Province of Canada, Legislative Council, Scrapbook Debates, 8th Parl, 2nd Sess, (2 June 1864)
By: Province of Canada (Parliament)
Citation: Province of Canada, Parliament, Scrapbook Debates, 8th Parl, 2nd Sess, 1864 at 171, 172-173.
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THURSDAY, June 2nd, 1864
Benning Divorce Bill
James Currie [Niagara, elected 1862] moved
That the Counsel for the petitioner be authorized to examine at the Bar of this House any witnesses to prove that the necessary preliminary steps to the second reading of the bill for the relief of James Benning had been taken.
The motion having been carried, the Counsel for the petitioner proceeded to examine Frederick B. Gerald, of Montreal, as to the service upon Janet Mary Leslie, the wife of the petitioner, of a copy of the bill, and other papers, all of which he reported as having duly served by delivering the same to Janet Mary Leslie, herself, at her residence, on the 25th May last.
The witness was then permitted to withdraw.
James Currie [Niagara, elected 1862] said that, in seconding the bill for the divorce now sought, he understood the parties had been married for ten years, at the end of which time Mr. Benning found that his wife had been unfaithful to her marriage vow. That a deed of separation was then agreed to between the husband and wife, and that the only object of the bill was to confirm the said agreement. He believed there was no disposition on the part of the unfortunate woman to oppose the bill.
Walter McCrea [Western, elected 1862] thought the rules of the House required that the petitioner himself should be examined as to collusion between him ad his wife before the second reading of the bill.
Some conversation ensued on this point, but the Speaker decided that it was in order to read the bill the second time first, and that their witnesses could be heard under oath in support of the allegations.
Alexander Campbell [Cataraqui, elected 1858, Commissioner of Crown Lands] could not agree with the hon. Speaker, and held that if the petitioner was to be examined at all, it should be done before the second reading, and reasoned upon the Rates in support of his opinion. This was necessary, he said, to enable the House to decide whether they would be justified in proceeding with such bills, and it was for this very purpose that this examination was provided for.
Walter McCrea [Western, elected 1862] held the same opinion.
George Boulton [Canada West, appointed 1847] said he had been present on two previous occasions when divorce bills were sought from the House, and the course pointed out by the hon. Commissioner of Crown Lands [Alexander Campbell] was the correct one.
The Speaker said that the course pursued in the two cases named was not the same in each case, and he thought it was optional for the House to take either course.
James Currie [Niagara, elected 1862] moved that the petitioner be excused from attending at the bar for examination.
Walter McCrea [Western, elected 1862] thought this would be a most dangerous evasion of an important rule, and Hon. Mr. Dickson agreed with that hon. member in his view of the matter.
James Currie [Niagara, elected 1862] then withdrew his motion.
The Speaker thereupon informed the House that the petitioner, Mr. James Benning, was in attendance below the bar waiting to be examined.
The Clerk then administered the oath to the petitioner, who, on being questioned as to whether there was or had been any collusion or connivance between Janet Mary Leslie and himself for the purpose of dissolving their marriage, declared there was not, and that there never had been such collusion or connivance.
James Currie [Niagara, elected 1862] then moved the second reading of the bill.
Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General] said as a matter of duty he would be obliged to oppose the measure. Divorce was both anti-Christian and anti-social. In support of the former we had the authority of the Gospel, and in support of the latter had the experience of society in the sad results which had always followed. The Mosaic dispensation allowed of divorce, but our Saviour restored marriage to its original sacredness.
The hon. member went on to quote from the Mosaic account of the creation of the woman from man’s own side (reading the narrative in Genesis.) In course of time the passions acting on human weakness brought about a desire of change, and probably the people prevailed on their law-giver to give them the relief which was afterwards condemned by our Lord. The Hon. Colonel [Étienne Pascal Taché] proceeded to read what Christ said in condemnation of putting away wives for any cause save fornication—
Some Hon. Members—Hear, hear.
Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General]—giving the accounts as reported by the several Evangelists. He admitted that when a woman had committed adultery her husband might put her away, though he that married the woman that was put away, committed adultery. The Apostles and the Fathers condemned the putting away of wives.
The hon. member next proceeded to show that it was anti-social and immoral to bring about such separations. It was destructive of the family-institution; and, if the family-institution were impaired, the social edifice would necessarily crumble and fall. The children would be separated like the parents, and much sorrow and suffering would be sure to follow. Such children never could be educated. They might be instructed, but not taught their duties to themselves and others as they would have been in the family circle. The hon. Colonel referred to the evil effects of divorce in the United States, and to the large business now being done in the Divorce Courts in Great Britain. He had always opposed such bills, and he would be wanting in his duty if he did not protest in this case.
