Case Facts
On 20 September 1610, during the eighth year of the reign of James I, Coke was summoned before the Lord Chancellor, the Lord Treasurer, the Lord Privy Seal, and the Chancellor of the Duchy. Two questions of constitutional significance were put to him: first, whether the King by proclamation could prohibit the erection of new buildings in and about London; and second, whether the King could by proclamation prohibit the making of starch from wheat.
The Lord Chancellor pressed Coke to confirm the existence of a royal prerogative to act in these matters, even in the absence of any prior authority or precedent. The Lord Chancellor argued that where no authority or precedent existed, the King should be left free to order matters according to his wisdom for the good of his subjects, and warned that without such a power the King would be no more than the Duke of Venice. Coke famously responded that whilst every precedent must have had a commencement, where authority and precedent are entirely wanting, great consideration is required before anything novel is established that might be contrary to the law of the land. He maintained that the King cannot change any part of the common law, nor create any offence by proclamation which was not an offence before, without Parliament.
Coke was granted time to confer with his fellow judges. The resolution was then reached collectively by the two Chief Justices, the Chief Baron, and Baron Altham, upon conference with the Lords of the Privy Council, in the same term. This was not adversarial litigation in the conventional sense — there was no claimant or defendant. The proceeding was a formal reference by the King to the judges concerning the scope of his prerogative power, making it better understood as an advisory resolution or conference ruling than as an ordinary contested judgment.
Held
The judges resolved as follows:
First, the King by his proclamation cannot create any offence which was not an offence before. To do so would be to alter the law of the land by proclamation in a high point, for if the King may create an offence where none previously existed, fine and imprisonment would follow — a consequence which no proclamation alone can legitimately produce.
Second, the King hath no prerogative, but that which the law of the land allows him.
Third, the law of England is divided into three parts — common law, statute law, and custom — and the King's proclamation is none of them.
Fourth, a malum prohibitum is such an offence as is prohibited by Act of Parliament, and not by proclamation.
Fifth, where an offence is not punishable in the Star Chamber, the prohibition of it by proclamation cannot make it punishable there. It was noted that after this resolution, no proclamation thereafter imposing fine and imprisonment was made.
Sixth, the King may by proclamation admonish his subjects to keep the laws and warn them of offences already punishable by law — but he cannot by proclamation make a thing unlawful which was permitted by law before.
Ratio Decidendi
The central ratio of the case is that the royal prerogative does not extend to the creation of new offences or the alteration of the common law, statute law, or customs of the realm by proclamation alone. The judges resolved unambiguously that the law of England consists of three parts — common law, statute law, and custom — and that a royal proclamation forms no part of any of these. It follows that a proclamation cannot serve as a source of criminal liability.
This principle was reinforced by Coke's observation that all indictments conclude contra legem et consuetudinem Angliae or contra leges et statuta, yet no indictment was ever seen to conclude contra regiam proclamationem. This demonstrated that proclamations had never been treated as a legitimate basis for criminal punishment. Coke deployed the maxim ubi non est lex, ibi non est transgressio — where there is no law, there is no transgression — to reason that what cannot lawfully be punished without a proclamation cannot be made punishable by one.
The resolution further clarified the meaning of malum prohibitum. Such an offence is one prohibited by Act of Parliament, not by proclamation. Only Parliament possesses the authority to prohibit conduct which was previously lawful and to attach criminal consequences to it.
The proposition that the King hath no prerogative but that which the law of the land allows him stands as one of the most significant affirmations of the rule of law and of the limits of royal authority in English constitutional history. Together with Case of Prohibition (Prohibition del Roy) (1607) and Entick v Carrington [1765], this case forms part of the foundational constitutional framework establishing that executive power is constrained by law.
Obiter Dicta
The judges observed that the King may, consistently with his prerogative, issue a proclamation admonishing his subjects to keep the existing laws of the land and warning them against committing acts already punishable by law. Where an act was already unlawful and punishable by fine and imprisonment, and the King thereafter issued a proclamation prohibiting it as a form of forewarning, the commission of that act following the proclamation would be aggravated as a circumstance — the prior proclamation serving to demonstrate that the subject acted in knowing defiance of a royal admonition. However, this aggravating effect operates only in respect of conduct already prohibited by law; the proclamation itself contributes no independent legal force and cannot make unlawful that which was previously lawful.
The Lord Chancellor's argument — that, without the prerogative being confirmed, the King would be no more than the Duke of Venice — was addressed and effectively rejected. Coke's response drew upon the Latin maxims deliberandum est diu, quod statuendum est semel (that which is to be determined once must be considered at length) and melius est recurrere, quam male currere (it is better to turn back than to proceed wrongly), as well as quae contra rationem juris introducta sunt non debent trahi in consequentiam (things introduced contrary to the reason of the law ought not to be drawn into precedent). These maxims expressed Coke's overriding concern that novelties contrary to established law must not be permitted to crystallise into precedent by default or by the mere pressure of royal authority.