Sparks Commentary: The Case of Proclamations created a political uproar

“I was sent to attend the Lord Chancellor, Lord Treasurer, Lord Privy Seal, and the Chancellor of the Duchy; there being present the attorney, the solicitor, and recorder: and two questions were moved to me by the Lord Treasurer; the one if the King by his proclamation may prohibit new buildings in and about London, etc; the other, if the King hath answered, that he will confer with his Privy Council, and his Judges, and then he will do right to them … I did humbly desire them that I might have conference with my brethren the Judges about the answer of the King, and then to make an advised answer according to law and reason.”

– The decision written by Sir Edward Coke, in the Court of King’s Bench, in the Michaelmas Term of the year 1610 – better known today as Sir Edward Coke’s “Case of Proclamations” (1610)

The Case of Proclamations was the brainchild of Sir Edward Coke, and angered King James

In 1610, Sir Edward Coke was a judge in the Court of King’s Bench. He had been appointed there by King James the First of England. The king’s Lord Chancellor approached Sir Edward Coke about a court case that Coke was then hearing. This court case is now known as the “Case of Proclamations.” When Sir Edward Coke made his decision, Coke noted the Lord Chancellor’s prior requests to him in the decision itself. The relevant part is as follows: “the Lord Chancellor said, that every precedent had first a commencement, and that he would advise the Judges to maintain the power and prerogative of the King; and in cases in which there is no authority and precedent, to leave it to the King to order in it, according to his wisdom, and for the good of his subjects, or otherwise the King would be no more than the Duke of Venice: and that the King was so much restrained in his prerogative, that it was to be feared the bonds would be broken: but to apply his medicine according to the quality of the disease: and all concluded that it should be necessary at that time to confirm the King's prerogative with our opinions, although that there were not any former precedent or authority in law: for every precedent ought to have a commencement.” (see source) Sir Edward Coke then offered his response, which would not exactly please this same King James.

Sir Edward Coke

The court decided that the king cannot “change” the common law, nor create new offenses

Sir Edward Coke’s response in the decision is as follows: “To which I answered, that true it is that every precedent hath a commencement; but when authority and precedent is wanting, there is need of great consideration, before that any thing of novelty shall be established, and to provide that this be not against the law of the land: for I said, that 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. But at this time I only desired to have a time of consideration and conference with my brothers, for deliberandum est diu, quod statuendum est semel; to which the solicitor said, that divers sentences were given in the Star-Chamber upon the proclamation against building; and that I myself had given sentence in divers cases for the said proclamation: to which I answered, that precedents were to be seen, and consideration to be had of this upon conference with my brethren, for that melius est recurrere, quam male currere; and that indictments conclude, contra leges et statuta [against law and statute]; but I never heard an indictment to conclude, contra regiam proclamationem [against the king’s proclamation]. At last my motion was allowed; and the Lords appointed the two Chief Justices, Chief Baron, and Baron Altham, to have consideration of it.” (see source)

Sir Edward Coke

Coke notes how the era’s indictments never ended by saying “against the king’s proclamation”

Sir Edward Coke then elaborated: “But a thing which is punishable by the law, by fine, and imprisonment, if the King prohibit it by his proclamation, before that he will punish it, and so warn his subjects of the peril of it, there if he permit it after, this as a circumstance aggravates the offence; but he by proclamation cannot make a thing unlawful, which was permitted by the law before: and this was well proved by the ancient and continual forms of indictments; for all indictments conclude contra legem et consuetudinem Angliai [against the laws and customs of England], or contra leges et statute [against law and statute], etc. But never was seen any indictment to conclude contra regiam proclamationem [against the king’s proclamation].” (see source) Thus, the later wording of this same decision would soon be going against the king.

