Statutes by proclama

tion.

§ 2. It may well be thought that no part of this fundamental system of law was left for an instant at the discretion of the Crown. It was, as we shall presently see, doubtful whether any statute could contradict or expressly repeal these national customs. Certain it was that, if a statute had such power, nothing but the clearest words could enable it to derogate in the least particular from the Common Law. But within the limits of the Common Law, and by way of supplement to it, the Royal authority for legislation might be exerted. In what form this legislative will must be expressed, was in the earlier period of our history by no means clear. Unquestionably this prerogative might be exercised by the King with the advice of his great council. But ought not the King's proclamations on his own Royal authority, and with the assistance of his ordinary council or his executive officers, to be binding upon his subjects? No lawyer ever contended that the King might of his own mere motion alter any part of the Common Law or make any law inconsistent with its provisions. No Plantagenet or Tudor ever thought that he could reduce the number of jurors from twelve to four, or that he could enlarge the widow's dower to a moiety of her husband's freehold estates. When Henry the Eighth himself granted a manor in Essex to a man and his heirs male, it was judicially decided that such a grant was bad, because the King could not create a course of inheritance unknown to the law.* The House of Lords has recently decided † that for the like reason the like limitation of a peerage does not create a descendible dignity. When Queen Elizabeth desired the patronage of an office in which a freehold had been already granted, she

* Plowden, 335.

+ Wiltes Claim of Peerage, L. R. 4 H. L. 126.

was fain to admit that the rights of the tenant were beyond her control. But it has been usual from ancient times that the Crown should issue proclamations to enforce the law; and thus the transition was easy and almost inevitable to proclamations to amend the law. When sessions of Parliament were infrequent and short, the legislative authority of the Crown was felt to be a great practical convenience; accordingly in such times, when the lines of separation were not clearly marked, a Royal proclamation on a novel subject would seldom be disputed, and would, if disputed, be generally upheld. But as the development of the country became more complete, this assumption of Legislative functions by the executive attracted more attention. It was found that these proclamations were not only a dangerous usurpation of legislative power, but also were an indirect method of taxation. Offences were often created for the sale of the licence, and thus liberty was impaired and at the same time money was irregularly received. At length a celebrated case was decided which finally placed beyond all doubt the inability of the Crown, that is the Crown in its executive character, to make any new law.

In the year 1610 King James the First and his Parliament were engaged in the discussion of what was then called "The Great Contract." This negotiation related to the purchase from the Crown of its proprietary rights under the old system of military tenures. The Commons were naturally anxious to include in the bargain the redress of some of the more pressing grievances of which they had then to complain; and the King was not reluctant to listen to the suggestion of such important customers. Accordingly an address from the House of

* Anderson's Reports, 154.

Commons *
was presented to His Majesty, setting forth
among other grievances the recent and manifest increase
of proclamations during late years, and their extension
not only to the liberty of the subject, but to his pro-
perty and his industry. It was represented that some
of these proclamations made positive innovations on the
law; that propositions deliberately rejected in Parliament
were during its prorogation established by proclamation;
that by the same means punishments were inflicted before
lawful trial and conviction; that new penalties were
created, and jurisdiction given to courts of arbitrary
discretion, which discretion was often wrongly exercised;
and that the wrong done by an illegal proclamation was
often put forward as a precedent to countenance and
warrant further illegalities. What was still more alarming,
books were published ascribing to proclamations an
authority previously unknown; and all the proclamations
issued since the King's accession had been carefully col-
lected into one volume and were printed in the same
manner as Acts of Parliament. Such a proceeding, as the
Commons justly argued, " seemeth to imply a purpose to
give these proclamations more reputation and more estab-
lishment than heretofore they have had." These "mournings
of the dove," as Bacon,† who presented the address, called
them, were not ungraciously received. The King did not
deny that sufficient care had not been shown in his former
proclamations, but asserted his general right to issue
proclamations in cases of emergency when Parliament was
not in session and the grievance would consequently remain
without remedy. But he promised to consult his council.
and the judges upon the subject, and that then he would
"do right to them." In accordance with this promise,
+ Zb., 534.

* 2 State Trials, 519.
Gardiner's History of England, i. 474.

Lord Coke, then Chief Justice of the King's Bench, was summoned to attend the Privy Council; and was there asked whether the King might by his proclamation prohibit new buildings in and around London, and the making of starch of wheat. Coke, although strongly pressed for an immediate opinion, insisted upon time for consultation with the other judges; and ultimately with some difficulty the question was referred to him, Chief Justice Fleming, Chief Baron Tanfield, and Baron Altham. The result will best be stated in the words of the great Reporter himself : * “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, 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. Also, it was resolved that the King hath no prerogative but that which the law of the land allows him. But the King for prevention of offences may by proclamation admonish his subjects that they keep the laws and do not offend them upon punishment to be inflicted by the law, et cetera. 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 afterwords made."

Notwithstanding Lord Coke's jubilant comment, his ruling did not altogether banish proclamations. They were freely used during the eleven years in which Charles the First attempted to govern England by his mere personal will. In the reign of Charles the Second they are of frequent occurrence.* Sir Mathew Hale speaks cautiously of their illegality in matters of trade and taxation. But no serious grievance can have arisen from them at this period, for no mention is made of them in the black catalogue of the Declaration of Rights, even though that list is not exclusively confined to James's misdoings. The last time that the question was mooted seems to have been in 1766.† It was thought expedient by Lord Chatham's administration, in consequence of successive failures of the harvest, to prohibit the exportation of wheat. This measure met with general concurrence at the time; and would have readily been sanctioned by Parliament, were it not for the extraordinary defence that Lord Northington and Lord Camden set up in its behalf. The great legal champion of popular freedom, the destroyer of general warrants, the liberal judge whom foreigners used to visit as one of the sights of London, insisted, in effect, that the whole proceeding was perfectly lawful and within the limits of Royal authority. This was to contend that the Crown had the power both to suspend, not only the Bill of Rights, but the Common Law itself, and also to create by its proclamation a new offence. Such a proposition met with no sympathy from any quarter; and an Act of Parliament§ was passed which distinctly recognized the illegal character of the proceeding, and indemnified not only those who

Amos, Eng. Const., p. 25.

† Massey, Hist. of Eng., i. 298; 16 Parl. Hist., 251.
See Lord Campbell's Lives of the Chancellors, c. 143.
§ 7 Geo. III., c. 7.