by Philip Jones
Edited by J.V Bullard and H Chalmer Bell, published 1929, Faith Press, London
The Provinciale was compiled by William Lyndwood (also rendered Lindwood, Linwood or Lyndwode) in about 1432. The date may be of interest, as it was almost exactly 100 years before the break with Rome. Lyndwood was chaplain to the then Archbishop of Canterbury, Chichele, and compiled the Provinciale at the Archbishop’s suggestion(Bullard and Bell, p.xxxvi). He was later promoted Bishop of St. David’s.
Lyndwood’s work is the principal source of canon law in England. It was discussed by the Court of the Arches in Kemp v Wickes (1809) 161 English Reports 1320. The Provinciale is a compilation of the legatine and provincial constitutions issued in mediaeval England. Legatine constitutions were ‘laws made in this country under the sanction of the Popes’ legates’. Provincial constitutions were ‘made in Convocation under several Archbishops’ (p.1325).
In a later case, the same Court explained that Lyndwood is ‘the standard authority on all points of the canon law which may arise in the administration of justice in these courts. [But] … Lindwood [is not] an authority for the law of the Church at the present day, except so far as that law remains unaltered from his time’ (Mastin v Escott (1841) 163 English Reports 553 at 567).
Chancellor Rupert Bursell criticises Messrs Bullard and Bell’s edition of the Provinciale, on the ground that it ‘omits the all-important glosses’ (Liturgy, Order and the Law (1996) Clarendon Press, Oxford, p.65n).
The Chancellor does not explain why the glosses on the Provinciale are so important. This raises the suspicion that, although blessed with a keen eye for minute details, he fails to understand the fundamental constitutional principle that mediaeval canon law was never part of English law. The Lyndwood glosses may well be very important to the study of mediaeval canon law as it was applied in England. However, that does not explain their importance to English ecclesiastical law.
Bullard and Bell relate that an English translation of the Provinciale was published in 1534, at the instance of King Henry VIII (p.xiv). This was, of course, the time of the break with Rome. Henry VIII’s publication also coincided with the Submission of the Clergy Act, which regulated the future application of canon law in England.
The glosses were deliberately omitted from the 1534 translation (p.xxxix). That was why Bullard and Bell did not include them in their edition of the Provinciale. The omission of the glosses at the time of the break with Rome suggests that, whatever their importance to mediaeval canon law, they were never part of English law.
However, it must be acknowledged that the Court of the Arches made a specific reference, in Kemp v Wickes, to Lyndwood’s ‘very learned commentary or gloss … which is also of high authority in all [ecclesiastical] courts’ (p.1325). This may support Bursell’s implied suggestion that the glosses remained an important part of Church law after the Reformation.
So were the Lyndwood glosses part of English law or not? Henry VIII may have disapproved of them, but the ecclesiastical courts clearly made extensive use of them.
Blackstone gives a clue to the answer. He observed that
‘The proceedings in the ecclesiastical courts are … regulated according to the practice of the civil and canon laws: or rather, according to a mixture of both, corrected and new-modelled by their own particular usages and the interposition of the courts of common law’ (Commentaries, book 3, p.100).
The practice and procedure (the ‘particular usages’) of the ecclesiastical courts were indeed part of English law, in the sense that they were approved usages or customs. Legal usage or custom is unwritten law. The practice and procedure of the ecclesiastical courts formed part of English common law.
Thus it is argued that the Lyndwood glosses were never part of English law per se, but they did form the basis (or part of the basis) of the practice and procedure of the ecclesiastical courts. It is the practice and procedure, the unwritten usage or custom, and not the mediaeval glosses which inspired it, that is the English law.
Although not part of English law, the Lyndwood glosses are no doubt important to the study of the history of the English ecclesiastical courts. However, that is history, not law.
The Provinciale itself may only be of historical interest today. The jurisdiction of the ecclesiastical courts was all but abolished in the 19th century. The intellectual basis of that jurisdiction (the legal community at Doctors’ Commons) was also dissolved then. The little jurisdiction that still remains to the ecclesiastical courts is now regulated almost entirely by modern statute law. The Faculty Jurisdiction Rules 2000 provide that any anomalies in faculty procedure should be resolved by reference to the procedural rules of the secular courts (Article 34). It is hard to see how this leaves any scope at all for mediaeval law and commentary to influence the practice and procedure of modern Church courts.