John Kirkhope is a notary public solicitor who has spent an extraordinary amount of time studying Cornish law.

Here is his article "The Duchy of Cornwall - A very Peculiar 'private estate'" which appeared in the Feb/Mar 2009 edition of Cornish World. It makes for very interesting reading. Cornwall has a unique legal history. Stannary law, a legal system exclusive to Cornwall, is still formally part of the law of Britain and one of the oldest; it predates the Norman Conquest and possibly even the Anglo Saxons. As a practicing lawyer and someone with a passionate interest in history I decided to combine my enthusiasms and set about writing a book provisionally titled Cornish Law something that had not been done before. It is interesting to note one could not imagine writing a book entitled say Berkshire Law or Somerset Law. I have spent some time considering the Duchy of Cornwall, its establishment and development. As part of that process, I have read the papers relating to the Cornwall Foreshore Case (a legal arbitration between The Duchy of Cornwall and The Crown over the ownership of the Cornish foreshore) and have been struck by the claims once made for the Duchy and the claims made for the Duchy now. In the summary to the Duchy submissions in 1855 it was claimed on behalf of the Duchy: “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 of the territorial interest and dominion of the Crown in and over the entire County of Cornwall.” Even further back in 1584 John Norden in his Description of Cornwall stated: “High Highness, by this honour is privileged with sundry jurisdictions and Royalties. The benefit arising by minerals as of gold silver tin and such like…having within his government a peculiar parliament. Moreover appointeth all officers as the sheriff, an officer of greatest command, being vicegovernor of the shyre.” In contrast, Duchy of Cornwall now claims it is a ‘well managed private estate’. One cannot judge if it is well managed, but what I can say is that if it is a private estate it is a private estate with a unique array of rights and privileges not available to other similar private estates. The Duchy once had an impressive array of regalian, or Royal rights; for example the right of ‘prisage of wine’, the right of ‘great customs of wools, wool-fels and leather’ and the right to ‘seize and confiscate enemies ships in times of war’. A surprising number of these ancient rights have survived and are still exercised by the Duchy. Despite their strange-sounding names they provide the Duchy and the Duke with considerable benefits. The following is not an exhaustive list but amongst the rights which remain are: Right to bono vacantia It is generally known that if you die in Cornwall with no heirs then your estate will pass to the Duchy of Cornwall. Few people realise how extensive this right is. Firstly it applies if you are ‘domiciled’ in Cornwall. Domicile is a very tricky legal concept. You could in theory have

lived in Yorkshire for 50 years and still be domiciled in Cornwall. Generally no one is domiciled in the United Kingdom; you are either domiciled in Scotland, Northern Ireland or England and Wales. For this particular purpose you can also be domiciled in Cornwall. This particular right includes the assets of dissolved companies and freehold land in Cornwall which becomes ownerless. The right of ‘bono vacantia’ is not very common but it does arise more often than people might imagine. For the year ended 2007, some £130,000 was realised from this right. Bertie Ross, secretary and keeper of the Records of the Duchy of Cornwall, appeared before the public accounts committee of the House of Commons in 2005 on behalf of the Duchy. In answer to a question regarding bono vacantia he stated: “This is one of the traditional things we have inherited.” When asked what the money was used for, he added: “It is a charity. It is used for education, religion, etc. We try to focus it back into the area from which it has come.” In fact the Duchy website states the money is used in the South West. Since the funds by definition come from Cornwall, you would expect it all to be spent in Cornwall; however only a small percentage is. Right to appoint sheriff In a departure from English tradition, in Cornwall it is the Duke of Cornwall rather than the Crown who appoints the sheriff. The position is now largely ceremonial; in times past the sheriff was a very important person with control of the Duchy government and courts. Right to fundus and foreshore The Duchy has a right to about three fifths of the foreshore of Cornwall as a consequence of the Cornwall Foreshore Case and the resulting Cornwall Submarine Act 1858. Needless to say, in the rest of the country the foreshore is owned by the Crown. The Duchy also owns the ‘fundus’ or navigable riverbed of the Tamar, most other Cornish rivers, and some rivers in Devon. This means the pillars of the Tamar Bridges are located on Duchy property, so presumably a certain amount of the fees paid for crossing the bridges is paid to the Duchy. Right to wrecks The Duchy has the right to unclaimed wrecks within its jurisdiction either floating within a specified distance from the shore or washed ashore. The right extends to Royal fish (Royal fish are whales dolphins and sturgeon which are washed up). Rights applicable to Duchy solicitors and barristers This right is rather odd and means that, unlike any other any other barrister or solicitor within England and Wales, the Attorney General to the Duchy being a barrister or solicitor need not

