Written evidence submitted by Philip Hosking
Please find below some ideas for inclusion in your
consultation process.
Perhaps you know this already but within the United
Kingdom of Great Britain and Northern Ireland you never really
own the land you live on. If you are ever lucky enough to buy
property you'll do so as a freeholder.[4]
Essentially you are "free" to "hold" this
land for as long as you like and dispose of it as you see fit
but you don't really own it. The land is held from the Lord Paramount.[5]
In the UK this is the Crown.[6]
If you die without heirs -intestate[7]
your land reverts to the Crown and is disposed of by the Crown
Estate. The bigger legal concept is that of Bona Vacantia[8]
or ownerless goods. So what? You might be asking. After
all we do need a way of dealing with intestacy, ownerless goods,
mineral rights, treasure trove[9]
and so on. Very true, but where does this right to Bona Vacantia
come from and what can it tell us about the Cornish question.
Clearly the answer is sovereignty.[10]
Who has sovereignty over the territory in question has the rights.
In England and Wales this is the Crown. Equally in Scotland and
the Six Counties of Northern Ireland it comes to the same Crown.
Within the territory of the Duchy
of Lancaster[11]
the Monarch recuperates Bona Vacantia as she/he holds the rights
to the Duchy. This is always the case. The money generated from
the Duchy of Lancaster is filched by the Monarch as an income.
An interesting constitutional question therefore is whether the
Monarch has the de jure[12]
constitutional power to govern the Duchy of Lancaster differently
from the rest of England?
To recap, the Crown is sovereign over the UK's "home-nations"
and so has the rights to Bona Vacantia, amongst other things,
in these countries. In Cuba, Malaysia, the USA, so on and so fourth,
the Crown has no such rights because in these places it has no
sovereignty.
Is that the whole story within the UK? No, not quite.
Within Cornwall, what many call the historic county of Cornwall,
Bona Vacantia is not the right of the Crown. Instead the Duke
of Cornwall gets to trouser it[13],
the current Duke being Charles Prince of Wales. So does this mean
that in some legal constitutional de jure way the UK Crown
and its government are not sovereign in Cornwall even if they
do exercise de facto[14]
authority? Does that equate to the Duke of Cornwall being the
constitutional head of state of Cornwall having un-exercised sovereignty?
It should also be noted that ignoring the already
mentioned Crown, Duchy of Lancaster and Duchy of Cornwall ALL
other royal titles found within the British Isles are merely titular
and carry NO constitutional power. They are just for show. Only
the Crown, Duchy of Lancaster and Duchy of Cornwall are mentioned
when new laws are passed. They are protected from having their
rights infringed by the new laws. No other titles are mentioned
as they don't have rights and powers that could be infringed upon.
Take for example the Tamar Bridge Act of 1998 which states in
section 41 under Crown rights:
- (1) Nothing in this Act affects prejudicially
any estate, right, power, privilege, authority or exemption of
the Crown including (without prejudice to the general law concerning
the applicability of statutes to the Duchy of Cornwall) the Duchy
of Cornwall and, in particular and without prejudice to the generality
of the foregoing, nothing in this Act authorises the Authorities
to take, use, enter upon or in any manner interfere with any land
or hereditaments or any rights of whatsoever description:
- (a) belonging to Her Majesty in right of
Her Crown and under the management of the Crown Estate Commissioners,
without the consent in writing of those commissioners; or
- (b) belonging to the Duchy of Cornwall or
enjoyed by the possessor for the time being of the Duchy of Cornwall,
without the consent of the Duke of Cornwall testified in writing
under the seal of the said Duchy or, as the case may be, the consent
in writing of two or more of such of the regular officers of the
said Duchy or of such other persons as may be authorised under
section 39 of the [1863 c. 49.] Duchy of Cornwall Management Act
1863; or
- (c) belonging to a government department,
or held in trust for Her Majesty for the purposes of a government
department, without the consent in writing of that government
department.
You'll never find anything like that for the Earl
of Wessex[15],
Duke of York[16]
or Duke of Edinburgh[17].
An interesting constitutional can of worms don't you think? Many
more of the Dukes rights over the territory of Cornwall can be
found here[18].
What is the basis in constitutional law for these rights? Cornish
constitutionalists[19]
are unanimous in stating that sovereignty over the territory of
Cornwall was annexed and united to the Duchy of Cornwall when
it was created in 1337 and that since this date, in legal terms,
nothing really has changed. Returning to the subject of freehold:
in Cornwall you hold your land from the Duke of Cornwall as Lord
Paramount over the territory of Cornwall.
Why was Cornwall chosen for the creation of this
very particular constitutional arrangement? Could it of had anything
to do with the fact that Cornwall was inhabited by Cornish Britons
with a long history of fighting for their independence? Could
it of had anything to do with the rich mineral wealth of Cornwall?
We could comment that today to deny the Cornish their
recognition via this special legal status to the point of even
denying them any open and honest knowledge of the Duchy and its
history is an effort by the establishment to erase Cornish specificity.
So what is on my belated Christmas wish list with
regards the above? Well to start with what on earth is this nonsense
of a Monarch (even if fused with a partially elected government)
or Duke being sovereign? We the people are sovereign. It is only
because enough of us continue to believe in the Monarchy and Duchy
or ignore them as being unimportant that they continue to exist
favouring as they do their small selection of super-citizens[20]
above the laws that govern the rest of the populace. Return the
sovereignty of Cornwall to the residents of Kernow for them to
govern themselves as they see fit.
5 January 2011
4 http://en.wikipedia.org/wiki/Freehold_%28English_law%29 Back
5
http://en.wikipedia.org/wiki/Lord_Paramount Back
6
http://en.wikipedia.org/wiki/The_Crown Back
7
http://en.wikipedia.org/wiki/Intestacy Back
8
http://en.wikipedia.org/wiki/Bona_vacantia Back
9
http://en.wikipedia.org/wiki/Treasure_trove Back
10
http://en.wikipedia.org/wiki/Sovereignty Back
11
http://en.wikipedia.org/wiki/Duchy_of_Lancaster Back
12
http://en.wikipedia.org/wiki/De_jure Back
13
http://www.scribd.com/doc/45690054/The-Crown-Estate-Escheat-a-guidance-note Back
14
http://en.wikipedia.org/wiki/De_facto Back
15
http://en.wikipedia.org/wiki/Earl_of_Wessex Back
16
http://en.wikipedia.org/wiki/Duke_of_York Back
17
http://en.wikipedia.org/wiki/Duke_of_Edinburgh Back
18
http://www.scribd.com/doc/44178693/The-Duchy-of-Cornwall-A-Very-Peculiar-Private-Estate Back
19
http://duchyofcornwall.eu/ Back
20
http://www.republic.org.uk/blog/?p=1653 Back
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