Dr. Bonham's Case
Encyclopedia
Thomas Bonham v College of Physicians, commonly known as Dr. Bonham's Case or simply Bonham's Case, was decided in 1610 by the Court of Common Pleas
in England under Sir Edward Coke
, the court's Chief Justice
. Coke ruled that "in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void...some statutes are made against law and right, which those who made them perceiving would not put them in execution." Coke's meaning has been disputed over the years; according to one interpretation, Coke intended the kind of judicial review
that would later develop in the United States, whereas other scholars contend that Coke only meant to construe a statute without challenging Parliamentary sovereignty
. If Coke intended the former, then he may have eventually changed his view.
Whatever Coke's meaning, after an initial period when his decision enjoyed some support (but during which no statutes were declared void), Bonham's Case was thrown aside in favour of the growing doctrine of Parliamentary sovereignty. In one of the most prominent early treatises supporting that doctrine, William Blackstone
wrote that Parliament is the sovereign law-maker, preventing the common law courts from throwing aside or reviewing statutes in the fashion Coke suggested. Parliamentary sovereignty is now the universally accepted judicial doctrine in the legal system of England and Wales
. Bonham's Case met a mixed reaction at the time, with King James I
and the Lord Chancellor
, Lord Ellesmere
, both deeply unhappy with it; it has been suggested as one of the reasons for Coke's dismissal from the Common Pleas in 1613. Academics in the 19th and 20th centuries have been scarcely more favourable, calling it "a foolish doctrine alleged to have been laid down extra-judicially", and simply an "abortion".
In the United States, Coke's decision met with a better reaction. During the legal and public campaigns against the writs of assistance
and Stamp Act of 1765
, Bonham's Case was given as a justification for nullifying the legislation, although by 1772 Blackstone's views gained acceptance. Marbury v. Madison
, the American case which forms the basis for the exercise of judicial review in the United States
under Article III
of the Constitution
, uses the words "void" and "repugnant", seen as a direct reference to Coke, although Marbury used those words in a somewhat different way. Academics have argued that Coke's work in Bonham's Case forms the basis of judicial review and the declaration of legislation as unconstitutional in the United States; other academics disagree, with one scholar calling this "one of the most enduring myths of American constitutional law and theory, to say nothing of history".
The College of Physicians (renamed in 1674 the Royal College of Physicians
) was historically an elite organisation. Created by royal charter
in 1518, the college was founded by six English academic doctors trained in English universities. It only admitted British men who had trained at a university and passed a three-part Latin exam in medical theory. Only 24 Fellows were allowed, and if an entrant came at a time when all 24 Fellowships were full, he would instead become a Candidate, with the most senior Candidate admitted to the first vacant Fellowship. An Act of Parliament confirming their royal charter also gave the college the ability to act as a court, judging other practitioners and punishing those acting badly or practising without a license. A second Act, the College of Physicians Act 1553, amended the charter and gave them the right to imprison, indefinitely, those they judged. This "flew in the face of the common law assumption that to practice medicine one needed only the consent of the patient"; Despite this, on 8 April 1602, John Popham, the Chief Justice, upheld the college's authority to imprison and fine, saying "That no man, though never so learned a Phisition, or doctor may Practise in London, or within seaven myles, without the Colledge Lycense" and "That a free man of London, may lawfully be imprysoned by the Colledge".
Thomas Bonham had been admitted to St John's College, Cambridge
, in 1581. Earning a Bachelor's degree in 1584, he completed a Master's by 1588 and studied for a medical doctorate at Cambridge, later granted by the University of Oxford
. By 1602 he had completed his studies and moved to London, where he practised medicine and associated himself with the Barber-Surgeons' Company, campaigning for it to be allowed to authorise medical practitioners in a similar way to the College of Physicians. Apparently giving up after a failed petition to Parliament in 1605, Bonham petitioned to join the college on 6 December 1605, but was rejected and told to return after further study. Returning on 14 April 1606, he was again told he could not join, and fined £5 and threatened with imprisonment for continuing to practise. Bonham ignored this, and kept working as a doctor; on 3 October it was announced he was to be arrested and fined £10. Bonham again appeared before the college, this time with a lawyer, on 7 November. He announced that he would continue to practice without seeking the college's permission, since he claimed they had no power over graduates of Oxford or Cambridge. On this he was imprisoned — some say at Fleet Prison
, some at Newgate Prison
— for contempt, but his lawyer had a writ of habeas corpus
issued by the Court of Common Pleas
which freed him on 13 November.
