English Law

Dr. Bonham's Case, 8 Co. Rep. 114 (Court of Common Pleas [1610]), stands for the principle that legislation passed by the English Parliament is sub-ordinate to the common-law decisions made by trial and appellate court judges, and any statute that is contrary to "common right and reason" must be declared void (Thorne 1938).

The decision in this case, which was written by SIR EDWARD COKE sitting as chief justice for the Court of Common Pleas in England, spawned the concept of JUDICIAL REVIEW under which courts of law, as the primary oracles of the COMMON LAW in the British and U.S. systems of justice, are authorized to invalidate laws enacted by the executive and legislative branches of government. The power of judicial review, which was first recognized by the U.S. Supreme Court in MARBURY V. MADISON, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60, is invoked by courts every day across the United States but has since been rendered obsolete in England.

Bonham's Case arose from a dispute regarding the unlicensed practice of medicine. Dr. Thomas Bonham had received a degree in physic medicine from the University of Cambridge. In 1606, Bonham was discovered practicing such medicine in London without a license, and was summoned to appear before the censors at the London College of Physicians, who maintained jurisdiction in that city over the practice of medicine.

Bonham was examined by the college censors in a number of areas regarding his professional practice, and provided answers "less aptly and insufficiently in the art of physic" (Stoner 1992, 49). As a result, Bonham was determined unfit to practice medicine in this field, and was ordered to desist from such practice in London. When Bonham was later discovered flouting this order, he was arrested and placed in the custody of the censors.

Bonham refused to undergo further examination. As a graduate of Cambridge, he asserted that the London College of Physicians had no jurisdiction over him and thus possessed no authority to arrest or fine him. Promising to continue his practice of physic medicine if released, Bonham was immediately jailed.

The case came before the Court of Common Pleas when Bonham claimed that his continued detention by the college amounted to FALSE IMPRISONMENT. As a defense, the college relied on its statute of incorporation, which authorized it to regulate all physicians in London and to punish practitioners not licensed by the college. The statute also entitled the college to one-half of all the fines imposed by it.

The Honorable Justice Coke, also a Cambridge graduate, sided with his fellow alumnus. After singing the praises of their alma mater, Coke argued that because the college censors were entitled to receive a portion of the fine they imposed on Bonham, the statute made them prosecutor, plaintiff, and judge in the dispute: "The censors cannot be judges, ministers and parties; judges … give sentence or judgment; ministers … make summons; and parties … have moiety [half] of the FORFEITURE, because no person may be a judge in his own cause … and one cannot be judge and attorney for any of the parties." Coke suggested that the impartiality of a judge is compromised when the judge is also the plaintiff who will benefit financially from any fines imposed on the defendant, or the prosecutor who is the advocate responsible for seeking such fines. Although the parliamentary statute in question clearly contemplated that London College would wear all three of these hats, Coke observed,

[I]t appears in our books, that in many cases, the common law will controul 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 controul it, and adjudge such Act to be void.

Coke placed the judiciary in the middle of what was becoming a titanic struggle for power between Parliament and the ruler of England. Until the seventeenth century, the English monarchy enjoyed nearly absolute power over all political and legal matters that concerned the country as a whole. Despite the growing popularity and importance of Parliament during the fifteenth and sixteenth centuries, the monarchy's autocratic power, which King James I (1603–25) asserted was divine in origin, included the prerogative to enact laws without parliamentary consent.

By the close of the seventeenth century, however, the pendulum of power had swung in favor of Parliament. The Glorious Revolution of 1688 subordinated the power of the English Crown and judiciary to parliamentary sovereignty. In 1765, English jurist SIR WILLIAM BLACKSTONE described "the power of Parliament" to make laws in England as "absolute," "despotic," and "without control."

The American Revolution, which began eleven years after Blackstone's pronouncement of Parliament's unfettered power, was commenced in response to the coercive legislation passed in the colonies by what had become a despotic Parliament. THOMAS JEFFERSON, JAMES MADISON, and their contemporaries believed that a legislative despot was no better than a monarchical despot. In 1787, the U.S. Constitution established the judiciary as a check on the legislative and executive branches of government, a check that was foreshadowed by Coke's opinion in Bonham's Case.

James I was cognizant of the dangers Bonham's Case presented to his claims of divine royal prerogative. The king understood that the "common law," which Bonham's Case said controlled acts of Parliament, was really just a decision made by a court of law, or, more particularly, by a judge or panel of judges. James also understood that if the judiciary were allowed to assert the power to review acts of Parliament, it was only a short step away from passing judgment on actions taken by the Crown.

Accordingly, King James removed Coke from the Court of Common Pleas in 1613, appointing him chief justice of the King's Bench. This constituted a promotion in name only, since Coke was now under closer scrutiny by the Crown.

