Cornwall – A Background Paper
John Kirkhope B.A. (Hons.), LL.B.(Hons.), Dip.
N.P., TEP - Notary Public, Non Practising Solicitor.
1. The Stannaries.
2. The Duchy of Cornwall – A Private Estate?
3. Cornwall and Wales.
4. Cornwall and Counties Palatine.
5. Is Cornwall Different?
6. Cornwall is different!
7. Parliamentary Questions.
1. The Stannaries.
There were (are) four: Truro, Lostwithiel, Launceston and Helston in
Kerrier Stannary Parliament.
“No other institution has ever had such wide powers in the history of this
(Professor Robert Pennington – Professor of
Law, Birmingham University).
The Convocation of the Tinners or Stannary Parliament was described by
John Thomas, Vice Warden of the Stannaries, thus:
“It is like unto the British Parliament in this respect that it consists
of three branches viz The Lord Warden representing the King, 24 Stannators
representing the Lords and 24 Assistants chosen by the Stannators the
The Cornish Stannary Parliament looked more like the Parliaments of
Ireland Scotland and England.
(Professor Philip Payton – Professor of Cornish Studies, Exeter
Does the Stannary Parliament still exist as a legal institution?
Yes. It undoubtedly still exists as a legal institution.
(Professor Robert Pennington).
Common Law does not favour the “doctrine of desuetude” the doctrine that
causes statutes etc to lapse or become unenforceable by long habit of
non-enforcement or lapse of time. (See Ashford v Thornton 1818 re trial by
See also Court of Chivalry Case 1954. The High Court of Chivalry had not
met for 200 years yet was convened to hear a case involving Manchester
Corporation. It could still sit if necessary.
Does the Stannary Parliament still have the right of veto of
Yes. See reply to Dafydd Wigley MP 14th May 1977 from the then Attorney
There was correspondence in the Times in May/June 1974. In a letter to the
Times dated 15th June 1974 Professor Pennington Faculty of Law University
of Birmingham stated as follows:
“There can, therefore, be no doubt that the Charter did require
Convocation’s assent before enactments by the Westminster Parliament were
passed affecting tin mining in Cornwall and this is still the position
He went on..
“However, in the future when a bill is introduced in Parliament which
affects the tin mining interests, it will undoubtedly be possible for
interested Cornishmen to obtain a Court order directing the Duke of
Cornwall and the Lord Warden to hold a Convocation in order to discover
whether Cornwall consents or not……Furthermore if a bill were introduced in
Parliament to cancel the Charter of 1508, the tin mining interest, would,
of course, be entitled to invoke the procedure of the Charter, and there
can be no doubt but that a Convocation held under it would refuse consent
to its own abolition.”
“..from a legal standpoint the Stannaries were a peculiar jurisdiction
under the operation of certain laws customary as well as statutory
technical and non-technical for the administration of which a royal
officer, the Warden, was responsible. The head of the Stannary system was
accordingly the King or after 1338 the Prince of Wales as Duke of
“Another class of case appearing early in the records serves in a way to
indicate the separation of the tinners from the ordinary courts of the
county such cases, for example, are the trespassing with swine and geese
on a neighbours cornfield cutting another’s timber.”
(G R Lewis)
Further examples of the fact the Stannary Courts were not simply concerned
with matters of mining are as follows:
'Examples of this were the slander suit brought by Sir John St Leger (a
recipient of toll tax) in the steward's court of Blackmore against Thomas
Hilling a landowner who had no interest in mining.............and a suit
brought before the Vice-Warden of Cornwall by an adventurer in a tinwork
for the recovery of a copyhold tenement in the manor of Calstock.'
(See page 37 and page 40 of Pennington's Stannary Law.)
“Appeals first to the Steward of the Stannary Court and then to the Under
Warden of the Stannaries and from him to the Lord Warden of the same
Stannaries and for default of justice at his hands the Prince’s Privy
Council and not examinable in this Court or in any other Court.”
(Extract from Lord Coke note 16th October 1608).
Territorial extent of the Stannaries.
“We cannot yet discern but that the Stannaries extend over the whole
County of Cornwall”.
