CORN W ALL “A CATEGORY OF ITS OW N ?” D r Jo h n Kirkh o p e N o tary Pu blic Vis itin g Re s e arch Fe llo w – Plym o u th U n ive rs ity In t r o d u ct io n This paper argues that Cornwall is in a category of its own sim ilar to but different from other legal entities which have com e into existence from tim e to tim e. Next it is intended to explore the distinctive constitutional position occupied by Cornwall today. Too often there is a rehashing of m aterial which is very fam iliar to those who have a particular interest and leaves those who don’t cold. I think som e believe that one m ore piece of evidence or the repetition of fam iliar testimony will m ake the English Establishm ent pause, have a m iraculous change of heart, acknowledge the error of their ways and grant Cornwall som e form of autonom y. That is not going to happen. Change will only happen when enough people within Cornwall agitate and dem onstrate for it as did the people in Wales and Scotland. It was, in relative term s, not so long ago Plaid Cym ru and the SNP were regarded as a joke. I hope if m ore people understand the fact that Cornwall is already in a category of its own the dem and that that difference is recognised would seem not the eccentric ravings of a few on the fringe but a rational response that the distinction be accom m odated. Queen Elizabeth II is the m onarch of sixteen Com m onwealth Realm s 1, three Crown Dependencies 2 , fourteen British Overseas Territories 3 and various Australian and New Zealand Overseas Territories 4 . None of those Realm s, Dependencies or 1 England and Wales, Northern Ireland, Scotland, Antigua and Barbuda, Australia, Baham as, Barbados (for the tim e being) Belize, Canada, Grenada, J am aica, New Zealand, Papua New Guinea, Solom on Islands, St Kitts and Nevis, St Lucia, St Vincent and Grenadines and Tuvalu. 2 Bailiwick of J ersey, Bailiwick of Guernsey which includes Alderney and Sark and the Isle of Man. 3 Anguilla, British Antarctic Territory, British Indian Ocean Territory, Falkland Islands, Gibraltar, Montserrat, Pitcairn Group of Islands, South Georgia and South Sandwich, Berm uda, British Virgin Islands, Caym an Islands, St Helena, Ascension and Tristan da Cuhna, Turks and Cacos Islands, Sovereign Base Area on Cyprus and South Shetland Islands and South Orkney Islands. 4 Australian Antarctic Territories, Christm as Islands, Cocos (Keeling Islands), Heard and McDonald Islands, Ashm ore and Cartier Islands and Coral Sea Islands. New Zealand Associated States – Cook Islands and Niue and Ross Dependency/ Tokelau Territories has a relationship with the Crown which is as am biguous as that of Cornwall and in none of them does the sam e situation with regard to the ownership of land apply. The land of Cornwall is owned by the Duke of Cornwall. There is no other province, county, shire, call it what you will, in which the ultim ate owner of the land is other than the m onarch or the State. This is an issue which I shall explore in m ore detail shortly. Already it is clear Cornwall is different. Many writers have sought to bolster the unique status of Cornwall by m aking com parisons with other entities which, I m ust confess, I find frustrating. They say Cornwall is like a Palatine County. Well in so far there is a clear idea on the nature of Palatine Counties, and there isn’t, - yes and no. Others suggest Cornwall is sim ilar to a Crown Dependency without specifying to which they a referring. For exam ple J ersey and the Isle of Man are very different from the constitutional situation of Sark. There are also the inflated claim s surrounding the Convocation of the Tinners of Cornwall (the Stannary Parliam ent) which was an extraordinary institution but it was not a Parliam ent for Cornwall. The force of argum ent for Cornwall’s difference is dim inished by exaggerated claim s. This paper is not a work of history although, inevitably, there is som e history. I am not a historian and I would refer readers to m any excellent books already written which exam ine Cornwall’s 5 past. Neither is this a work of law. I have deliberately m ade a choice not to pepper this paper with references to endless Acts of Parliam ent, Charters and Court Cases. I am content to justify the assertions I shall be m aking but I shall try very hard to avoid m aking this read like an article being prepared for an academ ic law journal. Th e D u k e o f Co r n w a ll o w n s Co r n w a ll! Yes, really, the Duke of Cornwall owns Cornwall and indeed claim s to own the Isles of Scilly although, in m y view, that latter claim is arguable. That of itself m akes Cornwall unique. I could quote all sorts of court cases to justify that statem ent 6 and 5 See for exam ple the works L. E. Elliott-Binns, F.E. Halliday, Philip Payton, Bernard Deacon, J ohn Angarrack and Craig Weatherhill. 6 For exam ple Chasy n v Lord Stourton (1553) (1 Dyer 94a) (73 E.R. 20 5) and The Solicitor to the Duchy of Cornw all v Canning (1880 ) (5 P.D. 114 Probate) refer to correspondence with the Land Registry but it is indisputable the Duke of Cornwall owns Cornwall. I m ust offer som e explanation to put m y statem ent in context. The land law of England and Wales is com plex. Legal theory states that no one apart from the m onarch owns lands, called allodial land, everyone else has an interest in land typically a freehold or a leasehold interest. The Land Registry asserts that the Duke of Cornwall owns the freehold of the whole of Cornwall, a view shared by Cornwall Council. In other words if I own a property in Devon I hold that as a freehold interest from the Monarch. If I own a house in Cornwall I would own the freehold interest from the Duke of Cornwall. The problem with the Land Registry claim is that it conflicts with an Act of Parliam ent, still on the Statute Book, entitled Quia Em ptores 1290 which provided a freehold cannot be created out of a freehold. When this anom aly as queried the Land Registry explained they really did not have an answer. Because of this contradiction there are those, m ost notably J ohn Angarrack, who argue, persuasively and powerfully, that the Duke of Cornwall owns the land of Cornwall allodially. That is the Duke’s relationship to the land of Cornwall is the sam e as the Sovereign’s relationship to the land of Devon, Som erset, Lancashire etc. Next it m ust be understood that despite the fact that the Duke of Cornwall, by definition is heir to the throne, he is categorized in legal text books 7 as a private citizen and a subject of the Crown 8 . In theory he is in no different situation than the writer of this paper or its readers. Whatever the legal niceties there is no Realm , Dependency or Territory in which a sim ilar situation applies with the possible exception of the Isle of Sark about which m ore later. That is a “private citizen” and a “subject of the Crown” has had ownership granted to them by the sovereign of a substantial territory or, if you prefer, an adm inistrative area. Furtherm ore that ownership is based on a hereditary principle. The heir to the throne being Duke of Cornwall owns Cornwall. Cornwall’s unique situation is obvious. 7 See Halsbury’s Law Chapter 12 Attorney General to H.R.H. Prince of W ales, Duke of Cornw all v The May or and Com m onalty of the Borough of Ply m outh (1754) (Wight 134) 8 The Rights of the Duke of Cornw all By virtue of the fact the Duke of Cornwall “owns” Cornwall, and the Isles of Scilly, he has certain other rights within Cornwall and the Isles of Scilly. These rights are unique in that in that no other territory, realm etc, as far as I am aware, are sim ilar rights granted to a “private citizen” and a “subject of the crown”. Right to the foreshore of Cornwall, fundus and m ines and m inerals under the foreshore and fundus of the riverbed It is generally well known, as a result of the Cornwall Foreshore Case 9 and the subsequent Cornwall Subm arine Act 1858, the Duke of Cornwall has the right to the foreshore except when they are owned by a subject. Specifically the Duke of Cornwall, in right of the Duchy of Cornwall, has the right of all m ines m inerals lying under the seashore between high and lower water m arks within Cornwall and under estuaries and tidal rivers and other places being part of Cornwall10 . The Duke of Cornwall, in right of his Duchy of Cornwall, also owns the fundus or navigable river bed and foreshore of the Tam ar, Cam el, Helford, Fal and Fowey. This m eans that part of the toll on the Tam ar Bridge, Torpoint and King Harry Ferries goes to the Duchy. Right to Bona Vacantia/ Escheat Escheat is the capacity of the chief lord to resum e land granted by him or a predecessor in title on determ ination of the estate granted. It applies only when a freehold is determ ined and in Cornwall passes to the Duke of Cornwall. Typically it arises on bankruptcy or when a com pany is dissolved. Bona Vacantia arises on the estate of persons dying wholly or partially intestate and without “legal heirs”. The only estate which enjoys a sim ilar privilege is the Duchy of Lancaster whose head is, of course, the Sovereign. 