THE CORNWALL FORESHORE CASE
Dr John Kirkhope Notary Public, PhD in Law
Visiting Research Fellow – Plymouth University Introduction
For those interested in Cornish history and the present status of Cornwall in relation to England the “Cornwall Foreshore Dispute”(1) or, more precisely, “The Tidal Estuaries, Foreshore and Under-Sea Minerals within and around The Coast of the County of Cornwall – Arbitration by Judge Sir John Patteson” highly significant. (Sir John had some experience in matters concerning the Duchy of Cornwall since he had appeared as one of the Counsel’s in the famous case of Rowe v Brenton(2) in 1828.) The documents are compendious and much of it is concerned with obscure legal arguments.
This paper aims to give the background to the Arbitration, summarise the legal arguments, consider the “remarkable” claims made by the Duchy of Cornwall and pose questions which were not raised at the time or, as far as can be discerned, subsequently.
Attached to this paper is a precis of the Arbitration documents. It is very brief and partial. It focuses on the claims made by the Duchy in pursuit of its claim not least because the Duchy succeeded in its arguments and because those contentions, it is suggested, are “surprising”.
The policy of deciding disputes between the Crown and the Duchy of Cornwall by arbitration dates back to 1619. A disagreement arose and as a result Articles of Agreement were drawn up which stated as follows:
“LASTLY it is thought meete and Conveyent that if any question shall here after arise between the Master of the Courte of Wards and other of the Consell of the said Court for the tyme being and the Chancellor of his Higness and other the Commissioners of His Higness likewise for the tyme being concerning tenures or any incidents or dependencies thereupon then the same shall first be debated and discussed between the said Officers respectively (and if it may be) determined without suit in lawe…” (3)(emphasis added)
In the 19th century the issue was stated more succinctly. It was said that it would be unseemly for disputes, of which there were many in that century, to be litigated since the case would involve, theoretically, on one side the Queen and on the other her son who was, of course, the Heir to the Throne.
It should be clear this dispute was about money. It was about who owned the minerals under the tidal estuaries and foreshore around Cornwall. The funds which had arisen had been placed in an account pending resolution of the matter and, as the Crown stated, a considerable fund “had thus accumulated”.
It will now be explained why it is emphasised the parties to the dispute were only theoretically the Queen and the Duchy of Cornwall. Queen Victoria came to the throne in 1837 and in common with her Georgian ancestors had surrendered the Crown Estate in exchange for a Civil List. The minerals under the foreshores, in the rest of the Kingdom were part of the Crown Estate and thus any funds arising would pass to the Treasury. So the Queen had no direct economic interest in the outcome of the dispute. Her income was not affected in any way. By contrast if the Duchy of Cornwall succeeded then her son would receive a considerable increase in his fortunes since, as Duke of Cornwall, he was entitled to the income from the Duchy of Cornwall. Expressed another way if the Duchy won the fortune of the Royal Family increased while Government Revenue reduced. It is worth noting at this time Prince Albert was Lord Warden of the Stannaries was aggressive in pursuing the economic interests of the Duchy.
The Duchy did win the argument as evidenced by the passing of the Cornwall Submarine Mines Act 1858.
The Legal Arguments
The Law Officers of the Crown and the Duchy of Cornwall engaged in much obtuse legal jousting which is fascinating if you are a legal historian or a medievalist. But, it is suggested the basic dispute can be summarised very simply.
The Duchy asserted:
“That for a very long period, two thousand years or thereabout anterior to the Norman Conquest, Cornwall was distinct from England, and governed by princes of its own, who were usually styled “Dukes of Cornwall”; and
“..long before the legal memory-probably from the time when the Britons were driven by the Saxon invasion to the extremities of the kingdom in the West, Cornwall appears to have been, like Wales, a distinct principality.
Following the Norman invasion and the creation of an Earldom of Cornwall:
“The property so granted to and held by the Earls under description of County of Cornwall was a great honor or land barony which comprised the Lordship of the county…”; and
“Cornwall, like Wales was at the time of the Conquest and was subsequently treated in many respects as distinct from England. That it was held by the Earls of Cornwall with the rights and prerogatives of a County Palatine, as far as regarded the Seignory or territorial dominion.”
The proposition of the Duchy was that the Duchy inherited, by implication, the prerogatives and rights of the Earldom and the previous Dukedom of which the right to the foreshore and the minerals under the foreshore were one.
The Crown countered by claiming that when the last Earl of Cornwall, John of Eltham, died in 1336 the Earldom escheated to the Crown and the only rights the newly created Duchy enjoyed were those explicitly set out in the various Duchy Charters.
