CROWN IMMUNITY BY THE STATE SINCE 1066

Magna Charta and the Bill of Rights 1688 were designed to control the abuse of power through guaranteeing the “rights and liberties of the subject”.   The evidence is mounting that this established constitutional balance in under threat.

One year after the first Duchy of Cornwall Charter of 1337, a third of 1338, gave the Dukes of Cornwall the power to govern Cornwall.  The first was held to be an Act of Parliament in 1606 but not the third.   Serious doubts on the validity of this third charter eventually prompted the support of Acts of Parliament.   This led to:  The Limitation Act 1980 section 37 (4):-  “Reference to the Crown shall apply to lands and advowsons forming part of the possessions of the Duchy of Cornwall as if for the references to the Crown there were substituted references to the Duke of Cornwall as defined in the Duchy of Cornwall Management Act 1863”.     This Act of 1863 had also attempted to legalise parts of the third Duchy Charter by including “regalities” as a ‘Possession of the Duchy’. In this case, the regalities of the Duchy of Cornwall apply as if regalities of “the state” were intended.    The assumption of the powers, prerogatives and immunities of the Crown by the state have been exercised by the Crown or the Duchy on behalf of, and authorised by the state, in the sure knowledge that criticism of the Crown or Duchy would be condemned as an act of disloyalty to the state.    Thus can political debate be curtailed by the state.

Some of the property and privileges of the third Duchy Charter of 1338 were at last made law by The Cornwall Submarine Mines Act 1858 for the foreshore and rivers of Cornwall.  The Limitation Act 1980 {s.37(6)} for gold and silver deposits in Cornwall and the Treasure Act 1996 for gold and silver and base metal treasure in Cornwall. Otherwise, it is noted that: “If the King grants to a man return of all manner of writs, yet he shall not have Return of Summons of Exchequer, for this touches the King himself and is not between party and party”.  (Plowden, Commentaries 1761, p.334).

There is a problem.  The state has granted by the third Duchy charter:  “Summons of Exchequer for ever” for the Duke to exercise absolute power in Cornwall.   There is no Act of Parliament to re-create “Summons of Exchequer” for the Duke in Cornwall, unless, “regalities, prerogative powers and jurisdictions” of the Bill of Rights assumes the government of Cornwall by the Duke, the heir to the throne.   The powers and jurisdictions of the Duchy under the third Charter of 1338 to control Cornish speaking Cornwall as if it were a separate country, have, after many centuries in force, been given state support with legislation to guarantee an income for the heir to the throne, principally from Cornwall, in place of the state collecting additional taxation from all British citizens to obtain that income.   This course was taken rather than repeal “prerogatives” and “summons of Exchequer” which are equivalent to “the pretext of prerogative” subsequently condemned by the Bill of Rights in 1688.

“The primary function of the Duchy of Cornwall created 1337 is to provide an income for present and future Dukes of Cornwall”.  (Annual Duchy of Cornwall Financial Statement, 1993).   This was done to avoid taxing the English public.   By this imposition, the state had accepted the established custom that: “The English people could continue to indulge their natural dislike of paying taxes and their predilection of starving government of the means to govern”.  (England under the Tudors, G.R.Elton, p.47, Metheun, London, 1967).

“The invidious position of the Duchy is that it compromises the original principle of English constitutional law that the Monarch should be dependent on Parliament for finance”.   (Who Owns Britain, Kevin Cahill, Canongate, 2002).

Since 1066 the claim has been made that: “The Crown is the only absolute owner of land in England and Wales all others own an estate in land”.  (Land Registration Act 2002, Intro. para 4 ‘Title to land’).   The Crown Estate comprises lands, other rights and minerals which the Monarch enjoys in her political capacity”.  (Halsbury’s Laws, Vol. 12(1), para.278).  So, in reality, the state has permitted the Crown to be the only absolute political owner of all land.

The heir to the throne also acts as an arm of the state (by helping to avoid taxation of the English public by the state) when making political decisions relevant to the land of the Duchy of Cornwall which a Duke occupies but “has no formal title and cannot dispose of the lands”.  (The Prime Minister, Hansard, 25th March 1996).

