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This copy of the thesis has been supplied on condition that anyone who consults it is understood to recognise that its copyright rests with its author and that no quotation from the thesis and no information derived from it may be published without the author’s prior consent. “THE DUCHY OF CORNWALL – A FEUDAL REMNANT?” “An examination of the origin, evolution and present status of the Duchy of Cornwall” by JOHN KIRKHOPE Notary Public/Chartered Insurer A thesis submitted to the University of Plymouth in partial fulfilment for the degree of: DOCTOR OF PHILOSOPHY Plymouth Law School Plymouth Business School 2013 John Kirkhope “The Duchy of Cornwall – A Feudal Remnant?” “An examination of the origin, evolution and present status of the Duchy of Cornwall” ABSTRACT This thesis conducts a legal analysis of the Duchy of Cornwall and how its perceived status has changed over the centuries. The roots of the Duchy date back nearly a thousand years therefore an understanding of the roots of the Duchy and its evolution, focussing on the significant legal issues, over time is necessary to comprehend its present position. The thesis concludes by exploring issues surrounding the contemporary legal status of the Duchy and identifies areas in which there is a convenient ambiguity. In doing so it establishes that while the Duchy and Government describe it as a “private estate” it enjoys privileges and rights which are unique to a “private estate”. In addition it has a significant role in supporting the United Kingdom’s Head of State, the Sovereign, and the heir to the throne. The associated research undertaken in connection with this thesis presents new information which challenges the arguments of those who claim via the Duchy a special constitutional status for Cornwall. The evidence also suggests that the Duchy is not, despite claims to the contrary, publicly accountable in way that is expected in the 21st Century. The possibilities suggested by the Freedom of Information Act 2000 have been utilised and the experience gained will be of value to future researchers. As a consequence of the refusal of public authorities to provide information five complaints have been made to the Information Commissioner and there have been, at the time of writing, four cases in front of the First Tier Tribunal (Information Rights). The material contained within the National Archives has been comprehensively investigated for the first time by anyone with any interest in the Duchy. This has revealed significant new information which although publicly available was not generally known and casts new light on the status of the Duchy. An exploration of the Parliamentary Archives, not previously undertaken, raises questions about the basis of the privileges enjoyed by the Duchy. A similarly detailed review of the legal material, including important court cases challenges the “rights” claimed for the Duchy. i ii LIST OF CONTENTS Acknowledgements Page x Summary xiii Introduction 2 A Methodology 7 B Literature Review 14 C Conclusion 21 PART 1 The Origin and Evolution of the Duchy Chapter 1 - Background to the Creation of the Duchy of Cornwall 1066 – 1337 24 A Introduction 24 B Cornwall and the Anglo-Saxons 24 C Cornwall after the Conquest 27 D The Creation of the Duchy 36 E Conclusion 40 Chapter 2 - The Creation of the Duchy of Cornwall 42 A Introduction 42 B Charter of Creation 17th March 1337 42 C Charter 18th March 1337 45 D Charter 3rd January 1338 46 E Charter 9th July 1343 46 F The Charters – A “re-collection of dismembered rights” 47 G The Duke to be “maintained in a manner becoming the nobility of his race” 48 H “..the Duke was quasi-sovereign within his Duchy” 50 iii I “the Duke is Seigniorial Lord of the Entire County” 52 J Conclusion 54 K “The strange species of inheritance” 55 L “..to the same forever remain..” 60 M Conclusion 60 Chapter 3 - The Duchy of Cornwall 1337 – 1837 62 A Introduction 62 B 1337 – 1376 - The Government of the Black Prince 62 C 1376 – 1485 – York and Lancaster 66 D The Prince’s Council 67 E 1485- 1603 – The Tudors 68 F 1603 – 1714 – The Stuarts 75 G 1714 – 1837 – The Hanoverians 79 H The Stannaries 85 I Conclusions 85 Chapter 4 The Duchy of Cornwall – From Queen Victoria to Prince Charles A Introduction 87 B The Accession of Queen Victoria 88 C The Twentieth Century 113 D Prince Charles – Duke of Cornwall 1952 – date 118 E Conclusion 121 Chapter 5 - The Stannaries 124 A Introduction 124 B Miners and Mining Law 125 C The Origins of Stannary Law 127 D The independence of the Stannary System 130 E Territorial Jurisdiction of the Stannaries 130 F Who were tinners within the jurisdiction of the Stannaries? 131 iv G Stannary Law – Extent of Jurisdiction 133 H Bounding 135 I Coinage 136 J The Convocation of the Stannaries of the Duchy of Cornwall 137 K Conclusion 141 L Does Stannary Law have any modern application? 