Case of Proclamations [1611]

(1611) 12 Co Rep 74, 77 ER 1352 · Court of King's Bench · England and Wales

Legal Historylegal-historyprerogative-powersrule-of-lawroyal-prerogativeconstitutional-law

Issue

Whether the King may, by royal proclamation, prohibit new buildings and the making of starch, and whether he can create new offences punishable by law through proclamation without parliamentary consent.

Held

The King cannot change or make new law by proclamation, and cannot create new offences by proclamation that are not already offences at common law or by statute. Proclamations can only enforce existing law, not create new law.

Exam use

Cite this case whenever a problem involves an executive attempting to create new crimes or obligations without legislation. It is the ultimate authority that prerogative powers cannot create new law. Also use it to explain the concept of 'ordinary' vs 'absolute' prerogative. In a comparative question, contrast it with the US President's executive orders (which are statutory or constitutional, but may not create new crimes, per Youngstown). Be careful: the case does not say the King cannot issue proclamations at all, only that they cannot change the law.

Summary

The Court of King's Bench held that the King cannot change the common law or statute by royal proclamation, nor create new offences by proclamation that are not already punished by law. This case established fundamental limits on the royal prerogative and is a cornerstone of the rule of law and constitutional limits on executive power.

Facts

King James I, through the House of Lords, asked the judges whether the King could, by royal proclamation, prohibit new buildings in and around London, and prohibit the making of starch from wheat. The King argued that the royal prerogative gave him the power to issue such proclamations to address public welfare and economic issues. The judges were summoned and gave their opinion. The King's law officers (including Sir Francis Bacon) supported the royal power, arguing that necessity and the common weal justified proclamations.

Procedural History

The case was not an ordinary litigation between parties but an advisory opinion requested by the King from the judges of the King's Bench. Chief Justice Sir Edward Coke and his fellow judges delivered their opinion in writing.

Issue

Whether the King may, by royal proclamation, prohibit new buildings and the making of starch, and whether he can create new offences punishable by law through proclamation without parliamentary consent.

Held

The King cannot change or make new law by proclamation, and cannot create new offences by proclamation that are not already offences at common law or by statute. Proclamations can only enforce existing law, not create new law.

Ratio Decidendi

The royal prerogative is limited by the common law and by statute. The King has no prerogative but that which the law of the land allows him. A proclamation cannot alter the common law, statute, or customs of the realm; it can only serve as a reminder of existing law. To allow the King to create new offences by proclamation would subvert parliamentary sovereignty and the rule of law.

Obiter Dicta

The court also noted that the King could, by proclamation, warn subjects not to break the law and to keep the peace, but the proclamation could not change the legal consequence of an act.

Reasoning

Chief Justice Coke reasoned from history and principle: Magna Carta and subsequent statutes had limited the King's power to tax and legislate without Parliament. The common law, being the ancient constitution, bound the King. Coke distinguished between the King's 'absolute' prerogative (in foreign affairs and war) and his 'ordinary' prerogative (which was circumscribed by law). He held that the King could not alter the law by proclamation because that would be an exercise of legislative power, which belonged to Parliament. If the King could create offences by proclamation, he could effectively bypass Parliament and govern by decree. This would destroy the distinction between executive and legislative functions.

Plain-English Explanation

Think of the law as a big fence. The King can tell people to stay inside the fence, but he cannot build a new fence himself—only Parliament can do that. The Case of Proclamations said the King's announcements (proclamations) cannot create new fences (new laws) or declare new things to be wrong when the law previously allowed them. This was a huge step: it stopped the King from making law by himself and preserved the power of Parliament and the common law.

Essay-Ready Explanation Generator

Version 1 of 4

Reference to Case of Proclamations ((1611) 12 Co Rep 74, 77 ER 1352) strengthens a Legal History answer because the case reflects the principle that The royal prerogative is limited by the common law and by statute. The King has no prerogative but that which the law of the land allows him. A proclamation cannot alter the common law, statute, or customs of the realm; it can only serve as a reminder of existing law. To allow the King to create new offences by proclamation would subvert parliamentary sovereignty and the rule of law. Applied to a problem question, the case should be used after identifying the issue as Whether the King may, by royal proclamation, prohibit new buildings and the making of starch, and whether he can create new offences punishable by law through proclamation without parliamentary consent. The stronger essay move is to connect the material facts to the court's holding, then explain whether the present facts support the same conclusion or justify distinguishing the authority.

Underlying Concepts

  • royal prerogative
  • rule of law
  • parliamentary sovereignty
  • separation of powers
  • common law rights

Precedents Applied

  • Magna Carta (1215)
  • De Tallagio non Concedendo (1297)
  • Statute of Proclamations (1539) – earlier precedent that had allowed some proclamations, but was repealed

Later Treatment

  • R v Hampden (1637) – Ship Money test
  • R (Miller) v Secretary of State for Exiting the European Union (2017) – applied

Key Passages

  • '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.' – Coke CJ

Significance

The Case of Proclamations is a foundational authority for the rule of law and the limits of executive power in Anglo-American constitutionalism. It was cited by the UK Supreme Court in the Miller case (2017) to limit prerogative powers. It established that the King (or modern executive) cannot use prerogative to create new law or new crimes. It is also key to understanding the 17th-century constitutional struggles between Crown and Parliament. It is frequently compared to Entick v Carrington (1765) for general warrants, and to the later Ship Money case (R v Hampden).

Related Cases

Exam Tips

Cite this case whenever a problem involves an executive attempting to create new crimes or obligations without legislation. It is the ultimate authority that prerogative powers cannot create new law. Also use it to explain the concept of 'ordinary' vs 'absolute' prerogative. In a comparative question, contrast it with the US President's executive orders (which are statutory or constitutional, but may not create new crimes, per Youngstown). Be careful: the case does not say the King cannot issue proclamations at all, only that they cannot change the law.

Revision Checklist

  • Name the issue before discussing facts so the marker sees the legal question immediately.
  • State the holding in one sentence, then use the ratio to explain why the court reached that result.
  • Use the citation and jurisdiction to show why this authority matters for the problem you are answering.
  • Pair this case with one supporting or contrasting authority if the question tests limits, policy, or exceptions.

Problem Question Use

Use this when a government official claims power to issue binding rules without legislation. For example, if a governor or minister tries to create a new criminal offence by executive order, cite Case of Proclamations for the principle that only the legislature can create new crimes. It also supports the argument that prerogative powers are residual and cannot be used to circumvent Parliament. In a comparative context, contrast with crown prerogative in Canada (which is similarly limited).

Common Pitfalls

  • Thinking the case allows no proclamations whatsoever (it allows them to enforce existing law)
  • Confusing with the later development of delegated legislation (which is authorised by statute)
  • Overlooking the historical context: the case was part of the contest between Coke and James I over the limits of royal power

Sources