September 17, 1917

LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL:

Before this vote is taken,,

I want to point out the unfortunate position in vvhich I find myself with regard to this Bill. I do not know whether I ought to vote or not, but I desire to show the utter absolute nonsense of granting divorces by the Parliament of Canada-

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?

Some hon. MEMBERS:

Hear, hear.

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LIB

Frank Broadstreet Carvell

Liberal

Mr. CARVELL:

-and the necessity of

having a divorce court, if divorces are to be granted. I suppose that I am to blame in this matter. I should have taken the trouble to read the evidence, but I am pretty busy, and I have not had the time to read it. I am asked to sit here as a judge, and render a decision on such a serious matter as dissolving the marriage contract between man and wife, and I have to do that without the faintest knowledge in the world as to what I am doing. All I can do is to accept the judgment of those who have dealt with the case. I understand the Bill has received the endorsement of the committee of the Senate and the committee of the House of Commons. I presume they have gone over the evidence. I must take it for granted that these committees have -given the case their best consideration and while I understand these committees were pretty nearly evenly divided, yet the majority in both committees decided in favour of granting divorce, and all I can do is to accept the decision of the majority of those committees, and vote accordingly, or else retire from the Chamber. I take this oc-cassion to point out the absurdity of the whole proposition.

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CON

Robert Laird Borden (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Conservative (1867-1942)

Sir ROBERT BORDEN:

My hon. friend is aware that a joint committee of the Senate and House of Commons is endeavouring

Maclean (Halifax), McCurdy,

McLean

(Queens, P.E.I.), Meighen,

Northrup,

Pugsley,

Reid,

Roche,

Rogers,

Smith,

Stewart (Lunenburg), Thoburn,

Tremain,

Turriff,

Wallace,

Weichel,

Wilson (Wentworth).

o r

at the present time to bring about some reformation in the procedure to which he refers. I do not think the question to which my hon. friend has addressed himself, would arise on this particular Bill until the House goes into committee. I voted against the amendment because when the House goes into committee there is opportunity to discuss the evidence and consider whether or not the Bill should be reported. If the committee, with the evidence before them, come to the conclusion that the evidence is not sufficient to justify the granting of the divorce, then this House would not be justified in reporting the Bill. If, on the other hand, the majority of the committee decide that the evidence is sufficient, the Bill should be reported, and go through, in the ordinary course. That was my reason for voting in favour of referring the Bill to committee.

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CON

William Humphrey Bennett

Conservative (1867-1942)

Mr. W. H. BENNETT:

When the Bill was before the committee I voted against granting the petition for two reasons: the first was that the evidence was not before the House. I also voted against it because I had heard part of the evidence discussed and I believe the parties should be left where they were. The woman is not an angel, as hon. gentlemen will see "by reading the evidence, and the man is certainly not a very good man.

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LIB

Edward Mortimer Macdonald

Liberal

Mr. E. M. MACDONALD (Pictou):

The question before the House is purely judicial. This House is acting in a judicial capacity, in a line with the action of a court of appeal dealing with the decision of a court of first resort. In the trial of the case, the judge has the opportunity of seeing the witnesses, of observing their demeanour and forming those impressions which,,in a case of this kind, ought to be the deciding element in any matter where there is a conflict of testimony. I entertain much the same views as my hon, friend from Carle-ton (Mr. Carvell) with regard to the almost ridiculous method by which in certain provinces in Canada people have to come to Parliament in order to dissolve the marriage ties.- But, pending 'Some reformation and some change, we have to perform our judicial duties in that respect. I have the utmost confidence in the gentlemen who compose the Senate Divorce Committee. The chairman of that committee is a well known and distinguished member of the bar in my own province, a man in whose integrity and capacity I have the greatest confidence. I believe the members of the tribunal which deals with these matters in the Senate are the best judges of the evi-

