Doctor's Commons

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.

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