As I listened to President Obama strike a defiant tone in the face of Speaker John Boehner’s criticism of his use of executive orders, I was reminded of a similar dispute that raged in Jacobean England. Then as now, hostile members of the lower house complained that the head of state was using his powers to sideline the legislative branch.
The dispute crystalized in July 1610 when the House of Commons presented King James I with a lengthy petition that included complaints about royal proclamations. After stressing that the English people should only be subject to punishments imposed by the common law or Acts of Parliament, MPs argued that
[I]t is apparent both that proclamations have been made of late years much more frequent than heretofore, and that they extended not only to the liberty, but also to the goods, inheritances, and livelihood of men, some of them tending to alter some points of the law, and make a new law, other some made shortly after a session of Parliament for matter directly rejected in the same session, other appointing punishments to be inflicted before lawful trial and conviction; some containing penalties in the form of penal statutes; some referring the punishment of offenders to courts of arbitrary discretion, which have laid heavy and grievous censures upon the delinquents…By reason whereof there is a general fear conceived and spread amongst Your Majesty’s people, that proclamations will by degrees grow up and increase to the strength and nature of laws, whereby not only that ancient happiness and freedom will be much blemished, if not quite taken away, which their ancestors have so long enjoyed, but the same may also in process of time bring in a new form of arbitrary government upon the realm (Foster 1966, 259).
The petition went on to list 16 proclamations that the Commons considered objectionable. Their subject matter ranged from the election of MPs to construction in London, but the common denominator was that they allegedly represented what we moderns might call ‘executive overreach.’
Proclamations were not a new development. Tudor monarchs issued a large number of them, and hardly a peep was heard from Parliament. Indeed, the legislature recognized that the Sovereign needed to have flexible powers at his disposal to deal with matters that were ill suited to Acts of Parliament (e.g. price controls, which would need to be regularly adjusted in light of changing economic conditions) (Heinze 1982, 239).However, James’ proclamations gave rise to controversy within the first year of his reign. On January 11, 1604, he issued a proclamation “concerning the choice of Knights and Burgesses for the Parliament” (Larkin and Hughes 1973, no. 33). It prohibited the election of outlaws or bankrupts as MPs and gave the Court of Chancery the power to adjudicate violations of the ban. The proclamation soon became a key issue in a dispute over who was the lawful representative of Buckinghamshire. The case generated friction between James and the House of Commons, and although the case was soon resolved, MPs seem to have harbored lingering resentment toward the king, for this proclamation was the first one listed in their July petition.
Less than a year later, James managed to vex the Commons with another one of his proclamations. He was eager to unite his two kingdoms (although he was king of both England and Scotland, they remained legally distinct entities), and he wanted Parliament to pass legislation to institute a commission that could hammer out the terms of the union, and he also wanted legislators to change his title to ‘King of Great Britain.’ While Parliament agreed to the commission, it refused to change his title.
James’ response was a hectoring missive (Commons Journal, vol. 1, 194-195), and then he went ahead and issued a proclamation assuming the title of King of Great Britain anyway (Larkin and Hughes 1973, no. 45). This was lawful (alterations to the royal style and titles are part of the royal prerogative), but his actions were tactless nonetheless. To make matters worse, the proclamation also claimed that the personal union between the two kingdoms meant that the laws of naturalization “are Ipso facto expired.” The commissioners who were negotiating the terms of the union used this proclamation to rule that Scottish people born after James’ accession to the English throne were naturalized by common law (Heinze 1982, 241).
This proclamation became the subject of adverse comment during the 1606-7 session of Parliament. The Lord Chancellor, Lord Ellesemere, wrote that MPs argued that, while the proclamation was worthy of respect, it was not legally binding, “for Proclamations can neither make, nor declare Lawes” (Knafla 1977, 208). In a speech to both Houses in March 1607, James defended the proclamation (Commons Journal, vol. 1, 360), and the Court of King’s Bench ultimately upheld his views on naturalization in Calvin’s Case (7 Co. Rep. 1a). Although the king had been vindicated in the end, he’d also laid the groundwork for future resentment.
Despite these dustups, Parliaments continued to give James the power to make proclamations for various purposes (e.g. 1 Jac. 1 c. 6 empowered the king to prohibit the export of grain by proclamation). However, his muscular use of the royal prerogative likely gave his critics fresh cause for concern (Heinze 1982, 243). James issued 22 proclamations in the 19 months leading up to the return of Parliament in February 1610, including two dealing with the starchmaking industry and one that dealt with construction in London. Those subjects were particularly controversial, and proclamations touching them would figure prominently in the Commons’ July petition.
