The law of blasphemy is presently in a state of transition in this country. After a long period of desuetude, the offence was suddenly revived in 1979 by the case of Whitehouse v Lemon. Six years later, in 1985, the Law Commission recommended its total abolition without any replacement. No legislation to effect that abolition has appeared, and given the controversy which that appearance would undoubtedly cause, it is unlikely that anything will happen in the immediate future. Nevertheless the situation contains an imbalance which suggests that it will not continue indefinitely. The interval before the inevitable next step provides an opportunity to ponder what that next step ought to be.

Too little is known about the history of the profession of ecclesiastical law. It is a good subject for research. The Prefect of the Vatican Library once described the medieval English ecclesiastical lawyers as a ‘much-maligned class’ that has commonly been held responsible for a great many of the ills that afflicted the English Church. He was restating a not uncommon judgment among historians who have been obliged by their subject to say something about ecclesiastical lawyers. But it is a statement about public perception rather than actual conditions among these lawyers. There needs to be somewhat more of the latter. We do know something about the top of the profession, the advocates and judges of Doctors' Commons. The rest of the landscape is almost wholly terra incognita. About the diocesan registrar, the backbone of the profession, there is only one article – a good article to be sure – but only one: that published in 1976 by Rosemary O'Day. There is much more to be done.

The first post-Reformation English canonist in our series seems, on the face of his curriculum vitae a very different kind of lawyer from the medieval writers previously described. He was not a doctor of law, and seems to have spent a mere three years at university. He went up to Oxford as a relatively mature student (in his early 20s) in 1576, having already served an apprenticeship as clerk in the registar's office at York and having become a notary public and actuary of the Consistory Court in the early 1570s. He was a local boy, born and educated in the city of York, and came to the attention of the ecclesiastical authorities as a promising clerk at about the age when more fortunate youngsters were sent to Oxford or Cambridge. Swinburne's study therefore began in the office, and in the routines of clerical writing: a preparation which, in other spheres of law also, could prove as valuable as college life for the true scholar.

If a person has been duly sworn as a witness in a judicial proceeding, he must answer any relevant question put to him. If he does not do so, he risks being held by the judge to be in contempt of court and punished by being imprisoned or fined. The fact that the witness finds it repugnant to his sense of honour to give an answer which will break a confidence reposed in him by someone else does not excuse him from his duty. The public interest in the disclosure of all matters relevant to a judicial proceeding is regarded as so important that it prevails over any considerations of private honour between individuals. It is simply no answer for a witness to say ‘I was told this in confidence by a person who trusted me to keep his confidence’. This general attitude of English law has obvious and unwelcome implications for clergymen. A priest or clergyman will in the course of his ministry often receive private information from members of his flock, which his priestly duty requires him to keep secret. He might well be obliged to choose between disregarding his priestly duty or suffering legal penalties, which may be severe. Moreover, the prospect of having to submit him to this invidious choice will be repugnant to the judge; and the fact of such a choice being put, and of the clergyman being sent to gaol for doing his duty, is bound to cause dismay in large sections of the public. The possibility of this conflict of church and state actually happening is extremely small, but the fact that it exists at all is dismaying to many persons.

Since our next pair were not lawyers at all. it may seem rather incongruous to include them in the company of ‘canon lawyers’. Yet it would be pedantic to exclude them from a survey of English canonistic literature for want of the requisite formalities, especially since their collections of legal sources have been so widely consulted by ecclesiastical lawyers down to the present. Both their endeavours were prompted, indirectly, by a fierce controversy over the constitution of the Church of England and the historic role of Convocation; but, unlike much of the polemical literature spawned by that debate, the works of Gibson and Wilkins each made a more enduring contribution to the history of English ecclesiastical law.

The office of archdeacon has its origins in the early history of the Church. The archdeacon is referred to by St. Jerome and other writers of the fourth century. He was the principal deacon of a local church. The eminent Victorian ecclesiastical lawyer, Sir Robert Phillimore wrote: ‘The primitive offices of the archdeacon may be enumerated under five heads. First, to attend the bishop to the altar and to order all things relating to the inferior clergy and ministrations in the church. Secondly, to assist the diocesan in the distribution and management of the ecclesiastical revenues.’