Courted and Abandoned: Seduction in Canadian Law 9781442620810

Citation preview

COURTED AND ABANDONED Seduction in Canadian Law

A pregnancy outside of marriage was a traumatic event in frontier Canada, one that had profound legal implications, not only for the mother, but also for the woman’s family, the alleged father, and for the entire community. Patrick Brode examines the history of the ‘heartbalm’ torts in nineteenth-century Canada – breaches of duty leading to liability for damages for seduction, breach of promise of marriage, and criminal conversation – that were part of the inherited English law and a major feature of early Canadian law. Encompassing all ten Canadian provinces, Brode’s study examines the court cases and the communities in which they arose. He illustrates the progression of these heartbalm actions as women gained more and more autonomy in the late nineteenth century, until questions arose as to the applicability of these feudal remedies in a modern society. He argues that the heartbalm cases are a testament to how early Canadians tried to control sexuality and courtship, even consensual activity among adults. In mixing legal and social issues, and showing how they interact, Courted and Abandoned makes a significant contribution to legal history, women’s studies, and cultural history. (Osgoode Society for Canadian Legal History) PATRICK BRODE is an independent scholar and lawyer in Windsor, Ontario.

PATRONS OF THE SOCIETY

Aird & Berlis Blake, Cassels & Graydon LLP Davies Ward Phillips & Vineberg LLP McCarthy Tétrault LLP Osler, Hoskin & Harcourt LLP Torkin Manes Cohen & Arbus LLP Torys WeirFoulds

The Osgoode Society is supported by a grant from The Law Foundation of Ontario

The Society also thanks The Law Society of Upper Canada for its continuing support.

COURTED AND ABANDONED Seduction in Canadian Law

PATRICK BRODE

Published for The Osgoode Society for Canadian Legal History by University of Toronto Press Toronto Buffalo London

© Osgoode Society for Canadian Legal History 2002 Printed in Canada ISBN 0-8020-3750-X

Printed on acid-free paper

National Library of Canada Cataloguing in Publication Brode, Patrick, 1950– Courted and abandoned : seduction in Canadian law / Patrick Brode. Includes bibliographical references and index. ISBN 0-8020-3750-X 1. Seduction – Canada – History – 19th century. 2. Sex and law – Canada – History – 19th century. 3. Sexual ethics – Canada – History – 19th century. I. Osgoode Society for Canadian Legal History II. Title. KE8930.S43B76 2002

345.71’0253

C2002-902252-5

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through its Book Publishing Industry Development Program (BPIDP).

Contents

foreword vii preface ix

1 Fiction of the Law 3 2 The Market of Shame 12 3 Women of Quality and Lewd Mothers 29 4 Feudalism Triumphant 43 5 Rewarding the Insinuating Arts 57 6 Virtue by Statute 79 7 An Action of Their Own 100 8 Wife Seduction: Punishing the ‘Gay Lothario’ 121 9 To Protect the Poor Unfortunate Child 133 10 MacMillan v. Brownlee 149 11 Death of a Tort 174 12 The Complex Dance of Seduction 194

epilogue 206 appendix a 211 appendix b 212 notes 213 index 245

This page intentionally left blank

Foreword THE OSGOODE SOCIETY F OR CANADIAN LEGAL HISTORY

Patrick Brode practises law in Windsor, Ontario, and is a legal counsel for the City of Windsor. Somehow he finds time during his busy career to research and write outstanding works of history which are noted for their meticulous research and sound scholarship. His three previous Osgoode Society books have been among our most popular publications and all have found a wide readership beyond The Osgoode Society membership. Certainly this will be the case for Courted and Abandoned. A pregnancy outside of marriage was a traumatic event in frontier Canada, one that had profound legal implications, not only for the mother, but also for the woman’s family, the alleged father, and for the entire community. Patrick Brode examines the history of the ‘heartbalm’ torts in nineteenth- and early twentieth-century Canada: breaches of duty leading to liability for damages for seduction, breach of promise of marriage, and criminal conversation. In probing analysis and engaging style, he demonstrates that these laws, that were part of the inherited English system, were a major feature of early Canadian jurisprudence. Brode argues that the heartbalm cases are a testament to how early Canadians tried to control sexuality and courtship, including even consensual activity among adults. By intermingling legal and social issues, and showing the often intriguing ways in which they interacted, Courted and Abandoned makes a significant contribution to legal history, women’s studies, and cultural history.

viii

foreword

The purpose of The Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, a former attorney general for Ontario, now Chief Justice of Ontario, and officials of the Law Society of Upper Canada. Its efforts to stimulate the study of legal history in Canada include a research support program, a graduate student research assistance program, and work in the fields of oral history and legal archives. The Society publishes volumes of interest to the Society’s members that contribute to legal-historical scholarship in Canada, including studies of the courts, the judiciary and the legal profession, biographies, collections of documents, studies in criminology and penology, accounts of significant trials, and work in the social and economic history of the law. Current directors of The Osgoode Society for Canadian Legal History are Robert Armstrong, Jane Banfield, Kenneth Binks, Patrick Brode, Brian Bucknall, Archie Campbell, Kirby Crown, J. Douglas Ewart, Martin Friedland, Elizabeth Goldberg, John Honsberger, Horace Krever, Vern Krishna, Virginia MacLean, Wendy Matheson, Roy McMurtry, Brendan O’Brien, Peter Oliver, Paul Reinhardt, Joel Richler, James Spence, Richard Tinsley, and David Young. The annual report and information about membership may be obtained by writing: The Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, Ontario. M5H 2N6. Telephone: 416-947-3321. E-mail: [email protected]. R. Roy McMurtry President Peter N. Oliver Editor-in-Chief

Preface

It seems highly presumptuous to write a book about the life and death of seduction law in Canada. The topic is an extensive one, for the tort of seduction and its related heartbalm actions were a factor in the law from Canada’s earliest beginnings until recently. Seduction was far more than the winning of a woman’s heart by deception; it was a serious legal matter that occupied the attention of the courts, captured public attention, and was tried in all parts of the country for almost two centuries. By the late nineteenth century, the criminal action of seduction would exercise politicians, preachers, and aggrieved parents and reflect the growing public control of courtship. While it is a daunting prospect to cover these trials adequately, the seduction cases and their related actions of breach of promise of marriage and criminal conversation are an enduring element in our national story. As women achieved greater autonomy in the late nineteenth century, suing for a breach of promise of marriage became the legal tool of choice, for it enabled women to directly assert their rights against deceivers. But there was a darker side to the heartbalm torts. The growing use of the criminal conversation action in the late 1800s was directed, in theory, against those who interfered in domestic relations by seducing another man’s wife. It proclaimed a man’s absolute right to his wife’s body, and any man who dared have sex with a married woman could face a ruinous lawsuit from her husband. But criminal conversation was as well an assertion that a wife had few independent rights and that she was

