Crown Estate Commissioners v Roberts & Anor [2008] EWHC 1302 (Ch)

[2008] EWHC 1302 (Ch)Case No HC0504081
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 June 2008
Before
THE HONOURABLE MR JUSTICE LEWISON
Between
CROWN ESTATE COMMISSIONERSClaimant(1) MARK ANDREW TUDOR ROBERTSDefendants(2) TRELLECK ESTATE LIMITEDDefendant
Mr Frank Hinks QC and Mr Thomas Braithwaite (instructed by Farrer & Co. LLP) for Claimant.Ms Stephanie Tozer (instructed by Darwin Gray) for Defendants.Hearing Hearing dates: 16, 19, 20, 21, May 2008
Judgment

Introduction

[1]1189, the year in which King Henry II died, is generally regarded as the beginning of legal memory. However, the story in this case starts at least half a century earlier, which has made the fact finding exercise unusual, to say the least. Mr Roberts, the first defendant in this case, claims to be entitled to exercise royal prerogative rights over the Pembrokeshire foreshore and the narrow sea. His claim is based on what he says are the ancient prerogative powers exercised by the Lords Marcher in Wales, established during the Norman Conquest of Wales, and, he says, never abolished, to which he claims to have succeeded. Many of the terms describing these rights are unfamiliar now, so there is a glossary in Appendix 1 to this judgment. What Mr Roberts now claims are the following rights: i) Wreck de mer; ii) A several fishery (i.e. an exclusive right to fish in the sea); iii) Treasure trove; iv) Sporting rights; and v) Estrays.[2]I should, however, make it clear, that although this judgment contains a good deal of historical material, I am not resolving controversies between historians and scholars but deciding the issues in this case on the basis of the evidence before the court.

Procedural history

[3]In 2002 The Pembrokeshire County Council and the Pembrokeshire Coast National Park Authority applied to register leasehold titles to a large part of the foreshore of the Pembrokeshire coastline. The applications were made on the basis that the land was comprised in leases granted by the Crown Estates Commissioners and formed part of the Crown demesne lands as a result of a presumption that the foreshore and the narrow sea belongs to the Crown. Mr Roberts objected to the registration and made a statutory declaration in support of his objection. He claimed to be the Lord Marcher of St Davids and in that capacity to be “the lawful successor to the temporalities, lands and sovereign rights of Saint David and his successors as sovereign chiefs and Lords Marchers.” The tenor of the declaration was to the effect that the Crown had no title to foreshore within the Welsh marches; that as Lord Marcher of St Davids he was entitled to the foreshore and that the dispute should be dealt with by the Imperial Crown or Justices specially assigned for the purpose “as between two component parts of the Empire.”[4]The Commissioners began these proceedings claiming declarations as to their title to the foreshore and seeking to remove Mr Roberts’ caution against first registration. Their claim was put on two bases: first, that the foreshore was part of the Crown demesne or allodial land; and second, that if that were wrong, the Crown had acquired title to the foreshore by adverse possession. Mr Roberts did not in the event object to the jurisdiction of this court; and has not insisted on his claimed right to have this dispute decided by specially assigned judges. The pleaded defence was that: i) Mr Roberts is the Lord Marcher of St Davids as successor in title to the Bishop of St Davids; ii) The Lordship Marcher of St Davids is a manor or lordship held in capite of the Crown in right of its dominion in Wales; iii) By grants, especially a charter of 1115 and a confirmation in 1384, and by ancient use and reputation the Lordship Marcher of St Davids included a freehold estate in the land to which the Commissioners claimed title; iv) That in any event Mr Roberts and his predecessors had been in possession of a freehold estate in those lands; and that anything which the Crown might have done which was inconsistent with that possession was “by way of intrusion upon their prior possession”; v) But if any of the acts relied on by the Crown were sufficient to vest possession in the Crown at the time they were done, then the Crown only acquired possession in a freehold estate in the parcel over which the act in question was done.[5]There was no separate plea that any particular right (such as a right of wreck or a right to treasure trove) was exercisable over the land to which the Crown claimed title; and no counterclaim for any declaration as to the existence of any rights. However, in her skeleton argument, served on the day before the trial was due to begin, Ms Tozer, who appeared for Mr Roberts, said that the Crown’s claim to have acquired title by adverse possession was now conceded in the light of the decision of the Court of Appeal in Roberts v Swangrove Estates Ltd [2008] 2 WLR 1111; and the skeleton argument advanced reasons why Mr Roberts was entitled to exercise rights over the land. It was unclear to me from the skeleton argument precisely what rights Mr Roberts was claiming to be entitled to, but fortunately on the following day Ms Tozer produced a table setting out the rights that Mr Roberts then claimed. They were: i) Wreck de mer; ii) Wharfage; iii) Sporting rights; iv) A several fishery; v) Treasure trove; vi) Mises and profits consisting of chief rents paid by freeholders; vii) Court baron; viii) Court leet and lawdays; and ix) Estrays.[6]The Commissioners did not object to the raising of a wholly new and unpleaded case, although the start of the trial was deferred for a few days. However, the report of their expert, Mr Fletcher-Tomenius, had been prepared on the basis of Mr Roberts’ pleaded case (namely a claim to ownership of the foreshore) with the result that it did not address the individual rights that Mr Roberts claimed. After Mr Hinks, appearing with Mr Braithwaite for the Commissioners, had concluded his opening address some of Mr Roberts’ claims were abandoned, with the result that what now remains in issue are the rights I have set out at the beginning of this judgment.