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David Christie [Erie, elected 1858] said he agreed with the hon. Premier [Étienne Pascal Taché], that the utmost caution should be observed before dissolving the marriage-bond. With him, he regarded it as a most sacred relation, and one which ought not to be broken, excepting under the circumstances indicated by the highest authority. But the hon. Premier [Étienne Pascal Taché] should recollect that the opinions he had adduced were not always those acted upon by the Church of Rome. In the case of Henry the Eighth, the most libidinous and bloody-minded monarch who had ever disgraced the British Throne, the Pope had granted a divorce.
Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General]—No; it was because the Pope would not grant him a divorce that be separated from the Church of Rome.
David Christie [Erie, elected 1858]—Then, in the case of Napoleon, the Pope had also granted a divorce, and this not because of alleged unfaithfulness on the part of Josephine, but because of the inordinate ambition of the Emperor, and in this way the head of the Church of Rome had countenanced and aided a transaction which could not be defended. The real distinction between Protestants and Roman Catholics on this subject arose from the fact that the latter regarded marriage as a sacrament, while the former treated it simply as a civil contract. He did not propose to argue this subject at any length, for it had been gone over again and again, and nothing new could be advanced upon it. Besides, he had no doubt that hon. members had all made up their minds and could not be influenced by anything he might say. He wished, however, to note one or two points.
The hon. Premier [Étienne Pascal Taché] had said that divorce was anti-Christian and contrary to the law of Christ, but he (Mr. Christie) must say he had failed to discover any support for such opinions in the passages he (Mr. Taché) had quoted. He had referred to the 19th chapter of the Gospel according to St. Matthew, where our Saviour spoke as follows:
(The hon. member here read the conversation of Christ with the Jews, who inquired for what cause a man might put away his wife, in which the Lord, after saying that “in the beginning it was not so,” and that it was because of the hardness of the hearts “of the people of his day” that Moses had allowed them to put away their wives, but—quoting the Saviour’s own authoritative words with emphasis—He said to them, “but I say unto you that whosoever putteth away his wife, save for the cause of fornication, causeth her to commit adultery,” &c., &c.)
There were two positions—first that divorce was proper and lawful in cases of infidelity, and second that the party guilty of the wrong could not marry again. This, beyond all doubt, was the clear teaching of the passage. Our Saviour condemned divorce for any and all other causes than adultery, but admitted that for adultery it might be resorted to. Neither Mark nor Luke had stated the case with equal distinctness; but surely the hon. Premier [Étienne Pascal Taché] would not say that the Scriptures were not consistent throughout in their teaching. If the permission was clearly given in one place and not denied elsewhere, the silence of other parts could not invalidate the specific averment.
With regard to the reasoning of the Apostle in 7th Romans and in 1st Corinthians, 7th chapter, the reference there is to a practice then prevalent among the Jews converted to Christianity, of divorcing their heathen wives, which he positively condemned. This had nothing whatever to do with the real question at issue.
With regard to the immorality of the practice, he (Mr. Christie) thought the charge was sufficiently disposed of by the express words of Christ, which had been quoted. He could not sustain anything immoral in its nature or tendency, but he clearly and explicitly permitted of divorce for cause of fornication.
He (Mr. Christie) admitted there were great evils connected with permitting divorce for other causes, and thought the marriage bond was much too lightly esteemed. The consequences were truly deplorable, and he would regret ever to see the day in Canada when divorces could be had with as much facility as in some other countries. He hoped that the rules which rendered divorce so difficult in Canada would be adhered to rigorously. In 23 years there had been only four cases, and he trusted they would not hereafter multiply. But when a case in which the guilt of the party was so clear as this was presented itself, and the sufferer sought relief, he thought it would be an extreme hardship to deny it. Nothing in his mind could be more revolting to the feelings of a sensitive and honorable man than to be allied beyond the power of emancipation to a woman who had treated him so infamously.
The hon. Premier [Étienne Pascal Taché] had not painted too darkly the consequences of such wrongs, but the consequences were not due to the divorce, they were antecedent, they flowed from the crime. As to the results in respect of the children, he believed the divorce of one of their parents would be the most solemn and salutary lesson they could receive at the hands of Parliament in regard to the evils which had brought it about, whereas their living with a parent who was vicious and dishonored must, of necessity, be highly injurious to their moral sense. He hoped the House would allow the bill to be proceeded with, for the evidence was such as to show that the petitioner was entitled to relief.
Alexander Campbell [Cataraqui, elected 1858, Commissioner of Crown Lands], in allusion to the expression of Hon. Mr. Christie, said that Henry the 8th was a most libidinous and bloody King, &c., and enquired if he had read “Froude” on the subject.
Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General]—The great schism in England was brought about just because the Pope refused to divorce Henry the 8th from Anna Boleyn. Then, in the case of Napoleon, the Pope only annulled a marriage which had not been celebrated according to the rules or with the authority of the church.
David Christie [Erie, elected 1858]—Then if not really married there needed no divorce.
Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General]—It was well known that during the French Revolution there were persons who exercised ecclesiastical functions who had never received authority from the church, and it was by one of those that Napoleon was married to Josephine.
James Currie [Niagara, elected 1862]—Well, neither have the parties in this case been married by a priest having the authority of the Church of Rome, and so upon the same principle it is right they should be divorced.
Some Hon. Members—Hear, hear, and laughter.
Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General], returning to the scripture argument, endeavored to maintain that Christ in what he had said was merely quoting the Hebrew practice, and wished to make it appear from the prohibition to marry the woman put away that it was wrong to have put her away. Marrying her would be adultery, because she was still another man’s wife.
David Christie [Erie, elected 1858] maintained that the Pope had allowed the divorce of Henry the 8th first wife.
A.J. Fergusson Blair [Brock, elected 1860], who the reporter regrets could not be distinctly made out, was understood to say that there were several other cases in which the Pope had allowed of divorce.
After a few words more from David Christie [Erie, elected 1858], in which he again presented the distinct declaration of our Lord as to the putting away of the adulterous wife—
Marc-Pascal Laterrière [Laurentides, elected 1864] rose and said the law of divorce was immoral and subversive of the fundamental basis of domestic society, and of all other society. What would become of the children educated in so immoral a school? It was well known how many scandalous prosecutions there were in England and especially in the United States, where divorce was obtained with so much facility. They made a comedy of divorce, which, however, often ended in criminal tragedies.
The hon. member went on to refer to some individual cases, and reasoned that divorce was the active cause of much immorality. That the Church of Rome had always opposed it; that it was a mere human invention; that it dated from the Lutheran era: that it was only known in France during its anarchial revolution; that the divorce of Josephine by Napoleon was severely punished, for that all his disasters were subsequent to that event; that the origin of marriage was coeval with the race; that St. Paul and the Christian Fathers were adverse to divorce; that the Council of Trent had declared against it; and that, for all these reasons, he must vote against the bill.
James Currie [Niagara, elected 1862] said that, notwithstanding all he had heard, he would veto for the bill. He had anticipated that a considerable number of members would oppose it; but the hon. Premier [Étienne Pascal Taché] had conceded that people married by clergymen not having the authority of the Church of Rome might be divorced; therefore, there could be no difficulty in allowing of it in this case, since the parties had been married by a minister who had no such sanction. It had been said that the principle of divorce was anti-Christian and anti-social. Well, he thought, for one, that Christian England would compare with any other Christian notion in respect of religion or morality, and that its people were as chaste and pure as those of countries where divorce was not allowed.
(There was some confusion at this time, an unusually large number of strangers being present, and some remarks of the hon. member could not be heard.)
Some Hon. Members—Cries of “Question,” “question”; Call in the members.”
The Speaker having directed the members to be called in, the question was put on the second reading, which was carried—34 to 18, viz:—
De La Terrière
Duchesnay (La Salle)
Letellier de Saint Just
James Currie [Niagara, elected 1862] then moved
That the petitioners be heard by counsel at the bar to prove the facts alleged in the bill, and to produce witnesses to that effect.
Mr. F. B. Gerald witness before examined, then, upon being desired, appeared at the bar, and in reply to a demand from the Speaker, produced an extract from the Register of the St. Andrew’s Church, Montreal in proof of the marriage of James Benning and Janet Mary Leslie, by the Revd. Alex. Mathieson, at Montreal, on 22nd September, 1853, and identified the individuals as those who were parties to this cause. He further stated that the extract in question was certified by Messrs. Monk, Coffin and Papineau, the Prothonotaries of Montreal, and was in the handwriting of Mr. Monk, one of them. These officials were the legal custodians of said Register, and the extract would be a sufficient proof of the said marriage in any of the Courts of Law in Lower Canada. Mr. Benning, the witness went on to say, took proceedings for the recovery of damages from Robert Leckie and Joseph C. Malhiot, in the Superior Court, for having had criminal conversation with Janet Mary Leslie, his wife. Judgements were rendered therein, of which judgements he (the witness) produced authenticated copies. He also identified the said Robert Leckie and Joseph C Malhiot, as the parties named in the bill. The petitioner and his wife, as witness knew, had been living apart since October last past.
On motion of James Currie [Niagara, elected 1862], further proceedings in this cause were postponed until to-morrow.
Some bills received from the Assembly were read a first time, and the House adjourned.
 Here, on p. 171, an editorial note says “TO BE CONTINUED.” It is then continued later on, on p. 172.