x

preface

bound to submit to her husband, whatever the circumstances. For good or for ill, the seduction and heartbalm torts were a part of our British heritage just as surely as the monarchy, and for generations they mirrored how the community dealt with illegitimacy and with sex outside of marriage. In the drama of frontier history, some components, notably torts such as seduction, seem to be overlooked. But seduction cases were an important factor in the formative years, and the stories they reveal offer a rare glimpse into the daily lives of early Canadians. These cases cannot be dismissed as the occasional moral lapses of the past or condemned as imposing patriarchal systems, but should be seen as indicators of how Canadians, over time, have accepted or denied sexuality. They are a reminder that frontier settlers as well as middle-class Victorians viewed the world very differently from the way that we do today. In the study of these seduction cases I have tried to be faithful to our ancestors’ understanding of the world and not impose contemporary standards on them. I hope that through an examination of the testimony preserved in judges’ books and newspaper accounts I have managed to recapture some sense of what courtship felt like in earlier days and to acquire some appreciation of the desperation that a single, pregnant female must have endured in austere and unforgiving times. History comes alive in these long forgotten legal cases, where the law reports are populated by passionate, loving, and desperate figures. In most cases, these law reports are the only legacies we have of these ordinary people who have long since passed from memory. I hope these narratives leave the reader, as they left me, with the realization that while the law may change, the relations between men and women show recurring themes. Men and women fall in love and, inevitably, expectations are raised and obligations are created, and when those expectations are blasted, the victims sometimes turn to the law for vindication. From feudalism to social purity to the modern secular state, how the law has handled these disputes and regulated consensual sex has been a bellwether of how the community has controlled the rites of courtship. It is best, perhaps, to point out that this study is not a history of illegitimacy, sexual offences, or Canadian women. It is, rather, a study of the law’s reaction to the ‘persuasive arts’ and how accusations of seduction were dealt with in the civil and criminal courts. It is an attempt to interpret these trials in the context of their times, to see how they were a part of a greater world, one of intellectual ferment over

Preface

xi

how courtship and sex should be regulated. Any system of social control breeds complexity and, while technically seduction as a tort and a criminal offence has passed from the scene, unmistakable elements of seduction remain visible in recent legal developments in Canada. As long as men and women interact, seduction will remain a factor in the history of the legal system and, for that matter, the history of life.

This page intentionally left blank

Illustrations from a book on the methods of using a centreboard and bundling as controls over young couples. A. Monroe Aurand, Jr, Little Known Facts about Bundling in the New World (1938).

Anne Murphy Jameson, a commentator on courtship and a critic of the 1837 Seduction Act. Ontario Archives.

Premier John E. Brownlee, accused of the seduction of Vivian MacMillan and brought to trial in 1934. Provincial Archives of Alberta.

Vivian MacMillan in 1932, the plaintiff in the trial of Premier John E. Brownlee. Provincial Archives of Alberta.

Justice William Carlos Ives, who presided over the trial of Premier John E. Brownlee. Provincial Archives of Alberta.

Vivian MacMillan and her lawyer, Neil MacLean, entering the court in Edmonton, 1934. Provincial Archives of Alberta.

COURTED AND ABANDONED Seduction in Canadian Law

This page intentionally left blank

1 Fiction of the Law

William Lyon Mackenzie, agitator, publisher, and political radical, possessed among his myriad interests a fascination for the law. This fascination was mixed with a jaundiced view of lawyers and a conviction that the antiquated forms and procedures of the early nineteenth century were designed to rob the common man. In the spring of 1826 an editorial in his Colonial Advocate asked: ‘How many of you have fallen into the dreadful gulf of the law, rendered twice as deep as heretofore by the enormous amount of attorney’s fees?’1 Speaking in the Upper Canadian Assembly in December 1831, he listed the reformers’ grievances against the government, and included in that list a plea for ‘a reduction of law fees and a simplification of law practice.’2 Given his concerns with the inadequacies of the law, it was not surprising to see Mackenzie attending the district courts or assizes and preparing a vivid account of the proceedings. In August 1824 Mackenzie went to Niagara to see the district assizes presided over by Justice D’Arcy Boulton. His Lordship’s address to the grand jury was ‘a eulogy on the Constitution and the land we live in,’ but as none of the lawyers were prepared to proceed, the forty-eight jurymen lost a day’s labour at the height of the harvest. The following day, after some criminal trials, the colony’s attorney general, John Beverley Robinson, announced the case of Thompson v. Brown.3 Robinson acted on behalf of Thompson, a mason from Queenston whose daughter Maria claimed to have borne the child of a local farmer, John Brown.

4

courted and abandoned

When Maria Thompson was called to testify, she carried her illegitimate offspring with her to the stand and gently rocked it as she testified. She stated that she was fifteen when seduced by John Brown and that he was the only man to have sex with her. Other witnesses confirmed that the Thompsons were a moral family and that the father carefully guarded his children’s morality. Defence witnesses gave a very different account. Maria had been staying with a neighbour, Robert Pue, at the time of the conception. A farm labourer, John Wilson, was scandalized when he chanced upon Maria in Pue’s barn and ‘observed her and Robert Pue as closely connected as man and wife.’ When Wilson confronted them with this shocking behaviour (Pue was married) Maria waved him away and bragged that it was not the first time. Mackenzie thought that Wilson had an ‘open countenance’ and was a forthright witness. It soon became evident that the case was becoming a contest to prove or disprove whether Maria had been having intercourse with Robert Pue. For the reader’s edification, Mackenzie described the baby as having sandy hair and a fair complexion, while Brown had a dark complexion and Pue had red hair and a fair complexion. Readers could draw their own conclusions. With his case in serious jeopardy, the attorney general gave the court a pious sermon on the state of colonial morals. ‘There is,’ said Robinson, ‘a laxity of morals in cases of this kind [illicit sexual intercourse] prevailing from one end of the province to the other, which cannot be sufficiently lamented.’ The problem, as Robinson saw it, was not only that Thompson’s daughter was the victim of a seducer (or seducers) but that this activity was all too common in Upper Canada. In an attempt to salvage his case, Robinson called Robert Pue to the stand. He stated that Maria had worked in his house as a servant for several years. When asked if he had ever had intercourse with Maria Thompson, Pue lifted his eyes heavenward and called out in a strong voice ‘Never! No, sir! No, sir!’ Mackenzie reported that ‘a flush passed over his countenance, but what was passing in his mind, God only knows.’ Pue then suggested that John Wilson ‘took a little too much grog, like himself betimes.’ Other witnesses were called to back up Wilson’s character, including Colonel Samuel Street, the former colonial administrator and Colonel Thomas Clark, a leading figure in the Niagara District. Evidence was being called, not to establish facts, but to bolster or tear down the character of other witnesses. Despite this balance of evidence, Justice Boulton was convinced of the validity of the plaintiff’s claim and he suggested to the jury that

Fiction of the Law

5

they make this ‘an exemplary case.’ As the plaintiff had claimed only £500 in damages, he suggested, in words which must have made the defence lawyers squirm, that the jury should not exceed that amount. Mackenzie did not mention, or was as yet unaware, that Boulton was Robinson’s former employer and the father-in-law of his sister. In 1833, when Mackenzie drew up his list of the ‘Family Compact,’ Boulton would head the list, with Robinson in a supporting role.4 A large crowd had taken an interest in the trial, and Mackenzie noted that they were divided – half supported the plaintiff and half thought the claim frivolous. There was some division within the jury itself, for although they gave a verdict for the plaintiff, Thompson, damages were assessed at only £37.10s. For his part, Mackenzie was not convinced by the plaintiff’s case and suggested to his readers that Robert Pue would have to answer to a higher judge. A few days later, at the same assizes, another lawsuit alleged trespass by seduction. This time the results would be considerably different. In this second case, Fuller v. Secord,5 the seduced daughter also cradled her baby as she went before the jury. She described how the defendant Secord had courted her and promised to marry her and how, when she told him of her pregnancy, he demanded that she take an oath that the child was his. They went to a magistrate, ‘Squire Clench,’ who refused to administer such an oath. Secord then abandoned her. Her crossexamination was remarkable for what it revealed about acceptable conduct in the countryside. During their courtship ‘her father and mother knew that she and defendant were in bed together, they had told her so – she and defendant could not go to bed without passing through the outer apartment where her mother and father slept.’ She candidly admitted that ‘she went regularly to bed with defendant every night, and her parents knew it.’ Her mother even encouraged these liaisons for medicinal reasons, that ‘if married, she would be in better health.’ She also admitted that she had lain on the bed with other young men, but never in bed with them. To her, the former was acceptable conduct; only the latter was immoral. A shocked Mackenzie reported that ‘the barristers did not study delicacy in their questions; nor did she in her answers.’ Miss Fuller was a participant in ‘bundling’ – that is, the entertaining of young men, presumably suitors, in a woman’s bedroom. However compromising this may have seemed, it was understood that the parties were not supposed to make love. The daughter in this case had gone the extra step and had intercourse with Secord on the understand-

