Cornwall – A Background Paper

 

1 The Stannaries.
2 The Duchy of Cornwall – A Private Estate?
3 Cornwall and Wales.
4 Cornwall and Counties Palatine.
5 Is Cornwall Different?
6 Cornwall is different!
7 Parliamentary Questions.

 

John Kirkhope B.A. (Hons.), LL.B.(Hons.), Dip. N.P., TEP

Notary Public, Non Practising Solicitor.

 

1. The Stannaries.

Stannary Towns.

There were (are) four: Truro, Lostwithiel, Launceston and Helston in Kerrier
Stannary Parliament.

“No other institution has ever had such wide powers in the history of this country.”
(Professor Robert Pennington – Professor of Law, Birmingham University).

The Convocation of the Tinners or Stannary Parliament was described by John Thomas, Vice Warden of the Stannaries, thus:

“It is like unto the British Parliament in this respect that it consists of three branches viz The Lord Warden representing the King, 24 Stannators representing the Lords and 24 Assistants chosen by the Stannators the Commons”.

The Cornish Stannary Parliament looked more like the Parliaments of Ireland Scotland and England.
(Professor Philip Payton – Professor of Cornish Studies, Exeter University).

 

Does the Stannary Parliament still exist as a legal institution?

Yes. It undoubtedly still exists as a legal institution.
(Professor Robert Pennington).

Common Law does not favour the “doctrine of desuetude” the doctrine that causes statutes etc to lapse or become unenforceable by long habit of non-enforcement or lapse of time. (See Ashford v Thornton 1818 re trial by combat).

See also Court of Chivalry Case 1954. The High Court of Chivalry had not met for 200 years yet was convened to hear a case involving Manchester Corporation. It could still sit if necessary.

 

Does the Stannary Parliament still have the right of veto of Westminster Legislation?

Yes. See reply to Dafydd Wigley MP 14th May 1977 from the then Attorney General.

There was correspondence in the Times in May/June 1974. In a letter to the Times dated 15th June 1974 Professor Pennington Faculty of Law University of Birmingham stated as follows:

“There can, therefore, be no doubt that the Charter did require Convocation’s assent before enactments by the Westminster Parliament were passed affecting tin mining in Cornwall and this is still the position today.”

He went on..

“However, in the future when a bill is introduced in Parliament which affects the tin mining interests, it will undoubtedly be possible for interested Cornishmen to obtain a Court order directing the Duke of Cornwall and the Lord Warden to hold a Convocation in order to discover whether Cornwall consents or not……Furthermore if a bill were introduced in Parliament to cancel the Charter of 1508, the tin mining interest, would, of course, be entitled to invoke the procedure of the Charter, and there can be no doubt but that a Convocation held under it would refuse consent to its own abolition.”

Stannary Law

“..from a legal standpoint the Stannaries were a peculiar jurisdiction under the operation of certain laws customary as well as statutory technical and non-technical for the administration of which a royal officer, the Warden, was responsible. The head of the Stannary system was accordingly the King or after 1338 the Prince of Wales as Duke of Cornwall.” 

“Another class of case appearing early in the records serves in a way to indicate the separation of the tinners from the ordinary courts of the county such cases, for example, are the trespassing with swine and geese on a neighbours cornfield cutting another’s timber.”
(G R Lewis)

Further examples of the fact the Stannary Courts were not simply concerned with matters of mining are as follows:

'Examples of this were the slander suit brought by Sir John St Leger (a recipient of toll tax) in the steward's court of Blackmore against Thomas Hilling a landowner who had no interest in mining.............and a suit brought before the Vice-Warden of Cornwall by an adventurer in a tinwork for the recovery of a copyhold tenement in the manor of Calstock.'

(See page 37 and page 40 of Pennington's Stannary Law.)

“Appeals first to the Steward of the Stannary Court and then to the Under Warden of the Stannaries and from him to the Lord Warden of the same Stannaries and for default of justice at his hands the Prince’s Privy Council and not examinable in this Court or in any other Court.”

(Extract from Lord Coke note 16th October 1608).

 

Territorial extent of the Stannaries.

“We cannot yet discern but that the Stannaries extend over the whole County of Cornwall”.
(Privy Council 1632)

Tinners?

Manual labourers, employers those with shares in mines, dealers in tin, artisan classes connected with tin mining”

“Gentlemen bounders owners of tine works possessors of blowing hoses buyers of black tin and white tin”

“Adventurers agents labourers in short all connected in any way with mines are held to be miners”

“Stannary Acts of 1837-1855 by which all adventurers, agents, labourers connected in any way with mines either in supplying materials or otherwise were held to be miners and made to sue and be sued in the stannary.”
(G R Lewis).

(Please see copy letter attached from 24th May 1974 from Robert Pennington.)

 

Jurisdictional extent of Stannary Law.