Bonham's successful writ worried the college, whose previous success with Popham and "keen cultivation" of Popham, Lord Ellesmere
(the Lord Chancellor
) and other Crown officials had left them assured that their jurisdiction would be maintained. As such, the college appealed directly to the Crown officers, and on 1 May met with a committee of judges at Ellesmere's house. This committee was composed of Ellesmere, Popham, Thomas Fleming
, two judges from the Court of Common Pleas and two from the Court of King's Bench
. These judges all agreed that "for not well doeing useing or practicing the facultie or arte of physike or for disobedience or contempte donne and committed against anye ordynaunce made by the colledge...they may committ the offenders without bayle or mayneprise". This success spurred the college to move against Bonham yet again, this time by suing him in the King's Bench for £60 for maintaining an illicit practice. In a counterattack, Bonham brought a suit in the Common Pleas requesting £100 damages, alleging that they had trespassed against his person
and wrongfully imprisoned him "against the law and custom of this kingdom of England".
The case was heard in the Court of Common Pleas by Warburton J
, Daniel J, Foster J, Walmisley J and the Chief Justice
Sir Edward Coke
, with a decision finally reached in the winter of 1610. The college's lawyers had argued that the two Acts of Parliament and the royal charter "intends, that none shall practise here but those who are most learned and expert, more than ordinary". As such, the college was free to punish for both practising without a licence and for malpractice, with the 1553 Act giving them the authority to imprison those they judged. Bonham's lawyers replied by arguing that the Acts and charter were intended to prevent malpractice, not practising without a licence. Moreover, Bonham's study "[in the texts at university] is practise [sic]", and that to become a doctor means to have been considered capable of teaching: "when a man brings with him the ensign of doctrine, there is no reason that he should be examined again, for then if thou will not allow of him, he shall not be allowed, though he is a learned and grave man, and it is not the intent of the King to make a monopoly of this practise". As such, the Act "doth not inhibit a doctor to practice [sic], but [only] punisheth him for ill using, exercising, and making [of physic]"; it covered malpractice, not for illicit practice.
Walmisley and Foster sided with the college, with Walmisley delivering the joint opinion. He said that since the statute clearly said "no person" could practise without the college's licence, only one verdict was acceptable, because the college had a valid licensing authority. The royal charter was to be interpreted as granting the college a duty on behalf of the King: As such, in Walmisley's mind, the King had a duty to protect the health of his subjects, which he had delegated to the college. In addition, Bonham had given "an absurd and contemptuous answer" when he claimed that he would not submit to the college, and "it should be a vain law if it did not provide punishment for them that offend against that". The monarch had delegated part of his prerogative powers to the college, for the purposes of punishment and imprisonment, and as such it had the right to sit as a court.
Coke delivered the majority opinion in favour of Bonham, with Daniel and Warburton assenting. He undertook a closer reading of the college's charter and associated Acts, and divided the relevant passage into two clauses. The first gave it the power to fine practitioners without licences. The second specified that they could imprison a practitioner for "not well doing, using or practicing physic". He argued that these constituted separate powers and issues; the first dealt with authorisation to punish for illicit practise, while the second covered punishment for malpractice. Simply practising without a licence did not constitute malpractice. As such, the college did not have the power to imprison Bonham, who was accused of practising without a licence, not practising dangerously. Coke also went further, arguing against the validity of the charter and its associated Acts. The Acts gave the college the right to act as both judge and a party to a case, which "provided for an absurdity". Therefore:
Because of this and four other reasons given by Coke, the college was to cease trying to supervise medical practise, and to cease arbitrating and acting as a court. In support of his judgment, Coke cited not only Tregor's Case, but also two anonymous cases given the academic names of Cessavit 42 and Annuitie 11 respectively.
(Lord Chief Justice
and Lord Chancellor in the 19th century) as "a foolish doctrine alleged to have been laid down extra-judicially". Philip Allott, in the Cambridge Law Journal, simply called it an "abortion". Coke was later dismissed from his judicial posts, and Ellesmere immediately began making veiled criticisms. Ellesmere maintained it was unconscionable to allow the judges power to throw aside Acts of Parliament if they were repugnant or contrary to reason; however, he spoke "not of impossibilities or direct repugnancies". It was acceptable to overturn an Act if it was clearly and obviously repugnant, but not otherwise.
Coke has come under criticism for the examples he drew on to justify his decision. The first case he gave, Tregor's Case, was seriously misquoted. Coke stated that "Herle said some statutes are made against law and right, which those who made them perceiving, would not put into execution". In actual fact no reference to "law and right" is found in the original; Herle wrote that "there are some statutes made which he himself who made them does not will to put into execution", and only meant that some statutes are poorly drafted, and if they cannot be interpreted to work, Parliament would accept the courts not applying them. Theodore Plucknett
wrote that "Whoever reads the whole of Herle's remarks can see that he did not regard the statute then under discussion as falling within this category; on the contrary, he suggested a perfectly obvious and straightforward interpretation of it.... Coke's first authority is far from convincing". His second authority, Cessavit 42, "goes much further to support his thesis", and concerns a situation where William Bereford
refused to apply an Act of Parliament because it would undermine several common law principles. However, Plucknett notes the distinction that in Cessavit 42 "the statute is not held void; it is just ignored. To this fact Coke has really added an explanation and a theory of his own".