The starch trade had been a matter of contention for years (the following is based on Heinze 1982, 248-49). At the beginning of James’ reign, the starchmakers had sought a charter of incorporation, and they also wanted a ban on the use of wheat to make starch. The judges recommended that these objectives be accomplished through legislation, but Parliament failed to act. However, in June 1605, James instituted a monopoly on the manufacture and sale of starch that proved unpopular with the Commons. Later, a courtier named Lionel Cranfield tried to establish his own monopoly making starch from bran, and he and his associates tried to get Parliament to outlaw the use of wheat. When they couldn’t get relief from Parliament, they sought help from the King.
James responded with a proclamation dated August 23, 1607 (Larkin and Hughes 1973, no. 75) that required all starch to be made from bran and created a commission with the power to license starchmakers. Although James ostensibly issued the proclamation to stop the waste of grain and reduce the public nuisance caused by the smells that resulted from the manufacturing process, it was effectively a major boon to Cranfield and his friends. Although MPs probably objected to this proclamation on economic grounds, they were careful to frame their protest in constitutional terms. They claimed that the proclamation made new law, allowed the king’s officers to punish people without trial, and instituted penalties as if it were a penal statute.
The second starch-related proclamation that the Commons objected to was dated July 5, 1608 (Larkin and Hughes 1973, no. 86). It allowed starch to be made from “decayed & mustie Wheat, bare Bran or such other stuffe, not fit for man’s sustenance,” but it also gave the controversial Court of Star Chamber the power to punish breaches of the proclamation. The Commons took a dim view of Star Chamber, labeling it a “court of arbitrary discretion” in their petition to James.
Rudolph Heinze has described these proclamations as “questionable and foolish,” (Heinze 1982, 250) and it’s hard to disagree. Had James followed the judges’ advice and waited for Parliament to legislate, he could have saved himself a great deal of trouble. He also would have avoided a situation where the Crown appeared to be willing to use its prerogative for the advancement of private interests.
James’ attempts to regulate construction in London were similarly controversial. In the reign of Elizabeth I, the London authorities wanted to restrain the city’s sprawling growth, and she issued several proclamations prohibiting new construction except on existing foundations and banning the practice of dividing homes into multiple dwellings (Heinze 1982, 250). They were intended to be temporary measures that would last until Parliament addressed the issue through legislation, but the legislature was reluctant to address the issue. It passed one statute on the subject, but it was totally ineffective (250). When James came to the throne, he tried to get Parliament to pass a bill to control construction in the capital, but again, it was slow to act.
In the absence of a legislative solution, James resorted to the royal prerogative, and four of his building-related proclamations figured in the Commons’ petition. The first, dated March 1, 1605, required new buildings in London to be made of brick due to the need to conserve timber for shipbuilding (Larkin and Hughes 1973, no. 51). However, the Commons objected to it because MPs had rejected a bill with similar provisions in the previous session of Parliament. The next two proclamations, dated September 16, 1603 (Larkin and Hughes 1966, no. 25) and October 12, 1607 (Larkin and Hughes 1966, no. 78), authorized the tearing down of houses and forbade new construction, respectively. Both were condemned because they touched “the freehold livelihood of men,” while the latter proclamation was also criticized because it was to be enforced by the Star Chamber. The final building-related proclamation, dated July 25, 1608, largely reiterated previous proclamations on the subject (Larkin and Hughes 1966, no. 87). The Commons found this objectionable because it implied that proclamations could be used as precedent, much like statutes.
James’ building-related proclamations didn’t depart from the precedents set by Elizabeth, but they nevertheless interfered with his subjects’ freehold (Heinze 1982, 251) Although it’s tempting to justify James’ proclamations on the grounds that they were the only way to address a major risk to public safety, their legality was nonetheless questionable since they interfered with the rights of his subjects (251).
The Commons also criticized James for publishing a collection of his proclamations (James VI and I 1609). Although a similar volume had been produced in the reign of Edward VI, there were fears that James was trying to make his proclamations the equivalent of statutes (Heinze 1982, 243). Some MPs accepted the book as a tidying-up exercise (see, for example the speech of Sir Edward Sandys in Foster 1966, 357), but the Commons as a whole must not have been mollified since MPs complained about the book in their July petition to the King. They lamented the fact that the proclamations had been printed “in such form as acts of parliament formerly have been, and still are used to be, which seemeth to give them more reputation and more establishment than heretofore they have had (259).”
On July 23, James responded to the Commons’ petition in a speech to both Houses of Parliament. Although he defended his actions, he also held out an olive branch to MPs:
Although We know well that, by the Constitution of the Frame and Policy of this Kingdom, Proclamations are not of equal Force, and in like Degree, as Laws; yet nevertheless, We think it a Duty appertaining to Us, and inseparably annexed to Our Crown and Regal Authority, to restrain and prevent such Mischiefs and Inconveniencies, as We see growing in the Common Weal, against which no certain Law is extant, and which may tend to the great Grief and Prejudice of Our Subjects, if there should be no Remedy provided until a Parliament; which Prerogative Our Progenitors have, as well in ancient as latter Times, used and enjoyed: But if, sithence the Beginning of Our Reign, Proclamations have been more frequent than in former Times, or have extended further than is warranted by Law, We take it in good Part to be informed thereof by Our Loving Subjects, and take it to Heart as a Matter of great Consequence; and therefore We will have Conference with Our Privy Council, and with Our Judges and Learned Counsel, and will cause such Our Proclamations as are past to be reformed, where Cause shall be found; and for future Time will provide, that none be made but such as shall stand with the former Laws or Statutes of the Kingdom, and such as, in Cases of Necessity, Our Progenitors have by their Prerogative Royal used, in Times of the best and happiest Government of this Kingdom (Lords Journal, vol. 2, 659).
