The Doctor and Student

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Cover page of a 1593 edition of The Doctor and Student, printed by Richard Tottel. Collection of the British Library. The Doctor and Student - 1593.jpg
Cover page of a 1593 edition of The Doctor and Student, printed by Richard Tottel. Collection of the British Library.

The Doctor and Student: Or Dialogues between a Doctor of Divinity and a Student in the Laws of England is a legal treatise by Christopher St. Germain, first published in the early 16th century. As its name suggests, the work is structured as a set of dialogues between the eponymous doctor, a doctor of divinity; and a student of the English common law. Doctor and Student explores the relationship between the common law and equity and distinguishes a number of sources of legal principles. It was an important text for English law students at least until William Blackstone's Commentaries on the Laws of England was published in the mid-18th century.

Contents

Textual history

Doctor and Student was originally published in Latin, in two separate dialogues. It was written anonymously. [1] The first dialogue was first published in Latin in 1523 by John Rastell; [2] the second was first published in English on 24 November 1530 by Peter Treveris. [3] Various other editions, with significant alterations in content, were published in the early 1530s. [4] The two dialogues have been printed together since 1543. [2] In total, 21 editions of the dialogues (published either separately or jointly) were released before 1600. [1]

Argument

The work is organized into two dialogues between a doctor of divinity and a student of law. [5] The first describes English law, arguing for a robust form of parliamentary supremacy. [5] The second describes the relation between statute and common law, on the one hand; and ecclesiastical law, on the other. [6] Hanson divides the argument differently. First, according to Hanson, Doctor and Student establishes a typology of law, identifying its "types and sources". [7] Second, it embarks on an extensive discussion of equity. [8]

In Doctor and Student, St. Germain begins by describing the law eternal, or the divine source from which all laws are derived. The laws derived from this, in turn, he divides into "the law of God", i.e. revelation; "the law of man," i.e. positive law; and "the law of reason". [9] The law eternal is manifested in the three kinds of temporal laws. [8] Later in the work, St. Germain outlines six sources of English law: the laws of God, the laws of reason, "general" and "local" custom, maxim, and statute. [10]

Schoek argues that St. Germain, in Doctor and Student, "was doing nothing less than challenging the traditional system of canon law". [11] This is evidently due in part to the radical conclusion of the work: according to Hanson, the book advances a legal theory that "subordinate[s] all law to regal authority". [12] Sale suggests that the work involves a "challenge" by the eponymous doctor and student to the common law "from the perspective of conscience". [13] This was a somewhat bizarre critical stance, because at the time the common law and equity were enforced by different courts in England; the Court of Chancery (since abolished) was where matters of conscience and fairness were most relevant to the adjudication of disputes, whereas the common law courts concerned themselves with a stricter application of legal precedent. [13]

Reception

Thomas More, in Apology and The Debellation of Salem and Bizance, responded negatively to Doctor and Student. [14] [1] St. Germain delivered a rebuttal in 1533. [15]

Doctor and Student was relied on by English law students until the advent of Blackstone's Commentaries on the Laws of England in 1765. [15]

The publication of Doctor and Student is recognized by modern scholars as the transition point where the Court of Chancery began to evolve from a court of conscience into a court of equity. [16]

Charles Howard McIlwain describes Doctor and Student as "probably the most valuable source of our knowledge concerning the relation of the law of nature to the law of England in the late mediaeval or early modern times". [9]

Related Research Articles

<span class="mw-page-title-main">Common law</span> Law created by judicial precedent

In law, common law is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions.

<span class="mw-page-title-main">Thomas More</span> English politician, author and philosopher (1478–1535)

Sir Thomas More PC, venerated in the Catholic Church as Saint Thomas More, was an English lawyer, judge, social philosopher, author, statesman, and noted Renaissance humanist. He also served Henry VIII as Lord High Chancellor of England from October 1529 to May 1532. He wrote Utopia, published in 1516, which describes the political system of an imaginary island state.

