Defining the Prerogative: The story of the Case of Proclamations 27 April 2020
I am going to talk about some of the great politico-legal battles in the 17th Century which established the conceptual framework for what we call the Rule of Law. English constitutional history is no longer taught in our schools or as part of training for the Bar and so you may be unfamiliar with these three stories, all of which played a vital part in the development of our law and legal system.
The first was a ruling in 1610 which is fundamental to our democracy and was recently referred to repeatedly by the Divisional Court and the Supreme Court in their judgments in the cases brought by Mrs Gina Miller. It is known as “the Case of Proclamations”.
The second is the bitter row between the Lord Chancellor and the Lord Chief Justice in 1616 which resulted in the sacking of the Chief Justice and gave rise to James I’s Star Chamber Decree. That established the primacy of Equity over the common law and is still on the statute book in the form of section 49 of the Senior Courts Act 1981:
“…wherever there is any conflict or variance between the rules of Equity and the rules of the Common Law with regard to the same matter, the rules of Equity shall prevail”.
The third is the story of Charles I’s forced loan, the Five Knights case and the Petition of Right 1628.
Let us go back to the beginning:
[Slide of Chapter 29 of Magna Carta]
So a free man is not to be convicted etc save in accordance with the law of the land, the “lex terrae”. But that begs the question how is the lex terrae to be made and by whom. Is the law to be made by the Judges as exponents of the common law, or by the King by virtue of his royal prerogative or by the Church as the guardian of souls and morality or by the Parliament expressing the will of the people? Once made, how can it be changed, suspended or repealed and by whom? Shortly before Magna Carta de Glanville wrote:
“… it is the law that whatever pleases the Prince has force of law”
and, as we shall see, that seems to have remained the view of the Stuart monarchs 400 years later. Such a view is also not unknown in modern times: as Richard Nixon said to David Frost: “If the President does it, it is not illegal”. We now talk of the separation of powers, but that is a relatively modern concept and where the boundaries between the functions of the Executive, Parliament and the Judiciary lie is still debateable and the subject of political controversy and judicial decision.
Let us remind ourselves of the two cases brought by the redoubtable Mrs Gina Miller which generated 190 pages of scrupulous legal reasoning by both the Divisional Court and the Supreme Court. In both cases the Government invoked the Royal prerogative: in Miller 1 the right of the Executive to make and unmake treaties without Parliamentary sanction and in Miller 2 the right to prorogue Parliament and the question arose whether and, if so, on what basis, the exercise of the prerogative could be controlled by the courts.
In Miller 1 the issue was whether the Executive (i.e. the Government) could give notice to leave the European Union without the sanction of Parliament. Two principles of constitutional law were in apparent conflict and the question was which one trumped the other: Lord Hughes expressed this very concisely in his dissenting judgment:
Rule 1: The Executive (Government) cannot change law made by Act of Parliament, nor the common law;
Rule 2: The making and unmaking of treaties is a matter of foreign relations within the competence of the Government.
The Divisional Court held that Rule 1 prevailed because the giving of the Article 50 Notice would affect and bring down with it a plethora of rights and obligations which had become part of British law. The Supreme Court agreed but there were three powerful dissenting judgments from Lords Reed, Carnwath and Hughes, who felt that the rights introduced into British law pursuant to the European Communities Act 1972 were conditional on the UK remaining a member of the EU and were not intended to survive the termination of that condition or the repeal of the Act.
The original authority for proposition (1) was said to be a case in 1610 in the reign of James I known as the Case of Proclamations.
In Miller 2 the issue was whether the advice of the Prime Minister to the Queen to prorogue Parliament for 5 weeks was lawful. It was argued on behalf of the Government that the Courts had no jurisdiction to decide this question – i.e. that it was not justiciable – because it was a purely political decision which lay within the purview of the Executive and not the Courts. The Divisional Court agreed with that argument and dismissed the claim. The Supreme Court unanimously reversed that decision. The Case of Proclamations was relied on again but this time as authority for the propositions that the Courts had exercised a supervisory jurisdiction over the decisions of the Executive “for centuries”; and that
“In the Case of Proclamations the court protected parliamentary sovereignty directly, by holding that prerogative powers could not be used to alter the law of the land”.
Interestingly, the next case cited by the Supreme Court for this proposition was in 1920.
