The arguments against the measure were chiefly these:  The objectors drew a distinction between what was legal according 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 refusing his royal assent to a measure passed by the two Houses, merely because no sovereign since William III. had so exercised his royal prerogative.  And against the authority of Mr. Pitt and Lord Grey he quoted that of Lord John Russell, who, in 1851, had offered a life peerage to an eminent judge, who, though he had declined the offer, had been influenced in his refusal by no doubt of the right of the crown to make it.