The Stannary Courts heard cases between tinners and tinners, tinners and non tinners. Non tinners could elect to have cases heard before the Stannary Courts.

Is Stannary Law good law?

Yes. Stannary Courts have been abolished Stannary Law has not. Arguably the oldest law incorporated into the English Legal system.
Professor Robert Pennington.

A distinguished legal academic who wrote at length on the Stannaries and was once called, by a Liberal MP, the most dangerous man in Britain because of his support for the Stannaries. See attached copy obituary with section highlighted.

 

2. The Duchy of Cornwall – A Private Estate?

Submissions by the Duchy in the Cornwall Foreshore Case..

“The Duke seized and confiscated the enemy ships in times of war and the enemies merchandise contained in them, as well as in neutral vessels whenever they came within the precincts of the Duchy.”

“And in addition to wreck of the sea prisage and customs of wine and profits of port the Duke of Cornwall took the great customs of wools, fels and leather and had his seal of cocket by which the merchants exporting these articles had their quietus.” 

“The inhabitants of the islands of Guernsey, Jersey, Alderney and Sark were by the King exempted from the payment of what was called the aliens custom within the realm of England, but by the express command of the Duke and his council this custom was exacted from them within the precincts of Duchy” 

“For instance by the second charter the return of all writs and summonses in Cornwall was annexed to the Duchy.”

“By the third charter the Crown appears to have entirely denuded itself of every remnant of seignory and territorial dominion, which it could have otherwise have enjoyed within the County or Duchy of Cornwall.”

“It is more over 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 been vested in the Crown and with all such rural prerogatives as would naturally accompany and the enjoyment of which could only be consistent with a grant of so high an honour.”

“So far therefore as the proprietorship of the tin mines is to be taken as evidence of the ownership of the soil of the county generally as between the crown and the Earls the evidence if submitted is conclusive in favour of the latter.”

“But what has been said of the profits of the tin mines is applicable also to all income derived from the county generally and especially from the particular sources before referred to:-

1. The amercements of the forest.

2. The waste and purtrestures of the County.

3. The wreck of the sea.

4. Prisage of wines.

5. The profits of the fisheries and the drying of fish on the seashore.

6. The anchorage described as a customary payment for boats coming in to land or sullage.

It is not too much to say that within Cornwall the Duke stood in the place of or was quasi sovereign so far as regarding the territorial seignory.”

“The second and third charters certainly manifested a desire to give the Duke everything within the County which the King and Lord could confer.”

“It is contended that the Duchy and it’s creation was co-extensive with the County in the sense in which that term is used, not that it’s possessor was entitled to every acre of land within the county but to the great seigniorial rights throughout the county which under other circumstances would have been invested in the crown.” 

“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.”

It would have been a nonsense for the Duke’s Attorney General in the 1850’s both to make the assertions set out above and claim the Duchy as a private estate. You cannot claim the Duke had the Government of Cornwall and then say it’s a private estate. Even in the time of Queen Victoria that argument could not have been sustained.

 

Constitutional Law.

Statutes in Force (Official Revised Edition – Revised to 1st February 1978) Constitutional Law is concerned with the Duchies of Cornwall and Lancaster. In particular it includes..

“A Charter of 1337 settling the Duchy of Cornwall upon the Kings eldest son, and prescribing its future devolution”.

It is noteworthy texts on the Constitutional Law no longer include the Charter. It is also a nonsense to suggest that an estate established by part of the Constitutional Law of England should be a private estate. How can “our” Constitution be private?

There are three Duchy Charters apart from the one referred to in 1978 which was dated the 17th March 1337, there is also the Charter dated 18th March 1337 and the Charter of 3rd January 1338. The Duchy made reference to them, I have highlighted the references, and relied on them in their evidence however they do not appear as part of the Constitutional Law.

 

Crown Immunity and Planning.

The Crown immunity was removed by the Planning and Compulsory Purchase Act 2004

 

3 Cornwall and Wales

Wales has claimed a separate and different identity from the English even though it was subject to English Laws and an English monarch. It has not claimed difference based on a distinct body of law or a uniquely powerful Parliament. 

The Statute of Rhuddlan 1284, sometimes called the “Statute of Wales” “wholly and entirely transferred the land of Wales with its inhabitants and has annexed and united the same into the Crown as a member of the same body”.

By the Act of Union in 1536 the law of England was to be the only law in Wales. This was followed by a further Act of Union in 1543.

It is generally agreed the effect of these laws provided that the English system of administration and English legal system applied. Contrast this with Cornwall with its own uniquely powerful Parliament and Court system in addition to its claim, like Wales, to its own language, culture and ethnicity.