9 The Tidal Estuaries, Foreshore and Under-Sea Minerals w ithin and around The Coast of the County of Cornw all – Arbitration by Judge Sir John Patteson (1855 London Shaw & Co.) 10 Halsbury’s Laws of England Volume 12(1) Crown Property 3 Foreshore and Wreck para. 268 I fear I will exhaust the patience of m y readers but I know of no other realm , territory dependency, with the possible exception of Sark, in which a sim ilar situation arises. That is property which becom e ownerless reverts to a private individual albeit one of exalted status. Right to Royal Fish This right dates back to a statute Prærogativa Regis 1324. The entitlem ent applies to royal fish 11 taken on the seas forming parcel of the Duchy’s dom inions. On taking of a whale the head belongs to the Duke while the tail belongs to the Duchess. The right was once valuable. The Duchy has the obligation, which they seek to avoid, to dispose of any Royal Fish washed up on the shore which, since they typically contain all sorts of nasty chem icals, can cost as m uch as £ 50 ,0 0 0 . Right to Wrecks This was once a privilege which, in the 19 th Century, the Duchy fought hard to assert. They are less keen now but it is still a right which the Duchy enjoys within its “dom inions”. Right to Treasure Trove The right to Treasure Trove within Cornwall belongs to the Duchy of Cornwall. Right to sum m on the Convocation of the Tinners of Cornwall This right is exam ined in m ore detail later but the Duke of Cornwall, through the Lord Warden of the Stannaries has, at least in theory, the right to sum m on the Convocation of the Tinners of Cornwall and to give assent to acts passed by it. Right to “Prick” or appoint the High Sheriff of Cornwall It is the Duke of Cornwall and not the Crown who appoints the High Sheriff for Cornwall. This pre-dates the creation of the Duchy of Cornwall dating back to the 13 th Century and the Earls of Cornwall. Now largely ceremonial in tim es past the Sheriff was an im m ensely im portant individual with considerable powers having control of 11 Whales, porpoises, gram puses and sturgeon the Duchy governm ent and courts 12 . The opening words of the oath taken by the High Sheriff are: “I XXXX do swear that I will well and truly serve as well the Queen’s Majesty and High Highness XXXX Duke of Cornwall in the office of Sheriff of the County of Cornwall…” A private citizen swearing an oath to another private citizen is unusual but that is what happens. In sum m ary For fear of trivialising: The Duke of Bedford does not own Bedfordshire; The Duke of Rutland does not have the right to Bona Vacantia/ Escheat; The Duke of Som erset does not have the right to the foreshore of Som erset or the right to royal fish or the right of wreck; and The Duke of Northum berland does not choose the High Sheriff of Northum berland. The Duke of Cornwall a “private citizen” and subject of the Crown has it can be seen, in relation to Cornwall, an extraordinary range of privileges and rights. Th e Co n v o ca t io n o f t h e Tin n e r s o f Co r n w a ll is Co r n w a ll’s Pa r lia m e n t 13 . The Convocation of the Stannaries of Cornwall, from now on the Convocation, was (and, arguably , rem ains) a rem arkable institution. It did not m ake Cornwall unique: Devon Tinners also had a “Parliam ent” as did the lead m iners of Derbyshire and the m iners on the Mendip Hills but it did, for reasons that shall now be explained, m ake Cornwall different. The Convocation of the Tinners of Cornwall and its equivalent in Devon, the Great Court of the Tinners of Devon, were unusual in that they were representative 12 See Morris, W. A., The m edieval English Sheriff 130 0 (1927 Manchester University Press) See Kirkhope, J An Introduction to the law s of the Duchy of Cornw all, The Isles of Scilly and Devon (20 14 Am azon and Evertype Press) 13 legislatures linked to a single industry14 . The Convocations w ere not assem blies concerned w ith the people of a particular area like, for exam ple, the Scottish or W estm inster Parliam ents. However the Cornish Convocation in particular could claim to be concerned with a significant portion of the population since because the num ber of people who could claim to be tinners was very wide. The Convocations were, possibly, an expansion of, and an offshoot from , the grand juries of the Stannary Courts. It is said in som e older local histories that until 130 5 the tinners of Devon and Cornwall m et in one Parliam ent on Hingston Down near Callington; others suggest Crockern Tor on Dartm oor. After a Charter of 130 5 the Parliam ents were held separately15. The Rev. Richard Polwhele claim ed: “I have scarcely have any doubt but the Stannary parliam ents in this place were a continuation, even to our own tim es, of the old British courts before the tim e of J ulius Caesar; those Stannary parliam ents were sim ilar, in every point of resem blance, to the old British courts.”16 The records for Devon date back to 1520 while those for Cornwall to 1588 17. Professor Robert Pennington asserted: “The Parliam ent of the Convocation of the Tinners of Cornwall was a unique institution in that it was not only a body representative of a special industrial and com m ercial sector of the econom y, but was also a legislature with powers parallel to those of the Parliament at Westm inster and had power to veto legislation by the central governm ent if it affected tin m ining. No other institution has ever had such w ide pow ers in the history of this country .” (em phasis added) 18 The rem arkable power of veto possessed by the Convocation distinguished Cornwall from other areas, like Devon, who could also claim a “m iners’ parliam ent”. 14 Cruickshanks, E., “The Convocation of the Stannaries of Cornwall” (1986) Parliam ents, Estates and Representation Vol 6 No 1 p 59 15 Carew, R., The Survey of Cornw all (160 2) p 16 16 Polwhele, Rev Richard, The History of Cornw all (1816) p 92 17 Pennington, R., “Stannary Law” (1988) Bulletin of the Peak District Mines Historical Society Vol 10 No 4 18 Laws of the Stannaries - Trevithick Society (1974) Introduction The 150 8 Charter The recorded history of the Convocation of Cornwall begins with the Charter of 150 8 granted by Henry VII. The background to the granting of the Charter is as follows. In 1497 the Cornish rebelled against Henry VII. This was one of six uprisings which occurred over a one hundred and fifty year period; the others being in 1548, 1549, 1642 and 1648. The im m ediate causes of dissatisfaction were increases in taxation to finance an unpopular war with Scotland, the suspension of the Stannaries in 1496 and stricter rules being im posed by the then Duke of Cornwall, Prince Arthur, on tin bounding and coinage. There was, initially, an unexpectedly successful m arch on London led by Michael Angove and Thom as Flam ank. However, the rebels were defeated by the King’s forces in Blackheath and the leaders executed. Henry VII was surprisingly m oderate in the way he dealt with the uprising, presum ably not wishing to m ake a bad situation worse. A num ber of pardons were issued and property previously confiscated was restored. Equally significant was the Charter of Pardon: “….a m ove clearly designed to win pacification and renewed accom m odation of Cornwall not only by restoring the Stannaries (on the paym ent of a £ 10 0 0 fine) but also enhancing the constitutional status of the Stannary Parliam ent. Both the privileges of the tinners and the legislative capacity of the Parliam ent…..Com ing so soon after the crisis of 1497, this m ust be seen as a deliberate strategy to restore the constitutional accomm odation of Cornwall. The Charter of Pardon extended the definition of tinner (and thus the jurisdiction of Stannary Law) to include alm ost anyone connected in one way or another with the tin trade..”19 The Charter provided that the Convocation of the Tinners of Cornwall consisted of: “...twenty four good and lawful m en of the four Stannaries of the county of Cornwall, nam ely six m en from each of the Stannaries elected and appointed from tim e to tim e as occasion requires..” The four Stannaries were centred on the principal m ining districts of (1) Penwith and Kerrier, which com prised Land’s End, the Lizard peninsula and area between Hayle, Redruth and Helston (2) Tywarnhaile which ran from Truro to Penryn in the east and to St. Agnes in the West (3) Blackm ore, which corresponded with Hensborrow granite boss and (4) Foyem ore which extended over Bodm in m oor. Writs would be 19 Payton, P., Cornw all - A History (20 0 4) p 115 issued to the m ayors of the four “coinage towns” 1) Launceston for Foyem ore 2) Lostwithiel for Blackm ore 3) Truro for Tywarnhaile and 4) Helston