Marbury v. Madison, Lord Coke and Dr. Bonham: Relics of the Past, Guidelines for the Present-judicial Review in Transition?

Publication year1979


Marbury v. Madison, Lord Coke And Dr. Bonham: Relics Of The Past, Guidelines For The Present-Judicial Review In Transition?

George P. Smith, II (fn*)

The most fundamental question of all, as Thomas Grey rightly stated, is "the legitimacy of judicial review itself," a question that goes beyond the scope of the power to its very existence, however limited. After remarking, "Whether this enormous power can fairly be deduced from the language of the Constitution, and whether the framers of that instrument intended to confer it on the Justices, has been the subject of vast learned controversy . . . unlikely ever to be resolved," Joseph Bishop reassuringly stated, "No matter; the power exists." It is true that the power has long been exercised, but whether it "exists"-has constitutional warrant-is something else again.(fn1)

The decision in Bonham's Case,(fn2) a cause celebre of the early seventeenth century, is now over three hundred and sixty nine years old yet is still of pertinent value to the historian, the legal scholar, and even the practicing attorney who are driven in their quest for a thorough grasp and complete understanding of the thrust of history-English and American-upon not only the Corpus Juris as it is known today, but upon the very social framework against which our daily actions are set. This one case, and more particularly certain dicta made in the course of the decision by Lord Coke, has had permanent effect upon the American system of jurisprudence as it evolved from basic theories of fundamental law and judicial review.

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 Bonham's Case and thereby to provide an insight into the development of our own concepts of judicial review, as borrowed from the English, in its original historical-legal perspective and as seen through the decision in Marbury v. Madison(fn3) and applied modernly in the principal case of Baker v. Carr.(fn4)


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)

Bonham's Case, as brought before Justice Coke, was a simple action for false imprisonment.(fn6) For their defense, the defendants pleaded the letters patent of 10 Henry VIII which gave them the powers as a College to impose fines on practitioners in London who had not been duly admitted to the practice of medicine by them. In addition, they claimed the right-granted by the letters-to govern all physicians in London and to impose fines and imprisonment when and if necessary.(fn7)

Because the letters patent had been confirmed by statute,(fn8) the statute under consideration here was of a negative nature, or one which superseded and defeated the common law. The words of patent were, nonetheless, clear and unambiguous-no one was to be allowed to practice medicine in London without first being certified and admitted by the College. Coke, himself, had always maintained that, "Every statute consisteth of the letter and the Meaning,"(fn9) and accordingly, "every statute ought to be expounded according to the intent of them that made it."(fn10)

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 censors cannot be judges, ministers, and parties; judges to give sentence or judgment; ministers to make summons; and parties to have the moiety of the forfeiture . . . . [T]he common law.will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for 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.(fn15)

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 opinion being given by the court. Hence, there is, indeed, considerable reason to question whether a final judgment on the case...

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