May 22, 1905

CON

Arthur Cyril Boyce

Conservative (1867-1942)

Mr. BOYCE.

Not at all. Neither of us took that ground.

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL.

I am glad my hon. friends say they took grounds quite the opposite. That removes one very grave doubt I possessed. But if they have any doubt about the principles to be followed in the Canadian House, all they need do is read the famous Tudor-Hartt case decided in 1888 and they will conclude that the English law has not been followed in Canada, and I hope never will. I know of no more mischievous and unfair legislation than to deny to the woman the right to a divorce which would be granted the husband.

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CON
LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL.

That brings me to the question whether or not the charge made against this man has been proven. It is not a question whether the wife deserted her husband or whether he deserted her, because desertion, no matter how cruel or under what extraordinary circumstances, is not in Canada-and I hope never will be-a ground for divorce. I shall not go over all the nauseating evidence given before the Senate committee, but I do submit that according to the evidence, the case of the petitioner has been proven beyond doubt. We are told that we ought not to take the evidence of the two women brought from British Columbia. Why ? Because they are prostitutes forsooth.

Did the hon. gentlemen who are opposed to this Bill expect to find evidence of .this kind except in houses of prostitution ? Do you go to the drawing-rooms or the higher classes of society for such evidence ? Do you go to our churches or our schools for evidence of thisi kind ? If these hon. gentlemen had ever practised in the divorce courts or had had experience of this sort of legal matters elsewhere, they would know that you must go to these places to get this kind of evidence. And they would know that case after case in Canada has been decided within the last fifty years on evidence such as this. In the province of New Brunswick they have a divorce court. And I submit that it is as hard to

get a divorce before the courts of New Brunswick as before this parliament of Canada, if not harder. Nine months ago I listened to a ease in that court in which a divorce was granted and the only evidence given was brought from a house of ill-fame as in this case. The judge in that case-it is usual for the cases to be tried by a judge alone, though lie can have a jury under certain circumstances-had no difficulty in coming to the conclusion that the case had been proved.

Mr. BOYCiE. Was there no corroborative evidence ?

Mr. iQAElVEIiL. There certainly was and it was just such evidence as we have in this case showing that this man had been seen frequenting these places. And you do not want better corroboration. You do not get direct evidence in these cases- and it is a good thing you do not. I would refer my hon. friends to a case showing the rule of evidence adopted in these matters. For, Sir, as I have said before, we do not get the direct evidence in these cases and are compelled to rely on circumstantial evidence. I do not believe there is one such case in twenty-five decided in this House or in the courts of this country, but the evidence is largely circumstantial. I would refer these hon. gentlemen to the diction of Lord Stowell in the Lovedon case case in the House of Lords, about the year 1832. I cite from Gemmill on Divorce, page 206 :

It is a fundamental rule that it is not necessary to prove the direct fact of adultery ; because if it were otherwise, there is not one case in a hundred in which the proof would be attainable. In every case almost, the fact is inferred from circumstances that lead to it by fair inference as a necessary conclusion.

INow, X will not refer to the evidence of these women at all. I think it highly im-piioper to refer to that evidence in this House and put it on ' Hansard.' I ask members of this committee to refer to that evidence of which each hon. member has received a copy. You have absolute evidence of this woman who is seeking a divorce, and you have it denied iu toto, almost in toto, by the defendent himself. But there is another important matter which we must 'consider, and that is that the members of this committee have not had the privilege which is granted in every other court 'I have ever heard of, namely Ithat those who are to decide as to the weight of evidence, must see the witnesses on the stand that they may watch their demeanour, and judge by their manner and *appearance Whether they are or are not worthy of credence. This House has not had that privilege. But in the Senate committee they have had that privilege. And [DOT]the members of that .committee and the many members of the Senate who have unanimously decided in favour of passing Mr. CARVELL.

this Bill are in an infinitely better position to decide upon this case than the members of this committee who have only the bald facts reported to them. These women tome and give their evidence. And because they are women of ill-repute their evidence, we are told ought not to be taken. J made it my- business to go to members of the 'Senate, and .they told me that these women gave their evidence with the utmost difidence, that it was almost impossible to drag that evidence out of them, and that it was evident .from their actions that they, were telling the truth, that they had been brought here against their will and were forced to give evidence. But we iu this House do not know anything about that. All we know is that these witnesses swore to these things, and that the defendant denied them. There is another important matter. If I lvad read tbe evidence of the husband alone and bad not read the evidence of the petitioner or the petitioner's witnesses, merely from the way the defendant gave his evidence, I would say that it was about as hard a piece of evidence to believe as I ever heard of. The man has double tbe assurance of those ha/rlots who have been held up in such an unfavourable light here to-night. Take the man's evidence as it stands and he denies his marriage, ddniesi that they lived together as husband and wife, denies that they bad three children. Probably this was not bis intention. But he specifically and categorically denies certain charges made against him by the wife in her examination, charges that are sworn to toy two other witnesses, ilt is impossible for Mm to deny that he was a frequent visitor at the house of the women Han-on and Clarke. He tells us that it was necessary to go there in the course of his business to sell goods to these women. Had he stopped there, he might have been entitled to credence. But he does not stop there. He says he went there to introduce commercial travellers. What for ? That they might also sell these women goods. And'he tells us in the next breath that he sold nearly, ail the silk goods sold in the town of Golden and that, these "women were the prim [DOT]eipal purchasers of these goods-. When a man makes his livelihood by selling good$ to womdn of this kind and then telis us that he took commercial travellers to sell goods in direct competition with himself and prevent liim from making a profit, the evidence is hard to believe. ,But that is his explanation of why he entered those houses of ilMame. That alone should toe enough 'to convince (any? honest man that this-witness is-I will not use as harsh a word as perjurer, but is not entitled to the credence which would deny this woman the right to divorce if this committee believe that in any case husband and wife should be divorced.

