recognized in the king.

* First, it is a

vifitatory, or a reforming power, which is executed by enquiry of offences against laws established, and by executing fuch laws. Secondly, it is an ordinary jurifdiction; for it is fuch, as by any fpiritual authority may be acted against irregularities; and thus the title fupreme ordinary is conferred. Thirdly, it is fuch a power as must be regulated by law, and in fuch manner as by any spiritual authority may lawfully be reformed. It is not 'therefore any abfolute arbitrary power, for that belongs only to the fupreme head in heaven; nor is it any legislative power; for fo the law fhould be the birth of this power, and his power could not then be regulated by the law; nor could every ordinary execute fuch a power; nor did Henry VIII. ever make claim to any fuch power, though he loved to be much trufted. Laftly, this power was such a power, as was gained formerly from the king by foreign ufurpation, which must be intended de rebus licitis, and once in poffeffion of the crown, or in right thereto belonging according to the law; for the king hath no power thereby to confer church-livings by proviforfhip, or to carry the keys, and turn the infallible chair Bacon, ubi fupra.

into an infallible throne. In brief, this power was fuch 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 reftored 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 jurifdiction; 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 treason in every one, that shall 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 conftitution 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 fupreme bead 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 afsent and approbation, great difputes have been formerly carried on, but the matter feems 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 refolution of the court to this effect: "One point in this cause 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

der the great feal, 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 counfel in their argument feemed to admit it, by putting the cafe upon the foot of the ancient canon law; but as the other counsel, 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 beft confideration 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 fay, proprio vigore, because iome of them are only declaratory of the ancient canon law.

Upon this important question 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 resolutions 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 houses

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 arises 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 representation every man is said 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 reprefentation of the commons.”

It is to be observed, 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