The School of Law and Justice at the University of Southern Queensland will be hosting the Theology and Jurisprudence Symposium at the Toowoomba Campus on Friday 9 February 2024.
Theme
This annual symposium focuses on the relationship between theology and jurisprudence. Jurisprudence typically purports to provide a non-theistic account of ‘law’. However, foundational to many theories of law is some kind of theology.
Natural law, of course, is deeply influenced by its theological articulation through Thomas Aquinas and even modern ‘secular’ theories of natural law retain vestiges of this influence. The main proponents of legal positivism (such as Thomas Hobbes and John Austin) often engaged with different aspects of Christian theology.
Altarpiece in Ascoli Piceno, Italy, by Carlo Crivelli (15th century)Portrait of John Calvin (1509–1564) / PDLaw Professor John Finnis..Photo by Matt Cashore/University of Notre Dame
Moreover, theological influences on legal theory are not limited to Christianity; jurisprudential viewpoints around the world have been shaped by a broad range of theological traditions. The tendency of jurisprudence to ground itself in some kind of theology is not surprising given its need for an ontological foundation for legal authority.
This symposium aims to consider jurisprudence from a variety of theological standpoints and critically examine the reliance of diverse theories of law on theological perspectives.
Call for Papers
We invite papers that consider the prevailing theological assumptions of legal theories; unpack the different streams of jurisprudence from a theological perspective; explore how theology tends to define and undergird theories of law; or consider any other issues which engage both theology and jurisprudence.
Presenters are required to submit written papers (which can be works-in-progress) for distribution to the other symposium participants by 1 February 2024. The finalised papers may be considered for publication in a special journal issue or edited book.
Submissions
Abstracts of 100–200 words should be submitted by email to Professor Jonathan Crowe (Jonathan.Crowe@unisq.edu.au) no later than 1 November 2023. Successful applicants will be notified by the end of November.
At the end of last year, I was fortunate to have an article titled ‘Could existing anticruelty laws ban whip use in horse racing?’ published in the Adelaide Law Review. More recently, I was interviewed on the Adelaide Law Review podcast, where we discussed some of my article’s background and broader implications.
Adelaide Law Review podcast
The article aimed to investigate whether industry-compliant whip use in horse racing breaches existing animal cruelty laws.
This question has been of interest to me for some time and was one of the reasons I decided to do a PhD. My PhD ultimately took a different path, but I could not find a satisfactory answer to this question during my reading in animal law/animal protection scholarship. I know, for example, that if I whipped my dog Lucy (sorry, Lucy!) to make her run faster, I could (and would likely) be prosecuted by the RSPCA.
So why aren’t jockeys in a horse race prosecuted?
There are many ways to answer this question, from the philosophical (as property, animal interests are not recognised by the legal system) to the more practical.
I took the latter approach. There is, however, no reported case (that I found) involving whipping a horse during a horse race that was compliant with industry standards. Because there is no case law ruling whether industry-compliant whip use was animal cruelty, I turned to principles of statutory interpretation.
By ‘industry-compliant’ whip use, I refer to the Australian Rules of Racing and the Local Rules of Racing, which permit using so-called ‘padded whips’ within specific parameters. So, I acknowledge that if a jockey was to whip a horse in the stables, then there is a good chance that the RSPCA might prosecute — whether the RSPCA would is the subject of another article.
But, my article seeks to answer whether a jockey could be prosecuted for animal cruelty for whipping a horse in compliance with the Rules of Racing.
Using the ‘always speaking’ approach to statutory interpretation, I argue that it is theoretically possible for a court to interpret the words of qualification in the animal cruelty provisions as extending to industry-compliant whip use based on new scientific evidence that horse skin is more sensitive than previously believed.
So, why hasn’t there been a prosecution for industry-compliant whip use? As I cite in the article, recent scientific evidence debunks the myth that horses’ skin is thicker than humans. Instead, the evidence suggests that from an anatomical perspective, horses’ skin is just as sensitive, if not possibly more sensitive, than human skin.
I argue that three constitutional and contextual considerations will likely sway a court in considering whether industry-compliant whip use could constitute animal cruelty.
Consequences of interpretation
This means that courts may consider the consequences of a particular statutory interpretation before adopting a specific meaning. For example, this was done by the High Court of Australia in Project Blue Sky. The majority found that ‘[e]xpense, inconvenience and loss of investor confidence’ would flow from a particular interpretation. Based on these potential consequences, the majority decided to take an interpretation that avoided the adverse effects identified.
Presumption against retrospectivity
It is presumed that legislation won’t operate retrospectively unless there are clear words to this effect.
This is for excellent reasons — it offends people’s sense of fairness if they did something that was lawful at the time but later determined to be unlawful.
This is what I think could be at issue if a court was to interpret the words of qualification in the way I previously put forward — basically, a jockey would be whipping their horse on the widespread belief that this is legal (providing they are doing so per the rules of racing).
Generally, where there is an alternative interpretation open to the court that does not involve retrospectivity, the court will take it — especially in criminal law matters, of which the animal welfare legislation is classified.
Separation of powers
While the common law is an important and valuable source of law, deciding on the lawfulness of an activity is the proper responsibility of a democratically accountable Parliament. It would therefore breach the separation of powers in the Constitution if Courts decided questions of whether certain activities (previously thought to be lawful) should now be unlawful — especially controversial activities such as the whipping of horses for entertainment.
I believe these three considerations explain why we haven’t and are unlikely to see a prosecution for industry-compliant whip use despite the research suggesting padded whips cause horses pain, possibly significant pain.
This does not suggest that the judiciary cannot use the ‘always speaking’ approach to extend existing statutory words and phrases in legislation. But, whether industry-compliant whip use breaches animal cruelty laws, this would require a level of judicial activism that is very unlikely until more people in society change their relationship with animals. And by that time, the Parliament would have probably changed the laws.
You can read the full article here. I hope you find it interesting and thought-provoking.
ByDr Jeremy Patrick, Senior Lecturer, University of Southern Queensland
In the past two decades, many Australian universities have made dramatic shifts in how they recognise research. Often, these shifts are in direct response to government incentives. There have been periods where the sheer quantity of peer-reviewed research was the goal, periods where only ‘Q1’ publications were deemed valuable, periods where ‘impact and engagement’ looked to be the next big thing, and more. Most recently, the only thing that really seems to matter is research income—grants. Any academic discipline within a university that can’t show major grant income could be punished by mediocre (or worse) ratings in ERA rankings, leading many universities to respond by explicitly building research income into the evaluation of individual academics when it comes to matters like promotion and workload allocation for research.
It may be plausible to argue that this focus on research income is warranted for the sciences. Cutting-edge research in medicine, physics, agriculture, engineering, and related fields isn’t done well on the cheap. In a field where a single piece of laboratory equipment could cost hundreds of thousands or even millions of dollars, every dollar that comes into a university via external research income helps build capacity for future research success.
But—at least for now—universities are more than just STEM research institutes. The humanities have been poorly served by this new worship of grant success as the be all and end all of what makes a good researcher. At my university, a former research director once remarked: ‘It’s not like anyone does research sitting in their office anymore.’ He had a science background, and I can’t comment on whether or not that’s true in STEM. But for the humanities, I can attest that many of us do perform most of our research sitting behind a desk. In law, the doctrinal methodology of synthesising case law and evaluating legal rules is still foremost in the discipline’s legal journals. A literature scholar looking at portrayals of gender in the works of EM Forster or a political scientist labouring over census data to analyse voting patterns also (probably) don’t need hundreds of thousands of dollars in grant income in order to do good work and publish in the best outlets.