His third example, Annuitie 11, was based on the Statute of Carlisle, which required all religious orders to have seals, placed in the custody of the prior and four of the "worthiest brethren" so that the Abbot could not use it without their knowledge. Any decisions made without the seal kept in this fashion were invalid. This clashed with church law, and was incredibly difficult for small religious orders; as such, Sir Anthony Fitzherbert
said that the statute was void, as it was "impertinent" or "impossible". However, Plucknett again casts doubt on the validity, stating that it "would have looked strong...[but] is, in fact, of doubtful import".
Bonham's Case was deeply unpopular with the Crown; Coke was removed from the Common Pleas and sent to the King's Bench, theoretically a more senior office (but in practice a less rewarding one) in 1613 due to his work, and in June 1616 suspended from office and ordered to "correct" his case reports. In October 1617 King James I
demanded Coke explain the reasoning behind Bonham's Case; Coke claimed that "the words of my report do not import any new opinion, but only a relation of such authorities of law, as had been adjudged and resolved in former times, and were cited in the argument of Bonham's case". He refused to admit to any flaws with his writings, and his only corrections were minor typos and rearrangements of the language. If he meant his opinion in this case as an endorsement of judicial review instead of Parliamentary sovereignty, then withdrawal of that endorsement has been inferred from his later writings.
, or simply as being another form of statutory interpretation. Noah Feldman suggested that the dispute over the two meanings has its origins in 1930s America, where frustration over judicial review of elements of the New Deal
spilled into the academic world. James Kent
, in his Commentaries on American Law, argued that Bonham's Case and cases like it only meant that statutes should be given a "reasonable construction". Charles Gray, in the Proceedings of the American Philosophical Society, argues that Coke as a judge never intended to advocate the judicial review of statutes, Bailyn writes that "Coke had not meant...that there were superior principles of right and justice which Acts of Parliament might not contravene...saying that courts might 'void' a legislative provision that violated the constitution he meant only that the courts were to construe statutes so as to bring them into conformity with recognized legal principles".
Raoul Berger, in the University of Pennsylvania Law Review
, disagrees with this; the words of the statute were clear, and the only application it could have was unjust. Statutory interpretation allows for the ignoring of unjust extraneous meanings, but what Coke did was nullify the statute as a whole, along with its main intention. John V. Orth, writing in the Constitutional Commentary, concurs, saying that "If that were so, why did they not say so? Is it likely that the royal judges, confronting a case involving a statute that had necessarily passed both houses of parliament and received the royal assent, would lightly use the word 'void'?"
Research by Samuel Thomas and Sir John Baker
has led to a reassessment. During the early 17th century, non-common law courts were claiming an "Imperial, almost legislative discretion over statutory interpretation, free from any supervisory jurisdiction of the common law courts". Coke's decision can therefore be seen as him reminding those courts that such interpretations were themselves subject to the law, and not down to individual discretion.
During Coke's lifetime he was judicially dominant, and his ideas were upheld by his successor as Chief Justice, Sir Henry Hobart
, in Day v Savadge and Lord Sheffield v Ratcliffe. After Coke's death, however, his jurisprudence "naturally suffered an eclipse", and the next appearance is in Godden v Hales, in 1686, where the doctrine was twisted to argue that the Crown had the prerogative to dismiss laws of government. Plucknett notes that "the Revolution of 1688
marks the abandonment of the doctrine of Bonham's Case", but in 1701 the common law judges cited Coke's decision with approval in City of London v Woo, with John Holt concluding that Coke's statement is "a very reasonable and true saying". His position was of treating statutes in the same way as other documents for the purpose of judicial review; this was followed for decades. Outside of the judiciary, John Lilburne
used Bonham's Case in his book The Legall Fundamentall Liberties of the People of England, and later in his 1649 treason trial, to justify his attack on the Rump Parliament
.
With the growth of Parliamentary sovereignty
as a doctrine, Coke's theory gradually died out; William Blackstone
, in the first edition of his Commentaries on the Laws of England
, wrote that "if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it: and the examples alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government". Parliamentary sovereignty is now upheld by the English judiciary as a "central principle of British constitutionalism", albeit with some issues due to membership in the European Union
. The case's modern irrelevance is such that Philip Hamburger, writing in 2008, notes that "Bonham's Case scarcely deserves mention in a history of judicial duty, except for reasons that are now largely forgotten".
, there were instances when Coke's statement was interpreted to mean that the common law was superior to statute. For example, drawing on Coke's statement, James Otis, Jr.
declared during the struggle over writs of assistance
that it was the duty of the courts to ignore Acts of Parliament "against the constitution and against natural equity", an argument and struggle that had a significant impact on John Adams
. When the Stamp Act of 1765
was declared invalid by the Massachusetts Assembly, the rationale was that it was "against Magna Charta and the natural rights of Englishmen, and therefore, according to the Lord Coke, null and void". By 1772, Otis and others had reversed course, adopting Blackstone's position that judges could not challenge acts of parliament. Even before that point, there were few episodes in which Dr. Bonham's Case was used as a rallying cry in America, and instead judicial review in America grew primarily from other political and intellectual sources.
