The Incorporation Debate

Abstract

In the final act of Shakespeare’s Measure for Measure, charges of corruption are brought against Angelo, deputy of the Duke of Vienna, who ruled the town in the Duke’s (feigned) absence. Immediately upon his return, the Duke orders a trial with Angelo as judge: “Come, cousin Angelo/In this I will be impartial; be you judge/Of your own cause” (Shakespeare 1997, 185). Solomon might have admired the adroit cleverness of this trap, but English lawyers in the audience surely frowned in displeasure, for the Duke violated a fundamental principle of natural justice and English law: nemo judex in re sua (Orth 2003, chap. 2). This principle was the pivot of Lord Coke’s argument in Dr. Bonham’s Case (1610), some six years after the first recorded performance of the play. The Royal College of Physicians charged Bonham with practicing medicine without a license and tried him in its own court, found him guilty, fined and imprisoned him, and pocketed half the fine. All this was done in accord with its Parliament-given charter. Lord Coke, sitting in England’s Court of Common Pleas found the charter legally invalid because, like the Duke of Vienna, it made the College judge in its own cause (Coke 2003, I: 264–83). In an elaborate argument, Coke located the principle deep in the common law, but clearly its most important virtue was that it was a dictate of reason, a fundamental principle of fairness.