May 22, 1905

LIB

John Gillanders Turriff

Liberal

Mr. TURRIFF.

I may say that I spoke to the hon. Postmaster General 'about this Bill. The Bill stood at his request some days ago, I spoke to him and he was quite agreeable that I should move the third reading of the Bill.

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Motion agreed to, and Bill read the third time and passed.


RELIEF OF CLARA BIDWELL McDERMOT.


House in committee on Bill (No. 152) for, the relief of Clara Bidwell McDermot.- Mr. Campbell. On the preamble,


CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

Mr. Chairman, before the preamble is carried, supplementing what I said on this matter on Friday evening, I think it is necessary that I should even at the risk of wearying the committee for ten or fifteten minutes, draw attention to the character of this legislation. It must not, be supposed from the want of interest that is taken in these Bills that they go through, the House as a matter of course because the Senate has passed on the evidence on which they are founded. The question of divorcing a wife from a husband or a husband from a wife, is a much more serious question than seems to be realized considering the rather slight amount of attention that was given by almost all the members of this House to this question on Friday! evening and I think, with all deference both to the committee and to the govern-, ment, that I should draw the attention of the committee for a moment or two to what I think is not generally recognized namely that a person who is asking for a divorce in any British country is asking for a privilege, is asking for something he is not entitled to as a matter of course, something that there is no rule of law or of civil conduct that he can ask enforcement of in order to secure what he is asking for. I propose to draw the attention of the committee and the government to the definition of this Act ofi ours as laid down in Gemmill's Work of, Divorce, which, in describing what a dii vorce is, emphasizes the distinction between it and another legislative Act. It is this : ,

A divorce is a legislative Act originating in the Senate, and when a man comes with a petition for a divorce Bill, he comes to solicit a privilege, a preference to one individual over another-an immunity from obligations which are binding on the general mass of the community, and he is bound to submit to such rules as the House in its wisdom thinks proper to lay down for the conduct of ail business brought before ft.

There is abundant authority given in the, foot-note for tlie principle which is here Mr. W. F, MACLEAN.

laid down. A person coming and asking] for a divorce must show something in the interest of the state, not in the interest ofl herself or of her husband only. We arq not the judges of the civil conduct of a tnaUj and his wife, but we are here legislating la the interest of the country and in the in-i terest of society. Although personally-and I do not wish to be misunderstood by thisi committee-I am opposed to divorces onj principle, yet, I recognize that under our, law and custom certain people are entitled! to a divorce under certain circumstances, but 1 say they must be extreme circumstances and the divorce must be granted on the principle that it is in the interest of the state and society generally. I think every hon. gentleman will agree with me that it is not in the interest of the state that divorces should be granted lightly, frivolously, for trifling reasons, or for anything but wliat must be! absolutely in the interest of the country. The Bill before us is brought by a woman who alleges that her husband was guilty] on the statutory grounds,-I do not wish to particularize in the House any more) than necessary-a number of years after, they had been married. The preamble of the Bill sets forth that these wrong Acts of his took place in the years 1901 and) 1903 and that these people had lived toi gether until the year 1889. We have to) ask ourselves what was the condition ofl these people at the date of his alleged wrong-doing. They were married in 1881, the woman being twenty-one years of age and the husband a couple of lyears older- not an unreasonable age for either of them, to be married at. They have three children living in this country. They lived at Port Perry. They lived together all right until 1889, and then they separate because the wife insisted on living with her parents and would not follow her husband to his own home. This was three years before she alleges any wrong-doing on the part of her husband. Let us ask ourselves at the threshold of this case : Are we going always to divorce people because they happen to conclude that they would rather live separately and then after having lived separately a little while bring evidence, which,, perhaps, it may be necessary for me to discuss later on, of a most outrageous kind of some act upon which she may be entitled technically to have a divorce granted? It seems to me that this woman, as we say in the court of chancery, does not come into equity with perfectly clean hands. Her duty, when she married that man, was to stay by him as long as he was true and faithful to her. She preferred to disregard the obligation she took and she went to live with her father. The man waited for three years to see if she would change her opinion about that during which time there is no suggestion that he did anything wrong and after waiting three years, when she refused to leave her father and mother and

live with her lawful husband, although his brothers-in-law had endeavoured to prevail upon her to do so, he went west. She now produces evidence before the Senate, for what it is worth, that after all' that he committed adultery and she claims therefore that she is entitled to get a divorce from him.

