Case of Proclamations
Encyclopedia
The Case of Proclamations [1610] EWHC KB J22 was a court decision during the reign of King James I
(1603-1625) which defined some limitations on the Royal Prerogative
at that time. Principally, it established that the Monarch could make laws only through parliament. The judgment began to set out the principle in English law
(later developed by future Parliaments
and other members of the judiciary in subsequent cases, for example Dr. Bonham's Case
) that when a case involving an alleged exercise of prerogative power came before the courts, the courts could determine:
On 20 September 1610, Sir Edward Coke
, then Chief Justice of the Common Pleas
, was called before the Privy Council and he was asked to give a legal opinion as to whether the King, by proclamation, might prohibit new buildings in London
, or the making of starch or wheat, these having been referred to the King by the House of Commons as grievances and against law. Coke asked for time to consider with his colleagues, since the questions were "of great importance, and they concerned the answer of the king to the Commons."
Coke and his fellow judges ruled that the power of the King to create new offences was outlawed and that the King could not by proclamation prohibit new buildings in and around London; i.e., the Royal Prerogative could not be extended into areas not previously sanctioned by law:
In giving his judgment, Chief Justice Coke set out the principle that the King had no power to declare new offences by proclamation:
Consequently, the King had no power to arbitrarily through royal proclamations to prohibit the new buildings in London or the marking of wheat starch with the consent of Parliament because this power had not previously been granted by Parliament to the King by the making of statute law. James however did not concede this point and attempted to place all of his proclamations on a constitutional footing having them published in a book as if they were statutes. He went to argue that proclamations were necessary to "apply speedy, proper, and convenient remedies...in matters so variable and irregular in their nature, as are not provided for by Law, nor can fitly fall under the certain rule of a law."
in English common law. However, the issue about the extent of the royal prerogative was not properly resolved until the Bill of Rights 1689
"established that the powers of the Crown were subject to law, and there were no powers of the Crown which could not be taken away or controlled by statute."
James I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
(1603-1625) which defined some limitations on the Royal Prerogative
Royal Prerogative
The royal prerogative is a body of customary authority, privilege, and immunity, recognized in common law and, sometimes, in civil law jurisdictions possessing a monarchy as belonging to the sovereign alone. It is the means by which some of the executive powers of government, possessed by and...
at that time. Principally, it established that the Monarch could make laws only through parliament. The judgment began to set out the principle in English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
(later developed by future Parliaments
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
and other members of the judiciary in subsequent cases, for example Dr. Bonham's Case
Dr. Bonham's Case
Thomas Bonham v College of Physicians, commonly known as Dr. Bonham's Case or simply Bonham's Case, was decided in 1610 by the Court of Common Pleas in England under Sir Edward Coke, the court's Chief Justice...
) that when a case involving an alleged exercise of prerogative power came before the courts, the courts could determine:
- whether the proclaimed prerogative existed in law and how far it extended;
- whether it had been limited by statute, and if so, in what way; and
- whether there was any requirement that The CrownThe CrownThe Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
pay compensation after the exercise of the prerogative.
Abstract
Tudor monarchs believed that they had the power to regulate, through the issue of royal proclamations, without the consent of Parliament. However, the monarch's absolute power to "make" the law was beginning to be challenged by the English judiciary and was raising concern in Parliament itself. The issue of the King's power to make law came before the judges in 1610 when James I and Parliament were struggling over the issue of impositions. Parliament was opposing the King's power to impose further duties on imports over and above what had already been sanctioned by Parliament. James however hoped to use proclamations to raise further money outside of Parliament.On 20 September 1610, Sir Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
, then Chief Justice of the Common Pleas
Chief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...
, was called before the Privy Council and he was asked to give a legal opinion as to whether the King, by proclamation, might prohibit new buildings in London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
, or the making of starch or wheat, these having been referred to the King by the House of Commons as grievances and against law. Coke asked for time to consider with his colleagues, since the questions were "of great importance, and they concerned the answer of the king to the Commons."
Coke and his fellow judges ruled that the power of the King to create new offences was outlawed and that the King could not by proclamation prohibit new buildings in and around London; i.e., the Royal Prerogative could not be extended into areas not previously sanctioned by law:
"...the King cannot change any part of the common law, nor create any offence, by his proclamation, which was not an offence before, without parliament."
In giving his judgment, Chief Justice Coke set out the principle that the King had no power to declare new offences by proclamation:
"The King has no prerogative but that which the law of the land allows him".
Consequently, the King had no power to arbitrarily through royal proclamations to prohibit the new buildings in London or the marking of wheat starch with the consent of Parliament because this power had not previously been granted by Parliament to the King by the making of statute law. James however did not concede this point and attempted to place all of his proclamations on a constitutional footing having them published in a book as if they were statutes. He went to argue that proclamations were necessary to "apply speedy, proper, and convenient remedies...in matters so variable and irregular in their nature, as are not provided for by Law, nor can fitly fall under the certain rule of a law."
Implications
In future English history, the issue of proclamations would form part of the many grievances and issues in dispute between both James I and Charles I and their Parliaments before the English Civil War. MPs would go on to cite Coke's judgment in the Case of Impositions to support their arguments against the arbitrary use of royal power in the years up to 1641. Whilst disputed, the case is seen by some historians and jurists as influential in the development of the concept of judicial reviewJudicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
in English common law. However, the issue about the extent of the royal prerogative was not properly resolved until the Bill of Rights 1689
Bill of Rights 1689
The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689 ,...
"established that the powers of the Crown were subject to law, and there were no powers of the Crown which could not be taken away or controlled by statute."