In the famous Cornwall Foreshore case of the 1850’s the Crown stated:

“It may be observed, as to the supposed analogy between Cornwall and Wales, that from the time of the annexation of Wales to the Crown of England, the Sovereign rights of the latter over the land and shores of Wales, the sea surrounding the same, have been as clear and as indisputable as those over the rest of the realm; and it has never been suggested that the creation of the Heir Apparent as Prince of Wales by Edward I and his successors carried with it any portion of the Royal Prerogative, or Royal Property, within the principality. Up to the time of the conquest of Wales, the British Prices of that country, within such portions of it as had not from time to time been conquered by the Lords Marchers doubtless exercised all Sovereign rights, both as to jurisdiction and property; but if creation of the high title of Prince of Wales in favour of the Heir Apparent did not carry with it those Sovereign rights, or any of them, what becomes of the suggestion that the creation of the undoubtedly high, but inferior title of Earl of Duke of Cornwall carried with it any Sovereign rights of the British Prince of that territory.”

The Duchy replied:

“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 the Earl of Duke of Cornwall, any more than that of the Prince of Wales, would pass such 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 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 title was in existence, and 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 questions.”

See also the following from the Duchy submission in the Foreshore case..

“Cornwall appears to have been like Wales, a distinct principality that at the time of the conquest and subsequent was still treated in many respects as distinct from England when it afterwards became an English county. It still retained many if not all the rights of a county palatine and was granted some times with more and some times with fewer rights.”

One commentator stated the problem was Cornwall did not have a William Wallace or an Owain Glyndwr or a central mountain range to which freedom fighters could retreat. If it had things may have been very different. The Welsh rebelled against the English from 1400 until 1415. The Cornish rebelled against the English no less than 6 times from 1497 until 1655

(See Professor Mark Stoyle – Professor of History Southampton University)

The claim for Cornish difference and the right for that difference to be recognised are at least as strong as that of Wales.

The Duke of Cornwall, with which title comes considerable power and economic advantage, is inherited immediately on the birth of the eldest son of the monarch. The title Prince of Wales and Earl of Chester comes only when the Prince is invested with the title: there are no particular rights which come with those titles.

 

4 Cornwall and Counties Palatine

In the Cornwall Foreshore case a number of references are made to Counties Palatine. Cornwall is not and never was a County Palatine.

A surprising number of counties at one time or another were Counties Palatine. The best known were Durham, ruled by the Prince-Bishops, Chester ruled by an Earl (The Prince of Wales becomes Earl of Chester on investiture as Prince of Wales) and Lancaster (now merged with the Crown). The Queen is Duke of Lancaster.

Counties Palatine were established in the 11th Century by William the Conqueror to defend the northern and western frontiers of the kingdom of England. In order to allow them to do so in the best way they could, their towns were granted palatine powers within the territories making these territories sovereign jurisdictions with their own administration courts largely independent of the monarch, although with their old allegiance to him or her. 

Cheshire had its own Parliament consisting of Barons of the County and was not represented in the Parliament of England in 1541. It retained some special privileges until 1830.

Lancashire was made a County or Duchy Palatine in 1351 coming to the throne in 1399. It kept many of its special judicial privileges until 1873. 

The King’s writs did not run in these three palatine counties until the 19th Century and until the 1970’s Lancashire and Durham had their own courts of chancery.

The Duchy stated in its submission as follows:

“It may be proper to advert to the analogous case of the County of Lancaster. The Earldom of Lancaster was granted by Henry III and by the time of Edward III the Earldom was erected into a duchy in favour of Henry Plantagenet and afterwards of John of Gaunt the county was made a county palatine. Making the county a county palatine only gave certain prerogative rights and did not operate as a territorial grant.”

It is important to understand the difference between the Crown granting certain of its prerogative rights and providing a territorial grant which would include certain prerogative rights.

The Duchy with which the most immediate comparison can be made is with the Duchy of Lancaster. This is a royal Duchy and in Lancashire the Queen is the Duke of Lancaster. The most obvious similarity is the fact in Lancashire the Duchy has the right of Bono Vacantia like the Duchy of Cornwall.

None of the Palatine Counties had a similar extensive system of laws or Parliament neither could the differences based on language, culture or ethnicity be claimed.

 

5. Is Cornwall Different?

Customary Mining Law

Mining presents such particular legal issues that it was common for local mining customary laws to develop. Somerset, Devon and the Forest of Dean all had local mining laws. So Stannary Law which developed out of local customary mining law was not unusual.

Cornwall was different in this regard. Firstly it developed to cover the whole county not just an area within a county in which mining took place. It covered very nearly the whole population of Cornwall since few could not claim to be tinners within the wide definition given to that term. Next it was a sophisticated system with a procedure for courts of first instance and means of appeal. It also developed an equitable function and even had, what in modern legal parlance, would be called a company and commercial specialty. As pointed out earlier it even covered matters like the trespass of geese it was not simply concerned with mining matters. It had a criminal jurisdiction and maintained its own, pretty brutal, gaols. It was a stand alone system - you could not appeal from the Stannary Courts to the Common Law courts of England. Stannary Law has also enjoyed a longevity which other mining law has not. It is after all still good law.

