Cornish Foreshore Case

Last updated
1797 map of Cornwall An Account of the Trigonometrical Survey, Carried on in the Years 1795, and 1796, by Order of the Marquis Cornwallis, Master General of the Ordnance. By Colonel Edward Williams, Captain William Mudge, (14597181360).jpg
1797 map of Cornwall

The Cornish Foreshore Case was an arbitration case held between 1854 and 1858 to resolve a formal dispute between the British Crown and the Duchy of Cornwall over the rights to minerals and mines under the foreshore of Cornwall which determined that Cornwall was not part of England. [1] .

Contents

The Duchy of Cornwall presented a series of assertions regarding its sovereignty and territorial rights. The Duchy argued vigorously to support its position, making the following notable claims:

The Duchy contended that “these regulations were inconsistent with any other supposition than the Duke was quasi sovereign within his Duchy.”

It was asserted that “the Crown appears to have entirely denuded itself of every remnant of Seignory and territorial dominion which it could have otherwise enjoyed within the County of Cornwall.”

The Duchy claimed 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 vested in the Crown, along with all the royal prerogatives that would naturally accompany such dominion.”

Regarding the Royal Seignory, the Duchy argued, “it will be scarcely be contended but that the Duke of Cornwall was placed precisely in the position of the King. He had all the Crown lands within Cornwall, was entitled to all feudal services, and to all wardships, reliefs, escheats, etc., which belonged to the Crown as ultimate and supreme lord of the soil.”

The Duchy further elaborated that “a careful examination of the third Charter will show that by it not only were all transferred by the King to the Duke, but the Crown thereby, as set forth in the original Duchy statement, having entirely denuded itself as against the Duke of every remnant of Seignory and territorial dominion which it would otherwise have enjoyed within the County, thus making the rights of the Duchy more extensive and more exclusive against the Crown than ever enjoyed by the Earls.”

These claims highlight the Duchy's assertion of significant autonomy and sovereignty, challenging the traditional perceptions of Crown authority within Cornwall. The Duchy of Cornwall won it’s case and the arbitration led to the Cornwall Submarine Mines Act 1858, which confirmed those rights for the duchy between the high and low water marks but not beyond. [2] Sir John Patteson served as arbitrator, while the Rt. Hon. Thomas Pemberton Leigh, Baron Kingsdown (during the course of the debate elevated to the peerage) represented the duchy.

The issue

The problem which gave rise to the dispute was explained by the Solicitor-General during parliamentary debates on the Cornwall Submarine Mines Bill, on 19 July 1858:

"the whole of the soil, and every thing under the soil, between high and low water mark on the shores of the kingdom, belonged to the Crown; and in numerous instances that right had been granted away, or passed to individuals by adverse possession against the Crown. In the case of the Duchy of Cornwall the difficulty had been this—very large grants were made of the soil and shore to the Prince of Wales in the time of Edward III by charters, and great difficulty had always arisen with regard to the construction of those charters. That doubt had been further increased by innumerable dealings which had since taken place between the Crown and the Prince of Wales in the shape of statutes, other charters, and deeds of various kinds. In consequence it had in recent times become matter of extreme uncertainty whether, as regarded the soil between high and low-water mark, and even below low-water mark, in the Duchy of Cornwall, the rights to minerals was in the Crown or the Duchy. In the year 1856 it was considered desirable that these doubts should be resolved, for it was found that the existence of doubts had had the effect of putting an end to various kinds of improvement, and checking mining operations." [3]

Cornwall Submarine Mines Act

Cornwall Submarine Mines Act 1858
Act of Parliament
Coat of Arms of the United Kingdom (1837).svg
Long title An Act to declare and define the respective Rights of Her Majesty and of His Royal Highness the Prince of Wales and Duke of Cornwall to the Mines and Minerals in or under Land lying below High-water Mark, within and adjacent to the County of Cornwall, and for other Purposes.
Citation 21 & 22 Vict. c. 109
Dates
Royal assent 2 August 1858
Status: Amended
Text of statute as originally enacted
Text of the Cornwall Submarine Mines Act 1858 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

The Cornwall Foreshore Dispute culminated in the Cornwall Submarine Mines Act 1858 (21 & 22 Vict. c. 109), described as, "An Act to declare and define the respective Rights of Her Majesty and of His Royal Highness the Prince of Wales and Duke of Cornwall to the Mines and Minerals in or under Land lying below High-water Mark, within and adjacent to the County of Cornwall, and for other Purposes". [4] The act, as originally passed, determined that:

"All Mines and Minerals lying under the Seashore between High and Low Water Marks within the said County of Cornwall, and under Estuaries and tidal Rivers and other Places (below High-water Mark), even below Low-water Mark, being in and Part of the said County, are ... vested in His said Royal Highness Albert Edward Prince of Wales and Duke of Cornwall in right of the Duchy of Cornwall as Part of the Soil and territorial Possessions of the said Duchy; but this Declaration is not to extend to the Mines and Minerals in or under Land below High-water Mark which is Part and Parcel of any Manor, belonging to Her Majesty in right of Her Crown". [5]

See also

Related Research Articles

Duke of Cornwall is a title in the Peerage of England, traditionally held by the eldest son of the reigning British monarch, previously the English monarch. The Duchy of Cornwall was the first duchy created in England and was established in a royal charter in 1337 by King Edward III. As of 2022, Prince William became Duke of Cornwall following the accession to the throne of his father, King Charles III; William's wife, Catherine, became Duchess of Cornwall.

<span class="mw-page-title-main">Duchy of Lancaster</span> Private estate of the British sovereign as Duke of Lancaster

The Duchy of Lancaster is an estate of the British sovereign. The estate has its origins in the lands held by the medieval Dukes of Lancaster, which came under the direct control of the monarch when Henry Bolingbroke, the then duke of Lancaster, ascended the throne in 1399. In 1461 King Edward IV confirmed that the Duchy would be inherited by the monarch, but held separately from the Crown Estate, the other assets which belong to the monarch.

<span class="mw-page-title-main">Duchy of Cornwall</span> Royal duchy in England

The Duchy of Cornwall is one of two royal duchies in England, the other being the Duchy of Lancaster. The eldest son of the reigning British monarch obtains possession of the duchy and the title of Duke of Cornwall at birth or when his parent succeeds to the throne, but may not sell assets for personal benefit and has limited rights and income while a minor.

Riparian water rights is a system for allocating water among those who possess land along its path. It has its origins in English common law. Riparian water rights exist in many jurisdictions with a common law heritage, such as Canada, Australia, New Zealand, and states in the eastern United States.

<span class="mw-page-title-main">Constitutional status of Cornwall</span>

The constitutional status of Cornwall has been a matter of debate and dispute. Cornwall is an administrative county of England.

A high sheriff is a ceremonial officer for each shrieval county of England and Wales and Northern Ireland or the chief sheriff of a number of paid sheriffs in U.S. states who outranks and commands the others in their court-related functions. In Canada, the High Sheriff provides administrative services to the supreme and provincial courts.

Unowned property includes tangible, physical things that are capable of being reduced to being property owned by a person but are not owned by anyone. Bona vacantia is a legal concept associated with the unowned property, which exists in various jurisdictions, with a consequently varying application, but with origins mostly in English law.

<span class="mw-page-title-main">Tin coinage</span> 1156–1838 tax on tin in Devon and Cornwall, England

In Devon and Cornwall, tin coinage was a tax on refined tin, payable to the Duchy of Cornwall and administered in the Stannary Towns. The oldest surviving records of coinage show that it was collected in 1156. It was abolished by the Tin Duties Act 1838.

A lordship is a territory held by a lord. It was a landed estate that served as the lowest administrative and judicial unit in rural areas. It originated as a unit under the feudal system during the Middle Ages. In a lordship, the functions of economic and legal management are assigned to a lord, who, at the same time, is not endowed with indispensable rights and duties of the sovereign. Lordship in its essence is clearly different from the fief and, along with the allod, is one of the ways to exercise the right.

<span class="mw-page-title-main">Thomas Pemberton Leigh, 1st Baron Kingsdown</span> British barrister, judge and politician

Thomas Pemberton Leigh, 1st Baron Kingsdown PC, KC, was a British barrister, judge and politician. Originally a successful equity lawyer, he then entered politics and sat as an MP from 1831 to 1832 and from 1835 to 1843. From 1841 to 1843 he was attorney-general for the Duchy of Cornwall. However, he is best remembered for his role on the judicial committee of the Privy Council, of which he was a member for nearly twenty years. Having turned down the post of Lord High Chancellor of Great Britain in 1858, he was the same year elevated to the peerage as Baron Kingsdown. He died unmarried in October 1867, aged 74.