Sir Edward Coke

Diverse precedents of proclamations are void, for being “utterly against law and reason”

Sir Edward Coke then continues: “So in all cases the King out of his province, and to prevent dangers, which it will be too late to prevent afterwards, he may prohibit them before, which will aggravate the offence if it be afterwards committed: and as it is a grand prerogative of the King to make proclamation, (for no subject can make it without authority from the Kint, or lawful custom,) upon pain of fine and imprisonment, as it is held in the 22 Hen. 8. Proclamation B. But we do find divers precedents of proclamations which are utterly against law and reason, and for that void; for qua contra rationem juris introducta sunt non debent trahi in consequentiam [things introduced against the reason of the law ought not to be drawn into a precedent].” (see source) This foreshadowed Coke’s later decision in Dr. Bonham’s Case, which eventually led to his dismissal from the courts. This will be the subject of one of my future blog posts.

Sir Edward Coke

The king’s proclamations were not considered a part of the “law of England” even then

Sir Edward Coke later says: “In the same term it was resolved by the two Chief Justices, Chief Baron, and Baron Altham, upon conference bewixt the Lords of the Privy Council and them, that the King by his proclamation cannot create any offence which was not an offence before, for then he may alter the law of the land by his proclamation in a high point; for if he may create an offence where none is, upon that ensues fine and imprisonment; also the law of England is divided into three parts, common law, statute law, and custom; but the King's proclamation is none of them: also malum aut est malum in se, aut prohibitum, that which is against common law is malum in se, malum prohibitum is such an offence as is prohibited by Act of Parliament, and not by proclamation.” (see source)

King James the First of England

Another picture of King James the First of England

Coke said that the king has no prerogative, but “that which the law of the land allows him”

Sir Edward Coke then gives what may be the most important part of the decision: “Also it was resolved, that the King hath no prerogative, but that which the law of the land allows him.” (see source) Lord Coke then added: “But the King for prevention of offences may by proclamation admonish his subjects that they keep the laws, and do not offend them; upon punishment to be inflicted by the law, etc.” (see source) The decision then concludes with these important words: “Lastly, if the offence be not punishable in the Star-Chamber, the prohibition of it by proclamation cannot make it punishable there: and after this resolution, no proclamation imposing fine and imprisonment was afterwards made, etc.” (see source)

Sir Edward Coke

These controversies lay at the heart of a later civil war, and the English Bill of Rights

In the winter of 1610, Sir Edward Coke later angered King James even further in Dr. Bonham’s Case. I plan to describe this further in a future blog post. Thus, I will not be attempting to further describe it here. Suffice it to say here that these decisions led to King James dismissing Lord Coke from the Court of King’s Bench. In 1616, King James eventually dismissed Lord Coke from the British court system entirely. This motivated Lord Coke to return to Parliament instead. Some decades after Sir Edward Coke’s death, these issues of royal prerogative would then become a matter of some controversy during the English Civil War. Some would cite this as a step towards judicial review, just as Dr. Bonham’s Case had been doing back in this same winter of 1610. In 1689, England’s “Bill of Rights 1689” would later establish “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” (as an author quoted at Wikipedia has put it). Thus, Sir Edward Coke was effectively triumphing from the grave.

Later painting of king’s attempt to arrest five members of Parliament, during the English Civil War

Kings are still considered part of Parliament, but presidents are not considered part of Congress

In 1765, Sir William Blackstone would later discuss the Parliament in his “Commentaries on the Laws of England.” Specifically, Dr. Blackstone said therein that “With us therefore in England this supreme power is divided into two branches ; the one legislative, to wit, the parliament, consisting of king, lords, and commons ; the other executive, consisting of the king alone. It will be the business of this chapter to consider the British parliament ; in which the legislative power, and (of course) the supreme and absolute authority of the state, is vested by our constitution.” (Source: Book 1, Chapter 2) Thus, the King technically was (and technically still is) considered a part of the Parliament. By contrast, when the United States Constitution was later written in 1787, this Constitution declared that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” (Source: Article 1, Section 1) Thus, I should clarify that, unlike the British king, the president is not considered a part of his country’s legislature. The president has some veto powers over the legislative powers of the United States Congress, but he cannot make laws himself. More about that in a moment.