I point this out because if this parliament is going to grant divorce for such causes, it may have the effect of leading the young men and young women who are growing-up, to think that there is nothing more sacred in the marriage tie than this woman seems to think ; that there is no more respect to be held between husband and wife than there would be between strangers where the marital relation may not exist. Should parliament allow this wouan to say:

I will not live with my husband although there is no legal reason why I should not.

I am the mother of three children of whom he is legally the father ; having lived for nine years in wedlock I prefer to live with mv parents rather than with my husband, and finding that he cannot induce me to live with him, when he goes away I will say that I am entitled to a divorce because he has deserted me and because after he deserted me he did some things he should not do. I do not want to be misunderstood; if he was guilty of what she alleges, even years after she refused to live with him, technically she is entitled to this divorce. But this woman does not seem to have treated her husband in the way she ought have treated him. She has no absolute right in this country to a divorce ; she comes here, she asks for a privilege, and it is for this parliament to say whether under the facts proved it would be in the interest of the state to grant a divorce. We must ask ourselves what would be the effect, as a precedent of our granting this divorce, upon the young people of this country. I point out that the evidence against this man is most unreliable ; it is the evidence of two acknowledged dissolute characters ; tiie evidence of two accomplices who lived by the very thing which they allege against this man and which he comes to Ottawa to denv upon oath. He did not employ counsel', I presume because he did not think he needed counsel. X do not wish to imply the idea, because I am a lawyer, that this man should have employed counsel, but I do say that if he had a counsel of five years experience in cross-examining witnesses it is quite evident that the testimony of those twro witnesses would be shattered. No lawyer can read that evidence without seeing sticking out all through it indications of a made-up story. These two dissolute characters give evdence as to this outrageous offence which most men would rather serve a term in the penitentiary than be found guilty of. X do not know if I am entitled to say that for all the men of this | country, but from my general knowledge

202 i

I think that would be a fair statement of the case. I think this House ought to say to the petitioner in this case : it may be unfortunate for you if this man is guilty, but you cannot get divorced as easily as you seem to think ; you cannot ask us to take the risk of doing a great wrong to the father of your children. The evidence given against this man is of two women who at the very outset of their evidence state that they have been living by the very worst sort of vice for several years. We are not governed in this House by what a judge might direct or what a jury might find, but I say it is common sense to believe that women who will acknowledge that they have lived for years by selling their virtue, will sell their oaths if they get enough dollars to do so. These women came from British Columbia and it is fair presumption from their evidence that they did sell their oaths. I do not want to discuss this evidence in detail, but I do ask that before the House should grant this divorce hon. gentlemen should have an opportunity of looking into this evidence and dissecting it ; and if the consideration of the Bill is not adjourned to enable them to do that then I would ask that they should vote against it. I think it will be found from the evidence that these two women came from British Columbia to prove a certain thing no matter how they might prove it. Their evidence is conflicting, the suspicious fact is there and one of the women places at the end of her story apparently as an afterthought, a declaration of the criminal conduct of herself, which from her knowledege she ought to have told at the very beginning. The evidence all through is full of inconsistencies and improbabilities, and it is further open to the very serious objection that it is the evidence of two of the worst kind of accomplices. Applying the principles of the criminal law no judge would allow a jury to convict on that evidence, but yet we are asked to convict on it in this House. We are asked to do something more serious than to try a man for a criminal offence, because we are asked to strike a blow at the whole fabric of society by granting a divorce oil evidence which is pot clear. I would like to quote to the House the words of Lord Penzance, a well known authority who in the House of Lords said :

It seems proper, however, to present what has been said opening a broader view. In a certain sense the public has an interest in every judicial controversy between Individual members of the community ; hence it is, that for example, if a witness commits perjury m a mere private suit, he is indictable, for it is an offence against the public. But in a higher and different sense the public is interested in the marriage in the individual members of the community. They constitute the foundation, not only of social order, but of society itself, and without them there would be no legitimate population to support the state in its coming future. Therefore, though unmarried persons

may contract the status of marriage when they mutually please, those who have assumed it cannot cast it off by mutual consent, as parties to an ordinary contract may annul its obligations. Hence, when an attempt is made, through the courts, to undo a marriage, the public becomes the party, not in the strict sense to oppose, but to see that it does not prevail without sufficient and lawful cause existing in the real facts of the case ; ' for ' in the words of a learned English judge, * society has an interest in the maintenance of marriage ties, which the collusion or negligence of the parties cannot impair.'