for Penwith. The electorate consisted of the freeholders of each of the Stannaries who elected six Stannators m aking twenty four in all. Latterly each Stannator was em powered to nom inate an Assistant who acted in a consultative capacity and as a link to the free m iners. Convocations of the Tinners of Cornwall were held to enact legislation m et in 1588, 1624, 1636, 1686 to 1688, 170 4, 1750 and 1752 to 1753. There was an attem pt to arrange a m eeting of the Convocation in 1835 and there was som e lobbying again in 1865. Neither was successful. Henry VII stated that he would ask Parliam ent to ratify the Charter but he died before he had the chance so to do. This does not m ean, as is som etim es suggested, that because the Charter was not ratified by Parliam ent it is not legally enforceable. At this tim e the m ost typical m eans of creating new law was by Royal Charter.20 The Procedures of the Convocation The Convocation of the Tinners of Cornwall would be sum m oned by the Duke of Cornwall, or if no Duke, by the m onarch, whereupon the Lord Warden of the Stannaries issued precepts to the four “coinage towns”, to hold elections for Stannators. The Stannators latterly appointed twenty four assistants, who form ed a lower house to assist them and advise on legislation. The Lord Warden gave a speech to the Stannators who then elected a Speaker, who having been approved by the Lord Warden, appointed the necessary officials and then opened the session. The Lord Warden and Vice Warden of the Stannaries were excluded. Eventually sixteen Stannators form ed a binding m ajority. The Convocation had the right to initiate legislation concerning the Stannaries, as well as to ratify proposals by the Lord Warden. J ohn Thom as, Vice Warden of the Stannaries from 1783 until 1812, stated in a report of 1785 that the Convocation: 20 As a contemporary exam ple see the suggestion that the recom mendations of the Leveson enquiry into the Press be im plem ented by m eans of a Royal Charter. “..is like unto the British in this respect that it consists of three branches viz The Lord Warden, representing the King; 24 Stannators representing the Lords and twenty four assistants chosen by the Stannators, the Com m ons.”21 G R Lewis stated the Convocation operated in m anner: “..scarcely different from Westm inster.” 22 The right of veto The 150 8 Charter provides: “....no statutes, acts, ordinances..or proclam ations (statute, actus, ordinaciones, provisiones, restrictions siv e proclam aciones) m ade at any tim e hereafter shall be put into force in the said county (Cornwall) to prejudice or burdening of the said tinners bounders, possessors of tin works..proprietors of blowing houses..buyers of black or white tin or dealers in white tin or the heirs and successors of any them ” unless a Convocation..had been convened and given its consent.” The right of veto applied to enactm ents of the m onarch in Privy Council, the Duke of Cornwall in the Prince’s Council as well as Acts of the Westm inster Parliam ent. The position, arguably, was and rem ains, that the consent of the Convocation is required before enactm ents of the Westm inster Parliam ent are passed affecting tin m ining, and latterly all m ining, in Cornwall.23 W as the right of veto exercised? It was exercised on at least three occasions. In 1674 there was a dispute between the Convocation and the King because the Convocation refused to delegate its contracting powers to a House of Com m ons Select Com m ittee. In 1687 the Convocation refused to ratify a Royal Contract for pre-em ption. The m ost notable occasion occurred during the reign of J am es II in 1686 when Letters Patent issued by Charles II appointing Penzance as a coinage town was nullified. The Cornish Convocation of Tinners declared they had taken “no Notice” of the order 24 . 21 Thom as, J ohn, Vice Warden of the Stannaries – Report to the Princes Council 21st February 1785 Lewis, G R., The Stannaries: A Study of the Medieval Tin Miners of Cornw all and Devon (190 8) p 128 23 Professor Robert Pennington Letter to Daily Telegraph 15 th J une 1974 24 Pearce, T., The Law s and Custom s of the Stannaries of the Counties of Devon and Cornw all (1725) 22 Does the Convocation still exist as a legal institution? The answer, debatably, is yes for the following reasons. The English legal system , unlike that of Scotland, does not generally recognise the principle of “desuetude” by which statutes, legislation or legal principles lapse and becom e unenforceable by long habit of non-enforcem ent. There are a num ber of cases which dem onstrate this point: Rex v The Mayor and J urats of Hasting (1822) 25 Despite the fact that a Court had not been held since 1790 the Mayor was obliged to hold a Court. Rex v The Steward and Suitors of the Manor of Havering Atte Bower (1822) 26 It was decided the fact that there was non-user for fifty years had not deprived them of the power of holding a Court for the recovery of debts. The side note of the report of the case says: “Held, that this Court, being for the public benefit, the words of perm ission in the charter were obligatory; and that the right of determ ining suits was not lost by non-user.” Rex v The Mayor and Corporation of Wells (1836) 27 The particular Court in question had not been held for two hundred years. There were no funds for holding the Court and no one knew the procedures. The judge, Patteson J , said: “I do not think I have any discretion on the subject. The power to hold this Court being granted by the charter, I do not think that the corporation can lay it aside m erely on the grounds of want of funds; as to length of tim e, I cannot distinguish between fifty-two years in the case cited and two hundred.” 25 Rex v May or and Jurats of Hastings (1822) (1 Dowl & Ry. 148) Rex v Stew ard of Havering (1822) (2 Dowl. & Ry 176n) 27 Rex v W ells Corporation (1836) (4 Dowl. 562) 26 Attorney General of the Isle of Man v Cowley and Kinrade (1859) 28 It was stated: “Were any Court lawfully possesses a jurisdiction for the benefit of the subject in the adm inistration of justice, it is settled that m ere non user does not take it away.” Manchester Corporation v Manchester Palace of Varieties (1955) 29 This case involved the use or misuse of a coat of arms. It was heard in front of the High Court of Chivalry which has absolute jurisdiction in such m atters. The fact the Court had not sat for two hundred years was no bar to its sitting. It is clear should a sim ilar case arise in the future the Court could again sit. Attorney General v H.R.H. Prince Ernest Augustus of Hanover (1957) 30 This is a case of the sort which is thrown up from tim e to tim e and gives im m ense pleasure to the legal theorist. The m atter arose from the Princess Sophia Naturalization Act 170 5 which provided: “..the said Princess and the issue of her body, and all persons lineally descending from her, born or hereafter to be born, be and shall be..deem ed..natural born subjects of this kingdom .” Prince Ernest Augustus sought a declaration he was a British subject by virtue of the legislation. Initially the High Court held that the statute though perhaps not obsolete, was entirely spent. The Court of Appeal held the enacting words were plain and unam biguous; “..that the fact by virtue of the passage of tim e since the statute was enacted the enacting words on their plain construction m ight lead to absurd and inconvenient results was no reason why the court should depart from the ordinary canons of construction.” 28 Attorney General of Isle of Man v Cow ley and Kinrade (1859) (12 Moore PCC) Manchester Corporation v Manchester Palace of Varieties Ltd (1955) (2 WLR 440 1955) (1 All ER 387) 30 Attorney General v HRH Prince Ernest Augustus of Hanover (1957) (AC 436) ((2 WLR 1 1957) 29 Prince Ernest Augustus got his declaration. He was a British subject. The decision of the Court of Appeal was upheld by the House of Lords. Sum m ary There are, based on the precedents quoted above, convincing argum ents that the Convocation of the Tinners of Cornwall and by extension the Great Court of the Devon Tinners still exist as legal institutions and could be sum m oned. Has the right of veto been withdrawn? Dafydd Wigley M.P. on 3 May 1977 asked the Attorney-General the following question: “..on what date and by what enactm ent the provisions of the Charter of Pardon of the twenty-third year of the reign of Henry VII was rescinded or am ended in relation to the Stannaries of Cornwall.” The Attorney General replied: “My noble friend is m aking enquiries into this m atter and will be writing to the Hon. Mem ber.”31 Mr Wigley received a reply from the Lord Chancellor, Lord Elwyn J ones, dated 14 th May 1977 which did not directly answer the questions raised. The Lord Chancellor quoted from Professor Robert Pennington’s Book “Stannary Law”32 in which Pennington pointed out that Henry