the historical past of challenges to the royal prerogative – Half II – Administrative Regulation within the Widespread Regulation World

This put up continues from the earlier and appears at how there are examples of challenges to the royal prerogative relationship again to the reign of Elizabeth I.

The Case of Mines

Not like possession of swans, the standing, energy and wealth stemming from the power to mine treasured minerals and ores from the land persists to the present day, and thus little clarification is required as to why management of extraction of minerals was necessary. Nevertheless, considerations about one other battle with Spain added urgency to the query. Early in her reign, Elizabeth I particularly invited skilled German miners to advise on find out how to higher exploit their mines in England and Wales.

This dispute arose with the invention of gold in England, in 1565. Queen Elizabeth I issued grants in 1564 and 1565 for Daniel Höchstetter[1] and Thomas Thurland[2] to ascertain mines in eight counties of England, and licensed them to offer her with minerals and mines. Because of this, within the space of Keswick in Cumberland:

Miners had been thereupon introduced in nice numbers, and the mines within the neighborhood of Keswick and Caldbeck had been exploited with nice vigour. Cash was spent lavishly on elaborate buildings and gear. The promoters had been inspired by taxation exemptions within the early days, they had been allowed to chop timber, and the Queen gave orders for them to be protected towards native prejudice. Dues had been paid to the Queen … [3]

Nevertheless, the land in Keswick was owned by Thomas Percy, 7th Earl of Northumberland, a distinguished Catholic noble. In the midst of their excavations, the miners found copper ore, in addition to ore containing silver or gold, and sought to take it away to extract the valuable metals. The Earl objected to the miners, and tried to cease them from taking away the ore and disturbing his lands, and sought damages in relation to their conduct. The Queen asserted that her actions had been authorized as a result of she had a royal prerogative to all gold and silver within the realm. The Earl argued that the royal prerogative didn’t prolong to taking gold and silver, because it was not listed within the Prerogativa Regis (‘Of the King’s Prerogatives’) an Act of Edward II from 1322, during which numerous of the monarch’s prerogatives had been outlined. Even when the taking of silver and gold was a royal prerogative, the Earl asserted that he and his forebears had been granted letters-patent to use the mines by Queen Mary, and therefore he owned the mines.

Henry de Bracton had actually already talked about the royal prerogative to ‘Royal Fish’, treasure trove, and wreck of the ocean in his thirteenth century Tractatus de legibus et consuetudinbus Anglie,[4] but it surely was later enacted into regulation within the fourteenth century.The Prerogativa Regis confirms that the possession of sure sea creatures together with whales, dolphins, porpoises and sturgeons (identified collectively as ‘Royal Fish’) is conferred upon the monarch:

Additionally the King shall have Wreck of the Sea all through the Realm, Whales and [great] Sturgeons taken within the Sea or elsewhere throughout the Realm, besides in sure Locations privileged by the King.

The monarch’s entitlement to the ‘Wreck of the Sea’ was eliminated in 1894 by the Service provider Delivery Act 1894, however the remainder of this specific part stays in drive. In 2004, when a Welsh fisherman named Robert Davies caught a 10-foot lengthy sturgeon, he supplied it to the Receiver of Wrecks, the official presently appointed to eliminate ‘royal fish’ in England, Wales and Northern Eire on behalf of the queen. Queen Elizabeth II declined it and stated that Mr Davies was entitled to eliminate it as he wished.

In fact, the truth that whales and different cetaceans are named as ‘Royal Fish’ raises the inevitable objection that whales, porpoises and dolphins usually are not actually fish. In his 1935 tongue-in-cheek e-book Unusual Regulation, A.P. Herbert invented a fictional case during which a lifeless whale washes up on the shore of a city, and all events (together with the monarch) disclaim legal responsibility for disposing of it because the whale begins to decompose and scent disagreeable. Ultimately, the Ministry of Agriculture, Fisheries and Meals factors out that the whale is a mammal, not a fish, and the case is adjourned.[5]

In any case, to return to the Elizabethan dispute, in an ingenious argument, the Queen’s counsel argued that the provisions with regard to ‘Royal Fish’ proved that the Queen’s prerogative prolonged to silver and gold. They argued that provisions indicated that the ‘most glorious’ produce of the ocean, particularly sturgeons and whales belonged to the monarch, and subsequently, it adopted that at widespread regulation, the same precept utilized to the ‘most glorious’ produce of the land (particularly silver and gold). Counsel stated:

And the widespread regulation, which is based upon motive, appropriates each factor to the individuals whom it most accurately fits, as widespread and trivial issues to the widespread individuals, issues of extra price to individuals in a better and superior class, and issues most glorious to these individuals who excel all different; and since gold and silver are essentially the most glorious issues which the soil accommodates, the regulation has appointed them (as in motive it ought) to the one who is most glorious, and that’s the King.[6]

Furthermore, it was needed for the monarch to have management of the treasure of the realm in order that she or he may defend the individuals, make coinage for commerce, and be certain that others didn’t insurgent by amassing their very own shares of gold and silver.