(Privy Council 1632)
Manual labourers, employers those with shares in mines, dealers in tin,
artisan classes connected with tin mining”
“Gentlemen bounders owners of tine works possessors of blowing hoses
buyers of black tin and white tin”
“Adventurers agents labourers in short all connected in any way with mines
are held to be miners”
“Stannary Acts of 1837-1855 by which all adventurers, agents, labourers
connected in any way with mines either in supplying materials or otherwise
were held to be miners and made to sue and be sued in the stannary.”
(G R Lewis).
(Please see copy letter attached from 24th May 1974 from Robert
Jurisdictional extent of Stannary Law.
The Stannary Courts heard cases between tinners and tinners, tinners and
non tinners. Non tinners could elect to have cases heard before the
Is Stannary Law good law?
Yes. Stannary Courts have been abolished Stannary Law has not. Arguably
the oldest law incorporated into the English Legal system.
Professor Robert Pennington.
A distinguished legal academic who wrote at length on the Stannaries and
was once called, by a Liberal MP, the most dangerous man in Britain
because of his support for the Stannaries. See attached copy obituary with
2. The Duchy of Cornwall – A Private Estate?
Submissions by the Duchy in the Cornwall Foreshore Case..
“The Duke seized and confiscated the enemy ships in times of war and the
enemies merchandise contained in them, as well as in neutral vessels
whenever they came within the precincts of the Duchy.”
“And in addition to wreck of the sea prisage and customs of wine and
profits of port the Duke of Cornwall took the great customs of wools, fels
and leather and had his seal of cocket by which the merchants exporting
these articles had their quietus.”
“The inhabitants of the islands of Guernsey, Jersey, Alderney and Sark
were by the King exempted from the payment of what was called the aliens
custom within the realm of England, but by the express command of the Duke
and his council this custom was exacted from them within the precincts of
“For instance by the second charter the return of all writs and summonses
in Cornwall was annexed to the Duchy.”
“By the third charter the Crown appears to have entirely denuded itself of
every remnant of seignory and territorial dominion, which it could have
otherwise have enjoyed within the County or Duchy of Cornwall.”
“It is more over submitted that the three Duchy Charters are sufficient in
themselves to vest in the Dukes of Cornwall, not only the government of
Cornwall but the entire territorial dominion in and over the county which
had previously been vested in the Crown and with all such rural
prerogatives as would naturally accompany and the enjoyment of which could
only be consistent with a grant of so high an honour.”
“So far therefore as the proprietorship of the tin mines is to be taken as
evidence of the ownership of the soil of the county generally as between
the crown and the Earls the evidence if submitted is conclusive in favour
of the latter.”
“But what has been said of the profits of the tin mines is applicable also
to all income derived from the county generally and especially from the
particular sources before referred to:-
1. The amercements of the forest.
2. The waste and purtrestures of the County.
3. The wreck of the sea.
4. Prisage of wines.
5. The profits of the fisheries and the drying of fish on the seashore.
6. The anchorage described as a customary payment for boats coming in to
land or sullage.
It is not too much to say that within Cornwall the Duke stood in the place
of or was quasi sovereign so far as regarding the territorial seignory.”
“The second and third charters certainly manifested a desire to give the
Duke everything within the County which the King and Lord could confer.”
“It is contended that the Duchy and it’s creation was co-extensive with
the County in the sense in which that term is used, not that it’s
possessor was entitled to every acre of land within the county but to the
great seigniorial rights throughout the county which under other
circumstances would have been invested in the crown.”
“That the Duchy Charters have always been construed and treated not merely
by the Courts of Judicature but also by the Legislature of the Country as
having vested in the Dukes of Cornwall the whole territorial interest and
dominion of the Crown in and over the entire County of Cornwall.”
It would have been a nonsense for the Duke’s Attorney General in the
1850’s both to make the assertions set out above and claim the Duchy as a
private estate. You cannot claim the Duke had the Government of Cornwall
and then say it’s a private estate. Even in the time of Queen Victoria
that argument could not have been sustained.
