Marbury v. Madison, Lord Coke and Dr. Bonham: Relics of the Past, Guidelines for the Present-judicial Review in Transition?
Publication year | 1979 |
The decision in
It will be the purpose of this article, then, to explore the modern significance of Coke's influence as analyzed and interpreted through the famous
I.
April 30, 1606, was the eventful date on which Thomas Bon-ham, Doctor of Philosophy and Physics, graduate of Cambridge University, was cited to appear before the president and censors of the Royal College of Physicians of London to answer to a charge of engaging in the practice of medicine in London without first obtaining, from the Royal College itself, a properly executed certificate to practice. For failing to obtain this certificate, he was fined one hundred shillings and was, further, forbidden-under pain of imprisonment-to practice until he was duly admitted by the College.
Bonham, however, continued to practice and was, consequently, recalled by the College to answer for his actions. He defaulted, and in his absence was fined ten pounds. Within several months, he made still another appearance before the College. On this occasion, he not only refused to pay his fine but to refrain from the further practice of medicine as well. He argued that because he was in fact a Doctor of Medicine of Cambridge University, the Royal College of Physicians of London had no jurisdiction over his actions. As a result of this position, Dr. Bonham was imprisoned.(fn5)
Because the letters patent had been confirmed by statute,(fn8)
In support of his holding that the College did not possess the powers to fine and imprison a competent, yet improperly licensed, physician-as opposed to a physician who was engaged in malpractice-Coke made five arguments to sustain his position,(fn11) several of which are tied to early rules of simple statutory construction.
The first and second clauses of the letters were distinct and parallel. Therefore, Coke reasoned, the definite penalty of the first clause did not attach and imprisonment was not to be imposed on an unlicensed physician. Secondly, it was reasonable to incarcerate the body of a physician who, as a consequence of his malpractice, harmed one of his patients. Yet, when a physician who set about the practice of his profession in a proper manner in London, but without first obtaining a license from the Royal College, and no resulting harm came to his patients, that physician was not to be imprisoned.(fn12)
The second clause of the letters patent had no fixed time for enforcement, even though the time interval in the first clause was fixed as a month; so, no charge under it could be maintained until a month had elapsed. Consequently, Coke held the first and second clauses to be distinct.(fn13)
In light of the fact that the Royal College was to receive one-half of all the fines it collected, the members of the College could rightly be regarded as not only judges, but also actual parties to any cause of action brought before them. Here, by way of reinforcing dicta, Coke uttered what many authorities believe to be the most controversial statement of his life:(fn14)
The final argument made by Coke in support of his holding was that no one should be convicted twice for the same offense.(fn16) This, in effect, is the result that would have occurred if the two clauses in the original letters were not held to be distinct; for, an unlicensed physician would not only have been liable to a fine of one hundred shillings, after he had been engaged in practice without a license for a month, but he would also have been subject to a fine and imprisonment. Coke reasoned accordingly that the second clause had to be understood as only applying to improper practice or malpractice, rather than to unlicensed and to improper practice alike.(fn17)
At no place in Coke's opinion does the reader find an unequivocal statement that the statute, under which the action was brought, was in fact invalid or void (fn18) or, for that matter, that it was impossible to apply. Instead, it was held to be impertinent-which would seem, by inference, to make a strong point for impossibility of a rather superficial nature.(fn19) Interestingly, the official court reporter merely speaks of an
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