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Phillimore, Sir Robert Joseph, baronetlocked

(1810–1885)
  • Norman Doe

Sir Robert Joseph Phillimore, baronet (1810–1885)

by Lock & Whitfield, pubd 1877

Phillimore, Sir Robert Joseph, baronet (1810–1885), lawyer, second son of Joseph Phillimore (1775–1855) and his wife, Elizabeth, née Bagot (d. 1859), was born at Whitehall, London, on 5 November 1810. John George Phillimore and Greville Phillimore were his brothers. In 1824 he was elected king's scholar at Westminster School, London, and from there went to Christ Church, Oxford, with a studentship, matriculating on 16 May 1828. He won the college prizes for Latin verse and Latin prose, and graduated BA with a second class in classics on 26 January 1832; he became MA in 1834, BCL on 14 May 1835, and DCL on 2 November 1838. Among his contemporaries was W. E. Gladstone, with whom he formed a lifelong friendship. Phillimore was described by Dean Stanley, at their first meeting, in 1835, as 'very handsome and very clever'. He married on 19 December 1844 Charlotte Anne (d. 1892), third daughter of John Denison MP, of Ossington Hall, Newark, and sister of John Evelyn Denison, Viscount Ossington, speaker of the House of Commons.

After holding the post of clerk in the office of the Board of Control (20 February 1832 to 6 April 1835), Phillimore embarked on a legal career, as both a civil and a common lawyer; later he was also a politician. He was admitted an advocate of Doctors' Commons on 2 November 1839, where he became steward (1847–9), librarian (1850, 1853), treasurer (1851–2), and president (from 1 August 1867 until before 20 October 1875). The attacks on Doctors' Commons, culminating in its demise in 1865, provoked Phillimore to defend in a tract of 1843 the retention of the advocates' monopoly of audience in the ecclesiastical courts; to criticize the appointment as diocesan chancellors of those who were not doctors of law; and, in 1844, to defend the practice of the ecclesiastical courts, particularly that of giving written as opposed to oral evidence. He was official of the archdeaconry of Oxford, commissary-general of St Paul's and Westminster (he resigned these posts in 1867), chancellor of Chichester in 1844, Salisbury in 1845, and Oxford in 1855, dean of the court of arches from 1867 to 1875, and master of faculties from 1873 to 1875. For Phillimore, deanship of the court of arches was more a professional honour than a profitable post: he complained publicly in 1872 that his remuneration as dean was insufficient to cover the expenses of the office. His predecessor, Stephen Lushington, had continued after resignation in 1867 in the office of master of faculties, traditionally the main source of income for the dean of arches. Phillimore became master of faculties on Lushington's death in 1873 and was the last member of Doctors' Commons to hold the offices of official-principal and dean of arches.

As dean of arches Phillimore had to entertain several extremely controversial cases, concerning ornaments and ritual, resulting from the Oxford Movement. He was of high-church persuasion and had acted as defence counsel in the doctrine case against his brother-in-law, George Anthony Denison, in 1857, over which he had been in close contact with Gladstone. His decisions as dean contributed significantly to contemporary ecclesiastical jurisprudence, being moulded by his view of the Church of England as part of the true Catholic church. For Phillimore, the schism between the Eastern and Western churches had been caused by 'the arrogance, ambition and un-catholic conduct of Rome' (R. Phillimore, Ecclesiastical Law, 1873, 2); he doubted the canonical validity of the First Vatican Council and pronounced its doctrine of papal infallibility 'at variance with all sound catholic teaching and principle' (ibid., 1922). He developed in Martin <i>v.</i> Mackonochie (1866–8) and Elphinstone <i>v.</i> Purchas (1870) the rule that, in determining the lawfulness of ceremonies, it was necessary to distinguish between those which were immutable and those which were not, accepting in the former case that 'the true criterion is conformity with primitive and catholic use' Martin <i>v.</i> Mackonochie, 1868. In the Mackonochie case he held as new and unauthorized ceremonies at holy communion the elevation of the consecrated elements, the use of incense, and the practice of adding water to wine during the consecration. It was not, however, an offence for a priest to engage in excessive kneeling or prostration, for lighted candles to be placed on the altar, or for water to be mixed with wine before the service of holy communion; on these points Phillimore was reversed by the privy council. The litigation continued and in 1874 Phillimore held it unlawful to sing the Agnus Dei between consecration and reception of communion, and for the priest to make the sign of the cross to the congregation. In the heresy case of Sheppard <i>v.</i> Bennett (1870), he held that it was lawful to assert a real presence in eucharistic elements, to claim that holy communion is to be understood in a spiritual sense, and to speak of communion as a sacrifice; but that it was unlawful to teach that there was a visible presence of Jesus at the time of celebration. He decided in Jenkins <i>v.</i> Cook (1875) that a priest could lawfully exclude from holy communion a person who denied the doctrine of eternal punishment—this too was reversed by the privy council. His views on liturgical law were represented in a letter on clerical discipline to the archbishop of Canterbury in 1872, and a collection of his own leading ecclesiastical judgments of 1867–75 appeared in 1876.

