The Lasting Importance of the Case of Proclamations

There are many milestones on the road that traces the centuries-long work of the people in the Anglosphere to establish constitutional government and the rule of law. Some milestones, like our Declaration of Independence on July 4, 1776, are well known and widely celebrated. Some, like the signing of the Magna Carta or the enactment of the English Bill of Rights, are widely recognized to be important, but their anniversaries are often overlooked.

And regrettably, some important milestones are largely forgotten. One of these is the Case of Proclamations, decided during the Michaelmas Term, or fall term, of the King’s Bench in 1610 during the reign of James I.

The case arose out of a long-running dispute between the King and Parliament over which of them controlled the power of the purse. The Parliament argued that it alone could authorize measures, such as import duties, to raise revenue for the Crown. The King, always searching for additional sources of revenue, asserted his independent authority based on the royal prerogative to impose by proclamation additional duties on imports beyond those already authorized by Parliament.

In the fall of 1610, representatives of Parliament officially requested Sir Edward Coke and three other noted jurists to provide Parliament with a formal legal opinion as to whether and to what extent the King could rule by proclamation in contradiction of the limits set by the laws enacted by Parliament. Specifically, Parliament asked the jurists for their opinion on the legality of two proclamations that had been recently issued by the King, one to prohibit the construction of additional new buildings in London and one to outlaw the making of wheat starch used to stiffen the dress collars widely worn at the time.

After taking the matter under advisement for several weeks, the jurists issued their opinion in the Case of Proclamations. The opinion found that the King could not, by proclamation, create new offenses or arbitrarily extend his administrative reach into areas not sanctioned by the laws enacted by Parliament.

As Coke notes in the opinion, “the King cannot change any part of the common law, nor create any offense, by his proclamation, which was not an offense before, without parliament.” This is so because, “The King has no prerogative but that which the law of the land allows him.”

James resisted the judgment and continued to argue that his proclamations had the force of statutes enacted by parliament. Nevertheless, the opinion was issued and the case decided. The vitally important principles of law, limited government, and separation of powers were strongly affirmed. These principles would inspire the English Bill of Rights in 1689 and our own Constitution in 1787.

They should continue to inspire us today as we labor to preserve our constitutional order against the relentless onslaught of those who work tirelessly to extend by regulatory proclamations the arbitrary reach of the administrative state into areas not sanctioned by the laws enacted by our Congress.

The rule of law won an important victory in the fall of 1610. If we remain steadfastly committed to our founding principles and our Constitution, then we can secure additional important victories for the rule of law today.