6

courted and abandoned

ing that they were to be married. This loose conduct was not conducive to a successful lawsuit, and Boulton advised the jury to find against the plaintiff. Amazingly enough, sitting in the jury box was the same John Brown, the unlucky defendant from the case heard only a few days before. He undoubtedly had some interesting observations on frivolous seduction actions. Boulton dismissed the Fullers’ claim ‘with a laugh,’ a levity that Mackenzie did not appreciate, for he thought that this case should, if anything, ‘provoke any other feelings than those of sorrow.’ The jury agreed with the judge and the claim was dismissed. As the court dispersed, Mackenzie wondered how the luckless girl would support herself and her child. The last report he heard of them was of ‘the poor thing going home by herself, babe in arms, through the swamp, barefooted and sobbing bitterly.’ A lawsuit for the seduction of a daughter was not uncommon in Upper Canada, for such an action was the only practical way for the seduced woman’s family to extract money from the putative father. While it was frequently invoked, this tort, or civil action for damages, was never intended to provide support for the woman bearing an illegitimate child, nor to redress the shame and dishonour visited upon her family. Rather, it had its roots in medieval notions of status and property. William the Conqueror made no attempt to hide his illegitimate birth, and during his lifetime he gloried in the name ‘William the Bastard.’6 However, his descendants attached greater importance on legitimacy as validating an inheritance to the extent that it became an axiom of medieval law that legitimate birth was the essence of valid heirship. In the Middle Ages the status of a ward who was heir to property was of great concern to the law, for damages to that heir were an interference with a pecuniary interest.7 Of course, none of this was of any interest to those who had nothing to inherit. Nevertheless, illegitimacy rates were low in England during the sixteenth and seventeenth centuries and seemed to rise only during periods of economic stress, when marriage, but not necessarily sex, was put off.8 However, there was no direct proprietary interest in the child. During the time of Elizabeth I, it was suggested that the protection granted to a ward be extended to children who were not heirs. In Barham v. Dennis (1600)9 the courts rejected this notion. However, one forward-looking judge, Justice Granville, suggested that as a father educated and provided for all his children, ‘it was not reasonable that any should take them from him, and to do him an injury, but that he should have his remedy to punish

Fiction of the Law

7

it.’ If Granville’s view had prevailed, the law of seduction might have taken a very different turn, one based on the parental interest in a child. But it was not to be. Not until 1653, late in the development of torts, was a trespass created for damages done to a daughter. The vehicle for creating this wrong was a strange one, but one which reflected the law’s preoccupation with evaluating family relationships in terms of status. In Norton v. Jason10 the plaintiff had broken into the defendant’s house and assaulted his daughter, ‘getting her with child, per quod servitium amisit’ – that is, whereby a master lost the services of a servant. In this case, Chief Justice Rolle held that the daughter had not been wronged, neither did the father have an action for the rape of his daughter. Rather, the root of the action lay in depriving the father of his servant. This ‘loss of service’ became the ground of this and all subsequent seduction actions. The common law already recognized that an injury done to a servant gave a master a right to sue for the loss of services.11 The seduction action extended this doctrine by acknowledging a daughter’s position in the family as one of servitude; an interference with this service gave her master/father a right to sue for damages. It contrasted with an action for the loss of a male child, for if a son was incapacitated, the parent did not have to show any loss of services.12 By this almost clandestine manner, a father’s interest in his daughter’s chastity became an element of English law. Seduction was only one of the heartbalm torts that provided a legal remedy for interference with the status of a family member. Criminal conversation, for example, gave a married man a right of action against a man who had sexual relations with his wife. Breach of promise of marriage enabled a person (usually a woman) to sue on a broken vow of marriage. It may not have been too surprising that during the eighteenth century, a time when the propertied classes had tripled after the Glorious Revolution of 1688 there was a preoccupation with property law and family relationships. Unquestionably feudal in its origins and purpose, the seduction tort was an echo of the Roman law concept of pater familias, of the quasi-proprietary right of the father over the household. Yet the cases decided after Norton v. Jason demonstrate how a tort created to provide redress for a lost servant evolved into a tort to redress lost family honour. In Tullidge v. Wade (1769)13 the trial judge suggested that the damages should be limited to the costs of the victim’s confinement. However, the plaintiff was awarded £50. This was upheld on appeal, Justice Wilmot holding that ‘Actions of this sort are

8

courted and abandoned

brought for example’s sake. If the jury had given £100 damages, I should not have thought it too much.’ Slightly more than thirty years later, Lord Eldon, one of the great jurists of the day, would dismiss the requirement to prove loss of services as a ‘point of form.’ In Bedford v. McKowl he defined the real nature of the seduction action: ‘We cannot shut our eyes to the fact, that this is an action brought by a parent for an injury to her child; in such case, I am of opinion, that the jury may take into their consideration all that she can feel from the nature of the loss. They may look upon her as a parent losing the comfort as well as the service of her daughter, in whose virtue she can feel no consolation.’14 Yet even while the courts recognized that this tort covered far more than mere loss of services, the ‘point of form’ necessary to advance a claim remained decidedly feudal. For example, proof that the plaintiff had debauched the daughter was inconsequential. Where no pregnancy resulted from the intercourse, no legal rights were created.15 As if to emphasize the daughter’s status as an object, a father’s suit against a man failed if it transpired that another person had caused the conception. Merely seducing the daughter was of no consequence. It was the resulting pregnancy and loss of service that created a legal loss.16 Moreover, it was essential for a father to prove that he had lost his daughter’s services as a result of her confinement. If the daughter worked elsewhere, or supported herself, no one had a cause of action.17 Parents who had to send their daughter out to work were thus deprived of any legal rights in the event of her pregnancy. In Dean v. Peel (1804)18 a man had debauched a nineteen-year-old girl ‘whereby she became pregnant and diseased.’ The jury awarded her father the enormous sum of £500. Yet this award was quashed by the courts on the basis that, as the daughter had left home, there was not even an implied relationship of master-servant. To underscore the passive role of females in these cases, the courts held that whether or not they had consented to intercourse was irrelevant. A servant, much like a head of livestock, had no independent choice, and could not consent to being injured. In any event, the wronged daughter could not maintain the action, for this right was reserved to her father, although in time it was extended to a widowed mother or guardian.19 As one aid to the plaintiff, the courts usually accepted the slightest evidence of service (such as making a cup of tea) as proof of services rendered.20 Yet whatever element of revenge for loss of family honour was behind the action, the root of the proceedings most emphatically lay in the loss of services to the father. There were isolated protests