VII prom ised to have the Charter ratified by Act of Parliam ent but died before he could do so. Pennington suggested in his book that the question is in abeyance as to whether the Convocation could veto a Westm inster Act of Parliam ent. It was also noted by the Lord Chancellor no doubt had ever been expressed about Parliam ent’s power to enact legislation for the Stannaries without consent of the Convocation of the Tinners of Cornwall. The Lord Chancellor then went on to say that: “no record would be noted against the original of any subsequent rescission or am endm ent.” 31 HC 32 Deb 3 May 1977 vol. 931 cc 114-5W Pennington, Prof. R., Stannary Law (1973) Vetoing a Bill of the Westm inster Parliam ent It is a principle of English Law that the Courts do not hold an Act of Parliam ent ineffective once it had been passed 33 . The view of the Courts is they are not com petent to question the regularity or propriety of an Act of Parliam ent once it is on the Statute Roll. So once an Act of Parliament had been passed it is possible that the Cornish tin interests have no legal redress before a Court despite a breach by the Crown of its obligations em bodied in the 150 8 Charter. However if a Bill were to be introduced into Parliam ent which affected the Cornish tin m ining industry the Convocation of the Tinners of Cornwall could, arguably, be sum m oned to exercise its veto. The opinion of Professor Pennington, expressed in a letter to the Daily Telegraph in 1974 was that: “..it will undoubtedly be possible for interested Cornishm en to obtain a Court order directing the Duke of Cornwall and the Lord Warden to hold a Convocation to discover whether Cornwall consents..”34 to a Bill which would affect the tin m ining interests. The Ministry of J ustice in a letter to the writer asserted as follows: “Notwithstanding any ancient prerogative instrum ents such as m edieval Royal Charters, the United Kingdom Parliam ent is sovereign and in our view m ay legislate for the Stannaries without the assent of the form er Stannary Parliam ent.”35 The Ministry also said: “Although the Stannary Parliam ent has not been “abolished” by a form al set of legislation consideration of relevant cases by District J udge Duncan Adam s som e years ago suggest any rights of the Stannary Parliam ent had been superseded by all m odern laws. The United Kingdom Parliam ent is the suprem e legislative authority and has the power to repeal or m odify any earlier statute or legislative instrum ent.” 33 Subject to the proviso contained in the Hum an Rights Act 1998 Professor Robert Pennington letter to Daily Telegraph 24 th May 1974. 35 Letter to writer from Ministry of J ustice 28 th August 20 0 8 34 When a request was m ade to see the papers relating to the consideration of District J udge Adam s the Ministry replied it did not have them . Enquiries suggest the Ministry of J ustice is referring to a case in 20 0 1 in Truro County Court whose records are not available. Conclusion There are m any who m isunderstand the application of the Convocation of the Tinners of Cornwall. It was a body which represented an industry not a population within a territory although the num ber of people who were engaged in that industry was significant. It extended, unlike the Great Court of the Tinners of Devon, over the whole of Cornwall. It also had the extraordinary right of veto which does differentiate Cornwall’s Tinner’s Parliam ent from sim ilar bodies. Its m ethods of election by the standards of today are hardly dem ocratic. However, it continues to have a resonance for som e within Cornwall. An argum ent can be constructed that it still exists as a “legal institution” although that will becom e m ore and m ore difficult to sustain as tim e passes. If a case can be m aintained that the Convocation of the Tinners of Cornwall exists then exactly the sam e logic would apply to the Great Court of the Tinners of Devon. However the question is not one of law it is one of politics. It is difficult to im agine a situation in which the Duke of Cornwall would sum m on either body. It is equally unlikely that an individual will seek an order from the Courts obliging the Duke to sum m on the Convocation and the Court would grant such an order. Although if such a case were m ounted it would be a fascinating hearing. However, for the purpose of this paper it is worth em phasising the words of Professor Pennington the Convocation of the Tinners of Cornwall “..no other institution has had such wide powers within the history of this country.” Cornwall really is in a category of its own. Bo u n d in g The purpose of this paper is to focus on that which m akes Cornwall different. Thus with regard to Bounding I would refer readers to m y book “An Introduction to the Laws of the Duchy of Cornwall, The Isles of Scilly and Devon” in which this m atter is discussed. However, since it is also possible to Bound in Devon the right which still exists is not unique to Cornwall and I will not expand further in this paper. Co r n w a ll a n d Pa la t in e Co u n t ie s “Cornw all called a county palatine..N ot in truth one…because it w anted the principal part viz an exclusive jurisdiction.”36 Introduction It is not uncom m on to see com parisons m ade between Cornwall and Palatine Counties. Indeed Deacon described the Duchy of Cornwall as: “an attenuated rum p of palatine status”37. In the dispute with the Crown regarding the right to the foreshore of Cornwall the Duchy, while acknowledging Cornwall was not a Palatine County, was anxious to dem onstrate it enjoyed m any of the sam e rights. Reference is m ade to the granting of Charters by the Duchy of Cornwall and the fact the procedure was sim ilar to those granted by Palatine Earls. Furtherm ore, the Duchy pointed out, Cornwall was classed with counties undoubtedly palatine in the Escheators Act 150 9. It was claim ed on behalf of the Duchy that Cornwall: “…was held by the Earls of Cornwall with the rights and prerogatives of a County Palatine as far as regards Seignory or territorial dom inion.”38 The Crown vigorously disputed the claim s of the Duchy to which the Duchy responded: “It is not contended that Cornwall was a County Palatine but that it was held with several rights sim ilar to those enjoyed by a Palatine Lord.”39 The questions which arise are what are Palatine Counties? What special rights did they enjoy? In what way was Cornwall sim ilar or different from Palatine Counties? What extra weight was added to the claim s of the Duchy in com paring the Duchy with Palatine Counties? A rem arkable num ber of counties have claim ed or have had claim ed on their behalf the status of a Palatine County including Kent, Lancaster, Chester, Durham , Pem broke, the Isle of Ely and Hexham and Hexham shire (a county which probably originated as one of the districts of the Kingdom of Northum bria then being the seat 36 Hale, Sir Matthew, The Prerogatives of the King (1976) p221 Deacon, B., Cornw all- A Concise History (20 0 7) p38 38 Tidal Estuaries, Foreshore and Under-Sea Minerals within and around the Coast of the County of Cornwall 1854-1856. Arbitration by Sir J ohn Patteson (1855) Duchy Prelim inary Statem ent p 7 39 Ibid Duchy Prelim inary Statement p 10 37 of a bishopric. It later lost its privileges, and became considered part of County Durham ) 40 . The three best known and m ost significant are Durham , Chester and Lancaster. The focus of this paper will be on Chester and Lancaster. The reasons being, firstly, the Earldom of Chester, like the Principality of Wales, becam e and is now one of the titles traditionally granted to m ale heirs to the throne including the present one. Secondly, because the Palatine County of Lancaster, which is part of but is not the sam e as the Duchy of Lancaster, still exists and shares m any of the characteristics of the Duchy of Cornwall. It is a substantial organisation which is not surrendered with the other “Hereditary Revenues” of the Crown. Like the Duchy of Cornwall it is also called a “private estate” both by the Crown and Governm ent. The Duchy of Lancaster was brought into being by that rem arkable innovator Edward III in 1351. The Origin of Palatine Counties There is m uch controversy over the origin, definition and status of Palatine Counties during the Norm an and Angevin periods 41. It was once argued that Palatine Counties were created during the reign of the Conqueror. It is true that the Conqueror: “…with newly won territory to hold, which was under recurrent threat of invasion, had every reason to place wide em ergency powers and am ple resources in the hands of lieutenants who guarded his frontiers. But such positions were not so exceptional as once thought. They are found not m erely on the Welsh border and in the north, but also in East Anglia and along the coastline of southern England from Kent and Sussex through Ham pshire and the Isle of Wight to Cornwall…”42 But the idea that Palatinates cam e into being during that period has now been rejected 43 . There is, it is argued, confusion between the personal power of the individual Earls and their legal-constitutional status.. It is now largely accepted it is: “futile to use the term palatinate before the reign of Henry II (1154 – 1189)”44 . 