University of Southern Queensland

Author: Aaron Timoshanko

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 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.