I will also give the language of the Hon. Mr. Scott in the Senate in 18S7. when he was the leader of the opposition in that House :

It is the duty of parliament to keep well within itself the power to dissolve the marriage tie. Canada will be all the better in the years to come if we hold to that principle soundly and wisely ; I trust, therefore, that the loose doctrines which are now being propagated as to foreign divorces will he no more advocated in this House. I am quite sure they are not in accord with the better spirit of the people of this country. I know that thsy are held In horror by nearly one-half of the people of Canada, whose opinions are entitled to respect. I know that in those ehurehes which do reluctantly accept the principle of divorce, and notably in the Episcopalian, the leading minds regard with dismay and terror the havoc that has been made in the social svstem in the neighbouring country where the permission to annul the marriage tie is so easily obtained.

I can give hon. gentlemen another authority from the Senate, that of the Hon. Senator Gowan, who said in the same debate :

Nay, more, parliament may and ought always to have in regard not merely the question as it affects the parties, but the effect in relation tc morals and good order-the effect which the passing of a particular law might have upon the well-being of the community. Parliament, as the supreme power, has its duties and responsibilities, and cannot compromise the wellbeing of society, but is bound to consider what would most tend to the public good.

| want hon. gentlemen, therefore, to carefully keep their minds upon this, that in passing this legislation, we must do it in the interest of the public. It is not simply a question whether we think Mr. McDermot or Mrs. McDermot will be as well off if we grant this divorce ; but the question is what the effect will be on the social condition of our country. If we grant this divorce, it should be because we think the Act of Parliament ought to be passed in the interest of the community. I do not know what position the government will take on this legislation. H do not want to embarrass the government upon it. I do not want to say that the government are responsible for it in any special or peculiar way. Of course, the government are generally responsible for all the legislation that goes through this House. If the government can convince this House that the evidence is not such as would entitle us to Mr. LANCASTER.

pass this Bill I 'will expect them to say so. if they do not, I suppose I shall have to go on and discuss it from my owu standpoint, and tell the House why I think that in all the circumstances this Bill ought not to pass.

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Mr. BRODEIJR@

The hon. gentleman has referred to the fact that the woman left the domicile of her husband without any, reason.

'Mr. LANCASTER. She insisted on living with her father and mother in the same town when her husband wished her to live with him.

Mr. BR'OD'EUB. Is there anything in the evidence to that effect ?

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CON
LIB

Archibald Campbell

Liberal

Mr. CAMPBELL.

I would like to know if Mrs. McDermot did not contradict him in that respect ?

At six o'clock, committee took recess.

After Recess,

Committee resumed at eight o'clock.

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CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

I understood the hon. gentleman to say that this woman denied that she had deserted her husband. I do not see where she denied it. There is no such denial in the evidence.

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LIB

Archibald Campbell

Liberal

Mr. CAMPBELL.

Read page 5.

'Mr. LANCASTER I do not see any denial there. It is not disputed that in 1881 they lived in a house furnished by the husband. Then at the request of her parents, as she says herself, she induced her husband to come and live with her at her parents house.

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LIB
CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

I have not seen any words that would constitute a denial. She lived with her husband at her parents' house until 1889. Then there was a family jar between her parents and her husband and she sided with her parents and remained with them when her husband left. She refused to follow her husband to another house. Surely you would uot say that that was a desertion of the wife by the husband. The husband had a house for his wife and children. He had taken that house from a tenant in order that he and his family might occupy it, tout his wife refused to go with him and also kept the children. To grant a divorce to the wife, in the presence of these facts, would be to make a travesty, of the marriage vows and contract and be giving the young men and women of this country a very false idea of the duties and responsibilities they assume when they enter the marriage state. Let me put a, converse case. Suppose two profligate men go into a witness box and swear falsely that they had improper connections with

a most respectable married woman and suppose she comes down to this Senate and denies it

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LIB

Rodolphe Lemieux (Solicitor General of Canada)

Liberal

Mr. LEMIEUX.