Maybe most important of all Stannary Law was part of the Government of Cornwall. Ultimately the system was the responsibility of the Duke of Cornwall to whose Privy Council final appeals were directed and after that the English Privy Council. The “ordinary courts” of England had no jurisdiction over the Stannary system.

For completeness Devon’s Stannary Laws were also the responsibility of the Duke. However they did not extend to the whole county of Devon and did not develop to anything like the same extent.

Cornwall had its own Courts.

Well yes but so did Devon and the Counties Palatine of Lancaster and Durham as do the Verderers of the New Forest. The Chancery Courts of Lancaster and Durham were abolished only in 1971. See comments above.

Cornwall has its own Parliament.

Again that of itself does not make Cornwall different. The Forest of Dean had a miners parliament for example. Devon also had a Stannary Parliament which last sat in1748. In principle the Devon Stannary Parliament is still a legal institution. The Palatine County of Cheshire had its own Parliament and was not represented at Westminster until 1541.

Cornwall was different in this regard. The Cornish Parliament operated like the Irish and Scots Parliaments. It had a right of veto which it did exercise which made it unique. It was also a Parliament co extensive with the Duchy Government. Devon’s Parliament applied only to the Devon Stannary Towns. The Forest of Dean miners Parliament was entirely local and met only once a year. The Cheshire Parliament was abolished as were the Scots and Irish Parliaments.

 

6.  Cornwall is different!

Cornwall is subject to different laws.

1 It is the only “County” in England and Wales where the soil is owned by someone other than the Crown. This is important. Generally speaking most people own property in “Freehold” what used to be called “fee simple absolute”. This dates back to feudal times and freehold indicates we own land from the Crown in exchange for feudal duties. This is now largely academic. Only the monarch is absolute owner of land except in Cornwall where it is the Duke of Cornwall. The Duchy have used this right of the Crown to avoid planning laws for example.

2 Does 1 above matter? Well yes in one respect. In the rest of the UK “ownerless land” reverts back to the Crown except in Cornwall when it reverts to the Duke of Cornwall

3 In Cornwall the property of people who die without heirs passes to the Duke of Cornwall in the rest of the UK it is the monarch as monarch or as Duke of Lancaster.

4 It is the only place in the UK in which the foreshore belongs to someone other than the monarch.

5 It is the only “County” in England and Wales in which the Sheriff is appointed by someone other than the monarch and who swears allegiance both to the monarch and the Duke of Cornwall.

6 It is the only “County” in England and Wales which is home to an extant legal institution with the right of veto of Westminster legislation.

7 It is the only “County” in the UK in which someone other than the monarch has right of wreck and royal fish.

8 It is the only “County” in England and Wales which can claim to be more properly called “Duchy” or shire.

The people of Cornwall are subject to different laws some trivial even charming oddities others not so. The right to the foreshore means the Marine Stewardship scheme does not apply. It means the people of Scilly cannot buy their houses.

More generally travel from Cornwall to London. Will you see the Devon, Somerset, Wiltshire county flags flying everywhere as you will in Cornwall? Can you imagine a text on the laws of Wiltshire or Berkshire?

 

7 Parliamentary Questions.

1 Does the Government accept, as submitted by the late Professor Robert Pennington, the Cornish Stannary Parliament still exists as a legal institution?

2 Does the Attorney General agree with the answer given to Dafydd Wigley MP on 14th May 1977 that the right of the Cornish Parliament to veto Westminster Legislation has never been withdrawn?

3 Will the Government speak to the Duchy of Cornwall so that misleading statements made on the Duchy web site regarding the Duchy’s and Duke’s tax status are corrected?

4 Could the Government indicate at what point the Duchy became a private estate.? Clearly that was at some point after 1978. Could they also define what is meant by “private estate” in this context.

5 Can the Government name any other private estate which, for example, has the benefit of “bono vacantia”, the right not to pay capital gains tax, the right to Crown Immunity so that, for example, unlike people elsewhere in England and Wales the people of Scilly cannot purchase their homes?

6 Can the Government confirm Duchy Officials are, for the purposes of legislation, Public Officers?

7 Does the Government still regard the Charter of 17th March 1337 as part of the Constitutional Law of the United Kingdom? If so do they also regard the Charters of 18th March 1337 and 3rd January 1338 are part of the UK Constitution?

8 Can the Government confirm the Duchy of Cornwall is, as claimed by the Duchy, owner of the soil of Cornwall?

See also MATERIALS IN CORNISH LAW and The Isles of Scilly and the Duchy of Cornwall

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