Cornwall.   Thus in the 12 Edw. III., the King granted and gave hcence to the Prelates, Earls, Barons and other men Of the commonalty of Devon, having lands there, to work the minerals under their own lands ;  and no mention is made of Cornwall.  See Orig. 12 Edw. III. Rot. 11.

81   This does not appear to show any thing further, than that the silver was purchased for the use of the Crown.

82   The previous remarks upon the confirmation in mortmain, to the Prior of Bodmin, which apply equally to this case.  (See .No. 65.)

83   Royal Jurisdiction.

84   This is the case previously remarked upon, although a different date is here assigned to it.   (See Nos. 65 & 71.)

85   The Duke not being able to grant for longer than his own life, there is nothing particular in this confirmation by the Crown.   The Ferry was over part of the water of Tamar, undoubtedly parcel of the Duchy.   Beyond the confirmation, the Record shows it to have been an actual grant from the Crown ;  thus clearly indicating the object in view.

86   Royal Jurisdiction.

87   This has reference merely to the defences of the County ;  as to which, see Hale, De Jure Maris, part 1, cap. 6, page 36.

88   It is submitted, that this proves nothing more than that the King retained his Royal Jurisdiction over the County ;  but the fact of the Prince´s name being expressly mentioned in the commission in conjunction with that of the King, does not accord with the assertion that the Duke was treated simply as one of the inhabitants of the County.   He was not, in fact, an inhabitant of the County.   The amerciaments belonging to the King would be those not comprised in the grants to the Duke, of which there may have been many kinds.

89   There is nothing in this, it is submitted, at all inconsistent with the territorial Seignory of the Duke.   Questions as to his territorial rights in the County would be properly cognizable in the courts of the County.

90   It will be observed that Loo, which is on the sea coast, is not mentioned in the Duchy Charter.   This record would seem to lead to the inference that the Prince having a several fishery, had also the soil.

91   This and the following instance are scarcely proceedings which, if the Prince were merely an ordinary proprietor in the County, would have been instituted by him ;  but they appear to have little or no bearing upon the real question.

92   Royal Jurisdiction.   The proceedings would appear to have been under some particular Acts of Parliament ;  and if the penalties were imposed subsequently to the Duchy Grant, the fines, in the absence of any contrary provision, would belong to the Crown.

93   It will scarcely be contended that the Crown's rights of wardship generally in the County were not granted to the Duke.   It is very possible that lands may at this time have been forfeited to the Crown for treason, and been regranted ;  but how they could have come to the Crown by escheat Jure Coronæ, or be otherwise held of the King in Capite otherwise than as parcel of the Duchy, after the clear grant to the Duchy of all the fees of the Crown in the County, it is not easy to conceive.

94   The cases here referred to may not have been the exercise of a strictly prerogative right ;  but the acts are not those of an ordinary land owner merely.

95   It would be unsafe to draw any adverse conclusion from the act of the Crown here referred to.   The Black Prince was at the time in the last stage of his illness, which almost immediately afterwards terminated in his death. An invasion of the country seems to have been imminent, and the proceeding appears to have been nothing more than an ordinary precaution for the defence of an exposed portion of the kingdom.   A similar proceeding seems to have taken place in the 18th of Edward II., when the grant to his Queen Isabella was in force.   The following is a translation of an entry which appears in the Originalia of that year:—“The King to the Sheriffs, &c., greeting.   Whereas the King of France hath lately sent a great army to attack us and our Duchy of Aquitaine, and causes an immense number of ships to be collected in different parts within his dominions to oppress with danger us and our kingdom and our subjects, as well by land as by sea, &c., considering, also, that the County of Cornwall and the Castles in the same, which Isabella Queen of England, our most dear Consort, holds, are in the more remote parts of our kingdom, and in other maritime parts where a fleet of ships can approach with facility, and that by this dangers may happen to us and our kingdom unless, &c.  Wherefore it was agreed by our Council that the aforesaid County and all Castles, &c., and in the Counties of Somerset, Dorset, and Devon, should be in our hands for their safe custody, &c. We have assigned the Venerable Father Walter, Bishop of Exeter, our Treasurer, to seize into our hands by himself or by others, &c., and that they may be able to answer at our Treasury concerning corn, stock, goods and chattels, as they ought, and so, &c.”

Lord Hale expressly states, that the King would retain a right of empire with reference to the safety of the kingdom, although the soil had been granted away.   Part 1, cap. 6, page 36.