<span class="mw-page-title-main">Equity (law)</span> Set of legal principles supplementing but distinct from the Common Law

In the field of jurisprudence, equity is the particular body of law, developed in the English Court of Chancery, with the general purpose of providing legal remedies for cases wherein the common law is inflexible and cannot fairly resolve the disputed legal matter. Conceptually, equity was part of the historical origins of the system of common law of England, yet is a field of law separate from common law, because equity has its own unique rules and principles, and was administered by courts of equity.

<span class="mw-page-title-main">English law</span> Legal system of England and Wales

English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.

<span class="mw-page-title-main">Court of Chancery</span> Court of equity in England and Wales (c. 1350–1875)

The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the estates of lunatics and the guardianship of infants.

<span class="mw-page-title-main">William Blackstone</span> English jurist, judge, and politician (1723–1780)

Sir William Blackstone was an English jurist, justice and Tory politician most noted for his Commentaries on the Laws of England, which became the best-known description of the doctrines of the English common law. Born into a middle-class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke College, Oxford, in 1738. After switching to and completing a Bachelor of Civil Law degree, he was made a fellow of All Souls College, Oxford, on 2 November 1743, admitted to Middle Temple, and called to the Bar there in 1746. Following a slow start to his career as a barrister, Blackstone became heavily involved in university administration, becoming accountant, treasurer and bursar on 28 November 1746 and Senior Bursar in 1750. Blackstone is considered responsible for completing the Codrington Library and Warton Building, and simplifying the complex accounting system used by the college. On 3 July 1753 he formally gave up his practice as a barrister and instead embarked on a series of lectures on English law, the first of their kind. These were massively successful, earning him a total of £453, and led to the publication of An Analysis of the Laws of England in 1756, which repeatedly sold out and was used to preface his later works.

<i>Commentaries on the Laws of England</i> 18th-century treatise by Sir William Blackstone

The Commentaries on the Laws of England are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford between 1765 and 1769. The work is divided into four volumes, on the rights of persons, the rights of things, of private wrongs and of public wrongs.

<span class="mw-page-title-main">Doctor of Divinity</span> Holder of an advanced academic degree in divinity

A Doctor of Divinity is the holder of an advanced academic degree in divinity.

<span class="mw-page-title-main">Judicature Acts</span> UK laws restructuring the English-Welsh court system (1873–1899)

In the history of the courts of England and Wales, the Judicature Acts were a series of Acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts of England and Wales. The first two Acts were the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875, with a further series of amending acts.

<span class="mw-page-title-main">Court of equity</span> Court authorized to apply principles of equity to cases

A court of equity, also known as an equity court or chancery court, is a court authorized to apply principles of equity rather than principles of law to cases brought before it. These courts originated from petitions to the Lord Chancellor of England and primarily heard claims for relief other than damages, such as specific performance and extraordinary writs. Over time, most equity courts merged with courts of law, and the adoption of various Acts granted courts combined jurisdiction to administer common law and equity concurrently. Courts of equity are now recognized for complementing the common law by addressing its shortcomings and promoting justice.

The Court of Requests was a minor equity court in England and Wales. It was instituted by King Richard III in his 1484 parliament. It first became a formal tribunal with some Privy Council elements under Henry VII, hearing cases from the poor and from servants of the King. It quickly became popular for its low cost of bringing a case and rapid processing time, earning the disapproval of the common law judges. Two formal judges, the "Masters of Requests Ordinary", were appointed towards the end of Henry VIII's reign, with an additional two "Masters of Requests Extraordinary" appointed under Elizabeth I to allow two judges to accompany her on her travels around England. Two more ordinary masters were appointed under James I of England, with the increasing volume of cases bringing a wave of complaints as the court's business and backlog grew.

Sources of law are the origins of laws, the binding rules that enable any state to govern its territory.