In Marbury v. Madison
, the American case that forms the basis for the exercise of judicial review in the United States
under Article III
of the Constitution
, Chief Justice John Marshall
stated that "the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument". Here, Marshall specifically used the words "void" and "repugnant", which is seen as a deliberate reference to Coke, but Marshall's principle involved repugnancy to the written Constitution instead of repugnancy to reason.
Edward Samuel Corwin
, writing in the Harvard Law Review
, praised the idea of a fundamental higher law of reason enforceable by judges, and accordingly endorsed "the ratification which Coke's doctrine received in American constitutional law and theory". Gary McDowell, writing in The Review of Politics, calls this "one of the most enduring myths of American constitutional law and theory, to say nothing of history". As evidence, McDowell points out that Coke and Bonham's Case were never discussed during the Constitutional Convention of 1787. During the ratification conventions, Coke was mentioned, but not in debates over the striking down of unconstitutional statutes. Bonham's Case itself was never brought up, only Coke's other writings. An additional point of view is that the United States Supreme Court has come “full circle to the dictum in Bonham’s Case” by using the Due Process Clause to strike down what the Court deems “unreasonable” legislation.
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
in England under Sir Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
, the court's Chief Justice
Chief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...
. Coke ruled that "in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void...some statutes are made against law and right, which those who made them perceiving would not put them in execution." Coke's meaning has been disputed over the years; according to one interpretation, Coke intended the kind of judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
that would later develop in the United States, whereas other scholars contend that Coke only meant to construe a statute without challenging Parliamentary sovereignty
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
. If Coke intended the former, then he may have eventually changed his view.
Whatever Coke's meaning, after an initial period when his decision enjoyed some support (but during which no statutes were declared void), Bonham's Case was thrown aside in favour of the growing doctrine of Parliamentary sovereignty. In one of the most prominent early treatises supporting that doctrine, William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
wrote that Parliament is the sovereign law-maker, preventing the common law courts from throwing aside or reviewing statutes in the fashion Coke suggested. Parliamentary sovereignty is now the universally accepted judicial doctrine in the legal system of England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
. Bonham's Case met a mixed reaction at the time, with King James I
James I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
and the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
, Lord Ellesmere
Thomas Egerton, 1st Viscount Brackley
Thomas Egerton, 1st Viscount Brackley PC was an English Nobleman, Judge and Statesman who served as Lord Keeper and Lord Chancellor for twenty-one years.-Early life, education and legal career:...
, both deeply unhappy with it; it has been suggested as one of the reasons for Coke's dismissal from the Common Pleas in 1613. Academics in the 19th and 20th centuries have been scarcely more favourable, calling it "a foolish doctrine alleged to have been laid down extra-judicially", and simply an "abortion".
In the United States, Coke's decision met with a better reaction. During the legal and public campaigns against the writs of assistance
Writ of Assistance
A writ of assistance is a written order issued by a court instructing a law enforcement official, such as a sheriff, to perform a certain task. Historically, several types of writs have been called "writs of assistance". Most often, a writ of assistance is "used to enforce an order for the...
and Stamp Act of 1765
Stamp Act 1765
The Stamp Act 1765 was a direct tax imposed by the British Parliament specifically on the colonies of British America. The act required that many printed materials in the colonies be produced on stamped paper produced in London, carrying an embossed revenue stamp...
, Bonham's Case was given as a justification for nullifying the legislation, although by 1772 Blackstone's views gained acceptance. Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...
, the American case which forms the basis for the exercise of judicial review in the United States
Judicial review in the United States
Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself....
under Article III
Article Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...
of the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, uses the words "void" and "repugnant", seen as a direct reference to Coke, although Marbury used those words in a somewhat different way. Academics have argued that Coke's work in Bonham's Case forms the basis of judicial review and the declaration of legislation as unconstitutional in the United States; other academics disagree, with one scholar calling this "one of the most enduring myths of American constitutional law and theory, to say nothing of history".
Background
Royal College of Physicians
The Royal College of Physicians of London was founded in 1518 as the College of Physicians by royal charter of King Henry VIII in 1518 - the first medical institution in England to receive a royal charter...
) was historically an elite organisation. Created by royal charter
Royal Charter
A royal charter is a formal document issued by a monarch as letters patent, granting a right or power to an individual or a body corporate. They were, and are still, used to establish significant organizations such as cities or universities. Charters should be distinguished from warrants and...
in 1518, the college was founded by six English academic doctors trained in English universities. It only admitted British men who had trained at a university and passed a three-part Latin exam in medical theory. Only 24 Fellows were allowed, and if an entrant came at a time when all 24 Fellowships were full, he would instead become a Candidate, with the most senior Candidate admitted to the first vacant Fellowship. An Act of Parliament confirming their royal charter also gave the college the ability to act as a court, judging other practitioners and punishing those acting badly or practising without a license. A second Act, the College of Physicians Act 1553, amended the charter and gave them the right to imprison, indefinitely, those they judged. This "flew in the face of the common law assumption that to practice medicine one needed only the consent of the patient"; Despite this, on 8 April 1602, John Popham, the Chief Justice, upheld the college's authority to imprison and fine, saying "That no man, though never so learned a Phisition, or doctor may Practise in London, or within seaven myles, without the Colledge Lycense" and "That a free man of London, may lawfully be imprysoned by the Colledge".
