LEGAL HISTORY

Doctor’s Commons

By Kevin Tang

For half a millennium the separation between the spiritual law Origins - α and the temporal law assured the livelihood and existence of The institution ‘Doctors’ Commons’ arose out a band of practitioners known as the Doctors’ Commons in of a seminary or sacerdotal college known as London. The jurisdiction grew out of the early episcopal courts Jesus Commons which operated in St Paul’s recognised by William I in 1072. It was a bastion of Canon and Cathedral churchyard in the City of London before 1400. Doctors ‘Commons refers to the Ecclesiastical Law. A distinct strain of Canon Law developed learned specialists in Canon and Ecclesiastical in England after the Reformation. This was the quintessential law trained in the Roman law (civilian law) tra- spiritual jurisdiction as distinct from the temporal courts and its dition and procedures. Doctors’ Commons, as profession. In a blaze of glory, Doctors’ Commons came and went. a title, was in use by 1532. It was conceived as a voluntary society for practitioners and scholars to live and practice amongst one another and to keep a ‘common table’ and as scholars they ‘commoned’ on site. In this respect, it was sim- ilar to the Inns of Court but Doctors’ Com- mons was exclusively for those who practised in the Ecclesiastical and the Civil law courts in London. It was never a teaching institution. This was the age when Civil law, Canon law and theology were pre-eminent university subjects. The common law was an orderless sci- ence the apprenticeship of which was lengthy.

76 [2018] (Autumn) Bar News The Journal of the NSW Bar Association LEGAL HISTORY

Before 1850, most lawyers, especially in stone house with a garden was constructed. cable to the ‘Nelson’ Indiamen in distress; Western Europe were men who had taken Doctors’ Commons was granted a Royal and you shall go there another day, and Holy Orders. The main centres of theological Charter by King George III on 22 June 1768 find them deep in the evidence, pro and and civil law learning since before the Dark where the Charter specified that the college con, respecting a clergyman who has mis- Ages included Bologna in Italy, The Sorbonne was for Doctors of Law, ‘exercent in the Eccle- behaved himself; and you shall find the in Paris and Oxford and Cambridge in Eng- siastical and Admiralty Courts’. judge in the nautical case, the advocate land amongst others. Most of the canon law at At Mountjoy House convenience was in the clergyman’s case, or contrariwise. the time arose externally to England and Eng- supreme. It had two quadrangles. When the They are like actors: now a man’s a judge, land developed its own system in time. Almost society moved in 1568, the premises comprised and now he is not a judge; now he’s all of the members of Doctors’ Commons held of a large hall where the Court of Arches sat one thing, now he’s another! Now he’s the degrees of DCL from Oxford or LLD from and a new court room was built for sittings something else, change and change about; Cambridge. of the High Court of Admiralty and also but it’s always a very pleasant, profitable the prerogative Court of Canterbury and the little affair of private theatricals, presented Scenario Bishop of London’s Consistory Court. There to an uncommonly select audience.’ was a dining hall and above which was a grand Originally Doctors Commons was located room, where the most valuable asset of the Causas in chambers in Paternoster Row by St Paul’s Society was stored. By this time, the Doctors’ Cathedral in the 1490s. By 1568 the Doctors’ Commons had amassed a library of books The practitioners of Doctors’ Commons had Commons became a much larger institution which was unique throughout Christendom to its name at least four monopolies. The cases and there were many more advocates and vis- – there were early manuscripts by Gratian that the advocates appeared in were of a certain iting scholars from all over Christendom from The Decretum, countless medieval illuminated type. the centres of theological scholarship Church manuscripts, folios in vellum, rare theological First was Ecclesiastical Law and Church Law Law and Civilian law e.g. The Sorbonne in works and eg. the original Rolls of Oleron. It and part from dealing with the more delicate Paris, Montpellier and Poitiers in France, questions of excommunications (requiring Coimbra in Portugal and Valladolid in a bell, a book and candles), cases were Spain. centred on misbehaving clergy - criminous Ammonius, Henry VIII Latin secretary, clerks, faculties and dispensations, heresy, responded to a letter from Erasmus of Rot- tithes, pew rights, church smiting and it terdam (1466-1536) dated 18 November was also an appellate jurisdiction (referrals 1511, enquiring about the possibility of came from a bewildering array of first in- lodgings in London. Ammonius suggested stance courts eg. archiepiscopal, episcopal, to Erasmus that lodgings were available decanal, prebendal etc…). in the Doctors’ Commons. Ammonius Second, the Doctors practised in mer- expressed the view that the venue was, cantile law (Admiralty and Maritime), in however, no better than a privy (cloaca). salvage and carriage cases, the law of prize Erasmus was one itinerant scholar dis- and shipwreck, not to mention the cases tinguished in the field of theology who of piracy on the high seas, were common. visited Doctors’ Commons but he does The advocates of the Doctors’ Commons not appear to have ever been a member of regularly argued commercial causes as the society or college known as Doctors’ merchant ships sailed into London from Commons. Other sojourners included every corner of the Earth. This was the age Francois Rabelais (1494-1553), Michel de of the lex mercatoria (the law merchant),