The distorting effect comes when universities adopt a ‘one size fits all’ approach and evaluate scholars in the humanities by exactly the same criteria that it evaluates scholars in the sciences. Although grants do exist in the humanities, they do so at only fraction of the number and dollar value available for the sciences. More so, many particular disciplines in the humanities have a very different approach to scholarship than the sciences: we don’t usually put fifteen names on a five-page article, track prestige by citation count, ‘partner with industry,’ or join established research teams as doctoral students. There is a fundamental difference in kind that needs to be recognised, and policies that fail to do so (for administrative simplicity or a false equality) are deeply problematic.
Grant worship has a more fundamental flaw, however. Universities have begun to lose sight of what grants are: a means to an end. Grants are an input, not an output. The ability to wheedle money out of the ARC or some corporation is certainly a skill, but it’s not necessarily the same skillset of what we traditionally value in scholars—the ability to contribute to knowledge.In the past several years, we’ve begun to value the mere obtaining of money for research far more than the actual research itself. We’ve gotten to the point, even in the humanities, where winning a grant to write a book is celebrated (and rewarded internally) far more than the actual writing and publishing of the book. And those scholars who publish regularly without having to resort to grant money? They are, by (new) definition, simply not very good researchers—despite their output constituting the vast majority of total research output. The incentive now is to apply for grants just for the sake of getting the prestige of getting the grant, regardless of whether or not the money is actually necessary or the project is one that the academic is genuinely interested in. And, of course, for the humanities there are so few grant opportunities that all the futile time invested in making repeated applications could probably have been better spent doing actual research.
In this new world for the humanities, ‘publish or perish’ has become ‘fund-raise or perish.’ Though, to be fair, ‘perish’ probably just means being ‘punished’ by additional teaching loads instead of research time, along with a permanent relegation to the bottom ranks of the academic ladder. It still beats digging ditches, of course. But universities need to have a more realistic view of what scholars in the humanities do, and how unrealistic it is to expect more than a handful of us to win significant research income.
The Law, Religion, and Heritage Research Program Team of the University of Southern Queensland is hosting a scholarly colloquium on Religious Freedom, Sexuality and Gender Identity.
Symbol of religious tolerance in Hamm, Germany
Recent events, including the introduction of the Human Rights Amendment Bill 2022, have placed the interaction between sexuality, gender and religious belief at the centre of public attention.
The debate surrounding this measure takes place within a broader conversation on acceptance of LGBTIQA+ communities, religious freedom, and the role of discrimination law in our society.
Date: Friday 28 October 2022
Venue: USQ Toowoomba Campus | Q Block | Q501 and Q502 (While physical attendance is warmly encouraged, a Zoom option will be available.)
Keynote Speakers: Professor Patrick Parkinson and Professor Anthony Gray
Invitation: At the colloquium, academics are invited to provide scholarly presentations that address the intersection of sexuality, gender identity, and religious belief in a legal context.
What is required to participate? Presentations should be 15-20 minutes in duration, with time for questions to follow. Presentations must be supported by a completed paper or work-in-progress suitable for distribution to other participants. The opportunity to contribute to a special issue of the Australian Journal of Law and Religion may become available after the colloquium.
Are you interested in contributing? Please register your interest in presenting at the colloquium by contacting Dr Jeremy Patrick: jeremy.patrick@unisq.edu.au
Date: Friday 28 October 2022
Venue: USQ Toowoomba Campus | Q Block | Q501 and Q502 (While physical attendance is warmly encouraged, a Zoom option will be available.)
Keynote Speakers: Professor Patrick Parkinson and Professor Anthony Gray
Invitation: At the colloquium, academics are invited to provide scholarly presentations that address the intersection of sexuality, gender identity, and religious belief in a legal context.
What is required to participate? Presentations should be 15-20 minutes in duration, with time for questions to follow. Presentations must be supported by a completed paper or work-in-progress suitable for distribution to other participants. The opportunity to contribute to a special issue of the Australian Journal of Law and Religion may become available after the colloquium.
Are you interested in contributing? Please register your interest in presenting at the colloquium by contacting Dr Jeremy Patrick: jeremy.patrick@unisq.edu.au
Please include a CV and a brief abstract of the planned paper (100–250 words).
You should submit your expressions of interest by 28 August 2022.
The University of Southern Queensland is committed to the values of diversity, multiculturalism, and gender equity by fostering an inclusive environment that embraces difference and supports, values, and respects the unique perspectives and approaches of all individuals. Please visit https://www.unisq.edu.au/about-unisq/values-culture/diversity-inclusion for more information.
Alex Proimos from Sydney, Australia, CC BY 2.0 https://creativecommons.org/licenses/by/2.0, via Wikimedia Commons
It has become textbook wisdom that the High Court of Australia makes its decisions in an extremely technical and (for lack of a better word) ‘legalistic’ way.[1] This is true not only in areas of law where such a method of decision-making would seem natural, such as tax, but also in areas where it may seem surprising—such as constitutional law. A ‘strict and complete legalism’ (in Dixon CJ’s famous words)[2] means decisions should be made purely by neutral, objective application of legal principles. Anything else—policy considerations, personal views, broader ramifications, empathy for the persons affected, and so forth—must be excluded. Under a legalist model of judicial decision-making, judges are just like referees at a rugby match—they objectively determine whether a try has scored or not.
However, there is another theory of jurisprudence that presents a diametrically opposed explanation for how judges make decisions: legal realism. If legalism posits that judges apply rules to reach a result, legal realism says the opposite actually takes place, as judges first reach the result they like and then rhetorically justify those results by reference to rules. For appellate courts (like the High Court), legal realism argues that there is simply a nearly inexhaustible array of different rules, conventions, precedents, distinctions, discretions, and ambiguous standards (‘reasonable’ or ‘proportionate’) that allow for almost any outcome to be plausibly justified as ‘what the law requires’.
This is not to say that judges are cynical liars deceiving the public; judges acting in good faith with the very best of intentions will still find any of their pre-existing inclinations ‘validated’ by a review of the authorities—at least if they look hard enough.
Legal formalism or realism?
It is clear that there is a clash between irreconcilable theories of judicial decision-making. The legalistic, positivist view publicly embraced time and again by members of the High Court is that their decisions are based on rules: rules entrenched in the Constitution by the framers, rules proclaimed in statute by Parliament, and rules carefully crafted over decades by previous courts (precedent).
The critical realist view is that the ‘rules’ (and the ‘facts’ that they’re applied to) are so inherently manipulable that nearly any result can be announced and made to look plausible. Thus, a realist view of High Court decision-making would posit that other factors drive actual results. These factors might involve the personal moral and political views of the judges and their background characteristics, an implicit deference to public opinion, a reluctance to disturb established institutions and the status quo, and many more. At an abstract level, no resolution between the competing theories is possible unless one is shown to be logically self-contradictory—and neither has been.
Empirical study
However, the use of empirical data can be valuable in lending credence or doubt to an abstract theory. A recent research project conducted by the author tested the realist model of judicial decision-making by positing a particular non-rules-based factor that could drive decisions in constitutional cases.