Historical overview

[7]As every schoolboy knows (or at least used to know) William the Conqueror defeated King Harold at the battle of Hastings in 1066. Part of his transformation of Anglo-Saxon England was the introduction of the feudal system of landholding. The theory was that all land in England was held of the Crown, radical title having been acquired by conquest. In order to reward his followers, William made grants of land to them. The immediate grantees were called tenants in chief (although they held in fee) and they held directly from the Crown (in capite). In return for their grants they were required to provide services. Typically the services would be the provision of knights to serve in the royal army (“knight service”); but they could also include other services, such as carrying the king’s banner or holding his head when he felt seasick (“grand sergeanty”). The tenants in chief, in their turn, were able to make sub-grants of lands to others who held of them, again in fee, and again in return for services. These were called mesne tenants, and the process of sub-grants was called subinfeudation. Thus there was created what is called the feudal pyramid, with the king at the apex and the occupants of the land at the base. All land was held of a lord. This was summed up in the maxim; “Nulle terre sans seigneur.” The status of lordship, including the right to receive the tenant’s services, was called seignory.[8]In addition to these types of tenure there were also what were known as spiritual tenures. The one that is relevant for present purposes was called frankalmoign (“free alms”). This type of tenure arose if no fealty was demanded and no specific services were reserved. The tenant’s only obligation was to pray for the soul of the grantor. There were restrictions on the alienation of land held in frankalmoign. Since the only obligation was the tenant’s obligation to pray, it followed that, if the tenant ceased to be a spiritual person or corporation, tenure by frankalmoign could no longer exist, and the land became held in socage: Co Litt 98a.[9]One of the units of grant was the manor. Manors were known in Anglo-Saxon times. Within the manor the lord kept land for his own use, known as demesne land. He would also grant out land to tenants, in return for services. Typically these were agricultural services; and the tenants held by customary tenure. Over time this evolved into the form of tenure known as copyhold, and this, in turn, was eventually abolished in 1922. The uncultivated residue of the manor was the waste of the manor and was held by the lord of the manor, although it might be held subject to customary rights, such as rights of common. One of the essential ingredients of a manor was its court. The principal court was the court baron, which amongst other things settled property disputes between the tenants of the manor. It also dealt with succession to copyhold land by recording changes of copyholder. The free tenants of the manor were the jury. The suitors were also drawn from among the free tenants. Since no one can be both suitor and juror, it followed that the court could not be held once the number of free tenants fell below two. As Blackstone put it (2 Bl. Comm 91):
“This court is an inseparable ingredient of every manor; and if the number of suitors should so fail, as not to leave sufficient to make a jury or homage, that is two tenants at the least, the manor itself is lost.”
[10]In the modern law a manor that has been lost in this fashion is known as a reputed manor.[11]I cannot resist quoting Lord Denning MR’s typically picturesque description of the manor in Corpus Christi College Oxford v Gloucestershire County Council [1983] QB 360 which I think bears out what I have said:
“In mediaeval times the manor was the nucleus of English rural life. It was an administrative unit of an extensive area of land. The whole of it was owned originally by the lord of the manor. He lived in the big house called the manor house. Attached to it were many acres of grassland and woodlands called the park. These were the "demesne lands" which were for the personal use of the lord of the manor. Dotted all round were the enclosed homes and land occupied by the "tenants of the manor." They held them by copyhold tenure. Their titles were entered in the court rolls of the manor. They were nearly equivalent to freehold, but the tenants were described as "tenants of the manor." The rest of the manorial lands were the "waste lands of the manor." The tenants of the manor had the right to graze their animals on the waste lands of the manor. Although the demesne land was personal to the lord of the manor, nevertheless he sometimes granted to the tenants of the manor the right to graze their animals on it, or they acquired it by custom. In such a case their right to graze on the demesne land was indistinguishable from their right to graze on the waste lands of the manor, so long as it remained open to them and uncultivated, although there might be hedges and gates to keep the cattle from straying. So much so that their rights over it became known as a "right of common" and the land became known as "common land." In the course of time, however, the lordship of the manor became severed from the lands of the manor. This was where the lord of the manor sold off parcels of the land to purchasers. He might, for instance, sell off the demesne lands and convey them as a distinct property. Thenceforward the land ceased to form part of the manor and was held by a freeholder: see Delacherois v. Delacherois (1864) 11 H.L.Cas. 62 , 102-103 by Lord St. Leonards. But no such conveyance could adversely affect the rights of common of those who were entitled to them as tenants of the manor or otherwise. No lord of the manor could, by alienation, deprive those entitled of their rights over it or in respect of it: see Swayne's case (1609) 8 Co.Rep. 63a and Reg. v. Duchess of Buccleuch (1704) 1 Salk. 358.”
[12]A collection of manors was called an “honour” or a “barony” (although such a barony was not a dignity and conferred no right to attend Parliament, for example). What happened at the level of the manor could also happen at the level of the honour or barony. Thus the grantee of an honour or barony could subinfeudate some of the manors comprised within the honour or barony, and retain others in hand. The retained manors were analogous to demesne land within the individual manor. In relation to the retained manors, there was no mesne tenant. The grantee was simply the lord of the manor of the retained manors. Indeed, there could be no additional layer of tenure in relation to retained manors, because a person could not be both a lord and a tenant in relation to the same land.[13]Within a few years after the conquest of England, the Normans turned their attention to Wales. They established castles in the border lands, notably at Chester and Shrewsbury. From there, and also from Hereford and Gloucester, the Norman barons made relatively steady advances into Wales. In the far west of Wales lay the cathedral of St David (in Welsh Dewi Sant), with which this case is concerned. It was in the ancient Welsh kingdom of Deheubareth. The cathedral was founded at some time before St David’s death in 589. Little is known of its early years, apart from a list of bishops. There is some indication that the bishop may have been granted lands by Rhys ap Tewdwr consisting of Pebidiog (also known in English as Dewsland or Dewisland, and in Latin as Menevia) in 1082. But whoever the benefactor was, it is clear that the bishops held land before the Normans came. William the Conqueror himself visited south Wales in 1081. He prayed at St Davids. He seems to have come to some accommodation with Rhys ap Tewdwr, because the Domesday Book (of 1086) records “Riset of Wales” (generally thought to be Rhys ap Tewdwr) rendering an annual rent or ferm of £40.[14]The Normans were at least formally pious and did not harry or ravage the lands of the church. The lands of the bishops of St Davids were not therefore acquired by conquest. As Francis Jones puts it in The Lordship and Manors of Dewsland (Journal of the Historical Society of the Church in Wales vol XVI p. 15):
“Those who inhabit Dewsland today may truly claim that this is the only cantref in Wales that was never conquered by Norman or Englishman, king or baron, that they have retained a cherished freedom from time immemorial. Dewslanders are the oldest free folk in Wales.”
[15]But the Anglo-Norman monarchy was none the less keen to incorporate the see within the ecclesiastical framework of the realm. When, therefore, Bishop Wilfred died in 1115, King Henry I appointed a Norman, Bernard, as the bishop even though it seems that he had not been ordained at the time of his appointment. Bernard recognised the authority of the Archbishop of Canterbury over the see, although later on he unsuccessfully attempted to win recognition for St David’s as a metropolitan see.[16]The first extant charter relating to the Bishops of St Davids is that granted by Henry I in 1115 to Bishop Bernard. Its full text, translated from Latin, in is Appendix II. It granted to Bishop Bernard the bishopric of St Davids:
“with all its appurtenances and lands both cultivated and uncultivated roads and trackless areas meadows marshlands pastures woods hunting areas and the right to pass through such places in hunting or driving animals to pasture watering places and watercourses mills fisheries (piscationibus) the revenues and incomes and with every easement that can be derived from them for all time either on land or on water (per aquam) together with all customary rights as the aforesaid church or any of its bishops had on better terms and held in the time of my father and King Edward [the Confessor] and Griffin [Griffith ap Llywelyn] or at any other time”
[17]During the reign of King John, on the vacancy of the bishopric, the Crown asserted a right to and enjoyed the temporalities of the see, and these were returned to the incoming bishop on his appointment.[18]In 1241 Henry III granted a further charter also reproduced in translation in Appendix II. It confirmed the bishopric to Bishop David and:
“all the lands and tenements chattels and possessions in the lands that are cultivated and the cultivated lands (sic) in woodlands in areas clear of woodland in fields and meadows and marshland and hunting areas and stretches of water together with the right to pass through such places in hunting or driving animals to pasture in mills and fisheries with regard to all revenues and incomes and easements deriving therefrom by land and by water in roads and paths and in all other places and other things together with all their appurtenances and freedoms and customary rights free from obligation just as the aforementioned King my grandfather granted to the aforesaid Bishop Bernard and as his charter proves.”
[19]This charter also granted the bishop a free court of their men “so that they shall not be bound to answer any plaint elsewhere than in the court of their lord the said bishop unless before the king or his justices”.[20]Until the statute of Quia Emptores of 1290 a common method of dealing with land was by subinfeudation as I have already described. The bishops of St David’s were no exception. The statute of Quia Emptores of 1290 put an end to subinfeudation for the future; and remains one of the foundations of English property law to this day. What is peculiar (although I think that nothing actually turns on it in this case) is that there is evidence that the statute of Quia Emptores either did not apply to the Marches of Wales or was routinely ignored there, at least until the incorporation of Wales and the Marches into the realm.[21]The Bishops of St David’s were tenants in chief of a number of baronies. Chief among them were the baronies of Pebidiog (or Dewsland) and the barony of Llawhaden. As a result of their dealings with the lands comprised within their baronies the various manors within them came to be divided into three main categories. The first consisted of what have been called “Episcopal manors”; the second consisted of “Capitular manors” and the third of “Lay manors”. The Episcopal manors were those that remained in the hands of the Bishops, never having been subinfeudated by them. The Capitular manors were held by ecclesiastical corporations, and the lay manors were, for the most part, knight’s fees.[22]In 1326 the Bishops caused a survey of their lands to be undertaken. The survey is commonly known as the Black Book of St David’s. The Bishop’s lands were predominantly in what later became Pembrokeshire (approximately two thirds in value) but included lands in other parts of Wales as well. Using the English county names, the breakdown given in the Introduction to Mr Willis-Bund’s translation of the Black Book is as follows: County Number of tenants Pembrokeshire 1,095 Cardiganshire 260 Carmarthenshire 249 Glamorganshire 21 Archdeaconry of Brecon 220[23]The survey is a survey of the lands manor by manor. Although Welsh customs survived in parts of the Bishop’s lands, Pembrokeshire was by far the most Anglicised. The survey examined the various services that tenants were required to provide. Some of the services were agricultural: gathering hay, making hay, mowing, reaping, ploughing, carrying corn, washing sheep, making fences and so on. Others were non-agricultural. These included suit at mill, guarding a town in war, escorting prisoners to prison or to the gallows, guarding markets and so on. In relation to some manors, these non-agricultural services included dealing with wrecks. Thus in the case of Treflywyth it is said of the tenants:
“And if there is a wreck on the sea they are bound to attend on the sea shore at the sound of the horn and guard the goods there.”
[24]Similar statements are made in relation to tenants of other manors (e.g. Tywaldy, Crughely, Castle Poncius and Wolf’s Castle). However, this service did not apply universally. There is no reference in the survey to a right of several fishery on the foreshore or in the sea. One point, which is critical for present purposes, is that the survey records services owed to the lord of the manor, and not to the holder of any superior interest. The Black Book also records a number of knights’ fees, held by way of subinfeudation.[25]In 1354, during the reign of Edward III, Parliament passed the first of the Acts relevant to the Lords Marcher. It was the Lords of Marches of Wales Act, and it said:
“That all the Lords of the Marches of Wales shall be perpetually attending and annexed to the Crown of England, as they and their Ancestors have been all Times past, and not to the Principality of Wales, in whose Hands soever the same Principality be, or hereafter shall come.”
[26]The effect of this Act was that if there were any Lords Marcher who were not tenants in chief of the Crown, they became tenants in chief by virtue of this Act.[27]There is also evidence that Edward III, fearing an invasion by the Scots, wrote to the “Lords of the Liberties in Wales” requiring them to cause the sea coasts to be watched, the men of their country to be armed, their castles to be strengthened, and appointing them lieutenants within their lordships. Among the addressees of this letter was the Bishop of St Davids, described as “domino terrarum Sancti David et de Pebidiog”.[28]In 1383, as a result of a petition by Bishop Adam, Richard II confirmed that the bishop exercised the jurisdictional liberties of the Lords Marcher. It is, I think, worth quoting in translation at length:
“Adam bishop of St Davids has petitioned the king setting forth that he holds his bishopric and a certain parcel thereof of the king as of his crown wholly and that he and his predecessors have always used royal jurisdiction in all their demesnes of the said bishopric in cognisance of all pleas personal and real and those of the crown of their own prosecution and that of others with all the profits thence arising after the custom of those parts and that king Henry III by his charter granted A bishop of that church that he and his successors should be quit of all pleas plaints and suits save before the king and his heirs or justices specially assigned and that they should have their free court of their men who should not be bound to answer of any plaint elsewhere than in the court of the said bishop save before the king and his heirs or justices specially assigned therefore and that this by the king’s special mandate saving always the king’s dignity; and the said bishop thereupon prayed the king to provide against any infringement of these liberties. And the king at the special request of the archbishop of Canterbury and all the clergy of that province of special grace has hereby granted that the said bishop and his successors shall have all the foregoing liberties as fully as any of Lords Marchers in the marches of Wales have them and that all their tenants and all those dwelling in their demesnes shall not be bound to answer elsewhere than in the said court of the bishop and his successors; and that the said bishop and his successors shall be quit of all pleas plaints suits and impeachments moved against them save before the king and his council saving always the king’s dignity.”
[29]Richard II granted a further charter in the following year, 1384. It is in much the same terms as the 1383 charter, and an extract from it is quoted in Appendix 2.[30]This grant was confirmed again by Henry IV in 1401, and by Henry V in 1421.[31]Within Pembrokeshire the most valuable of the baronies was the barony of Pebidiog or Dewsland; but the Bishop also held the barony of Llawhaden. According to the Pembrokeshire County History (Vol. 2 p. 148):
“Here in particular the bishop appeared in his role as marcher lord. By the end of the thirteenth century Llawhaden was the main administrative centre of the bishop’s estates, the seat of his chancery and exchequer and his principal court.”
[32]It is necessary at this stage to say something in general terms about Lords Marcher. Although it is possible for me to give a general account of the Lords Marcher, I should sound a strong cautionary note. As Professor Rees Davies explains (Lordship and Society in the March of Wales 1282-1400 pp. 8-9):
“Each Marcher lordship was an internally sovereign lordship, a law unto itself both literally and metaphorically. There was not common supervisory authority to give an overriding unity to the area. All the attributes of public life were here fragmented into private hands … It is a fragmentation which means that, looked at from one angle, the March as such has no history: it is never more than the individual and highly diversified histories of its constituent lordships.”
[33]The distance of Wales from the seats of government in England together with the sometimes fraught military situation led to the emergence of the Lords Marcher. They were tenants in capite, each holding directly from the king. They occupied a special status, however. Their holdings did not form part of the realm of England, and within them, they enjoyed an almost complete immunity from royal interference. The royal lawyers recognized the peculiar status of these lordships "in the marches, where the King's writ does not run." In addition, despite the fact that they were feudal vassals of the kings, the marcher lords denied the necessity of referring their quarrels to the king's court. On the contrary, they claimed the right of settling their disputes among themselves, according to their own customary law, the Law of the March, or even by arms. Their immunity from royal authority was not absolute but the conditions under which the king could interfere were extremely limited. A lordship escheated to the Crown if there were no heir of age at the death of the lord, if the lord rebelled or was convicted of felony or treason, if the lord deserted his lordship in time of war, or if the lordship were in dispute.[34]This almost complete freedom from royal interference allowed the marcher lords to exercise within their lordships many powers which were elsewhere in England the sole prerogatives of the crown. They appointed their own sheriffs, possessed their own chanceries and their personal great seals. They had jurisdiction over all cases, high and low, civil and criminal, with the exception of crimes of high treason. They established their own courts to try these offences, executed sentences, and amerced fines. They could establish forests and forest laws, declare and wage war, establish boroughs, and grant extensive charters of liberties. They could confiscate the estates of traitors and felons, and regrant these at will. They could establish and preside over their own petty parliaments and county courts. Finally, they could claim feudal dues such as aid, grant, and relief. In the case of most Lords Marcher these rights and franchises appear to have been claimed by right of conquest. The pioneer of scholarship about the Lords Marcher, George Owen who wrote in about 1600, gave three reasons why most of the Lords Marcher could not claim their rights and franchises by virtue of any charter, which Mr Fletcher-Tomenius describes as “convincing”. They are; first “advance geographical definition of future conquests was self-evidently impossible, as territorial certainty is the prerequisite of a valid grant; secondly, the uncertainties of retention following conquest made lords reluctant to seek purchase or grant of specific liberties and, thirdly, the validity of Crown grants of “…so highe a nature, so royall and so united to the Crowne” was doubtful.” However, as George Owen goes on to explain, this did not apply to the Bishops of St David’s. As he puts it (A Treatise of Lordshipps Marchers in Wales p. 150, with spelling modernised):
