Historians have often downplayed the role of the British Colonial Office in initiating and guiding the process that brought about the union of the colonies of British North America. In doing so, they have generally favoured a distinctly “made-in-Canada” perspective on the Confederation story. According to this trend, it was the Canadian “Fathers of Confederation”¹ who, acting virtually alone, instigated the process of the union of the British North American colonies.² The British government and the Colonial Office, in this narrative, were forced to accept the proposals of the representatives of the Canadian people as a fait accompli. The drafting of the British North America Act in the British Parliament is seen as a merely formal process of incorporating what the “Fathers” had accomplished in the Quebec and London Resolutions into a British statute. The passage of the Act thereby sets the new nation on a teleological path toward independence and nationhood. This narrative not only exaggerates the importance of Confederation as a singular constitutional event, but it also does not take into account the pursuit by many different British colonial administrators, over the course of the years prior to Confederation, to organize some form of union of the British North American colonies and the considerable influence they exercised over the creation of the eventual union in 1867.

Among scholars who have taken the role of the British Colonial Office in the achievement of Confederation seriously, there exists considerable disagreement.³ The primary issue upon which many of these scholars disagree is the ability – or perhaps the willingness – of the Colonial Office to exert pressure on the colonies in order to achieve its ends. This work seeks to contribute to this ongoing debate by directly examining the ways in which the Colonial Office influenced the course of the various projects to unify the British North American provinces. In doing so, it seeks particularly to analyze the extent to which the various British officials envisaged, in the creation of the new Dominion, the birth of a distinctly federal system or whether they favoured a unitary government under a single sovereign legislature based on the British model. Thus, this work sheds light on the intentions of the “silent” framers of the British North America Act – the colonial governors, the civil servants of the Colonial Office, and the British politicians – who not only actively encouraged the process of Confederation but also helped to amend, interpret, and approve the Quebec and London Resolutions. This research, it is hoped, will also contribute to current debates on the so-called “originalist” interpretation of the Canadian constitution by examining the contextual meaning and intention behind crucial phrases and sections of the British North America Act, 1867.

Historical debates on the imperial politics of Confederation have focused on two important issues. The first involves the respective roles played by the British North American “Fathers of Confederation” relative to those of the Colonial Office and its administrators in Britain in the achievement of Confederation. Ged Martin, the foremost scholar on the British role in Confederation, cautions about the risks of “recolonisation” of Canadian historiography while writing of the history of Confederation from an imperial perspective.⁴ Bruce Knox, however, claims that, in so doing, Martin is too hesitant to ascribe any role to the Colonial Office in applying “pressure” or “command” to effect the outcome of the union of the British North American colonies.⁵ Recolonization of Canadian historiography – if imperial studies ever did assert such dominance over the story of Confederation – would clearly be unhelpful and frankly untrue given the significant discussion on the issue of union emanating from the colonies. Such enthusiasm was exhibited not only among the “Fathers” but also in the wider political public sphere of the British North American colonies through the press, election results, and popular political demonstrations.⁶ Alternatively, one might equally caution against the nationalistic mythologization of the role of the “Fathers of Confederation” in the process of achieving union. The British North American provinces were colonies in 1866, and they became a united colony in 1867; to discount the imperial perspective in the constitutional politics of Confederation is to antedate fully-fledged Canadian nationhood to its embryonic years.

Rarely, however, have scholars been so bold as to entirely reduce the founding of the new Dominion to a political monologue, as it were, taking place on one side of the Atlantic or the other. The debate rests fundamentally on one's understanding of the nature of responsible government in the colonial setting – it rests upon what is in fact an interpretation of the imperial constitution. Scholars, therefore, clash over how much power the Colonial Office could exert upon fundamentally self-governing colonies in an age of responsible government.⁷ And, if this power was so circumscribed, what influence, if any, did the British have on Confederation? For Ged Martin, the British role was largely confined to the development of an idea of union. Although Martin successfully traces the concept of a union of the British North American provinces as it evolved, lapsed, and re-emerged in the British political public sphere, his conclusions are characterized by an unwillingness to acknowledge that the Colonial Office itself played a substantial role in bringing about Confederation.⁸ The following analysis will argue that the Colonial Office did in fact play a significant and positive role in the creation of the new Dominion of Canada in 1867 and that many individual administrators and politicians displayed an active interest in, and a keen awareness of, the development of Canadian federalism in 1867. With varying degrees of success, British politicians and colonial office administrators attempted at numerous points to shape the process of union into one that suited them – a strong, centralized union of all the British North American provinces whose ties with the mother country were to be left unchanged.

The second important element involves the timing of Confederation. Despite Martin's tracing of the developing idea of a British North American union from the early nineteenth century, the question still remains as to why Confederation occurred in 1867 and not in 1840, 1848, 1851, or 1858 when it was at each time seriously considered. Although not specifically denying the role of contemporary circumstances in bringing about Confederation in 1867, Martin argues that the reason it occurred when it did was primarily the result of the development of a consensus in British opinion over time that allowed it to take place once Canadians actively began to request it.⁹ It is true that a consensus around the issue of union not only in British North America but elsewhere, such as Australia and South Africa, had grown throughout the century, but contemporary circumstances and pragmatic politics cannot simply be swept aside.¹⁰ Such factors were crucial, as Knox has argued, in determining the timing of these events.¹¹ Britons and Canadians alike were fearful of the military threat posed by the United States. The potential indefensibility of the British North American colonies acting independently of one another was an issue that caused the objects of an inter-colonial railway and a union of the provinces to become entwined and, at times, even conflated.¹² It was also firmly believed by powerful sections of British political opinion that the North American colonies were becoming a potentially onerous financial burden on the British taxpayer.¹³ These financial considerations became especially pertinent with the increased threat of war with the militarily strengthened northern states in the midst of civil war.¹⁴ Private financial interests also played an important role, as Andrew Smith has argued in his recent works on the roles played by Grand Trunk Railway investors from London in the process of Confederation.¹⁵ Furthermore, the fragility of British party politics played a crucial and neglected role in the development of plans for the unification of the British North American provinces and the Colonial Office's anxiety to achieve Confederation in 1867. To develop a clear understanding of the context and process that led to the eventual federation of the British North American colonies, it is therefore necessary to incorporate both long-term intellectual trends and contemporary political realities.

It is important to be clear at the outset what precisely is meant by the term “Colonial Office” as it is used throughout this work. The Colonial Office was the department of the British government primarily responsible for overseeing the administration of the colonies that comprised the British Empire. It was located at the end of the cul-de-sac of Downing Street, in “a dilapidated Restoration house” suffering from a severe state of disrepair (see figure 1). The Colonial Office at 14 Downing Street was thoroughly “cramped, unhealthful, and totally inadequate for the increasing responsibilities of a great public department.”¹⁶ Nonetheless, it was the daily workplace of the approximately fifty permanent employees who were largely responsible for the day-to-day administration and organization of the British Empire.¹⁷

Figure 1 Drawing of the old Colonial Office, 14 Downing Street, London, United Kingdom.

Source: (1/2-104159-F, Alexander Turnbull Library, Wellington, New Zealand).

The individuals attached to the Colonial Office may be divided into three categories: permanent, political, and overseas. The permanent staff were the backbone of the office: clerks, copyists, librarians, and, most importantly, the assistant under-secretaries who advised the secretary of state for the colonies. The permanent staff were primarily composed of career civil servants from the middle to upper classes of British society and were increasingly university trained. The political staff were much fewer in number and more transient. They consisted of the secretary of state for the colonies, his parliamentary under-secretary who was typically a backbench member of the governing party in Parliament, and their respective private secretaries. The political staff were subject to alteration with the rise and fall of governments as well as shuffles within the Cabinet. The category here termed “overseas” refers to the numerous governors and lieutenant governors of the British colonies as well as their secretaries. Governors occupied what may be termed a quasi-permanent status, but their position was relatively political in that they rotated frequently and were appointed or dismissed by the colonial secretary. When it is claimed herein that the Colonial Office played a crucial role in the achievement of Confederation and the form that it took, the claim refers to the contributions of individuals from all three categories of public servants.

