Katy Barnett: Swans, sturgeon and mines: the history of challenges to the royal prerogative – Part II

This post continues from the previous and looks at how there are examples of challenges to the royal prerogative dating back to the reign of Elizabeth I.

The Case of Mines

Unlike ownership of swans, the status, power and wealth stemming from the ability to mine precious minerals and ores from the land persists to the current day, and thus little explanation is needed as to why control of extraction of minerals was important. However, concerns about another war with Spain added urgency to the question. Early in her reign, Elizabeth I specifically invited expert German miners to advise on how to better exploit their mines in England and Wales.

This dispute arose with the discovery of gold in England, in 1565. Queen Elizabeth I issued grants in 1564 and 1565 for Daniel Höchstetter[1] and Thomas Thurland[2] to establish mines in eight counties of England, and licensed them to provide her with minerals and mines. As a result, in the area of Keswick in Cumberland:

Miners were thereupon brought in great numbers, and the mines in the vicinity of Keswick and Caldbeck were exploited with great vigour. Money was spent lavishly on elaborate buildings and equipment. The promoters were encouraged by taxation exemptions in the early days, they were allowed to cut timber, and the Queen gave orders for them to be protected against local prejudice. Dues were paid to the Queen … [3]

However, the land in Keswick was owned by Thomas Percy, 7th Earl of Northumberland, a prominent Catholic noble. In the course of their excavations, the miners discovered copper ore, as well as ore containing silver or gold, and sought to take it away to extract the precious metals. The Earl objected to the miners, and attempted to stop them from taking away the ore and disturbing his lands, and sought damages in relation to their conduct. The Queen asserted that her actions were legal because she had a royal prerogative to all gold and silver in the realm. The Earl argued that the royal prerogative did not extend to taking gold and silver, as it was not listed in the Prerogativa Regis (‘Of the King’s Prerogatives’) an Act of Edward II from 1322, in which various of the monarch’s prerogatives were outlined. Even if the taking of silver and gold was a royal prerogative, the Earl asserted that he and his forebears had been granted letters-patent to exploit the mines by Queen Mary, and hence he owned the mines.

Henry de Bracton had in fact already mentioned the royal prerogative to ‘Royal Fish’, treasure trove, and wreck of the sea in his thirteenth century Tractatus de legibus et consuetudinbus Anglie,[4] but it was later enacted into law in the fourteenth century.The Prerogativa Regis confirms that the ownership of certain sea creatures including whales, dolphins, porpoises and sturgeons (known collectively as ‘Royal Fish’) is conferred upon the monarch:

Also the King shall have Wreck of the Sea throughout the Realm, Whales and [great] Sturgeons taken in the Sea or elsewhere within the Realm, except in certain Places privileged by the King.

The monarch’s entitlement to the ‘Wreck of the Sea’ was removed in 1894 by the Merchant Shipping Act 1894, but the rest of this particular section remains in force. In 2004, when a Welsh fisherman named Robert Davies caught a 10-foot long sturgeon, he offered it to the Receiver of Wrecks, the official presently appointed to dispose of ‘royal fish’ in England, Wales and Northern Ireland on behalf of the queen. Queen Elizabeth II declined it and said that Mr Davies was entitled to dispose of it as he wished.

Of course, the fact that whales and other cetaceans are named as ‘Royal Fish’ raises the inevitable objection that whales, porpoises and dolphins are not in fact fish. In his 1935 tongue-in-cheek book Uncommon Law, A.P. Herbert invented a fictional case in which a dead whale washes up on the shore of a town, and all parties (including the monarch) disclaim liability for disposing of it as the whale starts to decompose and smell unpleasant. Eventually, the Ministry of Agriculture, Fisheries and Food points 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 extended to silver and gold. They argued that provisions indicated that the ‘most excellent’ produce of the sea, namely sturgeons and whales belonged to the monarch, and therefore, it followed that at common law, a similar principle applied to the ‘most excellent’ produce of the land (namely silver and gold). Counsel said:

And the common law, which is founded upon reason, appropriates every thing to the persons whom it best suits, as common and trivial things to the common people, things of more worth to persons in a higher and superior class, and things most excellent to those persons who excel all other; and because gold and silver are the most excellent things which the soil contains, the law has appointed them (as in reason it ought) to the person who is most excellent, and that is the King.[6]

Moreover, it was necessary for the monarch to have control of the treasure of the realm so that he or she could defend the people, make coinage for commerce, and ensure that others did not rebel by amassing their own stocks of gold and silver.

Twelve judges of the Court of Exchequer Chamber agreed and held that that “by the law all mines of gold and silver within the realm, whether they be in the lands of the Queen, or of subjects, belong to the Queen by prerogative, with liberty to dig and carry away the ores thereof, and with other such incidents thereto as are necessary to be used for the getting of the ore.” Property in ore containing gold and silver did not pass with the land. It could only be taken by a landowner if the monarch had granted the owner of the land the right to take it. Here, given that the Earl had not worked any of his mines granted by previous 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 dangerous to attempt to challenge one of the monarch’s grants. Prior to 1601–1602, the right to challenge the validity of the royal grants in the Courts of common law was not effectively established, and any challenger was liable for contempt of ‘this Our Royal Command’.[7] It is no coincidence that the Earl was a powerful and wealthy figure in his own right, and hence more willing than most to test his rights against the Queen. In 1569, he ended up attempting to depose Elizabeth I in the unsuccessful ‘Rising of the North’, and replace her with Mary Queen of Scots. He was beheaded after his role in the uprising, after refusing to renounce 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 decided, in May 1568, two mining monopolies were established: the Company 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 metal in certain sites in England and Wales, including in Keswick (where the mine in the Case of Mines had been situated). The monopoly of the Society and the Company was eventually removed by the Royal Mines Act 1688 (1 Will & Mary, c. 30), which among other things, provides in s 3 that “Noe Mine of Copper Tin Iron or Lead shall hereafter be adjudged reputed or taken to be a Royall Mine although Gold or Silver may be extracted out of the same.”

Conclusion

This journey through two cases from Elizabethan England shows that the history of legal challenges to decisions made with an exercise of royal prerogative is older (and stranger) than is commonly thought. While the Queen ultimately won in both cases, it’s of interest that the challengers were allowed to fully argue their cases, and the court at least gave the appearance of carefully considering their judgments in both cases.

Katy Barnett is a Professor at Melbourne Law School.


[1] Called variously Howsetter and Houghsetter in contemporaneous documents. He was a representative of Haig and Company, from Augsburg.

[2] Thurland was a clerk, and was also the Master of the Hospital of the Savoy in London. He was removed from that office in 1570 after he misused the common seal of the hospital to accrue  private debts, granted unprofitable leases, took away hospital beds, and disposed of valuable jewellery. See ‘Hospitals: Hospital of the Savoy’ in A History of the County of London: Volume 1, London Within the Bars, Westminster and Southwark, William Page  (ed) (London: Victoria County History, 1909), 546-549. Taken from British History Online http://www.british-history.ac.uk/vch/london/vol1/pp546-549 [accessed 3 April 2022].

[3] F J Monkhouse, ‘Some features of the historical 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 Laws 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, Uncommon Law (Methuen, 1935) 7–12.

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

[7] E. Wyndham Hulme, ‘The History of the Patent System under the Prerogative and at Common Law’ (1896) 12 LQR 141, 150.

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