Sir William Blackstone

Blackstone affirmed the reasoning of Sir Edward Coke regarding royal proclamations

With this in mind, I will now return to the words of Sir William Blackstone. In 1765, specifically, Sir William Blackstone once discussed this subject in his “Commentaries on the Laws of England.” Specifically, Blackstone said therein that “From the same original, of the king's being the fountain of justice, we may also deduce the prerogative of issuing proclamations, which is vested in the king alone. These proclamations have then a binding force, when (as sir Edward Coke observes[footnote]) they are grounded upon and enforce the laws of the realm. For, though the making of laws is entirely the work of a distinct part, the legislative branch, of the sovereign power, yet the manner, time, and circumstances of putting those laws in execution must frequently be left to the discretion of the executive magistrate. And therefore his constitutions or edicts, concerning these points, which we call proclamations, are binding upon the subject, where they do not either contradict the old laws, or tend to establish new ones; but only enforce the execution of such laws as are already in being, in such manner as the king shall judge necessary.” (Source: Book 1, Chapter 7) This may have influenced the aforementioned clause in the United States Constitution. Again, the United States Constitution was then declaring (that is, in 1787) that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” (Source: Article 1, Section 1) Thus, none of the “legislative powers [t]herein granted” were supposed to be vested in the President.

Sir William Blackstone

Modern American controversies about our president’s power to issue executive orders

The United States of America has some similar controversies today, about the extent to which its presidents may issue executive orders. For example, the country has seen some important Supreme Court cases about executive orders. These include two major twenty-first century cases, each of which was limiting the extent to which presidents are allowed to issue these executive orders. These two Supreme Court cases were: Dep't of Transp. v. Ass'n of Am. Railroads (2015), and Perez v. Mortgage Bankers Ass'n (also in 2015). Both of these Supreme Court cases saw a concurring opinion from Justice Clarence Thomas. And, in each of Justice Thomas’s concurring opinions, he quoted from Sir Edward Coke’s “Case of Proclamations,” to justify the limitations that the court was then imposing on the executive branch. Thus, the Case of Proclamations continues to have some ongoing relevance in the twenty-first century. However, on this subject, the Case of Proclamations may not have enjoyed all of the influence that it should have enjoyed. That is, I personally feel that the scope of executive orders should be a little more limited, adhering to the dictums that Coke and Blackstone were each advocating during their own respective lifetimes. And, regarding things back in the British Isles, my footnote to this blog post will soon discuss some similarly recent decisions by the United Kingdom Supreme Court, for any interested readers. There, too, the influence of these executive controversies can be seen, including in a court case related to Britain’s exit from the European Union (also known as “Brexit”). More about that below.

Justice Clarence Thomas, who twice cited Sir Edward Coke’s “Case of Proclamations” in his concurring opinions for two major 2015 Supreme Court cases on executive orders

Footnote to this blog post:

In 1973, Britain joined the European Economic Community. This was later replaced by the European Union in 1993, after the Maastricht Treaty. But, in 2017, Britain took some early steps towards leaving the European Union. This would later culminate in the famous “Brexit” of 2020. In 2017, the court cited Sir Edward Coke’s “Case of Proclamations” in its relevant decision. Specifically, as Wikipedia puts it, the court was then concluding that “the government did not have the right to rely on royal prerogative to serve a notice pursuant to Article 50 of the Treaty on European Union, triggering the formal process for the UK to leave the EU. The court added that, because Brexit would directly affect substantive legal rights under UK domestic law, only Parliament could decide whether to serve such a notice.” (see source) Sir Edward Coke’s “Case of Proclamations” was also cited by another United Kingdom Supreme Court decision in 2019, shortly before the actual “Brexit” of 2020. Thus, Sir Edward Coke’s “Case of Proclamations” was again being cited in the twenty-first century, proving its ongoing relevance for the English-speaking world today.

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