So what was the Case of Proclamations and what happened? Well it was not really a case, in the sense of a lis inter parties; there was no hearing in Court; there was no adversarial argument; the King appears to have paid little attention to it and the report of it was not published for another 47 years. And yet this is the historical origin for perhaps the most fundamental principles of our constitutional law, namely that Parliament is sovereign, that the Executive cannot alter the law without Parliamentary sanction and that the Judiciary is entitled to police that principle.
Before going further I must introduce the two main protagonists.
My first is Edward Coke. [SEE SLIDE] He was born on 1st February 1552, the son of Sir Robert Coke, barrister and landowner. He went up to Trinity College Cambridge in 1567 (at the age of 13) but left without a degree. He joined the Inner Temple in 1572 and was called to the Bar in April 1578. He was an immediate success. He won his first case by showing that the argument for the other side was based on a mistranslation of the text of a Latin statute and he made his name by his famous victory in Shelley’s case (1581). He then published a report of the case which included, according to the other side, “things which had never been said in court”.
Indeed it was a criticism later made of Coke’s Reports that they sometimes said things which Coke thought ought to have been decided, rather than what had been decided. It is also a fact that, curiously, Coke’s Reports contain no account of any case he lost, although a number are reported by others.
Coke was appointed Solicitor General in 1592 by Queen Elizabeth and Attorney General in 1594 and spent most of his time prosecuting recusant Catholics. He became Treasurer of the Inner Temple in 1596 and led for the prosecution of the Earl of Essex in 1601 and Sir Walter Raleigh in 1603.
On the succession of King James in 1603, he was knighted (along with about 800 others). He is said to have dreamed up a splendid scam: he advised all “men of estate” that it would be advisable for them to sue out a pardon from the new monarch and then charged them £5 a head for processing the document; he is said to have made £100,000 in this way but he was, in any event, by now enormously wealthy as a result of his hugely successful practice at the Bar. In 1606 he became Chief Justice of the Common Pleas and in 1613 Chief Justice of the King’s Bench.
Now let me introduce the other main protagonist, Kings James himself. [SEE SLIDE] He was born in 1566 and so was 14 years younger than Coke. He was the son of Mary Queen of Scots and Henry Stuart, Lord Darnley, who had murdered Mary’s secretary, David Riccio, in front of her eyes while she was pregnant and was in turn murdered by Mary’s lover, the Earl of Bothwell. Mary was then forced to abdicate; James was crowned King of Scotland at the age of one and brought up in some isolation in Stirling Castle under a sadistic Puritan tutor called George Buchanan.
Notwithstanding this, James turned out rather well. First he was a considerable scholar and intellectual. He was probably the best educated and most intellectual person ever to have occupied the English throne. He was a true renaissance prince. The story is told of a visit by an English ambassador in 1574. His tutors invited him to select any chapter of the Bible upon which, reported the envoy, James:
“Was able extempore to read a chapter of the Bible out of Latin into French and out of French into English so well that few men could have added anything to his translation.”
James was 8 years old.
In his teens, James became interested in poetry and gathered a number of poets at his Court. He wrote a work on it, “Rules to be observed and eschewed in Scottish poesie” (1584) and many poems of his own, including a number of sonnets and an epic on the Battle of Lepanto. In the 1590s he also wrote two works of political philosophy, which are of direct relevance to my present theme, namely “the Trew Law of Free Monarchies” and the “Basilikon Doron”.
The latter was advice to his eldest son, Prince Henry, then aged 4, on how to be a king. The original circulation was restricted but when James became King of England he revised and republished it and it sold thousands of copies, becoming what one author has called “a renaissance best seller”. The first part consists of high flown theories of kingship but the third contains lots of practical tips: in one he advises his son not to go to war unless he must, but, if he insists on leading his troops in battle, to choose a light suit of armour because that is much more convenient for the “away running”.
James’ philosophy of kingship [SEE SLIDE] can perhaps be summarised as follows:
- A king is given absolute power by God over his people and has to answer only to God;
- A king has a duty to reign justly and to protect his people like a father;
- A king will therefore respect the established law and custom, since this will make for stability and peace;
- Although the king will rule according to law and will obey the law himself, there are cases where he may interpret or mitigate the law, lest summum ius becomes summa injuria, where the law is “doubtsome or rigorous”.
Those then were James’ published views when he succeeded to the throne of England in 1603. The common lawyers and Coke were not of that view at all. They took the view that the common law, based as it was on statute, case law and custom and having settled regular procedures, was superior to the will of the King or the decree of his prerogative court, the Chancery. Moreover, law so conceived was independent of the Executive. The common law courts asserted this principle by issuing write of prohibition, certiorari and habeas corpus, which we know as the prerogative writs. These were employed to restrict the jurisdiction of other courts within what the common law Judges regarded as their proper limits.