If there were only that fact, but there are others.

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CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

That is exactly the ease reversed. Is there anybody here who, would grant the husband a divorce ? In this case two women of bad character swear away the character of this man. Their story is not corroborated. The husband makes an admission ; but you cannot use one part of his admission and not the other. You must use the whole of it or none. 'He admits that he went to see these women, but he did so in order to collect money for goods they had bought from him. He swears that it was purely a matter of business and that he was not guilty of any improper offence. But supposing this woman had gone to live with her husband as she should have done, would there be any complaint to-day ? For three years he lived in Port Perry, in the same village with her, and she refused to go to him. There was nothing to justify her refusal. After three years he went west. In going west, he was not doing anything ' wrong, and the fact that he went Vest could not be called a desertion of his wife. I have no desire to condone any 'wrong doing that man may have committed in the west, if he did commit any, but I am not willing to hold him guilty on the evidence of two dissolute women, and I can see no justification for the wife's conduct. The man did go west, but it? was after his 'wife had deserted him in Ontario without 'any cause. I would urge the government to afford us some guidance with regard to this case. For as I have said, this cas'e establishes a precedent. -If we pass this Bill, divorce becomes only a matter of dollars and cents. Evidence such as that against this man can be bought and being the evidence' of people such as I can have described it probably can be bought for a very small amount of money. Surely if there were a case against this man some reputable and disinterested witnesses would be produced to testify to the facts. We must apply the same rule to all, and, if. in this case such evidence as this, absolutely unsupported, is to be a ground for divorce we set a most dangerous precedent affecting this very serious, this vital question of the marriage relation in Canada. 1 have already s-aid that the evidence of the man in this case is- not contradicted, I quote from page 2 of the wife's evidence :

Q. Then where did you go to live ?-A. With my father.

Q. Why?-A. Mr. McDermott wished it.

Q. That was in 1881 that you went to your father's ?-A. Yes.

Q. You continued to reside with your father how long ?-A. Until his death.

Q. Was there a Mr. Frederick Howard Annis present at your wedding?-A. Yes.

Q. When did your husband leave you?

These are the woman's counsel's own words, not hers. Such a leading question not have been allowed in court, but the Senate committee is not governed by the rules of a court, and so this counsel is allowed to put these words in his client's mouth. The evidence goes on :

Q. When did your husband leave you?-A. In 1889.

Q. Seven years after you went to live with your peopl-e ?-A. It would be hardly seven.

Q. Within a few months of seven years ?- A. Yes.

Then at the top of the next page she speaks of his chastising one of the children. So driven is she to find a cause for the divorce that she brings forward this case of the man having chastised one of his children as a reason for divorce. That isa new -proposition in this country that a man is to be divorced because he chastises one of his own children when he thinks it necessary, notwithstanding that the; criminal law is there to take care of him. if he chastises the child unduly.

Q. You have already told us that in 1889 your husband left you.

These are her counsel's words again, not her own.

Q. Where did he go to reside ?-A. He still continued to live in Port Perry.

Q. For how many years?-A. About three.

Why did not she go to live with him in Port Perry ? Where was her place when they were both living in the same town ? Was it not with her husband, the father of her children ? Then, lower down on the same page we find this evidence :

Q. Since 1892 how often have you seen your husband ?-A. Never.

Q. Since 1892 ?

A. Oh, once.

Q. Where did you see him ?- -A. In my own home.

Q. Do you remember about when?-A. I think it would be about 1899, but I am not sure. .

Q. That is the only time botween 1892 and the present time ?-A. Yes.

Q. How long did you see him then ?-A. Oh, for about twenty minutes.

Q. He did not then stay over night with you? -A. No.

Q. Who was present ?-A. My aunt.

Q. You only saw him about twenty minutes ? -A. Yes.

For some reason the counsel does not ask anything about the conversation that took place or what occurred. But the hus

band himself tells us, and the woman does not deny the truth of what he said. He explains that he went there to coax the woman to live with him ; and she refused and would give no reason. What are we coming to in this country if, under these circumstances, a divorce is to be granted ? How many of us are to know what the marriage tie means ? Now. the man did not stop at this one effort to induce his

