Parliamentary Questions: Ownership of foreshore.
Following the 2008 publication of Scat t’Larrups?, which exposed the UK Government/Duchy Administration ’private estate’ deception, Andrew George MP raised three questions in Parliament. The clear intention was to try and force government to disclose the real status of the Duchy of Cornwall and consequent upon that, a measure of the suppressed constitutional differences between Cornwall and England.
Following this Parliamentary response, a pro-government/anti-Cornish website practised its usual sophistry:
“The answer to a question in the Commons about who owns the foreshore in Britain has shown that the foreshore is not an issue of sovereignty or constitutional status (Hansard 10 February 2009 column 1847W).
The government reply about this part of the country was: “The duchy of Cornwall owns all the Isles of Scilly foreshore and the majority of the foreshore in Cornwall”.
The word ‘majority’ is intriguing and leads me to wonder which parts of the foreshore of Cornwall it does not own.
However, the refutation of sovereignty and constitutional status came in the first part of the reply: “The Crown Estate owns around fifty five percent of the foreshore around the UK. The rest of the foreshore is owned by various bodies, including the Crown and the duchies of Lancaster and Cornwall, such as port authorities, local authorities, the National Trust, and private individuals.”
Clearly private individuals and the National Trust, for example, are not sovereign entities, independent of England, and with a special constitutional status. Those attributes and powers are not conferred by ownership of the foreshore. The ownership of the foreshore is not in itself a question of sovereignty or constitutional status but of land ownership and, as in the Submarine Mines Act 1858, of any use and profits therefrom.”
Like the government itself, this website had already taken great pains to misconstrue the meaning, and hence undermine the significance of, the highly important Cornwall Submarine Mines Act 1858. Aided by a government that had already doctored the Act [see below], this website forms part of the shameful and corrosive process of deconstructing and dissembling Cornwall’s history. Now Andrew George’s question had provided a reason and opportunity for those behind this process to further their aims.
For clarity, it is not a matter of who owns the ‘fee simple’ freehold or leasehold of property in Cornwall [for that was how the question was interpreted]. The real issue is what sovereign entity actually claims that property as part of their ‘soil and territorial possessions’ – which is a term reserved to register a constitutional claim of sovereignty.
A sovereign entity owns territorial possessions, an individual holds land on a freehold or leasehold basis from the sovereign entity, in this case, the Crown [i.e. government]. Until 1922, Ireland was a territorial possession of the Crown, after 1922 only Northern Ireland remained as such.
Historically in Europe, and certainly up to the emergence of the centralised nation-state, it was not unusual to find sovereignty over land being shared between an imperial authority and a ‘national’ authority. In such circumstances, both authorities tended to compete with one another for jurisdiction and given time, one would achieve dominance. Sometimes this would lead to a complete separation of jurisdiction, as happened when India obtained its independence from Britain. On other occasions, a mere change in the balance of sovereignty occurred. Scotland, for example, has a high degree of legal and popular sovereignty from England while many in Scotland are hopeful of achieving what could amount to full sovereignty. Whereas the issue of sovereignty over India is resolved, Scottish sovereignty is still being contested.
Since London’s sphere of influence first extended to Cornwall, jurisdiction over Cornwall had always been contested - first by indigenous rulers, then by powerful viceroys and finally by dukes [Latin for ‘dux’, or ruler]. The circumstances that led up to the Cornwall Submarines Mines Act 1858, and the very Act itself, makes it clear that in Cornwall’s case, full accretion of sovereignty to a single indivisible sovereign was never achieved.
This is borne out by examining not only the many statutes, charters, legal cases and arguments deployed by the Attorney General to the Duchy of Cornwall during the pivotal 1855-57 ‘foreshore dispute’ between Cornwall and England, but also the outcome of the dispute itself. On this occasion, in a continuation of the age old battle for sovereignty and jurisdiction over Cornwall, the Attorney General for England had attempted to claim the foreshore and riverbeds of Cornwall [which at that time were producing considerable revenue from mining] as the “soil and territorial possessions” of the Crown of England. The Attorney General for the Duchy actively resisted this act of aggression and the detailed legal evidence he presented to the arbitrator culminated in victory for the Duchy.
More importantly, the act of arbitration, and final settlement, confirmed one of two things. Either two legal entities shared sovereignty over Cornwall or there existed two sovereigns on these shores. This must be the case otherwise Queen Victoria, who was at the height of her powers, would simple have imposed her will and settled the dispute in her favour.
