Dr. Bonham's Case
|Dr. Bonham's Case|
|Court||Court of Common Pleas|
|Full case name||Thomas Bonham v College of Physicians|
|Date decided||Winter 1610|
|Citation(s)||8 Co. Rep. 107
77 Eng. Rep. 638
|Judge(s) sitting||Coke CJ
|Coke CJ (Daniel and Warburton assenting)
Walmisley J (Foster assenting)
|Parliamentary sovereignty, judicial review|
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 said that "in many cases, the common law will control Acts of Parliament", and explained why he thought so. 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. This statement by Coke is sometimes considered obiter dicta, rather than part of the rationale of the case.
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 accepted judicial doctrine in the legal system of England and Wales. Bonham's Case was met with mixed reactions 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 in 1803 formed the basis for the exercise of judicial review in the United States under Article III of the Constitution, used the words "void" and "repugnant", although Marbury's usage was somewhat different from Coke's usage. Academics have argued that Coke's work in Bonham's Case forms the basis of judicial review 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:
It is the office of a King to survey his subjects, and he is a physician to cure their maladies, and to remove leprosies amongst them, and also to remove all fumes and smells, which may offend or be prejudicial to their health...and so if a man be not right in his wits, the King is to have the protection and government of him, lest he being infirm, waste or consume his lands or goods; and it is not sufficient for him that his subjects live, but that they should live happily; and [he] discharges not his office, if his subjects live a life, but [only] if they live and flourish; and he hath cure as well of their bodies as of their lands and goods for health for the body is as necessary as virtue to the mind.
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:
One cannot be Judge and attorney for any of the parties... And it appears in our books, 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; and, therefore in … Thomas Tregor's case…Herle saith, some statutes are made against law and right, which those who made them perceiving would not put them in execution.
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.
The decision in Bonham's Case has been described by John Campbell (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 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.
The meaning of Coke's decision is debated; it can be construed as marking the supremacy of the common law over Parliament through judicial review, 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".
Impact in America
In the Thirteen Colonies, 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 (1803), 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 has been characterised as a deliberate reference to Coke, but Marshall's principle involved repugnancy to the written Constitution instead of repugnancy to reason. In the later case of Hurtado v. California (1884), the U. S. Supreme Court discussed Bonham's Case specifically, saying that it had not affected the omnipotence of parliament over the common law.
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.
- Pollard (2007) p.51
- Edlin (2008) p.7
- Martin (2007) p.42
- Schwartz (1968) p. 50
- Orth (1999) p.37
- Allott (1990) p.379
- Hamburger (2008) p.278
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- Cook (2004) p.140
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- Y. B. Pasch. 8 Edw. III, 26
- Plucknett (2004) p.153
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- Plucknett (2004) p.155
- Plucknett (2004) p.156
- Plucknett (2004) p.157
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- Plucknett (2004) p.163
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- Plucknett (2004) p.171
- 12 Mod. 669 (1701)
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Full text of the case, via "The Online Library of Liberty."