Hypothesis
The hypothesis tested was whether a single factor (whether or not the Commonwealth is a party) was enough, standing alone, to reliably predict the outcome of a constitutional law case in Australia.
If the hypothesis was found to be validated, that could be an important indicator that the elaborate doctrinal structure of Australian constitutional law has little actual impact on decisions. Instead of ‘the rule of law’, the primary tenet of constitutional law could become ‘the Commonwealth (almost) always wins’.
On the other hand, if the hypothesis failed substantially, that could indicate that perhaps more weight should be given to the legalist view that neutral rules, objectively applied, determine outcomes.
Dataset
The research looked at all High Court cases from the years 2000 to 2020 (inclusive). Through a set of objective binary decisions, this set of cases was narrowed by excluding:
Cases that did not have a constitutional element; and
From what remained any cases in which the Commonwealth was not a party.
The final set of cases which involved constitutional law and which the Commonwealth was a party was then examined to decide whether the Commonwealth prevailed.
Results
The research finding was that the Commonwealth prevailed in 79 per cent of these cases.
If this finding is correct and validated with subsequent empirical research, the fact that the Commonwealth wins four out of every five constitutional cases requires explanation.
The results obviously are not the result of mere random chance, which could only exist if the outcome was closer to 50-50.
Potential explanations
Nonetheless, correlation is not causation, and multiple ways to account for the observed effect exist.
Lawyer quality
One initially plausible explanation for the disparity in results is that parties litigating against the Commonwealth are simply finding themselves out-lawyered by the expert lawyers and experienced advocates in the Solicitor-General’s office. However, State governments also maintain experienced experts in constitutional law, and the High Court bar in this area is a small but select group of ‘repeat player’ barristers.
Resources
Another explanation that might be proffered is that the Commonwealth has (quite literally) unmatchable financial resources for litigation—could it just be outlasting its adversaries? This explanation might make sense in some types of cases in other areas (such as environmental law), but constitutional law cases are generally decided on agreed statements of facts and by parties with sufficient resources to stay the course.
The Constitution
Perhaps the Commonwealth usually wins just because that’s how the Constitution was drafted? Although there were clear defects in the drafting of the Australian Constitution, it is clear that it was intended and structured to create a federal system in which the national government had a limited set of enumerated powers—the dramatic growth of Commonwealth legislative and executive power at the expense of the states over the past century was certainly not by design. Interpreting powers broadly and limitations narrowly was not an inevitable outcome but a deliberate choice by the High Court, and it is begging the question to explain that the Commonwealth usually wins High Court cases by stating that is due to the Commonwealth having usually won High Court cases.
Legal realism
A legal realist explanation for the empirical observation that the Commonwealth wins four out of every five constitutional law cases would likely centre around the most common characteristics of the members of the High Court. There is no national merits selection test to become a High Court justice; appointment is purely at the discretion of the Commonwealth executive.
Historically, and still today, most individuals appointed to the High Court are white, from upper middle-class backgrounds, attended a prestigious (usually private) high school in a capital city, attended a Group of Eight university, and then went onto a successful career in private legal practice for a well-connected law firm.[3] Not every member of the High Court has held each of these typical characteristics, of course, but enough have that the members tend to share a general worldview and set of personal values that are inevitably reflected in the decisions they reach.
The argument would be that High Court justices are, by virtue of their background and selection, establishmentarian institutionalists. They have found enormous personal and career success working within the establishment, believe they have reached their present position through merit, and are acculturated to a conservative institution known for its preservation of tradition and the status quo. High Court justices would probably not have been selected for the position if they were openly sceptical of the ever-expanding scope of Commonwealth legislative and executive power, repeatedly found against the Commonwealth as a lower court judge, or were perceived by the executive as a (potentially hostile) ‘outsider’ to the system—whatever their ‘merit’ as a lawyer, legal scholar, or judge.
In essence, to become a High Court justice means having been well-liked and well-regarded within a particular system, with the unsurprising result that one usually supports that system against constitutional attack from outside. Building on the legalist analogy, if judges are mere referees, they are referees chosen solely at the discretion of a single team in the league, and we perhaps therefore should not be surprised that their on-the-field rulings tend to favour that team.
Implications
If legal realism as an explanatory theory better explains and predicts High Court decision-making in constitutional cases, this has major implications for how we teach about the constitution in law schools, how we advise clients on the likelihood of success or failure in contemplated claims, and how we theorise the importance (or lack thereof) of the elaborate doctrinal framework of constitutional law. Perhaps, if nothing else, we should learn that understanding the formal rules of the game may be of little benefit in predicting who will ultimately win it.
This post contained extracts from the full version of Jeremy’s research, which can be found on the Social Science Research Network.
[1] See, eg, George Williams et al, Blackshield and Williams Australian Constitutional Law and Theory: Commentary and Materials (Federation Press, 7th ed, 2018) 170 (describing the ‘triumph of legalism’ in High Court jurisprudence ever since the Engineers’ Case).
[2] Owen Dixon, ‘Address upon taking the oath of office in Sydney as Chief Justice of the High Court of Australia on 21st April’ (1952) 85 CLR xi.
[3] See, eg, Harry Hobbs, ‘Finding a Fair Reflection on the High Court of Australia’ (2015) 40(1) Alternative Law Journal 13.
The Philippine Political Science Association and International Society for Military Law and the Law of War (supported by the European Research Group on Military and Society) are hosting a Zoom webinar on Monday 8 November 2021 at 10 AM Central European Time (5 PM Taipei Time, 6 PM Tokyo Time).
This webinar will focus on legal regimes in the Asia-Pacific region that support the deployment of armed forces for domestic purposes (military call-out powers), such as natural disasters and counter-terrorist activities. Domestic deployment of the military raises a number of legal, policy and human rights issues, topics which will be discussed by experienced civil and military participants from Australia, Indonesia, Japan, Philippines, and Thailand. USQ School of Law and Justice academic, Professor Pauline Collins, is a confirmed speaker.
Further information and registration details are in the flyer below. Closer to the date of the webinar, another flyer will be available with all the confirmed speakers.
Unsurprisingly, Australia’s array of civil and institutional rights has been inherited largely from our English legacy. The same goes for many common law jurisdictions and Western democracies around the world. As ever, the history is complex but interesting.
The 1686 case of Godden v Hales has played a pivotal role in the development of many privileges enjoyed by citizens of western democracies today. To understand the origins of the case, we must consider the power struggles between the autocratic-ruling early Stuart monarchs and their respective Parliaments. These frictions took place in the context of broader religious conflict and came to a head with a constitutional crisis.
Godden v Hales focused on the central contention of this crisis: who has supremacy between the Crown and the Parliament? Its finding in favour of the Crown and subsequent continuance of autocratic rule led to the Glorious Revolution. Through this event, the English Bill of Rights was created, from which our modern systems of government are derived.
Relevance to the Modern Period
In modern Australia, we enjoy many privileges which are taken for granted. The concepts of ‘rule of law’ and ‘separation of powers’ mean very little to the lay person but have an enormous impact on the rights of citizens. For example, parliamentary privilege enables the Australian Parliament to serve its citizens and carry out its functions unhindered by the threat of legal intervention.[1]
These principles, among others, are rooted in the English Bill of Rights 1689. This Bill was the first of its kind and a precursor to the celebrated Bill of Rights 1789 of the United States and has shaped many similar pieces of legislation around the world.[2] It is the foundation of the institutions which prevent autocratic rule in modern democracies.
