en then in the enjoyment of the highest professional reputation),
declared his opinion to be in favor of the legality and constitutional
propriety of the proceeding.]

[Footnote 290: To illustrate this position, Lord Lyndhurst said: "The
sovereign may by his prerogative, if he thinks proper, create a hundred
peers with descendible qualities in the course of a day. That would be
consistent with the prerogative, and would be perfectly legal; but
everybody must feel, and everybody must know, that such an exercise of
the undoubted prerogative of the crown would be a flagrant violation of
the principles of the constitution. In the same manner the sovereign
might place the Great Seal in the hands of a layman wholly unacquainted
with the laws of the country. That also would be a flagrant violation of
the constitution of this country."--Hansard's _Parliamentary Debates_,
cxl., February 7, 1856. In the same debate Lord Derby defined
"prerogative" as "the power of doing that which is beside the law."
Hallam, in discussing the prosecution of Sir Edward Hales, fully
recognizes the principle contended for by Lord Lyndhurst, saying that
"it is by no means evident that the decision of the judges" in that case
"was against law," but proceeding to show that "the unadvised assertion
in a court of law" of such an exercise of the prerogative "may be said
to have sealed the condemnation of the house of Stuart."--
_Constitutional History_, vol. iii., c. xiv., p. 86.]

[Footnote 291: In the reign of Richard II. the Earl of Oxford had been
made Marquis of Dublin for life, but he already had a seat in the House
as Earl. Henry V. had originally made the peerages of his brothers, the
Dukes of Bedford and Gloucester, life peerages; but these were afterward
surrendered and regranted "in the usual descendible form," so that they
rather made against the present case than for it. Henry VIII. had
created the Prince of Thomond Earl of Thomond for his life, but he had
at the same time granted him the barony of Inchiquin "for himself and
his heirs forever." It was also alleged that these life peerages had not
been conferred by the King alone, but by the King with the authority and
consent of Parliament, "these significant words being found in the
patents."]

[Footnote 292: The division was 153 to 133. Some years afterward,
however, a clause in the act, which created a new appellate
jurisdiction, empowered the sovereign to create peerages of this limited