appeared as Perkin
Warbeck. But a very strong conviction either way is not readily
attainable.

NOTES TO CHAPTER VIII.

(PART III.)

NOTE I. Page 5.

It is rather a curious speculative question, and such only, we may
presume, it will long continue, whether bishops are entitled, on charges
of treason or felony, to a trial by the peers. If this question be
considered either theoretically or according to ancient authority, I
think the affirmative proposition is beyond dispute. Bishops were at all
times members of the great national council, and fully equal to lay
lords in temporal power as well as dignity. Since the Conquest they have
held their temporalities of the crown by a baronial tenure, which, if
there be any consistency in law, must unequivocally distinguish them
from commoners--since any one holding by barony might be challenged on a
jury, as not being the peer of the party whom he was to try. It is true
that they take no share in the judicial power of the house of lords in
cases of treason or felony; but this is merely in conformity to those
ecclesiastical canons which prohibited the clergy from partaking in
capital judgment, and they have always withdrawn from the house on such
occasions under a protestation of their right to remain. Had it not been
for this particularity, arising wholly out of their own discipline, the
question of their peerage could never have come into dispute. As for the
common argument that they are not tried as peers because they have no
inheritable nobility, I consider it as very frivolous, since it takes
for granted the precise matter in controversy, that an inheritable
nobility is necessary to the definition of peerage, or to its incidental
privileges.

If we come to constitutional precedents, by which, when sufficiently
numerous and unexceptionable, all questions of this kind are ultimately
to be determined, the weight of ancient authority seems to be in favour
of the prelates. In the fifteenth year of Edward III. (1340), the king
brought several charges against archbishop Stratford. He came to
parliament with a declared intention of defending himself before his
peers. The king insisted upon his answering in the court of exchequer.
Stratford however persevered, and the house of lords, by the king's
consent, appointed twelve of their number, bishops, earls, and barons,
to report whether peers ought to answer criminal charges in parliament,
and not elsewhere. This committe