A summary of “The United Nations and the Rule of Law” website highlights fundamental universal legal principles as: “Support the rule of law framework at the national level: a constitution or its equivalent, as the highest law of the land….. strengthening the rule of law ….with legal certainty and equality before the law….laws equally enforced ….holding public officials and institutions to account including the state itself”. (Report of the Secretary General S2004/616).
The Bill of Rights 1688 is clearly of “the highest law of the land” category for the UK and should be a pillar of legal certainty and equality before the law for everyone. But, do the Cornish have the right to expect that the Bill of Rights provision of: “the rights and liberties of the people of this Kingdom shall be strictly observed” takes precedence over the powers of the Duchy of Cornwall Charters of 1337/8 made exclusively for the heir to the throne in Cornwall?
It is widely reported that George Osborne, the Chancellor of the Exchequer has announced (1st July 2011) that “rules which ring fence funding for male heirs would be torn up”. This is an ideal opportunity for a public inquiry into the aims and objectives of English law in Cornwall. The terms of reference should include bringing to an end the adverse impact on Cornwall of the Duchy of Cornwall Charters. The powers granted in these charters were intended to relieve the English national majority of paying taxation for the heir to the throne. The Duchy is a legacy of arbitrary government and absolute political power stretching over a period of more than six centuries. To date successive Governments of the UK have failed to provide legal certainty by enforcing limits to Duchy power exercised in Cornwall.
It is noted that legal certainty is not the norm in the United States of America. In the United States the principle of “legal indeterminacy” prevails. Legal indeterminacy is concerned principally with: “protection against arbitrary government action by controlling the use of power to make and apply law”. This principle is based on the concept that: “law is nothing more than politics by another name”. (“Legal Certainty: A European Alternative to American Indeterminacy? by James R. Maxelner – Excerpt from: LexisNexis).
Is the rule of English law for the Duchy of Cornwall in Cornwall: “nothing more than politics by another name”? Unfortunately, this appears to be the case. Official embarrassment over the incompatibility of the political powers of the duchy Charters for Cornwall with the Bill of Rights has led to a ten year refusal to include the Cornish within the provisions of the human rights Framework Convention for National Minorities. Governments of the UK must halt the legal indeterminacy of treating Cornwall as part of the feudal baggage of the Duchy of Cornwall by repealing the Duchy of Cornwall charters and recognising the Cornish national minority.
Attached is a copy of the in force third Duchy of Cornwall Charter of 3rd January 1338 which authorises the Duke to exercise political power in Cornwall only in the form of: “the return of all writs of us and our heirs, summonses of Exchequer and do any other official act (officium) there”.
© Save Cornwall – 4th July 2011
Charter of the Duchy of Cornwall
11 Edward III *
(3rd January 1338)
Edward, by the grace of God, King of England, Lord of Ireland, and Duke of Aquitaine, to his archbishops, bishops, abbots, priors, earls, barons, justices, sheriffs, reeves, ministers, and all his bailiffs and lieges, greeting. Know, that whereas We lately willing to honour the person of Our faithful and beloved Edward, Earl of Chester, Our first begotten son, did give to Our said son the name and honour of duke of Cornwall, and appointed him to be duke of Cornwall, and girded him with a sword, as it behoved, and that he the state and honour of a duke might be able to maintain in a manner becoming the nobility of his race, and support his charges attaching to such high honor, did give and grant by Our charter, for Us and Our heirs, to Our said son the shrievalty of Cornwall, with the appurtenances, also the castle, borough, manor and honor of Launceneton and divers other castles, boroughs, towns, manors, and honours, in the same county and elsewhere To have and to hold to the said duke and the eldest sons of him and his heirs kings of England, being dukes of the same place and heirs apparent to the said kingdom of England, together with the knights fees, advowsons of churches, and all other things to the said castles, boroughs, towns, manors, and honours in anywise belonging, from Us and Our heirs for ever, as in Our charter thereof to the said duke made is more fully contained, We, willing to provide more abundantly for Our said son, have given and granted for Us and Our heir, and by this Our charter have confirmed to the said duke all Our fees, with the appurtenances which We have in the said county of Cornwall, or which do or shall (poterunt) belong or appertain to Us; To have and to hold to the said duke and the first begotten sons of him and of his heirs, king. of England, being dukes of the said place and heirs apparent to the said kingdom of England as aforesaid, together with. wards, marriages, reliefs, escheats, forfeitures, and all other profits, issues, and emoluments which belong or shall belong to Us by reason of those fees, or which We and Our heirs might perceive and have if we bad retained these fees in Our hands, from all and singular as well those who now hold the fees so by Us given and granted with the said county of Cornwall and those who shall hereafter bold the same, as also from the tenants holding of those fees, when they shall happen, notwithstanding Our prerogative in that behalf, and notwithstanding that the tenants who bold those fees or the tenants who hold of those fees may bold of Us or of Our heirs of Our crown or otherwise, in chief or in any other manner without the said county or within, of Us and Our heir, for ever. Which fees, with the a end all other things aforesaid, as they are above specified, We for Us and Our heirs annex to the said duchy and unite so to remain for ever in the same manner as the said castle, boroughs, towns, manors, and honour. are annexed to the same, so that the same be in no wise severed from the said duchy at any time nor be given or in any wise granted by Us or Our heirs to any other person or persons than to the said dukes of the said place. And moreover We have granted of Our more abundant grace to the said Duke, for Us and Our heirs, that he and the first-begotten sons of him and his heir, kings of England, being dukes of the same place and heirs apparent to the said kingdom of England, do for ever have the returns of all writs of Us and Our heirs, and of summonses of the Exchequer of Us and Our heirs, and