The Lasting Importance of the Case of Proclamations (John Kennerly Davis, Oct 26, 2024, federalist Society)
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.