The Revived Cornish Stannary Parliament, was a pressure group which claimed to be a revival of the historic Cornish Stannary Parliament last held in 1753. It was established in 1974 and campaigned, up until 2008, against the government of the United Kingdom's position on the constitutional status of Cornwall.

<i>Commonwealth v Yarmirr</i> Native title claim in Australia

Yarmirr v Northern Territory was an Australian court case, decided in 2001. It was an application for the determination of native title to seas, sea-bed and sub-soil, over an area in the Northern Territory, ultimately determined on appeal to the High Court of Australia.

<span class="mw-page-title-main">Cornish nationalism</span> Nationalist movement in the United Kingdom

Cornish nationalism is a cultural, political and social movement that seeks the recognition of Cornwall – the south-westernmost part of the island of Great Britain – as a nation distinct from England. It is usually based on three general arguments:

Australian mining law governs the exploration and extraction of minerals and petroleum in Australia. It differs substantially from the mining laws of other common law countries, the most important differences arising from the policy decision that the Crown should own all minerals.

<span class="mw-page-title-main">Royal charters applying to Cornwall</span>

This is a list of charters promulgated by kings of England that specifically relate to Cornwall, which was incorporated into the Kingdom of England late in the Anglo-Saxon period. In the 9th and 10th centuries, the kings of Wessex became the rulers of Cornwall, and after a period of independence during the wars with the Danes, this rule by the kings of England became permanent. The charters below relate either to the tin mines of Cornwall and Devon or to the Earldom or Duchy of Cornwall. The stannary charters are dated between 1201 and 1508, the others between 1231 and 1338.

Currently, there are two duchies in England; the royal Duchy of Lancaster and the royal Duchy of Cornwall. Unlike historic duchies in England, these are no longer coextensive with a distinct geographic area, although they originated in the counties palatine of Lancaster and Cornwall. Rather, they are "Crown bodies", regulated by Acts of Parliament, that have some of the powers of a corporation or trust. The administration of the duchies is regulated by the Duchies of Lancaster and Cornwall (Accounts) Act 1838. The duchies invest primarily in land, and their income is payable either to the monarch or the monarch's eldest heir.

<span class="mw-page-title-main">Bergregal</span>

The Bergregal was the historic right of ownership of untapped mineral resources in parts of German-speaking Europe; ownership of the Bergregal meant entitlement to the rights and royalties from mining. Historically, it was one of those privileges that constituted the original sovereign rights of the king.

<i>Ngati Apa v Attorney-General</i> Indigenous rights case of New Zealands Court of Appeal

Ngati Apa v Attorney-General was a landmark legal decision that sparked the New Zealand foreshore and seabed controversy. The case arose from an application by eight northern South Island iwi for orders declaring the foreshore and seabed of the Marlborough Sounds Maori customary land. After lower court decisions and consequent appeals in the Maori Land Court, the Maori Appellate Court and the High Court; the Court of Appeal unanimously held that the Maori Land Court had jurisdiction to determine whether areas of foreshore and seabed were Maori customary land or not. The court also held that, "The transfer of sovereignty did not affect customary property. They are interests preserved by the common law until extinguished in accordance with the law". The effect of the decision was subsequently overturned by the Foreshore and Seabed Act 2004.

<i>In Re the Ninety-Mile Beach</i>

In Re the Ninety-Mile Beach was a decision of the Court of Appeal of New Zealand holding that Maori could not hold title to the foreshore because of the effect of section 147 of the Harbours Act 1878 ; and because investigation of title to land adjacent to the sea by the Māori Land Court had extinguished rights to land below the high water mark. The decision was overturned in 2003 by Ngati Apa v Attorney-General.

Presented below is an alphabetical index of articles related to Cornwall:

References

  1. Philip Payton. (1996). Cornwall. Fowey: Alexander Associates
  2. Text of section 8 of the Cornwall Submarine Mines Act 1858 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk .
  3. House of Commons Hansard (1858-07-19) Col. 1752
  4. "Cornwall Submarine Mines Act" . Retrieved 13 January 2013.
  5. "Cornwall Submarine Mines Act" (PDF). Retrieved 13 January 2013.