Fiction of the Law

9

against this feudal relict. Mary Wollstonecraft wrote in 1792 that ‘when a man seduces a woman, it should, I think be termed a left-handed marriage, and the man should be legally obliged to maintain the woman and the children.’ Wollstonecraft despised a society where women were so completely dependent upon men that they had to rely on a feudal fiction to recover any support from a putative father. In a proper society ‘men ought to maintain the women they have seduced.’21 The tort of seduction was not the only way to provide relief for an unwed mother. Since 1576 those condemned to poverty were able to seek relief under the poor law.22 By this law, each parish had to maintain its own poor, but could seek compensation from the parents of the illegitimate child. While it was frequently denounced as either inadequate or a burden on the productive, the poor law provided a community-based system of support. ‘The parochial officials, upon whom fell the burden of giving relief, were generally acquainted with the personal merits and the history of those who applied to them for relief.’23 The poor law illustrated a community in action. In 1757 Thomas Turner, a village grocer and overseer of the poor in East Sussex, dealt with the predicament of Ann Durant, an unmarried woman who was bearing the child of a man from a neighbouring parish. As Turner was obliged to keep the parish rates down while meeting legal obligations to the poor, he spent several days convincing the father to marry the girl. By dint of this persuasion (which included buying the wedding ring and marriage licence) Turner succeeded, and an ongoing burden was removed from the parish.24 The problem of illegitimate births was frequently resolved at this lowest level within the community itself. Loyalist emigrés carried this system of local charity with them from the thirteen colonies to the maritime colonies. Almshouses and workhouses were set up in New Brunswick; where these institutions were lacking, suitable persons would take in paupers (including unwed mothers) for a fee.25 By April 1771 Cornwallis, Nova Scotia, had raised £20 in support of the poor. Overseers were appointed to assess additional sums on the inhabitants and insure that the money was spent on those in poverty.26 In 1792 New Brunswick passed the Maintenance of Bastard Children Act to provide indemnification to a parish for ‘the great charges frequently arising from Children begotten and born, out of lawful patrimony.’27 This statute replicated the Elizabethan act of 1576 by requiring an unwed mother who was likely to be a charge on a parish to appear before a justice of the peace and charge the father. The justice was to commit him to jail (the mother’s charge was almost

10

courted and abandoned

always considered proof of paternity) until he could provide a surety to guarantee that he could indemnify the parish. The durability of the poor laws in Atlantic colonies such as Newfoundland may be explained by a tradition of communal responsibility arising out of collective enterprises such as fishing. Public support of widows and the infirm in Newfoundland had its ‘origins in those areas of Europe where the collectivity, rather than the extended family, was the ultimate guarantor of individual support of the needy.’28 The bastardy act was also frequently invoked in New Brunswick throughout the 1800s and became the primary way in which putative fathers were forced to pay for their children.29 The parish sustained the mother and child while the father reimbursed the parish. Nevertheless, the seduction tort co-existed with these bastardy provisions and was occasionally, but rarely, invoked, as in the New Brunswick case Simpson v. Read (1858).30 There was no such option in Upper Canada. The first act of the colonial legislature in 1792 supplanted existing French laws and entrenched the English common law.31 While the loyalists who sat in the legislature enthusiastically embraced English law, this embrace did not extend to the ‘laws of England respecting the maintenance of the poor and bankruptcy.’ This was a major departure from the pattern set by the Atlantic colonies and from the mother country itself. Upper Canada’s rejection of the poor law seems to have been connected to the landowning elite’s revulsion at the prospect of additional taxes. This elite (headed by Christopher Robinson, father of the future attorney general) sought to retain their slaves in the face of legislated emancipation and keep their other properties free from government interference. It has been suggested that ‘Tory-Loyalist legislators, as the more well-off landowners, refused to allow a poor law to be put into effect that would result in the imposition of a tax on property earmarked specifically for the maintenance of the poor.’32 The Upper Canadians were probably influenced by British discontent with the ‘Speenhamland system’ under which a worker could have his wages supplemented on a scale based on his family size and the price of bread. This was seen by men of capital as robbing those who were accumulating wealth and as invitations ‘to improvident breeding’ by the lower classes.33 On this issue, Upper Canada became the first major British colony to reject the poor law at the same time as the United States (far more loyal to the British legal heritage) introduced this law into their territory in the American Northwest. While the Upper Canadians rejected taxation for all but what they

Fiction of the Law

11

saw as the necessities of government, the Courts of Quarter Sessions, the judicial and administrative bodies which effectively ran each district, attempted to provide for the poor. The justices of the peace who presided over these sessions were in direct contact with the district’s issues, such as providing a jail, licensing taverns, or providing for unwed mothers. In light of the colony’s rejection of the poor law, some of their approaches were legally questionable. Adopting the old laws to the frontier, some justices of the peace appointed overseers of the poor to dispense public relief to paupers. In 1790 the Court of Quarter Sessions of Mecklenburg District ordered Henry Bird to pay support to the complainant ‘for the maintenance of a Bastard child’ until the child was a year old. On 15 July 1795 justices in the Eastern District heard another bastardy case. However, the father hired a lawyer, who pointed out that as the colony had no poor law, the Quarter Sessions had no jurisdiction to order him to pay for the child. Nevertheless, the justices ordered the father to pay support. In 1798 the same Quarter Sessions ordered a putative father to pay child support to the churchwardens of a local parish.34 Yet by the early nineteenth century the absence of a poor law in Upper Canada was apparent, and justices of the peace no longer entertained bastardy cases. The only relief available to an unwed mother lay in her father taking a case to court and pleading seduction – a capricious claim which might provide a windfall of damages or a dismal rejection and penury. By the early 1800s even British judges were considering the tort of seduction to be one of the common law’s curiosities. In 1818 Barron Garrow refused to overturn a seduction award for £1,000 even though he conceded that this huge judgment did not reflect any real damages, but rather ‘operate(d) as a lesson to the invader of domestic happiness.’35 Once the plaintiff crossed the hurdle of proving a loss of services, the judges could then cut to the real issue, the humiliation and expense visited upon the seduced girl’s family. By 1816 a British judge openly conceded that a seduction action was a ‘reasonable fiction ... merely to bring the matter into Court.’36 The colonies of British America had adopted this legal fiction to remedy situations where a daughter was bearing an illegitimate child. Yet how could this feudal relict be applied to a market-driven, independent, land-holding economy with social conditions vastly different from those that had first created the tort? Or would this ‘reasonable fiction’ be further twisted to suit the needs of a frontier community?

2 The Market of Shame

To understand the application of the seduction tort, it is necessary to understand the world of the Upper Canadians. It was an overwhelmingly rural society in which settlers farmed as best they could with crude implements. Roads were poor, and in winter were passable only when they were frozen. This lack of reliable highways aggravated the colony’s major problem, the existence of large tracts of wild lands held for speculation or in clergy and crown reserves. By the 1820s over two million acres of wild lands were dispersed among the settled districts to constitute an economic and social impediment to development.1 Settlers were therefore compelled to live at considerable distances from each other, and this, combined with the poor roads, led to a lonely existence. In 1819 John Goldie, a Scottish traveller, felt that a compelling reason against settling in Upper Canada was the great distance between families and from churches and schools.2 Anna Jameson described Upper Canada’s scattered agricultural population as being largely uneducated and profligate, where ‘the labourer reads not, writes not, thinks not – only loves, hates, prays and toils.”3 One English emigrant, Catharine Parr Traill, thought that the settlers lived a ‘Robinson Crusoe sort of life’ and that the greatest cause of their isolation was ‘the badness of our roads, and the distance at which we are placed from any village or town.’4 While it may seem incongruous that the physical layout of the province could affect sexual relations, details from the seduction cases indicate that this may have been the case. Young people