Due to the extensive and peculiar nature of the Colonial Office's workload, incorporating a wide variety of colonies across the globe as well as covering military, financial, legal, and ecclesiastical issues, among others, it was necessary for permanent staff members to specialize.¹⁸ While the permanent under-secretaries, such as Herman Merivale and Sir Frederic Rogers, were responsible for overseeing all colonial policy, lower-ranked staff members were required to specialize in order to effectively manage their workload and to bring decades of experience to bear in advising the colonial secretary.¹⁹ There arose, therefore, an unofficial “North American Department,” consisting primarily of Assistant Under-Secretary T.F. Elliot and Senior Clerk Arthur Blackwood. Elliot and Blackwood had been appointed to their positions in 1847 and 1840, respectively, and therefore brought significant experience to the administration of North American colonial affairs. Elliot had even spent several years in Canada as secretary to the Gosford Commission, looking into grievances in Lower Canada in 1835–7.

The unique experience and perspectives of such individuals, however, are downplayed by the concept of an “official mind” of imperialism that has been ascribed to British policy-makers of this period by both contemporaries and historians alike. The “official mind,” at its most general level, has been used to describe the insular thought and philosophy behind the policy-making of British civil servants, supposedly guided by a set of coherent traditions and principles.²⁰ Elliot himself, responding to critics of the Colonial Office, attributed it to “a natural infirmity of the human mind [which] leads them to prefer attributing the whole to a distant and undefined Power, called the Colonial Office.”²¹ The members of the Office were, he claimed “a body of private gentlemen whom the Public … has scarcely any knowledge of at all.”²² Information about those who dominated the halls of 14 Downing Street as well as the political and imperial context within which they operated casts doubt on the notion that an internally coherent “official mind,” free from external influences, was responsible for developing and implementing the concept of a union of the British North American provinces.

Confederation took place before the advent of the modern civil service. The examination system for new employees had only been implemented in the reforms of the 1850s.²³ Herman Merivale, Sir Frederic Rogers, T.F. Elliot, and Arthur Blackwood had all entered office well before such reforms. They were political appointees drawn from the upper strata of British society. Merivale was a professor of political economy at the University of Oxford before entering the Colonial Office. Rogers, too, had been a fellow of Oriel College, Oxford, and a schoolmate and close friend of William Gladstone.²⁴ Blackwood entered the Colonial Office directly from Harrow, the same school as Merivale.²⁵ Elliot was a nephew of the 1st Earl of Minto, and his father had himself been a colonial governor.²⁶ Many of the staff shared a similar upbringing and frequented the social circles of aristocrats and statesmen. To speak of a disembodied “official mind” in the Colonial Office, as distinct from the views of colonial governors, parliamentary politicians, and even the wider newspaper press, is therefore difficult to sustain in this embryonic stage of the modern public service.²⁷ Ged Martin lumped the Colonial Office staff and colonial secretaries together in order to emphasize the haughtiness with which they dealt with North Americans. However, he arbitrarily separates them when analyzing the role they played in bringing about Confederation, with the permanent staff members playing the role of “rigid” bureaucrats who made “remarkably little contribution to the shaping of British policy.”²⁸ While it is true that the most important decisions were considered “political” in nature and were therefore left to the discretion of the colonial secretary, the secretary of state relied considerably upon the advice and materials provided by permanent officials.²⁹ It will be shown that such advice could have a considerable influence on the progress and achievement of Confederation, even if the initiative and ultimate responsibility were largely in the hands of the overseas and political branches of the Colonial Office staff.

Even within the Colonial Office, however, there was considerable disagreement over colonial and imperial strategies, and this influenced the views of individuals toward the union of the British North American colonies. Such differences cannot be merely brushed aside as the necessary elements for equilibrium in the calculus of a conservative “official mind.”³⁰ Members of the Colonial Office were conversant in the public debates concerning the state of the empire and the desirability of maintaining colonies, particularly those with representative assemblies of their own. For example, Elliot was unwilling to co-author a report with J.R. Godley from the War Office due to irreconcilable differences in their views toward the future of the colonies.³¹ Godley's view was similar to that of leading British anti-imperialists such as Goldwin Smith and John Bright – namely, that the colonies were a burden to the British taxpayer and should be allowed to govern and finance themselves.³² Most Colonial Office staff, on the other hand, believed that Britain had various obligations toward the colonies even if the eventual goal would be their independence.³³ The Duke of Newcastle, as colonial secretary, argued that none in his office shared Godley's views when he refused to employ him as his permanent under-secretary in 1861.³⁴ However, he may have underestimated support toward such ideas, as the gulf between the views of Sir Frederic Rogers and Newcastle's successor, Lord Carnarvon, could hardly have been more stark. Rogers felt that the colonies were already virtually independent, whereas Carnarvon held to the line of the Conservative party in advocating a strong, albeit altered, colonial relationship.³⁵ Nonetheless, the two men could agree on the desirability of North American union since it could be construed to promote both colonial independence as well as concepts of an imperial federation of strong self-governing colonies.³⁶

That the idea for a union of the British North American colonies did not emerge spontaneously as a result of contemporary circumstances or in a vacuum in the backrooms of 14 Downing Street has been laid to rest by the work of Ged Martin. The first concrete suggestions for British North American union emerged with John Arthur Roebuck and Lord Durham.³⁷ However, their ideas were largely ignored by the Colonial Office. Like many of his contemporaries, especially the famous colonial secretary Earl Grey (1846–52), Durham saw some form of federal union in North America more as a desirable project for the future than as an object of contemporary political expediency.³⁸ Sir Edmund Head drafted the first serious proposal for a union of the British North American colonies. In 1851, as lieutenant governor of New Brunswick, he composed a secret memorandum to Earl Grey in which he advocated for a general British North American federation.³⁹ At this time, however, the central feature of his plan for uniting British North America was the construction of an inter-colonial railway. When events led to the temporary abandonment of that project in 1852, his plans for union shared the same fate.⁴⁰ Head's proposals, however, did engage the interest of Arthur Blackwood at the Colonial Office, who argued that “a general consolidation of the B.N.A. Provinces into one Govt will, in my opinion, be the real & only remedy” to the problems identified by Head.⁴¹ The permanent under-secretary, Merivale, displayed a lack of interest on the subject of union until he left the office in 1860.⁴² The Duke of Newcastle, who succeeded Grey as colonial secretary in 1852, echoed Blackwood's sentiments and took a keen interest in Head's proposal.⁴³ In 1854, Newcastle even requested that Lord Elgin remain as governor general of Canada in order to bring the proposed union into effect.⁴⁴ Although Elgin could not be persuaded to return to Canada, Newcastle's plan was still plausible with Head being appointed as Elgin's successor.

By the time of his appointment in 1854, however, Head had begun to doubt the immediate feasibility of a general union of all the British North American provinces.⁴⁵ Head looked first toward a union of the “Lower Colonies”: the Maritime colonies of Nova Scotia, New Brunswick, and Prince Edward Island. Like his successors, John Manners-Sutton and Arthur Hamilton Gordon, Head believed that the supposedly petty, corrupt, and personal nature of politics in these colonies inhibited effective, responsible government.⁴⁶ He thus advocated not for a federal, but a legislative, union of the three Maritime colonies based upon their “common interests, character, and pursuits.”⁴⁷ By combining the three colonies under a single legislature, Head believed that they would be closer to possessing the political maturity he held to be necessary for the proper functioning of responsible government.⁴⁸ He submitted a confidential memorandum to this effect in 1857 to the colonial secretary at the time, Henry Labouchere. However, this was not entirely unsolicited. Following the Duke of Newcastle's lead, Labouchere had, in fact, requested that Head take up the subject of a more general union while Head was on a visit to Britain.⁴⁹ Labouchere was unable to act on the memorandum, however, as Lord Palmerston's government fell in 1858 and was replaced by the Earl of Derby's Conservative ministry. Within the space of a year, Derby appointed first Lord Stanley and then Sir Edward Bulwer-Lytton to the post of colonial secretary, causing considerable confusion in the Colonial Office.⁵⁰ The fall of governments and the shuffling of Cabinet positions thus prevented a seemingly sympathetic Colonial Office under Labouchere from being able to pursue some form of union in British North America.

