Written by John Angarrack, what follows is the unabridged version of an article that appeared in the Western Morning News over two days [19th and 21st November 2011].
Recent media disclosures[i] concerning the little know rights and powers of the Duke of Cornwall only touch the surface of this secretive constitutional arrangement. While it has been correctly stated that the duke has the right to veto Westminster legislation, there is more to this than meets the eye.
The fact that the duke has the right to veto legislation is a reflection of parliaments inability to freely legislate in respect of the Duchy of Cornwall. In essence, the Duchy of Cornwall is, in many respects, extra-jurisdictional to the UK Parliament. Barrister David Gollancz writes, “The duchy exercises a unique range of legal powers, which elsewhere are reserved for the crown (in other words, the government)”[ii]. This remarkable situation stems not just from the formal elevation of Cornwall into a duchy in 1337/38, but also from a time much earlier.
The sheriff is the monarchs regional representative. Since time out of mind the monarch has carefully selected his or her own sheriff in counties of England and Wales. Except that is in Cornwall where the duke appoints his own sheriff to represent his own interests. The impression is always given that this situation arises from the Duchy Charters of 1337/38. It does not. The Westminster Patent Roll of 28th Jan 1221 records the right of Cornwall to select its own sheriff; and the first duchy charter states, “the dukes can exercise their right to appoint a sheriff without interference from us, as has always been the right of that region”. In this respect, the charters merely affirm an existing situation.
Bona Vacantia [vacant land] is the right to claim the property of insolvent companies and the estates of people who die without heirs. It is not some archaic concept. It is the basis of modern land law. When Bona Vacantia occurs today, the property falls, or in the case of insolvent companies, escheats, to the absolute owner, usually HM Government. Except that is in Cornwall, where Bona Vacantia falls to the duchy. Again the impression is given that this important difference arises solely from the charters of 1337/38.
When the Office of the Royal Escheator was established in 1230, its purpose was to take control of, and centralise into the monarchs hands, the lucrative process of Bona Vacantia. It was but one part of the process of building the English nation state. However, in Cornwall, this process was resisted. The records of the 1284 Launceston Eyre[iii] show the Earl of Cornwall’s advocate asserting that his liege lord, “holds Cornwall above the King, and has the office of Escheator throughout Cornwall, so that the Escheator of the King shall not intermeddle in anything belonging to the Sheriffdom of Cornwall”. In that same record we hear the King’s advocate stating how, “Edmunds Stewards or Bailiffs will not admit any writ of the King concerning the Escheatory” before revealing what he had been told as he entered Cornwall, “The vice-comitatus of Cornwall has custody of the escheats, not any foreign escheator of the King “. This constitutional tension remained until the king formally accepted the situation via the charters of 1337/38.
Although kings of England did at times exercise jurisdiction over Cornwall, the origins of the present duke’s many rights, and Cornwall’s unique constitutional status, are not reliant upon a grant from Westminster. If this was the case, it could be argued that the Duke in right of his Duchy holds Cornwall in fee simple only, with Westminster as absolute owner. We will shortly see that this cannot be the case.[iv]
The three Duchy Charters formalised and clarified what had been a fluctuating legal situation. The 1st charter created a duke and confirmed that the shrievalty, or governance, of Cornwall lay in his hands. The 2nd and 3rd Duchy Charters acknowledged that the king’s writ did not run in the duchy, and that the English Summons of Exchequer did not apply to the duchy.
This is why today, for example, Section 153 of the Natural Environment & Communities Acts states that the duke has immunity from prosecution in HM Courts. It is also why the duke cannot be summoned to pay income tax to HM Government. He is, for all intents and purposes, quasi sovereign of Cornwall. It is also why the 1988 Boundary Commission report by Assistant Commissioner G.D. Flather Q.C. into the proposed Cornwall and Plymouth European Parliamentary Constituency could only record Cornwall’s, “de facto, if not de jure joinder with England”.
The Duchy Charters explain the absence of full legal joinder with England. Even a cursory examination will reveal that both the governance and legal identity of Cornwall lie within the jurisdiction of the Duchy of Cornwall, which itself, for many purposes, remains extra-jurisdictional to the UK Parliament. Therefore in a strictly legal sense, Cornwall is not a county of England but an administrative entity falling within the Duchy of Cornwall. Although for public consumption today both the duchy administration and HM Government insist that the duchy is merely a ‘private estate’, in private, the duchy is not so reluctant to assert its true origins and constitutional status – particularly when its rights and profits are at risk.
For a number of years, leases had been sold to work mines in and around Cornwall’s foreshore for which the ownership of the associated minerals was contested. In time, a substantial sum of money had accumulated in a joint Duchy/Westminster, Coutts and Company bank account. Matters came to a head in 1855 after simmering claim and counter claim exploded into a bitter and unprecedented territorial dispute between the Government of the Duchy of Cornwall and the Government of the United Kingdom of Great Britain and Ireland.