Montaigne (1533-1592) and Jean Calvin the origins of the commercial lists in Eng- Falkensteinfoto / Alamy Stock Photo (1509 – 1564). There were vast records on land, Australia and other common law ju- membership and signed subscription books for was an Aladdin’s cave of knowledge through risdictions. It commenced with self-regulating each year of its existence. In any event, it was the ages of ecclesiastical, theological and merchants from the Renaissance onwards in more likely that Erasmus and his theological Church literature. and around Continental Europe. A great part status entitled him to stay with his friend Lord Dickens observed the following in David of the success of Doctors’ Commons is directly Mountjoy in Mountjoy House which became Copperfield of this rather curious jurisdiction attributable to the critical mass of professionals the second and most significant location of of wives, wills and wrecks: with international contracts of sale and carriage Doctors’ Commons. Doctors Commons and which expertise had direct and practical acquired the land when the lease over the ‘You shall go to Doctors’ Commons one application. It was the most lucrative aspect of previous, modest premises became difficult to day, and find them blundering through the monopolies of Doctors’ Commons. maintain. The old building was destroyed in half the nautical terms in Young’s Thirdly, the Prerogative Wills office was an 1666 in the Great Fire of London. Dr Henry Dictionary, apropos of the ‘Nancy’ having annexe of the Doctors’ Commons. Members Harvey, the Dean of Arches and Master of run down the ‘Sarah Jane,’ or Mr Pegotty of the public could inspect a will, if they Trinity Hall Cambridge in 1559, facilitated the and the Yarmouth boatmen having put wished, for a fee. The Bank of England did purchase. Dr Harvey knew that venues for the off in a gale of wind with an anchor and not accept probate from elsewhere except the sittings of the Court of Arches were itinerant. Earlier the court sat mostly under the arches in the St Mary-le-Bow Church, hence its name. Cardinal Wolsey (1515-1529 Chancellor) had proposed a more salubrious college to be built for the Doctors. In 1568, when Doctors’ Commons moved to Knightrider Street, the accommodation was known as a colony or an appanage of Trinity Hall Cambridge. A large

