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Dr Bonham’s case.

A man by the name of Bonham refused to pay for a license to practice medicine from the London College Physicians.

The College pointed out that not only did it have authority granted by a King (Henry VIII) , but also a specific Act of Parliament upheld medical licensing. So it fined Bonham (half the fine going to the college – half to the government, just as the Statute said it should) and ordered him to be imprisoned.

In the modern world that would be it – consumer protection upheld, and the evil “Dr” Bonham shipped off to be raped to death in prison somewhere (to the applause of the media – and the education system, the schools and colleges with their “protect the consumer” and “protect the worker” textbooks). However, this was 1610………

Chief Justice Sir Edward Coke (with his wicked, reactionary “Medieval mind”) was outraged by the whole thing. Not owning a piece of paper (a “license”) was not a crime under Common Law (to the Common Law a crime was an aggression against the bodies or goods of someone else – not failing to buy something). Also how could a body (the college or the government) sell licenses and, at the same time, sit in judgement over the case? This would mean that those who profited from the sale of licenses (had a financial interest in it) could punish those who did not buy them! – Which (to the modern minds of both the college and the government) is replied to by “well yes you Feudal nutcase – THAT IS THE POINT”.

Sadly (in spite of the work of Sir Francis Bacon, the author of the Progressive classic “The New Atlantis”, and mentor of Thomas Hobbes – the great philosopher who spread the enlightened notions that “law” was just the whims of the rulers, and that humans were just machines, not beings – not moral agents). The reactionary Sir Edward stopped the imprisonment of Dr Bonham – and declared that he did not have to pay a fine for refusing to buy a piece of parchment (a “license”) as the Common Law (those DUSTY CENTURIES of Year Books full of cases about one man hitting another man over the head with an axe – or damaging a local church by using its windows for target practice for archery……) knew of no such “crime”, and that it was an outrage that those who sold these pieces of paper could fine (indeed imprison) those who refused to buy them (Sir Edward’s “medieval mind” just did not understand the Progressive modern world……).

Nor did this reactionary bigotry end with Sir Edward Coke.

Chief Justice Sir John Holt (late 17th century – the generation that produced the English Bill of Rights and other hopelessly reactionary documents. with their right to keep and bear arms and so on, that are affront to the modern Progressive world) held to the same view that Acts of Parliament do not overturn fundamental principles of natural justice embodied in the centuries of tradition of Common Law reasoning (in spite of Progressive Legal Positivist Thomas Hobbes “proving” that there was no such thing as natural justice or natural law in a moral way – and that the judges of the Common Law, in seeking justice over the dusty centuries, were just lost in illusions – true law being just the will of the ruler).

Chief Justice Holt – even cited judges as far back as Bracton (did he not understand that only what has been said in the last five minutes matters?) and openly stated that Acts of Parliament do not trump fundamental law – indeed it is the other way round. And that it was possible (although difficult) for legal reasoning to find justice. Not that all judges would always agree (YES – there are other cases in the centuries of Year Books that contradict the cases that Sir Edward Coke cited, he knew that and it does NOT undermine his position), but that legal reasoning (fundamentally reasoning in justice – after the manner of Aristotelian reasoning) was possible – that law was NOT just the ravings of Kings and Parliaments. That fundamental law was different to (and higher than) “legislation”.

Chief Justice Holt even tried to apply this to slavery – which to him (as to the 19th century American lawyer and later Chief Justice of the Supreme Court Salmon P. Chase) was the Common Law crimes of false imprisonment (dragging someone back if they ran away), and violent assault (whipping someone for refusing to work – no more acceptable in Common Law than throwing someone in prison for refusing to buy a piece of paper, a “license” or an “insurance policy” as with “Obamacare”).

In the United States this reactionary tradition continued with, for example, Justice Pierce Butler of the Supreme Court who held (by dissenting in “Buck Versus Bell”) that a State (even after it passed a “statute”) could not hold down a screaming woman and cut her up for the “crime” of (allegedly) having a “low IQ” out of fear that the women might give birth to babies who also might (allegedly) commit the “crime” if having a “low IQ”.

