School of Law and Justice

University of Southern Queensland

Save the Date: Military Domestic Engagement in Asia-Pacific Webinar


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.

Flyer_Military_Call-out_Laws_save-the-date_EUROPE-1

The Triumph of Parliament over Absolute Monarchy

Author: Riley Wilkes (USQ JD Student)

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>.

[3] Imperial Acts Interpretation Act 1984 (Qld) sch 1.

[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.

[6] Ibid 216.

[7] Ibid 216–7.

[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.

[10] Edie (n 5) 220–1.

[11] Ibid 226.

[12] Ibid 233.

[13] Dixon (n 8) 151.

[14] Ibid 137.

[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.

[18] Dixon (n 8) 138.

[19] Godden v Hales (1686) 2 Show KB 475, 478; 89 ER 1050, 1051.

[20] Edie (n 5) 209.

[21] Ibid 228–9.

[22] Ibid 230.

[23] Ibid.

[24] ‘English Bill of Rights’ (n 2).

[25] Australian Bill of Rights Bill 2019 (Cth).

Coke in Dr Bonham’s Case: His Meaning Revisited

Author: Nicole McWha (USQ JD student)


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.

Johnston v Prince Edward Island[28]Prince Edward Island Supreme Court – Trial Division, CanadaThe 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 CircuitCoke’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 AustraliaAn 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 CanadaThe 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 CanadaThis 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.

[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, 3rd 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].


The Strange Fruit of Semayne’s Case: No-Knock Warrants

Author: Matthew Schleehauf (USQ JD student)


Introduction

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]

‘The house of every one is his castle…’[5]

Sir Edward Coke in Semayne’s Case

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.

[3] Semayne v Gresham (1604) 5 Co Rep 91; 77 ER 194 (‘Semayne’s Case’).

[4] Ibid 199.

[5] Ibid 194.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid 194–5.

[10] Ibid.

[11] Ibid.

[12] Ibid 194.

[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.

[15] Semayne’s Case (n 3) 195–6.

[16] Ibid 195.

[17] Ibid 198.

[18] Ibid 197.

[19] Ibid.

[20] Ibid 194.

[21] Ibid 198.

[22] Ibid 194, 199. Also see Virginia Law Review (n 13) 598–99.

[23] Semayne’s Case (n 3) 198.

[24] Ibid 199.

[25] Ibid.

[26] Witten (n 2) 450, citing Curtis’s Case (1757) 168 ER 67.

[27] Semayne’s Case (n 3).

[28] Witten (n 2) 452, citing Ker v California, 374 US 23, 49 (1963).

[29] Miller v United States, 357 US 301(1958).

[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).

[31] Ker v California, 374 US 23 (1963).

[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.

[35] Ibid.

[36] Gardiner v Marinov (1998) 7 NTLR 181.

[37] Ibid 181.

[38] Ibid 183.

[39] Ibid 184.

[40] Ibid.

[41] Ibid 181.

[42] Ibid 189–90, citing Semayne v Gresham (1604) 5 Co Rep 91; 77 ER 194, 197–98.

[43] Ibid 189–91.

[44] George Floyd Act (n 1).

The Humber Ferry Case: On the Road to Assumpsit

Author: Annabel Luxford (USQ JD student)

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 Ferry Case 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/>

[1] Jurassic Park (Amblin Entertainment, 1993).

[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.

[7] Ibid.

[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.

[10] Simpson (n 6) 211.

[11] Ibid.

[12] Albert Kiralfy, ‘The Humber Ferryman and Action on the Case’ (1953) 11(3) Cambridge Law Journal 421, 422.

[13] SJ Stoljar, A History of Contract At Common Law (ANU Press, 1975) 29.

[14] Ibid.

[15] Ibid.

[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.

[19] Ibid.

[20] Ibid 719.