The immediate catalyst for perhaps the most important proposal for British North American union in 1858 was political stalemate and its resulting crisis in the province of Canada. When the Canadian legislature repeatedly struggled to form a stable government, and elections failed to resolve the issue, Governor General Head prorogued the legislature. He suggested that his Executive Council pass a minute, which they did on 4 September 1858, requesting that the governor general should “bring the subject of federal union under the notice of Her Majesty's Government … [and] to submit to the Secretary of State the propriety of authorising a meeting of delegates on behalf of each colony … for the purpose of considering such federative union.”⁵¹ Bulwer-Lytton, who had recently been appointed colonial secretary and who had no knowledge of the previous correspondence between Head and his predecessors, was shocked by Head's despatch.⁵² Even Blackwood, who was generally supportive of plans for union, regarded it as “very startling.” He was obviously unaware of the private conversations in which Labouchere had requested Head to promote the idea of union as well as Head's subsequent private correspondence with Lord Stanley.⁵³ Bulwer-Lytton, evidently furious, contemplated Head's recall and would have perhaps acted on it were it not for the intervention of Merivale, who informed him that Head had been discussing the matter with his predecessors. Bulwer-Lytton sent Head a warning and, to a similar effect, informed Cabinet that “it would be premature and unwise in Her Majesty's Government to do anything to encourage a union of the British North American Provinces, whether Federal or Legislative.” The “Imperial Government,” he claimed, “should keep the whole question of Federation and the details by which it may be hereafter worked out, in their own hands.”⁵⁴

It is important to note that what was being discussed in 1858 was in fact a federal union that would include both the Maritime provinces and the united Canadas. Lord Stanley, while noting that Head's proposal was “unexpected,” suggested that although “there is nothing in the idea of federation to which on Imperial grounds I should be disposed to object,” local interests would render it “inexpedient if not impracticable.”⁵⁵ Admitting his lack of knowledge, he invited further comment from Head on the topic. In his response, Head outlined several principles that are revealing of the kind of union being contemplated in British political circles. Head advocated for a heavily centralized union with “large powers in the central Govt. & a smaller residue in the local Govt. of each Colony.”⁵⁶ Furthermore, Head articulated a position diametrically opposite to the basis of the “provincial compact” theory of the Canadian constitution. He argued that “the union, if attempted, should, as it were, start from the fact that all the provinces are under the same sovereign – not from the assumption that each is a separate state possessing individual and independent rights.”⁵⁷ It is not known whether Stanley responded to Head's letter but, if he did, he had already been replaced as colonial secretary. In a shuffle of the Cabinet in June 1858, Stanley became the first secretary of state for India, and Bulwer-Lytton succeeded him at the Colonial Office.

The role of the permanent staff of the Colonial Office in the rejection of British North American union in 1858 is ambiguous and difficult to unravel. Bulwer-Lytton was evidently more hostile than Stanley toward the project of a union. Whether this was based on the advice of the permanent staff of the Colonial Office is unclear. Blackwood wrote that he thought the time had not yet arrived for a federal union of all the provinces. Rather than oppose union altogether, however, he argued for the legislative union of the Maritime colonies.⁵⁸ Elliot was unequivocally opposed to the scheme of federal union in 1858. There is no evidence to support Bruce Knox's claim that Elliot, contrary to his own views, wrote a memorandum to the Cabinet arguing against the proposed federal union as a “special task” from Bulwer-Lytton.⁵⁹ Precisely the same arguments articulated by Elliot in his memorandum can be found in his minute of 25 October 1858; Canada was advocating the proposed federal union for provincial political reasons, and it could prove dangerous to Britain's colonial and imperial interests in North America.⁶⁰ Elliot's rejection of the federal scheme of 1858 was used by Bulwer-Lytton to advise the Cabinet against the proposal, but it was a reflection of Elliot's own views on the topic. Like Blackwood, however, Elliot felt that a Maritime legislative union “might be very advantageous.”⁶¹ The views of the permanent staff at the Colonial Office, therefore, were far more warmly receptive to the prospects of a Maritime legislative union than a wider federal union of all the British North American provinces in 1858, and this may well have encouraged Bulwer-Lytton to reject the scheme.

Between the years 1859 and late 1864, the theme of a wider union of the British North American provinces was seen as far less practicable than a union of the Maritime colonies.⁶² The Duke of Newcastle, who became colonial secretary for the second time in June 1859, stated very soon after taking office that his opinion was “in favour of the Legislative Union of the Lower Provinces.” It was during Newcastle's first stint as colonial secretary in 1852 that the issues of the inter-colonial railroad and the political union of the British North American provinces first arose as genuine objects of British colonial policy. Echoing some of Head's earlier statements, Newcastle claimed that not only was the legislative union of the Maritimes beneficial in itself, it was, if anything, likely to make a union with the rest of Canada much easier since it would be a “union of equals.” He qualified this, however, by stating that the time had not yet arrived for the colonial secretary to take any active steps for bringing it about. Newcastle had been supportive of Head's views on union throughout his tenure as colonial secretary. Now, against the advice of Merivale that he do nothing, he avowed “his readiness to entertain favourably any proposals which had the concurrence of all three Provinces.”⁶³ However, Newcastle still had his mind on the eventual feasibility of a wider union. He rejected the advice of Elliot in 1861 to oppose “a union of the whole of the Provinces.” Newcastle argued instead that the “union of the whole of British North America … is what must eventually be brought about and may be hastened by events arising out of the rest of the Continent.”⁶⁴

While a wider scheme for union began to be seriously considered throughout 1862, it was only possible, Newcastle believed, with an agreement over the Inter-colonial Railway.⁶⁵ In the summer of 1862, Newcastle took it upon himself to champion both causes.⁶⁶ When negotiations regarding the railway broke down, as they had previously in 1852 and 1858, the plan for a wider scheme was once again temporarily shelved. Head and the Duke of Newcastle, therefore, were largely responsible for introducing union as a direct object of British colonial policy. It was, however, the increasingly pressing issues of political deadlock in Canada, the threat of conflict with the United States, and pressures on imperial finances that pushed officials on both sides of the Atlantic to look toward inter-colonial union for a solution.

From 1863, the Colonial Office began to push the lieutenant governors of New Brunswick and Nova Scotia to take “all prudent means, without committing the Home Government beforehand” to secure a Maritime legislative union.⁶⁷ By the beginning of 1864, the efforts of the lieutenant governors had begun to pay off. The Nova Scotia legislature, via their administrator Hastings Doyle, sent several notes indicating their willingness to consider a union of the three Maritime provinces. They also agreed to send delegates to meet with those of New Brunswick and Prince Edward Island at a conference on the subject of Maritime union to be held at the end of the summer of 1864.⁶⁸ However, just as Newcastle began to advocate for a more direct imperial involvement in bringing about a union of the Maritime provinces, at the apogee of his encouragement of the scheme, he fell fatally ill. Newcastle was replaced as colonial secretary in April 1864 by Edward Cardwell, who was initially inclined to pursue the policy of Maritime union that he had inherited from the Duke of Newcastle.⁶⁹

Under Cardwell and with the assistance of the new governor general of Canada, Lord Monck, the Colonial Office would begin to more positively and directly influence the plans for union emanating from the colonies after 1864. The increasingly direct involvement of the Colonial Office at the instigation of the colonial secretary, a renewed political crisis in the Canadas, and heightened tensions with the United States, which was in the closing stages of its civil war, each contributed to the pressures that built up from 1864 to 1867 and ultimately resulted in the achievement of Confederation. Despite the resounding evidence of what Ged Martin has described as a growing consensus in British and Canadian political circles toward some kind of union, it remains nonetheless true that a defiant Colonial Office could and did effectively block plans for a union in the winter of 1858, while a proactive and encouraging policy from the same institution could have, as will be shown, precisely the opposite effect. Individual colonial secretaries were instrumental in bringing about this policy change, at times rejecting and at other times accepting the advice of their permanent staff and colonial governors. This is not to suggest that union would not have been achieved without intrusive directives from the Colonial Office, nor that the Colonial Office operated in any form of vacuum, immune to external pressures from the colonies, but, rather, that the Colonial Office played a crucial role, alongside – even responding to – politics and political culture in the colonies, not only in the achievement of union but also in the forms that it eventually took, both of which will be the subject of the following sections.

In the summer of 1864, the political situation in the united Canadas had reached another deadlock. This time, however, John A. Macdonald, George-Étienne Cartier, and George Brown – drawing on their previous experience – managed to form a coalition on the basis of seeking a union with the other British North American provinces. Such a union would, they hoped, eliminate the possibility of future political deadlocks between Upper and Lower Canada. The ministers of Canada requested that Monck write to the lieutenant governors of the Maritime provinces to inquire into the time and place at which the conference for a Maritime union would take place. The Canadian delegates, Monck told Cardwell in August 1864, “wanted to use the Maritime Union conference as a most useful guide to them in framing the proposals which it is intended to present to you.”⁷⁰ Although Monck conceded that the character of the Canadian delegation at the Maritime union conference would be “unofficial,” T.F. Elliot was unimpressed. Always opposed, in principle, to a wider union, he suggested that Monck should have kept Cardwell informed of “so grave an affair.” However, it was an indication of just how seriously the Colonial Office was now responding to renewed calls for a union of all British North American provinces. Arthur Blackwood even suggested that the meeting of delegates meant that the issue of union was becoming “beyond the scope of the Secretaries of State,” adding “it is of no use to impose restrictions if you can't well enforce them.”⁷¹ There was no indication, however, that Cardwell wished to impose restrictions on the meetings of delegates.