“The like liberties did diverse Bishops and Abbotts … purchase who held diverse Lordships in Wales, as the ancient dower of their Sees and Abbeys and never came to the same by Conquest as the Lords Marcher did but the same being given them by the ancient Princes of Wales (but not with any such liberty and jurisdiction as may be presumed). In which Lordships they did not in the Welsh princes time execute such Regal authority as the Lords marcher did as is thought, but afterwards purchased the same of the kings of England, as may appear by diverse ancient charters by them thereof obtained and by some of the said charters it appeareth that after the government of the Princes of Wales was expelled, that those Bishops Abbotts and other religious men were forced to take upon them the like regal power of government within their Lordships, as their neighbours the Lords marchers did before the obtaining of any such charters and this appeareth by the Charter of [Richard II] to Adam Bishop of St Davids…”
[35]Thus at least in this respect the Bishop of St David’s was an atypical Lord Marcher, reflective of the fact that, as Mr Jones pointed out, Dewsland was never conquered. Nevertheless, the preamble to the charter of 1383 contains the Bishop’s claim to have what is in effect a prescriptive right to exercise royal jurisdiction. Mr Fletcher-Tomenius comments:
“The confirmation by Henry III of the Bishop of St. David’s lord marcher status in 1241 … should therefore be construed as merely a confirmation and not a conferment. This accords with the historical emergence of marcher lords….Thus, the existing lordship of Dewisland became surrounded by marcher lordships and the most likely explanation is that the Bishops simply behaved as and were recognised as equals. Turvey suggests that the iura regalia of the Earl of Pembroke “…benefited from the residual effects of the Crown’s overlordship and simply continued to exercise the jurisdictional authority established by his royal predecessor.”
There seems no reason to doubt that a similar process established Dewisland’s marcher status.”[36]It is common ground that the charter of 1241 recognised the Bishop of St David’s as having the same jurisdictional franchise as other Lords Marcher and that this was again confirmed by the charter of 1383. One of the issues in the case is whether the Bishop of St Davids exercised all or any of these rights and privileges.[37]Again according to Francis Jones (op. cit. p. 16), the Bishop of St David’s did exercise and enjoy these rights and privileges within the barony of Pebidiog or Dewsland:
“He held his temporal lands in chief of the king; he had his own chancery and issued his own writs; all revenues within his territories were paid into his exchequer; all judicial proceedings were conducted in the courts of his lordships: he had power of life and death, his own prison and gallows; for his lordships he had superior courts from which there was no appeal; for the mesne manors there were courts barons, leets and lawdays, from which an appeal lay to the bishop’s superior court. The bishop enjoyed all feudal rights, reliefs, aids, wardship, marriage, escheats, waifs and strays, goods and chattels of felons, fugitives, condemned and outlawed persons, deodands, wharfage, tolls of markets and fairs, customs, ligam, flotsam and jetsam, wreck of the sea, rights of admiralty, of hunting and fishing, free warren, and the right to incorporate boroughs. He could raise armies to defend his own frontiers or to swell the king’s army. Like De Clare and Bohun, Mortimer and Braose, the bishop was a lord marcher. The king’s writ did not run in his territories. In Dewsland the bishop was king.”
[38]This is the high point of Mr Roberts’ case. Mr Fletcher-Tomenius thought that this list of rights and privileges was unsurprising (apart from “rights of admiralty” which he said had no recognised legal meaning), and was typical of many lordships (not just Marcher Lordships). He agreed with Mr Jones that it was probable that the Bishops of St Davids exercised these rights. It is, however, noticeable that absent from this very long list of rights and franchises is any right to treasure trove. Nor is there any hint that the Bishops enjoyed an exclusive right to fish in the sea. It is also noticeable that Mr Jones says that the Bishops enjoyed the right of “wreck of the sea”, whereas it is common ground that the Bishop’s right of wreck extended to only half of the wreck, which he shared with the Crown.[39]We now move forward to Tudor times. The Tudors were, of course, of Welsh origin themselves; and as I have noted, tradition has it that Rhys ap Tewdwr was a benefactor of St Davids. But by the 1530s Wales and the Marches had become lawless as is graphically described in one of the preambles to The Act of Union 1535:
“And forasmuch as there be many and divers Lordships Marchers within the said County or Dominion of Wales, lying between the Shires of England and the Shires of the said County or Dominion of Wales, and being no Parcel of any other Shires where the Laws and due Correction is used and had, by reason whereof hath ensued, and hath been practised, perpetrated, committed and done, within and among the said Lordships and Countries to them adjoining, manifold and divers detestable Murthers, brenning of Houses, Robberies, Thefts, Trespasses, Routs, Riots, unlawful Assemblies, Embraceries, Maintenances, receiving of Felons, Oppressions, Ruptures of the Peace, and manifold other Malefacts, contrary to all Laws and Justice; and the said Offenders thereupon making their Refuge from Lordship to Lordship, were and continued without Punishment or Correction; for due Reformation whereof, and forasmuch as divers and many of the said Lordships Marchers be now in the Hands and Possession of our Sovereign Lord the King, and the smallest Number of them in the Possession of other Lords, It is therefore enacted by the Authority aforesaid, That divers of the said Lordships Marchers shall be united, annexed and joined to divers of the Shires of England, and divers of the said Lordships Marchers shall be united, annexed and joined to divers of the Shires of the said Country or Dominion of Wales, in Manner and Form hereafter following…”
[40]The overall effect of the Act was to incorporate Wales into the English system of law and governance. It did so in the following way:• the marcher lordships were abolished as political units and five new counties were established, thus creating a Wales of 13 counties;• other areas of the lordships were annexed to existing counties;• the borders of Wales were established;• the courts of the marcher lordships lost the power to try serious criminal cases;• English became the only permitted language in the law courts;• the office of Justice of the Peace was introduced;• Wales elected members to the English (Westminster) Parliament;• the Council of Wales and the Marches was established on a legal basis;• the Court of Great Sessions were established, a system peculiar to Wales;• a Sheriff was appointed in every county, and other county officers as in England.[41]Section 17 of the Act provided:
“And that the Lordships, Towns, Parishes, Commotes, Hundreds and Cantreds of Haverfordwest, Kilgarran, Lansteffan, Langeharne otherwise called Tallangherne, Walwynscastle, Dewysland, Lannehadein, Lansey, Herberth, Slebeche, Rosmarket, Castellan and Landofleure, in the said Country of Wales, and every of them, and all Honours, Lordships, Castles, Manors, Lands, Tenements and Hereditaments, lying and being within the Compass or Precinct of the said Lordships, Towns, Parishes, Commotes, Hundreds and Cantreds, or any of them, in whose Possession soever they be or shall be, and every Part thereof, shall stand and be guildable for ever, from and after the said Feast of All-Saints, and shall be united, annexed and joined to and with the County of Pembroke; (2) from and after the said Feast of All-Saints, Justice shall be ministred and executed to the King's Subjects and Inhabitants of the said County of Pembroke, according to the Laws, Customs and Statutes of this Realm of England, and after no Welsh Laws, and in such Form and Fashion as Justice is ministred and used to the King's Subjects within the three Shires of North Wales.”
[42]“Dewysland” refers to the barony of Dewisland or Pebidiog; and “Lannehadein” refers to the barony of Llawhaden. Section 30 of the Act contained saving provisions. It said:
“That all and every Lay and Temporal Person or Persons, then being Lords Marchers, and having any Lordships Marchers or Lordships Royal, should from and after the said Feast of All Saints, have all such Mises and Profits of their Tenants, as they have had, or used to have, at their first Entry into their Lands in Times past: And Also should have, hold and keep within the Precinct of their Lordships, Courts Baron, Courts Leet and Lawdays, and all and every thing to the said Courts belonging; and also should have within the said Precinct of their Lordships or Lawday, Waife, Straif, Infang-thefe, Outfang-thefe, Treasure-trove, Deodands, Goods and Chattels of Felons, and of Persons condemned or outlawed of Felony or Murder, put in Exigent for Felony or Murder, and also Wreck de mere, Wharfage and Custom of Strangers, as they have had in Times past, and as though such Privileges were granted unto them by Point of Charter; any Thing in this Act to the contrary notwithstanding…”
[43]This saving provision was limited to lay and temporal Lords Marcher. The Bishop of St Davids was not a lay or temporal Lord Marcher, so the saving provision did not apply to him. However, the omission of spiritual Lords Marcher appears to have been an oversight (“against all reason and good equity”), which was corrected by Lord Marches in Wales Act 1554.[44]George Owen (op. cit. p. 141 with spelling modernised) explained the effect of this legislation as follows:
“… in the time of [Henry VIII] the country was brought into such quietness and subjection and the people there became so obedient that the Kings of England well perceived that the country might be governed by civil and politic laws as the rest of the Realm, and therefore in the 27th year of [Henry VIII] he resumed all or most of those regal jurisdictions into his hands, and deprived the Lords marchers of the same, and left them in effect but as Lords of manors in England, and then ordained justices himself, and Justices of the peace, Sheriffs, and other officers and divided the country into Shires and erected great Sessions, Quarter sessions and other courts for the government of the country by officers of his own, and by the Laws of England, and left little or no authority to the Lords marchers.”
[45]In 1536 commissioners appointed by Henry VIII surveyed ecclesiastical lands, including those of the Bishop of St Davids. The survey is called the Valor Ecclesiasticus. Among the parts they surveyed was “Meneven” (a derivative of the Latin name for Dewisland, “Menevia”). They described the barony of St Davids and the demesne lands of Pebidiog. A fuller extract is reproduced in Appendix II, but the most relevant parts of it read:
“In this barony demesne lands and manor the aforementioned bishop has his own prison for all kinds of felons offenders and clerks convicted or attainted and to be tried by anyone and his own treasury within the aforementioned castle and a seal of his own chancery for all kinds of original documents by means of his own chancellor in and throughout all his manors and demesne lands as mentioned above wherever they are acquired and put into effect. He also has one session every month to be held at Lanhayden in the presence of the chief seneschal of this same bishop or his deputy and also one other Hundred Court and other lower courts for common pleas and pleas of the crown. He will also have people to carry out the offices of castellan viscount or constable coroner and escheator for the pleas for the said offices and for whatever offenders appear before his constable or his deputy to be held and fixed in perpetuity according to the privileges of the Kings in England and the Princes of Wales granted to him in this way in pure and perpetual alms.”
[46]Thus in the sixteenth century the Bishop continued to hold his court at Llawhaden rather than in Pebidiog itself. There is no mention in this survey of any right to treasure trove, or any exclusive right to fish in the sea. The puzzling feature of this survey is the reference to the land being held “in pure and perpetual alms”, which is the traditional way of describing tenure in frankalmoign. There is certainly no explicit reference to tenure of this kind in any earlier document.[47]Following the Suppression of Monasteries Act 1540, which sought to preserve the privileges of “Sanctuaries” taken into Crown hands on the dissolution of the monasteries, The Laws in Wales Act 1542was passed. Section 101 of the Act provided:
“Where divers Lordships Marchers, as well in Wales, as in the Borders of the same, now being by Act of Parliament annexed to divers Shires of England, be lately come to the King's Hands by Suppression of Houses, by Purchase or Attainders, and now be under the Survey of the Court of Augmentations, or of the King's general Surveyors, the Liberties, Franchises, and Customs of all which Lordships be lately revived by Act of Parliament made in the thirty-second Year of his most gracious Reign; nevertheless his Majesty willeth and commandeth, that no other Liberties, Franchises, or Customs shall from henceforth be used, claimed, or exercised within the said Lordships, nor any other Lordships within Wales, or the County of Monmouth, whosoever be Lord or Owner of the same, but only such Liberties, Franchises and Customs, as be given and commanded to the Lords of the same Lordships, by Force and Virtue of the said Act of Parliament made for Wales, in the said twenty-seventh Year of his Grace's Reign, and not altered ne taken away by this Ordinance; the said Act made in the said thirty-second Year, or any other Act, Grant, Law, or Custom to the contrary thereof notwithstanding.”
[48]This restricted the rights of the Lords Marcher to those rights that were expressly preserved by section 30 of the Act of Union 1535.[49]As mentioned, the omission of the spiritual Lords Marcher from the Laws in Wales Act 1535 was remedied by the Lord Marches in Wales Act 1554. Section 5 of the Act conferred on them the right to “the Moiety and Half of every Forfeiture of all and every common Mainprise, Recognisance for the Peace or Appearance, forfeited by any their Tenants inhabiting within any of their Lordships Marchers or Lordships Royal”. Section 6 confirmed that they should:
“have all such Mises and Profits of their Tenants, as the Lords Marchers, Spiritual or Temporal, respectively or severally had or used to have at their first Entry into their Lands in Times past before the Making of the said Act or Statute: (2) And also shall have, hold and keep within the Precinct of their said Lordships all such Courts Baron, Courts Leet and Lawdays, and all and every Thing and Things to the same Courts belonging: (3) And also shall have within the Precinct of their said several Lordships or Lawdays, all such Waife, Straife, Infang-thefe, Outfang-thefe, Treasure-trove, Deodands, Goods and Chattels of Felons, and of Persons condemned or outlawed of Felony or Murder, put in Exigent for Felony or Murder, and also all such Wreck de mere, Wharfage, and Customs of Strangers, as the Lords Marchers Spiritual and Temporal respectively and severally had and used in Times past…”
[50]During the Commonwealth period following the English Civil War the lands of the Bishop of St David’s were sequestered; but they were returned to the Bishop at the Restoration. During the period of sequestration in 1652 the lands of the Bishop were conveyed to Humphrey Hill, a mercer in London. Part of the conveyance is quoted in Mr Jones’ article (op. cit p. 20):
“the manor, dominion and lordship of Dewisland otherwise Pebidiog, with the rights, members and appurtenances therefore in the county of Pembroke … with all and singular the commons and commons of pasture, wastes and waste grounds, wood, underwoods timber and other trees, mines, quarries, waters and watercourses, rivers, streams, mill dams, pools, ponds, weirs, hunting, hawking, fishing, fowling, courts leet, courts baron and other courts whatsoever …”
[51]There is no mention in the quoted part of the conveyance of any right to treasure trove, or any exclusive right to fish in the sea. Upon the return of the lands to the Bishop at the Restoration he caused “A True and Perfect Survey” to be made in 1660. This survey (or at least part of this survey) has survived. It refers to both the barony of Dewisland and also to the barony of “Lowhadden” (i.e. Llawhaden). Trevine is described in the survey as a manor “holding under the barony of Dewisland”. There is no mention in this survey of any right to treasure trove, or any exclusive right to fish in the sea.[52]Following the restoration of the monarchy in 1660, Parliament and the Crown reached a financial accommodation. The Crown gave up its rights to feudal dues, and instead was granted the right to excise duty on alcohol. This compromise led to the passing of the Tenures Abolition Act 1660, confirming a resolution of the Long Parliament, which for the most part abolished feudal land tenure. This was achieved by section 1 of the Act which provided (with spelling slightly modernised):
“that all Tenures by Knights service of the King, or of any other person and by Knights service in Capite, and by Socage in Capite of the King and the fruits and consequents thereof happened or which shall or may hereafter happen or arise thereupon or thereby be taken away and discharged Any Law Statute Custom or Usage to the contrary hereof any wise notwithstanding, And all Tenures of any Honours Manors Lands Tenements or Hereditaments of any Estate of Inheritance at the common Law held either of the King or of any other person or persons Bodies Pollitique or Corporate are hereby Enacted to be turned into free and common Socage to all intents and purposes from [24 February 1645] and shall be so construed adjudged and deemed to be from the said [24 February 1645], and for ever thereafter turned into free and common Socage, Any Law Statute Custom or Usage to the contrary hereof notwithstanding.”
[53]However, section 7 of the Act made an exception in the case of frankalmoign:
“Provided also and be it further Enacted that this Act or any thing therein contained shall not take away or be construed to take away Tenures in Franke Almoigne or subject them to any greater or other services then they now are…”
[54]Two hundred years later, in 1874 the Bishop of St David’s resigned on the ground that he was incapacitated by age and infirmity, thus triggering a vacancy in the see; and on 7 July 1874 Queen Victoria declared, in pursuance of the Bishops Resignation Act 1869, that the see was vacant. Under the Act the lands and hereditaments belonging to the bishopric vested in the Ecclesiastical Commissioners. On 28 November 1874 the Privy Council ratified a scheme propounded by the Commissioners. The scheme, among other things, gave the Commissioners power to dispose of the property. If any part of the lands of the Bishops had previously been held in frankalmoign, the vesting of those lands in the Ecclesiastical Commissioners must have converted the tenure into socage tenure.[55]Under the influence of non-conformist politicians, notably David Lloyd-George, pressure to disestablish the church in Wales grew during the early part of the twentieth century. In 1914 Parliament passed the Welsh Church Act 1914, although the intervention of the First World War delayed its entry into force until 1920. Under section 4 of the Act property that was vested in the Ecclesiastical Commissioners and identified as Welsh ecclesiastical property vested in the Welsh Commissioners. What property was Welsh ecclesiastical property was to be ascertained by the Ecclesiastical Commissioners under section 5 of the Act. Section 8 of the Act provided for the transfer of property by the Welsh Commissioners. After making provision for specific types of property, section 8 (1) (e) provided that all other property was to be transferred to the University of Wales.[56]On 30 March 1920 the Ecclesiastical Commissioners made an order under section 5 of the Act declaring that “all the property rights and interests vested in them as Lords of Manors in Wales and Monmouthshire together with any other rights or interests in the same area” were ascertained to be Welsh ecclesiastical property.[57]Most of section 7 of the Tenures Abolition Act 1660 was repealed by Schedule 2 to the Administration of Estates Act 1925, which finally abolished tenure in frankalmoign.[58]On 17 March 1946 another order made by the Welsh Commissioners transferred the property rights which had been transferred to them by the Ecclesiastical Commissioners to the University of Wales. A schedule of those that could be identified was contained in the 1946 order. In Pembrokeshire they included the manors of Dewisland (Upper and Lower) and the City and Suburbs of St David’s. In preparation for the transfer to the University, while war was raging in Europe, the District Valuers prepared detailed reports on the medieval rights appurtenant to each of the manors. There was also a more general report dated 15 April 1944 which began:
“the Manors within the Episcopal Barony of Dewisland can … be classified as follows:- 1. Episcopal Manors in the hands of the Lord of the Barony i.e. the Honor of Dewisland. These included: (1) St Davids (Dewisland otherwise Pebidiauk) and (2) the City and Suburbs of St Davids … 2. Capitular Manors which were ecclesiastical manors held of the Lord of the Barony by the Cathedral Chapter, and really served to endow certain ecclesiastical offices. They were about 11 in number in this Lordship 3. Lay Manors (all mesne manors) which would appear to have been sub-infeudated by the Lords of the Barony to Laymen, of which there appear to have been 35 in the Barony.”
[59]On 9 September 1944 the District Valuer reported on the Manor of the City and Suburbs of St David’s, which he said was a manor over which the bishops “appear to have exercised at all times direct Lordship”. The report discussed the boundaries of the manor (in so far as they could be ascertained) and the rights that the Lord of the Manor might have.