dence. I think we in this House ought to accept the conclusions arrived at by that committee, unless we have evidence indicating that they were departing from the general rules and principles which guide them in divorce cases. Unless a lobby is made, or pressure brought to bear, or some efforts are put forth to influence individual members of this House in particular cases, we should, I think, be disposed, if we were performing our duty, to accept the verdict of the men who compose that Senate Divorce Committee. It would be wrong to adopt any other course, unless hon. gentlemen had given the greatest possible attention to the evidence, and had undertaken to perform those functions which a judge of the court of appeal would perform, in reviewing the evidence taken before a subordinate court. I have not done that, and I believe few hon. gentlemen in this House have read the evidence. I think the sound rule is that we should accept the decision of the men who have passed judgment upon this evidence. It is a well known principle of law that appeal tribunals will not reverse the decision of a court of first instance, and more particularly the verdict of a jury, where the demeanour of the parties, their character, their antecedents and all these questions are at the very basis of a proper determination. That principle should be followed in regard to divorce cases.

Every hon. gentleman who has taken part as counsel in divorce cases before the courts of this country knows that these are the determining factors in the decisions m such cases. In view of the fact that our Junction is a purely judicial one; that we are acting as an appellate tribunal, it is the bounden duty of this House, there being no evidence that the other court, the . Senate, erred grievously or overlooked some important consideration in coming to the conclusion which they did, to accept the judgment of the Senate.

Air. G. W. KYTE (Richmond); I do not accept the suggestion of the member for Pictou that the House of Commons is an appellate tribunal taking cognizance, as it were, of an appeal from the Committee of the Senate or the Committee of the House of Commons. In my judgment, we are the tribunal. We as the House of Commons delegated certain functions to the Privat<-Bills Committee. These functions having been discharged, it is for us to consider whether or not the Committee of the House of Commons properly discharged their functions, having regard to the evidence

[DOT]which was submitted to them for their consideration. I do not desire to enter into any examination of the evidence that is to be found in this rather bulky volume which has been placed on the desks of members oi the House. I desire to say only that I read the evidence carefully and I cannot satisfy myself that any evidence has been disclosed to justify the House of Commons in passing this Bill. The most that has been 'alleged against the respondent i3 matter of inference which has ^ been explained. No direct evidence is alleged against her of having committed the only offence for which we should be justified in passing this Bill. The suggestions which have been made by the witnesses for the petitioner have been completely set aside by the absolute denial of the respondent herself and of the other witnesses, persons whose names were associated with hers. That being the case, there is nothing for this House of Commons to do but to vote against the Bill.

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CON

John Allister Currie

Conservative (1867-1942)

Mr. J. A. CURRIE (North Simcoe):

Mr. Speaker, when this Bill was before the House on a previous occasion I was strongly of the opinion, as I always have been, that it is not proper for the House to interfere with the rulings of the committee; that this House should not discuss these divorce eases or turn itself into a divorce court.. After reading the evidence, however, I have reached a conclusion quite in line with that held by the majority of the legal gentlemen who have spoken. I wish the House to note this: there was a judicial .separation between these .parties before a judge, and this woman was granted alimony amounting, I think, to $1,000 a year an amount which was subsequently reduced to $800 a year. This woman is entitled to that alimony now, and if she has been so wicked that it is necessary to have a divorce the facts in the .matter should have been first brought before the judge who granted the alimony. The judge could have deprived her of the alimony, and the husband could then have come with clean hands to this House and to the Senate and said: "the courts have virtually thrown out this woman's case; I want the House now to give me a divorce." If the House passes this Bill it will be interfering with a decision of the courts-and I should he the last person in the House to siay that the judge did wrong. If this husband has a case against the woman let him go and get the alimony cancelled. From a reading of the evidence it seems to me that the idea

on the part of the husband is to get the House to grant him a divorce so that he may avoid the payment of $800 a year to his wife. This House, therefore, should proceed slowly and cautiously. The husband had recourse; he could have gone to the count, asked for a review of his case, and, upon the evidence that is now before us, requested that the alimony he struck off. He has not done that. He has passed by the courts; he comes to this House and wants ns to give him something which he knows the judge would not give him. For that reason I intend to vote against the second reading of the Bill in this House. This man ought to have another year during which to pay alimony to this woman-and to see whether he can find greater grounds for divorce than those which he has submitted. I repeat that he should go before the judge who granted the alimony; if the judge decides that the woman is unworthy, he will strike off the alimony and the husband can come here with clean hands and ask for a divorce.