In the first despatch from the Charlottetown Conference, on 1 September, Lieutenant Governor Richard Graves MacDonnell of Nova Scotia reported that the members of the conference allowed the Canadians to present their reports first. After hearing them speak for several days, the Maritime delegates invited the Canadians to take part in the remainder of the conference. Indeed, it is clear from MacDonnell's despatch that the purpose of the conference had quickly changed to discuss the possibility of a wider union.⁷² By late September, Monck informed the Colonial Office of the delegates' intention to meet at Quebec to “digest a practical plan for the realisation of the idea which should be submitted for your approval.” Although the planning of the Charlottetown Conference may be attributed to the orders from the Colonial Office given to Lieutenant Governors Arthur Hamilton Gordon and MacDonnell, the initiative for sending Canadian delegates originated from the ministers of Canada themselves.⁷³ Moreover, the proceedings of the Charlottetown and Quebec conferences were entirely dominated by British North American delegates. By the time the Colonial Office had received news of the Charlottetown Conference and had responded by merely acknowledging its receipt, the Quebec Conference had already occurred.⁷⁴ Despite their approval of the meeting of delegates for Maritime union, events were moving far too quickly for the Colonial Office in London to respond. Following the Quebec Conference and the submission of seventy-two resolutions on the proposed union of British North America, the Colonial Office took an active interest in the development of this particular proposal for a “federal” union.

In November 1864, Lord Monck drafted two despatches to Cardwell regarding the outcome of the Quebec Conference. In his public despatch, Monck emphasized the strength and supremacy of the central government as described in the Quebec Resolutions. Among the first features he mentioned were the limitations placed on “local bodies” and the right of the general government to disallow any acts of local legislatures.⁷⁵ In the more candid confidential despatch of the same day, however, Monck expressed a deep regret that the term “Confederation” was used to describe the proposed scheme of union. According to Monck, this was a “misapplication of the term.” Confederation, for Monck, was a “union of independent communities bound together for certain defined purposes by a treaty or agreement entered into [as] sovereign states.”⁷⁶ But, he claimed, like Sir Edmund Head before him, “it is plain that a Union of this sort could not take place between the Provinces of British North America, because they do not possess the qualities which are essential to the basis of such a union.” For Monck, they were neither sovereign nor independent communities, nor did they have any constitutional rights as legislative bodies except those specifically granted them by the imperial Parliament. Such a view of the colonies as they entered into Confederation was certainly not ubiquitous among the staff of the Colonial Office, but it had significant implications both for the development of the form of federalism created for the new Dominion in 1867 as well as its subsequent colonial relationship.⁷⁷ Sir Frederic Rogers, in particular, did not share Monck's strong views against the relative independence of the colonies. He argued with Lord Carnarvon in 1866 that responsible government had already granted the British North American colonies their independence.⁷⁸

Later in the same despatch, Monck suggested that the proposed union based on the Quebec scheme was actually a legislative union disguised as one of a federal character. The “general legislature,” he claimed, “is proposed to be a copy of that of Great Britain and Ireland,” and the provincial legislatures are to be like British municipal councils.⁷⁹ The implications of the term “municipal” to refer to the would-be provincial legislatures of the union was articulated particularly clearly by Head in 1858, and it appears that Monck saw the issue in the same light. Head believed that “the technical difference between a subordinate Government & a municipal body with large powers is this – The former possesses all rights not expressly taken away – the latter holds only the rights which are expressly given.”⁸⁰ This distinction provides crucial clarity on the ways in which some of the “silent” framers of the British North America Act of 1867 conceived of the nature of the division of powers between the central and provincial governments in what would become Sections 91 and 92 of the Act.

Lieutenant Governor MacDonnell also sent a confidential despatch to the Colonial Office outlining his reservations with the Quebec scheme. He lamented any departure from a “simple union,” by which he meant legislative rather than federal. With a sharp eye, MacDonnell targeted the phrase “generally all matters of a private or local nature not assigned to the general Parliament” as a clause “better calculated to create than put down disputes as to what are local and what are general rights.”⁸¹ Unlike Monck, MacDonnell viewed the proposal itself with derision, claiming that it would establish “a mere confederation of states with every local demarcation strictly preserved with petty Governors and Legislatures almost on the model of the neighbouring republic.”⁸² Despite their difference of opinion on the kind of union proposed by the Quebec Resolutions, both men were agreed that a legislative union was preferable to a federal one. Such views were virtually ubiquitous among British politicians and administrators and re-emerged with renewed vigour as the Quebec Resolutions were being drafted into a British statute and debated in Parliament in early 1867.

Less than a month after receiving Monck's despatch, Edward Cardwell sent a reply stating the official position of the Colonial Office. Cardwell disagreed with MacDonnell's interpretation of the Quebec scheme and expressed his satisfaction that adequate “precautions have been taken … to guard against those evils which must inevitably arise, if any doubt were permitted to exist as to the respective limits of central and local authority.” The precautions to which Cardwell referred, granting “the Central Government the means of effective action throughout the several Provinces,” could only be the provisions for disallowance of legislation and the proposed new role of the lieutenant governors as agents of the central government.⁸³ Cardwell was careful in his public despatch, realizing that it might be seen by the Canadian politicians. In a draft, he crossed out the word central “supremacy,” replacing it with “control,” a slightly more palatable description for the provinces, notably Lower Canada and the Maritimes, who were gravely concerned that centralization would mean dominance by Upper Canada. What Cardwell understood from the Quebec Resolutions was in fact transference of the principle of parliamentary sovereignty from Britain to the central government of the new union. He suggested that her majesty's government regarded the Quebec Resolutions as “having been designed … to establish as complete and perfect an union of the whole into one Government, as the circumstances of the case and a due consideration of existing interests would admit.”⁸⁴ In his response, Cardwell pointed to one major problem with the scheme: the constitution of the legislative council, which would become known as the Senate in the British North America Act, 1867. He believed that councillors should be appointed for limited terms, and their number should not be fixed in case a “decided difference of opinion” arose between the assembly and the council. On such an occasion, he wanted the central government to be able to create more legislative councillors to break the deadlock. This issue continued to cause friction between the delegates and the Colonial Office until the final weeks of drafting the British North America Act.

It also appears that the permanent staff of the Colonial Office came to accept the outlines of the union based on the Quebec Resolutions for similar reasons to the politicians. Sir Frederic Rogers, the permanent under-secretary, wrote an account of his analysis of the situation following the visit of John A. Macdonald to London in late 1864. For Rogers, the challenge was “to arrange for a real union of the five provinces … on terms which shall make the Central or Federal Legislation really dominant … and yet to provide security to the French Canadians that this dominancy would not be used to swamp their religion and habits.”⁸⁵ Rogers, too, favoured a legislative union that would “make one body politic of the whole.” The scheme based on the Quebec Resolutions, he claimed, gave too much power to the individual provinces. However, he believed that it left room to the “British provinces to effect a clear amalgamation by degrees.”⁸⁶ Rather like Monck, Cardwell, and Macdonald, he was convinced that provisions were in place to ensure the dominance of the central government in the new union.

Less than a week after sending his encouraging response to the Quebec Resolutions, Cardwell sent another requesting that the lieutenant governors “take the necessary steps for giving effect to [the union] in the Province under your Government.” In response to the unprecedented Quebec Resolutions, Cardwell had taken the extraordinary step of ordering his governors to use their best efforts to give effect to that particular scheme of union. He did this despite the fact that Lieutenant Governors Gordon, MacDonnell, Anthony Musgrave (of Newfoundland), and George Dundas (of Prince Edward Island) had clearly expressed the unpopularity of the scheme within their respective provinces.⁸⁷ While the instigation of the Canadian legislature was extremely significant, the Colonial Office's positive orders to the lieutenant governors to “give effect” to the union in their respective provinces shows the active intent of the Colonial Office, and, particularly, of Cardwell, to push the colonies toward a union.⁸⁸ The shape and character of the resulting Dominion in 1867, however, is an ample display of the Colonial Office's policy to seek the consent (or at least the appearance of consent) of the colonial legislatures as well as of the limits of its ability to influence opinion in these provincial institutions.