Unlike most other liberal democracies, Australia does not have its own Bill of Rights, but the original English statute remains in force in Queensland through the Imperial Acts Interpretation Act 1984 (Qld) and other States through similar respective legislation.[3] These principles are widespread today, but how did they come to be? And how does Godden v Hales come into it?
Historical Context
Before we delve into the issues of the case which have asserted its place in the history of common law, let us understand the world in which it took place. In England and its peripheries, the seventeenth century was beset with instances of families, factions, monarchies and legal and religious institutions vying for power. Many of these struggles were part of — if not centred on — the tension between the Catholic and Anglican Churches with roots dating back to the Reformation under Henry VIII.[4] This religious tension often contributed to the power struggles between the Parliament and the King which plagued the reigns of the early Stuart monarchs throughout the seventeenth century.
James I and Charles I (1603–1649)
James I and Charles I believed in the divine right of Kings and often clashed with England’s Parliament, which asserted its power in governance much more forcefully than in Scotland, where James was used to ruling. Accordingly, these monarchs seldom summoned the Parliament, except when they desperately needed it to grant funds, which were often not provided.
By this time, England was very much a Protestant kingdom and Charles’ marriage to a Catholic French princess caused controversy.[5] This, along with his autocratic use of prerogative powers to obtain finances, unsuccessful military campaigns and attempt to control religious practices throughout the Kingdoms, precipitated the English Civil War fought between Parliamentarians and Royalists.
The Wars of the Three Kingdoms, which included the English Civil War culminated in Parliamentarian victory, the trial and execution of Charles I, the overhaul of the monarchy and establishment of the Commonwealth of England. This system soon failed however and Charles II (son of Charles I) was reinstated on the throne, agreeing to work in cooperation with the new Parliament.[6]
Charles II and James II (1660-1688)
Portrait of Charles II and James II
Charles II was a more diplomatic ruler who intended to implement religious tolerance, but the new Royalist Parliament was intent on suppressing Catholics and punishing Puritans (who fought against the Royalists in the civil war and were in power during the Interregnum).[7] It passed a series of statutes aimed at suppressing Catholics and non-conformist Protestants, called the Clarendon Code.
Though Charles II attempted to eschew Parliament’s strict measures, pressure from the Parliament and conservative Anglicans was too great. The Parliament implemented the Test Acts of 1673 and 1678 which excluded Catholics and Recusants from public office, including military officers and members of Parliament.[8]
Around this time, there was increasing paranoia towards Roman Catholicism. Events of the previous century set fear into the minds of English Protestants, including the punitive anti-Protestant reign of Mary I, the St Bartholomew’s Day Massacre in France, the Spanish Armada attack, the Gunpowder Plot and the Irish Rebellion of 1641.[9] Anyone seen to have links to Catholicism was viewed with suspicion.
This somewhat overshadowed Charles II throughout his reign for several reasons: his views on religious tolerance, having a Catholic mother, and having spent 12 years in exile in Spain and France. It is even suggested that he secretly negotiated with King Louis XIV of France to receive annual payments in exchange for eventually converting to Catholicism![10] This was nothing compared to the next King however — his brother James II.
Now, one would tend to think that, having been witness to his father’s overthrow and destruction on account of his clashes with Parliament, James II might have done more to acquiesce to the Lords who reinstalled his family on the throne. This was not the case. As young heirs to great monarchies tend to do, he felt entitled to do as he pleased, learning little from the problems of his father’s reign and even exacerbating them on his own.
Charles II may have been a ‘closet Catholic’ but James II openly converted to Catholicism, disregarding the affront caused to the Church of England and largely Protestant population.[11] He was an abrasive absolutist who made no apology for the actions he took, including re-establishing the Court of Ecclesiastical Commission.[12]
In 1685, an unsuccessful attempt at usurping the throne by his Protestant nephew, the Duke of Monmouth (the illegitimate son of Charles II) saw James II assemble forces and appoint Catholic officers within his army, overriding the Test Acts in the process. The Rebellion was quickly quashed and the subsequent Bloody Assizes, overseen by Baron Jeffreys, set an example for what any prospective traitors could expect.
Despite the threat having ceased, James II declared that he would not dissolve his army and, furthermore, that he would not dismiss his Catholic officers, despite Parliament’s requests for him to do so.[13] The King deemed that he held the power to dispense with a law in individual cases and even suspend them altogether. This issue was argued in the case of Godden v Hales.
Godden v Hales (1686)
Sir Edward Hales was one of the Catholic officers who was commissioned by the King to fight the Monmouth Rebellion. His footman, Arthur Godden, brought an action against Hales in the King’s Bench on the authority of the Test Acts, motivated by the reward of £500 to informers.[14] The case took place in 1686 and was presided over by: Sir Edward Herbert, Chief Justice; Sir Francis Wythens, Justice; Sir Richard Holloway, Justice; Sir Robert Wright, Justice; Sir Robert Sawyer, Attorney General; and Sir Thomas Powis, Solicitor General.[15]
The First Test Act stated that ‘[A]ll that do refuse to take the said oaths and sacrament in the said courts and places … shall be ipso facto adjudged incapable and disabled in law … to have … the same office or offices.’[16] Hales argued that the colonelcy was granted to him by a royal warrant ‘dispensing [him] from taking the Oaths of Allegiance and Supremacy etc. required by various Acts of Parliament’.[17] Mr Northey, the counsel for the Plaintiff, argued on the precedent of cases relating to simony and that the disability to hold offices enacted in the First Test Act could not be waived by royal dispensation.
Importantly, six of the 12 judges were dismissed by the Crown prior to the trial for not promising to support the dispensing power.[18] Unsurprisingly therefore, the judges found in favour of Hales:
[A]ll the Judges (except Street and Powell, Justices, who doubted) were of opinion, that the Kings of England were absolute Sovereigns; that the laws were the King’s laws; that the King had a power to dispense with any of the laws of Government as he saw necessity for it; that he was sole judge of that necessity; that no Act of Parliament could take away that power; that this was such a law.[19]
Godden v Hales
Aftermath
Bill of Rights 1689
King James apparently saw this as a green light to do as he pleased, putting Catholics and dissenters in many important positions, suspending the Clarendon Code, issuing a Declaration of Indulgence (1687) which promoted religious tolerance, and manipulating the Parliament by modifying electorates.[20] The birth of a Catholic son generated fears that a Catholic dynasty would eventuate and, before long, there were signs of dissent in the Kingdom. Seven bishops (including the Archbishop of Canterbury!) who had been imprisoned for questioning the King’s prerogative powers were acquitted by a jury.[21]
Just prior to the birth of the Catholic Prince, seven noblemen invited William of Orange, the Protestant nephew and son-in-law of James, to usurp the English Crown. Heeding this threat, James attempted to renege on many of his reforms, but it was too late: William landed with an army and James fled with his family, resulting in the Glorious Revolution.[22]
The new Parliament met in 1689 and set about resolving the issues of the past century. Notably, the Toleration Act repealed many of the regulations of the Clarendon Code;[23] and the Bill of Rights (fully: An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown) established the doctrine of the rule of law in England which continues to reverberate throughout the legal systems of common law countries around the world. It, among other things:
confirmed the supremacy of Parliament over the Crown;
prohibited the dispensing with or suspending of laws without Parliamentary approval;
mandated free elections and freedom of speech within Parliament;
declared that Parliament had to meet frequently;
prohibited excessive bail, excessive fines and cruel and unusual punishment.[24]
From the summary of events provided above, we can see how the 1686 case of Godden v Hales has played a substantial role in the development of many privileges enjoyed by citizens of western democracies today. The reigns of James I through to James II demonstrate the attempts at autocratic rule and flouting of the Parliament by the respective monarchs. The results were wars, power struggles and revolutions, imbedded with religious antagonism.