Much to the Crown's chagrin, Coke's replacement on the Court of Common Pleas, Sir Henry Hobart, expanded the concept of judicial review intimated by Bonham's Case. In Day v. Savadge, Hob. 84 (K.B. 1614), Hobart declared that "an act of parliament made against natural EQUITY, as to make a man judge in his own cause, is void in itself" (as quoted in American General Insurance Co. v. FTC, 589 F.2d 462 [9th Cir. 1979]). Where did the new chief justice derive the court's power to invalidate the laws of Parliament? Hobart said, "[B]y that liberty and authority that judges have over laws, especially … statute laws, according to reason and best convenience, to mould them to the truest and best use" (Sheffield v. Ratcliff, Hob. (K.B. 1615), as quoted in Plucknett 1926, 50).

Exasperated by such further attempts to limit his prerogative, James I dismissed Coke from the King's Bench, and ordered him to "correct" his decision in Bonham's Case, which had subsequently been published in England's case law reporter known as The Reports. Coke refused to accede to the king's demands.

The importance of Coke's opinion in Bonham's Case is sometimes downplayed by some scholars who point to England's later recognition of Parliament as the country's supreme sovereign entity. However, this criticism overlooks the indelible imprint left by Bonham's Case on U.S. law.

The American colonists were intimately familiar with the writings of Lord Coke. Coke's Reports first came to America on the Mayflower, and the Massachusetts General Court ordered two complete sets from England in 1647. Coke's opinion in Bonham's Case was among his most popular writings.

In Paxton's Case of the Writ of Assistance, Quincy 51 (Mass. 1761), colonist JAMES OTIS challenged Massachusetts's authority to issue writs of assistance, general search warrants that empowered local sheriffs to enter private homes and businesses to seize smuggled goods. Otis told the colonial court that he objected to such writs, which were created by a parliamentary act in 1662, because they violated the principle of Bonham's Case: "As to acts of parliament, an act against the Constitution is void. An act against natural equity is void; and if an act of parliament should be made in the very words of this petition, it would be void. The Executive Courts must pass such acts into disuse."

JOHN ADAMS, who was in the Boston courtroom where Otis made his argument for the colonial application of Bonham's Case, later exclaimed, "Then and there the child Independence was born." Adams might also have exclaimed that the seeds of judicial review had been planted in the American colonies by Otis, who was unequivocally assigning to "Executive Courts" the responsibility of invalidating parliamentary legislation that violated constitutional precepts.

Four years later, the colonies again relied on the principle of Bonham's Case, this time in their opposition to the STAMP ACT, a parliamentary statute that taxed everything from newspapers to playing cards. Thomas Hutchinson, lieutenant governor of Massachusetts, encouraged the "friends of liberty" and opponents of the Stamp Act to "take advantage of the MAXIM they find in Lord Coke that an act of parliament against Magna Carta or the peculiar rights of Englishmen is ipso facto void."

In 1786, the Superior Court of Rhode Island relied on Bonham's Case to strike down a statute that denied the right to trial by jury for certain crimes, because "Lord Coke" held that such statutes were "repugnant and impossible" (Trevett v. Weeden [Newport Super. Ct. Judicature], as quoted in Plucknett 1926, 66).

The U.S. acceptance of the legal principles enunciated in Bonham's Case culminated in 1803 when the U.S. Supreme Court handed down its decision in Marbury, which established the power of judicial review by authorizing federal judges to invalidate unconstitutional laws enacted by the coordinate branches of government. Nowhere in Marbury does the Supreme Court cite Bonham's Case or expressly quote Lord Coke. But the influence of both Coke and his opinion cannot be missed.

Chief Justice JOHN MARSHALL, writing for a unanimous Court, began his opinion in Marbury with two premises: the "constitution controls any legislative act repugnant to it," and "an act of the legislature repugnant to the constitution is void." Congress cannot be entrusted to determine the constitutionality of legislation passed by the House and Senate, Marshall implied, for the same reason the London College censors could not be allowed to judge their own cause.

"To what purpose are the powers [of Congress] limited" by the federal Constitution, Marshall asked, "if these limits may, at any time, be passed by those intended to be restrained?" In a passage that harkens back to Chief Justice Hobart's opinion in Sheffield v. Ratcliff, Marshall concluded that only the judicial branch of government can be entrusted with such an overreaching power: "It is emphatically the duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret the rule. If two laws conflict with each other, the court must decide on the operation of each."

Although Chief Justice Marshall's opinion in Marbury extended to the United States the principles of judicial review first intimated in Bonham's Case, judges, lawyers, and laypersons still debate the legitimacy of allowing unelected (appointed) judges to invalidate legislation enacted by representative institutions in a democratic country.