On the common law and Admiralty side, while his defence of Doctors' Commons had been critical of the learning of common-law barristers, Phillimore was himself called to the bar at the Middle Temple in London in 1841, was made queen's counsel on 16 January 1858, and became a bencher at Middle Temple on 1 February of the same year. His reading at Middle Temple in 1861 is said to have revived the practice, though his elder brother John George Phillimore had given a reading there on canon law in 1851. Phillimore became an Admiralty advocate in 1855, was queen's advocate from 1862 to 1867, was a judge of the Cinque Ports from 1855 to 1875 (an office his father had held before him), was the last judge of the high court of Admiralty, from 1867 to 1875, and was judge advocate-general from 1871 to 1873. As Admiralty judge he widened the jurisdiction of the Admiralty court by generous interpretations of earlier statutes, notably on damage to submarine cables in The Clara Killam (1870).

Following court reorganization under the Judicature Act 1875, on 1 November 1875 Phillimore was appointed judge of the High Court of Justice, Probate and Admiralty division, the division which assumed the functions of the older civilian courts. Under the statute he was to retain the same rank, salary, and pension as if he had been newly appointed to the High Court, provided he resigned all other emoluments; consequently, he resigned the offices of dean of arches and master of faculties. He was the only member of Doctors' Commons to sit in the High Court, and he did so, it seems mainly in Admiralty cases, until his retirement on 21 March 1883.

Phillimore labelled himself a Liberal Conservative; his political career began with unsuccessful candidatures for Tavistock in July 1847, April 1852, and July 1852, but he was seated on petition in February 1853 without a new election. He was a long-standing friend and correspondent of Gladstone, from whom his baronetcy was conferred in 1881 (and whose wife was godmother to Phillimore's eldest daughter, Catherine). He was among Gladstone's first supporters for the Oxford University seat in 1847 and he followed the same movement from Conservative into Peelite politics. He supported generally the Aberdeen government, and in 1853 he introduced bills to amend the law of simony and the sale of presentations. He also made speeches on church rates (1853), against the abandonment of the right to seize enemy goods in neutral ships (1854), and in 1857 on the dispute about the lorcha Arrow during the Second Opium War. In 1855 Phillimore himself introduced a bill (with the assistance of Lord Brougham) to permit oral testimony in the ecclesiastical courts, and in 1856 he was responsible for the statute which abolished the jurisdiction of the church courts over defamation. He retired in 1857 but contested Coventry unsuccessfully in March 1857 when, in his manifesto, he declared himself 'opposed to all violent and organic changes in the framework of our Constitution' (Baker, 711), a notion he had developed in an earlier pamphlet, The Constitution as it is, or, Democracy (1837), which contained a defence of constitutional monarchy against the republicanism advocated as a result of the Reform Act 1832.

After leaving parliament Phillimore served on numerous royal commissions: on those of royal courts of justice (1859), the judicature (1867), ritual (1867), naturalization (1868), and neutrality (1868). His interest in international law, nurtured as a law officer during the American Civil War, resulted in publication of an important treatise between 1854 and 1861; chairmanship of the Albertico Gentili Committee to erect a memorial tablet in St Helen's, Bishopsgate, and to print a new edition of Gentili's De jure belli et pacis (1875); and presidency of the Association for the Reformation and Codification of the Laws of Nations, giving the inaugural lecture at its annual conference in 1879.