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CON

William Barton Northrup

Conservative (1867-1942)

Mr. W. B. NORTHRUP (East Hastings):

Mr. Speaker, I quite agree with a previous speaker who called attention to the pitiable state of the law in this country, when a body such as this has shown itself to he is asked to grant or to refuse a divorce. The hon. gentleman who has just spoken (Mr. J. A. Currie) is opposed to this divorce on certain grounds which he has stated. He is going to oppose this divorce and expects others 'who have listened to the chanting strains of his voice to vote in the same way upon the grounds that he has put forward. The only possible objection to be taken to the grounds that he put forward is that there is not the slightest shadow of foundation in fact, good, bad or indifferent, for practically -anything that he said. The hon. gentleman said that the wife brought action for alimony; that the action was heard before a learned judge, and that alimony was granted. I hold in my hand the judgment of the court in the case which was tried, and I may point out that the good lady did not bring -action for alimo-ny; therefore the judge did not grant her alimony. My hon. friend wonders wiry the petitioner did not- go to the judge and get his divorce from him. Perhaps no better reason could be given than the fact that the judge in an Ontario court ha-s no mor-e authority to grant a divorce than the doorkeeper of the House of Commons has., The hon. gentleman speaking against the sec-

ond reading of this Bill, seeks to prevent a man from obtaining what, if the evidence entitles him to it, is this right, not a favour. He opposes the granting of the divorce upon grounds which are absolutely and wholly without foundation.

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CON

John Allister Currie

Conservative (1867-1942)

Mr. CURRIE:

I did not say that the woman could go to the judge and get a divorce. I said that the man could have his case reviewed by the judge, and that if the judge thought that the woman had done wrong, he could deprive her of the alimony. Then the husband could come here and ask for a divorce with clean hands. That is all I said.

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CON

William Barton Northrup

Conservative (1867-1942)

Mr. NORTHRUP:

The hon. gentleman has-re-stated his position. He says that the man should go back to the judge and get him to cut down the woman's alimony, if it could be shown that she had committed wrong. As a matter of fact, the judge found that she was guilty, and he pointed out that he had no authority under the laws of Ontario to grant a divorce. The amount which she was being paid, $100 p month, was being paid to her under an agreement with her husband, which agree-men is printed in the evidence before the House. Under that agreement she was to receive $100 a month unless she should be guilty of some act entitling him to a divorce. The learned judge found that she was guilty; he did not feel that he could deprive her of the whole of the $100 a month, so he cut the amount down to $800 a year. Inasmuch as the motion before the Chair is that we go into committee, perhaps it would be out of place for me now to occupy the time of the House in going into evidence. May I point out, however, that this case has been before our Ontario courts; a judge has made a certain finding. The evidence has gone before a committee of the Senate and the committee has found in the same way; the evidence has gone before a committee of this House, and they have made a similar finding.

When we find all these' bodies deciding that the petitioner has a case and when we find the rule of procedure laid down 88 is in Bourinot Third Edition, page 787, it should be only an exceptional case in which the House should depart from the general principles that guide them in the consideration of Private Bills and it should interfere as little as possible with the decision of a committee that has fully studied the question. Under all these circumstances, I think this House might well allow this Bill to pass into the committee stage, where, if necessary it can be dis-

cussed. I sincerely hope that hon. gentlemen, who are opposing this divorce, will appreciate the situation in the Senate when they at first decided not to print the evidence, which is most painful, most humiliating to one of the parties, evidence which any hon. member cannot discuss in this House without loss of self respect and evidence which I would be exceedingly sorry to see placed upon the pages of Hansard, I hope, when the matter comes to a vote, the Bill will be allowed to carry. When it goes into the committee stage, I hope those hon, gentlemen in the committee who, under no circumstances, would vote for a divorce, will abstain from voting. If those hon. gentlemen who have not read the evidence will abstain from voting, and if only those hon. gentlemen who have read the evidence will vote, either for or against the divorce as they think the evidence justifies, then I have no hesitation in saying that the divorce will be granted.