Justice Butler did not even believe that the government had the right (even after passing a statute) to exterminate “inferior races” – he had clearly never read the noble Progressive writings of the Fabian socialists H.G. Wells (the teaming millions of blacks, browns and yellows must go, forms of gas could be developed and…..) and George Bernard Shaw (every person should be made to justify their existence before a government board, “like the income tax tribunal” and if the board was not happy with them, they should be executed), friends of fellow Supreme Court Judge – O. W. Holmes Jr who wrote the Progressive view of Buck V Bell.

To a Progressive such as Holmes  the old American saying (attributed to Mark Twain) – “no man’s property or liberty is safe – when the legislature is in session” (a much realistic attitude that the deluded British faith in Parliament) is replied to with “and a jolly good thing to!”.

Well where do you stand gentle reader?

With the vile reactionaries such as Sir Edward Coke, Chief Justice John Holt, Edmund Burke (see his writings on Ireland and India), American Chief Justice Salmon P. Chase, 20th century Justice Salmon P. Chase (and the others of the “Four Horsemen” who opposed such Progressive things as Franklin Roosevelt “National Recovery Agency” – General Johnson’s Jackbooted “Blue Eagle” thugs who tried to set the prices and business practices of every enterprise in the United States).

Or do you stand with the noble Sir Francis Bacon (of The New Atlantis), Sir William Petty (the creator mathematical “economic planning” in the mid 17th century), Thomas Hobbes, the Bowood Circle of the late 18th century (funded by Lord S.) with such lovely people as Jeremy Bentham – with his 13 Departments of State controlling every aspect of life (as it is the duty of government to promote pleasure and oppose pain – and natural law and natural rights are “nonsense on stilts”, law being simply the will of the rulers), and with the Hobbes lovers among the “Westminster Review” crowd of the early 19th century (with their “land question” – i.e. the view that the state could plunder the ancient estates, overturning “feudal” notions going back to the ninth century, as David Ricardo had “proved” that….. let us ignore the fact that Frank Fetter refuted David Ricardo on land a century ago, the Ottoman Empire, and Eastern Despotism generally, rocks, it is “Progressive” to attack the estates of “feudal” Western land holders). And the “New Liberals” of the late 19th century, and the Fabians and the American Progressives and………….

Ignore the warnings of old reactionary Common Lawyers such as Sir Edward Coke and John Holt that Progressive Francis Bacon stuff is really the dark side of Roman Law – the “Civilians” with their doctrines that the will of the ruler has the force of law, and that no law binds the government (because the government can change the law as it likes).

After all such warnings are repeated in the speeches of reactionary (and “corrupt”) President Warren Harding and reactionary (and “stupid”) President Calvin Coolidge in the 1920s (see the Politically Incorrect Guide to the Presidents) when they pointed out that  such things as the Progressive “New Freedom” of Woodrow Wilson which claimed to “evolve” beyond the principles of the Constitution of the United States, are (in fact) a product of German collectivist political philosophy (see J. Goldberg “Liberal Fascism”) going back as far as the 18th century philosophy (see the works of Hayek on this – for example the “Constitution of Liberty” and “Law, Legislation and Liberty” – although Hayek can never free himself from the general philosophy of the very people whose political ideas he attacks – and, contrary to Hayek, their politics comes naturally from their philosophy) and that this political philosophy is (in turn) a return to the ideas of the “civilians” – the Roman Law scholars with their doctrine that the government is limited by no law (as it can create any law it likes – and change any existing law) and that one must hope for wise rulers to promote the happiness of the people… The reactionary Harding and Coolidge claiming that those who seek to “evolve” beyond “vulgar” or “primitive” views of freedom (the property rights view embodied in such things as the British and American Bill of Rights) actually collapse back into the darkest tyrannical despotism.

