Nature has certainly cast the mind of Macaulay in a different mould from that of common men. There is no more comparison between his brain and such a one as mine than between a hurdy-gurdy in the street and the great organ at Haarlem; but it is probably not true that nature has made all the difference or the greatest part of it. If the hurdy-gurdy was kept in constant tune and the great instrument was never played upon, and its barrels and tubes allowed to grow rusty, the former would at length discourse the more eloquent music of the two. No care or cultivation indeed could have made me what Macaulay is, but if he had wasted his time and frittered away his intellects as I have LORD DURHAM’S ORDINANCE. done mine, he would only have been an ordinary man; while if I had been carefully trained and subjected to moral discipline, I might have acted a creditable and useful part.

August 10th, 1838

Lord Durham[24] has got into a fine scrape with his Ordinance, which is clearly illegal. Brougham brought it forward on Tuesday night in an exulting speech, or rather in many exulting speeches, one of which contained some eloquent passages. He was transported with joy at having, as he said, ‘got them at last.’ The Duke supported Brougham, but with more temper and dignity; the Ministers made but a poor defence, if defence it could be called. Durham’s appointments cancelled and his proclamations declared illegal will neither sweeten his temper nor exalt his character in Canada.

[24] [Lord Durham had passed an Ordinance enacting that Papineau and the leaders of the Canadian rebellion should be transported to Bermuda, and that if any of them returned to Canada they should suffer death. This was done before trial and without authority or law. It was consequently attacked with great vehemence by Lord Brougham in the House of Lords, on the 30th of July, and again on the 5th of August, and he brought in a Bill declaring the true meaning and intent of the Canada Act. The second reading was carried against the Government by a majority of eighteen, and Ministers were compelled to disallow the Ordinance, the legality of which could not, indeed, be defended.]

August 11th, 1838

Brougham introduced his Bill of Indemnity (a Declaratory Bill) in an admirable speech, dignified, calm, and ably reasoned. Melbourne was imprudent enough to talk of ‘a trap having been laid for Durham,’ at which the Duke was very angry, and made a strong speech. Last night they announced that they mean to let this Bill pass, for that there is a necessity for some such Bill. It certainly admits of a doubt whether Durham’s Ordinance is illegal, except as relates to transporting people to Bermuda, but it is inexcusable that he should not have been better advised and more cautious than to make any such blunder. We were told that Turton’s indifferent moral character was to be overlooked in favour of his great legal capacity, and now it appears that his law is not a jot better than his morals.

Yesterday I met Mr. Barnes at dinner for the purpose of being introduced to him: an agreeable man enough, with evidently a vast deal of information, but his conversation bears no marks of that extraordinary vigour and pungency for which the articles in the ‘Times’ are so distinguished.[25]

[25] [Mr. Barnes was then chief editor of the ‘Times.’ Mr. Greville had long been in correspondence with him, but this was the first time they met.]

August 12th, 1838

Lord Melbourne agreed to the Indemnity Bill, but with many complaints of the bad effect the discussion would have in Canada. Brougham was triumphant, the Duke moderate and conciliatory. No doubt Brougham, in hitting this blot, was animated with nothing but the delight of firing a double shot into Durham there and the Ministry here, and as to the consequences he cared not a straw; but I am unable to perceive how it would have been possible to pass the Ordinance sub silentio, its illegality being clear, and so far from its being dangerous to discuss the matter in Parliament, it is fortunate that the case occurred before Parliament broke up, so that the necessary Acts may pass to secure Durham and all others acting under his authority from the consequences which might have arisen from a later discovery of the irregularity of his proceedings; for what might not have happened if this Ordinance had been published during the recess and pronounced illegal by high legal authority and taken up by the press? The Government must have confirmed it on their own responsibility, or disallowed it by their own authority; they would not have dared do the first, and their disallowance would have been fraught with as serious consequences as a parliamentary condemnation. By Melbourne’s own showing, and for the reasons which he says induced him to agree to the Bill—namely, that one part of the Ordinance is clearly illegal, and that it is impossible to take one part and to reject another—he ought himself to have come to Parliament for an Indemnity Bill and a Declaratory Act. The question resolves itself into this: what power would the Colonial Legislature have had if the Act had not passed by which the constitution was suspended? and would it have been competent to do what Durham has done? Upon this point THE ORDINANCE DISALLOWED. authorities differ, but everybody agrees that, whatever the Colonial Legislature could have done, Durham (with his Council) can do. If, however, Parliament did not think fit to define his power, and great doubts exist as to its extent, the reasonable, indeed the indispensable course seems to be that those doubts should be as speedily as possible removed, and the amount of his authority clearly and expressly ascertained.