Godden v Hales highlights the tensions between Crown and Parliament and can be seen as a test (albeit a rigged one) in determining which would prevail. The outcome of its finding — unrestrained ruling by James II and the subsequent backlash — resulted in the Glorious Revolution and creation of the Bill of Rights, which continues to resonate into the modern period.
We, as Australians today, enjoy freedoms that were founded in that Bill, on the other side of the world and before our nation was even colonised. Despite this, there exists concern about the lack of tangible protections of our rights and a significant movement calling for the creation of a codified Australian Bill of Rights.
I would invite readers to do their own research and give their opinion on whether Australia needs to create its own human rights legislation. Here, you can view the most recent attempt at establishing such legislation — the Bill of Rights Bill 2019, tabled by the independent federal Member for Clarke, Andrew Wilkie.[25]
[1] ‘Parliamentary Privilege’, Parliament of Australia (Infosheet, March 2020) <https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-_Infosheets/Infosheet_5_-_Parliamentary_privilege>.
[2] ‘English Bill of Rights’, History.com (Web Page, 26 February 2020) <https://www.history.com/topics/british-history/english-bill-of-rights>.
[4] ‘Christianity in Britain’, BBC (Web Page, 27 April 2011) <https://www.bbc.co.uk/religion/religions/christianity/history/uk_1.shtml>.
[5] Carolyn A Edie, ‘Tactics and Strategies: Parliament’s Attack upon the Royal Dispensing Power 1597–1689’ (1985) 29(3) American Journal of Legal History 197, 215.
[8] Dennis Dixon, ‘Godden v Hales revisited – James II and the dispensing power’ (2006) 27(3) The Journal of Legal History 129, 136–7.
[9] Lachlan Malone, ‘Hellish Enfleshment: Embodying Anti-Catholicism in Early Modern English Culture’ (PhD Thesis, University of Southern Queensland, 2015) 7, 10, 14, 53.
[15]Godden v Hales (1686) 2 Show KB 475; 89 ER 1050.
[16]Test Act 1673, 25 Car 2, c 2, s 4 quoted in Dixon (n 8) 143.
[17]Calendar of State Papers Preserved in the Public Record Office, Domestic Series, James II, vol 2, Jan 1686-May 1687, London, 1964, entry 111 quoted in Dixon (n 8) 137.
In 1610, Chief Justice Edward Coke issued one of the most notorious and contentious statements made in legal history.[1] The case of Dr Thomas Bonham and the College of Physicians was heard in the Court of Common Pleas in England, where Bonham, a physician, initiated an action against the College for false imprisonment.[2]
The College, by way of letters patent,[3] had been afforded the power to issue licences to physicians in London, England.[4] The College had refused to grant Bonham a licence, but he continued to practise nonetheless.[5] Bonham was fined and then subsequently imprisoned.[6] In 1608, Bonham initiated his action against the College for ‘trespass against his person and wrongful imprisonment’[7] and it was two years later, upon delivering the decision of the Court, that Coke made his famous statement:
The censors cannot be judges, ministers, and parties … cannot be Judge and attorney for any of the parties … [a]nd it 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 the common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void…[8]
Coke in Bonham v College of Physicians
Judges and legal scholars still disagree as to what Coke meant by this statement. This post does not argue what was or was not meant by what Coke said – there is ample literature published on that subject.[9] It does, however, simply draw attention to the fact that there is much dissension on the subject to this day, and there are very real implications this case has had and continues to have.
What He Said…
The decision in favour of Dr Bonham made it clear that the College had ‘no power to commit’ him.[10] Coke’s reason for decision addressed two points: it was an ‘absurdity’ for the College to have been granted the power to act as both judge and party within their own action,[11] and there was a problem with the way clauses of the letters patent were worded.[12] Coke concluded then that the common law would control statute law if the latter should be ‘absurd’ or ‘impossible’.[13]
What Coke may have implied by his statement is a matter of contention among scholars. Did Coke mean that if a judge finds a particular statute unreasonable, he or she may render the statute ineffective? Or did Coke mean that there can and should be a judicial review of legislation when it isn’t in keeping with the common law or with a country’s constitution, to the point that the statute is voidable?
There are some who believe that Coke meant that a statute should be considered void if it is contrary to the Magna Carta.[14] Advocates for this interpretation use this to justify a process for judicial review of government bodies who have implemented laws that undermine a country’s constitution. There are others that believe that Coke was simply referring to the fact that a common law system authorizes judges to apply reason to cases to determine if the applicable legislation conflicts with ‘recognized legal principles’ and ‘bring them into conformity’[15] with the common law or render the statutes ‘ineffective’.[16]
Marbury v Madison (1803):The Implications for Judicial Review in America
While Coke’s famous statement has been used by judges and scholars to justify the practice of judicial review,[17] there is also an implication for a separation of powers in matters of state,[18] where each branch of the government balances and checks the other. French philosopher Montesquieu devised his schema for England’s constitutional monarchy, where to the executive (the king) was given the power to ‘veto unacceptable legislation’, the legislative branch the power to ‘deliberate over policy and … amend and alter the law’, thereby restraining the monarchy, and the judiciary the power to uphold the law and guarantee civil rights.[19]
Plaque about Marbury v Madison on the wall of the United States Supreme Court Building
Could Coke have been making a greater statement about the judiciary’s role for keeping the executive and legislative bodies in check? Smith contends that his statement about the control of the common law over statute law was part of Coke’s ongoing effort to maintain the enforcement of the highest natural law embodied within the Magna Carta.[20] Coke deemed Acts of Parliament just as he did judgments of the court — as subject to the natural law.[21] Smith argues that ‘Coke’s entire legal philosophy’ was bolstered by this idea of the separation and balance of powers,[22] where the judiciary should ‘be the sole administrator of the highest law of the realm — the natural, fundamental law.’[23]
We see this separation and balance of powers today in modern democracies. Indeed, Coke’s philosophy and statement that the judiciary should render a statute that contradicts common law ‘void’ has been incorporated in the American Constitution.[24]
The notion of judicial review was further established in the landmark American case Marbury v Madison. Chief Justice Marshall reasoned that ‘a law repugnant to the constitution is void; and that the courts as well as other departments, are bound by that instrument’.[25] While never having referenced Dr Bonham’s Case, the judge in this American case made it clear that it was a judge’s obligation to ‘decide which laws were to govern when laws conflicted’ and where a law was in conflict with the Constitution, to uphold the Constitutional law as supreme.[26]
Contemporary Application
Dr Bonham’s Case is still applied by both assenting and dissenting judges in common law countries such as Australia, the United States and Canada. There are, however, noticeably different interpretations of Coke’s famous statement and applications. While it is not my intention to add to an already voluminous body of work,[27] the following cases, in chronological order, are mentioned here to demonstrate the breadth of Dr Bonham’s Case in its applicability as precedent, and to demonstrate that there is still no consensus on what was meant by Coke in what he said.