The Journal of the NSW Bar Association [2018] (Autumn) Bar News 77 LEGAL HISTORY

London based Doctors’ Commons. The bank proctors and advocates before a judge sitting. It ity for appointments as if they had been called would not pay out. A will of any value or signif- is described in Sketches by Boz and brought to to the Bar on their admission date as advocates. icance would need to be proved by a member life in Dickens’ David Copperfield, when David The college was empowered to dispose of its of Doctors’ Commons and a formula was used considers becoming a Proctor in Doctors’ assets as it saw fit and to surrender the Charter denoting it. One significant will which arrived Commons: to the Crown, whereby it would be dissolved for probate/letters of administration was that and any residual property would belong to its of Napoleon Bonaparte, who died on 5 May ‘What is a proctor, Steerforth?’ said members in equal shares. Within days of those 1821 at St Helena. [David]. statutory enactments, the Matrimonial Causes Fourthly, the Doctors’ Commons also prac- Why, he is a sort of monkish attorney,’ Act that the Court of Divorce and Matrimo- tised in marital disputes. replied Steerforth. ‘He is, to some faded nial causes were to be henceforth secular. All It was a much fabled curial procedure and courts held in the Doctors’ Commons — practitioners had a right of audience. By 1858, susceptible to Dickensian characterisation and a lazy old nook near St. Paul’s Churchyard the Court of Probate and the High Court of theatrical description. Another rare jurisdic- — what solicitors are to the courts of Admiralty granted rights of audience to all tion peculiar to the Doctors’ Commons was law and equity. He is a functionary practitioners. the High Court of Chivalry which had been in whose existence, in the natural course For close to one thousand years, the Ec- operation since the 14th Century. Its business of things, would have terminated about clesiastical and Canon Law jurisdiction were was confined to disputes exclusively the domain of over armorial bearings, all the Doctors of Civil Law. decided according the law of The two most vociferous Arms. The court has only sat members of the college once since 1737 and was the who raised objection to the last English court to use the dissolution of the college procedure of the Civil Law. were Doctor John Lee and the college’s newest fellow Dramatis Personae Doctor Thomas Tristram. Both fought valiantly but in Doctors’ Commons was a vain. whole jurisdiction. It com- One argument remains prised of two particular pro- for the survival of Doctors’ fessions. The proctors were Commons. The dissolution in essence the equivalent of the Royal Charter was to Solicitors in the heathen imperfect. Consistent with courts. The advocates, how- the words of the Char- ever, appeared as Counsel, as ter, at all times Doctors’ barristers would before the Commons always had one judges in the Royal Courts. member in existence – the Antiqua Print Gallery / Alamy Stock Photo The Judges were appointed Dean of Arches who was from the ranks of Counsel. It was often the case two hundred years ago. I can tell you best not only the president of the college ex officio that in the jurisdiction, and any commission what he is, by telling you what Doctors’ but also a member of the college. The Dean could be full time or part time and this had Commons is. It’s a little out-of-the-way of Arches’ successors included Lord Penzance the effect of advocates straddling the Bar and place, where they administer what is and others until Sir Lewis Dibden who Bench – advocate one day and judge the next called ecclesiastical law, and play all kinds outlived the last elected fellow. Without the and vice versa. There was also the equivalent to of tricks with obsolete old monsters of writ of quo warranto issued by the Crown, an attorney or law officer, a King’s Advocate in acts of Parliament. . . . It’s a place that the college was arguably still extant. No the jurisdiction. has an ancient monopoly in suits about positive act of dissolution was performed. Its The advocates and judges wore scarlet robes people’s wills and people’s marriages, and governing body arguably endures to this day. trimmed in Ermine. The proctors wore black disputes among ships and boats.’ [Charles An entity remains upon which quo warranto robes trimmed in Ermine. Dickens, David Copperfield, Ch. 23, ‘I proceedings could act. The procedure for admission was usually to Corroborate Mr. Dick, and Choose a The Courts adjourned and the Doctors that of the Court of Arches as an Advocate and Profession,’ instalment 8, Dec. 1849] ceased to appear. The precious library fetched the candidate would petition the Archbishop a large sum of money when sold to private of Canterbury to be admitted. If successful the Res Extincta - Ω collectors. The premises was sold in 1865. In Archbishop issued a fiat to the Vicar-General 1867, the buildings were demolished and the who would prepare a re-script to the Dean of The Doctors’ Commons jurisdiction was jurisdiction vanished into thin air. Arches requiring him to admit the candidate dissolved in 1857 when its Royal Charter was Relevantly, a few decisions in Whitehall as an Advocate of the court and the admission surrendered under power conferred by statute ended the Doctors’ prestigious monopolies. would occur at the next session of the Arches establishing the new Probate Court. The Their forebears were the Canonists of the Court. One could be qualified in civil or canon demise had been gradual and insidious. The Middle Ages and their learned inheritance law but not necessarily. monopolies of the Doctors’ Commons would ceased. They had been expunged from the not survive the Victorian era. record. Mise-en-scene Three Royal Commissions were appointed Sic transit gloria mundi…. in the 1830s into Ecclesiastical and Church There is one known colour plate entitled ‘Doc- Law and the Diocesan system. Moves had been tors’ Commons’ which was published in 1808 made to undermine the Doctors’ Commons. Ackermann’s microcosm of London showing Inevitably, all advocates admitted in any of the interior of the main court (Mountjoy the Ecclesiastical courts were given rights of House) with a court in session complete with audience in any court in England and eligibil-

78 [2018] (Autumn) Bar News The Journal of the NSW Bar Association