While Governor General Monck was ostensibly in favour of the form of union proposed in the Quebec Resolutions, it is clear that, among the Lieutenant Governors, both Gordon and MacDonnell were personally opposed to the scheme.⁸⁹ Despite their opposition, however, they were ordered by the Colonial Office to attempt to put the scheme into effect by “every proper means of influence.”⁹⁰ In the face of an eloquent, determined, and popular opposition to the proposed union in Nova Scotia from Joseph Howe and William Annand, the opposition leaders, it was decided that the issue of Confederation would not be submitted to an election. Accordingly, it was pointed out that the issue of Confederation was never mentioned in the election of 1863, and, thus, Charles Tupper, the premier of Nova Scotia, had no mandate to pursue such a union.⁹¹ The Colonial Office, while acknowledging the loyalty of Howe and Annand, respectfully bypassed the need to submit the Confederation scheme to the people since they were believed to be adequately represented through their legislatures.⁹²

In New Brunswick, however, the question was placed before the electorate in 1865. The people elected a decidedly anti-confederate party under the leadership of Albert Smith.⁹³ The Colonial Office responded in kind by urging Lieutenant Governor Gordon to do what was necessary to effect the scheme of union, even if that meant he had to consult with the leader of the opposition.⁹⁴ In obedience to his orders, Gordon remained in collusion with Leonard Tilley, the leader of the opposition, an act that finally precipitated another election in 1866. The election of 1866 was fought more on the constitutionality of Gordon's actions than Confederation, but it still secured the required victory for the pro-confederates.⁹⁵ Gordon's deliberate actions, urged by orders from the Colonial Office, have been considered “tyrannical,” “outrageous,” and unconstitutional “in a province with responsible government.” Gordon responded, however, that the “constitutional right of the Governor to decline to comply with the advice of his Council has never been denied.”⁹⁶ Gordon was not punished by the Colonial Office for his actions; in fact, he received successive appointments as a colonial governor for the remainder of his career. It is difficult to reconcile these examples of clear and deliberate pressure and interference by the Colonial Office to ensure the passage of the scheme for union in the New Brunswick legislature with the statements of some scholars that imperial influence was subtle and hardly even deliberate. It has even been asserted with some justification that Confederation would not have occurred in New Brunswick when it did had the Colonial Office been hostile or neutral.⁹⁷ Considering that Gordon stretched his executive authority by cooperating with the opposition and forcing another election in New Brunswick, it is difficult to argue otherwise. The fact that Gordon acted in this way, despite his own strong and continued disinclination toward the Quebec Resolutions, suggests that a strong hand could be, and was, exerted from the Colonial Office in London to push through the scheme of union.⁹⁸ Indeed, when the Colonial Office deemed that sufficient support existed in a province, they acted without hesitation in urging governors to take all necessary measures, including curtailing responsible government, to effect the proposed scheme of union.

Imperial pressure played a crucial role in bringing Nova Scotia and New Brunswick into Confederation. It could not, however, overcome the significant opposition to Confederation in Prince Edward Island and Newfoundland. Newfoundland was consistently indifferent to the concept of a union. In early 1866, the legislature refused to pass motions against the Quebec Resolutions but would only affirm the benefits of a union in “abstract principle.”⁹⁹ Newfoundland had expressed an interest in attending the Charlottetown Conference and sent delegates to Quebec but had never displayed any real enthusiasm for union.¹⁰⁰ By March 1866, the Newfoundland legislature passed a motion against union, as defined in the Quebec Resolutions.¹⁰¹ Despite repeated requests from Lieutenant Governor Musgrave, the Colonial Office, perceiving the likely defeat of Confederation in the legislature, refused to send a despatch threatening the withdrawal of imperial funding and protection for the island.¹⁰² Arthur Blackwood and Sir Frederic Rogers both advised against attempting to force Newfoundland into accepting the Confederation scheme. Blackwood, furthermore, suggested “that to attempt to use force to one Colony would stimulate a rebellion in the rest” against the scheme of Confederation.¹⁰³ They were unwilling to use such “violent” means in coercing a colony to accept the proposed union, particularly when such false threats would prove an embarrassment if union were to fail.¹⁰⁴

When presented to the legislature of Prince Edward Island, the Quebec Resolutions were rejected by a vote of twenty-three to five on the grounds that a union would prove “politically, commercially, and financially disastrous to the rights and interests of its people.”¹⁰⁵ Despite Cardwell's strongly worded despatches, particularly that of 24 July 1865, the Colonial Office orders failed to overcome such vast opposition in the legislature. The Colonial Office had neither the desire nor the political will to impose union against the wishes of a provincial legislature so clearly in opposition to a union as Prince Edward Island. The actions of the Colonial Office to safeguard Confederation in Nova Scotia and New Brunswick may have even stiffened opposition to the scheme in Prince Edward Island.¹⁰⁶ The Colonial Office did, on the other hand, show that they possessed the enthusiasm and the power to effect a union alongside representatives from provinces such as New Brunswick and Nova Scotia. These provinces displayed only nominal support for the Confederation scheme among the populace, even if support for the vague concept of a union was quite widespread. For example, opposition leaders Howe and Annand in Nova Scotia supported the principle of union, just not the one based on the Quebec Resolutions. Without the very public and direct support of the Colonial Office and Lieutenant Governors MacDonnell and Gordon following their orders to bring union into effect, it is unlikely that Confederation would have occurred in 1867.

It is clear that Colonial Office policy markedly changed under the stewardship of Edward Cardwell between his taking office in April 1864 and his response to the Quebec Resolutions of 3 December of the same year. The question remains, however, as to why Confederation occurred when it did; why was it possible between 1864 and 1867 when, as we have seen, it was rejected in 1851, 1858, and 1862? Historians approaching Confederation from an imperial perspective have often argued that Cardwell was singularly responsible for the change in colonial policy, but this does not explain his initial support for only a Maritime union in the summer of 1864. Any argument that the timing was simply fortuitous falls flat when one considers the obstacles that the Colonial Office had to overcome in pushing forward the Confederation plan. An election had to be deliberately avoided in Nova Scotia: New Brunswick was forced into holding a second election when its lieutenant governor acted in collusion with the unionist opposition; Prince Edward Island rejected the terms of the Quebec Resolutions outright; Newfoundland remained resolutely indifferent, rendering the achievement of a “British North American” union spurious at best; and the fall of the Russell government in 1866 resulted in the replacement of Cardwell by the Earl of Carnarvon as colonial secretary.¹⁰⁷ That the Dominion of Canada was created in 1867 in spite of these extraordinary difficulties is ample evidence of the strong and increased desire of the Colonial Office and the delegates of the British North American provinces to come to a compromise in light of pressing concerns on both sides of the Atlantic. Indeed, the increased tensions with the United States toward the end of its Civil War must also be taken into account.¹⁰⁸ Not unrelated were the persistent fears of Fenian raids from across the us border.¹⁰⁹ Inspired by the cause of Irish Republicanism, members of the Fenian brotherhood launched several unsuccessful raids into British North America between 1866 and 1871.¹¹⁰ The Canadian government was also at yet another impasse and had formed a coalition for the purpose of using a British North American union to extricate themselves from their recurring political deadlocks. Moreover, there was a strong desire among British parliamentarians to relieve the British taxpayer of the financial burden of North American defence.¹¹¹ A sufficient explanation of the timing of Confederation in 1867 must draw upon each of these factors.

By the time of the London Conference in November 1866, the Colonial Office, including its permanent staff, had unequivocally committed itself to the Quebec Resolutions, and, thus, large modifications would potentially affect the practicability of achieving union, which was, by this time, widely accepted. It must be stressed, however, that its acceptability in Britain was borne largely out of the perceived necessity of achieving a union rather than a particular agreement with the specific terms of the Quebec Resolutions. Indeed, many parliamentarians, including Cardwell, Carnarvon, and Monck, expressed their dissatisfaction with aspects of the Quebec Resolutions yet were forced to view the material presented to them by the Canadian delegates as a “treaty.”¹¹² Any significant changes to the resulting bill by the British Parliament could jeopardize the years of negotiations stretching back to the Charlottetown Conference in August 1864.