'Now. there lias been a good deal said

about whether or not this man deserted his wife, or whether his wife deserted him. As I said before, so far as the crucial point is concerned, it matters not to me which it Was. il think there will be a lot' of evidence found to show whether this man is worthy of belief or not. One thing is very certain-he only provided a home for his wife for about six months after he was married, and them because he could not provide a home or did not want to do so, they went to her father's house and remained there for five or six years, after which he left. A great deal was said about his not being able to get along with his father-in-law and mother-in-law, and he tries to make out that it was never his fault. But he gives Dire lie to his statement from beginning to end because he admits that in one month after he left his mother-in-law's house he made an arrangement by Which he gave his wife $12.50 a month and carried on this arrangement for a year. Is that consistent with the idea that he left because lie could not get along with his [DOT]wife's parents and was pleading with his wife to leave ? Why should he put her off with a pension of $12X0 a month ? If he wished to keep her with him would he not have given her everything he could ? But he gets rid of tier in the easiest way he can. He gives her $12.50 a month and says ; Take that, for it is all you will get. And this arrangement he continued for a year or fifteen months. He lives there in the same village for two years after this ; not one dollar of support does she get from him and finally after about three years he goes west and becomes, 'as he says himself, a Lothario. He admits it); not only admits it, but glories in it. He is what is described in the dictionaries as a gay deceiver, a libertine, a man w:tbout character, a man who glories in the fact that lie sets at defiance the laws of God as well as of man.

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CON

Arthur Cyril Boyce

Conservative (1867-1942)

Mr. BOYCE.

I do not know how it struck my hon. friend but I know I noticed the same expression in the evidence and it struck me that he did not understand the expression.

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVBLL.

If my hon. friend can point to anything in the evidence which shows- that he did not understand the expression. X have not been able to see it, The evidence is simply that the counsel for the petitioner asks :

You were rather a Lothario in the west ?

And he answers :

Yes.

That is all there is to it, and I would like to know bow on earth my hon. friend can read into this language the fact that he did not understand the expression. I do not think the respondent will thank him for saying there is anything on earth he does

not understand. If you read the evidence you will come to the conclusion that in his own mind he knows everything there is on this earth and a little of what is in the next world as well. We have this man on his own admission a gay deceiver, a libertine, a man who glories in it and who goes out there and is certainly a frequenter of these houses of ill-fame. He lives there for eight or ten years and there is not a particle of evidence that lie ever offered to contribute one dollar to his wife's support, until some two or three years ago when she wrote, and then he would not give a cent until she signed a statement that it was not to be taken as a precedent that he would not be liabaie for alimony. Then she sent a list of goods which she needed for her children. He tries to make a virtue of necessity by claiming that after proceedings had been started, not after the subpoenas had been issued, but after he knew that an attempt was to he made to bring the matter before the Senate of Canada, then he becomes magnanimous and then without being solicited he sends presents to the children and express orders to his wife and she returns them. If there is anything in this evidence for which I admire this woman, il is the fact that wthen the matter had gone to the extent it had she had the womanhood to return the money by which lie was trying to buy peace.

We now come down to the last matter which I propose to mention in reference to the question whether this woman or this man should be believed and it is this. We have the evidence of the man himself that he left this woman some five or six years after their marriage, in 1889, and that in all the sixteen years intervening he has not contributed more than $400 to her support ; he admits it himself. We have the evidence, as I said before, that he has led a wild, dissolute life in the west, that he has inhabited houses of ill-fame. 1 am taking his own admission, not the evidence of these women, and when his wife swore to the most abominable piece of evidence I ever listened to by a wife, which will be found at page 2 of the evidence, X say the man did not deny it. It seems almost too inhuman to he placed in print, it seems so bad that you can hardly believe that a man living in a Christian country would sink so low, to such a depth of degradation, that he would treat a woman as this woman was treated by him-and that at a time when he was professing to live with her as her husband. She swears at liage - .

I was in child-birth and I asked Mm to go for the doctor, and he refused positively and swore at me and said : damn it all why didn't I tell him before it was time to retire ?