The sales to Mr Roberts

[60]For twenty years or more the University of Wales has been selling Lordships of the Manor. In 1987 it sold the Lordship of the Manor of Dewisland (Upper & Lower) to Doreen Bowie. In the same year it sold the Lordships of the Manors of Brawdy, Pointz Castle and Loughvaine to Barry Zee. In 1988 it sold the Lordships of the Manors of Trellys and Grandiheno to Basil Williams. These manors were all Episcopal manors, and all were coastal.[61]On 6 July 2000 the University of Wales was due to sell a number of other Lordships of the Manor at a public auction. The University caused a catalogue to be prepared which included a historical note on “The Welsh Church, its Lands and Ecclesiastical Feudalism” and a further historical note on the manors for sale by Dr John Davies. The latter note stated:
“By the twelfth century, Pebidiog was an Episcopal barony held directly of the English crown by the bishop of St David’s. Considerable parts of it were subinfeudated from time to time by succeeding bishops, thus creating mesne manors within the barony. The manors of the bishops of St David’s were minutely surveyed in the Black Book of St David’s which was compiled in 1326. Of the Episcopal manors of Pebidiog, Brawdy, Cearfarchell, Priskilly and Llanridion were sold in 1987, and Dewisland, Nun Street and Trefflys and Grandiheno were sold in 1988. The three remaining manors of Pebidiog – the City and Suburbs of St David’s, Trevine and Knwch Craig – are on offer in this sale.”
[62]The auction also included three other manors which the bishops held, but these were said to be outside the Episcopal barony of Pebidiog.[63]On 2 July Mr Roberts wrote to Mr Charles, the solicitor acting for the University. He said that he was hoping to attend the auction himself and “to acquire one or two of the Manors being offered.” He added:
“We discussed the matter of corporeal and incorporeal hereditaments. It is my understanding that the incorporeal hereditaments (e.g. Waifs, Estrays, Rights of Fair etc.) are not being excepted but that the corporeal hereditaments (e.g. Freehold Land and Minerals) are being excepted, although you mentioned that you did not consider that there were any.”
[64]He asked whether the University would be prepared to amend the exception so that waste and commons could be included, and added that as “an eccentric antiquarian” he was hoping to keep the Manor alive.[65]At the auction Mr Roberts was the successful bidder for a number of lots including Lot 8. This was described as “the Manor of the City and Suburbs of St David’s.” It was described as consisting of most of the ancient city of St David’s together with tracts of land to the south between the city and the sea. Condition 8 of the conditions of sale stated:
“Any Commons and Wastes and Mines and Minerals forming part of the Manors or Lordships are NOT included in the sale, and also, for the avoidance of doubt, it is declared and agreed that NO other freehold or leasehold land is included in the sale.”
[66]Where an interest in land is sold at a public auction a binding contract comes into existence when the hammer falls without the need for any writing (Law of Property (Miscellaneous Provisions) Act 1989 s. 2 (5)(b)). However, in this case as in the case of most auctions, the buyer signs a memorandum of sale. The memorandum of sale described Mr Roberts as the buyer of Lot 8 as described in the particulars of sale, but whereas the printed form described it as “the Manor of …”, Mr Roberts altered the memorandum in manuscript so that the lot was described as:
“Lot 8 described in the Particulars of Sale being The Lordship Marcher of St Davids, commonly called the Manor of St Davids.”
[67]Among the other lots for which Mr Roberts successfully bid was the Manor of Trevine. Mr Charles was in the auction room, accompanied by two representatives of the University. Mr Roberts went up to speak to them and had a short conversation, lasting some two to three minutes. In his witness statement Mr Roberts said that during the course of this conversation he explained to Mr Charles and the University representatives details about St Davids; he referred to the District Valuer’s report and the reference to a superior interest; to the 1946 Transfer Order, the Laws in Wales Act 1535. He showed them a copy of Professor Pugh’s map of Lordship Marchers, including St David’s, and referred to the fact that the Lordship Marcher had not previously been sold and that sale was supposed to rid the University of its remaining feudal interests. Mr Charles’ recollection was that he did have a conversation with Mr Roberts at the auction. Mr Roberts mentioned Lordships Marcher (an expression which meant little if anything to Mr Charles) but did not explain what the difference was between that and a Lordship of the Manor. He did not refer to the District Valuer’s report, nor to the Transfer Order, nor to the 1535 Act. He said that Mr Roberts had altered the wording of the auction memorandum, but he and the University were content with the alteration. I prefer the evidence of Mr Charles. I do not consider that it would have been possible within the short space of time in which the conversation took place for Mr Roberts to have explained all that he said he explained. Moreover the subsequent correspondence does not suggest that there was any discussion of the concept of a Lordship Marcher; and Professor Pugh’s map (in the version that Mr Roberts showed Mr Charles) does not in fact show St David’s as a Lordship Marcher. The City of St David’s is merely on the map as a topographical feature. Mr Robert’s insistence to the contrary in the witness box was, to my mind, unconvincing.[68]In due course a conveyance of 24 July 2000 conveyed to Tacticall Radio Hire Ltd (a company owned by Mr Roberts):
“The Lordship Marcher of St Davids … and for the avoidance of doubt it is hereby declared that this Conveyance does not include or convey transfer or assign and there is expressly excluded from this Conveyance any corporeal demesne land appurtenant to the manor and any Mines and Minerals thereunder (if any) now forming part of the Manor”
[69]The expression “the Lordship Marcher of St David’s” was not further defined. However, the conveyance included provisions for “clawback” in the event that the “Property” (also undefined) was exploited.[70]By a conveyance of 2 January 2001 Tacticall Radio Hire Ltd conveyed to Mr Roberts (styled in the conveyance as “the Lord Marcher of Trelleck”) the Lordship Marcher of St Davids. This time, however, the Lordship Marcher was elaborately defined as follows:
“… the Lordship Marcher of St Davids in the former Counties of Pembrokeshire Brecknockshire Cardiganshire Carmarthenshire Glamorganshire Radnorshire or elsewhere in Wales or England with its right members and appurtenances including for the avoidance of doubt (but not by way of reduction to the aforementioned express grant) all corporeal demesne land parcel of or appendant to the Lordship Manor and all cantrefs commotes lordships manors baronies castles towns hamlets messuages houses tenements edifices orchards gardens dovecots forests chases parks warrens vivaries piscaries fishings mills meadows feedings pastures woods underwoods commons waste lands mountains heaths moors marshes wharfs grounds void grounds foreshore and bed of the sea and rivers and all oblations pensions portions rents services fee farms knights fees revenues escheats reliefs heriots courts courts leet views of frankpledge and whatsoever to courts leet and views of frankpledge belonging or appertaining courts baron perquisites and profits of courts fines issues amerciaments liberties franchises free customs rights jurisdictions pre-eminences prerogatives regalities profits commodities emoluments and hereditaments demised occupied or enjoyed with it or reputed or known as part parcel or members of it and together with (but not by way of reduction to the aforementioned express grant) all matters specified in the Law of Property Act 1925 Section 62 and together with (but not by way of reduction to the aforementioned express grant) all regalities confirmed to the Lords Marchers of Wales by the Act 1 & 2 Phil. & Mar. c. 15 other than those excepted from this Conveyance.”
[71]There was nothing excepted from the conveyance.

Did the status of a Lord Marcher carry privileges with it?

[72]Mr Hinks submitted that the status of Lord Marcher was essentially a jurisdictional franchise. The essence of the franchise was that the King’s writ did not run within the March in question; and the Lord Marcher was empowered to administer justice (with immaterial exceptions) within his lands. The status of Lord Marcher did not carry with it any proprietary rights, the source of which would have to be found elsewhere (for example in a royal charter).[73]More particularly, in the case of the Bishop of St David’s the charter of 1115 was a land grant, and the jurisdictional franchises were not conferred upon the Bishop until later charters, notably the charter of 1241 and 1383.[74]The jurisdictional privileges of the Lords Marcher were abolished by The Act of Union 1535, and their franchises restricted by that Act. I agree. I agree also that the franchises that were mentioned in section 30 of that Act (and again in section 101 of the Laws in Wales Act 1542 and section 6 of the Lord Marches in Wales Act 1554) were not created by those Acts, but that they merely preserved such of the franchises as were already existing.[75]In addition, in so far as any privileges attaching to the status of Lord Marcher survived the Tudor legislation, they were removed by the abolition of feudal tenure effected by section 1 of the Abolition of Tenures Act 1660 which removed all the “fruits and consequents” of tenure in capite of the Crown. As Lord St Leonards explained in the Berkeley Peerage case (1858-61) 8 HLC 21:
“Not only were all tenures in capite … taken away, but the lands were for ever turned into free and common socage. How can the Castle and Estate of Berkeley, holden as it now is by free and common socage, and not in capite or in chief, carry with it a right in its possessor to sit in this House? It confers upon him just the same right, but no higher than the humblest cottage confers on its owner. The feudal tenure being abolished, of course the privileges annexed or flowing from it have ceased.”
[76]Ms Tozer sought to meet this latter point by arguing that as at 1660 the Bishops held their lands in frankalmoign, relying on the statement to that effect in the Valor Ecclesiasticus of 1536; and hence that their privileges survived because of the exclusion of frankalmoign in section 7 of the 1660 Act. However, as I have said, there is no express grant of any lands in frankalmoign, and I do not consider that the single reference to free and perpetual alms in the Valor Ecclesiasticus is a sufficient foundation upon which to conclude that the Bishop did indeed hold all his lands in frankalmoign. The fact that the Crown enjoyed the temporalities of the see during the reign of King John is also inconsistent with tenure in frankalmoign. It was common ground that, if the Bishops ever held their lands in frankalmoign, that tenure was converted into socage by the vesting of the lands in the Ecclesiastical Commissioners. It was not argued (although it might have been) that the conveyance during the Commonwealth to Mr Hill, the London mercer, (and hence before the passing of the Abolition of Tenures Act) had that effect.[77]In my judgment, therefore, by 1542 (or at the latest 1660) any privileges that had belonged to the Bishops in their capacity as Lords Marcher or as tenants in capite had been abolished. This, I might add, coincides with the view of George Owen writing in about 1600.

The approach to the construction of grants by the Crown

[78]In the case of ambiguity in a contract of grant between subjects, the ambiguity may be resolved by recourse to the principle of interpretation against the grantor (one of the meanings of the phrase contra proferentem). Traditionally that principle has been inverted in the case of grants by the Crown. In Feather v R (1865) 6 B. & S. 257Cockburn C.J. said:
“It is established on the best authority that, in construing grants from the Crown, a different rule of construction prevails from that by which grants from one subject to another are to be construed. Ina grant from one subject to another, every intendment is to be made against the grantor, in favour of the grantee, in order to give full effect to the grant; but in grants from the Crown an opposite rule prevails. Nothing passes except that which is expressed, or which is matter of necessity and unavoidable intendment in order to give effect to the plain and undoubted intention of the grant. And in no species of grant does this rule of construction more especially obtain than in grants which emanate from and operate in derogation of, the prerogative of the Crown.”
[79]Similarly, Lord Birkenhead L.C., speaking in the Committee of Privileges of the House of Lords in Viscountess Rhondda's Claim [1922] 2 A.C. 339 said:
"The rule that the words of an instrument shall be taken most strictly against the party employing them - verba chartarum fortius accipiuntur contra proferentem - doesnot apply to the Crown such a grant is construed most strictly against the grantee and most beneficially for the Crown, so that nothing will pass to the grantee but by clear and express words."
[80]According to Lord Stowell in The Rebeckah (1799) 1 Ch Rob 227 the rationale behind the inversion of the normal principle is that:
“the prerogatives and rights and emoluments of the Crown being conferred upon it for great purposes, and for the public use, it shall not be intended that such prerogatives, rights and emoluments are diminished by any grant, beyond what such grant by necessary and unavoidable construction shall take away.”
[81]It is also the case that a medieval charter was a public document, as shown by the opening words of the 1115 charter:
“Henry King of the English sends greetings to the archbishops bishops earls and barons and all his loyal subjects French and Welsh and English. May you know that I have granted and given…”
[82]The public, to whom the charter was addressed, would have only the words of the charter to rely on.[83]In those circumstances, whatever might nowadays be the position, it seems to me that I should apply the traditional rule in interpreting the ancient charters which evidence the title of the Bishops of St David’s. Accordingly, I should not interpret the charters as conferring rights on the Bishops unless they do so by express words or necessary implication.