In June 1866, Earl Russell resigned as prime minister. He was succeeded by the Earl of Derby who appointed the Earl of Carnarvon as colonial secretary. Cardwell briefed Carnarvon on the subject of Confederation, and the two eventually worked together (Cardwell from the opposition benches) in order to see that the British North America bill passed through Parliament.¹¹³ Carnarvon shared Cardwell's enthusiasm and anxiety to achieve a union of the British North American provinces as quickly as possible.¹¹⁴ Despite having serious reservations about a less centralized union of the provinces, Carnarvon, like Monck and Cardwell, was convinced that the Quebec Resolutions, despite appearing to provide strong local legislatures, were ingeniously drafted to produce a dominant central government of the confederated provinces.¹¹⁵ Notwithstanding his public espousals of faith in the present scheme, he made it clear to Cardwell, that his “foremost object w[oul]d be to strengthen, as far as is practicable, the central gov[ernmen]t against the exclusive power or the encroachments of the local administrations.”¹¹⁶ Thus, for Carnarvon, both the timing of Confederation and the strength of the central institutions were deemed to be crucial to the success of the scheme. He acknowledged, however, that his hands would be tied by the most significant difficulty of all: finding agreement among the British North American delegates when they assembled in London to reassess and come to final conclusions on the Quebec Resolutions. Once the delegates were in agreement, it would be difficult, if not impossible, for the British Cabinet to introduce any innovations into the British North America bill. Carnarvon's difficulties were unenviable, but his proposal to overcome them was one that many historians have neglected in their analysis of Confederation.

As colonial secretary, Carnarvon immediately began gathering information to bring about a union of the British North American colonies by the end of the parliamentary session of 1866.¹¹⁷ His plan involved drafting a bill,¹¹⁸ securing the acquiescence of Cardwell and the members of the former Whig/Liberal Cabinet to its provisions, and providing the British North American delegates with twenty-four hours upon their assembling in London by which to come to an agreement on whether or not to accept his bill.¹¹⁹ It was an incredibly bold stroke, and the true audacity of it is borne out in the details of the draft bill.¹²⁰ Carnarvon claimed that his bill was “founded on those parts of the Quebec Resolutions on which, so far as I know, no material difference has yet existed.”¹²¹ However, the bill reserved the right of the Cabinet by Order in Council to “frame provisions (not being repugnant to this Act) relative to” matters including the all-important clauses on the distribution of powers between the general and local legislatures. Ostensibly, this mode was taken in order to save time and effect the union within the current parliamentary session. By allowing the colonial secretary to decree by Order in Council the provisions upon which British North American delegates had thus far been unable to agree, Carnarvon believed he could pass the bill before the parliamentary session ended. However, in his letter to Cardwell, Carnarvon admitted that he would use the opportunity granted by the “acquiescence” of the delegates in order to reduce “the general powers granted … to the Local Legislatures … with a view of adding strength to the central Government.”¹²²

Unsurprisingly, Cardwell's responses consistently targeted the potential abuse of using Orders in Council to enact provisions repugnant to the North American delegates.¹²³ He also questioned whether Parliament would even acquiesce to such weighty measures being undertaken without its explicit approval.¹²⁴ Carnarvon, however, remained adamant – time was of the essence, and for tough decisions to be made, there must exist “a large and important residuum” or arbiter – in this case, the British Cabinet.¹²⁵ Cardwell expressed his concerns to Russell that the “portions of the scheme of Confederation which [Carnarvon] proposes to reserve to be dealt with by Order in Council … are very large.” Instead, Cardwell suggested that prolonging the parliamentary session might mean that the provisions could be made by legislation rather than by Order in Council.¹²⁶ Lord Russell's response, however, was almost insultingly dismissive. It was evident he was willing to support Carnarvon's scheme so long as the union was effected.¹²⁷ Cardwell had no choice but to reply that his party would support the proposal. He only added that objections over the Orders in Council could be allayed by “the insertion of a clause, respecting the Order in Council to be laid before Parliament, before it finally acquires validity.”¹²⁸ However, political and military circumstances in the province of Canada as well as some confusion on the part of Lord Monck meant that the Nova Scotia and New Brunswick delegates arrived alone at the end of July.¹²⁹ Without the Canadian delegates, Carnarvon was unable to so much as pitch his scheme, and, thus, he admitted that the hopes of “any legislation for this session must be abandoned,” adding that he looked with regret upon the circumstance, seeing “how many uncertainties and difficulties are ahead.”¹³⁰

When it was clear that no Canadian delegates would arrive in time for the 1866 parliamentary session, Monck suggested that he might accompany the delegates upon their arrival in November.¹³¹ Monck was still in Canada but was evidently longing to assist Carnarvon in the drafting of a union bill. While it would be counterfactual to consider what might have occurred had the Canadian delegates arrived along with those from the Maritimes, it is certain that their reception and the process by which the British North America Act was drafted – not to mention its content – would have differed significantly. The Colonial Office had seized the initiative, full of anxiety in July to ensure that they remained the arbiter over the respective powers of the central and local legislatures. The romantic vision of Canada's creation by the “Fathers of Confederation” in the Westminster Palace Hotel in the winter of 1866 came within a hair's breadth of being foundered on the shoals of an anxiously assertive Colonial Office under Carnarvon. The delay of the Canadian delegates was due to political considerations and the renewed threat of Fenian raids along the us border. This effectively destroyed Carnarvon's hopes of a speedy enactment and, thus, frustrated his desire to outmanoeuvre the delegates in the drafting of the bill for a British North American union.¹³² He was forced to admit that protracted negotiations among the delegates would be necessary. Despite thinking that the task of keeping the Maritime delegates in England until November would be “impossible,” Carnarvon agreed to “do what I can to amuse the delegates now here so that they should not fancy themselves neglected.”¹³³

While awaiting the arrival of the Canadian delegates, Joseph Howe, a leader of the Nova Scotian opposition to Confederation who had followed the Maritime delegates to London, brought to the attention of the colonial secretary important charges against a leading Canadian minister. The charges, indeed, were such that they, too, almost led to the derailment of the Confederation scheme. John A. Macdonald, the minister of militia, was charged by Howe, with considerable proof, of excessive drunkenness to the extent to which he was often unable to carry out his duties.¹³⁴ Lord Carnarvon immediately perceived the issue from a domestic perspective. If Canada faced further incursions by Fenians – a genuine fear in the late summer of 1866 – and Macdonald were drunk, not only would the lives of British soldiers stationed in Canada be at risk, but it would offer precisely the stick that Lord Russell's government needed to browbeat Derby's minority ministry in the House of Commons.¹³⁵ Charges concerning Macdonald's drunkenness had already been aired publicly, most notably in George Brown's Globe, and so the prospect of brushing the issue under the rug was out of the question.¹³⁶ However, interference by the Colonial Office in the composition of a colonial ministry possessing responsible government would be a thoroughly unprecedented step. Considering the strong views of Sir Frederic Rogers and T.F. Elliot toward colonial self-government, it is likely that they would have vehemently opposed such a policy.¹³⁷

Carnarvon was initially convinced that something needed to be done. He went so far as to write a draft despatch to Lord Monck requesting that he force the resignation of Macdonald. Further reflection, discussions with Lords Stanley and Derby, and a more detailed perusal of Monck's evaluation of Macdonald's indispensability to the Confederation scheme resulted in Carnarvon backing down and sending a much softer despatch.¹³⁸ Rogers, too, had a keen sense of Macdonald's indispensability to the scheme, and it is likely that he would have advised Carnarvon against taking any rash action.¹³⁹ Had Monck forced Macdonald to resign, there is little doubt that the fragile coalition in the province of Canada surrounding the issue of Confederation would have broken up and the scheme would have been left in tatters. To the many tales of the drunkenness of Canada's first prime minister may be added that his vice almost derailed the creation of the very institutions he would go on to lead for so many years. In the end, the Derby government in Britain risked their very existence on either their blind faith that Macdonald would carry out his duties successfully as minister of militia or that the Fenians simply would not invade. They took this risk to ensure that Confederation had a chance of success. It is difficult to reconcile such manoeuvres with the comments of some scholars that the British looked upon the issue of Confederation with indifference.¹⁴⁰

Despite Carnarvon's hope that the Canadian delegates would arrive in September, it was in fact late November, as Monck had suggested, when the delegates arrived in Britain.¹⁴¹ London was quiet; Parliament was not in session and most of its members were away in constituencies or country estates. This allowed the British North American delegates to act quite independently and set their own agenda for the forthcoming bill, based entirely upon the Quebec Resolutions. The British North American delegates met 4–24 December.¹⁴² During this time, they convened almost daily in a spacious room on the ground floor of the Westminster Palace Hotel.¹⁴³ The delegates chose to proceed through the Quebec Resolutions one by one to resolve any disagreements over their contents. This, in itself, was a significant departure from Lord Carnarvon's draft bill of the summer and narrowed the scope by which the Colonial Office could interfere.¹⁴⁴ Nonetheless, Carnarvon was reassured on 11 December when Macdonald, Cartier, and Galt, three of the Canadian delegates, visited him at his country estate, Highclere. They assured him they were “anxious to make provincial Legislatures and Governments as municipal in character as possible.”¹⁴⁵