The right to the foreshore, the Crown asserted was a sovereign right and could only be passed explicitly in a Charter. Since the Duchy Charters made no reference to the foreshore they did not pass to the Duchy.
In response to the Crown the Duchy stated that the Duchy has enjoyed a number of sovereign rights not set out in the Charters.
“We now come to the period 1337 when the Earldom was augmented into a Duchy where positive evidence is to be obtained it shows that the Dukes of Cornwall enjoyed and exercised in connection with their Duchy high prerogative rights, at least, as extensive and those previously enjoyed by the Earls.”
As an example of the rights enjoyed the Duchy set out the following:
The right of making Free Boroughs
The right of granting freedom from toll throughout the County
Seizing and confiscating the enemies ships in times of war, and the enemies merchandize contained in them, as well as neutral vessels, whenever they came within the precincts of the Duchy.
The inhabitants of the Islands of Guernsey, Jersey, Alderney and Sark were by the King exempted from payment of what was called alien’s custom within the realm of England: but by express command of the Duke and his council the custom was extracted from them within the precincts of the Duchy.
FORESHORES, AND UNDER-SEA MINERALS,
THE GROUNDS ON WHICH IS FOUNDED THE RIGHT
OF THE DUCHY OF CORNWALL
TIDAL ESTUARIES, FORESHORE,
AND UNDER-SEA MINERALS WITHIN AND AROUND
THE COAST OF THE COUNTY OF CORNWALL
PRELIMINARY STATEMENT BY THE DUCHY
“It is contended, on the part of the Duchy, that this general prima facie right of the Crown has not application, as against the Duke of Cornwall, within his Duchy or County of Cornwall, and consequently, not to the particular property forming the subject of the present question; inasmuch as, that in very ancient times, – long before the legal memory – probably from the time when the Britons were driven by the Saxon invasion to the extremities of the kingdom in the West, Cornwall appears to have been, like Wales, a distinct principality.”
“..it is not to be conceived that the new title (Duke of Cornwall) was to be attended with less dignity and power and prerogative than the Earls had enjoyed…”
“….And there are other instances of a similar nature, thus showing, that in law, the Crown and the Earldom were distinct.”
“It is clear that the Earls exercised the prerogative right of granting by Charter as in the case of the Crown”
“It is moreover deserving of notice that the charters granted by the Earls were recognised and treated by the Crown as Royal Charters…..And it will be seen that this course of proceeding was exactly that adopted with regard to Palatinate Earls.”
“We now come to the period 1337 when the Earldom was augmented in to a Duchy”
“….where positive evidence is to be obtained it shows that the Dukes of Cornwall enjoyed and exercised in connection with their Duchy high prerogative rights, at least, as extensive as those previously enjoyed by the Earls.
The duke seized and confiscated the enemies ships in time of war, and the enemies merchandize contained in them, as well as neutral vessels, whenever they came within the precincts of the Duchy.”
“The Duke addressed the inhabitants of Cornwall as his “faithful subjects…..Under the authority of the Duke prisoners charged with high felonies such as manslaying were admitted to Bail.” “Orders for the protection of poor fishermen upon the sea were issued from the Duke; and under his authority wrongs were addressed”
“The inhabitants of the Islands of Guernsey, Jersey, Alderney and Sark were by the King exempted from payment of what was called alien’s custom within the realm of England; but by express command of the Duke and his council the custom was extracted from them within the precincts of the Duchy.
These latter, it is submitted, were fiscal regulations, inconsistent with any other supposition than that the Duke was quasi sovereign within his Duchy.”
“It is scarcely possible to conceive, that in thus augmenting the Earldom into a Duchy, conferring that Duchy upon so distinguished a personage as the heir apparent to the throne, the intention could have been to have invested its possessor with less extensive rights and privileges than had previously been annexed to the lower dignity and enjoyed by the Earls, who were persons of inferior rank.”
“For instance by the 2nd Charter (18th March 1337) the return of writs and summonses in Cornwall was annexed to the Duchy a right…the Earls of Cornwall had not enjoyed and by the 3rd Charter, the Crown appears to have entirely denuded itself of every remnant of seignory and territorial dominion, which it could otherwise have enjoyed within the County of Cornwall”
“It is moreover submitted that the three Duchy Charters are sufficient in themselves to vest in the Dukes of Cornwall not only the government of Cornwall but the entire territorial dominion in and over the county which had previously vested in the Crown with all the royal prerogatives as would naturally accompany…”
“So far as the Royal Seignory is concerned, it will scarcely be contended but that the Duke of Cornwall was placed precisely in the position of the King. He had all the Crown lands within Cornwall, whether in possession or reversion; was entitled to all feudal services and incidents which attached to those lands and to all prerogative rights and emoluments, as wardships, marriages, prima seizin, reliefs, escheats, etc which belonged to the Crown as the ultimate and supreme lord of the soil.