Prince Edward Island Supreme Court – Trial Division, Canada
The Plaintiffs sought to rely upon Dr Bonham’s Case as a question of constitutional applicability, but the judge stated that Coke’s famous statement ‘has never received systematic judicial sanction and is now obsolete’.[29]
American General Insurance Co v Federal Trade Commission[30]
United States Court of Appeals for the Ninth Circuit
Coke’s famous statement was applied in a case where a Commission’s final order was deemed invalid by reason of a conflict of interest.[31]
An application to appeal an acquisition of property by the State of New South Wales was dismissed. The judge discredited Coke’s statement as justification for rendering the powers of the government invalid.[33]
The Plaintiff unsuccessfully appealed against the decision of the Tax Court of Canada to deny a claim for investment tax credits due to missed filing deadlines. In referring to the ambiguity of tax law, the judge relied upon Coke’s famous statement as meaning that if the legislation is ‘impossible’ or ‘absurd’ then ‘the express language must be ignored in favour of a common sense approach.’[35]
United States of America v Ferras; United States of America v Latty[36]
Supreme Court of Canada
This appeal to the Supreme Court of Canada upheld the Ontario Court of Appeal’s decision to extradite the accused to the United States. Chief Justice McLachlin relied upon Coke’s famous statement as indication of the ‘right not to be deprived of liberty except in accordance with the principles of fundamental justice’.[37] Contrary to what was said in Johnston v Prince Edward Island, the Chief Justice stated that ‘[s]ince Bonham’s Case, the essence of a judicial hearing has been the treatment of facts revealed by the evidence in consideration of the substantive rights of the parties as set down by law’.[38]
Implications for Today
While the power of judicial review was initially wielded to uphold and protect constitutional rights, Smith suggests that judicial powers have subsequently expanded to include effecting legislative reform, rendering decisions that ‘[precipitate] rather than [supplant] legislative action’.[39]
For example, in a Canadian landmark decision, Re CC (2018), the judge’s decision allowed for all three persons of a polyamorous relationship to legally declare parentage of their child. The judge ‘noted that there would be subsequent amendments to the Vital Statistics Act, 2009 accordingly’.[40]
Conclusion
There may never be consensus about what Coke meant by his famous statement in Dr Bonham’s Case; one could ask if it really matters. The case continues to provide motivation for judges to question statutes that don’t make sense or conform to previously written law. Where some see the case as providing justification for judicial review, the practice of judicial review opens the door to judge-made law especially where constitutional rights are affected. It is in this way that Dr Bonham’s Case, and what Chief Justice Edward Coke famously said, has implications today and for the future of law reform.
[1] George P Smith II, ‘Marbury v Madison, Lord Coke and Dr Bonham: Relics of the Past, Guidelines for the Present: Judicial Review in Transition? (Scholarly Article, Columbus School of Law, The Catholic University of America, 1979) 255.
[2] S E Thorne, ‘Dr Bonham’s Case’ (1938) 54(4) Law Quarterly Review 548.
[4] Harold Cook, ‘Against Common Right and Reason: The College of Physicians Versus Dr Thomas Bonham’ (1985) 29(4) The American Journal of Legal History 301, 303–4.
[8]Bonham v College of Physicians (1610) 8 Co Rep 107; 77 ER 638 [118 a] (emphasis added).
[9] See Cook (n 4); and see especially Smith (n 1); see also John V Orth, ‘Did Sir Edward Coke Mean What He Said’ (1999) 16(1) Constitutional Commentary 33.
[12] Cook (n 4) 316. Cook argues that Coke meant the letters patent were invalid as they constituted an absurdity: see also Smith (n 1) 257–8. There was a problem with the construction of the clauses of the letters. Coke reasoned that if the clauses were to be read together, the resultant end would have Dr Bonham ‘convicted twice for the same offence’: at 258. If the clauses were to be read as ‘distinct’ of each other, then Dr Bonham had been improperly imprisoned as he had not been convicted of malpractice.
[15] Raoul Berger, ‘Doctor Bonham’s Case: Statutory Construction or Constitutional Theory?’ (1969) 117(4) University of Pennsylvania Law Review 521, 526, citing Bernard Bailyn, The Ideological Origins of the American Revolution (Harvard University Press, 1967) 177.
[16] Berger (n 15) 528, citing Samuel E Thorne, A Discourse Upon the Exposicion & Understandinge of Statutes 12–13 n 12 (S Thorne ed. 1942) 86–7.
[17] Ian Williams, ‘Dr Bonham’s Case and “Void” Statutes’ (2006) 27(2) The Journal of Legal History 111, 113.
[18] Supreme Court of Queensland Library, ‘2015 Selden Society Lecture – The Hon Justice Patrick Keane on Sir Edward Coke’ (YouTube, 1 June 2015) <https://www.youtube.com/watch?v=GR7QhllzChc&t=3514s>.
[19] David Held, Models of Democracy (Polity Press, 3rd ed, 2006) 67–8.
The shocking events of 2020 have shed a powerful light on the overreaching powers of police to interfere with the lives of the common people. The notoriously well-known example of George Floyd and the call to arms — ‘I can’t breathe’ — not only shone a light on police brutality and racism, but also on the police’s overreaching powers. The US Congress recently debated the issue of police powers and passed a new piece of legislation in the Senate known as the George Floyd Justice in Policing Act of 2020[1] (‘George Floyd Act’), one of the aims of which is to ban the ‘no-knock warrant’, an ability which previously allowed law enforcement officers to break into a person’s home without warning or notice. Join me as we explore together the history of the no-knock warrant,[2] going as far back as 17th century England with the landmark decision in Semayne v Gresham (‘Semayne’s Case’),[3] which set the foundation of a person’s right to call their home their castle, thereby limiting the power of authorities to gain entry. This historical case will then be examined to establish its effect on modern legal principles in Australia and how it continues to shape the law in the common law world.
