The defiant doctor - the case of Dr Bonham

TODAY, the consequences of practising medicine in the UK without registration and a licence are clear. The Medical Act of 1983 mandates the General Medical Council to regulate and oversee the fitness to practise of all medical doctors. Any suspected illegality may prompt that body to issue cease and desist notices and they may refer the individual to the police which can lead to prosecution.

However, some 400 years ago in England, the situation was rather more vague and its interpretation forms the basis of what has been described as “a landmark of early-modern English law.”

The barber-surgeon

Relatively little is known about the life of the doctor at the centre of this case, but Thomas Bonham was born about 1564 and studied at St John’s College, Cambridge where he graduated MA in 1588 and later MD. The next we hear of him, he had moved to London where, by the age of 38, he was working as a doctor.

At the time, the practice of medicine, and specifically the administration of internal remedies, was regulated by the College of Physicians. The College, which would not become known as the Royal College for another 60 years, exclusively licensed London practitioners.

Initially, Bonham aligned himself with the Barber-Surgeons Company, but after their parliamentary petition to become recognised failed in 1605, he had no choice but to turn to the College to seek admission by examination. They turned him down and told him to return after undertaking further medical studies. He tried again four months later in spring 1606, but the College was even more intransigent, not only rejecting his application but fining him £5 (around £1,500 today) for persisting in his practice in the interim and threatening him with imprisonment if he failed to pay.

College collision course

Doubtless disgruntled by the College’s high-handedness, Bonham refused to acknowledge their authority and carried on working. He had washed his hands of the College, but having come to their attention they were not about to dismiss him so easily.

Aware of his continued unlicensed practice, they issued summonses to appear before them which he ignored, and in autumn 1606 the College imposed another fine, this time of £10 and announced their intention to arrest him.

Bonham appeared before the College asserting his right to continue his practice, claiming they had no authority over medical graduates of Oxford or Cambridge Universities. Thinking that Bonham had come before them either to apologise or be re-examined, the president and censors were outraged and sent him to prison to be held at their pleasure for contempt. It was a week before Bonham’s lawyer using a writ of habeus corpus was able to have him released.

Sued and countersued

The lawyer’s success sent a shockwave through the College which had until then been certain that their jurisdiction in such matters would be upheld. They decided on further action, perhaps thinking to make an example of Bonham, and brought a suit against him in the Court of King’s Bench in 1608. They charged that he had been practising illicitly for the previous 12 months and demanded a £5 fine for each of those months.

Bonham, wishing to put an end to what he saw as continued harassment, countersued in the Court of Common Pleas a few months later for £100 damages against the College, claiming trespass against his person and wrongful imprisonment.

Thus, the stage was set for two cases in two different courts with Bonham and his right to practise at the centre of both.

Hearing both sides

First the College’s suit was heard. Their lawyer argued that a Royal Patent issued by Henry VIII and endorsed by subsequent Acts of Parliament gave the College the right to act as they had. The statute, he argued, “intends that none shall practise here but those that are most learned and expert.” The Acts allowed the College the right to punish those “doing and using” physic without its license – illicit practice – and those guilty of “ill using” physic – malpractice. Furthermore, they were also authorised to imprison offenders.

The letter of the law was thus clear, but what was open to debate was its intention.

Bonham’s lawyer argued that the law was intended to protect London’s population from poor medical practice and imposters, not bona fide medical graduates. His client, he argued, was one of the “grave and learned” men the acts were designed to preserve and promote.

Despite these pleas, the Chief Justice in the Court of King’s Bench handed down his verdict in early 1609, finding Bonham guilty of illicit practice and fining him £60. Unable to pay, Bonham again found himself in prison where he would languish for the next year awaiting the outcome of his countersuit.

Landmark moment

Sir Edward Coke, the Chief Justice of the Court of Common Pleas which heard that suit, led a narrow majority that found in favour of Bonham and he was released. It was Coke’s ruling that has identified this case for many as a legal landmark. He stated, when considering the acts of parliament cited by the College’s lawyer as justifying its actions, that:

“...the common law will control 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 control it and adjudge such Act to be void.”

For many, this is seen as a challenge to the sovereignty of parliament, and an early salvo fired in favour of judicial review of statute legislation. Coke’s words are bold even to modern ears and have been used by many in subsequent generations to justify secession from authority and even revolution.

Others have interpreted the ruling in a more restrained way, seeing no such precedents, arguing that Coke’s ruling was in no way radical but entirely consistent with the legal mindsets of the time.

Catalyst for change

Whatever Coke’s intention, the ruling has been used, rightly or wrongly, as the catalyst for change. Perhaps, most famously, John Adams, one of the US founding fathers and later second US president, was present in a colonial courtroom in 1761 where Coke’s ruling was cited. He would later state: “Then and there the child Independence was born.”

While this case concerns events more than 400 years ago, it would be a mistake to think the issue at its core is not as relevant today as it was then. In the UK, the nature of our constitution and the supremacy of parliamentary sovereignty has been much debated in recent years. Issues of devolved administrations, human rights movements and our membership of the wider EU all present significant challenges to the notion of Westminster’s sovereignty. Indeed, arguments about the erosion of that sovereignty are seen by some as the singular driving force for the UK’s recent departure from the EU.

The Bonham Case remains controversial to this day, with some seeing it as a judicial irrelevance, while others viewing it as one of the foundation stones of modern constitutional thinking. While most of what is written about the Bonham Case concerns itself with its wider judicial impact, it should not be forgotten that this was a case about one doctor fighting against what he saw as a monolith of false authority. For some it is the rousing story of a David overcoming a Goliath, while for others it is a story that resonates with questions still asked today about the monopolies that regulate medical practice.

Dr Allan Gaw is a writer based in Scotland

Sources

• Bonham’s Case, 8 Co. Rep. 107a, 77 Eng. Rep. 638 (C.P. 1610).
• Cook, H.J. Am J Legal Hist, 1985; 29: 301-2.
• Helmholz, R. J Legal Analysis, Winter 2009.
• Edwards, R.A. Denning Law Journal. 1996; 63-90.