The Market of Shame 13

had limited opportunities to meet a potential mate and were probably tempted to make the most out of infrequent opportunities. The dispersed settlement, inadequate road system, and lack of normal social interchange all seemed to contribute to a peculiar set of frontier mores. The pioneer settler of the early nineteenth century faced a daunting task of keeping a family alive while he cleared a dense forest of hardwood trees by hand. With any luck, he could use the fallen timber to build a rude shelter before the winter claimed him and his family. The first houses were small, many being only 16 ' 20 feet. The frame was composed of logs keyed at the corners, with gaps in the wall plugged with clay. The floor would be of earth or rough-cut planks and ventilation was provided by the door or gaps in the walls. The frontier house was not only dirty, drafty and smoky, it was exceptionally cramped. A log house built in the 1790s likely consisted of only one room, heated by a fireplace; to save room, the beds were attached to the walls.5 A surviving house in mid-nineteenth century Sutton was described as having a little square room at the front (the main room) with box stairs leading up to a loft or bedroom.6 The first settlers in the Beaver Valley near Meaford had two-storey houses, but with only one room in each storey. Even though most settlers moved from log houses to frame or brick homes as soon as they could, as late as 1834, assessors classified almost 23 per cent of the province’s houses as log cabins.7 These accommodations left little room for privacy. As Edwin Guillet observed, ‘Curtains or other makeshift means were more common than partitions in log houses – in fact there was seldom much effort to obtain privacy.’8 Within these public quarters, a family would live an almost communal existence. As a result, it was unlikely the facts of life remained a secret to the children. While during the summer months children could be sent out of the main house to sleep in adjacent sheds, this was impractical during the winter, when it became desirable to have as many persons as possible sleeping together to provide warmth. Children raised in this milieu had few qualms about sleeping with others, including those of the opposite sex. In colonial America it was a reflection of the limited accommodations that community sleeping arrangements were not uncommon. A British officer reported seeking shelter with a Massachusetts family in a house which contained only two bedrooms. The officer was told that he would share a bed with the family’s daughter. After he asked whether she often slept with strangers, she replied: ‘Not by many, but it will be with the first Britainer.’ The officer was shocked by this custom, which New Englanders ac-

14

courted and abandoned

cepted without pause.9 The Canadian frontier seems to have duplicated the cruder aspects of life in colonial America, and with similar consequences. The cultivated English gentlewoman Susanna Moodie described her reaction to Canadian households in 1833: ‘I thought to get a private room to wash and dress in, but there is no such thing as privacy in this country. In the bush, all things are in common; you cannot even get a bed without having to share it with a companion.’ On another occasion, she described, with some considerable horror, the sleeping arrangements at a country inn: ‘Think of that, a public sleeping room! men, women and children, only divided by a paltry curtain.”10 The court cases leave vivid descriptions of the closeness of provincial life. In rape cases, it was frequently reported that the assault occurred while the woman was in bed with her children.11 In one 1847 trial, there was testimony that the house where the rape was committed ‘has one room where all the beds were.’12 In so many of the seduction cases, it is the very smallness of the houses or the lack of separate rooms that leads to the commission of the act. In Beadstead v. Soper (1847), the house had two bedrooms and a young courting man easily devised ways to enter the daughter’s room when her parents were asleep,13 but in many other cases, all the parties simply slept together. In Carson v. Welsh (1830), a witness testified that the plaintiff’s house consisted of only a kitchen and a bedroom. The witness (who was not the seducer) testified that ‘Youngest sister was in the bed at the same time he was – there was always another person in the room in the night time.’14 In another case, a farmhouse in 1822 is described as having one bedroom for the young people with two beds to accommodate the different sexes. In the dead of the night, the young people arranged to exchange partners.15 Where privacy was so limited, it is not surprising that sexual restraints were eased. For many Upper Canadians, this lack of privacy was nothing new. As Philippe Ariès has shown in Europe of the sixteenth and seventeenth centuries, the bedroom was very much a public place. One rarely slept alone; indeed, one was frequently in the company of servants and other family members. It was therefore ‘easy to imagine the promiscuity which reigned in these rooms where nobody could be alone, which one had to cross to reach any of the communicating rooms, where several couples and several groups of boys or girls slept together.’16 There did not exist any tradition of privacy, and the nature of frontier life made it an unrealistic objective. The intimate nature of personal life is shown in Tulk v. Beaman (1838) in which a serving girl, Nancy Tulk, lived with her

The Market of Shame 15

employer and slept with his wife and six children in the same room.17 Beaman had intercourse with Nancy on several occasions, and even after the girl told Mrs Beaman, she was not believed. Yet it was not considered remarkable that the girl (she was twelve years old when first apprenticed) had to live in one room with her employer’s family. Life on the Upper Canadian frontier did not differ significantly from that in Lower Canada (Quebec). In 1750 Jean Bouchard attempted to explain his seduction of a maid by arguing that it was normal to share a bedroom with two maids as his house was so cramped. In a study of twenty-five actions brought by unwed mothers during the French regime, eighteen resulted from having sex with someone in the same household. In twelve of these cases, a serving girl had been seduced. As Marie-Aimée Cliche has noted, ‘Sexual intimacy may have been facilitated by the lack of privacy that reigned in Canadian households, where it seemed that the universal custom was for several people to share a room or even a bed. This custom which was widespread in France, persisted in the colony because of the harsh climate.’18 Yet early French-Canadian society seems to have had low rates of illegitimacy and ‘the ideal of confining sex to marriage seems to have been accepted by the community as a whole,’ which was just as well since most illegitimate children would die shortly after they were left at a foundling hospital.19 On occasion, pregnancies out of wedlock were attributed to a loose courtship. While working towards the wealth that would enable him to support a family, a young man might well be tempted to consummate his intentions, as occurred in 1707 when a couple took advantage of their parents’ absence to make love in the presence of their friends. A prominent cleric, the bishop of Saint-Vallier, condemned these overly free courtships, but if marriage had to be delayed, ‘naturally, the young people became increasingly intimate during these long waiting periods.’20 As in the maritime colonies, where illegitimacy was a parish concern, an unexpected pregnancy was a community affair in Quebec. Priests could negotiate between the parties and urge (although they could not order) men to marry those they had wronged. In 1722 both the local priest and the family of Cécile Saint-Yves pressured her lover to come to the altar. They discontinued their efforts when Cécile declared that she had no interest whatsoever in marrying the man. In contrast to Upper Canada, if a Quebec woman could prove that she had been the victim of misrepresentation or fraud, she could sue in her own right. The fines imposed were about 150 francs and were intended to

16

courted and abandoned

provide a dowry so that the woman could have some prospects of marriage. Much like seduction damages, these fines were fixed to reflect the social status of the injured party. When Pierre de Saint-Ours was fined 1,000 francs in 1705 for deflowering the daughter of a good family, the judge admonished him for there were ‘plenty of girls of lower birth at his beck and call with little risk involved.’21 In many of the common law seduction cases, the two parties, seducer and seduced, met as a result of their employment. The farm girl sent to work at a neighbouring farm or tavern could be at risk of sexual attack. Typical of this arrangement were the articles of Mary Ann Thompson. In 1825, at the age of seven, she was apprenticed as a serving girl, compelled to obey a master and mistress and further ordered that ‘Fornication she shall not commit, Matrimony she shall not contract.’22 An arrangement such as this would not appear to be unusual and it provided a way to relieve some families of surplus children while providing cheap labour to those who needed it. Beyond the economics, the possibilities for abuse were enormous. In two reported cases of the early 1840s, Gill v. Brown23 and McLean v. Ainslie,24 the seducer was the employer of a serving girl. In Tulk v. Beaman, as noted, the master of the house forced himself on a serving girl of twelve. The needs of a frontier community were very different from those of the long-settled states or Britain. All family members had to bear the burden of a heavy workload. Ploughing and tending livestock were jobs that children could perform if not enough adults were available. As one observer of frontier life has commented, ‘Most families could not afford idle children.’25 Working children could either labour for their parents or be hired out to work for others and learn a trade along the way. The vast majority of young women in British North America lived on the land and their lives were tied to the needs of farm production. They would frequently work on a stranger’s farm. Even in the 1880s, one mother observed that when her daughters got older, they would have to be hired out as servants, for the parents would be unable to feed them.26 It was often serving girls who ended up as the subjects of seduction cases. Typical of these cases was Ellen Donnell, a fifteen-yearold servant hired out to a local taverner. He took advantage of his wife’s absence to rape the girl, going so far as to break down the door to her room when she tried to bar it.27 The farm girl working in a stranger’s house could be more at risk than her sister working in a factory. For example, in an infamous New England murder case, it was observed that women who were employed in a large factory were relatively safe,

