The Case of Proclamations [1611]

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

Legal Historylegal-historyroyal-prerogativeexecutive-powerconstitutional-lawLegal History

Issue

Whether the King could, by royal proclamation, (1) create new offences at common law, (2) prohibit that which was previously lawful, or (3) enforce acts of parliament through a new penalty not prescribed by the act.

Held

The King cannot, by proclamation, create any new offence that was not an offence before. The King cannot change the common law, statute law, or customs of the realm by proclamation. The prerogative of the Crown is bounded by the law, and the King cannot legislate without Parliament.

Exam use

This case is crucial for any question on the limits of executive power or royal prerogative in the UK. It is the direct ancestor of the principle in R (Miller) v Secretary of State that the Crown cannot change statute law or common law without Parliament. Use it to argue that executive orders cannot create criminal offences, alter rights, or change the law. Distinguish between permissible proclamations (enforcing existing law) and impermissible ones (creating new law). In a comparative context, contrast this with the US executive order power and the French 'decret-loi' tradition.

Summary

The Case of Proclamations (1611) resolved a dispute between King James I and his judges over the royal prerogative to issue proclamations that had the force of law. Chief Justice Coke held that the King cannot change the common law, statute law, or custom of the realm by royal proclamation. The King can only enforce existing laws, not create new offences or penalties without parliamentary authority. This case established fundamental limits on the legislative power of the Crown.

Facts

King James I, wishing to govern more effectively without summoning Parliament, increasingly used royal proclamations to regulate matters of trade, building, and other affairs. In 1610, he consulted the judges about whether he could by proclamation prohibit building in London with new materials, and whether he could prohibit the making of starch from wheat (to conserve grain). The judges were asked: what is the scope of the King's power to issue proclamations that bind the subject? The government argued that the King's prerogative gave him that power for the public good. The King also wanted to use proclamations to enforce existing laws and to penalize those who violated them.

Procedural History

The King, through the Lord Chancellor, asked the Chief Justice and the other judges for their opinion. The judges, after consultation, delivered a unanimous opinion (reported by Coke CJ) on the extent of the King's power to issue proclamations. This was an advisory opinion rather than a case between parties, but it is recorded as a judicial decision resolving a question of law.

Issue

Whether the King could, by royal proclamation, (1) create new offences at common law, (2) prohibit that which was previously lawful, or (3) enforce acts of parliament through a new penalty not prescribed by the act.

Held

The King cannot, by proclamation, create any new offence that was not an offence before. The King cannot change the common law, statute law, or customs of the realm by proclamation. The prerogative of the Crown is bounded by the law, and the King cannot legislate without Parliament.

Ratio Decidendi

The King has no prerogative but that which the law of the land allows him. A proclamation cannot make that an offence which was not an offence before, nor can it prohibit that which was lawful before unless a statute authorizes it. The power to make new laws belongs to the King in Parliament, not to the King alone. The King can only issue proclamations to enforce existing laws, not to create new ones.

Obiter Dicta

Coke noted that the King might issue proclamations to suppress a public nuisance or to enforce the execution of existing laws, but the proclamation itself could not create a new penalty for an existing offence unless a statute provided for it.

Reasoning

Coke CJ reviewed the history of the common law and the Magna Carta, finding that the King could not alter the law by his own decree. He distinguished proclamations that enforced existing laws (which were permissible) from proclamations that created new criminal offences (which were not). The judges held that the common law, and the statutes, are the supreme law of the land, and the King cannot change them by proclamation. If the King could legislate by proclamation, he could dispense with acts of parliament, which would destroy the legislative power of Parliament. Citing Bracton and Fortescue, Coke reaffirmed that the King is subject to God and the law.

Plain-English Explanation

King James I wanted to make laws by himself, without calling Parliament, by issuing royal proclamations. He asked the judges if this was okay. Chief Justice Coke said no: the King cannot change the law by himself. Only the King in Parliament can make new laws. A proclamation can remind people of an existing law but cannot create a new crime or a new rule. This was a big win for the rule of law and Parliament against the absolute power of the monarchy.

Essay-Ready Explanation Generator

Version 1 of 4

Reference to The Case of Proclamations ((1611) 12 Co. Rep. 74, 77 E.R. 1352) strengthens a Legal History answer because the case reflects the principle that The King has no prerogative but that which the law of the land allows him. A proclamation cannot make that an offence which was not an offence before, nor can it prohibit that which was lawful before unless a statute authorizes it. The power to make new laws belongs to the King in Parliament, not to the King alone. The King can only issue proclamations to enforce existing laws, not to create new ones. Applied to a problem question, the case should be used after identifying the issue as Whether the King could, by royal proclamation, (1) create new offences at common law, (2) prohibit that which was previously lawful, or (3) enforce acts of parliament through a new penalty not prescribed by the act. 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
  • Parliamentary sovereignty
  • Rule of law
  • Limits on executive power
  • Separation of powers

Precedents Applied

  • Magna Carta 1215
  • De Tallagio non Concedendo (1297)

Later Treatment

  • The King v. Hampden (Ship Money case) (1637) 3 St Tr 825
  • R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5

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.
  • ...the King hath no prerogative, but that which the law of the land allows him.

Significance

The Case of Proclamations is a foundational case in English constitutional law, establishing that the Crown has no legislative power independent of Parliament. It stands alongside the Case of Prohibitions (1607) as a key limitation on royal prerogative. The case is the basis for the modern principle that executive orders or decrees cannot create new criminal offences or change the law without legislative authorization. It was an important step in the constitutional struggle between the Stuarts and Parliament, contributing to the settlement that ultimate legislative power lies with the Crown in Parliament. In legal history, this case is indispensable for discussing the development of parliamentary sovereignty and the rule of law.

Related Cases

Exam Tips

This case is crucial for any question on the limits of executive power or royal prerogative in the UK. It is the direct ancestor of the principle in R (Miller) v Secretary of State that the Crown cannot change statute law or common law without Parliament. Use it to argue that executive orders cannot create criminal offences, alter rights, or change the law. Distinguish between permissible proclamations (enforcing existing law) and impermissible ones (creating new law). In a comparative context, contrast this with the US executive order power and the French 'decret-loi' tradition.

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

Where a problem question involves a modern executive decree, order in council, or regulation-making power not explicitly authorized by statute, cite this case to argue the historical common law principle that the Crown cannot legislate alone. It is particularly strong for arguing against creating new criminal offences or imposing new taxes by executive act. In questions about the extent of prerogative power, use the case as the starting point for the modern statement in Miller.

Common Pitfalls

  • Confusing this case with the Case of Prohibitions (one is about judicial power, the other about legislative power)
  • Thinking this case means the King had no prerogative power at all (it means the prerogative is limited by law)
  • Forgetting that this is an advisory opinion, not a case between parties, though it is treated as an authoritative statement of law

Sources