The English state secret concerns the implementation of an alternative tax on Cornwall without breaking the law. There were restrictions. “The exercise of the prerogative by the rightful heir out of possession is void and of no legal effect”. (3 Co. Inst 7)”.     (From Halsbury’s Laws; 4th Ed; Vol.8;  Constitutional Law; para. 902; Exercise of the Prerogative; Butterworths 1974).   This convention, designed to prevent further acts of usurpation of the English throne by the heir apparent, could be ignored by the third Duchy of Cornwall Charter of 1338 by granting the Duke the right to exercise absolute power legally in Cornwall only if restricted to Celtic Cornwall as being separate from England.   The objective was to give the Duke the power to collect his income without disturbing the English power structure while, at the same time permitting the state to avoid levelling a constitutional tax on the English national majority.    The Duchy tax, called ‘coinage’, secured mostly from Cornish tin production (95% of all produced), was levied on Cornish tin production at twice the rate per hundredweight for the indigenous Celtic people as that levied on tin production in Anglo-Saxon Devon. (The Stannarties, G.R.Lewis, Harvard, 1908).

If the Duke of Cornwall, as heir to the throne, is considered to be “an occupier” of Cornwall as state property, then, he would apparently be eligible for “Crown immunity”.    Duchy land, as with departments of state, also has immunity from compulsory purchase under Part 8 & 9 of the Planning and Compulsory Purchase Act 2004.   This is in addition to the Duke already being well covered by the Crown Proceedings Act 1947, section 38 (3), which declares:-  “Any reference in this Act to His (now Her) Majesty in His (Her) private capacity shall be construed as including a reference to the Duke of Cornwall”.  The state controlled Duchy is not mentioned.

On 26th July 2006 HM Treasury stated in a letter: “ It (the Duchy of Cornwall) remains private because it has never been taken into public ownership by purchase, under statute or otherwise”.  There is official silence as to why 1066 state land for the Crown Estate is political and 1066 state land for the Duchy of Cornwall is private.   Ultimately the state is responsible for the actions and omissions of the Duchy of Cornwall. The use of “private” to describe the Duchy is a denial of the aims and principles of the Bill of Rights 1688 which make no reference to any private estates.

In 2006 ‘HM Treasury’ failed to mention its own legal position.  The obscure Duchy of Cornwall Management Act 1982 at section 8 declares:-  “The Treasury shall have regard to the interests of both present and future Dukes of Cornwall”.   This high level of priority is for state land classified as Duchy land.  It would appear that HM Treasury is required to ensure that the Cornish national minority are, in compliance with this Act, never consulted and treated as second class citizens.

The  “rights, property and profits” (Crown Proceedings Act 1947, sections 38 (3) & 40.2g) of the heir to the throne continue to be applicable to Cornwall and the Duchy of Cornwall based on the feudal powers and immunities of the state in Duchy Charter No.3 which establishes a precedent eligible to be used as the basis for the abuse of state power elsewhere in the UK.  Unlike, for example, in Australia, in particular Queensland, land is subject to a land tax but there is no land tax in the UK.

From the grave Magna Charta finally made a token challenge to: “The state as absolute owner of land”.    By the Crown Estate Act 1961, sections 3 & 4, this arm of the state shall implement:  “Grants for public purposes” and “excluding any element of Monopoly”. However, these public spirited provisions do not apply to Cornwall in any Act of Parliament. The Duchy of Cornwall has immunity from the Freedom of Information Act which indicates immunity for the state to conceal aspects of Cornish history.   This has been indirectly confirmed by the state’s Crown Estate.   The Crown Estate, in its response to a Freedom of Information request in a letter to the undersigned of 7th January 2005, gave this information: “The Crown Estate has no holdings within the boundaries of Cornwall.  The analogous landowner in Cornwall is the Duchy of Cornwall”.   What was the point of this separation by the state of Cornwall from the remainder of the UK?