Thomas Bonham had been admitted to St John's College, Cambridge
St John's College, Cambridge
St John's College is a constituent college of the University of Cambridge. The college's alumni include nine Nobel Prize winners, six Prime Ministers, three archbishops, at least two princes, and three Saints....
, in 1581. Earning a Bachelor's degree in 1584, he completed a Master's by 1588 and studied for a medical doctorate at Cambridge, later granted by the University of Oxford
University of Oxford
The University of Oxford is a university located in Oxford, United Kingdom. It is the second-oldest surviving university in the world and the oldest in the English-speaking world. Although its exact date of foundation is unclear, there is evidence of teaching as far back as 1096...
. By 1602 he had completed his studies and moved to London, where he practised medicine and associated himself with the Barber-Surgeons' Company, campaigning for it to be allowed to authorise medical practitioners in a similar way to the College of Physicians. Apparently giving up after a failed petition to Parliament in 1605, Bonham petitioned to join the college on 6 December 1605, but was rejected and told to return after further study. Returning on 14 April 1606, he was again told he could not join, and fined £5 and threatened with imprisonment for continuing to practise. Bonham ignored this, and kept working as a doctor; on 3 October it was announced he was to be arrested and fined £10. Bonham again appeared before the college, this time with a lawyer, on 7 November. He announced that he would continue to practice without seeking the college's permission, since he claimed they had no power over graduates of Oxford or Cambridge. On this he was imprisoned — some say at Fleet Prison
Fleet Prison
Fleet Prison was a notorious London prison by the side of the Fleet River in London. The prison was built in 1197 and was in use until 1844. It was demolished in 1846.- History :...
, some at Newgate Prison
Newgate Prison
Newgate Prison was a prison in London, at the corner of Newgate Street and Old Bailey just inside the City of London. It was originally located at the site of a gate in the Roman London Wall. The gate/prison was rebuilt in the 12th century, and demolished in 1777...
— for contempt, but his lawyer had a writ of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
issued by the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
which freed him on 13 November.
Bonham's successful writ worried the college, whose previous success with Popham and "keen cultivation" of Popham, Lord Ellesmere
Thomas Egerton, 1st Viscount Brackley
Thomas Egerton, 1st Viscount Brackley PC was an English Nobleman, Judge and Statesman who served as Lord Keeper and Lord Chancellor for twenty-one years.-Early life, education and legal career:...
(the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
) and other Crown officials had left them assured that their jurisdiction would be maintained. As such, the college appealed directly to the Crown officers, and on 1 May met with a committee of judges at Ellesmere's house. This committee was composed of Ellesmere, Popham, Thomas Fleming
Thomas Fleming (judge)
Sir Thomas Fleming was an English member of Parliament and judge, whose most famous case was the trial of Guy Fawkes in relation to the Gunpowder Plot...
, two judges from the Court of Common Pleas and two from the Court of King's Bench
Court of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
. These judges all agreed that "for not well doeing useing or practicing the facultie or arte of physike or for disobedience or contempte donne and committed against anye ordynaunce made by the colledge...they may committ the offenders without bayle or mayneprise". This success spurred the college to move against Bonham yet again, this time by suing him in the King's Bench for £60 for maintaining an illicit practice. In a counterattack, Bonham brought a suit in the Common Pleas requesting £100 damages, alleging that they had trespassed against his person
Trespass in English law
Trespass in English law is an area of tort law broadly divided into three groups: trespass to the person, trespass to goods and trespass to land...
and wrongfully imprisoned him "against the law and custom of this kingdom of England".
Case
Peter Warburton (judge)
Sir Peter Warburton JP was a British judge. Born to Thomas Warburton and his wife Anne, Warburton attended Staple Inn before joining Lincoln's Inn on 2 May 1562. He was called to the Bar there in February 1572, and became a Bencher in 1582...
, Daniel J, Foster J, Walmisley J and the Chief Justice
Chief Justice of the Common Pleas
The Court of Common Pleas, also known as the Common Bench or Common Place, was the second highest common law court in the English legal system until 1880, when it was dissolved. As such, the Chief Justice of the Common Pleas was one of the highest judicial officials in England, behind only the Lord...