The result of the deliberations of the North American delegates was the creation of what became known as the London Resolutions, which would form the basis of the British North America Act. As Monck pointed out to Carnarvon upon his receipt of them, “I do not see any reason in the changes which have been made by them from the Quebec Resolutions to alter [my] opinions.”¹⁴⁶ The alterations, while they occasioned a significant amount of debate and soul-searching among the British North American delegates, did not fundamentally alter the distribution of powers between the general and provincial legislatures.¹⁴⁷ Monck still evidently believed that the delegates in favour of a federal union were being duped into accepting a legislative union in disguise. Indeed, the London Resolutions maintained the seemingly all-important safeguards for the central government, including the governor general's power of reservation and disallowance of provincial legislation and the original residual clause of the powers of the General Parliament to legislate for the “peace, welfare, and good government of the Confederation (saving the sovereignty of England).”¹⁴⁸

Following the formulation of the London Resolutions, the primary task facing the delegates and the Colonial Office was to draft them into the legal form of a parliamentary bill. This process, however, also required the approval of the Colonial Office and involved its final attempts to alter the proposed government of the united provinces. Rather than coming together to draft a single version of the bill, the delegates nominated a committee among themselves to prepare a first rough draft of a bill; meanwhile, the Colonial Office set the renowned parliamentary draftsman Francis Reilly to work on their version of the proposed bill.¹⁴⁹ The bill prepared by the North American delegates adhered very closely to the wording and nomenclature of the London Resolutions as this was the basis upon which the delegates were unanimously agreed, and it was only upon the foundation of these terms that the committee was authorized to draw up a bill.¹⁵⁰ The union, whose name was still left blank, was described as a “Province or Confederation,” a slight reversal on the confident espousal of the title “Confederation” used in the London Resolutions.

The bill drafted by the Colonial Office, on the other hand, was a radical departure from the London Resolutions.¹⁵¹ Inspired by the centralist tendencies of Monck, Carnarvon, and Rogers, Reilly's draft contained a residual power clause only for the General Parliament.¹⁵² The local legislatures, restricted to the passing of mere “ordinances,” had their exclusive areas of jurisdiction explicitly labelled; whereas the General government could legislate “in relation to all Matters not … assigned exclusively to Provincial Legislation.” Furthermore, in this bill, the legislative councillors would not be appointed for life but, rather, for ten-year terms. In short, Reilly's draft showed the hand of the Colonial Office, offering a glimpse of the kind of union they preferred to see in British North America, albeit in a rough form. The title given to the union in this bill is equally revealing of the kind of change that the Colonial Office generally deemed to be taking place in British North America. The provinces were to be united into “One Colony, with such a name as Her Majesty thinks fit.”¹⁵³ Throughout the bill, the term “One Colony” is used. The provinces already possessed responsible government and virtually (if not legally) unfettered self-governance. As far as the Colonial Office was concerned, the union of the provinces was a strategic manoeuvre of imperial consolidation, not the intentional creation of a new nation, and the nomenclature used in their draft bill strongly reflects that view.

Unsurprisingly, the delegates could not accept many of the innovative sections of the draft bill prepared by the Colonial Office. Several days in late January and early February were consumed with deliberations at Lord Carnarvon's London residence. These meetings were attended by Carnarvon, Rogers, Monck, Reilly, Charles Adderley (the parliamentary under-secretary), and the British North American delegates.¹⁵⁴ The third draft bill, drawn up in its final form on 2 February 1867, resembled far more closely the bill prepared by the delegates than that of the Colonial Office.¹⁵⁵ Carnarvon reportedly explained his scheme at these meetings but found “unqualified opposition.” The delegates rejected his proposals for term limits for members of the legislative council and his distribution of powers between the central and local legislatures, particularly over the issue of “civil right and property.”¹⁵⁶ The delegates evidently felt that they were unable to significantly deviate from the scheme of the Quebec Resolutions.¹⁵⁷ Adjustments could be made, but such innovations as the Colonial Office introduced in their bill would have been wholly unacceptable to many of those present. Had the delegates accepted the Colonial Office's draft, it would have been a gross violation of the mandates for which they were authorized to treat in London by their legislatures. From the perspective of the Colonial Office, however, this issue was nugatory; it was sufficient that an agreement could be concluded between the imperial government and the British North American delegates, who were seen as representing “both the Colonial Government and the Colonial Opposition.”¹⁵⁸ Indeed, the Cabinet, including Carnarvon, had no desire to push through a bill against the wishes of the provincial legislatures even if they assumed they had the power to do so.¹⁵⁹ Carnarvon was well aware that the process had been painstaking and that to alienate the delegates in London by attempting to impose the will of the Colonial Office against their wishes would place the entire Confederation project in jeopardy.¹⁶⁰ When Carnarvon discussed Confederation with Lord Derby, his thoughts were simple and illustrated the persistent fears of British North America's powerful southern neighbour: “I believe it to be a question of confederation amongst themselves, or of absorption by the U.S.”¹⁶¹

The delegates, therefore, managed to maintain most of their bill, particularly the sections concerning the upper chamber, by virtue of the fact that without a strong legislative council the equal sectional interests of the three regions (that is, Ontario, Quebec, Maritimes) would not be preserved. Since this was a fundamental feature of the federal nature of the Confederation scheme, its preclusion would likely have resulted in the refusal of Lower Canadian and Maritime delegates to join the union.¹⁶² The Colonial Office, however, was insistent that the central government would have a final check in almost every area against the localities and sectional interests. To this end, they pushed for a clause that would see the Crown being permitted to appoint additional members to the legislative council in the event of a deadlock – just as the monarch in Britain might create new peers. While accepting the Colonial Office's proposal that the legislative councillors ought to be appointed by the Crown rather than the provincial legislatures, the delegates maintained that the additional number to be appointed ought not to exceed six members and that equal representation from each region must be maintained in the new appointments.¹⁶³ The ability of the Crown to appoint legislative councillors was a significant boon for centralization, but still the delegates managed to dictate the terms and frustrate the desires of the Colonial Office and the British Cabinet. Further, the division of powers between the central and local legislatures in the third draft of the British North America bill was substantially the same as the initial draft prepared by the delegates; it restored some power to the local legislatures. However, the fourth draft, containing mostly minor alterations, saw the reinsertion of the all-important clause of provincial powers “[a]nd generally all matters of a private and local nature not assigned to Parliament.” Thus, the ambiguity that was so feared by Lieutenant Governor MacDonnell, among others, was preserved in the bill as it was presented to the British Parliament in early February.

While the pro-Confederation delegates were meeting with representatives of the Colonial Office, Joseph Howe and his anti-confederate delegation continued their opposition to the scheme. Howe approached Carnarvon, requesting copies of the Resolutions drawn up by the British North American delegates in order to draft a paper in opposition to their final proposals.¹⁶⁴ Sir Frederic Rogers strongly and repeatedly urged Carnarvon to refuse Howe's demands and appeared to be genuinely apprehensive about the public opinion in Nova Scotia against the Confederation scheme, lest it have the same effect as in Newfoundland and Prince Edward Island.¹⁶⁵ Ultimately, Rogers and Carnarvon decided that Howe should submit a paper explaining his objections to the (now-outdated) Quebec Resolutions, for that way he would not “know what to strike at.”¹⁶⁶ When Howe finally submitted his objections, Carnarvon merely stated that he was not “shaken in [his] conviction of the advantage to be obtained by an Union of the Provinces.”¹⁶⁷ Howe's opposition provided the imperial government with a crucial opportunity to reject the Confederation scheme, on solidly plausible grounds, if they felt the negotiations were going awry. The fact that the Colonial Office stood fast against such vehement opposition suggests that they were still confident it would produce the kind of union that they favoured.

During these last Confederation conferences in Lord Carnarvon's London residence, the delegates also discussed the “rank and title” to be given to the newly united provinces. It has already been mentioned that while the delegates initially called the union a “Confederation,” the Colonial Office simply referred to it as a “United Colony.” The third draft, however, contained the designation of Canada as a “Kingdom.” Both “Canada” and “Kingdom,” however, were at this stage proposals rather than officially sanctioned names and designations, respectively.¹⁶⁸ The aspiration of the newly united provinces to be called a “Kingdom” could not have come as a particular shock to the Colonial Office, which had received a despatch from Lord Monck in September 1866 noting the “very strong desire that Her Majesty would be graciously pleased to designate the union a ‘Kingdom' and so give to her representative the title of ‘Viceroy' … based on a consciousness of their increasing importance and a desire on their part to reconcile their highly prized position in reference to the Crown of England with the natural yearning of a growing people to emerge, at least in name, from the provincial phase of existence.”¹⁶⁹ The response of the Colonial Office to the proposal was frosty. They considered it not only pretentious but also felt that it might be “too open a monarchical blister on the side of the United States.”¹⁷⁰ Although it was inserted into the third draft of the bill, neither the prime minister nor Queen Victoria was consulted.