40 Hale, Sir Matthew, The Prerogatives of the King (1976) p 214 Alexander, J ., “New Evidence on the Palatinate of Chester” (Oct 1970 ) The English Historical Review Vol. 85 No 337p 716 42 Barraclough, Geoffrey, “The Earldom and County Palatine of Chester” (1951) Transactions of the Historical Society of Lancashire and Cheshire Vol CIII p 28 43 Alexander, op. cit. p 717 44 Painter, Sidney, Studies in the History of the English Feudal Barony . (1943) p15. 41 Dr. Som erville says: “A county palatine was one in which the king transferred m ost of his royal powers to the subject who possessed the county. This m easure of devolution was of particular advantage in the border counties, which m ight at any tim e be involved in raids, if nothing m ore, from warlike and predatory peoples on the other side of the line. Thus Chester faced the Welsh, and in the North Durham , and, for a tim e Hexham shire, the Scots.”45 Others are less certain, for exam ple J ean Scam m ell states: “… (Lancaster) (Durham ) and (Chester) had no com m on principle, no identity of origin or particular privilege to create or justify a peculiar status.”46 She went on to say that “an English palatinate was indeed in its beginning a term of pretension and not of definition”47. She argued that the term “palatinate” had no specific m eaning as late as 1377 when J ohn of Gaunt asked for an explanation for his Palatine County of Lancaster. Others, however, take a different view suggesting in the late fourteenth century palatinates had a clearly understood m eaning48 . Possibly the best sum m ary of the way in which Palatine Counties cam e into being was set out in Barraclough’s article of 1951 in which he says: “From Henry II’s tim e onward honour after honour disintegrated, and all that rem ained was a “shadowy collection of feudal superiorities”. But the few that “contrived to weather the storm ” adapted them selves, alm ost of necessity, to the new situation, changing their character and feeding “upon the new process of government”; for against a m onarchy conscious of new powers and striding ahead, to m ark tim e was to go under. It was in these circum stances, in Chester as in Durham , that what was later called “palatinate” cam e into being. As the suprem acy of the crown was defined and asserted, so the earl (of Chester) applied to him self “the new principles of sovereignty”, until eventually his rights m ight be defined as a regality equivalent to but under the king.”49 45 Som erville, R., “The Duchy and County Palatine of Lancaster” (1952) Transactions of the Historical Society of Lancashire and Cheshire Vol 10 3 p 59 46 Scam m ell, J ean, “The Origin and Lim itations of the Liberty of Durham ” (1966) The English Historical Review Vol 81 part 320 p 450 47 Ibid p 451 48 Alexander, J ., “The English Palatinates and Edward I” (1983) Journal of British Studies Vol 22 pt. 2 p2 49 Barraclough, op. cit. p 35 Lapsley in his definitive work on the County Palatine of Durham regards the word “Palatine” as entirely exotic until the thirteenth century50 . The term “Palatine County” was used by Matthew Paris and later Bracton 51 in the m iddle of the thirteenth century. Its first appearance in a quasi-legal record is Bracton’s notes on proceedings concerning the divisibility of the earldom of Chester in 1238. Official sources do not denom inate Chester as palatine until 129752 . The term was first used in connection with Durham , four years before in 1293 53 . It is also used in a Cheshire Plea Roll for 1310 in connection with a com m on right of liberties. It is probable that the Quo W arranto proceedings following the passing of the Quo W arranto Act 1290 , which required a person to dem onstrate by what authority they exercised som e right or power, provided a powerful stim ulus for franchise holders to review their positions hence the references which began to appear at this time 54 . The lawyers of Edward I attacked and reduced franchises and franchise holders were forced to redefine and reformulate their rights and privileges and put them on a broad foundation 55. Unlike the County Palatine of Lancaster there is no express grant of palatine status to Chester, Durham or Pem brokeshire. Their title rested on “royal acquiescence in steadily advancing prescription.”56 By contrast Bracton m aintained that since “Tim e does not run against the King”57 prescription could not give rise to a liberty only a written grant is a good warrant in his eyes 58 . It is clear that the claim s that palatinates originated with the Conqueror cannot be sustained and they em erged only m uch later. From the twelfth century cam e to be accepted as having a distinct legal personality though their precise characteristics are still debated. It also becam e apparent that palatinates differed one from another. The Characteristics and Definitions of Counties Palatine 50 Lapsley, G T., The County Palatine of Durham (190 0 ) as quoted by Tout, Margaret Com itatus Pallacii ( 1920 ) The English Historical Review Vol 35, No 139 pp 418-419 51 Tout, Margaret, “Com itatus Pallacii” (1920 ) The English Historical Review Vol 35, No 139 pp 418 419 who quotes from Bracton’s De Legibus ii 290 and Matthew Paris’ Chronica Maiora iii pp 337-338 52 Record Comm ission Placita de Quo W arranto (1818) p 714 53 Clayton, Dorothy, The Adm inistration of the County Palatine of Chester 1442 – 1485 (1990 ) p 48 See also Tout, Margaret “Com itatus Pallacii” (1920 ) The English Historical Review Vol 35, No 139 pp 418-419 who quotes from Bracton’s Note-book no 1273 p 282 54 Scam m ell, op. cit. page 451 55 Barraclough, op. cit. p 38 56 Cam , Helen, “The Evolution of the Mediaeval English Franchise” (1957) Speculum Vol 32 pt. 3 p 435 57 Nullum tem pus occurrit regi 58 Quoted in Cam :Ibid p 440 Som erville says: “A county palatine was one in which the king transferred m ost of his royal powers to the subject who possessed the county”59 . This clearly leaves a lot of questions unanswered. What royal powers exactly? Could they be exercised autonom ously or did the king exercise oversight? Others have defined palatine counties as those: “exem pt or alm ost so from royal jurisdiction”60 a description which does not takes us m uch further forward. They have also been described as: “…the exercise of regality by one who was not king”61. Holdsworth described palatinates as: “independent principalities of the continental type within which the king’s writ did not run – sm all m odels, as Bacon said, of the great governm ents of kingdom s”62 . Later Holdsworth som ewhat m odified his view. He says: “The essence of a palatine earldom was that in the county concerned the earl wielded all the king’s powers as his deputy.” He also said: “..they are bound both by acts of parliam ent and by the com m on law”. Bishop Stubbs said they were: “earldom s in which the earls were endowed with the superiority of whole counties” and “regalia or royal rights of jurisdiction were exercised by the earls”63 . Lord Coke, in his 4 th Institute published in 1644 64 describes a County Palatine in the following term s: “It is called a com itatus palatinus, a county palatine….because the owner thereof, be he duke or earl etc hath in that county jura regalia 65 as fully as the King had in his palace…The power and authority of those that had counties palatine was kinglike, for they m ight pardon treasons, m urders, felonies and outlawries thereupon. They m ight also m ake justices of eire, justices of assize, of gaol delivery, and of peace; and all original and judicial writs, and all m anner of indictm ents of treason and felony, and the process thereupon, were m ade in the nam e of the persons having such county palatine; and in every writ and indictm ent within any county palatine it was supposed to be contra pacem 66 of him that had county palatine.” 