It cannot, therefore, reasonably be doubted that this Royal Seignory, consisting of the King’s demesne lands, reversions, feudal services, rights and emoluments, with the prerogatives above enumerated, did, in fact, comprehend the whole territorial interest and dominion of the Crown in and over the entire county.”
“….there is in effect an express declaration by the whole Parliament that, by virtue of the three recited charters, the Duke did become entitled to the whole County of Cornwall.”
That Cornwall like Wales was at the time of the Conquest, and was subsequently treated in many respects, as distinct from England.
That it was held by the Earls of Cornwall with the rights and prerogatives of a County Palatine, as far as regarded the Seignory or territorial dominion.
That the Dukes of Cornwall have from the creation of the Duchy enjoyed the rights and prerogatives of a County Palatine, as far as regarded the Seignory or territorial dominion, and that to a greater extent than had been enjoyed by the Earls.
That when the Earldom was augmented into a Duchy, the circumstances attending its creation, as well as the language of the Duchy Charter, not only support and confirm the natural presumption, that the new and higher title was to be accompanied with at least as great a dignity, power, and prerogative as the Earls had enjoyed, but also afford evidence that the Duchy was to be invested with still more extensive rights and privileges.
That the Duchy Charters have always been construed and treated, not merely by the Courts of Judicature, but also by the Legislature of the Country, as having vested in the Dukes of Cornwall the whole territorial interest and dominion of the Crown in and over the entire County of Cornwall”
TIDAL ESTUARIES, FORESHORE,
AND UNDER-SEA MINERALS
WITHIN AND AROUND THE COAST
OF THE COUNTY OF CORNWALL
ON BEHALF OF
ON BEHALF OF THE CROWN
BY WAY OF REPY TO THE STATEMENT,
THE GROUNDS ON WHICH IS FOUNDED THE ALLEGED
RIGHT OF THE DUCHY OF CORNWALL
TIDAL ESTUARIES, FORESHORE, AND UNDER-SEA
MINERALS WITHIN AND AROUND THE COAST OF THE
COUNTY OF CORNWALL
The by the first charter, the honors, manor and lands which are specified in that charter, were conferred upon the Duke, but that the charter no more included lands in the County of Cornwall, not specifically granted, than it did lands in the County of Devon, Oxford, or Surrey, or any other county named in the charter, not so specifically granted.”
“The case of the Crown therefore is – that there is nothing in the first Charter to carry all the land in the “County” (taking the latter word in its ordinary sense)…”
ON BEHALF OF
THE DUKE OF CORNWALL
OBSERVATIONS ON BEHALF OF
THE TIDAL ESTUARIES,
FORESHORES, AND UNDER-SEA MINERALS
WITHIN AND AROUND THE COAST
COUNTY OF CORNWALL
CASE OF H.R.H. THE DUKE OF CORNWALL
“That for a very long period, two thousand years or thereabouts anterior to the Norman Conquest, Cornwall was distinct from England, and governed by princes of its own, who were usually styled “Dukes of Cornwall”.
That about one hundred years before the Norman Conquest (A.D. 937), when the ancient inhabitants of Britain, who had been driven into Wales and the western counties of Devonshire and Cornwall by the invasions of the Saxons, were conquered by King Athelstan in Devonshire and driven into Cornwall, history records that the water of the Tamar was to be the boundary of their country, and that although Cornwall formed no part of the English Heptarchy, the inhabitants were after this conquest by Athelstan more or less subject to the dominion of the Kings of England. But that, in the reign of Edward the Confessor, although Cornwall was subject to his dominion and its inhabitants were included in the taxation of the kingdom generally, still that monarch had no territorial possessions in Cornwall, as he had in the Counties of England.”
“That upon the Norman Conquest the King took into his own possession sixteen manors or estates which had previously been held by Earl Harold and Brictric, and conferred upon his half brother Robert Earl of Moretain, as Earl of Cornwall, the residue of the county, with the exception of the ecclesiastical possessions and two small estates….”
“That the property so granted to and held by these Earls under the description of the County of Cornwall was a great honor or land barony which comprised the Lordship of the county and gave its possessor, as against the Crown
The territorial ownership of the county
The revenue of the county generally,
(2) Rowe v Brenton (1828) (8 B & C 737) (3 Man & Ry KB 133) (108 E.R. 1217)(Conanen’s Rep 1)
(3) Copy held in Cornwall Record Office transcript prepared by Duchy Archivist, accompanying a letter dated 24th February 1988 from solicitor to Duchy to Crown Estate.
(6) Payment made for permission to build on land of a feudal lord