It is clear that the views of the Colonial Office had not changed over the course of the intervening months. Carnarvon simply explained to the prime minister that it was rejected as being “open to some objection.”¹⁷¹ The final draft of the British North America bill, however, contained a rather curious second choice. The delegates chose the term “Dominion” as a second-best choice as a designation for the newly united provinces. In explaining this idea to Lord Derby and the queen, Carnarvon gave the explanation that “it is a tribute on their part to the monarchical principle which they desire to maintain, & in opposition though not offensive opposition, to the institutions of the U.S.”¹⁷² Neither the prime minister nor the queen was opposed to the measure of adopting the title “Dominion,” though Derby did call it “rather absurd.”¹⁷³ Carnarvon added that he could “see no harm in the concession to them of the term ‘dominion',” and the queen rather nonchalantly said she had “no objection … if you think ‘The Dominion of Canada' a better title for the new Confederation than Canada plain & simple.”¹⁷⁴ This is in direct contrast to the far more serious consideration of the queen toward naming the union “Canada.” Indeed, Queen Victoria contemplated “consulting the wishes of Her American subjects” on the proposed name – presumably by a vote – before providing her consent to it. She regarded it as “so important that no mistake should be made in this matter.”¹⁷⁵ She was reassured when Lord Carnarvon explained that the unanimous delegates were themselves elected by the legislatures of their respective provinces and that therefore their views ought to be taken as representative of her North American subjects.¹⁷⁶

The conferral of the title “Dominion,” therefore, was not the result of careful deliberation within the British government to create a new designation of mature colonies, nor did it represent any new relationship between the colonies and Britain. This concept developed organically over time in a manner that is far beyond the scope of this article.¹⁷⁷ Suffice it to say that in 1867 the term “Dominion” was proposed by the British North American delegates because it reflected their continued relationship with the British Crown, and it was acceptable to the British government precisely because it implied no alteration of Canada's colonial status and was sufficiently inoffensive to the United States. If its status was therefore upgraded in any practical sense, it was only in so far as the Colonial Office believed the united provinces would be much stronger and more beneficial to the British Empire than when they acted independently of one another.

And while it is true that the new Dominion was treated “pretty nearly as an independent country,” the Colonial Office continued to play a considerable role in the achievement of the continental vision of Confederation.¹⁷⁸ In presenting the British North America bill to Parliament, Carnarvon envisioned a “single system of English law and commerce and policy extend[ing] from the Atlantic to the Pacific.”¹⁷⁹ Carnarvon himself, after a hiatus from office, returned as colonial secretary in 1874 to resolve a dispute between British Columbia and Canada over the construction of the transcontinental railroad. The celebrated “Carnarvon terms” helped to secure British Columbia's place in Confederation.¹⁸⁰ Furthermore, the Colonial Office was central in the sale of the Hudson's Bay Company's lands in the northwest and in bringing that territory as well as Manitoba into Confederation.¹⁸¹ And when Joseph Howe attempted once again to dissolve Confederation through the grievances of Nova Scotia's newly elected anti-confederate legislature in 1868, the Colonial Office rejected his claims.¹⁸² Sir Frederic Rogers had forcefully opposed Howe's attempts to derail Confederation in 1866, and it is likely that his advice was crucial in persuading the Duke of Buckingham to reject Howe's calls for the repeal of Confederation. The Colonial Office held steadfastly to the policy of Canadian Confederation well beyond its achievement in 1867.

Having reviewed the process and development of the Colonial Office's policies toward a union of the British North American colonies, several clear trends emerge that had a significant impact on the early development of the institutions of the new Dominion. The first of these was the preference for a legislative over a federal union, a view held by almost all British officials. These views were probably influenced as much by the desire to emulate the United Kingdom as by the case of the United States, which was struggling with the concept of states' rights in the decades leading up to Canadian Confederation.¹⁸³ Cardwell remarked to Monck on 14 October 1864, before he had heard of the proceedings of the Quebec Conference, that “we all agree in favouring a complete fusion, not a federation.”¹⁸⁴ Following the conference, Cardwell adopted the same reasoning as John A. Macdonald, explaining that although it was called a federation, it will not be so “in the real meaning of the word.” It will be, he claimed, “a union of many municipalities under one Supreme Legislature.”¹⁸⁵ Even as he presented the British North America bill to the House of Lords, Carnarvon stated that the real object was “to give the central government those high functions and almost sovereign powers by which general principles and uniformity of legislation may be secured in those questions that are of common import to all the Provinces.” The local legislatures were to be characterized by “a measure of municipal liberty and self-government.” It was his firm belief that “the authority of the Central Parliament will prevail whenever it may come into conflict with the Local Legislatures.”¹⁸⁶

Cardwell and others rejoiced in what they saw as the centralizing principles of the Quebec Resolutions provided by powers such as the disallowance of legislation and the right of lieutenant governors, as agents of the central government, to suspend assent to provincial bills. Despite this, however, none of them had truly taken into account the most serious criticism of all, that of Richard Graves MacDonnell, when he protested that the clause “generally all matters of a private or local nature not assigned to the General Parliament” would be a cause of conflict between the two levels of government.¹⁸⁷ Indeed, through such a clause, in the years following Confederation, the Judicial Committee of the Privy Council, the “supreme tribunal” of which Lord Monck spoke that would arbitrate between the central and local governments, would successively undo the centralized vision of Canadian “federalism” held very clearly by the Colonial Office as well as by many of the British North American politicians.¹⁸⁸ According to the views of the empire's highest court, it was in fact Monck who was deceived into believing that a distinctly federal constitution was in fact a legislative union in disguise.

It is clear in the light of overwhelming evidence that various British officials played a significant role in the achievement of Confederation in 1867 and the development of the constitution of the new Dominion. The active intervention of the Colonial Office and its officials in the years between 1864 and 1867 allowed Confederation to be approved in the colonies of Nova Scotia and New Brunswick. However, without the crucial support of provincial legislatures, Confederation would have been rejected as it was in Prince Edward Island and Newfoundland. As much influence and authority as the Colonial Office might wield, it had neither the desire nor the ability to impose a new constitution in opposition to a recalcitrant legislature. Nonetheless, the intentions of the “silent” founders of the Canadian constitution, the British colonial administrators discussed herein, ought to be at least as considerably studied as those of the renowned Canadian architects of the Quebec Resolutions. Their views, not only upon the actual provisions of the British North America Act but also the context within which they understood crucial constitutional terminology, are a vitally important contribution to the growing interest in variations of originalist constitutional jurisprudence in Canada.¹⁸⁹

There has been considerable debate in recent years between proponents of “living tree” or originalist interpretations of the Canadian constitution. The disagreement is primarily over the extent to which the original intentions of the framers of the constitution ought to guide constitutional jurisprudence. Proponents of the “living tree” interpretation instead argue for the principle that the constitution ought to develop organically to suit the needs of contemporary society.¹⁹⁰ Without passing judgment on the respective benefits of these views, the evidence supplied in this article suggests, at the very least, that originalism need not involve “a form of transgenerational mind reading.”¹⁹¹ The views of Colonial Office officials reported herein are clear and explicit. If one were to adopt an originalist approach to the interpretation of the constitution, it is logical that one should take into account the views of all of the document's creators, and this includes both the political and permanent civil servants of the Colonial Office. As even Lord Sankey, the founder of the “living tree” metaphor, declared, “[i]nasmuch as the [British North America] Act embodies a compromise under which the original Provinces agreed to federate … [t]he process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded.”¹⁹² It is impossible to adequately understand the provisions of the British North America Act without a thorough knowledge of the context within which they were developed on both sides of the Atlantic. The names of Head, Newcastle, Cardwell, Monck, Elliot, Rogers, and Carnarvon are not particularly revered among the major figures of Canadian history. It certainly does not suit the formation of a national myth to ascribe such a significant role in a nation's history to those who had but a fleeting encounter with it. However, it is difficult to doubt the pivotal role that each of these men played in the development of the institutions of the new Dominion of Canada between 1851 and 1867.