I submit that has not been denied. In the first paragraph of his evidence he denied categorically the facts that he had thrown the children under the table, bent their fingers back and driven her out of the

house. He denied these charges, but he has not denied this charge.

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CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

What does my hon. friend say of the fact that the woman forgave him for that and lived with him for several years after ? Is that not an answer.

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL.

I am not asking the committee to pass the Bill on that evidence. I am asking the committee to believe that this man is not worthy of belief, a man who is brutal enough to make a remark of that kind under those circumstances is not fit to be believed in any court in any Christain or civilized country, and that a man who is sufficiently mean to do that is one of the most despicable specimens of humanity that it has ever been my experience not only to meet but to read of. With this evidence I have no hesitation in coming to the conclusion that the man has been proven guilty of adultery, and therefore, as I read the law, a divorce should be granted. But that raises another question. The hon. gentlemen who are opposing the passage of this Bill seem to be advocating something which so far as I have been able to read has never been advocated in this House since 1888 and I know not how long before that time. I may be in error but I have inquired from older members and I have been unable to find a single instance from 1888 when this House has ever questioned the finding of the Senate on this matter of divorce. Why has that rule been followed ? Simply because an agreement was made. In the first place they are following the custom of the House of Lords of England, a custom which prevailed in England from 1551 down to 1858 when these matters were handed over to the divorce court. Then in the old province of Canada these matters were taken up by the legislative council and after confederation was consummated these matters were taken into consideration by the Senate and have been ever since. Under the customs and rules of the Senate passed in 1888 and even before that, they have had the power, and have exercised that power, of (bringing before them the witnesses, the witnesses give their evidence viva voce as in all courts of law and the committee of the Senate who have listened to the witnesses, watched their demeanour, observed the manner in which they give their evidence, forming their conclusion more I say from watching the manner of the witnesses than the actual evidence, these Senate committees have been passing these questions and their decision has been taken as final by this House as far back as 1888.

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CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

Why then do they ever come before this chamber ?

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL.

Because under our present system of legislation it is necessary that a Bill be passed by both Houses of parliament.

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LIB
CON
LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL.

If we are considering the evidence then I say we should be manly about it, I say that we should pass this Bill and give notice to the people of Canada that in future every divorce Bill is going to be contested in the House of Commons as well as in the Senate. Suppose this rule had existed in this case what would have been done ? These witnesses would have been brought before either the Private Bills Committee or a special select committee to give evidence, and members of this House would have had the privilege of going into that committee and listening to these people giving i their evidence. Members of this House would have been treated as a jury is treated in a court of law, and would have been in a position to decide upon this matter intelligently on the principles of their common sense and their judgment, and they would not have been compelled to take the evidence second-hand as we are compelled to do in this case. I submit that this parliament has never adopted that principle. Let us be fair and manly about it, let us give the people of the Dominion of Canada public notice of it and let us put people in such a position that they will not leave a case half tried when they have got through with the Senate. These witnesses I presume have gone back to British Columbia. We have no way of getting their testimony or finding out whether they have sworn the truth or not. We must simply take the evidence as it was produced before the Senate. It is not fair; this woman or her friends have been compelled to put up I suppose $500 or $1,000 in order to get this case in the position it is to-night, and now in an unfair and unusual manner, in a manner which I admit the House has a legal right to adopt but which has not been employed for fifteen years, it is attempted to hold up this Bill simply because we have not this evidence before us.

Another peculiar course was taken on Friday evening by the two learned gentlemen who have discussed this case here tonight. Then a different line of action was taken. On that occasion we were asked to submit this matter to the Minister of Justice. Think of it! When the hon. member for Centre York (Mr. Campbell) asked the hon. member for Lincoln (Mr. Lancaster) why he wanted to submit it to the Minister of Justice, he said that he wanted to get a legal decision ; and when asked what legal decision, he said that he wanted to know whether or not there was sufficient ground on which to grant this divorce.

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CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

The hon. gentleman (Mr. Carvell) is making my speech for me.

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL.

Am I ? I will do my hon. friend the justice of reading from the record, which, I presume, he will not deny, and I will leave it to the committee to decide

whether or not I have properly quoted him. I read from the unrevised edition of ' Ham sard ' of Friday, May 19, at page 6511:

Mr. CAMPBELL,. Now I think that this is a childish, I think it is frivolous, the most frivolous argument ever advanced in this House for a man of the ability of the 'non. member for Lincoln, or the hon. member for Algoma, to seriously propose to refer this to the Minister of Justice for a judicial decision upon the legal point. What legal point is there about it ?

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CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

The legal point is whether the evidence here is legally sufficient to warrant the stain of guilt that is sought to be put on this man.

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LIB
CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

Is that not a proper question for the law officers of the Crown to decide?

I ask is there a lawyer in this House who ever heard such a proposition as that ?

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CON

Arthur Cyril Boyce

Conservative (1867-1942)

Mr. BOYCE.

Does my hon. friend deny that that would not be a proper course ?

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL.

I most certainly deny that it is a proper course.

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May 22, 1905