nable 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
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.

August 13th, 1838 {p.125}

At a Council to-day to disallow Durham's Ordinance. Nothing was
sent from the Colonial Office, and I did not know what it was for
till I saw Lord Lansdowne. He told me, and then I wrote the Order
for the Queen to approve, and he took it in to her. Presently
Glenelg arrived, and announced that nothing could be done, for
the authenticated copy under the Great Seal of the Colony was not
arrived. Then a consultation was held: Lord Lansdowne was for not
minding about the Great Seal, and Melbourne chuckled and grunted,
and said, 'Why, you knock over his Ordinances, and he won't ca