Case of Proclamations
Case of Proclamations | |
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Court | King's Bench |
Decided | Michaelmas Term, 1610 |
Citation(s) |
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Transcript(s) | Full text on Bailii |
Court membership | |
Judge(s) sitting |
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Keywords | |
Royal prerogative |
The Case of Proclamations [1610] EWHC KB J22 is an
- 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 Crown pay compensation after the exercise of the prerogative.
Facts
Tudor monarchs believed that they had the power to regulate, through the issue of royal
On 20 September 1610, Sir Edward Coke, then Chief Justice of the Common Pleas, was called before the Privy Council of England alongside Lord Chief Justice of the King's Bench Thomas Fleming, Lord Chief Baron Lawrence Tanfield, and Baron James Altham and asked to give a legal opinion as to whether the king, by proclamation, might prohibit new buildings in London, or the making of wheat starch, these having been referred to the King by the House of Commons as grievances and against law.[2] Coke asked for time to consider with other judges, since the questions were "of great importance, and they concerned the answer of the king to the Commons".[3]
Judgment
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.[4]
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.[4]
Consequently, the king had no power by which to arbitrarily, through royal proclamations, prohibit the erection of new buildings in London, nor the making of wheat starch without the consent of Parliament, because this power had not previously been granted by Parliament to the king by the making of statute law.
Significance
James I did not concede that he could not rule by prerogative 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".[5]
17th century
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 Proclamations 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
Exiting the European Union
Over 400 years on, the Case of Proclamations continues to affect the constitutional law of the UK. It was cited in 2017 by a
- that "the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm"; and
- that "the King hath no prerogative, but that which the law of the land allows him".
The Divisional Court unanimously rejected the government's argument in robust terms (which were subsequently upheld 8-3 (Neuberger, Hale, Mance, Kerr, Clarke, Sumption, Wilson, Hodge) by an 11-justice panel (Reed, Carnwath and Hughes dissenting) of the
Prorogation of Parliament
The Case of Proclamations was again cited in the 2019 Supreme Court case R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland.
See also
- United Kingdom constitutional law
- Case of Prohibitions
- Case of Impositions
- Dr. Bonham's Case
Notes
- ^ Bradley, A.; Ewing, K. (1997). Constitutional and Administrative Law London. p. 256.
- ^ Sheppard, Steve, ed. (2003). The Selected Writings and Speeches of Sir Edward Coke. Vol. 1. Indianapolis: Liberty Fund.
- ^ quoted by Philip Hamburger, Law and Judicial Duty, p. 201
- ^ a b "Proclamations, Case of [1610] EWHC KB J22 (01 November 1610)". Bailii.org. 27 April 2006. Retrieved 7 September 2022.
- ^ James I, A Book of Proclamations and quoted by Philip Hamburger, Law and Judicial Duty, p. 201
- ^ Bradley, A.; Ewing, K. (1997). Constitutional and Administrative Law London. p. 271.
- ^ Miller v Secretary of State for Exiting the European Union (3 November 2016) [2016] EWHC 2768 (Admin)
- ^ "Supreme Court, Article 50 "Brexit" Appeal". Archived from the original on 25 January 2017. Retrieved 9 December 2016.
- ^ SC Transcript, 8 December 2016, p.204