Phillimore was a prolific writer, principally on church law and international law. In 1842 he authored Two Letters to Lord Ashburton on International Law, and A Letter to Mr Gladstone, both respecting ships, and The Case of Creole. Ties through his father with the Grenville family led to his being entrusted with the management and publication of Memoirs and Correspondence of George Lord Lyttelton from 1734 to 1773. He became in 1842 the ninth and last editor of Richard Burn's The Ecclesiastical Law (1763), and subsequently published The Study of the Civil and Canon Law (1843), Thoughts on the Law of Divorce in England (1844), The Law of Domicil (1847), The Practice and Courts of Ecclesiastical Law (1848), and Russia and Turkey (1853), a pamphlet on Russia's claim to intervene on behalf of Christian subjects of Turkey. His four-volume Commentaries upon International Law (1854–61) saw a second edition between 1871 and 1874, and a third between 1879 and 1889. It was a formidable statement of the high-church view of nationality and internationality, with a striking analysis of the nature of the Ottoman empire's relationship to the Concert of Europe which was much used during the various phases of the Eastern Question in the 1870s. A German scholar, he translated G. E. Lessing's Laocoon, which he published with notes, in 1874. Phillimore is best remembered today as author of The Ecclesiastical Law of the Church of England in two volumes (1873–6), with a second edition, assisted by C. F. Jemmett, in 1895. A monumental work of 2466 pages, carrying in enormous detail historical themes culled from judicial decisions, it was designed for practitioners and is systematically divided into ten sections, the last of which treats the Church of England's relation to churches in the worldwide Anglican communion.

Phillimore was knighted on 17 September 1862, made privy councillor in 1867, and granted a baronetcy on 21 December 1881. He was a diarist, but only the many entries concerning Gladstone have survived. He and his family made a complete record of Gladstone's public speeches, which his family later presented to St Deiniol's Library, Hawarden. Phillimore died on 4 February 1885 at his home, The Coppice, near Henley-on-Thames, and was buried at Shiplake churchyard. He was succeeded to the baronetcy by his only son, Sir Walter Phillimore, a high-court judge, and had three daughters, Catherine Mary and Lucy (authors of several works), and Alice Grenville, a member of the Institute of Sick Nursing in 1883.

Sources

  • J. H. Baker, ‘Famous English canon lawyers: Sir Robert Phillimore, QC, DCL (†1885) and the last practising doctors of law’, Ecclesiastical Law Journal, 4 (1996–7), 709–19
  • WWBMP, 1.310
  • J. Foster, Men-at-the-bar: a biographical hand-list of the members of the various inns of court, 2nd edn (1885), 363
  • F. L. Wiswall, The development of admiralty jurisdiction and practice since 1800 (1970)
  • G. D. Squibb, Doctors' Commons: a history of the College of Advocates and Doctors of Law (1977), 117, 201
  • A. W. B. S. [A. W. B. Simpson], ‘Phillimore, Sir Robert Joseph’, Biographical dictionary of the common law, ed. A. W. B. Simpson (1984)
  • British Museum general catalogue of printed books … to 1955, BM, 188 (1963), 1013

Archives

  • Christ Church Oxf., political and other corresp. and papers
  • Hants. RO, family corresp.
  • BL, corresp. with Lord Carnarvon, Add. MSS 60859–60862
  • BL, corresp. with W. E. Gladstone, Add. MSS 44276–44278
  • Bodl. Oxf., letters to Samuel Wilberforce and papers
  • Ches. & Chester ALSS, letters to Lord de Tabley
  • LPL, corresp. with A. C. Tait and related papers
  • St Deiniol's Library, letters to Catherine Gladstone

Likenesses

  • studio of R. Beard, daguerreotype, 1845, NPG
  • Lock & Whitfield, woodburytype, NPG; repro. in Men of mark (1877) [see illus.]
  • carte-de-visite, NPG
  • wood-engraving, NPG; repro. in ILN (14 Feb 1885)

Wealth at Death

£9552 0s. 2d.: resworn probate, July 1885, CGPLA Eng. & Wales

J. Foster, ed., , 4 vols. (1887–8), later edn (1891); , 4 vols. (1891–2); 8 vol. repr. (1968) and (2000)
J. Sainty, ed., , SeldS, suppl. ser., 7 (1987)
Calendars of the grants of probate … made in … HM court of probate [England and Wales]
R. G. Thorne, ed., , 5 vols. (1986)
J. Sainty, ed., , SeldS, suppl. ser. 10 (1993)
W. E. Gladstone , ed. M. R. D. Foot & H. C. G. Matthew, 14 vols. (1968–94)
M. Stenton & S. Lees, eds., , 4 vols. (1976–81)