The Market of Shame 17

for factory labour ‘took a single young woman out of individual contact with male employers and protected her in the strictly maintained morality of the spinning or weaving room.’28 The practice of employing hired help was one aspect of the rural working environment that led to seduction actions. In the premechanized era, it was vital for a farmer to be able to call on a free pool of labour to assist with planting and harvesting. Studies of American households in the nineteenth century indicated that the presence of boarders was more common than that of non-nuclear kin. Economics dictated that farm labourers would have to live with their employers at the farm and they became a common feature of the family.29 As Livinia Maselles would testify in 1858, illicit intercourse had occurred because the seducer ‘had been working at our place this summer & boarded with us during this time.’30 In Smith v. Michael (1833), the seducer was a hired hand who had worked for the father for a season, promised to marry the daughter, but later reneged when she became pregnant.31 Although the frontier work environment put young women at risk, most seduction cases would still arise out of romantic entanglements. Seduction cases frequently arose out of a courtship that went bad. There must have been tremendous pressure in rural Canada for girls to get married and thereby relieve their parents of the burden of their support. Statistically, there was a higher marriage proportion among young women on the frontier than in the settled eastern seaboard.32 For reasons similar to those for apprenticing children, parents would be eager to see their daughters married and were prepared to accommodate a suitor’s desires if this hastened the match. A standard story is found in Bedstead v. Soper (1847), where a young man was invited to stay at a farmstead during the courting period. Although he was given a separate bedroom, the courting couple had no difficulty in evading the parents and sleeping together most nights. The father seemed to be aware of what was going on, for his daughter conceded he ‘never derided her for her intimacy with him.’ Nevertheless, the suitor reneged on his promise of marriage after she became pregnant, and the family sought recompense in the courts. Time after time the seduced girl would state under oath that the seducer had promised marriage, and that was the only reason she had yielded her virtue. Eliza Carson explained in 1830 that the seducer ‘paid attention to [her] as a courtship with a view to Matrimony – assured his intentions Honourable.’ This could be an important factor in determining damages, for the promise of marriage shifted the entire

18

courted and abandoned

blame for the illicit intercourse onto the seducer and relieved the girl of her share of the infamy. Eliza Carson, for one, was blunt on the subject. She had ‘yielded under the expectation of Matrimony and successfully convinced the jury that the seducer was totally to blame.’33 Business reasons could motivate parents to marry off their daughters. In Coulthard v. Wood (1846),34 a tavern-keeper thought that he could secure an advantage by marrying his daughter to a fellow publican. The suitor proposed marriage and the couple ‘soon became intimate.’ However the suitor put off the marriage day and even after the girl’s pregnancy became known, he ‘continued still to visit her – had connexion with her after.’ Losing interest after she delivered the child, he refused to marry her. Marriage would have resolved many of these lawsuits. As Livinia Maselles testified in 1858, she had confronted her seducer: ‘After I was pregnant I called on him to marry me.’ His refusal left the seduction action as her only hope for relief. In addition to the isolation, the cramped living quarters, and the necessity to marry off or apprentice girls, early Canadian attitudes towards premarital sex might also have been influenced by the easing of European codes of conduct. Canadian settlers were far removed from the centres of Christian religion, and most had to rely on the occasional visits of itinerant preachers. While the overwhelming majority were Protestants, the absence of clergy and of an institutional church resulted in many settlers being categorized as ‘Nothingarians.’ Western New York State, which supplied so many settlers to Upper Canada, had the reputation of being the most irreligious of the colonies. Visiting clergymen recorded the lack of Sabbath observance, intemperance, and gambling in Upper Canada. The Methodist missionary William Case despaired of some parts of the colony. On the north shore of Lake Erie he described a new settlement that was ‘perhaps the most wicked part of America, even the priests, I understand, after service, joined their people in dancing and playing cards.’35 Even so diligent a preacher as Egerton Ryerson confessed in 1827 that ‘Religion is at a low ebb among the people.’36 Anna Jameson, reared in the episcopal traditions of the mother country, was shocked to observe in 1837 ‘drunkenness, profligacy, stolid indifference to all religion.’37 Indifference to religion may have been the result of Upper Canada’s heritage as a fragment of an older culture but freed from the strictures of that culture. Separated by an ocean from the sources of Christian tradition, and left on their own, settlers were able to develop their own ideas of right and wrong. Even churchgoing settlers seemed more concerned with saving face than their souls. In 1804 the Reverend George Stuart of York mourned

The Market of Shame 19

‘a more lukewarm set of Christians (if they can at all be so called) can scarcely elsewhere be found – In that small Place [York] not less than six kept Mistresses can be counted.’38 In the 1820s Joseph Gould, a prosperous Uxbridge farmer, indulged in ‘gallanting, first with one girl and then with another.’ However, when it came time for marriage he returned to his religious origins. In the presence of devout Quaker women, Gould repented: ‘after my wild career, I despised myself.’39 On occasion, the settlers were surprised to learn that some acts were offences, and capital ones at that. Dennis Russell was convicted in 1828 of having had sex with a girl under ten. In reporting the case to see if clemency should be applied, Justice Sherwood noted with surprise that neither Russell nor the girl’s parents knew that his conduct was criminal or even reprehensible.40 While undoubtedly Christian morality remained alive in the province and was a pervasive part of everyday life by midcentury when a permanent clergy could supervise their flocks, the falling away from traditional standards of morality was one of the outstanding features of the seduction cases in the 1820s. Beadstead v. Wyllie The first record of significant law cases in Upper Canada was published in 1823, and two cases of seduction were included in the reports. Not only would it appear that seduction was a frequent source of complaint, but the two cases reveal a surprising attitude on the part of some Upper Canadians towards sex. In Beadstead v. Wyllie the defendant sought to prove that the girl’s family had openly accepted his relationship with their daughter. The plaintiff, the girl’s father, had been awarded a substantial settlement of £200, even though the evidence revealed that he had tolerated the following astounding state of affairs: On the part of the defendant it was proved, that the witness [the son-inlaw of plaintiff] had, previous to his marriage, slept with another young man in one bed, and the two daughters of the plaintiff in another bed in the same room, [a two-bedded room.] That he had lain in bed with both the daughters previous to his marriage; that the indecencies which took place between plaintiff’s daughter and defendant, were notorious to the family; that they were laying in every corner of the house to be stumbled over.

