into an infallible throne. In brief, this power was such as the king hath in the commonwealth; neither legislative, nor abfolute in the executive, but in order to the unity and peace of the kingdom: this was the right of the crown, which was ever claimed, but not enjoyed further, than the English fceptre was able to match the Romish keys; and now the fame being restored by act of parliament, macy. is also confirmed by an oath injoined to be Oath of fupretaken by the people, binding them to acknowledge the king under God fupreme head on earth of the church of England, Ireland, and the king's dominions, in oppofition to all foreign jurisdiction; and laftly, by a law, which bound all the people to maintain the king's title of defender of the faith, and of the church of England and Ireland, in earth the fupreme bead, under the peril of treafon in every one, that fhall attempt to deprive the crown of that title." The decifions of our common make a part of our common I fcarcely need remind my reader, that the only human authority, to which an English law courts fubject is bound to fubmit, are the common law and the ftatute law of the realm; the law. legal decifions of our common law courts. make a part of the common law; and I am therefore peculiarly happy in being able to proceed under this authoritative fanction in How far the convocation can make laws. my inquiries into the nature and extent of that right, power, preeminence, dignity, and authority arifing out of the civil establishment of religion, which the constitution annexes to our fovereign lord the king, as the fupreme head of fuch establishment. If any fituation can difplay the plenitude of power, which his majefty poffeffes, as the Supreme head of the church of England, it certainly is, when. he acts as the head of the convocation of the bishops and clergy regularly convened. Concerning the authority of these canons, and confequently the power of convocation to make laws with the royal affent and approbation, great difputes have been formerly carried on, but the matter seems now finally fettled in the cafe * of Middleton and Croft, Mich. 10 Geo. II. in which lord Hardwicke, then lord chief justice of the king's bench, delivered the resolution of the court to this effect: "One point in this caufe is, whether the makers of the canons of 1603, had a power to bind the laity? They were made by the bishops and clergy in convocation affembled by virtue of the king's writ, and confirmed by his charter un *Strange's Rep. 1056. der F der the great seal, but the defect objected to them is, that they were never confirmed by parliament; and for this reason, though they bind the clergy of the realm, yet they cannot bind the laity, for want of a parliamentary confirmation. And fome of the counsel in their argument feemed to admit it, by putting the cafe upon the foot of the ancient canon law; but as the other counfel, who argued on that fide, did not give it up, it is become neceffary to examine and determine a point of fo great moment to the conftitution of England, in order to fettle the law thereupon; and on the best consideration we have been able to give it, we are all of opinion, that, proprio vigore, the canons of 1603 do not bind the laity; I say, proprio vigore, because some of them are only declaratory of the ancient canon law. Upon this important queftion therefore, it is proper for judges to proceed upon furer foundations, which are the general nature and fundamental principles of our constitution, acts of parliament, and refolutions and judicial opinions in our books, and from these to draw our conclufions. "No new law can be made to bind the whole people of this land, but by the king, with the advice and confent of both houfes of Canons may acquire the fufferance, recognition, or confirmation. of parliament, and by their united authority. Neither the king alone, nor the king with the concurrence of any particular number or order of men, hath this high power. The binding force of these acts of parliament arifes from that prerogative, which is in the king our fovereign liege lord; from that perfonal right, which is inherent in the peers and lords of parliament to bind themfelves, and their heirs and fucceffors in their honours and dignities; from the delegated power vefted in the commons as reprefentatives of the people: by reafon of this reprefentation every man is faid to be party to, and the consent of every subject is included in an act of parliament. "But in canons made in convocation, and confirmed by the crown only, all these requifites are wanting, except the regal affent; there is no intervention of the peers of the realm, nor any representation of the com It is to be obferved, that lord Hardwicke force of laws by marks a difference between the new canons of 1603, and such as are declaratory of the ancient common law; because the former never having been confirmed by parliament, must stand upon their own ftrength only, proprio vigore; whereas the latter may have acquired No canon can become bind firmed by the power. acquired ftrength from an exprefs or implied confirmation by parliament, long usage, fufferance, acquiefcence, or affent. This he explains by the example of the Roman empire after it became Chriftian, *"Hence arifes the diftinction between canons made ing till conin ancient councils, confirmed by the empire leginative after it became Christian, and those made here. The emperor, according to Justinian and the digest, had a legislative power; and when they received his confirmation, they had their full authority; but this is not the cafe here; the crown hath not the full legislative power; and it is therefore rightly faid in Salkeld. 673, that the king's confent to a canon in re ecclefiaftica makes it a law to bind the clergy, but not the laity; and no one can say that the consent of the people is included in the royal confirmation." He fays moreover, "that it would be abfurd that the clergy fhould have it in their power to enact new laws, for disobeying which the laity fhall incur the penalty of excommunication, which is to be carried into execution by the lofs of their liberty, and a difability to fue for and difpofe of their perfonal eftates; this would certainly be to affect * Strange's Rep. 1056. the |