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CON

Hugh Boulton Morphy

Conservative (1867-1942)

Mr. MORPHY:

I cannot for a moment agree with the hon. member for East Hastings (Mr. Northrup) in his presentation of this case to the House. I quite agree that it is very difficult, unless one reads the evidence thoroughly to appreciate and understand the case. The evidence in this divorce case is the bulkiest that, in my [DOT]recollection, has ever been presented to Parliament. The feature of the case that presents itself most keenly to my mind is the remarkable difference of opinion which has existed in those bodies which have had to do with the Bill. In the Senate committee I understand the vote in favour of reporting the Bill was either five to three, or three to two. iln the Private Bills Committee of the House the vote in favour of reporting the Bill was nine to eight. When two representative committees have had so much doubt that the division has been practically equal, _ it forces my mind to the conclusion that, before this divorce is granted,-not that hon. members should abstain from reading the evidence, a6 is argued by my hon. friend from East Hastings,-but that when so much is at stake, every hon. member should consider it his bounden duty, before he votes in favour of this Bill, to read the evidence and to justify 4 p.m. his vote by the knowledge gained from that study. My hon. friend from East Hastings is making a most specious argument when he suggests, that hon. members who represent the people should abstain from the exercise of their functions

in regard to a Bill fraught with such tremendous consequences to both parties to this issue. When there is such a cleavage in two bodies, showing a division of opinion and that men who have heard and read the evidence have great doubt, would it be safe to grant a divorce? If this Bill be carried, it may be carried by the vote of an hon. member who has newer read the evidence, who has seen none of the witnesses and who knows nothing whatever about the matter. I cannot conceive it possible that, iu the Parliament of Canaaa, any such haphazard, reckless method, as is asked for here of deciding a question, should become effective. It is only apropos to discuss a little of the evidence at this stage to bear out the opinion I hold. Gordon the husband admits that he has no personal knowledge of his wife's adultery. He says that this evidence is derived only from paid private detectives employed by him to follow his wife. After having entered into an agreement with her that she should not be put under espionage, that she should live as a feme sole, free from any of his espionage, he immediately put private detectives on her track and kept them there for two years. Lord Halsbury, in speaking of the evidence of private detectives, says that the court looks with strong suspicion upon such evidence. That is the only evidence presented, as I see it, in this case.

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CON
CON

Hugh Boulton Morphy

Conservative (1867-1942)

Mr. MORPHY:

That class of evidence

covers the only main points relied upon in this case. What are the main points? In the first place, these people were married and lived together for about ten years, and had two children, the boy about fourteen years old and the girl about twelve years old now. During the whole of that period there is no contention of any immorality on the part of the wife, but there were temperamental disagreements. During these disagreements, this man, who is said to come before Parliament with clean hands has been proved, on the evidence itself, pages 93 and 94, to have behaved brutally towards his wife. I ask the hon. gentlemen supporting this Bill to point out where there is any denial in toto of this brutality. This is a man who, it is claimed, with clean hands, is asking this, the highest court in the Dominion, to grant him a decree. In equity and good com science, that cannot be done if the things given in evidence are true. This high court of Parliament is not going to extend its beneficence and judgment in favour of one

guilty of such brutality. Surely we have come to a pretty pass when men of that kind have the temerity to ask Parliament for relief, if those actions of his are true, as the evidence shows they are.

The couple finally separated under a written agreement which the hon. member for East Simcoe (Mr. Bennett) has referred to. By that agreement Mrs. Gordon was to obtain $1,200 per year. He was to keep the children, 'and she to see them daily, Sundays and holidays excepted. On one occasion he refused to give her this money, and she was compelled to bring action against him in court; and to get her rights under that agreement she had to pay $100 in costs to a Toronto lawyer. After the separation under that agreement he assaulted her twice, and she had him -summoned to the Toronto Police Court (the evidence will be found on page 100). She was fighting all the time for protection against this man, who sought to drive her from home by assaults and brutalities. Would it be surprising if a woman did not keep virtuous under such circumstances as those? But the evidence apparently shows that she did keep virtuous. With all due deference to those who take a different view, I can discover no direct evidence that this woman was guilty of any impropriety warranting the petitioner in suing for divorce.