The legal status of Cornwall’s rivers, tidal forsehore and sea beds, which were not specifically mention in the charters, had, over time, been assumed to be part of the territorial possessions of the Duchy of Cornwall. As these areas began to generate substantial wealth, they were increasingly eyed with envy by Westminster. In order to resolve the matter it was necessary to enter into an arbitartion process to discover which party retained jurisdiction.
Westminster insisted that it had presumptive title to the disputed territory. For its part the duchy asserted that Westminster had no dominion, jurisdiction or other claim over the land, that only it had presumptive title and that it held the land as part of its existing territorial possessions both by historic right and by Parliamentary Act. The duchy then invoked Cornwall’s separate de jure legal status as evidence of jurisdiction:[v]
“In conclusion, it is submitted that the facts and authorities before referred to are sufficient to establish that Cornwall, like Wales, was at the time of the Conquest and was subsequently, treated in many respects as distinct from England…….
So far as Royal Seignory is concerned, it will scarcely be contended that the Duke of Cornwall was placed precisely in the position of King. He had all the Crown lands within Cornwall, was entitled to all feudal services attached to those lands, and to all the prerogative rights …..which belonged to the Crown as the ultimate and supreme Lord of the Soil.
A careful examination of the 3rd charter shows that all remaining Crown rights were transferred to the duke. The Crown of England therefore has entirely denuded itself of any remnant of sovereign authority and territorial dominion which it one enjoyed in Cornwall.”.
We have seen how, in 1284, Edmund barred the Kings officers from Cornwall. Remarkably, such assertions of Cornish sovereignty are not confined to ancient history. When in 1864 a question arose as to ownership of Treasure Trove at Luxulyan, the duchy asserted itself in the following terms:
“We think that it would be inconsistent with the terms of the Charters for the Crown to hold inquest of Treasure Trove within the Duchy of Cornwall: and it seems to us to be a legitimate inference from the general tenor of the Charters, and especially from the clauses which exclude all ministers of the Crown from entering any lands of the Duchy to make executions of any writs etc that the Duke of Cornwall and not the Queen is entitled to the Treasure Trove in question.”[vi]
Although duchy spokesperson Elizabeth Stuart actively disseminates the myth that, “the Duchy is not the county, it is merely a collection of estates in Cornwall and elsewhere”,[vii] we find that when it comes to asserting itself the duchy relies on Cornwall’s separate origins. And far from having nothing to do with Cornwall, the duchy actually owns it - and many government bodies discretely acknowledge this. For example, Treasury Solicitors state, “The Duchy of Cornwall comprises the County of Cornwall”[viii] and HM Land Registry declare, “The Duchy of Cornwall is broadly the same extent as the modern county”.[ix]
As the duchy is, for some purposes, extra-jurisdictional to the law making apparatus for England and Wales, Cornwall must also, for some purposes, be extra-territorial to England and Wales. This can have significant implications for the people of Cornwall. For example, how many solicitors know that people can die domiciled in England and Wales, France, Spain or Cornwall?[x] How many solicitors would cast doubt on the operation of English land in Cornwall?
Although the Land Registration Act 2002 is the cornerstone of land law in England and Wales, its operation in Cornwall is at the very least questionable. After attempting to clarify the situation, lawyers for Land Registry notified me that the operation of the Act in Cornwall is reliant upon the duke owning Cornwall in ‘fee simple’ from the Crown[xi], and, in turn, property owners in Cornwall holding their fee simple freeholds from the duke. If this situation were true, it would make the duke an intermediate landowner who practised subinfeudation. Yet the 1290 Statute of Quia Emptores made subinfeudation unlawful. As Quia Emptores did not apply to the Crown [government], the government can today grant estates in fee simple.
When freeholders die without heirs in Cornwall today, their property passes as Bona Vacantia to the Duchy of Cornwall. While Quia Emptores says that freeholders in Cornwall can only hold their properties from the government, the operation of Bona Vacantia in Cornwall means they cannot be holding directly from central government. Therefore, in order to remain within the law, people in Cornwall can only be holding their freeholds from a devolved arm of government known as the Duchy of Cornwall. As this situation is politically loaded, it was made to disappear.
Those charged with this task stated at p.234 of the 2001 LRA ‘Bill and Commentary’ that laws surrounding the Duchy of Cornwall are “mysterious”, “complex and archane”, and that in so much as the duchy was concerned, it was “particularly difficult” to prepare the Bill. This ‘difficulty’ arose because legislators decided to categorise the Duchy of Cornwall as a private estate owning the whole of Cornwall on a fee simple basis, rather than as a devolved, constitutionally distinct, part of government. In such circumstances, when the duchy purchases property in Cornwall it is, in effect, creating a freehold out of another freehold, which is illegal except, it appears, in Cornwall. The same circumstances dictate that Cornwall’s freeholders hold their fee simples from another fee simple owner via the process of subinfeudation, which is illegal except, it appears, in Cornwall.
