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Proclamations, Case of

England and Wales High Court (King's Bench Division)

Nov 1, 1610

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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. TO WHICH I ANSWERED, THAT THESE QUESTIONS WERE OF GREAT IMPORTANCE. 2. THAT THEY CONCERNED THE ANSWER OF THE KING TO THE BODY, VIZ. TO THE COMMONS OF THE HOUSE OF PARLIAMENT. 3. THAT I DID NOT HEAR OF THESE QUESTIONS UNTIL THIS MORNING AT NINE OF THE CLOCK: FOR THE GRIEVANCES WERE PREFERRED, AND THE ANSWER MADE WHEN I WAS IN MY CIRCUIT. AND LASTLY, BOTH THE PROCLAMATIONS, WHICH NOW WERE SHEWED, WERE PROMULGATED, ANNO 5 JAC. AFTER MY TIME OF ATTORNEYSHIP: AND FOR THESE REASONS 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. TO WHICH 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.

LORDS APPOINTED THE TWO CHIEF JUSTICES, CHIEF BARON, AND BARON ALTHAM, TO HAVE CONSIDERATION OF IT.

LADY, UPON PAIN OF DEATH, WHICH WAS ABSOLUTELY IN TERROREM, AND WAS UTTERLY AGAINST THE LAW.

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.

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Factual and Procedural Background

The opinion concerns a constitutional issue arising in November 1610 regarding the extent of the King's power to issue proclamations that prohibit certain actions, specifically new buildings in and about London. The matter was brought before high-ranking officials including the Lord Chancellor, Lord Treasurer, Lord Privy Seal, and the Chancellor of the Duchy, along with legal officers such as the attorney, solicitor, and recorder. Two central questions were posed: whether the King by proclamation may prohibit new buildings, and whether the King’s promise to confer with his Privy Council and Judges before acting was sufficient. The attorney requested time to consult with fellow judges before providing a considered legal opinion. The Lords decided to appoint senior judges to deliberate on the matter, emphasizing the need to confirm the King's prerogative despite absence of direct precedent, while also recognizing the limits imposed by common law and statute.

Legal Issues Presented

Whether the King, by his proclamation alone, may prohibit new buildings in and about London and impose penalties for breaches.
Whether the King’s promise to consult with his Privy Council and Judges before acting satisfies legal requirements.
Whether a royal proclamation can alter common law, statute law, or customs of the realm, or create new offences without Parliamentary authority.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Statute 11 Hen.	Proclamation cannot change common law, statute, or customs.	Confirmed that proclamations cannot alter established law or create offences without Parliament.
Statute 31 Hen.	Proclamation cannot create offences not previously punishable by law.	Used to support the principle that offences must exist in law prior to proclamation to be punishable.
Fortescue, De Laudibus Angliae Legum, cap. 9	Limits on royal prerogative and supremacy of law.	Referenced to underline that the King’s prerogative is subject to law of the land.
Star Chamber Sentences	Proclamations against building were enforced but required legal consideration.	Indicated that proclamations had been used but required judicial oversight and precedent.
22 Hen. 8 Proclamation B	Only the King may issue proclamations under pain of fine and imprisonment.	Supported the exclusive royal prerogative to issue proclamations.
Hollinshed 722 (1546)	Example of an Act of Parliament with penalties against Irish people.	Illustrated that only Parliament can impose certain penalties, not proclamations.

Court's Reasoning and Analysis

The court reasoned that while the King holds a grand prerogative to issue proclamations for the good of his subjects and to prevent imminent dangers, this power is not unlimited. Proclamations cannot create new offences or change the law of the land, which comprises common law, statute law, and custom. The King may admonish subjects by proclamation to obey the law and warn them of penalties enforceable by law, but cannot impose penalties or criminalize conduct that was lawful before. The court emphasized that every legal precedent must have a beginning, but novelty must be approached cautiously and not contradict established law. The court further held that indictments conclude against laws and statutes, never against royal proclamations, illustrating that proclamations do not have the force of law. The opinion also notes that after this resolution, no proclamation was made imposing fine and imprisonment without statutory authority.

Holding and Implications

The court held that the King, by his proclamation alone, cannot create any offence or change the common law, statute law, or customs of the realm. The King's prerogative is limited to issuing proclamations to warn or admonish subjects, with penalties only enforceable if they already exist under law. This decision confirms the constitutional principle that the sovereign’s proclamations cannot override established law without Parliamentary sanction. The direct effect is a limitation on the King's power to legislate by proclamation, reinforcing the supremacy of law and the role of Parliament. No new precedent was set beyond affirming existing legal principles regarding royal prerogative and the rule of law.

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