If only Magna Charta of 1215 was still in force. The abolished Magna Charta required the Monarch to: “return deprived lands, castles, and liberties”. (Article 52). The shall be “for ever” of Magna Charta has been lost but retained in the case of the Duchy of Cornwall Charters. It would appear that the inspiration of “the return of lands” in Magna Charta of 1215 and “the liberties of the people” in Bill of Rights of 1688 is merely a Magna English myth celebrated to hide subsequent extensions to the monopoly of British state power over Cornish land called Duchy land or English Heritage to avoid questions by hiding behind a royal title.

With a contested: Duchy of Cornwall third charter summons of Exchequer of 1338 to a private occupier of state land with jurisdiction and unlimited regalities confirmed in 1863, to impose a separate taxation system on the Cornish, its profits invested wherever it chooses confirmed in 1947, the right to claim gold and silver deposits and treasure and bona vacantia in Cornwall on behalf of the state but, by a Prime Ministerial statement, “has no formal title and cannot dispose of the lands” in 1996 plus, HM Treasury “never taken into public ownership” of 2006 and absolute owner with state immunity called Crown immunity since 1066,  Her public capacity and His private capacity and Duchy immunity from the Freedom of Information Act 2000, then, at the very least after all the historic and deceptive abuses of names and titles, Charters or Acts, the property of the Duchy of Cornwall belongs to the original owners, the indigenous Cornish people, urgently required for affordable housing and to promote the Cornish language and culture.

Hence, it is feared, the centuries of racially discriminating policies by the state are being suppressed as a state secret rather than being corrected.   The solution to this incontestable history appears to be to throw the Cornish into the dustbin of history by convincing them that they are English.  The final insult is the ten year long exclusion of the Cornish from the Framework Convention for National Minorities, clearly in an attempt to hide the Celtic history of Cornwall and the feudal function of the Duchy of Cornwall retained to facilitate converting the nationality of the Cornish minority to that of the English majority.

Cornwall then, has been separated by the state from “all land”, taken at the Conquest of 1066, and isolate it from Magna Charta and the Bill of Rights, to create Cornwall as the only absolute ‘private’ state monopoly.    The evidence reveals that the state exploits its political monopoly of prerogative and immunity powers through the medium of the Duchy of Cornwall in Cornwall.  The Duchy of Cornwall is described as “a mark of English overlordship” by Lord Kilbarandon in the report of The Royal Commission on the Constitution of  1972.

Secrecy is enforced .  “There are restrictions on any questions which casts reflections on the royal family”.  (House of Commons Library, June 1997 to Andrew George M.P.)    It is contended that the various arms of the state have come together in the Freedom of Information Act (s.37) to exclude the public from the constitutional debate by the immunity from disclosure of exchanges between a member of the royal family and a Minister of the Crown.  This arrangement conceals monopoly power.

The American system of “legal indeterminacy” accepts that “law is nothing more that politics by another name”. However, the imbedded compensating principle of this Anglo-Saxon system is its emphasis on equality before the law and the importance of controlling the abuse of power.  Unfortunately, justice is compromised in Cornwall by state immunities under the name of  “Crown or Duchy” which can hide the abuse of state power under another political name.

International standards are ignored and the resulting legal vacuum removes the means of effectively controlling the abuse of power by all arms of the state.  The UN Universal Declaration of Human Rights 1948, has not been incorporated into UK law. Of special importance for minorities is Article 7, the right to “equality before the law”.    Protocol 12 of the European Convention of Human Rights has also not been ratified by the UK.   Protocol 12 affirms:  “No one shall be discriminated against by any public authority on any grounds”.    Human Rights provisions must be recognised as absolutely necessary to protect all the people from the abuse of power through state immunity, of, by and for the state.

Finally, the situation demands a demonstration of official integrity which can be achieved by including the Cornish within the provisions of the Framework Convention for National Minorities and making all United Nations human rights covenants and conventions part of British constitutional law which shall then be guaranteed “for ever”.

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One Response to CROWN IMMUNITY BY THE STATE SINCE 1066

  1. Stuart Cullimore says:

    Good Work

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