The father was described by the trial judge as a ‘decent orderly man, and had family prayers in his house every day.’ The seducer, a hired

20

courted and abandoned

hand of forty, obviously did not take this religiosity to heart, for he had slept with both of his host’s daughters, impregnating one of them. Yet it was also clear that the father had taken no steps to end these indecencies. The defendant, represented by Henry John Boulton (son of the judge) argued for a new trial, and once again John Robinson appeared for the father of the seduced girl. Robinson’s sanctimonious comments at the 1824 trial described by W.L. Mackenzie accurately reflect his character. While a law student before the War of 1812, Robinson despaired of an amorous colleague, Jonas Jones, who wrote of ‘nothing but what he calls pieces.’41 Robinson suggested that in seduction cases the question was ‘a moral and not a legal one.’ The jury’s verdict should be allowed to stand as a condemnation of the defendant’s unwholesome conduct. Boulton, on the other hand, argued that the father’s conduct in condoning this state of affairs released the seducer from liability. ‘If a father opens a door for misbehaviour he cannot say where it is to stop, and he shall not afterwards come and say to a jury, I have by my own folly brought this inconvenience on myself, and now I come to you for damages.’42 The court agreed, and a new trial was ordered. The conduct of the parents in permitting illicit intercourse was therefore a factor in determining the liability of a seducer. But it led to the larger question of how common this activity was and the extent to which it should be condemned. Boulton referred to an even earlier case, Smith v. Book (of which there is no record) where the same Court of King’s Bench quashed a verdict of seduction where the mother had permitted her daughter to lie abed with the defendant in a situation similar to that in Beadstead. Even Robinson had to concede that ‘though parents should guard the conduct of their daughters,’ pre-marital sex was a fact of life in the colony. ‘This vice, which is so mischievous to the morals of a country, has become too prevalent.’ While the facts in Beadstead might have been extreme, with couples rutting in various corners of the house, the lawyers and judges of the period seemed to accept premarital sex among young people as the prevailing state of affairs. The custom of bundling so prevalent in the New England states before and for a time after the War for Independence would appear to have transmitted itself through the loyalist settlers to Upper Canada. Bundling was defined in an 1864 American dictionary as ‘a man and a woman lying on the same bed with their clothes on; an expedient practical in America based on a scarcity of beds, where on such occa-

The Market of Shame 21

sions, husbands and parents frequently permitted travellers to bundle with their wives and daughters.’ As the above definition indicates, bundling could take two forms. The first was between lovers who shared a bed, kept their clothes on, and engaged in limited foreplay. The second referred to the shortage of sleeping accommodations in early America and the necessity to share bed space. The experience of colonial New England would indicate that both forms of bundling were widespread. In Knickerbocker’s History of New York the fecundity of New Englanders was explained by bundling as ‘an indispensable preliminary to matrimony’ and as a way in which courting couples could learn the virtues (or lack thereof) of their prospective mate.43 Bundling, as an aspect of courtship, was a recognition that young people needed an outlet for their sexual energies. A form of the custom may have existed in Scandinavia, where organized groups of young men would go night courting and leave one of their number, fully clothed, in bed with a local girl. The custom provided flirting and socializing between the sexes, but rarely lead to pregnancies.44 Bundling was an accepted custom in early America, and a preacher who dared to sermonize against this temptation found himself harassed outside his church by local women who told him that the custom was perfectly respectable. This popularity may lie in the perception that bundling was controlled, rarely resulted in pregnancies, and allowed young men and women to get to know each other. It was also selective. Recalling the 1780s, one New Englander observed that ‘it was not the fashion to bundle with any chap who might call on a girl, but that it was a special favor granted only to a favorite lover.’ Cautious parents might insure that a ‘bundling board’ was placed strategically in the centre of the bed, or that the occupants wore a long, securely tied ‘bundling bag.’ In 1824, when W.L. Mackenzie observed the Niagara assizes, he recognized the activity carried out in the Fuller v. Secord case to be bundling. The seduced girl admitted that she had lain on her bed with several men, but only in bed with the man she hoped to marry. He added in a note to the case: ‘This is the custom called bundling, common in some parts of the Canadas and the States, and which seems to have arisen originally from the poverty of the early settlers and their having scanty accommodations. A young man visits a young woman to court her for marriage, and is allowed to sleep with her, each keeping on a part of their clothes. This custom is, very deservedly, fast passing away.’45

22

courted and abandoned

In theory, bundling was to be a chaste activity and, according to its proponents, was far more desirable than having young people lounging about on sofas. Bundling and its related activity, ‘tarrying’ (spending the night with a betrothed), were merely courtship rituals. A British officer in New England in the 1770s observed that a young man, after having proposed to a woman, would then be permitted to spend the night or ‘tarry’ with her. If they found themselves incompatible, they would be allowed to separate. However, if the girl became pregnant, the community expected the suitor to marry her. Pregnancies were occasionally the result of overly enthusiastic bundling. As a result, ‘seven month babies’ were apparently common in New England,46 but, unlike in Europe, these children were not considered illegitimate. Thus bundling, while rarely leading to births outside of wedlock, ‘could hardly be considered entirely innocent.’47 Hogle v. Ham48 These relaxed attitudes towards pre-marital sex came under stern review when Sebastian Hogle, a Midland District farmer, sued Philip Ham, a neighbour, for the seduction of his daughter Amelia. Ham had gone to school with Miss Hogle, and had courted her at her father’s house. As per local custom, he had been allowed to stay overnight. It was undisputed that Ham had regularly passed the night in the girl’s room and that her parents had condoned this arrangement. Sebastian Hogle retained a prominent Kingston lawyer, Christopher Hagerman, to advance his case. During the trial in August 1825, Amelia swore that she was a typical farm girl doing chores for her parents. It was undisputed that she had intercourse with Ham and, she stated, he was the father of her child. In his defence, Ham’s lawyer, Jonas Jones, alleged, that Amelia was a rustic temptress and that her father had indiscreetly allowed them to ‘sit up whole nights in a bed room.’ A defence witness, Impey, stated that Amelia was not as exclusive as she alleged for he testified that he had slept with her and that she had mentioned that Ham was not the father of her child. Hagerman’s address to the jury on behalf of Hogle was printed by local newspapers and was available to the literate public.49 Hagerman reminded the jury that the Hogle home was a happy one of eleven children presided over by a respected father. Then ‘The foul seducer came – what was it to him that he was to destroy so much happiness – what to him to crush a young and tender

The Market of Shame 23

flower what to him to rob it of its sweets, and having robbed it, “threw the loathsome thing away.”’ For three years, Hagerman alleged, the seducer had planned to steal Amelia’s virtue and she had only yielded when ‘the hope of marrying the man she loved lulled to repose the voice of honor.’ On the question of Sebastian Hogle’s allowing a suitor’s liberties, Hagerman had previously reminded the jury that his home was a small one with only one bedroom and a kitchen. ‘Gentlemen,’ he told the jurors ‘you know the country – the poor man cannot have a long suite of apartments; if there be a bed in his only one, is it an indication of vice?’ Lastly, he addressed the bundling questions itself: ‘I am not an advocate for the practice [bundling] but it is the custom of the country – not of this country only – but of many others. Let not my client suffer from following a custom so general – and let not the seducer escape for taking advantage of the confidence reposed in him.’50 For the defendant, Jones argued that the real culprit was Hogle, for he had permitted Philip Ham ‘to sit up with his daughter in her bed room all night; and when we reflect on the infirmities of human nature, can we be so much astonished at the result?’ It was unlikely that the jury was surprised, but that did not mean that Ham was absolved from all responsibility, for they awarded the huge sum of £250 to Hogle in recognition of the disgrace visited on his family. Philip Ham retained another lawyer, J.S. Cartwright, and brought a motion to dismiss the verdict on the basis that the gross neglect on the part of the parents was grounds to grant a new trial. Hogle hired James B. Macaulay to defend his windfall. In the face of the Beadstead decision only two years earlier, Macaulay likely realized that the judges might consider the jury’s decision perverse, and quash it. It was therefore incumbent upon him to characterize what had occurred as legitimate and perhaps even desirable conduct in the circumstances. He began his argument by stating that nothing unusual had occurred: ‘the plaintiff in consequence of this expectation [matrimony] admitted the defendant to such freedoms in his house and family as are usually permitted under such circumstances.’ The jury’s view – that leaving a courting couple in bed together was blameless conduct on the parents’ part – was correct, Macaulay argued, and the award of damages should stand, as it repaid the ‘blackest ingratitude’ of Ham for refusing to marry Miss Hogle after he had sated his appetites. Then in a fascinating argument, Macaulay presented the foundation