96   The cases here cited do not militate against the proposition contended for by the Duchy, viz. the territorial Seignory and Dominion of the Duke in Cornwall ;  but had it been otherwise, it would have to be borne in mind, that during the period to which they refer the existing Duke was under 21 years of age ;  and with reference to this and several subsequent observations, the Act of Parliament of 5 Hen. IV., 3 Parl. Rot. 526, may be referred to as evidence of the encroachments made by the Crown upon the rights of the Duchy.

97   The custody of the persons and property of insane persons was a common law prerogative right of the Crown, irrespective of tenure.   The 17 Edw. II, cap. 9, “declares that the King has the custody of the lands of natural fools, taking the profits of them without waste or destruction, and shall find them their necessaries, of whose fee soever the lands be holden.” There are, however, instances of these profits having been taken by the Duke.

98   It seems to appear from this record that the Crown was not the immediate lord of the fee in any of the lands to which it refers.   It is not stated what the crime was for which the outlawry issued ;  but it is submitted, that irrespective of the lands being in Cornwall, no forfeiture of lands in any county, except for treason, would have vested them in the Crown, except as the immediate lord of the fee, beyond the year and day.    It may not be out of place here to draw attention to the distinction between escheats and forfeitures to the Crown, which does not appear to have been very clearly kept in view in the “Observations ” of the Officers of the Land Revenue. Blackstone says, great care must be taken to distinguish between forfeitures to the King and escheats to the lord, which by reason of their similitude, and because the Crown, is frequently the immediate lord of the fee, and therefore entitled to both, have been often confounded.   He states, the doctrine of escheat upon attainder to be that the blood of the tenant being corrupted, the feud is thereby determined, and the estate falls back from the offender to the lord of the fee ;  and that the lands of all felons would revert to the lord immediately, but that the superior law of forfeiture intervenes and intercepts it in its passage ;  in case of treason for ever, in case of other felony for only a year and a day.   See 2 Blackstone's Com. p. 251;  and see also Jacob's Law Dictionary, Title “Escheat.”

99   It is not very clear what are the descriptions of Jura Regalia here referred to ;  if it is meant that the right of the Crown, by reason of its Royal Jurisdiction unconnected with tenure, to take forfeitures for treason was not comprised in the first or even any of the Duchy Charters, the position is not disputed by the Duchy.   It is not obvious why the second of the Duchy Charters only is here referred to ;  for judging from the record unexplained, which is not very intelligible, the lands had escheated to the Crown, notwithstanding all the Charters.

100   It is unnecessary, for the reason before given, to make any remark upon the cases of forfeiture to the Crown for treason ;  the next cited case was probably one of the same nature.

101   The observations upon this Bill will scarcely be sufficient to refute the inference drawn from it in connection with other facts noticed in the Duchy statement.   It is not referred to as having actually become a law, but it is still extant upon the Rolls of Parliament, and shows what were the views which, not only the framers of it, but the Parliament itself, independently of the Sovereign, entertained as to the right to the property proposed to be dealt with.   The Bill, it will be observed, did not propose to confer any new right on the Prince ;  its rejection by the Crown must, therefore, have been from some cause unconnected with the rights of the Prince.

102   The saving clause is immaterial as regards the purpose for which the Bill is referred to by the Duchy.

103   This grant having been made by the Crown when there was no Duke of Cornwall in existence, and when the possessions, therefore, were vested in the Crown, confirms rather than otherwise the Duchy argument.   Prince Edward, son of Henry VI., was not born until 13 years after this grant was made.

104   If the lands had been forfeited for treason they might have been regranted by and so held of the Crown in Capite ;  and in the case of a tenant holding of a mesne lord, not the Duke, in Cornwall, and holding elsewhere of the King in chief, the King might be entitled to the wardship ;  but the greater probability is, that in these and other similar cases mentioned in the “Observations,” the Duchy rights had been again usurped upon by the Crown ;  such usurpations are fully admitted in, and indeed appear to have been the cause of the Act of the 38th Henry VI., cited in the Duchy Statement ;  but any reference to which is omitted in the “ Observations” of the Officers of the Land Revenue.   It is a fact deserving of notice, and which may go far to account for the apparent encroachments of the Crown upon the Duchy rights, that from the death of the Black Prince, in 1376, to the accession of Geo. I., in 1714, a period of 338 years, there were only eight years during which there was a Duke of Cornwall in existence who had attained the age of 21 years.