As regional representatives of the Sovereign, High Sheriffs must swear an Oath of Allegiance to the Sovereign. In England proper, the Queen chooses all High Sheriffs, and they in turn must pledge full allegiance to Her. In 2008 the Duke of Cornwall and not the Queen chose Sir Ralph Ferrers Alexander Vyvyan to be High Sheriff of Cornwall, and he had to pledge his allegiance to two sovereigns
During the foreshore dispute both sovereign parties agreed to designate the foreshore as land and the subsequent Cornwall Submarine Mines Act 1858 confirmed that the entire foreshore of Cornwall was, along with all other land in Cornwall, part of the “soil and territorial possessions of the Duke of Cornwall in right of his Duchy of Cornwall”.
Although anyone can purchase freehold or leasehold land [and hence foreshore] in Cornwall and beyond, the ultimate owner of all property in Britain is ‘the Crown’ [i.e. government], which is represented by, and embodied in, the sovereign. This means that if a person or other entity purchased a section of foreshore in Cornwall and then died intestate [or the company owning the foreshore went bankrupt] that foreshore would revert [escheat] back to the Crown [i.e. government]. In England, Wales, Scotland and N.Ireland, ownership of the land and foreshore reverts back to Elizabeth Windsor as sovereign representative of the Crown in those areas. However, in Cornwall, Charles Windsor is de jure sovereign, so all land, including the foreshore and riverbeds, revert back to him.
Today the Duchy still owns the freehold of just over half of its Cornish foreshore, having sold on in the form of leasehold or freehold tenure the remaining foreshore to local authorities, port authorities, the National Trust and private individuals. However, in spite of nominally ‘owning’ their foreshore, like all land in Cornwall, that bit of real estate always remains as part of the ‘soil and territorial possessions’ of the Duke of Cornwall in right of his Duchy of Cornwall’.
1. The current version of the Cornwall Submarine Mines Act 1858 has been seriously doctored by government so as to remove some phrases of constitutional significance. In particular, the important preamble and Section 1 were removed from the version now on the statute books by a ‘revision’ carried out in 1978. This is similar to what happened to the three Duchy Charters of 1337. In that same year  the first Charter [Constitutional Law 10] was ‘revised’ to read something different, and the two remaining Charters were simply made to vanish from the statute books [See p.187 ‘Our Future is History’ 2002]. It is perhaps no coincidence that 1978 was the year when The Times newspaper reported how the revived Cornish Stannary Parliament had sent shock waves through government by winning simultaneous victories in magistrates courts at Bodmin and St Austell.
2. The preamble to the original unmodified Cornwall Submarine Mines Act 1858 clearly states that the question of ultimate and absolute ownership of the entire foreshore of Cornwall rests only between: “Her Majesty on one hand and His Royal Highness on the other”.As local authorities, port authorities, private individuals etc do not possess regalian rights [See Duchy Charters or even Section 38, Duchy of Cornwall Management Act 1863] and therefore cannot lay claim to the foreshore as part of their “soil and territorial possessions”, the Submarine Mines Act, and indeed the arbitration that led up to the Act, neither considered nor mentioned any other entity.
3. The Cornwall Submarine Mines Act 1858 concluded that ultimate ownership of the entire foreshore of Cornwall rested with His Royal Highness in right of his Duchy of Cornwall EXCEPT those very tiny parts of the foreshore that were then: “part and parcel of any manor belonging to Her Majesty in right of her Crown”.
4. The Duke is not a mere feudal overlord in the sense that he holds Cornwall from the Crown. According to aspects of law which the Duchy and UK Government try to wish away, in Cornwall he IS the Crown. His Duchy is inalienable and, via a succession of heirs and successors, he holds Cornwall according to the ancient ‘by right of conquest’ doctrine.
When the Cornwall Submarine Mines Act was passing through the House of Commons, a challenge was made to halt progress of the Act on grounds that the Government was acting unconstitutionally by giving away certain fundamental rights. The Solicitor General assured the House that: “the rights of no single individual in the kingdom were affected by this Bill; it concerned the rights of the Crown and of the Duchy alone. But then the hon. Member said that the Crown sacrificed its own rights. Now the Crown had given up no rights except such as Sir John Patteson [the arbitrator] declared it had no right to possess.”[Hansard 19th July 1858 vol.151 cc.1750-54]
5. Legally, when there is no duke, the sovereign of England holds Cornwall not “in right of her Crown” [i.e. not as sovereign of Cornwall], but as mere “possessor for the time being” in much the same way as any freeholder temporarily occupies someone else’s land. For a fuller explanation, see Chapter 1 of ‘Scat t’Larrups?’ .
6. The Crown Estate belongs to the Queen “in right of her Crown”. That means the property owned by the Estate is not private, but is inherent with the sovereign’s accession to the throne in the same way that the Duke claims ownership of rights and property “in right of his Duchy”. As the 1760 Civil List agreement did not extend to Cornwall, the Crown Estate has no jurisdiction or presence in Cornwall. The equivalent body in Cornwall is the Duchy of Cornwall.
John Angarrack 2009
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