Surely no one (but the most hardened and bitter reactionary) would deny that governments should promote pleasure and prevent pain (prevent the little darling people, children really, hurting ourselves) – without letting any silly “old right” stand in their way?

7 Comments

  1. Paul Marks says:

    My apologies for typing “Henry Holt” rather than “John Holt” (and all my other errors) – I was in a rush, dashing off to work (even now I have a doctor’s appointment in a few hours – then work).

    I still think Henry Holt is a better name than John Holt – what a pity his parents did not agree with me.

  2. Sam Duncan says:

    At least you aren’t as bad as Dr. Spooner, of spoonerism fame; you got the surname right. :)

    He’s reported to have delivered a sermon that talked at great length of Aristotle, to the bemusement of everyone in the congregation. As he was walking down the steps of the pulpit afterwards, he stopped, turned back, and announced, “During my sermon, I may have had occasion to refer to Aristotle. I meant, of course, Saint Paul.”

    Fascinating post, and spot-on as usual. I hate to bang on about it, but this is exactly what scares me about all this Scottish nonsense: they want power so that they can use it.

    It also reminds me of one of my father’s favourite legal truisms: “The law is, for the most part, common sense, except where statute supervenes”. There’s way too much supervening these days, and far too little common sense.

  3. John Galt says:

    As Tacitus said in Annals:

    “the more numerous the laws, the more corrupt the state”

    I personally don’t think anyone should be surprised that we fill our legislatures with failed lawyers and they fill the statute books with statutory instruments which reflect their own prejudice.

    The only effective way that been found to limit this is to restrict the sitting of the legislature to emergency sessions (where passing new legislation is not usually an issue) or a few days a year, so that the executive can be held to account.

    Another way of dealing with this is the Swiss approach, whereby the electorate must vote on any legislation being proposed.

    I personally don’t see the point in all of this legislation anyway. Common law covers the vast majority of crimes anyway – from murder down to petty theft. Statute is just a way of making things illegal which aren’t illegal under common law. Thus the rise of victimless crimes and statute.

  4. NickM says:

    Here’s an example of pointless law-making.

    In the UK female genital mutilation has been specifically illegal since the ’80s. Why? Surely it already came under the remit of Grievous Bodily Harm? Possibly (given the risks of infection etc) Attempted Murder.

    New Labour (lest we forget) made it specifically illegal to enter the wreck of the Titanic amongst other laws ranging from Barking to Dagenham.

    We need fewer laws but better enforced ones. If the law provides justice if I am assaulted or robbed then I am happy.

    Note. Despite being on the statute for roughly a quarter of a century no successful prosecutions have been brought for FGM. They might as well have made it a capital offence to say the sky is green.

  5. bloke in spain says:

    Sorry Paul but your entire fundamental law/common law/traditional justice arguments fall at slavery. None of them regarded a slave of a subject race as a person. So none of it applied to the slave. It was legislated law defined a slave as a person & therefore not to be held enslaved & subject to the considerations of all you mention.
    Which should remind us that laws are thankfully the creation of people & not half arsed philosophies.

  6. Andrew says:

    “Which should remind us that laws are thankfully the creation of people & not half arsed philosophies.”

    That depends entirely on the people making the law and what their philosophies are.

    In the last century, tens, if not hundreds, of millions of people were forced to live in grinding poverty, suffer mass starvation and genocide because of man-made “laws”.

    For anyone who’s not read it, John Hasnas’s “The myth of the rule of law” is an excellent look at the reality of law:

    http://www.copblock.org/40719/myth-rule-law-john-hasnas/

  7. Paul Marks says:

    bloke in spain – you are mistaken. Even legal thinkers at the time of the Roman Empire agreed that slavery was against natural law BUT they argued that the “law of all nations” and Roman positive law trumped natural law.

    In the later Christian period Canon Lawyers (originally Church lawyers) argued that natural law trumped positive law (i.e. they reversed the thinking of the Roman Empire) – whereas “Civilians” (Civil law in the sense of the Roman tradition) argued that positive law (with the law of the ruler being supreme) trumped natural law (although they did not deny that natural justice existed).

