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Famous English Canon Lawyers: X Sir Robert Phillimore, QC, DCL († 1885) and the Last Practising Doctors of Law

  • J. H. Baker (a1)
Extract

At the time of the sale of Doctors' Commons in 1865. there were twenty-seven surviving members of the Society of Doctors of Law, some of whom were retired from practice. Five of them (Adams. Deane, Harding, Phillimore and Twiss) had been given silk in 1858, after the loss of their monopoly of audience, and in the case of Dr Adams this set a precedent for granting that rank to a law graduate who was not a barrister. (The precedent was followed in the case of Dr Tristram in 1881.) The other Civilian silks had long before taken the precaution of being called to the common-law Bar—as had fourteen of the twenty-seven advocates mentioned above—and a few were benchers of their inns. Dr Spinks had been admitted and called to the Bar by the Inner Temple in 1858, but did not take silk until 1866. A partial assimilation had thus began, as a prelude to extinction.

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1 Dr Trenchard had retired as long ago as 1835. and Sir Howard Elphinstone had retired in 1846 on succeeding to his baronetcy. Dr Matcham had resigned his membership in 1835. Unless otherwise stated, biographical details are from Dictionary of National Biography, Who was Who 1897–1915; Boase, T. S. R., Modem English Biography (18921921); Squibb, G., Doctors' Commons (1977).

2 In addition to those mentioned in the text. Dr Lee (a bencher of Gray's Inn) took silk in 1864: he died in 1866.

3 He was admitted and called in the same month, by special dispensation.

4 There is a brief account of his life by Hanley, H. A.. Dr John Lee of Hartwell (Buckinghamshire Record Office, 1983), with a guide to his papers.

5 Hall, G. D. G. ed., Glanvill (1965), pp. lxiii–lxiv.

6 He is not to be confused with his more distinguished father. Sir Herbert, who was King's Advocate.

7 Rob. Ecc. Dr Robertson is not to be confused with Dr Robinson, the Admiralty reporter.

8 In addition. Dr Waddilove produced a Digest of Cast's (1849).

9 Dr Pritchard was not. however, a member of Doctors' Commons. He was the author of A Digest of the Law and Practice of the Court for Divorce and Matrimonial Causes (1864: new ed. 1874). This was a revised version of the Handbook which he had written in conjunction with Pritchard, W. T., proctor and solicitor, in 1859. It was merely a digest of case law and legislation.

10 Waddilove, A., The Laws of Marriage and the Laws of Divorce of England (1864). He also wrote Church Patronage historically, legally and morally considered in Connection with the Offence of Simony (1854).

11 DrPratt, also wrote The Law of Contraband of War (1856).

12 There is a brief life by Lord Sumner in DNB. See also Manson, E., The Builders of our Law during the Reign of Queen Victoria (1895), pp. 163168; Holdsworth, , History of English Law. vol. XVI, pp. 146150. Several boxes of his draft papers and offprints are preserved at Christ Church. Oxford, where he was a Student.

13 The family had originally spelt its name Fynamore, or Phinimore, and changed to the later spelling in the 17th century: Burke's Peerage and Baronetage (105th ed., 1980). pp. 21142116.

14 Introduction to the Study and History of Roman Law (1848); ‘Influence of the Canon Law’ (in Oxford Essays, 1858): Private Law among the Romans from the Pandects (1863). He also delivered a ‘reading’ on Canon law in the Middle Temple in 1851.

15 Holdsworth, , History of English Law. vol. XV, p. 360. See Phillimore, J. G.. Principles and Maxims of Jurisprudence (1856), which is primarily an exercise in comparative law.

16 The Constitution as it is or Democracy? (1837).

17 Mrs Gladstone was godmother to Sir Robert's eldest daughter Catherine.

18 Commentaries upon International Law (1854–61). 4 volumes. There were three editions.

19 The principal purposes were to erect a memorial tablet in St Helen's. Bishopsgate. and to print a new edtion of De Jure Belli et Pacis: papers in Christ Church.

20 See International Law: inaugural lecture delivered by Sir Robert Phillimore [to the Association] (1879).

21 He was succeeded as Queen's Advocate by Sir Travers Twiss. who was not replaced upon his resignation in 1872: the office has been in abeyance since then. The last Admiralty Advocate was Dr Deane (following Twiss).

22 Clergy Discipline: a letter to His Grace the Archbishop of Canterbury from Sir R′ Phillimore (1872), p. 8. See also Waddams, S. M., Law, Politics and the Church of England (Cambridge, 1992), p. 9.