105   Forfeitures for treason.

106   The “Observations ” upon this Act do not furnish an answer to the inference drawn from it in the Duchy Statement.   The Act recognizes the right of the Duke in his Duchy, not indeed to the particular forfeiture which is expressly given by the Act, and which it was necessary to do, as, being imposed by a subsequent Act of Parliament, it could not have passed by the Duchy Charters ;  but it is referred to as recognizing in the Duke, in respect of his Duchy, a previously existing right to things ejusdem generis, in the same way that it recognized his right, and gave him the forfeiture within his Palatinate of Chester.   It is probably not of much importance either way.

107   No particular importance is attached to the Duke having his own escheator, except as showing the high nature or his holding.   The fact of the City of London enjoying a similar privilege does not detract from this. The City of London, as well as the other Cities and Boroughs referred to, but not named, may have had special grants of this privilege—indeed, it is clear the City of London had as regards Southwark—but the Duke evidently had it by virtue of his tenure of the Duchy.   The significant fact that the Duchy is classed with Counties undoubtedly Palatinate is not, as indeed it could not be, disputed.

108   Doubtless forfeited to the Crown for treason.

109   If considered necessary, inquiry can be made as to the particulars of the grants here referred to as having been made under the Seal of the Duchy of Lancaster.   But it is submitted, that under any circumstances, the fact of the Duchy Seal having been so affixed, can have no bearing upon the present question.   The grants may not improbably turn out to have been of the possessions of Chantries, &c., within the Duchy of Lancaster, and which possessions were expressly given to the Duchy by the lst Edw. VI. cap. 14, s. 35.

The ultimate fee in the Monastic possessions in Cornwall is probably vested in the present Duke at this time.   See the Saving Clauses in the Statutes of 27 and 31 Henry VIII, and the 3rd Duchy Charter.

110   It is notorious that in the reign of this Queen the possessions of the Duchy were dealt with as if the Duchy had never existed.   Much stronger instances of apparent ownership on the part of the Crown can be adduced than any here mentioned ;  for instance, the actual sale and alienation by the Crown of many of the Duchy possessions ;  but with anyone conversant with the facts, they can have no weight in deciding the present question ; indeed, the cases cited seem hardly to require this explanation, being merely ordinary transactions relating to the property whilst the possessions were in the Crown.   With reference to such of them as were in the nature of legal proceedings, it may be observed that, as regards their being in the name of and taken by the Officers of the Crown when there was no Duke of Cornwall, no adverse conclusion can be drawn from that.   The instance of the Sutton Pool case, 16 Charles II. affords an answer against any such. conclusion being drawn.   The proceedings in that case were instituted in the name and by the Officers of the Crown ;  and the claim was founded, as appears by the recitals in the decree, upon the Crown's right “to the ground and soil of the coasts and shores of the sea, &c.”   The decree was in favour of the claim of the Crown, but Lord Hale, who presided in the Court of Exchequer at the time, clearly shows in his Treatise that the claim succeeded, because the property which was the fundus of part of the water of Tamar, (which includes, as before stated (No. 2 1.), Plymouth Sound,) formed parcel of the possessions of the Duchy.

111   These proceedings do not, state that the title to the lands was in the King. The Commission, though it, is not so stated in the “Observations,” directs the Commissioners to inquire, not only into the particulars of the lands,but also of what chief Lord or Lords they were holden ;  and upon this latter point the Jurors state upon their oaths that they are ignorant.    Lord Coke says distinctly, Where an office is found by those words, “quod de quo vel de quibus tenementa predicta tenentur Juratores predicti ignorant” (being almost the identical words used in the, Inquisition in question), it shall not be taken for any immediate tenure of the King in chief ;  but in such cases a melius inquirendum is to he awarded.   Co. Litt. 77b.   It does not appear that any further proceedings were taken.

In addition to this Commission for Cornwall, there were about the same period Commissions of a similar nature respecting lands similarly circumstanced, for many if not all the other Counties in England and Wales bordering upon the sea ;  and in these one of the inquiries very generally, if not universally, directed to be made was, not under what chief Lord the lands were held, but whether the parties holding held under any grant from the King or his predecessors.   There is no such inquiry as regards Cornwall in the Commission cited ;  and the distinction would appear to lead to an inference rather against than in favor of the Kind's title Jure Coronæ.

