The Online Library of Liberty

A project of Liberty Fund, Inc.

• Acknowledgments and Dedicatory
• A Note On the Texts, Editions, and Translations
• Introduction
• Chronology of Events
• Editions of Coke’s Works
• Mottoes and Crests of Sir Edward Coke
• I: Reports
• Part One of the Reports
• The Preface to the Reader.
• Shelley’s Case.
• Part Two of the Reports
• (preface) to the Learned Reader.
• Manser’s Case.
• The Case of Bankrupts.
• |[46 A] the Archbishop of Canterbury’s Case. *
• Part Three of the Reports
• (preface) to the Reader.
• Heydon’s Case.
• Fermor’s Case.
• Part Four of the Reports
• (preface) to the Reader.
• The Lord Cromwell’s Case. *
• Cutler V. Dixon.
• Vaux’s Case.
• Slade’s Case.
• Part Five of the Reports
• (preface) to the Reader.
• Foster’s Case.
• Cases of By-laws and Ordinances the Chamberlain of London’s Case.
• Clark’s Case.
• The Case of Market-overt.
• Semayne’s Case.
• Rooke’s Case.
• Pinnel’s Case.
• |[125 A] the Case De Libellis Famosis.
• Part Six of the Reports
• (preface) to the Reader.
• Jentleman’s Case.
• Part Seven of the Reports
• (preface) Deo, Patriae, Tibi. 2
• Calvin’s Case, Or the Case of the Postnati. 1
• The Case of Swans.
• Penal Statutes.
• Part Eight of the Reports
• (preface) Deo, Patriae, Tibi. 3
• Vynior’s Case. *
• Dr. Bonham’s Case.
• The Case of Thetford School, &c.
• Part Nine of the Reports
• (preface) Deo, Patriae, Tibi. 3
• William Aldred’s Case.
• John Lamb’s Case.
• Mackalley’s Case. (in the Killing of the Sergeant of London.)
• Part Ten of the Reports
• (preface) Deo, Patriae, Tibi. 5
• The Case of Sutton’s Hospital.
• The Case of the Isle of Ely.
• Part Eleven of the Reports
• (preface) Deo, Patriae, Tibi. 4
• The Lord De La Warre’s Case.
• The Case of the Tailors of Habits &c. of Ipswich.
• The Case of Monopolies.
• James Bagg’s Case.
• Part Twelve of the Reports
• Ford and Sheldon’s Case.
• Case of Non Obstante, Or Dispensing Power.
• Q. If High Commissioners Have Power to Imprison.
• Floyd and Barker.
• Of Oaths Before an Ecclesiasticall Judge Ex Officio.
• Of Pardons.
• Customs, Subsidies, and Impositions.
• Buggery. 1
• Premunire.
• Nicholas Fuller’s Case.
• Sir Anthony Roper’s Case.
• Sir Anthony Roper’s Case.
• The Case of Heresy.
• Langdale’s Case.
• Mouse’s Case.
• Prohibitions Del Roy.
• The Lord Aburgaveney’s Case.
• Of Convocations.
• Proclamations.
• Thomlinson’s Case.
• Walter Chute’s Case.
• Sir Stephen Procter’s [proctor’s] Case.
• Exaction of Benevolence.
• Part Thirteen of the Reports
• (preface) to the Reader.
• Prohibitions.
• The Case De Modo Decimandi, 1 and of Prohibitions, Debated Before the Kings Majesty.

Proclamations.

(1610) Michaelmas Term, 8 James I.

In Conference Before the Lord Treasurer.

First Published in the Reports, volume 12, page 74.

Ed.: These are Coke’s notes of a conference with the Privy Council, in which the King and Council sought an opinion on the authority of the King to pass proclamations to restrict building in London or to regulate the trade in starch, which was particularly in demand for the clothing of the well to do, as it was necessary for ruffed collars. Coke, with Chief Justice Fleming, Chief Baron Tanfield, and Baron Altham, initially refused to answer without consulting other Judges. Later, Coke answered, saying that the King can only require subjects to obey the Law, but he could not extend his prerogative beyond its legal bounds, could not create new crimes, and could not enlarge the criminal jurisdiction of Star Chamber. It was one of Coke’s most significant attacks on the royal prerogative.