    Some Canon Lawyers (and philosophers – theologians, for they were both) argued that slavery was forbidden by natural law, and some did not. However, no one argued that a slave was not a person – i,e, did not have a soul.

    Someone who argued that slaves were not persons (in the Christian period) would have been guilty of heresy – and the penalties were rather severe for that.

    By the way you refer to “race” – to argue that a different “race” (based on skin colour or whatever) did not have souls (i.e. were not persons) was also heresy.

    The Spanish Inquisition did refer to Jewish “blood” (unlike the Roman Inquisition), but although made up of Dominicans the Spanish Inquisition was actually an arm of the Spanish STATE

    Indeed in many of its documents the Spanish Inquisition was clearly guilty of heresy (a point confirmed, in guarded language, by several Popes of the period) – ironic considering that it was (officially) set up to combat heresy (although the actual purpose of King Ferdinand was to raise revenue) However, no Pope felt themselves to be a strong enough position to actually bring a prosecution against the servants of their “most Catholic majesties” the Kings of Spain.

    The odd thing about England was as follows……

    England retained the “Catholic” assumption that natural law (natural justice) existed and trumped the will of the ruler, but WITHOUT the Roman Catholic Church.

    The Common Law had originally been dominated by clerics (hardly any one else could read and write – so who else could be a judge?), but became independent of clerical control.

    Nor did England ever formally “receive” the revived Roman Law (as most, but not all, of Continental Europe did).

    English judges did not formally proclaim that the will of the ruler was above the law (in the sense of natural justice). This is why what Blackstone wrote concerning Parliament (that it could do anything it liked) seemed to the American Founding Fathers a betrayal of the Common Law.

    Someone like John Jay was not a radical (first Chief Justice of the United States Supreme Court – and, by the way, the Governor who ended slavery in the State of New York, although he lost one election doing it) was not a “radical” – he was the exact opposite, he was deeply conservative. People like this felt they were forced to take up arms (very much against how they wanted to behave) because they were faced by an evil doctrine – that Parliament could do anything it liked.

    But nor did English lawyers (as indebted as they were to Richard Hooker and other Anglican thinkers) depend on the CHURCH.

    The Roman Catholic Church had, since the time of Augustine, persecuted heretics – which makes it problematic from a libertarian point of view.

    “The natural law exists and trumps positive law” is fine – “and if you do not agree we will burn you” is not fine (although, actually, the death penalty from the ROMAN Inquisition was very rare)

    The Common Lawyers (like the lawyers of the pre Imperial Roman Republic) based their understanding of natural law (natural justice) on tradition – but tradition of a particular sort.

    Minds working on legal problems (cases) over centuries.

    Someone like Coke never argued that all previous judges agreed with him (so those who think that have refuted him by pointing to where this or that case goes against what he argued – just show their own ignorance) he cited centuries of previous cases to show that legal reasoning existed (that it was possible), not to show that every Common Law judge has always got it right (even with all the help of previous judgements, previous reasoning, to draw upon).

    When someone like Chief Justice Holt or (later) Chief Justice Mansfield made a judgement on (for example) slavery – they were not just pulling ideas out of their own heads, they were following to its logical conclusion the legal reasoning of others (although testing it with their own reason – adding to it).

    This is the difference between “law” and “legislation” (the latter being the arbitrary whims of Kings and Parliaments – and, these days, officials).

    Although it only works when the “thread is not broken” – i.e. when the judges are still in the tradition of natural justice that John Holt was (or, for that matter, Judge Samuel was – see the First Book of Samuel, for example Chapter Eight).

    And it does not matter what Church (if any) someone goes to – or what colour their skin is.

    By the way people – I am back to using my (worn out) Samsung.

    The Packard Bell replacement was full of bells and whistles (useless complexity) – and this evening would not work all.

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