59 Som erville, R., “The Duchy and County Palatine of Lancaster” (1952) Transactions of the Historical Society of Lancashire and Cheshire Vol 10 3 p 59 60 Plucknett, T F.T., A Concise History of the Com m on Law (5 th Edition) (1940 ) pp 99, 160 61 Alexander, J ., “The English Palatinates and Edward I” op. cit. p 2 62 Holdsworth, Sir William S., A History of English Law (7th Edition revised 1956 by A L Goodhart) 1.10 9 63 Stubbs, William , The Constitutional History of England (3 rd edition) (1880 ) 1.271, 392 64 Lord Coke Fourth Institute (1644) p 20 4 65 Rights which belong to the Crown 66 Against the peace Lord Coke’s description, even though written in the seventeenth century, did not correspond with reality. The County Palatine of Lancaster specifically did not have the right to pardon treasons and m urderers. In the seventeenth century Sir Matthew Hale stated that: “The jurisdiction of a county included alm ost all other royal jurisdictions and liberties, and therefore is called regale (a prerogative of royalty) and regalis potestas (royal power). And indeed a county palatine hath a confluence of all other liberties and regalities under whose subordination before expressed to the suprem e royal power.”67 Blackstone writing in the nineteenth century found “earl’s palatine held jura regalia as fully as the king”68 . While considering the claim s about the nature of the powers of the palatinates it should be understood that kings were always jealous of their power. In connection with the palatinate of Durham , for exam ple, Edward I was perfectly prepared to sequester the palatinate whenever it so pleased the royal will69 . He stated: “…For the royal authority extends through the whole realm , both within the liberties and without” Sir Matthew Hale em phasised: “..the king doth not grant franchise against him self”70 . Post Gaines in 1964 wrote in connection with Chester: “..it was a delegation of the royal jurisdiction for the adm inistration of justice in part of the realm , and the earl rem ained subject ultim ately to the king’s power and the right to do justice and m aintain peace”71. The Statute of Westm inster of 1275 stated: “..even where the king’s writ does not run, the king is sovereign lord over all and will do right to any who com plain to him if the lord of the liberty be rem iss.”72 In sim ple term s at the local and practical level what distinguished palatinates from other counties within England and Wales? 67 Hale, op. cit. p 210 - 212 Blackstone, Sir William , Com m entaries on the Law s of England (9 th Ed 1976) p 113 69 Alexander, J ., “The English Palatinates and Edward I” op. cit. p 10 70 Hale, op. cit. p 20 4 71 Post, Gaines, Studies in Medieval Legal Thought (1964) p 280 72 Rothwell, Harry, English Historical Docum ents 1189-1327 (1975) pp 40 1-40 2 68 By a Charter dated 28 th February 1377 the county of Lancaster, as part of the Duchy of Lancaster, was m ade a County Palatine “as freely as the Earl of Chester enjoyed in his county of Chester”73 . It therefore seems sensible to start by considering the Palatine County of Chester since supposedly it provided the exem plar for Lancaster. The palatinate of Chester arose by “prescription” - there is no founding Charter as with the palatinate of Lancashire. Cheshire was not represented in the Westm inster Parliam ent until 1543 and as a consequence claim ed exem ption from taxation im posed by Parliam ent. As far back as the reign of Edward I the king appeared to “request” rather than “dem and” the paym ent of taxes voted by the national parliam ent 74 . Cheshire also enjoyed its own exchequer and chancery and register of writs and the privilege of return of writs. It should be noted, however, “..even a liberty with return of writs is nevertheless a place where the king’s writ runs”75. More specifically Cheshire would seem to have been fiscally independent since it does not appear on the Pipe Rolls save when the Earl was a m inor in the king’s wardship. This absence, however, was not lim ited to palatinates, Cornwall was also absent from the Pipe Rolls 76 . It would appear the Cheshire barons were free from obligation to serve outside their county77 though this was not unique to Cheshire: the Barons of Durham and the Marches enjoyed a sim ilar privilege 78 . This benefit had becom e m eaningless, in any event, by the end of Edward I’s reign when arm ies were no longer raised by calling on the service of tenants by knights-service 79 . It is the case the Barons in Cheshire held of the earl and not of the king. The Earl of Chester declared he had “pleas of the sword” in his court.80 For Lucian the m onk writing about 1195: “Chester was a province...with privileges which it distinguished from the rest of England…it attends rather to the sword of its prince than to the royal crown..”81 73 Hardy, Sir William , The Charters of the Duchy of Lancaster (1845) p 32 Clayton, op. cit. p 47 75 Plucknett, T. F.T., The Legislation of Edw ard I (1949) p 30 76 Painter, Sidney, Studies in the History of the English Feudal Barony (1943) p 112 77 Barraclough, op. cit. p 36 78 Alexander, J ., “New evidence on the Palatinate of Chester” op. cit. p 723 79 Booth, P. H. W., The financial adm inistration of the lordship and county of Chester 1272 – 1377 (1981) p 6 80 Cam , op. cit. p 435 81Taylor, M. V., (Ed) “Liber Luciani de laude Cestrie” (1912) Record Society Lancashire and Chester Vol LXIV pp 9, 77 74 It is suggested “pleas of the sword” indicated that the Earl’s rights had been acquired by conquest and could not be rem oved by any king82 . Royal authority in Cheshire was exercised through the m ediacy of the earl. Most significantly the earl or his officials presided over the county courts; itinerant justices were excluded, writs ran in the earl’s nam e; and the Sheriff was appointed by the earl and was not a royal official. Again these features were not unique to Cheshire they were also true of the m arches 83 . The law they enforced, however, was statute and com m on law. Because Cheshire was not represented in Westm inster did not m ean they were not bound by the laws passed by that body. A Charter of 1351 created Henry de Grosm ont Duke of Lancaster of the palatinate of Lancaster. The gift bestowed on Henry his own writs, chancellor, chancery and seal. He was granted his own justices to try pleas of the Crown as well as other pleas under com m on law. At the sam e tim e it reserved certain taxes and subsidies to the crown. Most im portantly, in contrast to Durham and Cheshire, it retained for the crown the right to pardon life and lim b (that such judgem ent was taken by Bracton and Blackstone to be the benchm ark of a palatinate 84 ) and the right to correct errors in the palatinate court. Unlike Cheshire and Durham Lancashire was required to send representatives to Parliam ent. Taxes were collected by the ducal officials but they rem ained royal taxes. The 1351 Charter was granted to Henry for life and not to his heirs. The Earldom and Palatine County of Chester The Earldom of Chester dates from 10 70 or perhaps 10 71, four or five years after the Conquest, when the title was granted to the nephew of the William I, Hugh Lupus. Until 1237 the title was in the possession of a succession of Norm an lords 85. The penultim ate earl was Ranulph de Blundeville, who died in 1232. Ranulph died without issue so the title escheated to the Crown. However, he was succeeded by Earl J ohn of Scotland, the m ale heir of the eldest sister of Ranulph after confirm ation by the king of his entitlem ent. J ohn died in 1237 and the earldom was annexed to the Crown. In 1254 Henry III granted the county to his son. In 130 1 Edward of Caernarfon (later Edward II) was m ade earl of Chester. Henceforth Cheshire was to 82 Lyon, Ann, Constitutional History of the United Kingdom (20 0 2) p 68 Alexander, J ., “New evidence on the Palatinate of Chester” op. cit. p 723 84 Bracton De Legibus (Ed Woodbine (1915) ii 346 Blackstone Com m entaries (1st edn 1765) I 113 - 114 85 Clayton, op. cit. p 51 83 be in the hands of the crown or the heir apparent. For exam ple, during the 10 5 years from 1272 until 1377 for about forty years the Earldom was in the hands of the crown and for half the period 1442 – 1485 there was no earl. It should be noted when there was no earl the king never used the title Earl of Chester. It is im portant to understand that the County Palatinate of Chester form ed part of a greater unit: the “honour” of the earldom of Chester. An “honour” was created when the lordship of a m anor existed over a num ber of m anors 86 . The “honour” of the earldom of Chester stretched into twenty or m ore counties of England and across the Channel into Norm andy87. The earldom of Chester included the Palatine County of Chester but was not the sam e as the palatinate. It was under Ranulph that the palatinate of Chester cam e into being. He claim ed: “pleas of the sword”, first m entioned in his great Charter of Liberties of 1215 or 1216. He also provided a register of original writs. He created an exchequer and advanced his powers of taxation 88 . A num ber of other privileges enjoyed by Cheshire have been noted above. It is the case, however, the precise origins and purpose of its creation as a county palatine “rem ain obscure”89 . Barraclough claim ed: “If Cheshire survived as a unity, and was subsequently transform ed into a palatinate and held together by a palatinate adm inistration, it was because the crown in its own interest decided it would survive….the Charter of Liberties of 1215 or 1216 soon becam e to be treated as a constitutional guarantee…”90 In 130 0 when Edward