Twelve judges of the Courtroom of Exchequer Chamber agreed and held that that “by the regulation all mines of gold and silver throughout the realm, whether or not they be within the lands of the Queen, or of topics, belong to the Queen by prerogative, with liberty to dig and carry away the ores thereof, and with different such incidents thereto as are needed for use for the getting of the ore.” Property in ore containing gold and silver didn’t move with the land. It may solely be taken by a landowner if the monarch had granted the proprietor of the land the correct to take it. Right here, on condition that the Earl had not labored any of his mines granted by earlier monarchs in seventy years, and his grants had expired. The Queen was entitled to the ores, and for damages for trespass and contempt in relation to the Earl’s interference with a ‘mine-royal’.

The penalties imposed upon the Earl illustrate why it was harmful to try to problem one of many monarch’s grants. Previous to 1601–1602, the correct to problem the validity of the royal grants within the Courts of widespread regulation was not successfully established, and any challenger was answerable for contempt of ‘this Our Royal Command’.[7] It’s no coincidence that the Earl was a strong and rich determine in his personal proper, and therefore extra keen than most to check his rights towards the Queen. In 1569, he ended up making an attempt to depose Elizabeth I within the unsuccessful ‘Rising of the North’, and exchange her with Mary Queen of Scots. He was beheaded after his position within the rebellion, after refusing to surrender Catholicism, in York in 1572. He was later beatified as a saint by Pope Leo XIII in 1895.

After the Case of Mines had been determined, in Could 1568, two mining monopolies had been established: the Firm of Mineral and Battery Works and the Society of Mines Royal. The Society of Mines Royal was given a monopoly to work mines and smelt ore to extract metallic in sure websites in England and Wales, together with in Keswick (the place the mine within the Case of Mines had been located). The monopoly of the Society and the Firm was finally eliminated by the Royal Mines Act 1688 (1 Will & Mary, c. 30), which amongst different issues, gives in s 3 that “Noe Mine of Copper Tin Iron or Lead shall hereafter be adjudged reputed or taken to be a Royall Mine though Gold or Silver could also be extracted out of the identical.”

Conclusion

This journey by way of two instances from Elizabethan England reveals that the historical past of authorized challenges to choices made with an train of royal prerogative is older (and stranger) than is often thought. Whereas the Queen finally gained in each instances, it’s of curiosity that the challengers had been allowed to completely argue their instances, and the court docket at the very least gave the looks of rigorously contemplating their judgments in each instances.

Katy Barnett is a Professor at Melbourne Regulation College.

[1] Referred to as variously Howsetter and Houghsetter in contemporaneous paperwork. He was a consultant of Haig and Firm, from Augsburg.

[2] Thurland was a clerk, and was additionally the Grasp of the Hospital of the Savoy in London. He was faraway from that workplace in 1570 after he misused the widespread seal of the hospital to accrue  personal money owed, granted unprofitable leases, took away hospital beds, and disposed of useful jewelry. See ‘Hospitals: Hospital of the Savoy’ in A Historical past of the County of London: Quantity 1, London Inside the Bars, Westminster and Southwark, William Web page  (ed) (London: Victoria County Historical past, 1909), 546-549. Taken from British Historical past On-line http://www.british-history.ac.uk/vch/london/vol1/pp546-549 [accessed 3 April 2022].

[3] F J Monkhouse, ‘Some options of the historic geography of the German mining enterprise in Elizabethan Lakeland’ (1943) 28(4) Geography 107, 107.

[4] Henry de Bracton, De Legibus et Conseutudinibus Angliae (‘On the Legal guidelines and Customs of England), GE Woodbine (ed), transl SE Thorne, (London: Publications of the Selden Society, 1968–77) l. 11, fol. 14 [De Adquirendo Rerum Dominio,vol 2, 58].

[5] AP Herbert, Unusual Regulation (Methuen, 1935) 7–12.

[6] Case of Mines (1568) 1 Plow 310, 315; 75 ER 471, 479.

[7] E. Wyndham Hulme, ‘The Historical past of the Patent System below the Prerogative and at Widespread Regulation’ (1896) 12 LQR 141, 150.