141 M The Revised Cornish Stannary Parliament 147 N Conclusion 148 PART 2 The Present Status of the Duchy of Cornwall Chapter 6 - The Management and Legal Status of the Duchy of Cornwall A Introduction 151 B The Prince’s Council 151 C The Officers of the Duchy of Cornwall 151 D Treasury Control 154 E Management during vacancy 156 F Management during minority of the Duke of Cornwall 156 G The Duchy a legal entity? 156 H Conclusion 159 Chapter 7 - The Duchy of Cornwall – A Private Estate A Introduction 161 B Private Estate – Background 162 C The Duchy of Cornwall and the Civil List 165 D The Duchy of Cornwall – A Private Estate – Initial Considerations 167 E The Duchy of Cornwall and its Public Administrative Functions 172 v F Crown Private Estate Acts 176 G Conclusion 179 Chapter 8 - A Extraordinary Private Estate 182 A Introduction 182 B “The Duchy is not Cornwall and Cornwall is not the Duchy” 182 C Right to the Isles of Scilly 189 D Right to foreshore of Cornwall, fundus and mines and minerals under the foreshore and fundus of the riverbed 192 E Right to search for and work mines in accessionable manors 192 F Right to Mines Royal? 193 G Right to Escheat 195 H Right to bona vacantia 198 I Right to Royal Fish 199 J Right to wrecks 200 K Right to Treasure Trove 201 L Right to “Prick” or appoint High Sheriff of Cornwall 201 M Right to summon the Convocation of the Tinners of Cornwall 201 N Right to “present clerical livings” 202 O Rights applicable to the solicitor to the Duchy of Cornwall and the Attorney General to H.R.H. the Prince of Wales; Duke of Cornwall 202 P The right of the Prince of Wales, Duke of Cornwall to be represented by his own Attorney General 203 Q Right not to pay tax 203 R Right to Crown Immunity 203 S Right of the Prince of Wales as Duke of vi Cornwall to give consent to Parliamentary Bills in relation to interests of the Duchy of Cornwall 203 T Right of the Duchy not to be extinguished for want of a Duke 203 U Conclusion 203 Chapter 9 - The Duchy, Parliamentary Usage, Crown Immunity and Taxation 206 A Introduction 206 B The Constitutional Position of the Prince of Wales 206 C The Prince of Wales’ Consent 208 D The right to be consulted 213 E The Criteria for Consultation 217 F Conclusion 218 G The Duchy and Crown Immunity 220 H Conclusion 226 I The Duchy of Cornwall and Taxation 230 J Conclusion 234 Chapter 10 - Conclusions 236 A Introduction 236 B Cornish Distinctiveness 236 C Conclusions 244 D Other Issues Arising 244 E Conclusions 249 F Recent Controversies 249 Appendix A The Earls and Lords of Cornwall from 1066 to the Creation of the Duchy 253 Appendix B The Dukes of Cornwall 256 Appendix C Charters of the Earldom and Duchy of Cornwall 260 Appendix D The Cornish Stannary Charters and Resolutions of the Privy Council 298 vii Appendix E Cornwall and Palatine Counties 314 A Introduction 314 B The Origin of Palatine Counties 316 C The Characteristics and Definitions of Counties Palatine 319 D Summary 323 E The Earldom and Palatine County of Chester 324 F The Duchy and County Palatine of Lancaster 327 G The Duchy of Cornwall and the Palatine County of Chester and the Duchy and Palatine County of Lancaster 330 H Conclusion 331 Appendix F Articles of Agreement Between Crown and Duchy of Cornwall 1620 334 Appendix G Law Officers Opinion regarding Mines Royal 1860 339 Appendix H Board of Inland Revenue Instructions and Law Officers Opinion 1913 341 Appendix I Copy Papers From TNA T 160/632 - “Royal Family Civil List in relation to the hereditary and temporary revenues of the Crown” 362 Appendix J Information Commissioners Decision Notices – FER03800352 – Dept. of Environment, Food and Rural Affairs; FS50381429 – Dept. of Transport; FS50387051 – Dept. for Business, Innovation and Skills; FS50423025 – Cabinet Office and FS50444734 – HM Revenue & Customs 365 Appendix K Copy correspondence between Department of Communities and Local Government – Local Democracy, Economic Development and Construction Bill Copy correspondence between Department of Transport and Duchy of Cornwall – Marine Navigation Aids Bill Copy correspondence between Department Environment, Food and Rural Affairs and Prince of Wales – Marine Bill Copy correspondence between Department of Business Innovation and Skills and Royal Household – Apprenticeships Bill 382 viii 400 Appendix L Office of Parliamentary Counsel “Queen’s or Prince’s Consent” “Crown Application” 436 Appendix M First Tier Tribunal John Kirkhope v Information Commissioner and National Archives (EA/2011/0185) 497 Bibliography 529 List of Statutes, Cases and Information Commissioner’s Decisions 548 ix ACKNOWLEDGEMENTS The Duchy of Cornwall attracted me initially because its study allowed me to combine two of my passions that of history and the law.