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CON

Arthur Cyril Boyce

Conservative (1867-1942)

Mr. BOYCE.

in an improper form, a leading question, tlie witness makes another charge as to improper relations with another person in that house-with herself. As if it were not sufficient to allege improper relations with only two people she must throw in herself and then as if this were not sufficient she further goes on and alleges improper rela-: tions by this man with the whole household. In ordinary cases juries would look upon that evidence with a great deal of suspicion as it is uncorroborated and unsubstantiated by any other evidence of a creditable nature and they would reject it' as againstt the positive evidence of the man that he was not guilty and explaining the circumstances under which he was in that house, il grant that some presumption is created by reason of the fact that this man fwent to a house of this' description at all and that the committee of the Senate, in the absence of an explanation as to the nature of his visit to the house, must come to the conclusion that his visits there were of an illegal nature for the simple reason that it is an illegal resort which is carried on in defiance of the law, and that the presumption must apply as against any one who visits such a place without ii satisfactory explanation of his conduct. But. the committee in reporting this Bill evidently lost sight of the fact that the knowledge and acquaintance of this man with these *women was gained in consequence of his business because they both swear, if reference be had to the evidence, that they met him first not at the bouse, hut they met him first at his store where they were doing business with him, and that in connection with his business, as he admitted in the evidence at the foot of page 8, under cross examination by the respondent himself, he *went to the House. Could there be any fuller explanation of his presence there to rebut any presumption which might arise from his visit ? .Surely not. It is admitted that these relations commenced in connection with his1 business down town and that liis business brought him to the house. Then, surely, that presumption is successfully negatived or explained. What more ? He explains that ou one occasion his visit was to proffer advice and see that a certain female received proper medical treatment. That is distinctly corroborated at the foot of page 8 by the same woman who admitted that he did go there for that purpose and that in consequence of his visit this woman was removed where she would receive proper medical treatment. From the top of page 9 down to the middle it will be seen that the .visits to the house, or at any rate the visit there spoken, of, was in the afternoon between the middle of the afternoon and six o'clock, and also on the lower

is positive of the general allegation that this man was guilty of misconduct with two specific people. This is a case for the exercise of extreme care, and I would submit to the committee this proposition, which I fancy would be a sound one to apply in a case of this ikind, that if there be 'evidence of this nature, largely substantiated by the direct testimony of witnesses of 'this character, it would not be too much for parliament to demand that before granting the relief asked for the evidence given by women of this class be corroborated by circumstantial evidence which is the safest evidence to rely upon. I mean this: The evidence of these women is brought directly in issue toy the man's explanation as to the occasion of his visit and his denial of misconduct when lie did visit the House. Surely these women could have obtained other evidence in regard to the visits at that house. Surely, if this man was such a notorious profligate and a frequenter of houses of that character, evidence of the fact would not be wanting. Again, Sir, surely, if these two women can upon their oaths specify, acts of legal infidelity committed by this man, specify these with particular women named whom they know, it would not be too much for the Senate committee to have demanded that one or both of these 'women be produced, and the committee should 'withhold its decision until they are produced in order that the allegation may be verified by the evidence of these women themselves.