Welsh customary law

[84]Mr Roberts places some reliance on what is said to be Welsh customary law ante-dating the Norman Conquest. This is derived from that part of the 1115 charter which says that the Bishops were to have:
“all customary rights as the aforesaid church or any of its bishops had on better terms and held in the time of my father and King Edward and Griffin or at any other time.”
[85]The Welsh customary laws survive to some extent in a collection of manuscripts known as the laws of Hywel Dda, who reigned in Wales in the middle of the tenth century. Henry VIII’s commissioners were scathing about these laws in the Valor Ecclesiasticus, calling them the “most imperfect law of all laws”. The surviving manuscripts of the laws of Hywel Dda begin with a manuscript of the late twelfth century, some two hundred and fifty years after his death. There are three law codes, which have been given different names at different times by scholars. Mr Fletcher-Tomenius examined the scholarly literature and concluded that Welsh scholars are uncertain about the content of the original laws of Hywel Dda. He also drew attention to the scholars’ conclusion that the surviving manuscripts are likely to have been influenced by Anglo-Norman law. His conclusions were not challenged. He drew attention to the description in two of the codes to references to the sea and the fruits of the sea. The first is from the Book of Cyvnarth (formerly called the Gwentian Code, which seems to have applied to the ancient kingdom of Deheubarth):
“Eight packhorses of a king are: the sea, and a waste, and an irremediable pauper, and a thief, and a marwdy, and dirwy and camlwrw and ebediw.”
[86]The same code states:
“If a ship be wrecked on the land of a lord, the lord has it; and if a ship be wrecked on the land of a bishop, it is divided between the king and the bishop.”
[87]The Book of Iowerth (formerly called the Venedotian Code, which appears to have applied in North Wales) also refers to the sea as the “packhorse of the king”. It says:
“Whoever possesses land upon the margin of the shore owns as much of the beach as the breadth of the land and he may make a weir or other things thereon if he will; but if the sea throw any things upon that beach they belong to the king: for the sea is a pack-horse of the king.”
[88]Mr Roberts produced further extracts from the Book of Iowerth published by the Record Commission in 1831. They also refer to the sharing of wreck between the bishop and the king if a ship is wrecked on the land of a bishop. It also states:
“It is free for every body to fish in the sea; what the sea casts ashore however, whether alive or dead belongs to the king from the day they are cast up until the third day forth if not taken by the king, let them be a booty to such as may find them.”
[89]What customary rights have been established? Ms Tozer relied on an extract from The Legal History of Wales, by Professor Thomas Glyn Watkin. The relevant extract (p. 62-3) reads:
“The law books also discuss the acquisition of other forms of property in a manner which is very reminiscent of the works of the Roman jurists. From these discussions, it is learnt that fishing in rivers, fish being a very important product in the Wales of that time, was freely open to lords and free tenants, permission only being necessary to build traps or weirs. If fish were caught by such devices when no permission for their use had been given, then the fish caught had to be divided between the lord and the captor, the latter still getting two thirds…. In Welsh law, everything a priodawr [a landowner] found concealed on his land belonged to him, apart from gold and silver which went to the king. … A ship which was wrecked before port dues had been paid belonged to the king if he claimed it, but otherwise went to the first taker. If the wreck grounded on bishop land, the property was shared half-and-half between the bishop and the king, an interesting and unusual compromise with the ecclesiastical authorities. Once port dues had been paid, the owner of the vessel could claim the property as his own. Likewise dead fish washed up on the shore were available to the king for three tides, but then available to the first taker. These rules were justified on the basis that the sea was the king’s packhorse, a principle which may hark back to ancient native ideas of what came from the water being a divine gift. The same might be true of living things found upon land, for an animal which was found did not become the property of the finder. Instead, it had to be taken to the lord and proclaimed as lost property. If claimed, it went back to its owner; if not it became part of the lord’s waste…”
[90]Professor Watkin does not say that the native princes or kings had an exclusive right to fish in the sea. On the contrary, his only reference to fishing relates to fishing in rivers, and he stresses the importance of fish as a means of sustenance of the people. The only reference he makes to sea fish is to dead fish washed up on the shore. It would be very unlikely that the king or prince asserted an exclusive right to fish in the sea. In addition the extract from the Book of Iowerth asserts in terms that it is free for every body to fish in the sea. In my judgment Mr Roberts has not proved the existence of any exclusive customary right to fish in the sea.[91]On the other hand I am prepared to accept that the native princes asserted a right to treasure trove and to ownerless straying animals (estrays). The right to a moiety of wreck is not, in principle, in dispute. However, George Owen asserted that in the time of the Welsh princes the Bishops did not “execute such Royal authority as the Lords marcher did” (see para. 34 above).

Franchises

[92]A franchise is a branch of the Royal prerogative, subsisting in the hands of a subject. Being derived from the Royal prerogative, a franchise can be created only by express grant or by prescription which itself presupposes a grant at an ancient date.[93]The nature of a franchise was described by Nourse LJ in Spook Erection Ltd v Secretary of State for the Environment [1989] QB 300:
“The right which was granted to one Anthony Bourchier by the letters patent of 29 June 1637 was a franchise; an incorporeal hereditament which has been authoritatively defined as a royal privilege or branch of the royal prerogative subsisting in the hands of a subject, by grant from the King: see Chitty: The Prerogatives of the Crown (1820), p. 119.”
[94]A franchise is thus an incorporeal hereditament.[95]One issue that arose in the present case was whether a franchise can be lost by non-use for a protracted period. Mr Hinks submitted that it could. One of the pragmatic compromises of the common law is to give legal effect to long-established facts. The underlying principle manifests itself in many ways. Long possession of land gives rise to title by adverse possession. Long and open exercise of a right over land gives rise to the acquisition of an easement by prescription. Upon the same principle, long and open use in breach of covenant may give rise to a presumption that the covenant has been released: A-G of Hong Kong v Fairfax [1997] 1 WLR 149. As Lord Selborne put it in Great Eastern Railway v Goldsmid (1884) 9 App Cas 927, 938:
“In the first place, if there be a valuable principle in our law, the observation of which within its proper limits is of cardinal importance, it is this, that all reasonable presumptions shall be made in support and not in destruction of long enjoyment and usage….It is, as I have said, a principle of vital importance to the maintenance of public and private rights in this country, where no law can be repealed by mere desuetude, that reasonable presumptions shall be made of all things which are reasonably possible in support of such long enjoyment.”
[96]Thus it was held in that case that the City of London Corporation had implicitly given up a franchise consisting of an exclusive right to markets within London that had apparently been conferred on it by an Act or charter of Edward III in circumstances in which it had acquiesced for centuries in the holding of other markets.[97]Mr Hinks also relied on A-G v Parmeter (1811) 10 Price 378. The defendants in that case claimed rights under a charter granted by Charles I in 1628. The grant was a grant of lands and marshes subject to the overflowing of the sea. The charter declared that it had been granted in consideration and as compensation for the future expense of reclaiming the land from the sea. In fact nothing had been done under the charter until 1784, when the defendants began to build a wharf. MacDonald CB, delivering the judgment of the Court of Exchequer said:
“Let us next examine the common doctrine in the case of a grant made, and of which no advantage has been taken, and which has never been acted upon for a century and a half. It is most manifestly clear, either that the grant was never acted upon at all, or we must presume that it was surrendered, if ever the grantees did avail themselves of it. It has been argued thus: that supposing this was the case of a subject who had not acted upon such a grant for one hundred and forty years, the presumption must be the same as it was in the case of The Mayor of Kingston-upon Hull v Horner and the case of The Advowson of Chester-le-Street. In those cases there was nothing produced but a grant made at a distant time. The Court said, time must determine the title. Whenever we see a length of possession of this time, we must presume from the lapse of time, that an adverse grant is surrendered. So where we find the King by his subjects still in possession of this soil, by the passing and repassing of such vessels as can pass and repass, we must conclude that if it ever existed in force this grant had been in the interim surrendered to the Crown.”
[98]This is, in my judgment, consistent with the general policy of the law in recognising the legality of a long-standing state of affairs. It is also supported by the statement in 3 Cruise’s Digest: Franchises para 109:
“Free chase and warren may, I presume, like other franchises, be lost by non-use when claimed by prescription or even by express grant. As the non-user creates a presumption that the franchise has been surrendered, it is therefore necessary, where a claim of this kind is made, to prove a continued exercise of the right. ”
[99]There is a similar statement in Scriven on Copyholds (7th ed. p. 287). This principle is also consistent with the decision of the House of Lords in Neill v Duke of Devonshire (1882) LR 8 HL 135 (to which I refer later), although the underlying reasoning is, perhaps, not so clearly articulated in that case.[100]In principle, therefore, I consider that Mr Hinks’ submission is correct. There is, however, one note of caution that should be sounded. It is, I think, important to distinguish between a case in which the occasion to exercise the franchise has arisen but has not been taken, and a case in which the occasion to exercise the franchise has not arisen. It is also, I think, necessary to distinguish between a franchise that would give the franchisee the right to object to activities that are openly taking place, and one that confers no such right. For example, a franchise of treasure trove may not have been asserted in a particular locality for centuries, because no treasure has ever been found. In such circumstances the mere absence of any claim to treasure trove would not, I think, give rise to any inference of surrender. Likewise if a franchise entitling a franchisee to hold a fair or a market has not been exercised for many years, that of itself may not give rise to any inference of surrender, but it may be different if, during the period of non-exercise, a rival market has been consistently and openly held in the area of the franchise.

The right of wreck

[101]The general position is governed by section 241 of the Merchant Shipping Act 1995 which says:
“Her Majesty and Her Royal successors are entitled to all unclaimed wreck found in the United Kingdom or in United Kingdom waters except in places where Her Majesty or any of Her Royal predecessors has granted the right to any other person.”
[102]“Wreck” is defined by section 255 (1) as including:
“jetsam, flotsam, lagan and derelict found in or on the shores of the sea or any tidal water.”
[103]The right to wreck is a franchise. Thus it may be created either by express grant, or by presumed grant arising from prescription at common law.[104]There is no express reference to the right of wreck in the charter of 1115. However, the survey of 1326 records that the tenants of a number of the manors had an obligation to guard the wreck. This is at least consistent with a right in the lord to the wreck. However, in the case of some coastal manors (St David’s, Upper Pebidiauk and Lower Pebidiauk) no obligation to guard wreck is recorded in the survey. This indicates that, in respect of those manors, the Bishops did not claim a right of wreck. The manor of St David’s just referred to is not the same as what is now called the Manor of the City and Suburbs of St David’s. There is, however, undoubtedly evidence that the Bishops of St David’s claimed a right of wreck and that that right was recognised by the Receiver of Wreck. The first dispute between the parties is whether that right was claimed or exercised by the Bishops as Lords Marcher or as Lords of the Manor of particular manors.[105]In 1855 The Receiver of Wreck acknowledged the Bishop of St David’s claim to a right of wreck. The extent of the claim was described as:
“From the north side of Newgale Sands in the parish of Brawdy to a stream on the northern extremity of White Sand Bay in the parish of St David’s (where the Prince of Wales’ manor commences) and thence from the north side of St David’s (where the Prince of Wales’ manor commences) to Goodwick Sands at Fishguard Bay”
[106]The capacity of the Bishops as claimants was described as “Lord of the Manor of Dewsland from time immemorial”. Thus the acknowledgement was an acknowledgment of a prescriptive title apparently appurtenant to a particular manor. Some twenty years later, just after the resignation of the Bishop in 1874, the Ecclesiastical Commissioners were asked by the Board of Trade to produce evidence of the exercise of the right. The evidence related to payments that had been made to the Bishop from the proceeds of sale of wreck that had been washed ashore “on his manor of Dewisland.” This time, on 8 July 1875 the Board of Trade acknowledged that the Ecclesiastical Commissioners had proved title to one moiety of unclaimed wreck washed ashore. The capacity in which the claim was acknowledged was “Lords of the Manor or Lordship of Dewisland”. The extent of the acknowledged claim was in the same terms as in 1855. The evidence presented in support of the claim included a summary of a court roll from 1834 which recorded:
“A court roll dated 1834 of the manor of Trefine which is a sub-manor of Dewsland. In this book under date 4 November 1846 there is a presentment of a boat having come on shore at Aberweller, when the question as to the right of the Lord was referred to the Stewards, who gave charge to the Bailiffs to look after, take charge of and report all wreckage to the Stewards of this Manor.”
[107]This seems to me to indicate clearly that the right of wreck was being claimed as a franchise vested in the Lord of the Manor of Trefine (or Trevine) and as Lord of the Manor of Dewisland, rather than in some supra-capacity as Lord Marcher.[108]During the 1920s questions arose about the precise limits of the Bishops’ claims. By then of course, the manors had passed to the Welsh Church Commissioners under the Welsh Church Act 1914. By a letter dated 9 August 1928 the Welsh Church Commissioners wrote to the Mercantile Marine Department at the Board of Trade saying that they had “no reason to dispute the limits within which the Board admitted the title of the Lord Bishop of St Davids to the moiety of the proceeds in 1862”.These limits, as I understand it, include the foreshore abutting the manor of Trevine and the manor of the City and Suburbs of St David’s. In the case of the latter manor this is a very small stretch at the mouth of the river Alan and also around St Non’s Bay.[109]Neither side asserted that the acknowledgement by the Receiver of Wreck of the Bishop’s right to a moiety of wreck in his capacity as “Lord of the Manor of Dewisland” should be accepted literally. The fact is that the University sold the Manor of Dewisland (Upper & Lower) in 1988 to Mrs Doreen Bowie. Accordingly, if the right of wreck were indeed enjoyed by the lord of the manor of Dewisland over the whole of the foreshore within the limits admitted by the Receiver of Wreck, it would be enjoyed by Mrs Bowie (or her successors) rather than Mr Roberts.[110]The stretch of coastline over which the Bishop’s right of wreck was recognised extended well beyond the boundaries of the manor of Dewisland. With two exceptions it encompasses thirty miles or more of coastline from Newgale right round the peninsula of St David’s Head and on past Strumble’s Head to Fishguard itself.[111]However, the very fact that there were two breaks in the stretch of coastline also seems to me to indicate that the Bishops’ right to a moiety of wreck was not being recognised as a unitary entitlement. Moreover, the fact that the Black Book of the Bishops of St David’s records obligations about wrecks in some but not all manors indicates that the right of wreck attached to the lordship of a particular manor rather than to any superior interest held by the Bishops. Ms Tozer suggested that this latter fact could be explained on the basis that the Bishops organised the guarding of wreck on a barony-wide basis. Not only was there no evidence to support this speculation, but it is, in my judgment, quite impractical. If a valuable wreck were washed up on the Pembrokeshire coast, it would almost inevitably have been looted before the tenants of a manor some twenty or thirty miles away could have been alerted and then travelled the twenty or thirty miles to guard it. Likewise the record of the court roll of the Manor of Trevine strongly suggests that the right of wreck was claimed on a manor by manor basis. In addition, as I have explained, in the case of Episcopal manors, there was no superior interest: the Episcopal manors were simply manors that the Bishops had not subinfeudated.[112]Mr Fletcher-Tomenius’ conclusions on the right to wreck are as follows:
“8.4.6 The manorialised character of the residual holdings of the See was reflected in the disposals of lordships by the University of Wales in recent years. For example, in 1988, the Lordship of the Manor of Dewisland (Upper and Lower) was auctioned (as Lot 9) and this area, although still substantial, no longer included tracts of land forming a number of adjoining manors, which were disposed of as separate lordships. Although Dewisland did include a section of coast, the section to the west of Fishguard, including Goodwick, formed part of the Manor of Trellys and Grandiheno which was disposed of in the same auction as Lot 6. Both manors were sold with “…all such rights as are now subsisting and are vested in the Grantor…”
. There were separate reports for each manor accompanying the auction particulars and these similarly emphasised the uncertainty of the residual manorial rights, not surprisingly in view of the contents of Bishop Lucy’s survey from the seventeenth century and the equivocal content of the various sources of the laws of Hywel Dda. From this information, the only firm conclusion is that any particular manor might or might not currently enjoy a right of wreck. In the absence of direct evidence, therefore, the matter is moot and the answer not to be derived from mere identification of the ancient rights of the marcher lord of St. David’s. In any event, if the right of wreck had remained vested in the successor in title to the Bishop Lord Marcher, it was expressly conveyed with each sale of manorial lordships by the University of Wales.”[113]Mr Fletcher-Tomenius also points out that according to the Black Book of St David’s the lord of the manor of Trellys and Grandiheno (and other manors) claimed the right of wreck and that the Black Book also discloses three coastal manors (referred to above) where there was no duty to guard the wreck. He concludes:
“The only apparent explanation is that either the Bishop did not claim a right of wreck or that he had granted this away in the grant of manor. Given the complexity of the hierarchy of mesne and sub-manors, the latter explanation seems more likely.”
[114]I accept these conclusions. I find that the Lord of the Manor of Trevine had a franchise entitling him to a moiety of wreck. I find that the Lord of the Manor of the City and Suburbs of St David’s had a similar franchise.

