Note 290 — Chapter XIII

[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.]