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in Canada. We should consider the important fact that the comparison is not sound, because in many of the States, divorces may be granted on very trivial grounds, which are not contemplated or advocated in this country. Even with this fact to aid us, it is a singular circumstance that in some States where the causes are both slight and numerous, the increase of divorces is not marked, and that in New York State, where adultery is the only cause, the increase is greater and steadily growing. The causes vary in the States from adultery to “causes deemed sufficient by the Court’ as in Washington State, and we find the same want of uniformity in practice as we do in Canada. That is accounted for to some extent by the fact that each State deals independently with the subject.
But I think there is a broader ground than mere statistics on which the question can be put. We have not as yet the dense commercial centres we find south of our boundary. There is not that restless and changing spirit which actuates so many American citizens. The substitution of business rush for home ideals, the desire to make money quickly, the mode of living in hotels and rooms, the growing tendency towards travel and variety, impatience of restraint, and perhaps more than we are aware of, the absolute individual independence of the man and woman, and the freedom of both married and unmarried life, all these must be important factors in considering the present state of divorce laws and their effect in the United States. Except in the case of very large cities, and looking at the country as a whole, there is no ground for saying that the general morality of the American citizen, farmer, artisan or business man is lower than it is in any other country. We have only to look at such places as Italy or Spain where no divorces are permitted, and where morality is at any rate no higher than it is in America, to realize that divorces are not the cause of the low moral tone of any country. o
The want of uniformity in Canadian divorce law is one of the strangest features in an otherwise reasonable Constitution. In British Columbia there is a Divorce Court based somewhat on the principles of the English law, under the Act of 1857. Courts for granting absolute divorces were established in New Brunswick, Nova Scotia and Prince Edward Island before Confederation, and these were continued by sec. 129 of the B. N. A. Act, 1867. Ontario, Quebec, and the remaining Provinces of the Dominion are without Courts of Divorce, and the application for relief must be made to Parliament, both bodies having to pronounce the dissolution of the marriage obligation, which is done by a hearing of witnesses before a Senate Committee, and if a proper case is made out, this is followed by a private Act of the House of Commons. It is certainly one of the most remarkable anomalies in the history of Constitutions. The exclusive right to legislate on marriage and divorce is given by the British North America Act, 1867, to the Parliament of Canada, and yet notwithstanding the B. N. A. Act, there is no uniformity of the law, and the right is, as I have stated, exercised under a saving clause by several of the Provinces to the exclusion of Dominion authority. Quebec, then Lower Canada, a Province opposed to divorce laws, was the cause of this anomalous condition of things, although I have no doubt Upper Canada was as a whole disinclined at that time to deal with the question of establishing Courts of Divorce in this country. Owing to the state of the law now in force here, a grave injustice is experienced. There is in respect of divorce, one law for the rich and another for the poor. This may be said to be inaccurate. It is so, theoretically, but in practice, it is undoubtedly true. In ordinary litigation, care has been taken to bring the place of trial of both civil and criminal cases to the doors of the litigants. Judges travel from one end of each Province to the other, twice a year and more often in some localities, in order that the poor man may have justice on the same terms as his richer neighbour enjoys. A ten dollar Division Court case takes a County Judge thirty miles from the County town in order that a trumpery dispute may be settled according to law. Actions within the jurisdiction of the County Court, and larger issues requiring the aid of High Court Judges, are disposed of at the County towns in almost every County in the Dominion. Magistrates are provided in every school section to dispose of troubles of a petty character. And yet with all this expense and care in matters largely of a momentary and temporary nature, the unfortunate woman who is grossly wronged, and is being slowly yet surely battered to death, or the equally unfortunate man who is bound to an adulterous wife, has to travel perhaps thousands of miles to get relief, and can get it only by a slow, tedious, and expensive process. This state of affairs is a blot on the administration of justice in a civilized country. If the party is poor, justice cannot be had. Only the rich can avail themselves of our present system of granting divorces. And let me remark in this connection that the remedy is practically denied by force of circumstances to those upon whom the burden lies most heavily, and in respect of whom the most dangerous and immoral results are most
likely to follow. Money, under the circumstances which give
rise to divorce, affords relief in the way of travel, change of residence and other means of escape, but poverty drives both the man and woman to desperate deeds, and to a still more desperate condition of immorality and degradation.
Having thus briefly touched on some of the conditions with which we have to deal in this discussion, I wish to call your attention for a few moments to the subject of divorce in its legal aspect, and the remedies which in my opinion ought to be provided to meet present conditions. It may be useful to see what has been done in the past history of England towards a solution of the problem which confronts and has for centuries confronted thinking men and women. I do not hope to say anything original in this connection, but if I can direct your minds to some new line of thought, or create a new phase of reflection, and analysis, I shall be fully satisfied that my work has not been in vain.
