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The Doctor and Student

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Cover page of a 1593 edition of The Doctor and Student, printed by Richard Tottel.
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.

Textual history

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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

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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

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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]

References

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  1. ^ a b c 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. ^ a b Thorne 1930, p. 421.
  3. ^ Thorne 1930, p. 422.
  4. ^ Thorne 1930.
  5. ^ a b Eppley 2013, p. 61.
  6. ^ Eppley 2013, pp. 61–62.
  7. ^ Hanson 1970, pp. 256–257.
  8. ^ a b Hanson 1970, p. 257.
  9. ^ a b McIlwain 1910, p. 105.
  10. ^ Walters 2003, p. 339.
  11. ^ Schoek 1987, p. 83.
  12. ^ Hanson 1970, p. 256.
  13. ^ a b 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. ^ a b 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.

Sources

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