Several fishery

[115]Despite its rather misleading title, a several fishery is an exclusive right of fishing. In the absence of a several fishery, the general public has the right to fish in tidal waters. A several fishery is a franchise, which must derive from a Crown grant. As in the case of a right of wreck it may be created either by express grant, or by presumed grant arising from prescription at common law. However, there is one critical difference. Given the importance of the fishing industry both in ancient times and also today several fisheries were not popular. It is common ground that the creation of a several fishery was prohibited by Magna Carta. However, Mr Roberts claims to be entitled to a several fishery granted to the Bishops of St David’s by the charter of 1115. The extent of the right of several fishery claimed is along the whole of the sea coast bounding the ancient lands of the Bishops, together with the exclusive right to fish in the sea as far as the sea was customarily fished in 1115. The claimed right includes the right to make weirs or fish traps on the foreshore.[116]The claim is put in two ways. First, Mr Roberts relies on the express grant of “fisheries” in the charter itself. Second, he relies on the express grant of:
“all customary rights as the aforesaid church or any of its bishops had on better terms and held in the time of my father and King Edward and Griffin or at any other time”
[117]He says that the customary rights of the Bishops, inherited from the native princes, included an exclusive right to fish in the sea, up to the limits of whatever was the customary limit of fishing in 1115. I have already rejected the second basis of putting the case on the ground that it has not been proved that the native princes asserted such an extravagant right, and that the Welsh customary law indicates that everyone had a right to fish in the sea. I might also add that there is no evidence about the extent to which fishermen ventured into open waters in 1115, so that the extent of the right claimed on this basis is uncertain.[118]What then of the word “fisheries” (piscationibus) in the charter? The word appears in a long list of general words. Mr Hinks submitted that, having regard to the principle that Crown grants are construed in favour of the Crown, a right as extravagant as a right of exclusive fishing over a large stretch of coastal waters should not be held to have passed by a general word tucked away in a long list. In my judgment he is right. In the Case of the Royal Fishery of the Banne Dav. 149 it was held that a royal fishery did not pass by a general grant of all fisheries, because general words in a grant did not pass “special royalty which belongeth to the Crown by prerogative”. That was followed in Duke of Somerset v Fogwell (1826) 5 B & C 875, 885. It is also the case that ancient conveyancing practice was to describe a right of several fishery as “separalem piscarium”, thus emphasising the extraordinary nature of the right: Co Litt. 4b. In addition a general reference in the charter to fisheries might well refer to fisheries in non-tidal rivers (e.g. the River Alan which flows through the city and meets the sea at Porthclais).[119]Mr Hinks also submitted that the ancient grant of 1115 should be construed in the light of subsequent acts of possession and enjoyment. I agree with that too. In Neill v Duke of Devonshire (1882) LR 8 HL 135 what was in issue was the right to a several fishery in the river Blackwater. There was evidence of title in the shape of letters patent that had been granted by James I and Charles I. Lord Selborne LC said at 143:
“These written titles (if the possession and enjoyment has been consistent with them) afford irresistible ground for a presumption that the fishery, either in all the tidal waters of the river Blackwater, or at all events in that part of them which is now immediately in question, was “put in defence” before Magna Charta; and having become vested in the Crown by forfeiture of the private rights from time to time acquired in it, was well and effectually granted to the predecessor in title of the Duke of Devonshire. …Under the circumstances which I have stated, the real controversy in this case is as to the sufficiency of the evidence of possession and enjoyment, without which, even the clearest apparent title to a several fishery, on paper only, would not exclude the public right.”
[120]In the present case there is no evidence at all that the Bishops ever exercised a right of exclusive fishing in the sea. No such right is recorded in any of the surveys of their lands in 1326, 1536 or 1660. There is no evidence of any income from the grant of licences to fish in the sea. None of the scholarly historical research that has been shown to me hints at the existence of such a right. It is also the case that in the detailed saving provisions contained in the Act of Union 1535 and in the Lord Marches in Wales Act 1554 there is no preservation of any right of several fishery.[121]Ms Tozer was able to point to an Admiralty chart of 1748 which showed a weir on the foreshore between Goodwick and Fishguard. The chart showed what was visible on the ground at the time that it was made. It says nothing about who constructed the weir, or when it was constructed or who had the benefit of it. In fact the site of the weir is now underneath part of the Port of Fishguard. The Commissioners’ unchallenged evidence is that when the Ecclesiastical Commissioners claimed compensation for their lands taken in order to enable the port to be constructed, they claimed only in respect of land above high water mark and made no claim for the loss of any fishing rights. Ms Tozer also relied on a lease of the manor of Brawdy granted by the Bishop in 1861. The parcels comprised in the lease were, according to the lease plan, a coastal area. The description of the parcels included:
“all manner of lands and messuages tenements barrows meadows woods underwoods furze heath commons liberties easements warrens waters watercourses weirs ponds rents of land services commodities emoluments advantages and all other the appurtenances …”
[122]In a lease granted before the Conveyancing Act 1882 this is, in my judgment, no more than verbose conveyancing. Mr Hinks drew my attention to Mr Giles Jacob’s work “The Accomplished Conveyancer” of 1750 in which the author advised his readers that “it is best and safest to have too many general words than too few”. Parliament has battled against conveyancers’ verbosity since at least the Leases Act 1845, without a great deal of success. I cannot regard the inclusion of “weirs” in the list, without any indication on the lease plan as to the whereabouts of the weirs (if there were any) as evidence of a several right of fishery in the sea.[123]On the other side of the line, I heard the evidence of Mr Coates, the director of the South Wales Fisheries Committee. The Committee is constituted under the Sea Fisheries Regulation Act 1966 to manage and develop inshore fisheries within 6 nautical miles of the coast. The area for which it is responsible runs from Cardiff in the east to Cardigan in the west. It thus encompasses the area with which I am concerned. Its records go back to 1892. It has no record of any private fishery within its area. The Committee has the power to make byelaws, but those byelaws must not prejudice any right of several fishery. In fact the Committee has made byelaws closing fisheries over the land in dispute in the present case for certain purposes (e.g. fishing for scallops); and no one has ever complained. Mr Coates’ evidence was that so far as the records of his Committee and its predecessors go, the public has always fished freely in the sea. They have in addition enforced the byelaws within the areas over which Mr Roberts claims to have the exclusive right to fish.[124]Mr Coates fairly accepted in cross-examination that if a person had a several fishery but chose not to exercise it, he or his Committee would not necessarily know of its existence. But in my judgment the fact that such a right has not been exercised for (at least) over a hundred years is powerful evidence that the claimed right does not exist.[125]In my judgment Mr Roberts has failed to prove that the Bishops ever had the right of exclusive fishing that he claims. If the Bishops never had it, it follows that Mr Roberts does not have it either. If the Bishops ever had a right of exclusive fishing, it has been infringed consistently for over a hundred years. In those circumstances I would have presumed that it had been surrendered.

Treasure

[126]Rights in treasure are now governed by the Treasure Act 1996. Section 1 of the Act defines “treasure” in terms which are wider than the traditional definition of treasure trove. Section 4 (1) provides:
“When treasure is found, it vests, subject to prior interests and rights— (a) in the franchisee, if there is one; (b) otherwise, in the Crown.”
[127]A “franchisee” is defined by section 5 (1) which provides:
“The franchisee for any treasure is the person who— (a) was, immediately before the commencement of section 4, or (b) apart from this Act, as successor in title, would have been, the franchisee of the Crown in right of treasure trove for the place where the treasure was found.”
[128]Mr Roberts claims to be entitled to a franchise of treasure as one of the customary rights of the Bishops in 1115. Although there is some evidence that the ancient Welsh princes or kings claimed a legal right to treasure, there is no evidence that the Bishops ever did. In Attorney-General v Trustees of the British Museum [1903] 2 Ch 598 Farwell J held that a right to treasure trove did not pass by general words in a Crown charter, but had to be expressly granted. No right to treasure is expressly conferred by any of the ancient charters, and there is no evidence that the Bishops claimed a right of treasure before 1115. As noted, George Owen asserts that during the time of the Welsh princes they did not. Again no such right is recorded in the surveys of 1326, 1536 or 1660. Even Mr Jones’ extensive catalogue of the rights that he asserted were enjoyed by the Bishops did not include a right to treasure or treasure trove.[129]As Mr Hinks submitted, the customary legal position in pre-Norman times, so far as the material goes, is that the king had the right to treasure. That is the same as the current legal position; namely that there is a presumption that treasure belongs to the Crown. In my judgment Mr Roberts has not rebutted the presumption.[130]I should add, however, that there is no evidence that treasure has been found in the area over which Mr Roberts asserts the right to treasure. This absence of evidence means that if (contrary to my conclusion) the Bishops ever had a right to treasure, it would not be right to presume a surrender of it.

Sporting rights

[131]The sporting rights to which Mr Roberts claims to be entitled are those created by sections 10 and 13 of the Game Act 1831. Section 10 provides so far as material:
“the lord or steward of the crown of every manor, lordship, or royalty, or reputed manor, lordship, or royalty, shall have the right to pursue and kill the game upon the wastes or commons within such manor, lordship, or royalty, or reputed manor, lordship, or royalty, and to authorize any other person or persons … to enter upon such wastes or commons for the purpose of pursuing and killing the game thereon.”
[132]Section 13 provides so far as material:
“It shall be lawful for any lord of a manor, lordship, or royalty, or reputed manor, lordship, or royalty, or any steward of the crown of any manor, lordship, or royalty appertaining to his Majesty, by writing under hand and seal, or in case of a body corporate, then under the seal of such body corporate, to appoint one or more person or persons as a gamekeeper or gamekeepers to preserve or kill the game within the limits of such manor, lordship, or royalty, or reputed manor, lordship, or royalty, for the use of such lord or steward thereof.”
[133]It is not, I think, in dispute that Mr Roberts is entitled to these rights in relation to each of the manors that he has acquired. The issue on this part of the case is whether the rights conferred by the Game Act 1831 are exercisable over the foreshore. That is an issue with which I deal later.

