Tag: judicial review

Author: Nicole McWha (USQ JD student)

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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

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.

Johnston v Prince Edward Island[28]	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]
Durham Holdings Pty Ltd v New South Wales[32]	High Court of Australia	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]
Datacalc Research Corporation v The Queen[34]	Tax Court of Canada	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.

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[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.

[3] Smith (n 1) 256.

[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.

[5] Ibid 308.

[6] Ibid 308–11.

[7] Ibid 311.

[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.

[10] Bonham v College of Physicians (n 8) 646.

[11] Smith (n 1) 257.

[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.

[13] Cook (n 4) 316.

[14] Smith (n 1) 259.

[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, 3^rd ed, 2006) 67–8.

[20] Smith (n 1) 259.

[21] Ibid 259.

[22] Ibid.

[23] Ibid.

[24] Ibid 260.

[25] Ibid 261, citing Marshall CJ [180] (emphasis in original).

[26] Ibid 261.

[27] Williams (n 17) 112.

[28] Johnston v Prince Edward Island [1995] PEIJ No 32.

[29] Ibid [195], citing AV Dicey, Law of the Constitution (Macmillan and Co Ltd, 7th ed, 1908) 59.

[30] American General Ins Co v Federal Trade Com (1979) 589 F 2d 462.

[31] Ibid, [6]–[12].

[32] Durham Holdings Pty Ltd v New South Wales (2001) 117 ALR 436.

[33] Ibid, [44].

[34] Datacalc Research Corporation v The Queen, 2002 DTC 1479.

[35] Ibid,[48].

[36] United States of America v Ferras; United States of America v Latty [2006] SCJ No 33

[37] Ibid, [24].

[38] Ibid, [25] (emphasis omitted).

[39] Smith (n 1) 264.

[40] Re CC, 2018 NLSC 71[40].

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