But, it appears that the hon. gentlemen composing that committee never even asked a question as to where these women were, with whom this man was supposed to have committed this act of infidelity. That is of very grave import as varying at least the degree of credibility to be attached to that evidence. It will be observed that the principal witness not only admits that she is a grossly immoral character, but that she is also particeps eriminis in the same .act with this man. Therefore her evidence is to be suspected and criticised in the strongest possible manner. The evidence of the woman Clark, at page 7. must be looked at also with a critical eye because it undoubtedly shows a very, deplorable state of affairs. Her memory is faulty and vacillating with regard to circumstances. As to the evidence of these three women it must undoubtedly be gathered that there is not one ounce of satisfactory corroborative evidence, if there is an ounce of corroborative evidence at ail. There is no identification of the women with whom these acts of infidelity were com? miffed ; they are referred to simply bv their Christian names. Granted that the! keeper of a house carried on for grossly immoral purposes" swears to certain facts imwhat evidence She swears to the fact

part of the first: half of page 9 it will be seen that the woman is not at all positive

in regard to the 'date of the visits or in I locating those men. upc regard to the time of the year, although she does site do so?

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CON

Arthur Cyril Boyce

Conservative (1867-1942)

Mr. BOYCE.

6361 MAY 22, 1905 6362

having admittedly no knowledge of the fact and she swears to that as a fact which could only be a presumption. Her evidence with regard to misconduct with the two women named is entirely hearsay and should not of itself be admitted except as circumstantial evidence. She swears to the fact and she admittedly presumes that fact; she presumes to give direct evidence of the misconduct itself, but investigation shows that the evidence is presumptive or circumstantial; she has no knowledge at all of. what she is talking about; in short she is a reckless witness. There is another circumstance which 1 desire to point out to the committee. The women had counsel before the Senate committee, the man was un-assited by counsel and he did as best ha could with his limited powers to cross-examine ; his idea apparently being to get a better explanation of the answers in the examination in chief. But, he elicited this fact, and it is of great importance and will be found at the foot of page 9 of the evi-i dence : Q. You received your subpoena from Mr. O'Brien ?-A. Yes. Q. Is he or is he not a friend of yours in a business way ?-A. Well, yes, in a business way. Q. Does he go around and stay at your house very often ? Question ruled out by the chairman. My hou. friend from Bineoln suggests: Why did they not let him answer that question. Here is the man who obtained the evidence ; here is the man who procured the witness; surely it would be pertinent to the inquiry to ask if that man also is par-, ticeps crimiuis. Further the evidence goes : Q. Did you sign a deposition or declaration to Mr. O'Brien prior to your coming down here? -A. Yes. Q. Were you sober when you signed that ? Question ruled out by the chairman. The point I am trying to make is that that women was not cross-examined ; her story was attacked; it was unsatisfactory in general and in detail; she was swearing, to facts of which she had no knowledge ; she admitted that prior to her coming down here to give evidence she had signed a declaration with regard to these same 'facts ; surely it would be proper and most desirable that that declaration should be pro-, dueed and compared with the evidence she was giving so that a test could be made as to her veracity. Then we come to the defence. There is no evidence by the wife except evidence tending to show minor details which are no grounds for the passage of this Bill. The evidence in support of the main charge is entirely uncorroborated and is in itself weak and vacillating and contradictory. Cross-examination directed along proper grounds was not allowed hearsay evidence with regard to the charges was admitted in more than one instance; the respondent was without conn- ;el and without the means to direct cross-i.xamiuatiou along lines which would have elicited possibly a very different state of facts. That is the evidence upon which the Senate recommended this Bill, and if there rad been no other evidence I say tbat it would have been positively unsafe to have reported any Bill for passage through the House upon such unsatisfactory evidence. But there was other evidence. There was evidence which gravely contradicted the evidence of the wife even in minor details as to non-support, desertion, and cruelty.. There was evidence expressly and positively denying the charges of misconduct, andj not only denying them but going further, and explaining them, because the direct denial would not be so strong as the denial of the fact coupled with an explanation of tbat fact. At the risk of wearying the committee I desire to refer to page 10, the evidence of the respondent who says : In reference to my poor wife's evidence I deny in toto. I deny emphatically either cruelty to my wife or children, or desertion, or want of maintenance, or cruelty in any way towards either my wife or children or any person living in the house. I deny that I ever chastised one of my children by either spanking or in any other way. The primary cause of my leaving mv mother-in-law's house was the fact that I was accused of stealing $5 out of a book which Mrs. Wi'lcox was reading which I saw' my father-in-law deliberately take and put in his pocket. I also swear positively that I maintained my wife and gave her everything she asked for for something like a year and a half after leaving my mother-in-law's house. When taking legal advice I was told by my lawyer to pay my wife no more moneys unless she consented to remove to her own house. ... I received this letter from-them threatening me with proceedings for alimony, and my reply was always that I was willing to support my wife, that the house was still vacant, and that as soon as she moved down with the children I would at once contribute everything necessary for their support. I remained, as near as I recollect, t wo and a half or three years in Port Perry. My wife still refused to move down to her own home. That was before there was any allegation of improper conduct upon wliicli nny relief could be granted In the shape of divorce ; and that evidence goes uncontradicted. The wife listens to it, and does not go into the box and deny it. At the time he offered to take her to her own home and provide for her, as it was his duty to do there was no ground on which she could apply for a severance of the matrimonial fie Again, on page 12 occurs the follou mg evidence with reference to a letter written with regard to alimony : By Mr. Armstrong, for petitioner : Q. We have no such letter or copy of it ?-A. If Mrs. McDermot has my letter she must have it. * When I got that letter from Mrs. McDermot I at once sent her money. I told her I was keeping store in Golden, and told her that everything she required for the children, wearing apparel. I would take great pains in selecting it. I Could buy it cheaper than she could in

