Common law and equality
Sunday, 5 December 2021 16:24
The common law and morality
Dr Bonham's Case (1609) 8 Co Rep 113, 118 a; 77 ER 646
- Act of Parliament gave the College of Physicians power to fine and / or imprison an unlicensed
person who practiced medicine
- Bonham practiced medicine several times and was fined several times - on his refusal to pay
the fines he was imprisoned
- Court ordered his release from prison:
○ "The censors cannot be judges, ministers and parties; judges to give sentence or
judgment; ministers to make summons; and parties to have the moiety [half] of the
forfeiture … and it appears in our books, that in many cases, the common law will
controul Acts of Parliament, and sometimes adjudge them to be utterly void: 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."
Jones v Randall (1774) Lofft 383, 385; 98 ER 706, 707
- Lord Mansfield: "[W]hatsoever is contrary, bonos mores et decorum [good morals and
propriety], the principles of our law prohibit, and the King's court, as the general censor and
guardian of the public manners, is bound to restrain and punish."
Shaw v DPP [1962] AC 220 (HL)
- Cited Lord Mansfield
► Obscene Publications Act 1959, s 2(4):
○ "A person publishing an article shall not be proceeded against for an offence at common
law consisting of the publication of any matter contained or embodied in the article
where it is of the essence of the offence that the matter is obscene."
► Street Offences Act 1959, s 1:
○ It is an offence 'for a common prostitute to loiter or solicit in a street or public place for
the purposes of prostitution'.
- Shaw published a directory of prostitutes so that they could be contacted
- He made no profit from any resulting prostitution
- The HOL upheld the conviction for common law 'conspiracy to corrupt public morals'
- Viscount Simonds:
○ The court has 'a residual power, where no statute has yet intervened to supersede the
common law, to superintend those offences which are prejudicial to the public welfare'
- Lord Morris:
○ "There are certain manifestations of conduct which are an affront to and an attack upon
recognised public standards of morals and decency, and which all well-disposed persons
would stigmatise and condemn as deserving of punishment. The cases afford examples
of the conduct of individuals which has been punished because it outraged public
decency or because its tendency was to corrupt the public morals."
Rhys-Harper v Relaxion [2003] 2 CMLR 44 (HL)
- Lord Hope:
○ Discrimination was 'morally unacceptable'
The common law and race
Constantine v Imperial Hotels (1943)
- Learie Nicholas Constantine was a black West Indian cricketer who played for Lancashire and
the West Indies
- Was working for the British Government as a welfare officer for West Indian factory workers in
WW2
Equality Law Page 1
, WW2
- Later he was a member of the Race Relations Board / barrister / peer
- During the war, he was refused accommodation for fear of upsetting resident white American
soldiers
- Sued the hotel and invoked the 'Ancient duties of some service providers' - there are some
ancient duties placed by the common law upon the likes of innkeepers, common carriers and
some monopoly enterprises such as ports and harbours, to accept all travellers and others
who are 'in a fit and reasonable condition to be received.'
- Constantine was awarded nominal damages for the breach of the innkeepers' duty to receive
all travellers
Pearne v Lisle (1749)
- Announced that slaves were chattels
Somerset v Stewart (1772)
- Stewart (based in Jamaica) had bought Somerset as a slave from Nigeria
- He visited England with Somerset and as he was going to board his ship to Jamaica, Somerset
escaped
- He was captured and placed on the ship
- English courts ordered his release
- Somerset was released
- This was not an end to slavery
Gregson v Gilbert (1783)
- 133 slaves were 'jettisoned' to preserve the remainder of the people on board due to a lack of
drinking water
- The only legal proceedings that followed concerned the ship owner's insurance claim based on
the notion that slaves were insurable chattels
- The claim succeeded but a retrial was ordered on the basis that new evidence had been found
to say that rain had fallen before the slaves had been thrown overboard
- There was no necessity to jettison the cargo as required by insurance law
- The case is known to preserve the commercial principle that it was lawful to jettison some of
the cargo to save the remainder
- In other words, the judgments concerned themselves only with insurance law, there was not a
hint of morality mentioned in this harrowing story
Scala Ballroom v Ratcliffe (1958) (CA)
- Ballroom had a 'colour bar' on black customers, although it did employ black musicians
- The musicians union objected and wanted to begin a boycott of any ballroom that wanted to
run a colour bar
- Scala Ballroom sought an injunction and lost - there was nothing unlawful about running a
boycott
- The CoA said:
○ A 'colour bar' was a policy that the owners of a ballroom 'were entitled to adopt in their
own business interests'.
Dockers Labour Club and Institute Ltd v Race Relations Board [1976] AC 285 (HL)
- Lord Diplock:
○ 'This is a statute [Race Relations Act 1968] which, however admirable its motives,
restricts the liberty which the citizen has previously enjoyed at common law to
differentiate between one person and another in entering or declining to enter into
transactions with them.'