Memorand. That upon Thursday, 20 Sept 8 Regis Jacobi, I was sent for to attend the Lord Chancellor, Lord Treasurer, Lord privy Seal, and the Chancellor of the Dutchy; 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, &c. The other, if the King may prohibit the making of Starch of Wheat; And the Lord Treasurer said, that these were preferred to the King as grievances, and against the Law and Justice: And 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 this 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 untill 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 Attorney-ship: 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, & then to make an advised answer according to law and reason. To which the Lord Chancellor said, that every President 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 President, to leave it to the King to order in it according to his wisdome, 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: And the Lord privy Seal said, that the Physitian was not alwaies bound to a president, but to apply his Medecine according to the quality of the disease:Andallconcluded that it should be necessary at that time to confirm the Kings Prerogative with our Opinions, although that there were not any former President or Authority in Law, for every President ought to have a Commencement.

|[75] To which I answered, That true it is, that every President hath a Commencement, but when Authority and President is wanting, there is need of great considerations, 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 time of consideration and conference with my Brothers, for Deliberandum est diu, quod statuendum est semel;1 To which the Solicitor said, that divers Sentences were given in the Star Chamber upon the Proclamation against building, and that I my self had given sentence in divers cases for the said Proclamation: to which I answered, that Presidents were to be seen, and consideration to be had of this upon conference with my Brethren, for that Melius est recurrere, quam male currere;2 And that Indictment concludes, Contra leges & statuta;3 but I never heard an Indictment to conclude, Contra Regiam Proclamationem.4 At last my motion was allowed, and the Lords appointed the two chief Justices, chief Baron, and Baron Altham to have consideration of it.

Note, the King by his Proclamation, or other waies, cannot change any part of the Common Law, or Statute Law, or the Customs of the Realm, 11 Hen. 4. 37. Fortescue in laudibus Angliae legum, cap. 9. 18 Edw. 4. 35, 36, &c. 31 Hen. 8. cap. 8. hic infra: Also the King cannot create any Offence by his Prohibition or Proclamation, which was not an Offence before, for that was to change the Law, and to make an Offence which was not, for Ubi non est lex, ibi non est transgressio, ergo,5 that which cannot be punished without proclamation, cannot be punished with it. Vide le Stat. 31 Hen. 8. cap. 8. which Act gives more power to the King then he had before, and yet there it is declared, that proclamation shall not alter the Law, Statutes, or Customs of the Realm, or impeach any in his Inheritance, Goods, body, life, &c. But if a man shall be indicted for a contempt against a Proclamation, he shall be fined and imprisoned, and so impeached in his body and goods, vide Fortescue, cap. 9. 18. 34. 36. 37, &c.

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 commit 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 continuall forms of Indictments, for all Indictments conclude, Contra legem & consuetudinem Angliae,6 or Contra leges & statuta, &c.7 but never was seen any Indictment to conclude Contra Regiam proclamatíonem.8

So in all cases the King out of his providence, 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 King, or lawfull Custom) upon pain of fine and imprisonment, as it is held in the 22 Hen. 8. Procl. B. but we do finde divers Precedents of Proclamations which are utterly against Law and reason, and for that void, for, Quae contra rationem juris introducta sunt non debent trahi in consequentiam.9

An Act was made, by which Forraigners were licensed to Merchandize within London, Hen. 4. by Proclamation prohibited the execution of it, and that it should be in suspence Usque ad proximum Parliamentium,10 which was against Law, vide dors. claus. 8 Hen. 4. Proclamat. in London. But 9 Hen. 4. |[76] An Act of Parliament was made, That all the Irish people should depart the Realm, and go into Ireland before the feast of the Nativity of the blessed Lady, upon pain of death, which was absolutely in terrorem, and was utterly against the Law.

Hollinshed 722. An. Dom: 1546. 37 Hen. 8. the Whore-houses, called the stews, were suppressed by Proclamation, and sound of Trumpet, &c.

In the same Term it was resolved by the two chief Justices, chief Baron, and Baron Altham, upon conference betwixt 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 Kings Proclamation is none of them: Also Malum, aut est malum in se, aut prohibitum,11 that which is against Law is malum in se; malum prohibitum12 is such an Offence as is prohibited by Act of Parliament, and not by Proclamation.

Also it was resolved, that the King hath no Prerogative, but that which the Law of the Land allows him.

Tribuna plebium interrangte.13But the King for Prevention of Offences, may by Proclamation admonish his Subjects that they keep the Lawes, and do not offend them, upon punishment to be inflicted by the Law, &c.

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, &c.

[1. ][Ed.: It requires a long time to deliberate concerning something which is laid down in an instant;]

[2. ][Ed.: It is better to run back than to keep running astray;]

[3. ][Ed.: Against the Laws and Statutes;]

[4. ][Ed.: Against the royal proclamation.]

[5. ][Ed.: Where there is no Law, there is no trespass; therefore,]

[6. ][Ed.: Against the Law and custom of England.]

[7. ][Ed.: Against the Laws and Statutes, etc.]

[8. ][Ed.: Against the royal proclamation, etc.]

[9. ][Ed.: Whatever is brought in contrary to the reason of the Law ought not to be treated with consequence.]

[10. ][Ed.: Until the next parliament,]

[11. ][Ed.: A wrong is either wrong in itself, or a wrong by reason of [statutory] prohibition,]

[12. ][Ed.: a wrong in itself; a wrong by reason of prohibition.]

[13][Ed.: The tribune of the people interrogating.]