Port Perry, and I would be pleased to send anything she asked for. In reply I got a letter back with a long list, something over $165 worth of dry goods, which I filled, and expressed them to Port Perry. I also sent the children a cheque a piece.

That is not denied by the woman ; and this absolutely negatives the allegations as to desertion, cruelty and non-support contained in her evidence-in-chief. Again, on the same page, he says :

I not only did that, but on the next order for goods, as I knew that my wife was a lady who was particularly neat in her appearance and so on-this first time she told me she did not require anything for herself, she was able to provide for herself, but simply wanted goods for the children, but in the same invoice I included several articles of apparel, silk, lace and silk dress for my wife and a quantity of underwear that would come handy, and also a note attached to the goods that in the future she would take everything for herself that I felt like sending. Every request from that day till the present has been complied with. Since that date I have sent a bicycle apiece, snowshoes, watches, each one a watch and chain, and my wife has at different times sent me up orders for goods in the spring of the year that she wished supplied, and I have always supplied them. I also in December, 1904-1 think that is correct-sent my wife two express orders for her own personal use of fifty each.

These allegations are not denied, and the man is taking the risk of his oath, of being convicted of perjury in a very simple manner, because he refers to express orders and express packages of which there is a record. The wife was sitting there and must have heard this evidence as to these remittances and consignments of necessaries ; but she does not say that she never received them and inferentially that he never sent them. Again, on page 13, there is not only the specific denial of the misconduct alleged against him by these women, but there is an explanation of the reason of each of the visits to their house. Now, Sir, these unfortunate women who occupy this class of house have to live, and tradesmen have to go there, to take orders, to deliver goods, and to collect the money in payment for those goods ; and if these people do not pay -and they have not the best credit in the world they have to be looked after, and messengers have to be sent to them. Is any presumption of misconduct to be drawn from the fact that a man in the course of his business does visit these places ? Is he to be branded as a criminal for all time because he does so in the course of bis business as a tradesman ? As is not denied, and as is admitted by the woman in charge of the house, he went there for the purpose of carrying on his business and collecting his debts collecting the money out of which in all probability be sent these remittances to his wife. Is that to be a presumption of guilt against the man, or will this committee require some more tangible or definite to convict him of the charges

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CON

Arthur Cyril Boyce

Conservative (1867-1942)

Mr. BOYCE.

