Obrázky stránek
PDF
ePub

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 mensa 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

grossly immoral life is ground for annulling the tie which binds the clergyman to his church. Desertion compels the husband to pay alimony to an innocent wife, and sufficient cruelty warrants her in living wholly apart from the man to whom the law has bound her by every legal means in its power. Why should the law grant only a partial remedy in cases of this kind? Why not grant complete relief when grave wrongs are admitted to exist, and great danger likely to result from the continuance of a condition condemned by the law and only feebly remedied? Social and sentimental reasons do not affect the question. Divorce is not the cause of the looseness of married life. Rather it is the logical outcome of wicked and sinful men and women, whose immoral lives are the result of a licentious and unholy system of living and a condition springing from the corrupt and degenerate tendencies of humanity. Society has much to answer for in this connection, especially when we find, as we do, that apparently a large and influential class, instead of dealing out justice to the sinner, winks at his lapses, and welcomes him. as a family guest. The remedy does not lie in preventing divorce. The true remedy consists in an exaltation of life.

For my own part, I am induced for the reasons therein given to follow the report of the majority in its main features, and I cannot see that the enlargement of the causes for divorces along the lines indicated would produce the evils which some people think would result from the changes proposed, if carried into effect. The state of the divorce laws in the United States is not relevant. The conditions are entirely different, and the easy methods of getting a divorce in many of the States are not contemplated here. We look only for sound, conservative and substantial grounds on which a divorce may be granted, and not for the creation of a Court too readily available to the man or woman who is tired of married life, or whose respective tempers may not harmonize, nor should we advocate remedies so difficult and costly as to make the Court a millionaire's tribunal.

This brings me to the question of the constitution of the Court itself. It is manifest that on the trial of issues of pure fact, Judges who are experienced in weighing evidence are best qualified to deal with matrimonial causes. Many of the members of the Divorce Committee of the Canadian Senate are laymen. They are engaged in business or callings which are quite foreign to the conception and consideration of the pro

bative force of evidence. A few hours of each session, and an experience only extending over the time they have been members of the Senate, represent the training available to them, and it cannot be expected that they could analyze, weigh and estimate the value of the statements made by witnesses as a Judge can do in the light of varied and daily experience, or with that knowledge and penetration, which are the product of half a lifetime at the Bar, and later, on the Bench. It is true there are lawyers on the Committee, but there is not, and cannot be the same searching enquiry, the same judicial quality which we expect and get from the trained and experienced jurist.

I have, therefore, come to the conclusion that we should have a purely judicial tribunal for divorce cases, composed of at least three Judges, in order to lessen the danger of unconscions reasoning of a dogmatic tendency. They should be of the Province in which the parties to the marriage reside, and on any legal question there should be the right of appeal to the Supreme Court of Canada. Each Province should be divided into districts, and the Court should sit as often as expedient for the hearing of causes. They should also have power to deal with separation on well-defined grounds, as set out in the Report to which I have referred. If this method were adopted, the Court would be available to the laborer as well as to the millionaire, and there would be practically a certainty of justice being done without any danger of the heavens falling. The procedure should be of the simplest and least expensive character, and power ought to be given. to the Court to assess in favour of an innocent wife reasonable damages against her husband. The rules of evidence should be stringently applied, and the strictest proof of the merits should be demanded when the case is being tried, whilst the cost and means of getting to trial should be moderate and within the reach of worthy suppliants seeking only justice.

What other suggestion may be made? There is one of importance, and I think of great value, although I hesitate. to advance it at present, because it might tend to weaken my main contentions in the minds of some of those who on the whole may agree with me. It is this: In every case where the husband is found guilty of the offences, or any of them, which warrant an absolute decree against him, and a dissolution of the marriage, a punishment ought to be imposed. Let us compare other conditions of the law with the misdeeds

which ought to warrant a divorce. A violation of a snow by-law carried with it a fine. A trifling matter from a moral standpoint may be ground for imprisonment. The stealing of a loaf of bread for a starving family sends a man to gaol. Yielding to temptation and taking some trifling article from a bargain counter is penalized by perhaps a month in a cell. But the gravest of crimes against the Divine laws, and a vicious defiance of the well-recognized principles of morality are allowed to go unpunished and treated as a matter only of scandal and idle gossip. There should be some deterrent, some dread of the future consequences ever present to the mind of a man who has taken a young girl from her home under a promise to protect and provide for her as a wife, and who, in violation of this, has used her as an unresisting object on which he could vent his anger and exercise his cruelty. If proved, why should not the tribunal have the right to punish? A witness who clearly commits perjury in the box is dealt with at once, and a Judge orders that he be forthwith arrested and prosecuted for the crime. Half a dozen serious crimes may be proved on divorce proceedings, but the man goes free and a judgment is given, a Committee's report is made or a private Act passed, granting him that result which but for his own misconduct he would perhaps have cheerfully applied for on his own account.

I do not think there is anything more I could say to advantage. I believe as much as any one does in the sanctity which ought to exist in connection with the marriage relation, and the care we ought to exercise in dealing with the question I have discussed, but in a matter of this kind, if that sanctity has been desecrated by either husband or wife, or by both, it no longer exists, and the marriage relationship is a hollow mockery and a thing defiled. And when it is found by proper judicial enquiry that one of two lives is blasted and that death itself would be a relief, it surely cannot be argued that a tribunal which pronounces bare justice is acting contrary to the laws of God or the higher principles of modern civilization.

« PředchozíPokračovat »