Moreover, as fee-simple ‘private estates’ are subject to escheat and Bona Vacantia, and the Duchy of Cornwall is not subject to either, a question arises as to who, or more appropriately, what instrument of governance, has allodial title over Cornwall? From examining all the evidence it would appear that title is shared between HM Government and the Government of the Duchy of Cornwall. However, the degree of ownership held by each party has yet to be established.[xii]
As efforts to resolve these issues increase, questions are being raised which the Duchy administration and HM Government refuse to answer. When the duke’s right to veto Westminster legislation made headline news at the beginning of the month a new, quite sinister, dynamic emerged.
Former government legal advisor Daniel Greenberg issued a statement saying, “the Duke of Cornwall has no special constitutional position; he is a subject of the crown like any other”.[xiii] Not only is this difficult to reconcile with the facts as they stand, it also conflicts sharply with the 1913, “‘Opinion on the Duchy of Cornwall by the Law Officers of the Crown”:[xiv]
1.” We are of the opinion that the same principles which render the provisions of an Act of Parliament inapplicable to the Crown unless the Crown is expressly named, apply also to the Prince of Wales in his capacity as Duke of Cornwall. This result arises from the peculiar title of the Prince of Wales to the Duchy of Cornwall. In other respects, the Prince of Wales, as being the first subject of the Crown is, like other subjects, bound by statutory instruments.
2. Taxation is not and cannot be exacted from land; it is exacted from subjects who are taxpayers. For the reason given in our answer to the first question, The Duke of Cornwall is not liable to such taxation, but it may be that he will not wish to insist upon his privilege of exemption.”
Soon evidence began to emerge of a hurried covert re-structuring of the operational administrative framework between the Duchy of Cornwall and the Westminster Parliament. For example, the 23rd edition of Parliamentary procedure guide ‘Erskine May‘states:
”Bills affecting the prerogative (being powers exercisable by the Sovereign for the performance of constitutional duties on the one hand,or hereditary revenues, personal property or interests of the Crown, the Duchy of Lancaster or the Duchy of Cornwall on the other, require the signification of Queen’s consent in both Houses before they are passed. When the Prince of Wales is of age, his own consent as Duke is given.”
After I submitted a March 2009 FIA request to both houses on this matter, Andrew George MP made his own enquiry in May 2010 and others swiftly followed, the 24th Edition of Erskine May [June 2011] ‘Consent’ section reappeared as:
“The Prince’s consent is required for a bill which affects the rights of the principality of Wales, the earldom of Chester or which makes specific reference to or makes special provision for the Duchy of Cornwall”. “The Prince’s consent may, depending on circumstances, be required for a bill which amends an act which does any of these things. The need for consent arises from the sovereign’s reversionary interest in the Duchy of Cornwall.”
Clerk to the House Sir Malcolm Jack must have been ecstatic to have made the changes in time, for it was this version that appeared in media all over the world. Those working for him had clearly anticipated trouble ahead and altered the text so as to mislead the enquirer and disguise the extant constitutional position of the Duchy of Cornwall. The intention was to diminish the status of the Duchy by spuriously including the ‘Principality of Wales’ and the Earldom of Chester within parliamentary guidance and by so doing, infer that they too are territorial possessions where legislation might require the specific consent of the heir to the throne. This has not been the case historically and all known Consents have been directed to the prince in his capacity as Duke of Cornwall.
In fact, there is no ‘Principality of Wales’. The Welsh Assembly Government says that Charles has no constitutional role in Wales, and “Wales is not a Principality. Wales is a country in its own right.” Unlike the immense powers and rights of the Duke of Cornwall, the title Prince of Wales carries no authority. Wales is owned by the monarch and covered by Queen’s consent.[xv] The Duke in right of his Duchy owns Cornwall and this situation necessitates separate consent.
And contrary to what Erskine May asserts, the sovereign has no ‘reversionary interest’. This addition to Erskine May is designed to give the impression that the sovereign is the absolute owner of the duchy, and when the duke is of age he holds it by mere fee simple grant. In such circumstances, the duke would, in effect, be consenting to legislation on behalf of the ‘real owner’.
Nothing could be further from the truth. The duke gives consent in right of his Duchy of Cornwall. In the absence of a duke, the crown i.e. government, acts as trustee and it is the sovereign, as mere caretaker, who gives consent on behalf of the absent duke. In the recent Bruton v Duchy FIA case, Judge John Angel stated, “When there is no Duke the Duchy is managed by the Crown, but it does not belong to the Crown or to the Monarch”. [xvi]
Erskine May is not the only instrument of governance to be subjected to constitutional gerrymandering. During the recent Bruton v Duchy of Cornwall FIA case, Julie Steyn, barrister for Mr Bruton, notified the court that Halburys Laws had recently been altered. The effect was to downgrade the status of the duchy.