attachments, as well in pleas of the Crown as in all others, as well in the same fees, as also in other fees which are held of the same in the said county of Cornwall; so that no sheriff, or other bailiff or minister of Us or Our heirs enter those fees to execute the said writs and summonses or to make attachments, as well in pleas of the Crown as in the others aforesaid, or do any other official act (officium) there, except in default of the said Duke and other Dukes of the said place, and his and their bailiff and minister aforesaid; and also that they have the chattels of the tenants holding the fees, and also of the tenants holding of their fees in the county aforesaid, being felons and fugitives, so that if any of the same tenants ought for his offence to lose life or limb, or shall flee and refuse to stand to justice (Judicio stare noluerit), or shall commit any other offence for which be ought to lose his chattels, wheresoever justice ought to be done upon him, whether in the Court of Us or Our heir, or in any other Court, the said chattels shall belong to the said Duke and the other Dukes aforesaid, and that it be lawful for them and their ministers, without hindrance of Us or of Our heirs or of other Our bailiffs or ministers whatsoever, to put themselves in seisin of the chattels aforesaid, and to retain them to the use of the said Duke and of the said other Dukes; and also that they for ever have all fines for trespasses and other offences whatsoever, and also fines pro licentia concordandi, and all amerciaments, ransoms, issues forfeited and forfeitures, year day, and waste and strip, and all things which to Us and Our heirs may belong of the said year day and waste and likewise of murders from all tenants holding their fees, and holding of their fees, in the said county, in whatsoever Court of Us and of Our heirs it shall happen that these tenants, as well before Us and Our heirs and in the Chancery of Us and our heirs and before the Treasurer and Barons of Us and Our heirs of the Exchequer, and before the Justices of Us and Our heirs of the Bench, and before the steward and marshal and clerk of the market of the household of Us and Our heirs for the time being, and in all other the Courts of Us and Our heirs, as also before justices itinerant for common pleas and pleas of the forest, and any other justices and ministers of Us and Our heirs, as well in the presence as in the absence of Us and Our heirs, make fines, or be amerced, forfeit issues, or that forfeitures and murder shall be adjudged against them, which fines, amerciaments, ransoms, issues, year day and waste or strip, forfeitures and murders, to Us and Our heirs would belong if they had not been granted to the said Duke and the other Dukes aforesaid, so that the same Duke and other Dukes aforesaid by themselves, or by their bailiffs and ministers may levy, perceive, and have such fines, amerciaments, issues, and forfeitures of such tenants, and all things which to Us and Our heirs might belong of the said year, day, and waste or strip and murders, without question or hindrance from Us and Our heirs, justices, escheators, sheriffs, coroners, and other bailiffs or ministers whatsoever: Also We have granted to the said Duke for Us and Our heirs, and by the charter have confirmed, that he and the first-begotten sons as aforesaid of him and his heirs, Kings of England, being Dukes of the same place and heirs apparent to the said kingdom of England, do have and hold all fees to the aforesaid castles, boroughs, towns, manors and honours, and other lands and tenements, whatsoever, which we gave to the said Duke by another charter, and caused to be annexed and united to the said duchy, in the said county of Cornwall, in any wise belonging, together with wards, marriages, reliefs, escheats, forfeitures, and other profits, issues, and emoluments whatsoever, which belong or shall belong to Us by reason of those fees in the same county, or which We or Our heirs might and ought to perceive and have if the said fees had been retained in the hands of Us and Our heirs, as well from all and singular the tenants who now hold or who hereafter shall hold the said fees as from the tenants holding of the said fees within the said county whenever the same shall happen, notwithstanding Our prerogative, or that the tenants holding the said fees, or the tenants holding of the said fees may hold elsewhere of Us and of Our heirs, or of the crown or otherwise in chief, or in any other manner, without the said county or within. We have granted also to the said Duke for us and our heirs, that be perceive and have scutage and profit of scutage as well of the fees aforesaid as also of all other fees belonging to the said castles, manors, honors, lands and tenements which We have lately granted to the said Duke as being annexed and united to the said dukedom, as well without as within the said county of Cornwall, and also of the knights fees belonging to the earldom of Chester within our said kingdom of England, viz. 40 shillings de scuto, or more or less, as it should happen, that We or Our heirs levied and bad de scuto as well of the first year of our reign, and of any other time since we took upon ourselves the government of Our kingdom as also in times future whilst be shall hold the said duchy, notwithstanding the said fees in the said first year or since have been in Our bands or in the hands of others, so as that We ought to have the scutage thereof, and notwithstanding that the said Duke may not hitherto have bad or in future have his service in our wars, of Scotland or elsewhere by reason of which service he ought to receive such scutage. Wherefore we will and firmly command for Us and Our heirs, that the said Duke and other dukes of that place for the time being for ever have the fees aforesaid with the appurtenances and all other profits aforesaid, and also the liberties aforesaid and that they henceforth fully enjoy and use the said liberties and every of them, and that the said Duke as well in the said past time as henceforward as long as he shall hold the said duchy, do have and receive the scutage aforesaid and the profit thereof, is as aforesaid.
Witnesses, the venerable Fathers .J. Archbishop of Canterbury, Primate of all England; R. Bishop of Coventry and Lichfield; R. Bishop of Chichester, Our Chancellor; Hugh de Courteney, Earl of Devon; Henry de Beaumont, Earl of Boghan, William de Clynton, Earl of Huntingdon; William de Ros de Hamelak, Henry de Ferrar John Darcy, steward of Our household, and others.
Given by Our hand at the Tower of London, the third day of January, in the 11th year of Our reign.
(* James Manning – Report of Cases argued and determined in the Court of Kings Bench 1830)
(From the appendix to the Trial at Bar, Rowe v Brenton 1828, (8B @ C737) Manning edition).