d resolution of the lords in Stratford's case. The first
is, that they claim to be tried, not only before their peers, but in
parliament. And in the case of the bishop of Ely it is said to have been
objected to his claim of trial by his peers, that parliament was not
then sitting. (Collier, ubi sup.) It is most probable, therefore, that
the court of the lord high steward, for the special purpose of trying a
peer, was of more recent institution--as appears also from Sir E. Coke's
expressions. (4 Inst. p. 58.) The second circumstance that may strike a
reader is, that the lords assert their privilege in all criminal cases,
not distinguishing misdemeanors from treasons and felonies. But in this
they were undoubtedly warranted by the clear language of Magna Charta,
which makes no distinction of the kind. The practice of trying a peer
for misdemeanors by a jury of commoners, concerning the origin of which
I can say nothing, is one of those anomalies which too often render our
laws capricious and unreasonable in the eyes of impartial men.

Since writing the above note I have read Stillingfleet's treatise on the
judicial power of the bishops in capital cases--a right which, though
now, I think, abrogated by non-claim and a course of contrary
precedents, he proves beyond dispute to have existed by the common law
and constitutions of Clarendon, to have been occasionally exercised, and
to have been only suspended by their voluntary act. In the course of
this argument he treats of the peerage of the bishops, and produces
abundant evidence from the records of parliament that they were styled
peers, for which, though convinced from general recollection, I had not
leisure or disposition to search. But if any doubt should remain, the
statute 25 E. III. c. 6, contains a legislative declaration of the
peerage of bishops. The whole subject is discussed with much perspicuity
and force by Stillingfleet, who seems however not to press very greatly
the right of trial by peers, aware no doubt of the weight of opposite
precedents. (Stillingfleet's Works, vol. iii. p. 820.) In one
distinction, that the bishops vote in their judicial functions as
barons, but in legislation as magnates, which Warburton has brought
forward as his own in the Alliance of Church and State, Stillingfleet
has perhaps not taken the strongest ground, nor sufficiently accounted
for their right of sitting in judgment on the impeachment of a commoner.
Parliamentary impeachmen