made against him ? When under cross-examination, at page 14, he does not abuse his wife. He speaks in the highest terms of her, and he further explains the occasions of the other visits to the woman Harron's house ; and in the whole course of the cross-examination by counsel for the petitioner it is to be observed that the man does not falter from the story he tells. He is subjected to a very close and analytical examination, and his story does not vary generally or in detail; it stands as a straight story, and he is entitled to belief at least as much as the women who acknowledge their own guilt and their own immoral method of livelihood. Granted, then, that his word is as good as theirs, there is no case, because the evidence in favour of innocence, plus the presumption, is greater than the evidence adduced to show guilt. But it is greater, stronger, more reliable, for this reason, that he is definite in regard to the circumstances, he does not vacillate with regard to his facts, and he is not caught, as the women were caught, making statements which are wholly in variance with facts, which they themselves subsequently narrated in the same evidence. There is, in short, the story upon which ibis woman seeks legislative interference to dissolve that which can only be dissolved under our law as it exists at present, by this parliament. My bon. friend from Lincoln has referred in detail to the principles which we must respect in dealing with these Bills. Sir, I must confess that to my mind it is not clear beyond a peradventure that this man was guilty of the charges brought against him, which alone can be the ground upon which this Bill should become law. The relief in a case of this kind is purely discretionary.

There is no right to legislation dissolving the marriage tie, even on specific proof of legal misconduct. It is an application to the state for a privilege to a particular person, it is privilege legislation, legislation in favour of a particular person ; and when we- are dealing with the dissolution of so sacred a tie as the marriage tie, we cannot hedge it about with too many safeguards. And although this Bill might have to be relegated to the committee of the Senate and its further consideration deferred for another session, that would be far better than to judge this man guilty, on the evidence -submitted, of the charges cited in the preamble of this Bill. If there be any doubt in the evidence, who should get the benefit ? All men desire to befriend a woman. That is an obligation laid upon their manhood, but when we come to the question of dissolving a marriage upon charges such as are recited in the preambles of this Bill, it should not matter whether the petitioner be the wife or the husband. We ought to apply the same rule in each case. Let it be established as a principle that this House will reject each and every application for a divorce where

the evidence falls short of proving clearly beyond reasonable doubt the guilt of the respondent, whether man or woman. 1 submit that in the evidence sent down by the Senate there is gTave doubt, doubt so grave that a jury would not hesitate in giving the accused the benefit of it; and I think we might well, if we do uot reject the Bill, send it back to the Senate in order that the matter may be more thoroughly investigated along the lines I have pointed out that no injustice be done.

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL.

One would suppose, from the arguments advanced by the hon. members for Lincoln (Mr. Lancaster) and Algoma (Mr. Boyce), that this Bill is an entirely novel proceeding and one that has never been brought before the House since confederation. As a matter of fact, however, these Bills for absolute divorce or dissolution of the vinsulum matrimonii have been granted from time to time since confederation ; and if we follow the English precedent we can go back as far as 1551 to find the oldest case on record in England in which the principle of divorce has been acted upon. And so long as persons bring themselves within certain recognized principles, it has been the custom of parliament, and in later years in England and in some portions of this Dominion it has been the power likewise of the courts, to grant these Bills of divorce. Every one knows that there are certain elementary principles which must govern in divorce cases and which must be complied with before divorces are granted. This is not simply, as has been stated in the House, an action between two. parties. It is an action in which a third party is interested. It is the duty of the state to see that no injustice is done, it is the duty of the state to protect society, but it is also its duty, when specific charges are proved, to mete out the same measure of justice to one party that is meted out to another. In the first place, the petitioner must come into court with clean hands. There must be no crime or guilt on his part. Has there been in this case the least attempt to prove any unbecoming conduct on the part of the petitioner ? We have the evidence before us. The witnesses were brought before the Senate committee. The respondent had every chance to bring witnesses, and to my mind what has stronger weight than anything else, we have the testimony of an hon. member of this House, who represents the riding in which the petitioner lives, and who says that no more virtuous woman lives in the province of Ontario. Therefore the first, and to my mind, one of the most important elements has been settled. The next important element is that there must, be no collusion between the parties. Surely no one will conclude that in this case there has been any. Then the next-question is whether the ordinary cause of divorce has been proven. The hon. gentlemen who have addressed this House asked us to go back to the principle adopted by the English parliament prior to 1857 and by the English courts to a very large extent since and that is to grant to the husband a right they will not grant the wife. I do not think that such was the intention of parliament. True these hon. gentlemen did not say so in terms, but I can draw no other inference from the arguments they advanced.

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CON
LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL.

I submit that it is a reasonable deduction to draw from the remarks of these hon. gentlemen that we should withhold from the woman the right we are willing to grant the man.

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May 22, 1905