As, therefore, there is no recognition in the Record itself of such a title in the King, the assumption that his title is recorded must, it is presumed, have been founded on the fact of the Commission having been under the seal of the Court of Exchequer ;  but that there is no ground for such an assumption is clear from the fact that a similar Commission at or about the, same period was issued with reference to lands overflowed by the sea on the. coast of the County of Lancaster.   This was also under the seal of the Court of Exchequer ;  and as the possessions of the Duchy of Lancaster were more entirely distinct from the tenure by the King Jure Coronæ than the possesions of the Duchy of Cornwall, the inference in this case would be ever stronger than in that of the last named Duchy, that the title of the King to the lands referred to was Jure Coronæ.   Still, as the contrary is firmly established, and has been recognized from the erection of the Duchy to the present time, such an inference, would not be drawn ;  much less, therefore, can there be any sufficient ground for it with reference to the possessions of the Duchy of Cornwall.

As to the observation, that the Record contains no suggestion of the title of the Duchy, it may be remarked that, although at this period there was a Duke, of Cornwall in existence, viz., Prince Charles, afterwards Charles II. the possessions of the Duchy were in the hands of the King ;  and the entire revenues were taken by the King, or those to whom the King had assigned them, for securing the re-payment of sums advanced for his use.   Prince Charles was at this time seven years of age only ;  and he was not put into the possession of the Duchy, or receipt of its revenues, until seven years afterwards, shortly before the close of his father's reign.   It is, therefore, not surprising that there should be no suggestion of the Duchy title.   In the case of the Duchy of Lancaster above mentioned, there, is no suggestion of the property forming part of the possessions of that Duchy, though such was undoubtedly the fact.

Upon a similar Commission of about the same period, namely, the 11th Charles 1., to inquire into the salt marshes and waste grounds in Devonshire, the Inquisition expressly states Dartmoor to be part of such waste, grounds, and to belong to the King.   But as Dartmoor is expressly granted by the .Duchy Charter, no inference can be drawn, even from this direct recognition of title that it belonged to the King otherwise than as parcel of the Duchy.   Surely then the omission of any suggestion of the Duchy title, as regards Cornwall, affords no such inference as that attempted to be drawn from it.   The Record, in fact, establishes nothing with reference to title.

112   These proceedings may probably be all capable of explanation, but with out more information as to the particulars no opinion upon them can be formed.   It is clear that the revenues of the Duchy were, during nearly the whole of the reign of Charles I., taken by the King, or those to whom. he had assigned them.

113   Whatever may be the effect of the comparatively recent statutes here referred to, it is submitted that they can have no material bearing upon the present question.   Assuming that the right of the Dukes to Royal minerals within the Duchy (if it existed) was taken away by the Acts, it is submitted that they merely show that fact, and nothing else.   The exception, as to tin mines and tinners is evidently not confined, to the Duke's mines ;  had this been otherwise, some inference adverse to the Duchy, which it is presumed is pointed at by the observation, might perhaps have been drawn.

114   It by no means follows that, because there were reasons why this Act should have been passed with reference to the possessions of the Duchy of Lancaster, the same reasons would apply to the Duchy of Cornwall ; indeed, it is most probable they would not.   The statute, of Ann, to which the 47th and a previous statute of George III. relate, prohibited alienations by the Sovereign of the possessions of the Crown or the Duchy of Lancaster, but with an express saving of the right of the Sovereign to make re-grants of lands forfeited for treason, &c.   The Acts of George III., though general in their language, merely, in fact, extended this right to Escheats.   It has been before shown that there could be no Escheat to the King Jure Coronæ of lands parcel of the Duchy of Cornwall.

115   It is believed that, at all events until the, reign of Henry VIII., the Sheriffs regularly accounted to the Duchy.   The revenue derived from this source was insignificant, and the Duchy rights in this respect seem not to have been insisted upon, although in earlier times there may have been some particular fines and forfeitures accruing to the Crown ;  still a considerable revenue from this source was regularly accounted for to the Duchy.

116   Whoever may be entitled to the profits of the Droits of Admiralty as distinguished from wreck, the fact can have little or no bearing upon the present question.   It is clear that the Admiralty jurisdiction attaches over the sea wherever it flows, even between high and low-water marks, though the soil of the shore may be in a private individual.  It is, in fact, no evidence whatever as to the title to the ground beneath.   Constables' Case.