I confirm ed and am plified Magna Carta he issued a confirm ation of the liberties granted in the Charter of 1215 or 1216. Chester, like Lancaster, had its own autonom ous courts and officers of justice with chief justices. It is not clear when Cheshire first acquired its court of com m on pleas. Certainly by the late m edieval period the Cheshire county court possessed a com m on law jurisdiction and had com petence over all civil and crim inal actions in the County and was able to review decisions of lesser courts 91. The King’s Bench could and did exam ine cases of error in the Cheshire Courts 86 Halsbury’s Laws of England Volume 39(2) Land and Interests in land section 75 Barraclough, op. cit. p 34 88 Barraclough, op. cit. p 36 89 Driver, J .T., Cheshire in the Later Middle Ages (1971) p 5 90 Barraclough, op. cit. p 41 91 Holdsworth, op. cit. p 119 87 Chester had its barons of exchequer whose duties included levying debts, securing paym ent of arrears and eliciting profits from escheated land, as well as from pleas, fines, am ercem ents, redem ptions, recognizances and all other profits of justice 92 . They had, in addition a num ber of other officials including escheators and m ost significantly the Sheriff “probably the m ost im portant officers in the protection of royal interest at local level”93 . The Tudor period saw the Palatinate of Cheshire brought into “belated conform ity with the rest of England”94 . Henry VII had revived the quo w arranto 95 proceedings m uch m ore vigorously than his predecessors. The J ustice of the Peace (Chester and Wales) Act had been passed in 1535 (repealed by the J ustices of the Peace Act 1968 and Courts Act 1971) by which the appointm ent of justices was taken out of local hands. More significantly perhaps the Act secured the control of the Star Cham ber over Cheshire as over any other county. The J urisdiction of Liberties Act also of 1535 provided that the only writs to run throughout the realm were those of the king. By Chester and Cheshire (Constituencies) Act 1542 both the county and city were granted representation in Parliam ent. All that rem ained of the palatine status were the palatine courts expressly retained under the 1535 Act. But they no longer spelt im m unity from but were sim ply an alternative form of application of the law com m on to the whole country96 . The courts were eventually abolished by the Law Term s Act 1830 . The Duchy and County Palatine of Lancaster On 6 March 1351 Edward III erected Lancashire into a County Palatine in favour of Henry97 fourth earl of Lancaster. On the sam e date Henry was created Duke of Lancaster. The Duchy of Lancaster was only the second English Dukedom to be created. The title and palatinate were just for Henry’s lifetim e and lapsed on his death in March 1361. J ohn of Gaunt, son in law of Henry and son of Edward III was created Duke of Lancaster in Novem ber 1362 but palatine rights were not granted to 92 Worthington, P., Roy al Governm ent in the Counties Palatine of Lancashire and Cheshire 1460 – 150 9 (1990 ) Thesis (Ph. D.) University College Swansea 93 Ibid 94 Stewart-Brown, R., “The Cheshire writs of Quo Warranto in 1499” (1934) English Historical Review Vol XLIX p 679 95 “By what warrant” – A prerogative writ obliging a person to show by what authority they hold som e right power or franchise 96 Barraclough, op. cit. p 45 97 The grandson of Edm und, the first earl of Lancaster to whom the county had been given by Henry III in 1267 him until 28 th February 1377. Again the grant was for his lifetim e only until it was converted on 16 th February 1390 to a grant to include “heirs’ m ale”98 . In this way the Duchy and palatinate cam e to J ohn of Gaunt’s son Henry of Bolingbroke who cam e to the throne as Henry IV in October 1399. Henry IV: “…caused a charter to be passed, sanctioned by Parliam ent, ordaining that the Duchy of Lancaster…should rem ain to him and his heirs forever; and should rem ain, descend, be adm inistered, and governed in like m anner as if he never attained the regal dignity.”99 There has been m uch debate about whether that County Palatine and Duchy of Lancaster should vest in the “natural” heirs to Henry IV as opposed to the “political” heirs as m onarchs 10 0 . Fascinating though the discussion is it is outside the scope of this work. It is now generally agreed, and recognised by Acts of Parliament, for exam ple Taxation Act 170 2, that there is a union of the Duchy and the Crown in the sam e person but it is an inheritance separate from the Crown 10 1. The Duchy becam e and rem ains part of the Crown’s landed possessions. For the avoidance of doubt, it should be understood the Duchy of Lancaster is an “honour” or com plex of estates and owns 18,80 0 hectares of land in England and Wales 10 2 , which includes the County Palatine of Lancaster. Although the Duchy of Lancaster incorporates the County Palatine of Lancaster the two are distinct 10 3 . As already noted the Palatine County of Lancaster was based on the Chester m odel but with significant differences. The Charter of 1351 reserved to the king the right to correct errors in the Duke’s court, to pardon life and lim b and the right of direct taxation. Lancashire, unlike Chester, also had to find “knights of the shire and burgesses for parliam ent”10 4 . The m ain consequence of the Charter was that writs within the County Palatine of Lancaster ran in the Duke’s nam e which m eant the adm inistration of justice was in the Duke’s hands. Lancaster, like Chester, was outside the usual system of legal procedures and jurisdiction operative in the other 98 Som erville, op. cit. p 59 Hardy, op. cit. p x. See also A. G. of the Duchy of Lancaster v Duke of Devonshire (1884) 13 QBD 195 at 197) (4 Co Inst 20 5) 10 0 The m atter was discussed in Duchy of Lancaster Case (1561) (1 Plowd 212) (75 ER 325) (All ER Rep 146) and Alcock v Cooke (1829) (5 Bing 340 at 352, 354) 10 1 Hardy, op. cit. p xii 10 2 Duchy of Lancaster Accounts 20 0 9/ 10 10 3 Halsbury’s Laws of England Vol 12(1) 30 2 Extent of the Duchy of Lancaster 10 4 Som erville, op. cit. p 60 99 shires of England having, for exam ple, their own chief justice. The Chancellor of the Duchy of Lancaster was also Chancellor for the County Palatine of Lancaster. Like Cheshire, Lancaster had its Barons of Exchequer whose functions were sim ilar to those already outlined. The High Sheriffs for the County Palatine, which today includes Lancashire, Greater Manchester and Merseyside, were and are appointed by the m onarch in right of the Duchy of Lancaster 10 5. As with Cheshire the Duke appointed his own escheator, bailiffs, stewards, m aster forester, deputy m aster foresters and coroners 10 6 . The Duchy of Lancaster also has its own Attorney General whose rights, in the nineteenth century were not as extensive as those of the Attorney General of the Duchy of Cornwall. In The Attorney General of the Duchy of Lancaster v The Duke of Devonshire (1884-85) 10 7 it was decided: “It is not com petent to the Attorney General of the Duchy of Lancaster to exhibit an inform ation in the High Court of J ustice, and the court will order an inform ation exhibited by him to be taken off the file on the application of the defendant even after answer put in by the defendant.” By the J udicature Act 1873 the Lancashire Court of Com m on Pleas was absorbed into the Suprem e Court. The Lancashire Chancery Court continued to operate. By the Courts Act 1971 the Chancery Court of the County Palatine of Lancashire was m erged with the High Court. The position of the Duchy of Lancaster in relation to the crown was sum m arised in Alcock v Cooke (1829) 10 8 as follows: “Although the King holds lands as Duke of Lancaster, he holds them as King also; and the prerogatives and privileges of the King belong to him with reference to those lands, as they do with respect to those which belong to him im m ediately in right of his Crown; therefore, a grant under the Duchy seal is subject to all the incidents of a grant from the Crown.” Halsbury’s Laws of England 10 9 explains it thus: 10 5 Halsbury’s Laws of England Volum e 42 The Office of Sheriff para 110 5 Jew ison v Dy son (1842) (9 Meeson and Welsby 540 ) (152 E R 228) 10 7 The Attorney General of the Duchy of Lancaster v The Duke of Devonshire (1884-85) (L.R. Q.B.D. 195) 10 8 Alocock v Cooke (1829) (5 Bing 340 ) (130 ER 10 92) (All ER Rep 497) 10 9 Halsbury’s Laws of England Volume 12(1) 7 Crown Private Estates 354 Application of the prerogative 10 6 “At com m on law the general rule appears to be that the prerogatives of the Crown applicable to estates vested in the Crown as a body politic in right of the Crown extend to private estates vested in the m onarch in her natural capacity; 110 and that since the law attributes to the body natural of the m onarch all the qualities of her body politic, the latter estates can only be dealt with subject