Judicial opinion on their validity. Constitutional value of the opinion. maintain hospitality in their own houses, forbidding the increase of buildings about London, and the making of starch out of wheat. But the proclamations on these last matters elicited a judicial opinion which must be taken as a final and conclusive statement of the law upon the subject. Coke was consulted as to their legality; he asked leave of the Council to confer with some of his brethren on the Bench, and three judges were appointed to assist him. The result of their consideration may be thus set forth :— 1. The king by his proclamation cannot create any offence which was not one before; for then he might alter the law of the land in a high point; for if he may create an offence where none is, upon that ensues fine and imprisonment. 2. The king hath no prerogative but what the law of the land allows him. 3. But the king, for the 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 law the neglect of such proclamation aggravates the offence. '4. If an offence be not punishable in the Star Chamber the prohibition of it by proclamation cannot make it so 1." : It would be difficult to find a decision in which the salient points of our Constitution are set forth in so few words: and it is the more interesting as having been delivered at a time when a clear statement of the points at issue between Crown and Parliament was greatly needed, and when the first step to be taken towards a settlement of constitutional difficulties was that the nature of those difficulties should be understood. The king's prerogative is ascertainable by rules of law, and is limited by those rules; he cannot make new nor alter existing laws, nor create new offences, nor constitute new courts for the trial of offences otherwise provided for. He is the executive, his business is the enforcement of existing law. If he thinks he can best enforce it by proclaiming it, he is welcome to do so. The judges in awarding sentence upon 1 12 Co. Rep. 74, 75. offenders against the law so proclaimed may fairly consider that the warning aggravates the offence. The administration of the law is with the Crown in Council, the making or altering of the law is with the Crown in Parliament. If one asks where is the law to be found by which the king's prerogative is determinable, the answer is in statutes, in judicial decisions, in the customs of the realm.' If one asks what power in the State can do that which Coke says the king can not do, the answer is that the Crown in Parliament can make, unmake, and alter the law which it is the duty of the Crown in Council to administer. The indefinite jurisdiction of the Star Chamber was at this moment one of the open questions of the Constitution, and in this matter Coke goes no further than to say that, whatever its existing rights may be, they cannot be increased by the method of proclamation. Proclamations continued to be made, not only by James I but by Charles', and so long as the Star Chamber continued to exist it was difficult to prevent their enforcement by some form of penalty. But when the jurisdiction thus assumed by the Privy Council had been abolished by the Long Parliament 16 Car. I, and there remained only the regular tribunals before which c. 10. it was possible to try offenders against the proclamations of the Crown, the dicta of Coke and his brethren took effect, and we hear little more of this encroachment of the prerogative on the rights of Parliament. Perhaps we may find in an episode of eighteenth-century Illustrahistory as good an illustration as possible of the difference between legal and illegal proclamations. tions of legal and illegal proclama When Lord Chatham and his colleagues took office in the tions. summer of 1766 the ministers of the Crown thought themselves bound to take measures in view of the great scarcity occasioned by a bad harvest. By their advice two Royal Proclamations were issued. 1 Hallam, Hist. of England, ii. 25. Proclama tion by way of admonition. The Forty Practical difficulty There were on the statute-book certain laws against forestallers and regraters, persons who bought up corn and kept it back to get a high price, or who carried corn from one part of the country to another in order to take advantage of better prices where the corn was scarcer. Whatever may have been the economical merit of these laws, the Crown was within its rights in proclaiming them and the penalties for the breach of them. A proclamation of these statutes was just such an admonition 'for the prevention of offences' as came within Coke's description of a legal exercise of the prerogative. But the ministry went further. Without waiting for the summons of Parliament they advised the king by proclamation to lay an embargo upon all ships laden with wheat or wheatflour. Such a restraint was contrary to the provisions of statutes, which made the export of corn free. When Parliament met, the ministers were severely attacked for having counselled the Crown to break the