So let us move on to 1610. Coke is Chief Justice of the Common Pleas and has already had several run-ins with the King over the scope of his powers and concerning the jurisdiction of the Court of Chancery. He recorded the following events as if in a diary.
“Memorandum: that upon Thursday the twentieth of September in the eighth year of Kings James, I was sent for to attend the Lord Chancellor, Lord Treasurer, Lord Privy Seal and the Chancellor of the Duchy; there being present the Attorney, the Solicitor and the Recorder”.
It appears from what he goes on say that 3 years earlier the King had made two proclamations, one prohibiting new building in and about London and the other prohibiting the making of starch from wheat. These proclamations were probably very sensible. London in those days was a rat infested, disease ridden, overcrowded fire-risk, and some degree of town planning was no doubt very sensible. Starch was apparently in great demand for starching collars and ruffs as worn by the gentry [SEE SLIDES] and a prohibition on making it from wheat was probably intended to keep the price of bread down. The House of Commons, however, had petitioned the King against these rulings, contending that they were “contrary to law and justice”. Perhaps some commercial interests were at stake. The King had replied to Parliament that he would confer with his Privy Council and his Judges “and then do right to them”.
Coke, however, was not the least bit concerned with the merits of the Proclamations. He was only concerned about the constitutional principle. He asked for time to confer with his brother Judges. At first the Lord Chancellor would have none of that. He clearly expected Coke to say that making proclamations of this kind was well within the Royal prerogative. If there wasn’t a ready precedent, said the Lord Chancellor,
“he would advise the Judges to maintain the power and prerogative of the King and to leave it to the King to order on 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 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”.
Coke, however dug in his heels and said that his preliminary view was that the King could not change any part of the common law, nor create any offence by his proclamation which was not an offence before, without Parliament - but all he was asking for was time to confer with his brother Judges. It was then pointed out to him that he had himself passed sentence in the Star Chamber in certain cases for contravening these very proclamations. Coke, however, stood firm and the Privy Council appointed a panel of four justices, Coke as Chief Justice of the Common Pleas, the Chief Justice of the Kings Bench, the Chief Baron of the Exchequer and Baron Altham to consider the question.
The next half page of Coke’s Report contains his research notes. He manages to find what he claims to be statutory authority that the King could not create an offence by his prohibition or proclamation but could make infringement of an existing law worse by warning his subjects “of the peril of it,” thus wisely avoiding saying that the King’s proclamation had no force at all.
His Report then says nothing about the discussion with the other Judges but simply records their conclusion thus:
“In the same term it was resolved by the two Chief Justices, Chief Baron and Baron Altham, upon conference between 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. The law of England is divided into three parts, common law, statute law and custom; but the King’s proclamation is none of them … and it was resolved that the King had no prerogative, but that which the law of the land allows him.”
The Report concludes rather grandly that “after this resolution, no proclamation imposing fines and imprisonment was afterwards made etc”. This last claim is disputed by Professor Maitland, who says that the King happily went on making proclamations which were enforced by the Privy Council in the Court of Star Chamber.
So that two page diary entry is the somewhat flimsy foundation of the notion that the power of the Executive is circumscibed by both common law and statute and subject to control by judicial review. So controversial and politically dangerous was it at the time, that Sir Edward Coke did not dare to include his report of the Case of Proclamations in any of his reports (11 volumes) published in his lifetime. It was among the papers confiscated by the King’s officers when Coke lay dying in 1633, which papers were returned to his eldest son by Parliament at the beginning of the Civil War.
The Case of Proclamations is in Volume 12 of Coke’s Reports, which was published in 1657 by Sir Edward Bulstrode and which contains, among a rag‑bag of cases that Coke had probably not thought worthy of report, a number of highly contentious decisions and incidents involving the Royal prerogative which it would not have been safe or politic to make public during the reigns of James I or Charles I. So these fundamental principles of British constitutional law derive from a diary entry, recording not a judgment but a legal opinion, which was nearly destroyed and which did not see the light of day until 47 years after the event which it described.
The stories of the Star Chamber Decree which established the primacy of Equity and of the Petition of Right will be the subject of the next two talks.
 Attorney General v De Keyser’s Royal Hotel Limited  AC 508: see R (on the application of Miller) v The Prime Minister  UKSC 41 at .
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