tion 11 of that Act, which I contend conferred on the Territories the laws of England in civil and criminal matters as the same existed on July 15th, 1870, is void.

If Mr. Holmested is right in this contention, then not only does he prove that what I have advanced in my article is absurd, and that the Western Provinces have not the English law of Divorce as it existed on July 15th, 1870, but he also proves that the Territorial legislature and the legislatures of the new Provinces of Manitoba, Saskatchewan and Alberta as well as the Judiciary of the old Territories and of these new Provinces were and are, one and all, acting upon a chimera, a phantasy, an illusion and a dream.

Mr. Holmested's contention, if it is right, means that all our laws are in turmoil, and that all our judges have been handing out lobsided justice ever since the North-West Territories became a part of the Dominion.

Such a result as this would be calamitous; and in contending against it I am fortified by the reflection that I am the avowed champion of our legislators and jurists, both of the past and the present.

Fortunately for me this contest means an easy victory. There is nothing substantial in Mr. Holmested's criticism, and I am confronted only with shadows, myths, and figments of Mr. Holmested's mental meanderings.

Test the law by the facts. Between the admission of the North-West Territories to the Dominion and the formation of the new provinces, the Dominion parliament was the Supreme lawgiver over the immense area. Its powers were, at least, equal to the aggregate of those severally reposed in the Dominion parliament and in Provincial legislatures by the British North America Act, and they were limited only by this; that whatever laws, institutions or Courts were enacted or established must be for the Peace, Order and Good Government of the newly acquired territory.

It was in exercise of these ample powers-powers which Mr. Holmested says do not exist, but which he

will find in the British North America Act and its amendments, and in Rupert's Land Act, 1868-that the North-West Territories Act was passed; and section 11 which conferred on the Territories "the law of England relating to civil and criminal matters as the same existed on July 15th, 1870," cannot be impugned as a work of supererogation, or as an enactment which is void because it entrenches upon the Provincial legislative powers under section 92 of the British North America Act in matters respecting "property and civil rights.'

The North-West Territories Act was passed for the big area in 1880, when there were no provinces nor any provincial rights or powers to conflict with the Dominion legislation; and being an enactment not for a province with legislative powers, but for the NorthWest Territories of the Dominion of Canada, the Act was as absolute as a special statute to the same effect of the Imperial parliament.

The Act itself established a Territorial legislature, and conferred on it powers almost commensurate with those prescribed for Provincial legislatures by section 92 of the British North America Act. But this did not endow the Territories with the status of a province.

The Dominion parliament was fully competent to enact all that is comprised within the North-West Territories Act, and to impart to the great territories as a basis for their future development and expansion "the laws of England relating to Civil and Criminal matters as the same existed on July 15th, 1870"-the date when the Territories became a part of the Do

minion.

These general words carry every atom of English law which they do not expressly exclude, and they emphatically carry the law of Marriage and Divorce, which was exclusively reserved to and conferred upon the Dominion parliament by section 91 of the British North America Act.

The fact that this law has not been put into operation does not impair the enactment.

When the new provinces were formed they did not enter upon their career de novo or ab initio. They took over as part of their individuality the laws previously enacted by the Parliament of Canada and the Territorial legislature for the immense area out of which they were carved. While they could, immediately after their constitution, proceed to repeal and alter these laws so far as any of them touched upon subjects enumerated in section 92 of the British North America Act, they could not alter or repeal them with respect to any of the subjects reposed in the Dominion parliament under section 91; and one of these subjects is the law of Marriage and Divorce.

The Parliament of Canada never repealed section 11 which it had enacted; and nolens volens the three Western provinces had at the time of their constitution, and they still have by force and operation of this Dominion enactment this damnosa haereditas, if Mr. Holmested will so describe it, but the English law of Divorce, nevertheless, as the same existed on July 15th, 1870.

It is to be noted that Mr. Holmested does not controvert my contention that the general words of section 11 of the North-West Territories Act are sufficient to include and pass the law of Divorce. He only contends that the section and the Act which contain it are alike ultra vires and void.

This, the chief corner-stone of his argument, I have already demolished. But by way of pulverisation, I may say that Manitoba has the laws enacted by section. 11 and especially the law of Marriage and Divorce more clearly and emphatically, but not more conclusively than Saskatchewan and Alberta. Here is the reason: Section 6 of the Manitoba Supplementary Act (Revised Statutes 1906, c. 99), which corresponds to section 11 of the North-West Territories Act, reads thus: The Province of Manitoba shall have the laws of England relating to matters within the jurisdiction of the Parliament of Canada as the same existed on the 15th day of July, 1870.

In interpreting these general words, we are entitled to read in separately and specifically the subjects "within the jurisdiction of the Parliament of Canada"; and section 6 will consequently for the purpose of this discussion read: The Province of Manitoba "shall have the laws of England relating to Marriage and Divorce as the same existed on July 15th, 1870."

Nothing more conclusive or clear was ever enacted or presented for the acceptance of the legislators and lawyers of any country.

Manitoba has the law and Saskatchewan and Alberta have the law; and it is up to them to enforce it. This drives Mr. Holmested from the ramparts, and I turn briefly to the attacks referred to in the beginning of this reply.

There is no space at my disposal to enter into details, and I ask the reader, who is interested, to turn from what Mr. Holmested attributes to me, to the article itself, where he will find the truth as I stated it, and as I am prepared to reaffirm it. And at the same time I invite Mr. Holmested to turn to any of the Constitutional lawyers and writers-Lord Halsbury's famous Commentaries on the Laws of England for instance where he will find verified every word I have written as to the "King being the head on Earth of the Church of England," and as to the Ecclesiastical law being a part of the lex non scripta or Common law of England.

The conclusions drawn in my article from these undubitable facts remain unassailed.

As to the power of the Parliament of Canada to discharge the duplex function of a Judicature and a legislature, I adhere to my original contention.

The Parliament of Canada is without the assumed power. It is constituted to enact laws not for the individual but for the Dominion. The Senate has none of the attributes of the British House of Lords. It has no separate status, and is without authority except whatever the Parliament of Canada confers upon it. It cannot acquire power by usurpation. The

Dominion, unlike the Provinces, has no initial law, nor even the Common law; and it administers only what it enacts. It has enacted no Divorce law, and it has not the Ecclesiastical law of England. What then does it dispense?

Before there could be even a plausible pretence of authority for the present procedure, Parliament would first require to enact a law of Divorce, and next invest the Senate with the judicial functions which now anachronistically they employ in the pretence of administering a law which they do not possess.

What Parliament, however, had better do would be to enact a general Divorce law and pass its administration on to the judicial tribunals of the country.

BRAM THOMPSON.

Regina, December, 1917.