Statutes in Force (Official Revised Edition – Revised to 1st February
1978) Constitutional Law is concerned with the Duchies of Cornwall and
Lancaster. In particular it includes..
“A Charter of 1337 settling the Duchy of Cornwall upon the Kings eldest
son, and prescribing its future devolution”.
It is noteworthy texts on the Constitutional Law no longer include the
Charter. It is also a nonsense to suggest that an estate established by
part of the Constitutional Law of England should be a private estate. How
can “our” Constitution be private?
There are three Duchy Charters apart from the one referred to in 1978
which was dated the 17th March 1337, there is also the Charter dated 18th
March 1337 and the Charter of 3rd January 1338. The Duchy made reference
to them, I have highlighted the references, and relied on them in their
evidence however they do not appear as part of the Constitutional Law.
Crown Immunity and Planning.
The Crown immunity was removed by the Planning and Compulsory Purchase Act
3 Cornwall and Wales
Wales has claimed a separate and different identity from the English even
though it was subject to English Laws and an English monarch. It has not
claimed difference based on a distinct body of law or a uniquely powerful
The Statute of Rhuddlan 1284, sometimes called the “Statute of Wales”
“wholly and entirely transferred the land of Wales with its inhabitants
and has annexed and united the same into the Crown as a member of the same
By the Act of Union in 1536 the law of England was to be the only law in
Wales. This was followed by a further Act of Union in 1543.
It is generally agreed the effect of these laws provided that the English
system of administration and English legal system applied. Contrast this
with Cornwall with its own uniquely powerful Parliament and Court system
in addition to its claim, like Wales, to its own language, culture and
In the famous Cornwall Foreshore case of the 1850’s the Crown stated:
“It may be observed, as to the supposed analogy between Cornwall and
Wales, that from the time of the annexation of Wales to the Crown of
England, the Sovereign rights of the latter over the land and shores of
Wales, the sea surrounding the same, have been as clear and as
indisputable as those over the rest of the realm; and it has never been
suggested that the creation of the Heir Apparent as Prince of Wales by
Edward I and his successors carried with it any portion of the Royal
Prerogative, or Royal Property, within the principality. Up to the time of
the conquest of Wales, the British Prices of that country, within such
portions of it as had not from time to time been conquered by the Lords
Marchers doubtless exercised all Sovereign rights, both as to jurisdiction
and property; but if creation of the high title of Prince of Wales in
favour of the Heir Apparent did not carry with it those Sovereign rights,
or any of them, what becomes of the suggestion that the creation of the
undoubtedly high, but inferior title of Earl of Duke of Cornwall carried
with it any Sovereign rights of the British Prince of that territory.”
The Duchy replied:
“There is no analogy between the two cases. It is not contended by the
Duchy that the mere conferring by the Crown of the title or dignity of the
Earl of Duke of Cornwall, any more than that of the Prince of Wales, would
pass such territorial right as the one in question. What is contended for
by the Duchy, and which, though denied, has, it is submitted, not been
disproved by the Officers of the Land Revenue, is: That at and prior to
the Conquest, there existed in Cornwall, or rather Cornwall itself was a
great Seignory in the hands of a temporal Lord independent of the Crown:
That after the Conquest this great Seignory was taken by the Crown from
the party then in possession and conferred by the Crown upon an individual
under the name of an Earldom: That this great Seignory has continued to
exist from that time to the present, sometimes, though not necessarily,
vested in an Earl of Cornwall, when such title was in existence, and at
other times in the Crown, and ultimately in the Dukes of Cornwall, under
the name of a Duchy and that this Seignory covered the right in
See also the following from the Duchy submission in the Foreshore case..
“Cornwall appears to have been like Wales, a distinct principality that at
the time of the conquest and subsequent was still treated in many respects
as distinct from England when it afterwards became an English county. It
still retained many if not all the rights of a county palatine and was
granted some times with more and some times with fewer rights.”
