referendum by which the public at large could express its views.  While the Quebec Resolutions were approved by the Parliament of the Province of Canada, those resolutions underwent some further modifications in London in 1866 and 1867 in the course of transformation into the British North America Act, which was never referred back to the Parliament of Canada for final approval.  The legislatures of New Brunswick and Nova Scotia only authorized their ministers to arrange some scheme with the imperial authorities, with no specific approval being given of the Quebec Resolutions or of the British North America Act.  We know that public opinion in New Brunswick on Confederation was, in fact, very divided and that in Nova Scotia, shortly after Confederation, the overwhelming view was in favour of secession.  It is true that the governmental representatives of all three provinces met in London and agreed on the terms of the British North America Act, albeit with some prodding from the Colonial Office, but they took care to ensure that the scheme was enacted before there was time for widespread debate back home.  The whole scheme, in fact, would probably not have succeeded had it not been for the influence of the British government in the colonies.  So if the new constitution was generally acceptable, it was probably because the residents of British North America generally assumed that the British government and Parliament should have some say over the colonies, subject to consultation with colonial ministers.  There seems to have been no substantial body of opinion that the final scheme had to be approved by colonial legislatures or by colonial voters.5  Compare that to the opening words of the constitution of the United States, adopted 80 years earlier, which commences, “We the people of the United States, in order to form a more perfect union ….” — a constitution which subsequently was adopted by popularly-elected state conventions.

The First Forty Years — A Patriation of Political Legitimacy

As we leave the Confederation period we see that much of the political muscle for the adoption of the British North America Act came from the imperial Government and Parliament, with a major assist from provincial representatives, a limited contribution from the parliament of Canada, even less support from the legislatures of New Brunswick and Nova Scotia, and acquiescence from the British North American public.

In the first forty years after Confederation, while the legal legitimacy of the United Kingdom Parliament in Canadian constitutional affairs
5. See e.g., Rogers, “The Compact Theory of Confederation” (1931) 9 Can. B. Rev. 395; Underhill (ed.), “The New Nationality:  The Climate of Opinion in 1867” in The Image of Confederation (1964) CBC Massey Lectures, 3rd series; Morton, The Critical Years:  The Union of British North America 1857-1873, (1964). esp. ch. 11.

  »  3-7