to the sam e incidents and form alities in general as the form er.” The Duchy of Cornwall, the Palatine County of Chester and the Duchy and Palatine County of Lancaster – Sim ilarities and Differences Sim ilarities between the Duchy of Cornwall and the Earldom of Chester include the fact, for exam ple, both titles associated with the m ale heir to the throne. The difference is that the Duke of Cornwall becom es autom atically Duke upon birth providing he is the eldest living son of the reigning m onarch or upon his parent becom e sovereign. The Earldom of Chester is a new creation on each occasion. The Duchy of Cornwall, like Earldom of Chester once was and the Duchy of Lancaster is still, a great honour with lands in m any counties in England and Wales. Like the Duchy of Lancaster with its special position in relation to the County Palatine of Lancaster the Duchy of Cornwall has a special relationship with Cornwall. Cheshire’s fiscal independence was indicated by its absence from the Pipe Rolls from which Cornwall was also absent. Like Lancaster and Chester the High Sheriff for Cornwall was a com ital appointm ent rather than a regnal one. Cornwall also had its escheators, havenors, bailiffs and so on. Cornwall enjoyed return of writs. Like Lancaster, but unlike Chester, it returned M. P.s to Parliam ent and was subject to royal taxation. The differences are, of course, that writs in Chester and Lancaster were issued in the nam e of the Earl and the Duke respectively. This was not the case in Cornwall. In addition the Palatine County of Lancaster and Cheshire had their own courts, abolished in 1830 and 1971 respectively. The Duchy of Cornwall m ay have controlled the Courts but they were always the king’s courts and it was the king’s writs they enforced. In practice there was very little difference, the sam e com m on and statute law applied whether in Cornwall, Chester or Lancaster. 110 Duchy of Lancaster Case (1561) (1 Plowd 212 at 213, 222) The Duchy of Cornwall was responsible for the Stannaries. Chester and Lancaster had nothing com parable. The Stannaries extended over the whole of Cornwall and the Stannary towns of Devon. They included the Great Court of the Tinners of Devon and the Convocation of the Tinners of Cornwall. The latter body having, by a Charter of 150 8, the power to veto Westm inster Laws detrim ent to its interest. The Stannaries of Cornwall included a system of taxation called “coinage”. There was also a system of Stannary Courts, in which the com m on law did not run and from which there was no appeal to the “courts of England”. These courts continued until 1896, sixty six years after the Chester Courts were abolished and twenty three years after the Lancaster Court of Com m on Pleas was m erged with the Suprem e Court. The Lord Warden of the Stannaries had the right, indeed obligation, like the Lords Lieutenant of counties, to sum m on a m ilitia of tinners if that was necessary. With the abolition of the Lancaster Chancery Courts it is difficult to identify any significant differences between the Duchy of Lancaster’s relationship with the County Palatine of Lancaster and the Duchy of Cornwall’s relationship with Cornwall. The Royal Duchies are each adm inistered by Councils to whom various officers are appointed including, for exam ple, an Attorney General. In both cases the Duchies appoint the Sheriff; they both enjoy the right of royal fish and right of wreck. The entitlem ent to bona vacantia and escheat is com m on to both as is Crown Im m unity, an advantageous tax position, and the right to be consulted on legislation affecting their interest. The Royal Duchies are not, like the other Hereditary Revenues of the Crown, surrendered to the Crown Estates. Both are described by the Crown, them selves and governm ent as “private estates”. The substantial difference is the Duke of Lancaster is always the m onarch while the Duchy of Cornwall is som etim es in the hands of a Duke and som etim es in the hands of the Crown. Conclusion The Duchy of Cornwall in the nineteenth century and beyond tried to enhance the status of the Duchy of Cornwall and Cornwall itself by m aking com parisons with palatinates. They were based on the perception of Palatine Counties which followed from the definition of Lord Coke and others. It is clear that in one crucial respect Lord Coke was wrong. A num ber of franchises em erged in m edieval England som e survived and m ost did not. It is true Cornwall was only once called a Palatine County wrongly according to Matthew Hale 111 because it lacked “an exclusive jurisdiction”. It did not, for exam ple, possess its own courts, its writs were issued in the King’s nam e and there was no central register of writs. Balanced against this the Duchy of Cornwall controlled the Stannary system . It also, while asserting it is part of the Crown, vigorously worked to m aintain it was distinct from the Crown whose interests did not always coincide with those of the Duchy. It is understandable why the position of Cornwall should be com pared with Palatine Counties. There are sim ilarities but equally significant differences. So while it is possible to com pare the Palatine Counties of Lancaster, Durham and Cheshire Cornwall stands alone. Co r n w a ll a n d Cr o w n D e p e n d e n cie s There is one of the Crown Dependencies which has, in m y view, significant sim ilarities with Cornwall and that is Sark. Sark has belonged to the Crown since the tim e of William the Conqueror as was the Earldom of Cornwall. In 1565 Queen Elizabeth I granted a fief, an estate held on condition of feudal service, to Helier de Carteret setting out its constitution by way of Letters Patent. The holder of the fief is the Seigneur (or Lord of Sark) who holds the fief of Sark from the Crown in perpetuity and is the civic head and representative of the Island. In other words the ownership of the land of Sark is sim ilar to that of the ownership of Cornwall and the Lord of Sark occupies a position, som e argue, sim ilar to that occupied by the Duke of Cornwall. Equally while the Duchy of Cornwall and its rights were established by a Charter of 1337 the rights and obligations of Sark were established by way of Letters Patent in 1565. In both cases the rights are granted in perpetuity112 . The position of Lord of Sark is, like that of the Duchy of Cornwall, hereditary. Sark is not part of the United Kingdom nor is it a sovereign state. It has never been represented in the United Kingdom Parliam ent which does not legislate on behalf of Sark without first obtaining the consent of Sark’s adm inistration. Her Majesty is Queen of Sark. Sark is part of the Bailiwick of Guernsey and, except in m atters of 111 Hale, op. cit. p 221 Vide Rot. Parl. 38 H. 6, n.29 Crowe, Belinda Adm inistrative and Executive Support Arrangem ents for the Governm ent of Sark (20 12) w w w .gov.sark.gg/ dow nloads/ Reports/ Belinda_ Crow e_ Report.pdf 112 crim inal law; Guernsey can only legislate for Sark with its consent. In effect Sark has a right of veto over legislation sim ilar to that of the Convocation of the Tinners of Cornwall. As an independent self-governing territory Sark has its own legislature, judicial system and adm inistration. The Sovereign acts on behalf of Sark through the Privy Council. The J udicial Comm ittee of the Privy Council is Sark’s final appellate court. The Stannaries of Cornwall had its own legislature, judicial system and adm inistration which, ultim ately, were also answerable to the Privy Council. The Lord of Sark does have the power to tem porarily veto Ordinances of the Chief Pleas (the Sark Parliam ent) in the sam e way the Duke of Cornwall can refuse to assent to Acts of the Convocation of the Tinners of Cornwall. Co r n is h La n g u a g e / Co r n is h Id e n t it y I have nothing to add to that which has already been written. Suffice to say the Cornish Language was recognised officially in 20 0 3 under the European Charter for Regional or Minority Languages. In addition the Cornish have been recognised under the European Fram ework Convention for the Protection of National Minorities as are the United Kingdom ’s other Celtic people, the Scots, the Welsh and the Irish. It is difficult to identify any other part of En gland in which sim ilar recognition applies. Th e Fla g o f St P ir a n Finally on a personal note I once conducted a sem inar in which I asked m y audience if they could recognise the flags of England Wales and Scotland. I also asked if they could recognise the Flag of St Piran. The overwhelm ing m ajority of m y English audience could. I then asked how m any could recognise their county flag and they could not by and large. In no part of England do you find the County Flag displayed so prom inently as you do in Cornwall. No other “county” flag achieves such recognition. Cornwall really is in a Category of its own. Dr J ohn Kirkhope J une 20 15