Semayne’s Case
Our story starts in 17th century England, the year 1604, the landmark decision of Semayne’s Case has just been laid down in the Court of the King’s Bench in favour of the defendant, Mr Richard Gresham, upholding his right to refuse entry to his house to law enforcement.[4]
Richard Gresham was a joint tenant of a house in Blackfriars, London, with George Berisford in the late 16th century.[6] George Berisford owned items at the time which were inside the house.[7] Upon George Berisford’s death, the possession of the items, which remained in the house, were transferred over to the defendant through survivorship.[8] The plaintiff, Peter Semayne, obtained a writ of extent, a document allowing him to seize all of George Berisford’s items to settle a debt owed to him by Berisford at the time of his death.[9] Semayne delivered the writ to the sheriffs of London, who agreed to carry out the requirements of the writ and attend the place where Berisford’s items were held and seize them for Semayne.[10] Upon arrival at Richard Gresham’s house, the defendant prevented the sheriff from accessing the house by closing the door, thereby preventing the plaintiff from recovering the debt.[11] The decision of the King’s Bench explored situations when a person could lawfully prevent the King’s men (the sheriff) from entering their home.[12]
The King’s Bench examined the difference primarily from a criminal and civil point of view[13] given its jurisdiction included, after the 15th century, matters involving non-payment of debt.[14] The Court found that in all cases where the King is a party, such as that of criminal matters, then the sheriff (or King’s person) has the authority to break a person’s door in order to undertake the arrest or the King’s process.[15] The Court, however, added a qualification that ‘before he breaks it [the door], he ought to signify the cause of his coming, and to make request to open doors’.[16] The Court weighed up the impasse and inconvenience the breaking of the door would cause to the person, as well as the fact that the person could be arrested elsewhere rather than in the safety of their own home.[17] The Court, however, concluded that if there was a suspicion of a felony, then the King’s officer may break the house, after notice is given, to apprehend the felon for two reasons: first, that it is the role of the Commonwealth to apprehend felons; and secondly, that the privilege bestowed upon persons that they have liberty inside their house does not hold against the King.[18] Furthermore, the Court found that in all cases (criminal or civil) if the door is open, then the sheriff may enter the house.[19]
The Court took a very different approach with that of civil cases, such as that of Semayne’s Case, where the King was not a party to the case. The Court held that the house of every one is his castle[20] and that for a common person to break the house to execute a process would be of great inconvenience, in addition to a loss of liberty to the person whose house had been broken.[21] It was therefore found that a sheriff may not break into a person’s house in the execution of a civil matter, even after a request or notice of entry was made (although see matters involving protection not being extended to third parties and real action where this rule does not apply).[22] Furthermore, the Court even said that if the sheriff did break the house then this could constitute trespass on the part of the sheriff.[23] The Court therefore found that the defendant in this case was within his legal rights to shut the door to the sheriff and the sheriff had no right to break the door of Mr Gresham’s castle.[24]
The Broader Historical Context of Semayne’s Case
Semayne’s Case[25] established this precedent of the knock and announce principle which had a profound effect on historical English and American cases. For example, the 1757 English case of Richard Curtis confirmed that the knock and announce principle did also apply to criminal matters, allowing the sheriff to break open doors only after giving notice of the warrant allowing them to do so.[26] The Fourth Amendment to the American Constitution also highlights the historical importance of Semayne’s Case:[27] the amendment required police officers to announce their purpose prior to breaking into an individual’s home.[28] An example which discussed this amendment was Miller v United States[29] in 1958 which also confirmed in the common law that a police officer was required to comply with the knock and announce principle, solidifying Semayne’s Case in American law.[30] Later cases, such as Ker v California[31]in 1963, appear to have relaxed this rule establishing exceptions to when police can break into a premises without notice, such as when there is a risk of evidence being destroyed.[32] This led to the US Government enacting laws in 1970 legalising the ‘no knock warrant’ in certain cases,[33] which lead to controversial and disastrous occurrences of violence during such cases.[34] As a result, the American Government repealed the legislation in 1974.[35]
Modern Application of Semayne’s Case
Semayne’s Case has also had a profound effect on the Australian legal system. The case of Gardiner v Marinov[36] is a prime example. The appellant in this case, Gardiner, was ordered to pay costs by the court for a previous matter.[37] Gardiner did not pay within the stipulated period, resulting in a warrant of distress being issued to seize her goods to satisfy the debt.[38] A bailiff attended her property and attempted to enter when Gardiner refused entry.[39] The bailiff requested police assistance who attended the property and entered her premises with the bailiff.[40] Gardiner sued for trespass.[41] Citing Semayne’s Case,[42] the Court found that because this was a civil matter, it did not permit the police or the bailiff to enter the premises as entry was not authorised by the occupant.[43] As such, this case reaffirmed the role of Semayne’s Case and the knock and announce principle in Australia.
Conclusion
In conclusion, Semayne’s Case still stands as the leading common law authority regulating entry into a person’s home with it not only applying to Australian jurisdictions but, as explored above, still having a profound effect on other jurisdictions such as the United States. Now that you are armed with this knowledge, I implore you to go forth and learn about the George Floyd Act[44] and whether the principles in this Act can be applied to the Australian jurisdiction to curb the powers of police.
[1]George Floyd Justice in Policing Act of 2020, HR 7120, 116th Congress (2020) (‘George Floyd Act’).
[2] Todd Witten, ‘Wilson v Arkansas: Thirty Years after Ker the Supreme Court Addresses the Knock and Announce Issue’ (1996) 29(2) Akron Law Review 447, 449–50, citing Semayne v Gresham (1604) 5 Co Rep 91; 77 ER 194, 194–95.
[13] Note, ‘Right of Sheriff to Break and Enter Outer Door to Execute Process in Virginia’ (1933–1934) 20(5) Virginia Law Review 592, 596–7 (‘Virginia Law Review’).
[14] Prue Vines, Law and Justice in Australia: Foundations of the Legal System (Oxford University Press, 3rd ed, 2013) 70–1.
[30] Witten (n 2) 452, citing Miller v United States, 357 US 301, 313 (1958). Also see Robert J Driscoll, ‘Unannounced Police Entries and Destruction of Evidence after Wilson v Arkansas’ (1995) 29(1) Columbia Journal of Law and Social Problems 1, 16, citing Miller v United States, 357 US 301 (1958).
[32] Driscoll (n 30) 16, citing Miller v United States, 357 US 301 (1958).
[33] Witten (n 2) 456, citing Comprehensive Drug Abuse Prevention and Control Act of 1970, HR 18583, 91st Congress (1970).
[34] Witten (n 2) 456–57, citing Charles P Garcia, ‘The Knock and Announce Rule: A New Approach to the Destruction of Evidence Exception’ (1993) 93(3) Columbia Law Review 685, 705. Also see Driscoll (n 30) 1–3.
The catalyst for change is often not recognised in the moment it occurs. Something minor and seemingly unremarkable can lead to things we would never expect. In a famous scene in the movie Jurassic Park, Jeff Goldblum’s character Dr Ian Malcolm says, ‘a butterfly can flap its wings in Peking, and in Central Park you get rain instead of sunshine’.[1] He was discussing chaos theory which looks at the unpredictability in complex systems.[2] In a similar way, a horse falling off a ferry in medieval England brought about changes in the legal system that had far reaching effects into the future and across the world.
The Humber Ferry Case[3] from 1348 is an important English legal case. It set in motion a series of changes that have shaped the way we understand obligations and liability under modern contract[4] and torts[5] law. Had it not been for that ill-fated day where the horse was lost to the River Humber, our law may have developed quite differently.
A ferry, a mare overboard and a bold plaintiff
John de Bukton paid Nicholas Tounesende of Hessle, a ferryman at a crossing on the River Humber in Yorkshire, to carry his mare over the river. The plaintiff, Bukton, claimed that the ferryman, Tounesende, overloaded the boat with horses and, as a result, his horse was lost overboard and died.
Like many changes that are set in motion, timing is everything. It was at the same time that Bukton lost his mare to the river, that the King’s Bench, which still occasionally travelled from Westminster, had arrived in York in 1348. Looking for a remedy to his loss, Bukton boldly decided to bypass the local courts for an answer. He brought a Bill of Complaint before the King’s Bench. What was so bold about his decision? Well firstly he did not have a writ, but rather a Bill of Complaint. Secondly, at that point in time, the King’s Bench did not hear cases like that of the plaintiff. It was the Court of Common Pleas that would usually hear matters between private citizens. Bukton did not have an action for trespass in the royal courts on the facts of his case.
