Did Sir Edward Coke mean what he said?

• Author: Orth, John V.
• Position: 17th Century English legal scholar on laws 'impossible to be performed'

"When it is said in the books, that a statute contrary to natural equity and reason, or repugnant, or impossible to be performed, is void, the cases are understood to mean that the courts are to give the statute a reasonable construction."(1) So James Kent summarized centuries of English constitutional history in his magisterial Commentaries on American Law. On its face, the sentence is remarkable: the English reports contain cases saying that "a statute contrary to natural equity and reason, or repugnant, or impossible to be performed, is void," but the judges in those cases did not mean what they said; what they meant to say, according to Chancellor Kent, is that such a statute should be given "a reasonable construction." If that were so, why did they not say so? Why did they not say in those very words "a statute contrary to natural equity and reason, or repugnant, or impossible to be performed is to be given a reasonable construction"? Is it likely that royal judges, confronting a case involving a statute that had necessarily passed both houses of parliament and received the royal assent, would lightly use the word "void"?

In particular, how likely was it when the source, the fons et origo, of the idea in question was none other than Sir Edward Coke, the oracle--if ever there was one--of the common law? What Coke said in Dr. Bonham's Case in 1610, as he himself reported, was: "when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void."(2) The specific violation of "common right and reason" that Coke detected in the facts of Dr. Bonham's Case was the apparent attempt to grant to the Royal College of Physicians both the right to impose fines for unlicensed practice and the right to keep half of any fines collected:

[I]f any Act of Parliament gives to any to hold, or to have conusans of all manner of pleas arising before him within his manor of D., yet he shall hold no plea, to which he himself is party; for, as hath been said, iniquum est aliquem suae rei esse judicem [it is unfair for someone to be a judge in his own affairs].(3) Sir Henry Hobart, Coke's successor at Common Pleas, echoed this judgment and declared that "an Act of Parliament, made against natural equity, as to make a man Judge in his own case, is void in it self, for jura naturae sunt immutabilia [the laws of nature are unchangeable], and they are leges legum [the laws of law]."(4) Years later Sir John Holt, Chief Justice of the Court of King's Bench, said:

And what my Lord Coke says in Dr. Bonham's case in his 8 Co[ke's Reports] is far from any extravagancy, for it is a very reasonable and true saying, that if an Act of Parliament should ordain that the same person should be party and Judge, or, which is the same thing, Judge in his own cause, it would be a void Act of Parliament....(5) Could it be that Coke and the other judges...