One commentator stated the problem was Cornwall did not have a William
Wallace or an Owain Glyndwr or a central mountain range to which freedom
fighters could retreat. If it had things may have been very different. The
Welsh rebelled against the English from 1400 until 1415. The Cornish
rebelled against the English no less than 6 times from 1497 until 1655
(See Professor Mark Stoyle – Professor of History Southampton University)
The claim for Cornish difference and the right for that difference to
be recognised are at least as strong as that of Wales.
The Duke of Cornwall, with which title comes considerable power and
economic advantage, is inherited immediately on the birth of the eldest
son of the monarch. The title Prince of Wales and Earl of Chester comes
only when the Prince is invested with the title: there are no particular
rights which come with those titles.
4 Cornwall and Counties Palatine
In the Cornwall Foreshore case a number of references are made to Counties
Palatine. Cornwall is not and never was a County Palatine.
A surprising number of counties at one time or another were Counties
Palatine. The best known were Durham, ruled by the Prince-Bishops, Chester
ruled by an Earl (The Prince of Wales becomes Earl of Chester on
investiture as Prince of Wales) and Lancaster (now merged with the Crown).
The Queen is Duke of Lancaster.
Counties Palatine were established in the 11th Century by William the
Conqueror to defend the northern and western frontiers of the kingdom of
England. In order to allow them to do so in the best way they could, their
towns were granted palatine powers within the territories making these
territories sovereign jurisdictions with their own administration courts
largely independent of the monarch, although with their old allegiance to
him or her.
Cheshire had its own Parliament consisting of Barons of the County and was
not represented in the Parliament of England in 1541. It retained some
special privileges until 1830.
Lancashire was made a County or Duchy Palatine in 1351 coming to the
throne in 1399. It kept many of its special judicial privileges until
The King’s writs did not run in these three palatine counties until the
19th Century and until the 1970’s Lancashire and Durham had their own
courts of chancery.
The Duchy stated in its submission as follows:
“It may be proper to advert to the analogous case of the County of
Lancaster. The Earldom of Lancaster was granted by Henry III and by the
time of Edward III the Earldom was erected into a duchy in favour of Henry
Plantagenet and afterwards of John of Gaunt the county was made a county
palatine. Making the county a county palatine only gave certain
prerogative rights and did not operate as a territorial grant.”
It is important to understand the difference between the Crown granting
certain of its prerogative rights and providing a territorial grant which
would include certain prerogative rights.
The Duchy with which the most immediate comparison can be made is with the
Duchy of Lancaster. This is a royal Duchy and in Lancashire the Queen is
the Duke of Lancaster. The most obvious similarity is the fact in
Lancashire the Duchy has the right of Bono Vacantia like the Duchy of
None of the Palatine Counties had a similar extensive system of laws or
Parliament neither could the differences based on language, culture or
ethnicity be claimed.
5. Is Cornwall Different?
Customary Mining Law
Mining presents such particular legal issues that it was common for local
mining customary laws to develop. Somerset, Devon and the Forest of Dean
all had local mining laws. So Stannary Law which developed out of local
customary mining law was not unusual.
Cornwall was different in this regard. Firstly it developed to cover the
whole county not just an area within a county in which mining took place.
It covered very nearly the whole population of Cornwall since few could
not claim to be tinners within the wide definition given to that term.
Next it was a sophisticated system with a procedure for courts of first
instance and means of appeal. It also developed an equitable function and
even had, what in modern legal parlance, would be called a company and
commercial specialty. As pointed out earlier it even covered matters like
the trespass of geese it was not simply concerned with mining matters. It
had a criminal jurisdiction and maintained its own, pretty brutal, gaols.
It was a stand alone system - you could not appeal from the Stannary
Courts to the Common Law courts of England. Stannary Law has also enjoyed
a longevity which other mining law has not. It is after all still good
Maybe most important of all Stannary Law was part of the Government of
Cornwall. Ultimately the system was the responsibility of the Duke of
Cornwall to whose Privy Council final appeals were directed and after that
the English Privy Council. The “ordinary courts” of England had no
jurisdiction over the Stannary system.
For completeness Devon’s Stannary Laws were also the responsibility of the
Duke. However they did not extend to the whole county of Devon and did not
develop to anything like the same extent.
Cornwall had its own Courts.