Sir Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
, with a decision finally reached in the winter of 1610. The college's lawyers had argued that the two Acts of Parliament and the royal charter "intends, that none shall practise here but those who are most learned and expert, more than ordinary". As such, the college was free to punish for both practising without a licence and for malpractice, with the 1553 Act giving them the authority to imprison those they judged. Bonham's lawyers replied by arguing that the Acts and charter were intended to prevent malpractice, not practising without a licence. Moreover, Bonham's study "[in the texts at university] is practise [sic]", and that to become a doctor means to have been considered capable of teaching: "when a man brings with him the ensign of doctrine, there is no reason that he should be examined again, for then if thou will not allow of him, he shall not be allowed, though he is a learned and grave man, and it is not the intent of the King to make a monopoly of this practise". As such, the Act "doth not inhibit a doctor to practice [sic], but [only] punisheth him for ill using, exercising, and making [of physic]"; it covered malpractice, not for illicit practice.
Walmisley and Foster sided with the college, with Walmisley delivering the joint opinion. He said that since the statute clearly said "no person" could practise without the college's licence, only one verdict was acceptable, because the college had a valid licensing authority. The royal charter was to be interpreted as granting the college a duty on behalf of the King: As such, in Walmisley's mind, the King had a duty to protect the health of his subjects, which he had delegated to the college. In addition, Bonham had given "an absurd and contemptuous answer" when he claimed that he would not submit to the college, and "it should be a vain law if it did not provide punishment for them that offend against that". The monarch had delegated part of his prerogative powers to the college, for the purposes of punishment and imprisonment, and as such it had the right to sit as a court.
Coke delivered the majority opinion in favour of Bonham, with Daniel and Warburton assenting. He undertook a closer reading of the college's charter and associated Acts, and divided the relevant passage into two clauses. The first gave it the power to fine practitioners without licences. The second specified that they could imprison a practitioner for "not well doing, using or practicing physic". He argued that these constituted separate powers and issues; the first dealt with authorisation to punish for illicit practise, while the second covered punishment for malpractice. Simply practising without a licence did not constitute malpractice. As such, the college did not have the power to imprison Bonham, who was accused of practising without a licence, not practising dangerously. Coke also went further, arguing against the validity of the charter and its associated Acts. The Acts gave the college the right to act as both judge and a party to a case, which "provided for an absurdity". Therefore:
Because of this and four other reasons given by Coke, the college was to cease trying to supervise medical practise, and to cease arbitrating and acting as a court. In support of his judgment, Coke cited not only Tregor's Case, but also two anonymous cases given the academic names of Cessavit 42 and Annuitie 11 respectively.
Assessment
The decision in Bonham's Case has been described by John CampbellJohn Campbell, 1st Baron Campbell
John Campbell, 1st Baron Campbell PC, KC was a British Liberal politician, lawyer, and man of letters.-Background and education:...
(Lord Chief Justice
Lord Chief Justice of England and Wales
The Lord Chief Justice of England and Wales is the head of the judiciary and President of the Courts of England and Wales. Historically, he was the second-highest judge of the Courts of England and Wales, after the Lord Chancellor, but that changed as a result of the Constitutional Reform Act 2005,...
and Lord Chancellor in the 19th century) as "a foolish doctrine alleged to have been laid down extra-judicially". Philip Allott, in the Cambridge Law Journal, simply called it an "abortion". Coke was later dismissed from his judicial posts, and Ellesmere immediately began making veiled criticisms. Ellesmere maintained it was unconscionable to allow the judges power to throw aside Acts of Parliament if they were repugnant or contrary to reason; however, he spoke "not of impossibilities or direct repugnancies". It was acceptable to overturn an Act if it was clearly and obviously repugnant, but not otherwise.
Coke has come under criticism for the examples he drew on to justify his decision. The first case he gave, Tregor's Case, was seriously misquoted. Coke stated that "Herle said some statutes are made against law and right, which those who made them perceiving, would not put into execution". In actual fact no reference to "law and right" is found in the original; Herle wrote that "there are some statutes made which he himself who made them does not will to put into execution", and only meant that some statutes are poorly drafted, and if they cannot be interpreted to work, Parliament would accept the courts not applying them. Theodore Plucknett
Theodore Plucknett
Theodore Frank Thomas Plucknett was a British legal historian who was the first ever chair of legal history at the London School of Economics....
wrote that "Whoever reads the whole of Herle's remarks can see that he did not regard the statute then under discussion as falling within this category; on the contrary, he suggested a perfectly obvious and straightforward interpretation of it.... Coke's first authority is far from convincing". His second authority, Cessavit 42, "goes much further to support his thesis", and concerns a situation where William Bereford
William Bereford
Sir William Bereford was an English justice. He was the son of Walter de Bereford, with the family name coming from the village of Barford, Warwickshire. In 1287 his brother, Osbert de Bereford, a previous High Sheriff of Warwickshire and Leicestershire, bought a property in Wishaw, and after his...
refused to apply an Act of Parliament because it would undermine several common law principles. However, Plucknett notes the distinction that in Cessavit 42 "the statute is not held void; it is just ignored. To this fact Coke has really added an explanation and a theory of his own".