117   If the shore below high water mark belongs to the Duchy, the extension of the workings below low watermark is in the nature of an accretion, which follows as an accessory to the principal.   See Scratton v Brown, 4. B. & C. 485).   A due consideration of the circumstances of that case, and the observations of the very able Judges who decided it, will furnish a. very correct idea of the peculiar nature of the right of the Crown to the fundus of the sea.   It seems to be quite clear that it is not an absolute or an ordinary right of property.   The right would appear to be in the Crown more by reason of the absence of any other owner than from any other cause.   A conveyance of the shore, being supposed capable of actually passing the legal estate in soil, which at the date of the conveyance was below low water mark, but from which the sea afterwards recedes, seems necessarily to lead to this conclusion,—exemplifying more fully the principles previously recognized in Lord Yarborough's and other cases of accretion by slow degrees.

That upon a large tract becoming suddenly derelict by the sea, the property in the soil becomes an absolute property in the Crown, does not, it is submitted, contradict this conclusion.   This species of property, like any other vacant possession, would, by the law of nature, belong to the first occupant ;  but to prevent the inconveniences which would result from this, the Laws of the State vest it in the supreme power, and the title of the Crown previously inchoate, becomes absolute and indefeasible.    The arguments in the Duchy Statement upon this part of the case do not, appear to have been answered.

118   It is submitted that there is no such confusion in the Duchy Statement. as is here suggested.   In the third Charter granting the rights referred to, the phrase “ non obstante prerogativa” is expressly used.   It would appear from this, as well as other passages in the “Observations ” of the Officers of the Land Revenue, that the Duchy Charters have not received from them that consideration which is absolutely necessary to be given to them before their true effect can he understood.   The contents of the third Charter especially are by no means accurately stated in the “Observations.” See pp. 30 & 32.   By the first portion of this Charter, the King grants and confirms to the Duke all the fees of the Crown in the County of Cornwall, or which appertain, or might appertain or belong to the Crown there, to have and to hold, &c.   This grant, it is submitted, clearly comprises all the fees, whatever is comprehended under that term, of the Crown in the County inclusive, and not, as stated in the “ Observations” exclusive of the fees of or in (not appertaining to, but of or in) the castles, &c., given to the Duchy by the first charter, if those fees were in the Crown at the date of the third Charter, and all rights, not only such as would attach in the hands of a subject, but rights vested in the Crown by reason of its prerogative in respect of such fees, such as for instance, priority of wardship ;  and it appears to extinguish in favor of the Duke, the prerogative rights of the Crown which would exist as against an ordinary subject, such for instance, as the King's right of wardship as regards lands held of the Duke by a party holding elsewhere of the Crown in capite.

The expression in this portion of the Charter is, “as if we had retained the same fees in our hands,” and not as quoted in the “Observations” “ if the same fees had been retained in our hands.”   The difference between the two expressions may be only slight ;  but there is a distinction, which, in order to a correct understanding of the Charters, it is necessary to bear in mind.   In a subsequent portion of this Charter, after granting the return of writs, &c., there is another operative part, not, it is submitted, operating as an actual grant, but rather in the nature of a recognition of title in the Duke as regards the fees, not of or in, but  appertaining to the castles, &c., mentioned in the first Charter, and conferring upon the Duke additional and prerogative rights in respect of these fees as before mentioned with respect to the fees of the Crown.   To show that this was the true effect of the Charter, it may be observed that these fees appertaining to the castles could not have been in the hands of the Crown at the date of this Charter, or they would have passed under the, grant contained in the first operative part.   The language of the operative part in this latter portion of the Charter is essentially different from that in the first portion.    And, moreover, the expression used in this portion of the Charter is not “as if we had retained the same fees in our hands,” as in the first portion (retinuissemus), but “if the same fees had been retained in the hands of us and our heirs” (retenta fuissent) ;  an expression pointing to the fact, that these fees as held by the Earls, by virtue of, and in fact with the demesnes constituting their Earldom or Seignory, had previously passed from the Crown.

If this is, as it is confidently submitted to be, the true construction of this portion of the third Charter, it shows conclusively that all fees in Cornwall appertaining to the castles, &c., specifically mentioned in the first Charter (comprising together with the castles, &c. the demesnes and tenures, as well ancient as modern, of the Earldom), must have passed by that Charter to the Duke ;  and in order to support the proposition that the Duke did not take the whole possessions of the Earldom, it is necessary to show, either that the Earls held in demesne some other castle or honor beyond those specifically named in the first Charter, or that some fee previously, that is in the time of the Earls, appertaining to the castles, &c., specified in the first Charter, had been dissevered, and did not so appertain at the time of the creation of the Duchy.   This has not been attempted by the Officers of the Land Revenue ;  and the Inq. Post Mortem of Earl Edmund seems to rebut the possibility of any such proposition being entertained.

