to the strict letter of
the law, and what was constitutional; contending that there might be
exercises of the prerogative which could not be affirmed to be illegal,
but which no one would deny to be altogether inconsistent with the
principles and practice of the constitution, since a great part of the
constitution rested on unwritten law, on long-continued usage, _Lex et
consuetudo Parliamenti_. And they affirmed that this measure was so
opposed to that usage, that "no instance had occurred within a period of
four hundred years in which a commoner had been raised to a seat in the
House of Lords by a patent of peerage containing only an estate for
life;"[290] one most essential, if not the most essential character of
the peerage being that it was an hereditary dignity, and one which
combined with its rank an hereditary seat in the House of Lords. That
one or two instances of life peerages were to be found in the annals of
the Plantagenet kings was not denied, though none exactly similar in
character.[291] But Lord Lyndhurst argued that precedents which had
occurred "at a time when the constitution of the country was neither
understood nor fully formed" were entitled to but little respect; and
Lord Derby, limiting the age of valid precedents a little more strictly,
"said frankly that he had no respect for any precedent affecting the
prerogatives of the crown that dated farther back than the year 1688."
And since that time, or indeed since the time of Henry VIII., it was
certain that no life peerage had ever been granted, except by Charles
II., James II., and George I. and II., to some of their mistresses,
instances wholly beside the present case, since, of course, none of
those ladies could claim seats in the House of Lords. Indeed, it was
believed that both Mr. Pitt, at the time of the Union, and Lord Grey, in
1832, had considered the question, and had both decided against the
propriety of advising a creation of life peerages.

In defence of the measure Lord Granville refused to admit the
distinction between what was legal and what was constitutional; if a
measure were both legal, that is, warranted by the letter of the law,
and also expedient, these two concurrent qualities, he contended, made
it constitutional. He denied, also, that any legal prerogatives of the
crown could be held to have lapsed through disuse; _nullum tempus
occurrit Regi_; and he challenged any peer to assert that the sovereign
had lost the right of