His third example, Annuitie 11, was based on the Statute of Carlisle, which required all religious orders to have seals, placed in the custody of the prior and four of the "worthiest brethren" so that the Abbot could not use it without their knowledge. Any decisions made without the seal kept in this fashion were invalid. This clashed with church law, and was incredibly difficult for small religious orders; as such, Sir Anthony Fitzherbert
Anthony Fitzherbert
Sir Anthony Fitzherbert was an English judge, scholar and legal author, particularly known for his treatise on English law, New Natura Brevium .-Biography:...
said that the statute was void, as it was "impertinent" or "impossible". However, Plucknett again casts doubt on the validity, stating that it "would have looked strong...[but] is, in fact, of doubtful import".
Bonham's Case was deeply unpopular with the Crown; Coke was removed from the Common Pleas and sent to the King's Bench, theoretically a more senior office (but in practice a less rewarding one) in 1613 due to his work, and in June 1616 suspended from office and ordered to "correct" his case reports. In October 1617 King James I
James I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
demanded Coke explain the reasoning behind Bonham's Case; Coke claimed that "the words of my report do not import any new opinion, but only a relation of such authorities of law, as had been adjudged and resolved in former times, and were cited in the argument of Bonham's case". He refused to admit to any flaws with his writings, and his only corrections were minor typos and rearrangements of the language. If he meant his opinion in this case as an endorsement of judicial review instead of Parliamentary sovereignty, then withdrawal of that endorsement has been inferred from his later writings.
Meaning
The meaning of Coke's decision is debated; it can be construed as marking the supremacy of the common law over Parliament through judicial reviewJudicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
, or simply as being another form of statutory interpretation. Noah Feldman suggested that the dispute over the two meanings has its origins in 1930s America, where frustration over judicial review of elements of the New Deal
New Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...
spilled into the academic world. James Kent
James Kent
James Kent was an American jurist and legal scholar.-Life:...
, in his Commentaries on American Law, argued that Bonham's Case and cases like it only meant that statutes should be given a "reasonable construction". Charles Gray, in the Proceedings of the American Philosophical Society, argues that Coke as a judge never intended to advocate the judicial review of statutes, Bailyn writes that "Coke had not meant...that there were superior principles of right and justice which Acts of Parliament might not contravene...saying that courts might 'void' a legislative provision that violated the constitution he meant only that the courts were to construe statutes so as to bring them into conformity with recognized legal principles".
Raoul Berger, in the University of Pennsylvania Law Review
University of Pennsylvania Law Review
The University of Pennsylvania Law Review is a law review focusing on legal issues, published by an organization of second and third year J.D. students at the University of Pennsylvania Law School. It is the oldest law journal in the United States, having been published continuously since 1852...
, disagrees with this; the words of the statute were clear, and the only application it could have was unjust. Statutory interpretation allows for the ignoring of unjust extraneous meanings, but what Coke did was nullify the statute as a whole, along with its main intention. John V. Orth, writing in the Constitutional Commentary, concurs, saying that "If that were so, why did they not say so? Is it likely that the royal judges, confronting a case involving a statute that had necessarily passed both houses of parliament and received the royal assent, would lightly use the word 'void'?"
Research by Samuel Thomas and Sir John Baker
John Baker (legal historian)
Sir John Hamilton Baker, QC, FBA, FRHistS, FBS is an English legal historian. He has been the Downing Professor of the Laws of England at the University of Cambridge since 1988.-Biography:...
has led to a reassessment. During the early 17th century, non-common law courts were claiming an "Imperial, almost legislative discretion over statutory interpretation, free from any supervisory jurisdiction of the common law courts". Coke's decision can therefore be seen as him reminding those courts that such interpretations were themselves subject to the law, and not down to individual discretion.
Further development
Sir Henry Hobart, 1st Baronet
Sir Henry Hobart, 1st Baronet SL , of Blickling Hall, was an English judge and politician.The son of Thomas Hobart and Audrey Hare, and Great grandson of Sir James Hobart of Monks Eleigh, Suffolk, who served as Attorney General during the reign of King Henry VII.Sir Henry would further this lineal...
, in Day v Savadge and Lord Sheffield v Ratcliffe. After Coke's death, however, his jurisprudence "naturally suffered an eclipse", and the next appearance is in Godden v Hales, in 1686, where the doctrine was twisted to argue that the Crown had the prerogative to dismiss laws of government. Plucknett notes that "the Revolution of 1688
Glorious Revolution
The Glorious Revolution, also called the Revolution of 1688, is the overthrow of King James II of England by a union of English Parliamentarians with the Dutch stadtholder William III of Orange-Nassau...
marks the abandonment of the doctrine of Bonham's Case", but in 1701 the common law judges cited Coke's decision with approval in City of London v Woo, with John Holt concluding that Coke's statement is "a very reasonable and true saying". His position was of treating statutes in the same way as other documents for the purpose of judicial review; this was followed for decades. Outside of the judiciary, John Lilburne
John Lilburne
John Lilburne , also known as Freeborn John, was an English political Leveller before, during and after English Civil Wars 1642-1650. He coined the term "freeborn rights", defining them as rights with which every human being is born, as opposed to rights bestowed by government or human law...
used Bonham's Case in his book The Legall Fundamentall Liberties of the People of England, and later in his 1649 treason trial, to justify his attack on the Rump Parliament
Rump Parliament
The Rump Parliament is the name of the English Parliament after Colonel Pride purged the Long Parliament on 6 December 1648 of those members hostile to the Grandees' intention to try King Charles I for high treason....