First, let me take up the record. It has always been admitted that the wrongs suffered by the innocent partner in matrimony are entitled to some remedy. The Ecclesiastical Courts had the earliest jurisdiction. In the very early days in England, these Courts took upon themselves, or acquired the power to grant a divorce, a memsa et thoro. Although marriage was looked upon as indissoluble, there grew up various schemes for declaring the marriage a nullity ab initio on the ground that an impediment of relationship existed. This is described by a well-known writer as a “relationship which might consist in some remote or fanciful connection between the parties or their god-parents.” Later on, and particularly after the Reformation, resort was had to Parliament for private acts authorizing divorce and permitting re-marriage owing to the fact that there were no Courts having jurisdiction to decree a divorce a vinculo. This remedy was adopted by no less a person than Royalty, in the case of Henry VIII. The first Private Divorce Act related to the Marquess of Northampton, whose re-marriage after a decree of separation by the Ecclesiastical Court was declared to be valid by a Commission under the Archbishop of Canterbury. This was further confirmed by Statute, and indeed it was accepted law that a Statute was necessary. Acts of Parliament became more frequent in the 17th and 18th centuries until 1798, when Lord Chancellor Loughborough succeeded in getting certain remedial orders passed by the House of Lords. Applications for absolute divorce had under this new practice to be founded on Ecclesiastical decrees and verdicts at law in criminal conversation actions, or good grounds shewn why such verdicts could not be obtained. The ground was adultery. A Royal Commission sat and reported. It was felt that a gross injustice was being done to the great body of the people who could not afford the costs of these expensive proceedings. As a result, the Act of 1857, known as the Matrimonial Causes Act, was passed. During the discussion on the Bill, the Attorney-General stated that the object was to create “a new tribunal which may hereafter have to administer other laws made under happier auspices.” The new Court was composed of several Judges, but subsequently power was given to a single Judge. The sittings were to be held in London, Middlesex or elsewhere, but the latter provision was never carried into effect. The Act was amended at various times, and now the position of matters is that a husband may obtain a complete divorce on the ground that his wife has been guilty of adultery since marriage, but a woman can only get relief by shewing that the husband has been guilty of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a memsa et thoro, or adultery coupled with desertion, without reasonable excuse, for two years or upwards. There are four additional crimes named in the Act, each being of a grosser type of the same class, any one of which entitles the wife to an absolute divorce. But although the English Parliament has provided a certain degree of relief, it has been found that only people of means can avail themselves of the remedy, and the poor are still in the same hopeless condition as they were before the Act of 1857 was passed. As a result of public agitation, a Royal Commission was appointed in November, 1909, composed of very eminent men, who have made a thorough enquiry into the whole matter, and who have just lately presented their report, a copy of which I have read with the greatest care. The remedies and provisions suggested are of a very drastic and perhaps farreaching character. I do not think all of them would be favorably received in this country, so I shall not deal with them in detail. Apart from various grounds on which a separation is recommended, the Commissioners find that in their opinion the law should be amended so as to permit of divorces being obtained on the following grounds: 1, Adultery; 2, Desertion for three years and upwards; 3, Cruelty; 4, Incurable insanity after five years confinement; 5 Habitual drunkenness found incurable after three years from first order of separation; 6, Imprisonment under commuted death sentence. A number of grounds of a less serious character are named as being sufficient to support a judicial separation. A minority report was made, which I understand has received approval from a very high quarter in England. The minority report is that of the Archbishop of York, Sir William P. Anson, and Sir Lewis T. Dibdin, which, differing on several grounds from the majority, agrees with some of the radical changes recommended by a large body of the Commissioners. Looking at the character of these various grounds suggested for divorce, I am unable to see that any one is much less serious than the others. Adultery on the part of a married woman has always been treated as a sin of the gravest character, but the conditions of social life have caused it to be considered less seriously on the part of the man. I am not concerned with the illogical result of such a situation. That it is so is sufficient for my contention. Continued desertion is as much a breach of the marriage obligation as adultery. Persistent cruelty may and often is the cause of greater suffering to the wife than anything else can be, and nothing can so degrade the relationship of man and wife as habitual drunkenness. Incurable insanity renders the afflicted incap. able of performing the obligations of married life, and along with drunkenness generally visits the sins of the parents on the children of succeeding generations. Imprisonment for life under a commuted sentence is, in fact, a divorce to all intents and purposes from the marriage point of view. Wherein can we make a logical difference in the result? The man guilty of any of these crimes or subject to any of these conditions is not the man who entered into the state of matrimony. He is a different individual in relation to his wife, and no longer remains the same person as regards the original status which he and the woman created. A trustee is removed if he becomes insane, and the tie of guardianship is severed if the guardian is guilty of cruelty to his ward. A