be called to the English and Welsh Bar if a barrister or hold a practising certificate if a solicitor. Right to summon a parliament Some introductory comments here would be useful. The Convocation or Parliament of Tinners has, by the Charter of Pardon of 1508, the power of veto of Westminster legislation a power it did exercise. A professor of law, the late Robert Pennington, stated: “No other institution has ever had such wide powers in the history of this country.” The Cornish Tinners Parliament last met in 1753, 45 years after the old Scottish Parliament was abolished and only 48 years before the Irish Parliament was abolished. As Professor Pennington says: “ (the Cornish parliament) still exists as a legal institution and its powers of veto remain unimpaired.” Unlike the Scottish and Irish Parliaments it has never been abolished, a fact recently confirmed in a letter from the Ministry of Justice. The Duke of Cornwall has at least the theoretical right to summon the Tinners Parliament and to give Royal Assent to Acts passed by it. An order could even be sought from the court obliging the Duke to summon the Parliament, a view shared by one QC whom I recently consulted. The right not to pay tax Firstly it should be noted that the Duke of Cornwall is entitled to the income of the Duchy but not the capital. Next, in the report issued by the House of Commons in 2005 it was stated: “In accordance with normal practice the Duchy is not subject to tax as it is not a separate legal entity for tax purposes. However, His Royal Highness is subject to income tax on the Duchy’s net income.” The statement is surprising and difficult to understand. Effectively, the Duchy is exempt from capital gains tax and presumably inheritance tax. Asset sales, on which capital gains tax may potentially have been due, have totalled £123 million since 2001. Presumably this considerable benefit makes the task of running a ‘well managed’ private estate much easier. It is in this regard that the Duchy website is misleading. It states: “The Prince of Wales already pays income tax on the Duchy’s surplus.” He does not. He pays voluntarily an amount equal to the income tax he would have paid if he had been liable. In reply to a question from the public accounts committee Mr Ross stated: “The Prince pays tax on a voluntary basis in exactly the same way as any other taxpayers.” I don’t know how many of us pay tax on a voluntary basis. The Duchy enjoys a highly privileged tax status unique to a ‘private estate’. In accordance with ‘normal practice’ it does not pay capital gains tax or inheritance tax and income tax is

paid on a voluntary basis. The last figures published show the Duke’s income from the Duchy was £16 million. His voluntary contribution, equal to the income tax, would be £3 million. For completeness sake the Duchy does pay VAT. The right for the Dukedom not to be extinguished for want of an heir This is a unique characteristic of the Duchy. For about half the period since the Duchy was created there has been no Duke. It is an honour that passes to the eldest living son, being heir to the throne of England. “There may be no Duke but there is always a Duchy,” as AL Rowse once said. The right to the Isles of Scilly Although some freeholds have now been sold in broad terms the Duchy claims it owns the Isles of Scilly although the means by which it does so is surprisingly ambiguous. The right to Crown immunity It is a long standing legal doctrine that unless Parliament intends otherwise, onerous legislation does not apply to the Crown. The Crown for this purpose is not limited to the monarch personally, but extends to amongst others the Prince of Wales in right of the Duchy of Cornwall. In simple terms an Act of Parliament does not extend to the Duchy unless the Act specifically says so. The right to intervene in court cases and demand a trial at bar Like the monarch, the Duke has the right to intervene in certain court cases and also to ask for a ‘trial at bar’ which means a trial before all the judges of one of the superior courts of Westminster. AL Rowse wrote: “The Duchy of Cornwall is a peculiarly interesting institution with a constitutional status and characteristics all of its own of which few people are aware and with which only a few lawyers are competent to deal.” It would appear that the Duchy would seek to deny that unique status. It says it is a private estate that in fact owns more land outside Cornwall than within. The Duchy emphasises that ‘The Duchy is not the county and the county is not the Duchy’ and yet the Duchy and the Duke have a set of Royal rights more usually only available to the Crown, which apply only to Cornwall. Does any of this matter? Well yes I think it does. Firstly for the heir to the throne to permit statements that make clearly misleading claims does him no justice. A private estate does not have the Royal rights enjoyed by the Duchy; consider, for example, its tax status. These seemingly archaic rights, for example the right to the foreshore, generate significant income for the Duchy, and the Duke, which means a disproportionate share of the expenses of the heir to the throne falls on Cornwall.

That, at least, should be acknowledged and discussed. At a time when Cornwall, economically, needs bolstering and the government of Cornwall in apparent upheaval perhaps the legal status of Cornwall and the monies generated by The Duchy need to be made transparent rather than suffer the murkiness of misinformation.