Up until the mid-thirteenth century, trespass was only an option to recover damages where there were allegations that someone had committed a wrong that was a breach of the King’s peace, and where there had been a vi et armis (force of arms).[6] As A W B Simpson writes, ‘[t]he function of this grave allegation in the fourteenth century, and earlier, had been to justify the intervention of the royal courts, by showing that the King had a special interest in the wrong, for at this period there was a feeling — one could almost call it a theory — that, in general, case involving private wrongs should be determined in the local courts.’[7]
It would have seemed unlikely in 1348 that the King’s Bench would hear the plaintiff’s case. There was no writ, no allegation of force and no breach of the peace. Where was the royal interest? Donahue interestingly points out the royal interest can perhaps be found in the fact that the River Humber, where the incident occurred, was part of the King’s Highway.[8] Whether or not this was the reason for allowing the case, Bukton was granted permission to bring his complaint before the King’s Bench.
How the matter played out in the royal court
In the King’s Bench, the defendant’s attorney, Richmond, argued that a trespass action was the wrong action to bring and that a writ of covenant should have been brought. However, as there was no sealed document (deed) between the ferryman and the plaintiff for the carriage of the horse over the river, a writ of covenant would not have been available to Bukton.
It was a legal requirement at the time that to sue for breach of covenant there had to be a deed. The writ of covenant was a limited remedy. It failed to protect everyday verbal agreements between parties[9] such as the one between the defendant and the plaintiff. In arguing that a trespass action had been inappropriately brought by the plaintiff, Richmond stated that there was no allegation that the defendant had killed the horse and as such there was no tort or wrongdoing (the basis for trespass).[10] However, a Justice of the King’s Bench, Baukwell, responded to such an assertion that the wrong or trespass was in fact committed when the ferryman overloaded the boat so the mare perished.[11]
The King’s Bench held that an action, despite the absence of the use of force, could be brought for trespass — the claim was against the harm done to the horse, and not merely the failure to transport it across the river. As such, no documentary evidence of a covenant was needed. The Court found in favour of the plaintiff and ordered the defendant to pay 40 shillings.[12]
Undertakings, negligence and the path to assumpsit
The legal ramifications of the court’s decision in the Humber FerryCase was significant. They had for the first reported time allowed an action of trespass to apply to the damage and loss caused by a badly performed agreement.[13] There are two important aspects here for the evolution of the law. Firstly, the harm done was not directly caused (with force of arms as trespass called for) but was merely negligent. By allowing accidental harm to be remediable in a trespass action, the way was paved for action on the case for negligence, and from that the modern law of tort.
Secondly, there was no longer the requirement for a breach of the peace. A defendant could now be liable for damage if the defendant undertook (assumpsit) to do a job for a plaintiff but did it ‘so negligently or unskilfully as to cause harm to the plaintiff’s person or property’.[14] Stoljar has cleverly described the new action of assumpsit as, ‘slipping into the unoccupied middle ground of trespass and covenant’.[15] It seems, even back in medieval England, that the law was fluid and it developed organically to fit the needs of the time.
From assumpsit to the modern law of contract and torts
By the fifteenth century, writs started including assumpsit super se indicating that someone had undertaken to do something rather than breaching the peace. In the years that followed the Humber Ferry Case, the new approach to assumpsit was applied firstly to the ill performance of an undertaking (misfeasance)[16] and later to the non-performance (nonfeasance) of undertakings.[17] Thus the basis of the modern law of contract was born.
By the end of the seventeenth century, negligence was emerging as the basis for an independent wrong in itself, based on the defendant’s failure to take reasonable care.[18] Before this, actions for negligence were limited to the negligent performance or non-performance of an undertaking or discrete wrongs.[19] Plunkett notes that the recognition of the concept of ‘duty of care’ filled a gap for plaintiffs: ‘[c]laims that would fail in contract could now be converted to claims that would succeed in tort. ‘[20]
The judiciary’s development and articulation of the obligations and duties owed under contract and tort has been extensive since the King’s Bench travelled to York in 1348. It is fair to say, however, that the foundation of contract and torts law can be found in the Humber Ferry Case and the centuries that followed.
Looking back to look forward
Looking back in time to the Humber Ferry Case does more than shed light on the origins of the law of contracts and torts. It reminds us how English law has and continues to evolve organically and sometimes unexpectedly. The catalyst for important changes can sometimes be a seemingly unremarkable event like a horse perishing on a ferry. What might seem like a small event at the time can set in motion changes that have drastic effects on legal doctrines that are felt far into the future. Taking the time to explore and understand legal history helps us to have an informed understanding of what is happening today. It helps us become better decision makers and agents of change both in the legal profession and the community at large.
Reference List
John Baker and SF Milsom, Sources of English Legal History: Private Law to 1750 (Oxford University Press, 2010)
Charles Donahue Jr, ‘The Modern Law of Both Tort and Contract: Fourteenth Century Beginnings?’ (2017) 40(1) Manitoba Law Journal 9
Albert Kirafly, ‘The Humber Ferryman and Action on the Case’ (1953) 11(3) Cambridge Law Journal 421
James C Plunkett, ‘The Historical Foundations of The Duty Of Care’ (2015) 41(3) Monash University Law Review 716
M J Sechler, ‘Supply versus Demand for Efficient Legal Rules: Evidence from Early English Contract Law and the Rise of Assumpsit’ (2011) 73 University of Pittsburgh Law Review 170
A W B Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Clarendon Press, 1975).
S J Stoljar, A History of Contract At Common Law (ANU Press, 1975)
Robert Bishop, Chaos, The Stanford Encyclopedia of Philosophy (Web page) <https://plato.stanford.edu/archives/spr2017/entries/chaos/>
[2] Robert Bishop, Chaos, The Stanford Encyclopedia of Philosophy (Web page) <https://plato.stanford.edu/archives/spr2017/entries/chaos/>.
[3]Bukton v Tounesende (1348) (‘Humber Ferry Case’) JH Baker and SFC Milsom, Sources of English Legal History: Private Law to 1750 (Butterworths, 1987).
[4] ‘A contract is an agreement or promise between two or more parties that is legally enforceable’: Oxford Australian Law Dictionary (3rd ed, 2017) ‘contract’.
[5] ‘Torts is the law of civil wrongs not arising out of a contractual relationship and includes claims such as negligence’: Oxford Australian Law Dictionary (3rd ed, 2017) ‘torts law’.
[6] A W B Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Clarendon Press, 1975) 202.
[8] Charles Donahue Jr, ‘The Modern Law of Both Tort and Contract: Fourteenth Century Beginnings?’ (2017) 40(1) Manitoba Law Journal 9, 15.
[9] MJ Sechler, ‘Supply versus Demand for Efficient Legal Rules: Evidence from Early English Contract Law and the Rise of Assumpsit’ (2011) 73 University of Pittsburgh Law Review 161, 170.
[16]The Farrier’s Case (1373), cited in Donahue (n 8) 33s; The Surgeon’s Case cited in Donahue (n 8) 38.
[17]Somerton v Colls (1433) in JH Baker and SFC Milsom, Sources of English Legal History: Private Law to 1750 (Oxford University Press, 2010) 427; Shipton v Dogge [No 2] (1422) in JH Baker and SFC Milsom, Sources of English Legal History: Private Law to 1750 (Oxford University Press, 2010) 434.
[18] James C Plunkett, ‘The Historical Foundations of the Duty Of Care’ (2015) 41(3) Monash University Law Review 716, 718.
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