The Constitutional History of England from 1760 to 1860

by Charles Duke Yonge

[ [!-- Note Anchor 281 --][Footnote 281: "Life of the Prince Consort," iv., 458.]

[ [!-- Note Anchor 282 --][Footnote 282: 219 to 210.]

[ [!-- Note Anchor 283 --][Footnote 283: "Life of the Prince Consort," v., 100.]

[ [!-- Note Anchor 284 --][Footnote 284: Ibid., p. 148.]

[ [!-- Note Anchor 285 --][Footnote 285: "Life of Pitt," by Earl Stanhope, iii., 210.]

[ [!-- Note Anchor 286 --][Footnote 286: "Life of the Prince Consort," iv., 329.]

[ [!-- Note Anchor 287 --][Footnote 287: Ibid., p. 366.]

[ [!-- Note Anchor 288 --][Footnote 288: "Constitutional History," iii., 319, 3d edition.]

[ [!-- Note Anchor 289 --][Footnote 289: It should be added that, on a subsequent occasion, Mr. Roundell Palmer, member for Plymouth (now Lord Chancellor Selborne, and even 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.]

[ [!-- Note Anchor 290 --][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.]