Well yes but so did Devon and the Counties Palatine of Lancaster and
Durham as do the Verderers of the New Forest. The Chancery Courts of
Lancaster and Durham were abolished only in 1971. See comments above.
Cornwall has its own Parliament.
Again that of itself does not make Cornwall different. The Forest of Dean
had a miners parliament for example. Devon also had a Stannary Parliament
which last sat in1748. In principle the Devon Stannary Parliament is still
a legal institution. The Palatine County of Cheshire had its own
Parliament and was not represented at Westminster until 1541.
Cornwall was different in this regard. The Cornish Parliament operated
like the Irish and Scots Parliaments. It had a right of veto which it did
exercise which made it unique. It was also a Parliament co extensive with
the Duchy Government. Devon’s Parliament applied only to the Devon
Stannary Towns. The Forest of Dean miners Parliament was entirely local
and met only once a year. The Cheshire Parliament was abolished as were
the Scots and Irish Parliaments.
6. Cornwall is different!
Cornwall is subject to different laws.
1 It is the only “County” in England and Wales where the soil is owned by
someone other than the Crown. This is important. Generally speaking most
people own property in “Freehold” what used to be called “fee simple
absolute”. This dates back to feudal times and freehold indicates we own
land from the Crown in exchange for feudal duties. This is now largely
academic. Only the monarch is absolute owner of land except in Cornwall
where it is the Duke of Cornwall. The Duchy have used this right of the
Crown to avoid planning laws for example.
2 Does 1 above matter? Well yes in one respect. In the rest of the UK
“ownerless land” reverts back to the Crown except in Cornwall when it
reverts to the Duke of Cornwall
3 In Cornwall the property of people who die without heirs passes to the
Duke of Cornwall in the rest of the UK it is the monarch as monarch or as
Duke of Lancaster.
4 It is the only place in the UK in which the foreshore belongs to someone
other than the monarch.
5 It is the only “County” in England and Wales in which the Sheriff is
appointed by someone other than the monarch and who swears allegiance both
to the monarch and the Duke of Cornwall.
6 It is the only “County” in England and Wales which is home to an extant
legal institution with the right of veto of Westminster legislation.
7 It is the only “County” in the UK in which someone other than the
monarch has right of wreck and royal fish.
8 It is the only “County” in England and Wales which can claim to be more
properly called “Duchy” or shire.
The people of Cornwall are subject to different laws some trivial even
charming oddities others not so. The right to the foreshore means the
Marine Stewardship scheme does not apply. It means the people of Scilly
cannot buy their houses.
More generally travel from Cornwall to London. Will you see the Devon,
Somerset, Wiltshire county flags flying everywhere as you will in
Cornwall? Can you imagine a text on the laws of Wiltshire or Berkshire?
7 Parliamentary Questions.
1 Does the Government accept, as submitted by the late Professor Robert
Pennington, the Cornish Stannary Parliament still exists as a legal
2 Does the Attorney General agree with the answer given to Dafydd Wigley
MP on 14th May 1977 that the right of the Cornish Parliament to veto
Westminster Legislation has never been withdrawn?
3 Will the Government speak to the Duchy of Cornwall so that misleading
statements made on the Duchy web site regarding the Duchy’s and Duke’s tax
status are corrected?
4 Could the Government indicate at what point the Duchy became a private
estate.? Clearly that was at some point after 1978. Could they also define
what is meant by “private estate” in this context.
5 Can the Government name any other private estate which, for example, has
the benefit of “bono vacantia”, the right not to pay capital gains tax,
the right to Crown Immunity so that, for example, unlike people elsewhere
in England and Wales the people of Scilly cannot purchase their homes?
6 Can the Government confirm Duchy Officials are, for the purposes of
legislation, Public Officers?
7 Does the Government still regard the Charter of 17th March 1337 as part
of the Constitutional Law of the United Kingdom? If so do they also regard
the Charters of 18th March 1337 and 3rd January 1338 are part of the UK
8 Can the Government confirm the Duchy of Cornwall is, as claimed by the
Duchy, owner of the soil of Cornwall?