23 Supreme Court of Judicature Act 1873 (36 & 37 Vict c. 66). ss. 5. II: Supreme Court of Judicature Act 1875 (38 & 39 Vict c. 77). s. 8.

24 Sainty, J., The Judges of England 1272–1990 (1993), p. 220.

25 Lord Penzance, President of the Division, had succeeded Phillimore as Dean of Arches in 1875.

26 It is notable that none of the judges of the statutory probate and divorce courts between 1858 and 1875 were Civilians.

27 His manuscript reading in the Middle Temple (1861) is at Christ Church. It was said to have been a revival of readings there, albeit in the form of a simple lecture: Williamson, J. B., The Middle Temple Bench Book (1937), p. 227. However, his elder brother had given a reading in 1851: above, note 14.

28 The Study of the Civil and Canon Law considered in its Relation to the State, the Church, and the Universities, and its Connection with the College of Advocates (1843). 71 pp. A similar discourse was printed as The Practice and Courts of Ecclesiasiical Law … in a letter to The Rt Hon, W. E. Gladstone (1848). responding to charges made in the Commons by Mr E. Pleydell-Bouverie. See also Speech of Robert Phillimore. Esq., M. P., in the House of Commons, Tuesday, March 1. 1853 on the motion of Mr Collier (1853). extracted from Hansard.

29 Manning, J.. Serviens ad Legem (1840) (in the Privy Council); Re the Serjeants at Law (1839) 6 Bing. N.C. 235 (in the Common Pleas); Baker, J. H., Order of Serjeants at Law (1984), pp. 118122.

30 County Courts Act 1846 (9 & 10 Vict c. 95); Baker, , Serjeants at Law, p. 122.

31 Ecclesiastical Jurisdiction Act 1545 (37 Hen. VIII c. 17) (so that they be Doctors of the Civil Law): this applied only to laymen. The statute was repealed in 1863.

32 Only a doctorate from Oxford or Cambridge was acceptable.

33 Phillimore, R., Thoughts on the Law? of Divorce in England (1844), pp. 4041. cited in Waddams, S. M., Law. Politics anil the Church of England (1992), p. 14. In The Practice and Courts ol Ecclesiastical Law (1848), pp. 5359, he pointed out that the popularity of trial by judge alone had been proved by the free choice of litigants using the new county courts. He also argued (ibid., pp. 50–51) that detailed positions and articles rendered a party less open to surprise than common-law pleadings.

34 Stephen Lushington. D.C.L. (1996) 4 Ecc. LJ 556. at p. 558.

35 Clergy Discipline: a letter to His Grace the Archbishop of Canterbury from Sir R′ Phillimore (1872), p. 6.

36 He had also written, in the interim, The Law of Doomicil (1847); Practice of Ecclesiastical and Civil Law (1848).

37 See ‘John Godolphin and Richard Burn’ (1994) 3 Ecc. LJ. 214. at p. 221.

38 Ecclesiastical Law of the Church of England 1873). preface, p. v.

39 Ecclesiastical Law, p. 1991 (and pp. 2000–2001). This opinion was ignored by the University Commissioners in 1993. who decided contrary to general understanding and without any sound reason that the colleges at Oxford and Cambridge were ‘constituent colleges’ of those universities tor the purposes of the Education Reform Act 1988.

40 Ecclesiastical Law, pp. 928929. Nevertheless, he cited authorities showing that an organ was not necessary in a parish church.

41 Ibid., pp. 647–648. Dr Lawrence pointed out that ministers were obliged to baptise papists' children under the Presentation of Benefices Act 1605 (3 Jac 1 c 5). s. 14 (repealed in 1843).

42 In addition to the next work cited, see also his judgment in Martin v Mackonochie (1868) LR 2 A & E 116 at 150 174. Ct of Arches.

43 Phillimore, R., The Ecclesiastical Law of the Church of England (1873). pp. 2, 1922.

44 Eg Liddell v Westerton (1856). printed as Argument of Robert Phillimore D. C. L in the Court of Arches in the Matter of the Ornaments of St Paul and St Barnabas. Knightsbridge (1856); Speech of Robert Phillimore D.C.L, Q.C., in the Case of The Office of the Judge Promoted by the Bishop of Salisbury against Williams (1862).