Estrays

[134]There is evidence of a right to estrays in relation to some of the manors into which research has been conducted. The most extensive research into the manors of Dewsland was that carried out by Mr Francis Jones (op. cit.) He recorded references to the entitlement of the Lord of the Manor to estrays in relation to the following manors: i) Letterston (an Episcopal manor) ii) Trevine (an Episcopal manor) iii) Patricksford, St Edrins and Tyleror (all lay manors) iv) Skyfog (a lay manor) v) Tregadwgan (a lay manor).[135]In the course of his research Mr Jones examined the records of the court of the Manor of Trevine. He records that at the court held on 8 May 1738 the jury presented that a black ewe stray had been for a year and a day unchallenged and became forfeited to “the lord of the manor”.[136]Mr Roberts is now the lord of the manor of Trevine.

The effect of the conveyance

[137]As I have said the University of Wales has been selling lordships of the manor for the last twenty years. Although it is convenient to call them manors, they are almost certainly reputed manors, as are most manors today. The conveyance to Tacticall Radio Ltd purported to convey “The Lordship Marcher of St Davids”. Was there such a thing?[138]Apart from the auction memorandum (as altered by Mr Roberts himself) there is not a single document, amongst documents that go back for nearly 900 years, that refers to The Lordship Marcher of St Davids. The lordship or barony held by the Bishops of St Davids in this part of Pembrokeshire is consistently called the Episcopal lordship or barony of Pebidiog (with variant spellings such as Pebidiauk, Pebidiawk, Pebidiewk etc.) or, using the English equivalent, the Episcopal lordship or barony of Dewisland or Dewsland. As Mr Hinks pointed out, when ancient charters such as the charters of 1241 or 1386 confirmed or conferred jurisdictional franchises on the Bishop and his successors personally, and the court that he was entitled to hold was a court of “his men”. Since the Bishops held land in more than one county the jurisdictional franchises extended to all their lands in all those counties. I find it impossible to construe the phrase The Lordship Marcher of St Davids as meaning the Episcopal barony of Pebidiog or Dewsland. Ms Tozer suggested that The Lordship Marcher of St Davids was no more than Mr Roberts’ translation of the Lordship Marcher of Dewisland, pointing out that “Dewi” in Welsh was the equivalent of “David”. She pointed out that “Dewysland” was specifically mentioned in section 17 of The Act of Union 1535. So it was, but it was mentioned as one of a collection of “Lordships, Towns, Parishes, Commotes, Hundreds and Cantreds”. It was not specifically described as a Lordship Marcher. Moreover, the effect of section 17 was to unite, annex and join it to the county of Pembroke. It cannot, thereafter, have had any separate existence. There was in fact a Manor of Dewisland (Upper & Lower) but that, as I have said, was sold by the University in 1988. In addition to “Dewysland” the Act of Union also mentioned “Lannehadein” (i.e. the barony of Llawhaden). At the time of the Act it seems that the Bishop actually exercised such jurisdiction as he had as Lord Marcher in Llawhaden rather than at St David’s. That was where he held his court, and had his chancery and his exchequer. In so far as any one of the lordships should be singled out as being “the” lordship marcher, Llawhaden has a better claim than Dewysland.[139]What effect, then, should be given to the conveyance? Mr Hinks submitted that the auction memorandum contained an agreed definition of the phrase “the Lordship Marcher of St Davids” which otherwise had no recognisable meaning. The conveyance must, of course be construed objectively, and not merely by reference to the subjective intention of one party. As I have said, Mr Hinks relies on the auction memorandum. That is not a document that was written in the course of negotiation. It is a record of a contract that had actually been made. Recourse to a prior contract between the parties is permissible in construing a later contract: HIH Casualty and General Insurance Ltd v New Hampshire Insurance Co [2001] 2 Lloyd’s Rep 161. Ms Tozer submitted that the auction memorandum was unhelpful because the transaction moved on between the date of the auction and the date of the eventual conveyance. So it did, but the meaning of “the Lordship Marcher of St David’s” was not revisited; and certainly not revisited in a way that amounted to an agreed variation. In my judgment I should construe the phrase the Lordship Marcher of St David’s by reference to the auction memorandum. For convenience, I set it out again:
“Lot 8 described in the Particulars of Sale being The Lordship Marcher of St Davids, commonly called the Manor of St Davids”
[140]There are three elements in this description of the subject matter of the sale. First, it is described as Lot 8 as described in the Particulars of Sale. That is undeniably a reference to the Manor of the City and Suburbs of St David’s. Second, Lot 8 as so described is said to “be” The Lordship Marcher of St Davids. In other words, The Lordship Marcher of St Davids is synonymous with the description of Lot 8. Third, The Lordship Marcher of St Davids is said to be commonly called the Manor of St Davids. What was commonly called the Manor of St Davids was the Manor of the City and Suburbs of St David’s, and nothing else. Since the expression “Lordship Marcher” had not been used, except by historians, for the best part of five hundred years before the sale, that is hardly surprising. That this is the correct construction is supported by the fact that the conveyance also refers twice to the “manor”: i) In excluding corporeal demesne land “appurtenant to the manor” and ii) In excluding mines and minerals “forming part of the manor”.[141]My preferred construction therefore means that the conveyance is internally consistent. I hold therefore that what was conveyed by the conveyance to Tacticall Radio was the manor (or reputed manor) of the City and Suburbs of St David’s.[142]Section 62 (3) of the Law of Property Act 1925 provides:
“A conveyance of a manor shall be deemed to include and shall by virtue of this Act operate to convey, with the manor, all pastures, feedings, wastes, warrens, commons, mines, minerals, quarries, furzes, trees, woods, underwoods, coppices, and the ground and soil thereof, fishings, fisheries, fowlings, courts leet, courts baron, and other courts, view of frankpledge and all that to view of frankpledge doth belong, mills, mulctures, customs, tolls, duties, reliefs, heriots, fines, sums of money, amerciaments, waifs, estrays, chief-rents, quitrents, rentscharge, rents seck, rents of assize, fee farm rents, services, royalties jurisdictions, franchises, liberties, privileges, easements, profits, advantages, rights, emoluments, and hereditaments whatsoever, to the manor appertaining or reputed to appertain, or, at the time of conveyance, demised, occupied, or enjoyed with the same, or reputed or known as part, parcel, or member thereof.”
[143]Section 205 (1) provides that:
““manor” includes a lordship, and reputed manor or lordship”
[144]By virtue of these provisions Tacticall Radio acquired such of the rights of the Lord of the Manor of the City and Suburbs of St David’s as existed at the date of the conveyance. The only relevant right was a right to a moiety of wreck.[145]Mr Roberts was also the buyer of the Manor of Trevine. I have found a right to estrays and a right to a moiety of wreck proved in the case of that manor. Section 62 (3) of the Law of Property Act 1925 thus operated to convey to him the right to estrays within the manor and the right to a moiety of wreck. In my judgment he is therefore entitled to estrays within that manor; and a right to a moiety of wreck. As Lord of the Manors of Trevine and of the City and Suburbs of St David’s he is also entitled to the statutory rights of the Lord of the Manor under the Game Act 1831.

Are Mr Roberts’ rights exercisable over the foreshore?

[146]This question raises two issues: i) Was the foreshore included in the grant to the Bishops of St David’s? ii) What is the effect on such rights of the acquisition of title by adverse possession?[147]It is not in dispute that a manor may include the foreshore. Whether it does is a question of ascertaining the limits of the Crown grant with the aid of evidence of subsequent actual use.[148]If the foreshore was never a part of the lands granted to the Bishops of St David’s it must follow that, with the exception of the right to a moiety of wreck (which necessarily means wreck washed up on the foreshore), none of Mr Roberts’ rights are exercisable over the foreshore. If on the other hand, the foreshore was once part of the Bishops’ lands, the Commissioners contend that the effect of the Crown’s acquisition of title by adverse possession is that the rights (including the right to a moiety of wreck) have been extinguished in so far as they affect the foreshore.[149]The starting point is the presumption that the foreshore is vested in the Crown. Although this presumption has been questioned in Halsbury’s Laws of England (vol. 12 (1) para. 242) in relation to land within the Marches of Wales (on rather slender grounds), it is admitted on the pleadings in this case. The question, then, is whether the presumption has been rebutted. In Lord Hale’s work De Jure Maris he states that the grant of a right of wreck tends to show a grant of the soil, as the grantee would otherwise have no right to recover the wreck. However, in Dickens v Shaw (1822) (reprinted in Hall on the Seashore) Holroyd J said:
“I think it may be evidence of ownership, particularly if coupled with other acts of ownership of the right of soil. Where the crown grants the right of wreck it is probable the crown grants the right of soil also; but if the crown grant the right of wreck alone, by that grant the party would have the right to come and take the wreck, as incidental to the grant, otherwise the grant of the right could not be the grant of anything whatever.”
[150]Likewise in Anon (1704) 6 Mod 149 it was held that if a man has a right of wreck thrown upon another’s land he has a right of way over the same land to take it. The court held in that case:
“Originally all wrecks were in the Crown and the King has a right of way over any man’s ground for his wreck; and the same privilege goes to the grantee thereof.”
[151]What makes the present case unusual (if not unique) is that the rights that the Bishops claimed to wreck were not rights to the whole of the wreck, but only a right to half. The remaining half belonged to the Crown. In those circumstances, it seems to me that the presumption mentioned by Lord Hale is weakened to the point of non-existence, for just as the Bishop must have had the right to recover his half of the wreck, so also must the Crown have had the right to recover its half. It is, I think, common ground that the origin of this most unusual division of the right to wreck is to be found in Welsh customary law. I have therefore considered whether Welsh customary law shed any light on the question. It will be recalled that the relevant statement of Welsh customary law said:
“If a ship be wrecked on the land of a lord, the lord has it; if a ship be wrecked on the land of a bishop, it is divided between the king and the bishop.”
[152]It might be said that it is a precondition to the sharing of the wreck between the bishop and the king that the land on which the wreck is found is the land “of” the bishop; and that therefore the foreshore must belong to the bishop. However, this part of the Welsh code seems to treat the whole of the foreshore as belonging either to a lord or to a bishop. That may or may not have been the position before the Norman Conquest; but it is admitted on the pleadings that the Crown has prima facie title to the foreshore. I do not therefore think that the shared entitlement to wreck tends to rebut the presumption.[153]There is nothing in the charter of 1115 that expressly refers to the foreshore or the sea. As Mr Hinks pointed out, the Latin word used to describe water and water rights is aqua rather than mare.[154]Ms Tozer also relied on some other evidence to rebut the presumption. She pointed to the request by Edward III to the Lords Marcher to guard the sea coasts against the Scots. But even if the King’s intention, like Mr Churchill’s, was to “fight them on the beaches”, I cannot regard action taken in defence of the realm as indicative of land ownership. As evidence of ownership, this piece of evidence is worthless.[155]There is some evidence that the Bishops built a pier at Porthclais and owned the seawall there and a landing stage at Ramsey Island. But this evidence, slender as it is, is overwhelmed by the quantity of evidence showing that since Elizabethan times (if not before) the Crown has owned and controlled the ports of the Welsh coast. Ms Tozer also relied on the weir shown on the Admiralty chart of 1748; but as I have said when the harbour at Fishguard was built the Ecclesiastical Commissioners only claimed in respect of land above the high water mark. The same is true in respect of other land acquired for port and harbour improvements. The fact that the Bishops and their successors never claimed compensation when part of the foreshore was taken for public works is strong evidence that they did not own it.[156]Next Ms Tozer pointed to a conveyance in 1974 from the University of Wales to the National Trust of a parcel of land at Porthydwr Common. The conveyance included “all the Vendor’s right and interest (if any) in the foreshore” adjacent to the property. The common was the subject of an inquiry by the Commons Commissioner. On the basis of a poor copy of a map it was suggested that the foreshore might have been registered as a common and that the National Trust might have been registered as owners of it. However, closer inspection of a better copy of the map, and an examination of the definitive plan revealed that no part of the foreshore had been registered as common. Accordingly, this evidence goes nowhere.[157]Lastly Ms Tozer relied on the grant by the Welsh Commissioners to the Postmaster-General in 1923 of a wayleave at one shilling a year for a cable on the foreshore at Caerfai bay. However, some twenty five years earlier the Post Office had sought and obtained from the Board of Trade (in right of the Crown) a wayleave for the very same cable. This evidence is at best equivocal and is, in my judgment, consistent with the presumption.[158]Having considered the evidence, I have concluded that the presumption has not been rebutted; and that the foreshore never belonged to the Bishops. Thus the foreshore was never part of any manor of which the Bishops were lords. In the light of this conclusion it follows that with the exception of the right of wreck, none of the rights that Mr Roberts claims is exercisable over the foreshore or seabed. Since title was always that of the Crown it follows, on this hypothesis, that the Crown never did acquire title by adverse possession, for there was no need for it to do so. Nothing therefore can have removed the entitlement of the Bishops’ successors to the exercise of the right to a moiety of wreck. Mr Roberts is entitled to that right in his capacity as Lord of the Manor of Trevine and as Lord of the Manor of the City and Suburbs of St David’s in so far as wreck is found on the foreshore adjoining those manors.[159]Let me assume that (contrary to my conclusion) title to the foreshore did pass to the Bishops and that the Commissioners’ entitlement to register their title rests solely on adverse possession. The question then is: what effect did the acquisition of title by adverse possession have on rights exercisable by the paper owner over the land?[160]Section 17 of the Limitation Act 1980 provides so far as material:
“at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished.”
[161]The word “land” is defined by section 38 as follows:
““land” includes corporeal hereditaments, tithes and rent-charges and any legal or equitable estate or interest therein... but except as provided above in this definition does not include any incorporeal hereditament”
[162]Mr Hinks relied on two cases dealing with the consequences of the extinguishment of title by adverse possession. In Re Jolly [1900] 2 Ch. 616 Anne Jolly let a farm to her son R. T. Jolly. He paid rent until 1881, but not thereafter. Accordingly, Anne Jolly's title to the farm was extinguished in 1893. She died in 1898. The question which arose was whether at her death any money was owing to her by R. T. Jolly in respect of rent. The Court of Appeal held that the extinction of title also determined Mrs Jolly’s entitlement to arrears of rent. Lord Alverstone MR said:
“In the year 1893 R. T. Jolly obtained, by virtue of the Real Property Limitation Act 1874, s. 1, an absolute title to the property. It is, I think, inconsistent with his right so acquired that the rent which he ought to have paid should be deemed to be still owing. The effect of the Limitation Acts of 1833 and 1874 is, in my opinion, that, after the expiration of the statutory period of 20 and 12 years respectively, all rights which the reversioner would have had in respect of the land have come to an end; and I do not think that it would be consistent with that position that rent, the non-payment of which has given the occupier a title to the land, should still be deemed to be owing.”
[163]Rigby LJ said:
“It seems to me to be plain that on the expiration of the twelve years all the rights of the owner of the land are determined.”
[164]That case was followed and applied by the Court of Appeal in Mount Carmel Investments Ltd v Thurlow [1988] 1 WLR 1078 in which Nicholls LJ said that, having regard to principle:
“When title to land is extinguished by the statute, the rights which that title carried must also be extinguished.”
[165]As Lord Denning MR explained in Corpus Christi College Oxford v Gloucestershire County Council, referring to Delacherois v. Delacherois (1864) 11 H.L.Cas. 62, 102-103, when the freehold of what had formerly been waste of the manor became severed from the lordship, it ceased to be part of the manor. In my judgment this applies whether the severance takes place voluntarily (as by a conveyance) or involuntarily (as by extinguishment of title). It follows, in my judgment, that any right of the lord of the manor that is restricted to lands forming part of the manor ceases to be exercisable over the severed land.[166]The statutory rights given to lords of the manor under the Game Act 1831 were rights: i) To pursue and kill game “upon the wastes or commons within such manor” and ii) To appoint a gamekeeper “to preserve or kill the game within the limits of such manor.”[167]These rights were therefore limited to land within (or within the limits of) the manor. Once the foreshore was severed from the manor upon the extinguishment of the lord of the manor’s title, the rights given by the Game Act ceased to apply to it. Accordingly Mr Roberts has no sporting rights exercisable over the foreshore.[168]The right of wreck and the right to estrays present different problems. They are franchises which, as explained, are incorporeal hereditaments. Incorporeal hereditaments (apart from tithes and rentcharges) are expressly excluded from the definition of “land” for the purposes of the Limitation Act 1980. Accordingly, the extinguishment of title to “land”, as defined for those purposes, ought not in principle to extinguish title to an incorporeal hereditament.[169]As I have said, the grant of a franchise of wreck carries with it a right of access to the foreshore to take the wreck. As I see it there is no rule of law that restricts the grant of the franchise of wreck to a person who has title to the foreshore, or indeed to any particular parcel of land, or to the lord of a coastal manor. Nor is the franchise of wreck in any sense a manorial right or a right that is exercisable only within the confines of a manor. That being so, it seems to me that the extinguishment of title to the foreshore would not operate to extinguish the incorporeal hereditament consisting of the right of wreck. If, therefore, I had held that the Bishops had once had title to the foreshore, I would not have held that extinguishment of that title extinguished the franchise of entitlement to a moiety of wreck. For similar reasons, if I had concluded that the Bishops ever had a franchise of treasure trove, I would have held that that franchise would not have been extinguished by the extinguishment of title to the foreshore itself.[170]Although a right to estrays is also a franchise (and hence an incorporeal hereditament), the nature of the right is manorial. The definition of estrays is given in Halsbury’s Laws of England vol. 12 (1) para. 372 as follows:
“Estrays are valuable animals of a tame or reclaimable nature which are found wandering in any manor or lordship, and whose owner is unknown.” (Emphasis added)
[171]The same definition is found in Scriven on Copyholds (7th ed. p. 267). It is, therefore, an integral part of the franchise that the animal be found wandering in a manor. It seems to me, therefore, that if former waste of a manor is severed from the manor by extinguishment of the lord’s title, the franchise of estrays must cease to be exercisable over that land. If, therefore, I had held that the Bishops had once had title to the foreshore, I would have held that extinguishment of that title also extinguished the franchise of estrays in relation to the foreshore.