law, and it is to be noted that they did not for a moment attempt to defend the legality of the proclamation. They claimed to have acted for the best on an emergency, and Lord Camden said that 'it was but a forty days' tyranny.' After acrimonious debates an Act of Indemnity was passed in favour of the ministers who had advised and the officials who had carried out the embargo. The whole proceeding illustrates the difficulty which must of subject. recur from time to time, and which the Statute of Henry VIII proposed to meet. Ordinarily the law is sufficient for all circumstances that may arise, but there may be occasions when the executive must act in breach of the law. The Act of Henry VIII solved the difficulty by giving to the Crown in Council a discretionary legislative power. It is safer to allow the executive to act at its peril on the chance of an indemnity; and, though timid ministers may shrink from risk and responsibility when action is required, we must choose between such possibly unreasonable inaction and the greater danger of placing the Crown and its ministers above the law of the land. § 2 (a). The Dispensing Power. The power claimed by the Crown to legislate by way of Uses of the dispensing Proclamation differs from the dispensing power in this, that power. the former would enable the Crown to make new law, the latter would enable it to remedy inconveniences arising from existing law. But the claim of the Crown to independent legislative power was never admitted, and, when called in question, was uniformly declared illegal, while the power to dispense with the operation of statutes seems, within certain limits, to have been unquestioned. It may have been of practical utility, for, as Hallam says1, 'the language of ancient statutes was usually brief and careless, with few of those attempts to regulate prospective contingencies, which, even with our pretended modern caution, are often so imperfect; and as the sessions were never regular, sometimes interrupted for several years, there was a kind of necessity, or great convenience, in deviating occasionally from the rigour of a general prohibition.' But he adds that more often some motive of interest or partiality would induce the Crown to infringe upon the legal rule. And there seems no doubt that in the mediaeval constitution pardons or dispensations from the observance of statutes seems to have developed into something very different from a remedy for individual cases of inconvenience or hardship. ii. 172. In 1347 the Commons petitioned against the grant of Rot. Par. charters of pardon in great numbers of cases of murder, robbery, rape, and other felonies, and the king promised to use this prerogative henceforth for the honour and profit of the Modes of people, and to consider in Council the cases in which pardons had already been granted. But again in 1351 a like remonstrance was required, and the nature of the dispensations is 1 Hallam, Hist. of England, iii. 60. exercise. Illustrations. shown by the statement that the number of these charters was so great that the county authorities dared not indict malfeasors. The pardon was given not after conviction but before indictment, and the prayer is that such charters should not henceforth be given to common malefactors and murderers, nor to any one, so far as is consistent with the king's oath and conscience; but that such common malefactors and murderers should be brought within the law for the quiet of the commonalty and the maintenance of the peace1. In order to prevent such hasty grants of pardon for offences the nature of which was hardly known to the king who pardoned them, a statute was passed in the 13th of Richard II providing that no such grants should be made unless the name of the offender and the precise character of the offence were specified in the terms of the charter. And while the Commons remonstrated against the exercise of the dispensing power in the form described, the Courts of law endeavoured to frame some rules for its limitation. It was held that the king could not dispense with mala in se, which were said to be violations of common law; nor with statutes passed to prohibit mala in se, or in other words, to put common law into the form of a statute; nor with the rights of individuals or corporations. But it was very hard to define the power of the king to dispense with penal statutes, and the difficulty may perhaps be best illustrated by two cases both decided near the end of the seventeenth century. The case of Thomas v. Sorrell was an action brought for penalties for selling wines by retail contrary to the Statute 12 Car. II, c. 25. An Act of the reign of Edward VI had forbidden the sale of wine by retail save with licenses granted in certain forms by certain authorities. James I incorporated the Vintners' Company and gave them the right to sell wine by retail or in gross in and within three miles of the City of London, and in other places non obstante the Statute of Edward VI. 1 Rot. Par. ii. 229. 2 Vaughan, 330. |