Nominate reports, also known as nominative reports, named reports and private reports, is a legal term from common-law jurisdictions referring to the various published collections of reports of English cases in various courts from the Middle Ages to the 1860s, when law reporting was officially taken over by the Incorporated Council of Law Reporting, for example Edmund F. Moore's Reports of Cases Heard and Determined by the Judicial Committee and the Lords of His Majesty's most Honourable Privy Council on Appeal from the Supreme and Sudder Dewanny Courts in the East Indies published in London from 1837 to 1873, referred to as Moore's Indian Appeals and cited for example as: Moofti Mohummud Ubdoollah v. Baboo Mootechund 1 M.I.A. 383.

Christopher St. Germain (1460–1540) was an English lawyer, legal writer, and Protestant polemicist.

<span class="mw-page-title-main">Charles Howard McIlwain</span>

Charles Howard McIlwain was an American historian and political scientist. He won the Pulitzer Prize for History in 1924. He was educated at Princeton University and Harvard University and taught at both institutions, as well as the University of Oxford, Miami University, and Bowdoin College. Though he trained as a lawyer, his career was mostly academic, devoted to constitutional history. He was a member of several learned societies and served as president of the American Historical Association in 1935–1936.

Books of authority is a term used by legal writers to refer to a number of early legal textbooks that are excepted from the rule that textbooks are not treated as authorities by the courts of England and Wales and other common law jurisdictions.

<i>Earl of Oxfords case</i>

Earl of Oxford's case (1615) 21 ER 485 is a foundational case for the common law world, that held equity takes precedence over the common law.

<span class="mw-page-title-main">History of equity and trusts</span> Historical development of Chancery jurisdiction and trusts

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The writ of estrepement, or de estrepamento, was a writ in common law countries that would be used to prevent estrepement, a type of 'voluntary waste'. The waste that the writ would issue to prevent would be waste that occurred in response to a lawsuit seeking possession of the land, or a judgment against the waster where possession had not yet been delivered.

Certain former courts of England and Wales have been abolished or merged into or with other courts, and certain other courts of England and Wales have fallen into disuse.

References

  1. 1 2 3 Cummings 2009, p. 471: "A source which was certainly known to More was Christopher St German's Doctor and Student. … It was immensely popular: twenty-one editions of the First and Second Dialogues were printed before 1600; it was first translated into English in 1530. St German published his writing anonymously. While his authorship of Doctor and Student was an open secret, later works such as The Division between the spirytualitie and temporaltie of 1532 were more carefully concealed. These later treatises were rigorously confuted by More in works such as the Apology of 1532 …"
  2. 1 2 Thorne 1930, p. 421.
  3. ↑ Thorne 1930, p. 422.
  4. ↑ Thorne 1930.
  5. 1 2 Eppley 2013, p. 61.
  6. ↑ Eppley 2013, pp. 61–62.
  7. ↑ Hanson 1970, pp. 256–257.
  8. 1 2 Hanson 1970, p. 257.
  9. 1 2 McIlwain 1910, p. 105.
  10. ↑ Walters 2003, p. 339.
  11. ↑ Schoek 1987, p. 83.
  12. ↑ Hanson 1970, p. 256.
  13. 1 2 Sale, Carolyn (12 March 2015). "'Perfect Conscience': Hamlet, Christopher St. German's Doctor and Student, and the English Common Law". Actes des congrès de la Société française Shakespeare. 33. doi: 10.4000/shakespeare.3479 . ISSN   2271-6424.
  14. ↑ Schoek 1987, p. 77.
  15. 1 2 Dickens, Arthur Geoffrey (1964). The English Reformation. Schocken Books. p.  97. OCLC   1152596555. The English version [of the dialogue] and its extensions, together known as Doctor and Student, not only enunciated anticlerical doctrine but also exerted a prolonged influence on English thought, since they formed a guide for law-students [ sic ] up to the time of Blackstone.
  16. ↑ Klinck, Dennis R. (2010). Conscience, Equity and the Court of Chancery in Early Modern England. Farnham: Ashgate Publishing. p. 44. ISBN   9781317161950 . Retrieved 11 November 2023.

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