A little over two months later, James issued a further proclamation that revoked all but one of the proclamations that the Commons had objected to (Larkin and Hughes 1973, no. 113). In doing so, he was careful to come up with his own reasons for rescinding them instead of admitting the validity of the Commons’ complaints. And when he mentioned the building proclamations, he couldn’t resist taking a parting shot at Parliament for failing to act: “wee could wish that some things in that behalfe might be further considered by our Parliament, seeing the matter hath beene so often moved, and never effected.”
A few days before James revoked the objectionable proclamations, his Privy Council sought an advisory opinion from the Chief Justice of the Court of Common Pleas, Sir Edward Coke, regarding the Crown’s power to issue proclamations. The Council was particularly interested in whether or not the proclamations relating to buildings in London and the starch trade were lawful. Sir Edward sought permission to consider his response, and he proceeded to confer with other senior judges. In the end, the judges opined that “the King by his proclamation cannot create any offence which was not an offence before (Case of Proclamations, 12 Co. Rep. 74).” However, their opinion was not made public at the time–in fact, it wouldn’t be published until 1656 (Cope 1971).
Was the Commons justified in its complaints? Yes and no. MPs’ claim that James was issuing an unusually large number of proclamations was certainly a bit misleading. Although James tended to make proclamations in fits and starts, his overall average was comparable to those of his predecessors. During the first eight years of his reign, he averaged approximately 1.3 proclamations per month, and while that is higher than Elizabeth I’s average of 0.72 per month, it’s less than Edward VI’s average of 1.65 per month or the 2.4 per month that were issued when the Duke of Somerset was Lord Protector (Heinze 1982, 246-47).
The Commons’ criticism of the proclamations themselves was also rather specious. In general, James used proclamations in much the same way that his predecessors had (Heinze 1982, 258), and he was not trying to rule by decree. As J. P. Sommerville has pointed out, there was no need for him to claim such a power. Lawmaking was not a central feature of seventeenth-century government; the government “operated not by making laws, but by applying–or circumventing–existing laws” (Sommerville 1999, 168). Given that James had a generally agreed right to dispense individuals from the effects of certain statutes, there was little reason for him to try to legislate without of Parliament (170). However, Professor Sommerville is right to point out that the dividing line between executive action and legislation can be hard to draw in practice, and some of James’ proclamations certainly pushed the envelope (e.g. those relating to starch and buildings in London).
Why then did the Commons react so strongly to James’ actions? Simply put, MPs had other axes to grind beyond the subject of proclamations. James was chronically short of money, and he was willing to resort to creative fundraising methods. Impositions (i.e. taxes on imports and exports) were some of the most notorious, and they become a major source of royal revenue. But Parliament never approved them, and MPs saw them as a violation of the Commons’ ancient right to control the nation’s purse strings. The parliamentary debate over impositions took place alongside the debate over proclamations (for a lucid discussion of the competing theories that underpinned these debates, see Sommerville 1999, ch. 5), and in such a febrile atmosphere, it’s not hard to see why the Commons would be suspicious of his use of executive power.
Cope, Esther. 1971. “Sir Edward Coke and proclamations, 1610.” The American Journal of Legal History 15, no. 3: 215-221. http://www.jstor.org/stable/845130
Foster, Elizabeth R., ed. 1966. Proceedings in Parliament, 1610. Vol. 2, The House of Commons. New Haven and London: Yale University Press.
Heinze, Rudolph W. 1982. “Proclamations and parliamentary protest, 1539-1610.” In Tudor Rule and Revolution, edited by Delloyd J. Guth and John W. McKenna, 237-259. Cambridge: Cambridge University Press.
King James VI and I. 1609. A Booke of Proclamations Published Since the Beginning of His Maiesties Most Happy Reigne Ouer England, etc. London: Robert Barker.
Knafla, Louis A. 1977. Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere. Cambridge: Cambridge University Press.
Larkin, James L. and Paul L. Hughes. 1973. Stuart Royal Proclamations. Vol. 1, The Proclamations of King James I, 1603-1625. Oxford: Clarendon Press.
Sommerville, J. P. 1999. Royalists and Patriots: Politics and Ideology in England, 1603-1640. 2nd ed. London and New York: Longman.