45 G. H. Brooks. Dispute, Ritual Ornaments and Usages. A Case submitted on behalf of the English Church Union: with the opinions of Her Majesty's Advocate Sir R. Phillimore Q.C.: Sir Fitzoy Kelly Q.C. … (1866), which was a response to The Ornaments of the Minister (1866).

46 Elphinstone v Purchas (1870) LR 3 A & E 66 at 80. Ct of Arches.

47 Martin v Mackonachie (1868) LR 2 A & E 116 at 136. Ct of Arches.

48 Ibid., at 146.

49 Ibid., at 149, 174 (put as a proposition, which he later accepts).

50 Elphinstone v Purchas (1870) LR 3 A & E 66 at 79. Ct of Arches.

51 Ecclesiastical Law. at p. 676.

52 Martin v Mackonochie (1866) LR 2 A & E 116 at 245. Ct of Arches.

53 Martin v Mackonochie (1868) LR 2 PC 365. Privy Council.

54 Martin v Mackonochie (No 3) (1882) 7 PD 94. Privy Council: Martin v Mackonochie (No 3) (1883) 8 PD 191. Ct of Arches.

55 Martin v Mackonochie (No 2) (1874) LR 4 A & E 279. Ct of Arches.

56 Summer v Wix (1870) LR 3 A & E 58. Ct of Arches.

57 Elphinstone v Purchas (1870) LR 3 A & E 66. Ct of Arches, continued as Hebbert v Purchas (1871) LR 3 PC 605. 19 WR 898. The dispute over these matters continued to rage when Lord Penzance was Dean of Arches: see Ridsdale v Clifton (1877) 2 PD 276. Ct of Arches: and Combe v Edwards (1877) 2 PD 354. Ct of Arches.

58 Sheppard v Bennett ( 1870) LR 3 A & E 167. Ct of Arches. A preliminary issue is reported as Sheppard v Bennett (1868) LR 2 A & E 335. Ct of Arches.

59 Boyd v Phillpotts (1874) LR 4 A & E 296. Ct of Arches, citing Cocke v Tallants (1684) from the records of the Arches.

60 The leading case on Hell was Fendall v Wilson (1863) 2 Moo PCNS 375. See ‘Stephen Lushihgton’ 4 Ecc L J 556 at 564.

61 Jenkins v Cook (1875) LR 4 A & E 463. Ct of Arches: Jenkins v Cook (1876) 1 PD 80. Privy Council.

62 Bishop of Norwich v Pearse (1868) LR 2 A & E 281. Ct of Arches. This was because the exception in the Evidence Act 1851 referring to criminal cases was not drawn widely enough to include such proceedings.

63 Burch v Reid (1873) LR 4 A & E 112. Ct of Arches, followed by Lord Penzance in Crisp v Martin (1876) 1 PD 302, Ct of Arches.

64 The minister was the father of the person to be commemorated.

65 Keet v Smith (1875) LR 4 A & E 398. Ct of Arches (on appeal from Sir Robert's son. Walter, as Chancellor of Lincoln): Keet v Smith (1876) 1 PD 73. Privy Council.

66 Manson, , Some Builders of our Law, p. 167.

67 It was the last patent of precedence ever granted; Sainty, J., A List of English Law Officers. King's Counsel and Holders of Patents of Precedence (1987). pp. 276, 282. It is not clear why Phillimore was unable or unwilling to accept a patent as Q.C.

68 His assistance is recorded in the dedication.

69 It is enough to cite White v Bowron (1874) LR 4 A & E 207. Consistory Ct. in which he held the baldacchino in St Barnabas to be unlawful. For this troublesome church, see above. ‘Dr Lushington’. 4 Ecc LJ at p. 562.

70 Shaw, C., The Inns of Court Calendar (1877), p. 19, lists thirteen, but includes two (Curteis and Twiss) who had officially retired. When Phillimore became a Justice of the High Court in 1875, he was thereby disqualified from practice.

71 Serjeant Spinks died on 27 December 1899. By a curious coincidence. Dr Thomas of Doctors' Commons died on 14 January 1899. They were not brothers, and it is not known whether they were otherwise related.

72 Dibdin had not been a practising member of Doctors' Commons, but would have become ex officio president (under the terms of the charter of 1768) when he was appointed in 1903. since at that date there were still two members of the Society alive (Jenner-Fust and Spinks). Upon his retirement, however, there would have been no members at all.

73 See P. Barber. ‘The Fall and Rise of Doctors' Commons’ (1996) 4 Ecc. LJ 462.

74 DNB.

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Ecclesiastical Law Journal
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  • EISSN: 1751-8539
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