.
With the growth of Parliamentary sovereignty
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
as a doctrine, Coke's theory gradually died out; William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
, in the first edition of his Commentaries on the Laws of England
Commentaries on the Laws of England
The Commentaries on the Laws of England are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1769...
, wrote that "if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it: and the examples alleged in support of this sense of the rule do none of them prove, that where the main object of a statute is unreasonable the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government". Parliamentary sovereignty is now upheld by the English judiciary as a "central principle of British constitutionalism", albeit with some issues due to membership in the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
. The case's modern irrelevance is such that Philip Hamburger, writing in 2008, notes that "Bonham's Case scarcely deserves mention in a history of judicial duty, except for reasons that are now largely forgotten".
Impact in America
In the Thirteen ColoniesThirteen Colonies
The Thirteen Colonies were English and later British colonies established on the Atlantic coast of North America between 1607 and 1733. They declared their independence in the American Revolution and formed the United States of America...
, there were instances when Coke's statement was interpreted to mean that the common law was superior to statute. For example, drawing on Coke's statement, James Otis, Jr.
James Otis, Jr.
James Otis, Jr. was a lawyer in colonial Massachusetts, a member of the Massachusetts provincial assembly, and an early advocate of the political views that led to the American Revolution. The phrase "Taxation without Representation is Tyranny" is usually attributed to him...
declared during the struggle over writs of assistance
Writ of Assistance
A writ of assistance is a written order issued by a court instructing a law enforcement official, such as a sheriff, to perform a certain task. Historically, several types of writs have been called "writs of assistance". Most often, a writ of assistance is "used to enforce an order for the...
that it was the duty of the courts to ignore Acts of Parliament "against the constitution and against natural equity", an argument and struggle that had a significant impact on John Adams
John Adams
John Adams was an American lawyer, statesman, diplomat and political theorist. A leading champion of independence in 1776, he was the second President of the United States...
. When the Stamp Act of 1765
Stamp Act 1765
The Stamp Act 1765 was a direct tax imposed by the British Parliament specifically on the colonies of British America. The act required that many printed materials in the colonies be produced on stamped paper produced in London, carrying an embossed revenue stamp...
was declared invalid by the Massachusetts Assembly, the rationale was that it was "against Magna Charta and the natural rights of Englishmen, and therefore, according to the Lord Coke, null and void". By 1772, Otis and others had reversed course, adopting Blackstone's position that judges could not challenge acts of parliament. Even before that point, there were few episodes in which Dr. Bonham's Case was used as a rallying cry in America, and instead judicial review in America grew primarily from other political and intellectual sources.
In Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...
, the American case that forms the basis for the exercise of judicial review in the United States
Judicial review in the United States
Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself....
under Article III
Article Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...
of the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, Chief Justice John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
stated that "the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument". Here, Marshall specifically used the words "void" and "repugnant", which is seen as a deliberate reference to Coke, but Marshall's principle involved repugnancy to the written Constitution instead of repugnancy to reason.
Edward Samuel Corwin
Edward Samuel Corwin
Edward Samuel Corwin was president of the American Political Science Association.-Biography:He was born in Plymouth, Michigan on January 19, 1878. He received his undergraduate degree from the University of Michigan in 1900; and his Ph.D. from the University of Pennsylvania in 1905...
, writing in the Harvard Law Review
Harvard Law Review
The Harvard Law Review is a journal of legal scholarship published by an independent student group at Harvard Law School.-Overview:According to the 2008 Journal Citation Reports, the Review is the most cited law review and has the second-highest impact factor in the category "law" after the...
, praised the idea of a fundamental higher law of reason enforceable by judges, and accordingly endorsed "the ratification which Coke's doctrine received in American constitutional law and theory". Gary McDowell, writing in The Review of Politics, calls this "one of the most enduring myths of American constitutional law and theory, to say nothing of history". As evidence, McDowell points out that Coke and Bonham's Case were never discussed during the Constitutional Convention of 1787. During the ratification conventions, Coke was mentioned, but not in debates over the striking down of unconstitutional statutes. Bonham's Case itself was never brought up, only Coke's other writings. An additional point of view is that the United States Supreme Court has come “full circle to the dictum in Bonham’s Case” by using the Due Process Clause to strike down what the Court deems “unreasonable” legislation.