The common law and sex
Women's 'disability':
- Common law held that women were unable to
Sit in the House of Lords: Viscountess Rhondda's Claim [1922] 2 AC 339 (HL)
Equality Law Page 2
Sunday, 5 December 2021 16:24
The common law and morality
Dr Bonham's Case (1609) 8 Co Rep 113, 118 a; 77 ER 646
- Act of Parliament gave the College of Physicians power to fine and / or imprison an unlicensed
person who practiced medicine
- Bonham practiced medicine several times and was fined several times - on his refusal to pay
the fines he was imprisoned
- Court ordered his release from prison:
○ "The censors cannot be judges, ministers and parties; judges to give sentence or
judgment; ministers to make summons; and parties to have the moiety [half] of the
forfeiture … and it appears in our books, that in many cases, the common law will
controul Acts of Parliament, and sometimes adjudge them to be utterly void: 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."
Jones v Randall (1774) Lofft 383, 385; 98 ER 706, 707
- Lord Mansfield: "[W]hatsoever is contrary, bonos mores et decorum [good morals and
propriety], the principles of our law prohibit, and the King's court, as the general censor and
guardian of the public manners, is bound to restrain and punish."
Shaw v DPP [1962] AC 220 (HL)
- Cited Lord Mansfield
► Obscene Publications Act 1959, s 2(4):
○ "A person publishing an article shall not be proceeded against for an offence at common
law consisting of the publication of any matter contained or embodied in the article
where it is of the essence of the offence that the matter is obscene."
► Street Offences Act 1959, s 1:
○ It is an offence 'for a common prostitute to loiter or solicit in a street or public place for
the purposes of prostitution'.
- Shaw published a directory of prostitutes so that they could be contacted
- He made no profit from any resulting prostitution
- The HOL upheld the conviction for common law 'conspiracy to corrupt public morals'
- Viscount Simonds:
○ The court has 'a residual power, where no statute has yet intervened to supersede the
common law, to superintend those offences which are prejudicial to the public welfare'
- Lord Morris:
○ "There are certain manifestations of conduct which are an affront to and an attack upon
recognised public standards of morals and decency, and which all well-disposed persons
would stigmatise and condemn as deserving of punishment. The cases afford examples
of the conduct of individuals which has been punished because it outraged public
decency or because its tendency was to corrupt the public morals."
Rhys-Harper v Relaxion [2003] 2 CMLR 44 (HL)
- Lord Hope:
○ Discrimination was 'morally unacceptable'
The common law and race
Constantine v Imperial Hotels (1943)
- Learie Nicholas Constantine was a black West Indian cricketer who played for Lancashire and
the West Indies
- Was working for the British Government as a welfare officer for West Indian factory workers in
WW2
Equality Law Page 1
, WW2
- Later he was a member of the Race Relations Board / barrister / peer
- During the war, he was refused accommodation for fear of upsetting resident white American
soldiers
- Sued the hotel and invoked the 'Ancient duties of some service providers' - there are some
ancient duties placed by the common law upon the likes of innkeepers, common carriers and
some monopoly enterprises such as ports and harbours, to accept all travellers and others
who are 'in a fit and reasonable condition to be received.'
- Constantine was awarded nominal damages for the breach of the innkeepers' duty to receive
all travellers
Pearne v Lisle (1749)
- Announced that slaves were chattels
Somerset v Stewart (1772)
- Stewart (based in Jamaica) had bought Somerset as a slave from Nigeria
- He visited England with Somerset and as he was going to board his ship to Jamaica, Somerset
escaped
- He was captured and placed on the ship
- English courts ordered his release
- Somerset was released
- This was not an end to slavery
Gregson v Gilbert (1783)
- 133 slaves were 'jettisoned' to preserve the remainder of the people on board due to a lack of
drinking water
- The only legal proceedings that followed concerned the ship owner's insurance claim based on
the notion that slaves were insurable chattels
- The claim succeeded but a retrial was ordered on the basis that new evidence had been found
to say that rain had fallen before the slaves had been thrown overboard
- There was no necessity to jettison the cargo as required by insurance law
- The case is known to preserve the commercial principle that it was lawful to jettison some of
the cargo to save the remainder
- In other words, the judgments concerned themselves only with insurance law, there was not a
hint of morality mentioned in this harrowing story
Scala Ballroom v Ratcliffe (1958) (CA)
- Ballroom had a 'colour bar' on black customers, although it did employ black musicians
- The musicians union objected and wanted to begin a boycott of any ballroom that wanted to
run a colour bar
- Scala Ballroom sought an injunction and lost - there was nothing unlawful about running a
boycott
- The CoA said:
○ A 'colour bar' was a policy that the owners of a ballroom 'were entitled to adopt in their
own business interests'.
Dockers Labour Club and Institute Ltd v Race Relations Board [1976] AC 285 (HL)
- Lord Diplock:
○ 'This is a statute [Race Relations Act 1968] which, however admirable its motives,
restricts the liberty which the citizen has previously enjoyed at common law to
differentiate between one person and another in entering or declining to enter into
transactions with them.'
The common law and sex
Women's 'disability':
- Common law held that women were unable to
Sit in the House of Lords: Viscountess Rhondda's Claim [1922] 2 AC 339 (HL)
Equality Law Page 2