Result

[172]Mr Roberts has established a right to a moiety of wreck in his capacity as Lord of the Manor of Trevine and in his capacity as Lord of the Manor of the City and Suburbs of St David’s, but otherwise has established no rights over the foreshore or seabed. APPENDIX I174. GLOSSARY Cantref (or Cantred) 100 trefs. A tref was a township or village in pre-conquest Wales. The cantref was midway between a shire and a hundred in the English system. Court Baron A civil court held in a manor, in which the free tenants were the judges and the Steward of the manor was the Registrar. It dealt with cases concerning the manor. Court leet A criminal court with jurisdiction over the tenants resident within a manor. The Steward of the manor was the judge, and the jury was formed from the inhabitants. Deodand The right to forfeit a chattel which was the cause of a death. Estrays A valuable animal of a tame or reclaimable nature found straying in a manor and whose owner is unknown. However, the absolute property in estrays does not vest until they have been proclaimed in the church and two market towns next adjoining the place where they are found and nobody has claimed them within a year and a day. Heriot The right to the best beast of a tenant on his death. Sometimes the right to the best beast of the tenant on the lord’s death. Infangthief The right of a lord to punish a thief caught within the bounds of his jurisdiction. Mainprise A form of bail, allowing a person to remain at large on providing sureties (mainpernors) Outfangtheif The right of a lord to pursue a thief outside the lord’s own jurisdiction and bring him back within his jurisdiction to be punished. Straifs Another words for estrays Treasure trove The right to money or coin, gold, silver, plate, or bullion, deliberately hidden or concealed where the owner is unknown. Waifs Things stolen and thrown away by a thief in flight. Goods hidden by a thief are not waifs. Wreck (In law French wreck de mer or wreck de mere). Goods cast upon land by the sea after a shipwreck, and left there within some county, so as not to belong to the jurisdiction of the admiralty, but to the common law. The term also includes goods found at low water, between high and low water mark. APPENDIX II THE CHARTERS175. Charter granted by Henry I in 1115:
“Henry King of the English sends greetings to the archbishops bishops earls and barons and all his loyal subjects French and Welsh and English. May you know that I have granted and given to Bishop Bernard the bishopric of St. Andrew the Apostle and of St David in the city of St David’s in Wales to have and lawfully to hold with all its appurtenances and lands both cultivated and uncultivated roads and trackless areas meadows marshlands pastures woods hunting areas and the right to pass through such places in hunting or driving animals to pasture watering places and watercourses mills fisheries the revenues and incomes and with every easement that can be derived from them for all time either on land or on water together with all customary rights as the aforesaid church or any of its bishops had on better terms and held in the time of my father and King Edward and Griffin or at any other time. And I wish and give orders that he should hold and have all the aforesaid things in peace and honour and quiet. And let no one attempt to appropriate any of this from him or withhold it. In the presence of Queen Matilda my wife and William our son and as witnesses Ralph Archbishop of Canterbury and Geoffrey Archbishop of Rouen and Turstin Archbishop elect of York etc. at Westminster in council in the one thousand one hundred and fifteenth year since the incarnation of the Lord on the fourteenth day before the Kalends of October (18 September) in the eighth indiction on the twenty-third epact with the concurrent number four in the fifteenth year of the aforesaid King.” 176. Charter granted by Henry III in 1241: “Henry by the grace of God King of the English etc. sends greetings to the archbishops etc. You should know that I have granted and by means of the present charter confirmed to the church of St Andrew the Apostle and blessed David of the city of St David’s in Wales and to David the Bishop of that same church that bishopric and all his lands and feudal holdings and chattels and possessions as King Henry my grandfather granted them to Bernard the Bishop of that church the predecessor of the aforementioned Bishop David. For which reason I wish and give strict orders that this church and the aforesaid Bishop David should have and hold property etc. all the lands and tenements chattels and possessions in the lands that are cultivated and the cultivated lands (sic) in woodlands in areas clear of woodland in fields and meadows and marshland and hunting areas and stretches of water together with the right to pass through such places in hunting or driving animals to pasture in mills and fisheries with regard to all revenues and incomes and easements deriving therefrom by land and by water in roads and paths and in all other places and other things together with all their appurtenances and freedoms and customary rights free from obligation just as the aforementioned King my grandfather granted to the aforesaid Bishop Bernard and as his charter proves. Witnessed by Reginald Earl of Cornwall etc. Grant also of the king’s gift to A. bishop of the said church that he and his successors and the said church shall be quit of all pleas plaints and suits unless before the king and his justices specially assigned; and that they shall have their free court of their men so that they shall not be bound to answer any plaint elsewhere than in the court of their lord the said bishop unless before the king or his justices saving in all things the royal dignity.” 177. Charter granted by Richard II in 1384 “Richard, by the grace of God King of England [etc]. The Venerable Father Adam, Bishop of St David’s, has besought us that as he holds his bishopric and every parcel of the same freely from us as of our Crown, both in the hearing of all manner of pleas, whether personal or royal, and in enforcing rights of the Crown, at their own prosecution, and that of others, with all manner of profits arising therefrom, according to the custom of those parts in all former times have been used and enjoyed, so that neither without that we nor our progenitors, nor any other Lord Marcher or their Officers, have been accustomed or ought to intrude by reason of any Lordship in Wales within the said Lordships of the Bishop. .. Now we … have by our special grace granted and by this charter have confirmed for us and our heirs, that the aforesaid Bishop and his successors shall for ever possess enjoy and use all and singular the aforesaid liberties and all other liberties soever as fully and freely as the same are held and enjoyed by any Lords Marcher in their Lordships and Marches of Wales and that all tenants of the said Bishop and his successors, whether residing in their Lordships within the Bishopric or not, shall not be compelled, held or bound to answer elsewhere than in the courts of the said Bishop and his successors.” 178. Valor Ecclesiasticus Henry VIII “A review of the value of all and each of the manors lands and tenements and other possessions both spiritual and temporal of the lord…by divine permission of the Bishop of St. David’s relating to and regarding the Episcopal seat of St David’s conducted in the presence of the undersigned commissioners appointed for this purpose in accordance with the set form of words of the statute enacted and supplied on the twentieth day of the month of February in the twenty seventh year of the reign of the Lord King Henry the Eighth etc. The same bishop maintains and is obliged to have and to hold for himself and for his successors the bishops of St David’s the demesne lands manors lands tenements and possessions mentioned below namely the castle and manor of Layhayden through the full power of the barony the towers the city or town of St Davids and the demesne lands of Pebydianke Diffryntolby and Diffrynteiby with their component parts. Also the manor of Lantesey and the deer park there and also his own palace provided with battlements next to his cathedral church of St Davids. In this barony demesne lands and manor the aforementioned bishop has his own prison for all kinds of felons offenders and clerks convicted or attainted and to be tried by anyone and his own treasury within the aforementioned castle and a seal of his own chancery for all kinds of original documents by means of his own chancellor in and throughout all his manors and demesne lands as mentioned above wherever they are acquired and put into effect. He also has one session ever month to be held at Lanhayden in the presence of the chief seneschal of this same bishop or his deputy and also one other Hundred Court and other lower courts for common pleas and pleas of the crown. He will also have people to carry out the offices of castellan viscount or constable coroner and escheator for the pleas for the said offices and for whatever offenders appear before his constable or his deputy to be held and fixed in perpetuity according to the privileges of the Kings in England and the Princes of Wales granted to him in this way in pure and perpetual alms. And there are within the said barony demesne lands and manors some tenants who hold the manors lands and tenements from the said bishop by means of military service namely wardship the right to give in marriage and feudal relief when they occur. And there are some other tenants who hold by charter. And others who hold their inheritance by the ancient form of land tenure known as Gavelkind. The inheritances are to be divided after the death of the possessor both among the males and among the females and to the said inheritance accrues feudal relief only namely from each caricate of land 10 shillings and thus according to several or the lesser even though the heir is under age or outside. There are other tenants who hold their inheritance by means of tenure by Borough English and in that place the lord will have a double rent for his relief alone. There are also others who are tenants of someone else’s land namely at Welsh Hundred of St. David’s and they are said to be of Tydwaldy. They perform customary service and are accustomed to serve the bishop with their ploughs for the necessities of the lord with regard to the rebuilding of his buildings and similar things. After the death of the said tenants there accrues in heriot just five shillings and no more even if he is a possessor of things and cattle. Others also hold by the rod and they will make an agreement in order to have possession and entry (into possession) in their lands. They pay heriot and relief and for the right to give in marriage and according to the customs of the manor they will perform their tenant services. For the rest the tenants by the pure Welsh form hold and possess according to the law of Howel Da recently Prince of Wales. This is the most imperfect of all laws – it is not written down it is without order and contains numerous defects; it has a form of reason which is definitely useless. More deplorable is the fact that among a great multitude of peoples there has been no united peace and high quality government; yet among them the lord bishop has every three years among them one great session to be held in the presence of his justices in eyre in his domains in Llanddewy Brevi Aberguilly Dyffryntolby and Diffrynteiby with their component parts. Etc.”

Cited in 2 later judgments