The detectives that Mr. Gordon put upon his wife's trail for a period of over two years-he paid them, instead of paying his wife the alimony she was entitled to-found that there "were two occasions upon which the petitioner relied to prove adultery. The first occasion was on a visit she paid to a dressmaking establishment in Toronto, in the company of a respectable gentleman, an acquaintance of hers for many years, whose name I will not mention, but a man of good standing and of respectable family. The other occasion was when she went into the vestibule of this same gentleman's office. No charge had ever been made by the husband against this gentleman. He stood in the light of day absolutely as a friend and nothing else. In the whole two years, the detectives who had been on Mrs. Gordon's trail day and night could discover only two occasions on which she was seen in company with this gentleman. The evidence disclosed that on the first occasion they went to this dressmaking establishment at a reasonable hour in the evening, Mrs. Gordon carrying a parcel, and it is pointed out 'that in Toronto the ordinary dressmaking establishment, not the higher class ones, has no de-

livery van, and the people are in the habit of carrying with them the material that is to he made up. The allegation is made that this was a house of ill-fame. That is an inference, and an inference only. The Toronto police 'had watched this place, but had never come forward to say that it was such. But whether it was so or not, I contend that befoj-e this woman should suffer for going to a dressmaking establishment, which, perhaps, possessed a name other than a good one, it is incumbent upon Mr. Gordon to show that his wife knew it. She swears that she knew nothing of the kind. There is not a tittle of evidence to show that his wife knew it was a house of ill-fame, even if it actually was such, and I submit that the evidence is to the effect that it was not a house of that kind. Mrs. Gordon denies absolutely that -she knew anything against the house. There was no impropriety or even noise observed around the place by the police when Mrs. Gordon was there. It wa-s not -a disorderly house. Gordon asks the committee and this House to infer knowledge upon the part of Mrs. Gordon. I submit that it would be ridiculous to ask us to draw such an inference.

The other occasion was one evening when Mrs. Gordon and this gentleman entered the 'building on Adelaide street, near Yonge, where his office was, in order to get an umbrella. The petitioner asks the committee to infer that Mrs. Gordon went up three flights of stairs to itJhds man's office, and there committed the act complained of. But there is not a tittle of evidence furnished even by the private detectives to show that she went up three flights of stairs. She swears she never left the vestibule, but stood there while he got his umbrella, and then they both left together. These are the two chief -acts relied upon by the petitioner to show, purely 'by inference, that he deserves the relief for which he is praying.

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CON

William Barton Northrup

Conservative (1867-1942)

Mr. NORTHRUP:

How long does she swear she was there?

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CON

Hugh Boulton Morphy

Conservative (1867-1942)

Mr. MORPHY:

I do not care how long. My hon. friend can fix it for himself any way he likes. The evidence is entirely unsupported; there is no corroborative evidence of any kind; there is -simply the fact that the woman entered the vestibule.

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CON

William Humphrey Bennett

Conservative (1867-1942)

Mr. W. H. BENNETT:

I understand -that she was in the vestibule for only a very short time, about six or seven minutes.

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CON

Hugh Boulton Morphy

Conservative (1867-1942)

Mr. MORPHY:

There is a conflict in the evidence between Mrs. Gordon and this gen-

tleman on the one hand, and the detectives on the other. But I would have regard to the dictum of Lord Halsbury, who -states that the evidence of paid detectives must be taken with a great deal of suspicion, as they are paid to get a conviction. Their work is to earn their money, and as was pointed out the other night, a private detective in Toronto who went in search of liquor, as he passed through one establishment took three five dollar bills and put them -in his -pocket. He was sent to jail for it.

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CON

William Thoburn

Conservative (1867-1942)

Mr. THOBURN:

It was $20 on the last occasion.