It would therefore appear almost incontestably, that the effect of the first and third Charters, taken together, was to vest in the Duke, not only the entire possessions of the Earldom in Cornwall as held by the later Earls, with additional fees there, not held by the Earls, but also in respect of the fees which were parcel of the Earldom, and vested in the Duke by the first Charter, to annex additional rights which are ordinarily vested in the Crown, by reason of its prerogative in tenure, such as preference and priority in wardship, prima seizin, &c.    In fact, to substitute the Duke for the Sovereign so far as regarded the feudal rights of the Sovereign within the County, probably giving rise to the expression so frequently found in ancient records and reports of Law proceedings, with reference to the Prince, that “censetur una persona cum Rege”   Hob. p. 226.    And Doddridge quotes the opinion of Stamford, a learned Judge, that “he shall have within his Dukedom of Cornwall, the King's Prerogatives, because it is not severed from the Crown, after the form as it is given,” and he exemplifies it by the case, of priority of wardship, as in the case of the Crown.   See Doddridge's Treatise of Nobility, title, “Duke.”   See also, Palmer's Rep. p. 89.

It is submitted, that these conclusions are drawn from facts legally evidenced, and which must very far outweigh any such inference as that suggested by the Officers of the Land Revenue, from the supposed similarity between the introductory language of the first Duchy Charter and that of the Charter of John of Eltham, the last Earl preceding the creation of the Duchy, even had there been a greater similarity than actually exists between, the language of the two Charters—in reality, the language of the two is very different.

If then, there is any foundation for the opinion entertained by the Officers of the Duchy, that the ancient Earls of Cornwall had a great Seignory or Land Barony in the County, to which many Royalties were attached, and of, or to which, or of, or to any one or more or the Castles, or Honors forming parcel of the Demesnes of the Earldom :  the property in Question was parcel or appertained, and the probability of the existence of such Seignory is attempted to be shown from the peculiar circumstances of the earlier history of Cornwall, distinct, as it undoubrtedly was, from the Heptarchy ;  and that it did exist and covered in some way or other the property in question, is attempted to be shown by evidence occurring during the, tenure of the Earldom, by each successive Earl, especially--

As to the First point,

By a reference to Doomsday, from which it appears, with an exception comparatively small, that all the lands of the County not monastic, were held by the Earl, or as of his Earldom, and that, in the time of Edward the Confessor, the King had no lands there.    
By the entry in the Originalia, stating that, at a time when there was no Earl, a party held land of the King in chief, “ut de Comitatu Cornubiae  in manu Regis existente,” than which higher evidence of the existence of the Seignory or Barony there could scarcely be ;  and there are other entries of a similar nature.
By the recital in the Assessioning Commission of Earl John, that even under the supposed limited Charter to him, the Seignory of the County passed, and other evidence showing that particular rights and properties passed under grants of the Earldom, without being expressly named in the grants from the Crown.

And as to the Second point,

By the grant by Earl Robert, Lord of the County of Cornwall, of the Island or Rock of Mount. St. Michael, upon and forming part of the sea-shore between, high and low water marks, which he is alleged to have had as appertaining to his Castle and Honor of Launceston.
By a statement in a very ancient Record, the Plac. Abbrev. 3 John, that Earl Reginald held the County of Cornwall, and all things in it which pertained to the King :   And also a grant by this Earl to the. Monks of Scilly of the right to wreck in those Islands, pointing forcibly to his right to the shore or sea-coast.
By an actual grant by Earl Richard of the right to take the sand of the sea-shore throughout the County.
By the fact of Earl Richard and Earl Edmund having the right to wreck of the sea throughout the County without any express grant from the Crown of such right, affording, according to Lord Hale, a great presumption that they were entitled to the soil of the sea-shore ;  and by their having, in a similar way, the rents and profits of the ports, and the “ exitus marinæ ” generally throughout the County.

It is scarcely possible to resist the conclusion, that this great Seignory or Land Barony, with many Royalties attached, and covering in some way or other the right in question, became upon the creation and in the name of a Duchy vested with additional and high prerogative rights in the Duke of Cornwall, one of the objects of that creation being moreover, as is expressly stated in the, creating Charter, “ That places of note within the kingdom should be adorned with their pristine Honors.”

Duchy of Cornwall,
Somerset House,
June 1856

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