53.” Both the Information Commissioner and Duchy rely on the statement in the current edition of Halsbury’s Laws to the effect that the Duchy is not a separate legal entity. Ms Steyn says that such a statement was never made in previous editions of Halsbury’s Law, so questions the correctness of the latest statement.”
By covertly altering Halsburys Laws and Erskine May, the authorities are secretly downgrading the constitutional status of the Duchy of Cornwall, and hence Cornwall itself. It is not known upon whose instructions these actions are taken, nor is it clear what democratic mandate exists to covertly manipulate the constitution of the British Isles. All we know is that this is a continuation of the longstanding, but entirely undeclared, policy of transforming what was formerly openly regarded by the courts and legislature as a constitutionally unique territory of Britain into a county of England.
In the Bruton v Duchy case, the judge dismissed out of hand representations made by the duchy to the effect that it was a private estate, even going so far as to say that duchy officers were “confused and unclear”. Having examined the circumstances of the duchy for a mere six weeks, even he could see that this patently false stance was untenable.[xvii]
However, In spite of the court ruling that the duchy is an emanation of the state, the duchy and HM Government are both still insisting upon it being a ‘private estate’[xviii]. We cannot leave unchallenged a situation where the existence of a powerful constitutional component of the British Isles is strenuously denied in public but vigorously asserted in private. Following this court ruling, both parties are amenable to judicial review and both have officers appointed by statutory authority who are open to the charge of misfeasance in public office.
Formal acceptance and recognition of Cornwall’s constitutional status is long overdue. Those responsible for forging and maintaining the constitutional deception should hide their heads in shame. After slowly unmasking the long-held ‘private estate’ charade, researchers are piecing together an evidence-based argument that Cornwall Council could rely upon in order to investigate the possibility of: 1. Undertaking the legal action outlined above. 2. Clarifying and stabilising the constitutional position of Cornwall. 3. Transferring appropriate Duchy powers, income and status to Cornwall’s elected body. Considering the prize that waits, this should be a priority.
[i] Guardian Newspaper, “Prince Charles has been offered a veto over 12 government bills since 2005” 30 Oct 2011.
[ii] Guardian Newspaper, “Prince Charles’s legislation veto shows the duchy is no ordinary private estate.” 31 Oct 2011.
[iii] “The Borough of Launceston comes by twelve jurors”, Appendix setting forth Evidence in Support of the Duke of Cornwall [1855-58 Foreshore papers, pp.32-33] Shaw & Sons, London.
[iv] Fee simple ownership is subject to HM government powers of taxation, compulsory purchase,
police power and escheat. These four limitations of ownership do not apply to the Duchy.
[v] Extracts from Duchy case – 1855-58 Foreshore papers. Shaw & Sons, London
[vi] The National Archives: Extract passed to me by J. Kirkhope on 7th May 2010.
[vii] Assertion made in ‘Duchy Review’ p.20. Pub.1996 [Duchy PR magazine]
[viii] Form Bona Vacantia C1 Version 2, Section11: ‘Jurisdiction’.
[ix] Land Registry Practice Guide 35 – Corporate Insolvency [Section 7.2] Sept 2009, Updated Oct 2011.
[x] See Treasury website.
[xi] Email from Assistant Land Registrar Chris Pitt Lewis, March 13th 2009.
[xii] The key to determining proportion of sovereignty, and allodial title, owned by Duchy and HM Government rests on whether or not HM government powers of taxation, compulsory purchase, police power and escheat apply to the Duchy. If all four do, then it’s a straight fee simple. As they do not apply en bloc to each facet of the Duchy, claims that the duchy owns Cornwall in fee simple are wrong. The extent of disapplication determines the proportion of sovereignty held by each party
[xiii] Daniel Greenberg, Guardian newspaper, 30th Oct 2011.
[xiv] W.Hamilton MP, “My Queen and I” p.217, 1973.
[xv] There is a clause in the standing Orders of the Welsh Assembly that refers to needing the Duke of Cornwalls Consent, but this is in relation to Bills that effects the interests of the Duchy of Cornwall. Not what is now implied by Erskine May i.e. that Consent is required for legislation that effects “the rights of the Principality of Wales.” No such consent is required.
[xvi] EA/2010/0182 First Tier Tribunal: Bruton v IC and Duchy of Cornwall, 3 Nov 2011
[xvii] Judge Angel began hearing evidence on 21st September 2011, his determination was made on 3rd Nov 2011.
[xviii] Response to Andrew George MP: Mark Harper - Written Answers Hansard 14th Nov 2011.