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CON

Hugh Boulton Morphy

Conservative (1867-1942)

Mr. MORPHY:

My hon. friend seeks to make a point of that. It just shows what slender reeds some gentlemen will lean upon. Is it worth while for a public man to allow his mind to get warped and have a fixed view of a certain set of circumstances, which may have one meaning or another? Is it wise for him to leave room for -doubt? Under circumstances where there is room for doubt, I say it is unsafe to grant a divorce. There should be some clear evidence before a deliberative assembly should take away the character of a woman who is now supporting her own children. It is a serious proposition to my mind, -and one fraught with grave consequences to the rights of the people of this country. If this woman did go up three flights of stairs to this gentleman's office, which she denies, and did sit at a table in his office, there was absolutely no harm in it, if she was not guilty of an act of impropriety. I cannot conceive why some hon. gentlemen are taking -such -an interest in the defamation of thus, w-om-an. I d'o not find any basis for it in the evidence. Have hon. gentlemen such high morals that they will not grant other people the right to say that there is another kind of morals which will protect a woman against an injustice? If so let them be as free and frank -a-s possible in this case. Let them view the matter free from all narrow bias and let them approach it with a sense of fair play and justice with -regard to what the evidence proves -and -not overstate what is inferred or inferrable from the evidence itself. One of the strongest points in favour of this woman is that during two years of watching by detectives paid by Gordon two acts alone are found which offer any sug>

gcstion of guilt. If the wom-an is as bad as the man's ruffianly conduct shows him to have been, there would have been plenty of evidence brought forward, but in the

absence of such evidence are we to condemn her and her children, to put the brand of Cain upon their brows and to tarnish their reputations for life? Surely hon. gentlemen will see that in this ease, where the committee divided 8 to 9 in one House and 3 to 2 in the other, we must be careful before we sanction a measure which 'will dishonour the name of the woman who has been so brutally used by this petitioner. They even brought in the fact that on one occasion this woman took a drink of liquor. She took a drink of liquor. Could the process of .defamation go farther? Every scintilla of evidence is raked up to show that she even took a drink. That shows the combing-the fine combing-of all the acts of this woman to enable the petitioner to get iaround his obligation to pay her $1,200, or $800, a year as provided for by the agreement between them. "If Albert Edwin Gordon," speaking without reading, " discovers at any time after this deed of separation is executed and delivered, that there is anything in Mrs. Gordon's conduct which will entitle him to get a divorce, her alimony ceases." It is a splendid thing for him to get out of this $800 a year if this Parliament will help him. He will be relieved of the payment of this money and the woman will have to go out into the world to support herself and her children. What a splendid man this is, purporting to come here with clean hands to ask Parliament, the highest court in this Dominion, to give him freedom upon such evidence as he was presented and in order ithat he may save himself the payment of $800 a year. That agreement seems to have been conceived and devised to entrap this woman. It was done with the mean, astute purpose of setting a deliberate trap to get this woman into such a place that if he could find out anything about her he might be relieved of the alimony and of all conjugal rights and

would tell one story to-day and another to-morrow. The hon. gentleman (Mr. Nor-thrup) says that she fell on a hair pin. Yes, knocked down by her husband. That is the evidence; there is no question about that. For the last nine or ten months this man, although bound to pay this woman money, has not paid her a dollar. He has defaulted on his own agreement in addition to his other foibles and shortcomings. He refuses to pay her but he has plenty of money to pay somebody to procure this evidence. She is not in a position to take steps to secure legal redress. She has no means. She is absolutely helpless unless she gets the money that he owes her but will not pay. I submit that under these circumstances, and having regard to the doubt as to the evidence and the fact that the committee in one House divided 3 to 2 andi in the other 8 to 9, to the fact that many hon. gentlemen have not read the evidence and to the further fact that my hon. friend from Hastings (Mr. Nor.thrup) has condemned the practice of asking the Parliament of this country to grant divorces, the House should hesitate before voting in favour of this Bill. The hon. member for Hastings has made the argument that this 'House is not competent to deal with a matter like this and yet he asks this House to give judgment when many hon. members have not read the evidence. I believe the day. has not yet come in Canada when a matter of this gravity will be decided by Parliament without the members having a personal knowledge of the evidence. I am strongly opposed to and will vote against this Bill in all its stages.

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LIB

George Perry Graham

Liberal

Mr. GRAHAM:

When this Bill was up several evenings ago I voted to have it referred back to the Private Bills Committee 'because members had not read the evidence. Some of them, I regret to say have not done so yet. I have read' nearly every bit of evidence and I am more convinced than ever that this petitioner is not entitled to succeed on that evidence.

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September 17, 1917