24

courted and abandoned

of his case, that what had occurred was merely part of the rhythm of frontier life: That the custom of allowing young persons to see each other in bed rooms and alone, and at late hours, though not agreeable to more refined notions, was predicated upon the confidence which the inhabitants of the country placed in each other, and the few instances in which that confidence had been violated showed that it had not often been misplaced. That in this respect something must be allowed to the situation of the young yeomanry of the country, who were labouring in the field during the day, and had little opportunity of being introduced to each other but at night.

Not only was this custom a benefit to the younger generation, it was also a boon to the older, for it provided a method for the marrying off of daughters: ‘That it was natural for parents to wish to see their daughters settled in marriage, and with this view the plaintiff had allowed the defendant no other liberties than are usual.’51 On behalf of Ham, John Cartwright took the father to task for his daughter’s dishonour. As he had permitted his daughter to partake of ‘great indiscretions,’ he was himself party to the crime, and perhaps more at fault than Philip Ham. ‘That a custom [and Cartwright did not dispute that it was a custom] which allowed young persons to remain together for whole nights in bed-rooms without any witnesses of their conduct, was immoral in the extreme and should be abolished.’ On the grounds of public policy as well as morality, the plaintiff should not be rewarded for having permitted such carelessness with his daughter’s virtue. The judges had no doubt that the bundling custom described by Macaulay existed in the colony. Where they differed was in tolerating its continued existence. For his part, Chief Justice Sir William Campbell left no doubt that he considered it a profound evil. An elderly Scot nearing the end of a long career in colonial service, Campbell was very much an eighteenth-century British gentleman. The year after the Hogle case, he created some difficulty by publicly observing that ‘men as lords of creation have a right to inflict a little gentle castigation on our rebellious dames.’52 His career and class left him unlikely to sympathize with the common settler. The chief justice felt that a parent suing for damages to a daughter was under an obligation to use a reasonable degree of attentiveness over her conduct, for unmarried females were

The Market of Shame 25

subject to ‘excitements and temptations.’ Indeed, this attentiveness was greater than a husband’s over a wife in cases of adultery or criminal conversation. In these instances, the woman was under the additional constraints of her marriage vows and therefore did not require such close monitoring. Implicit in Campbell’s comments was the notion that both wives and daughters were mercurial creatures who needed male control and direction. According to Campbell, Hogle had displayed ‘not only a foolish and ridiculous confidence and want of common prudence and circumspection, but also such a degree of culpable negligence as in effect amounts to criminal connivance.’ The father was guilty of failing to exercise his authority ‘to prevent a daughter from being exposed to such temptation, much less to be left alone in bedrooms, or in any other rooms or places at unseasonable hours, and for whole nights with an individual of the other sex.’ Addressing Macaulay’s comments on the desirability of premarital sex, Campbell dismissed those views. The parties had ample time to know each other, and the absence of a formal offer of marriage should have induced the father to forbid the ‘continuance of intimate intercourse, and nightly visits, instead of inducing confidence, should have excited suspicion and distrust,’ and should have resulted in Sebastian Hogle’s peremptory command to stop the liaison. The other presiding judge, Levius Peters Sherwood (the first Canadian-born judge of King’s Bench), took a more sympathetic view of the plaintiff’s position. Had the seducer promised marriage, then ‘the plaintiff’s want of care would, in a great measure, have been excused.’ Sherwood seemed to recognize and condone the tarrying custom of permitting betrothed couples to sleep together. Nevertheless, to permit courting couples who were under no formal obligation to spend the night together remained a positive evil, for ‘It is of the greatest importance to society, that females should be brought up in habits of virtuous and chaste demeanor; for such habits will always have a decisive influence in correcting any licentious deportment in the other sex.’ To permit this large award of damages would be to ‘break down the barriers between right and wrong, and to set an example most pernicious in its consequences.’ A new trial was ordered. There is no further report of proceedings, and it is likely that the parties settled out of court. Yet there were shades to the judges’ disapproval, for even Sherwood conceded that premarital sex, where a marriage proposal had been made, was acceptable conduct. A father who permitted it could not be

26

courted and abandoned

held to blame. Some of the judges were willing to accept the tarrying custom, but a defendant who did not follow through on his promise of marriage where pregnancy resulted could be expected to pay for his folly. The Hogle case showed at least some tolerance for the bundling custom in Canada and its acceptance by the common people on jury panels. Later Seduction Cases If anything, the cases of the 1820s show a dichotomy between the strict morality of the judges and the more relaxed standards of the settlers. Prior to 1830, colonial judges tended to be British officials serving short terms in various colonies and working their way up to more important posts. They were almost all Anglicans with a strong religious background. Even after 1830, when Canadian-born lawyers were appointed to the bench, they tended to be Anglicans who brought a strict sense of morality to their judgments. Justice Sherwood would later serve as treasurer of the Society for the Propagation of the Gospel. John Beverley Robinson, who as chief justice from 1829 to 1862 tried so many seduction cases, was a fervid Anglican who began each day with family prayers. ‘Religion,’ Robinson wrote in 1841 ‘is the only secure base on which civil authority can rest.’ He even felt that sins such as adultery and incest should be made into penitentiary offences and that ‘a reproach rests upon us as a Court from the abominable state of morals in these particulars.’53 The religiosity of the judges, when contrasted with the indifference of the settlers, may account for the discrepancies between the jury awards and the judges’ reversals. Seduction actions were remarkably successful, even when the evidence was unclear and the character of the seduced woman was in question. In the Tulk v. Beaman case, Robinson told the jury that the evidence was highly equivocal and it was doubtful that any seduction had occurred while the woman was living with her employer. ‘I do not see such evidence,’ he cautioned them. Nevertheless, they returned a verdict for the plaintiff. In McKay v. Birley (1858) the judge thought the jury should ponder that the case was brought beyond the time limits, the daughter had not been rendering any services, and moreover she was thirty while the reputed seducer was only nineteen!54 The jury still awarded damages. Not only were juries eager to favour the plaintiff, they were willing to meet or exceed his expectations of damages. Jury awards prior to 1835 were about £100 and

The Market of Shame 27

occasionally as high as £200 to £250. One could buy a decent farm with the latter sums. Consistent with the tort of seduction as a fiction of the law, damages rarely bore any connection to the losses sustained by the girl’s father. Eventually the judges conceded that the jury awards were intended to remedy the loss of family honour, not services. In Minaker v. Wellbanks (1839)55 almost all of the plaintiff’s evidence was intended to paint a picture of a respectable family destroyed by an unscrupulous suitor. One witness advised the jury that ‘the family appears sensitive to such disgrace. Thinks Def. has experienced mental anguish as it was supposed Def. was a suitor.’ The aggrieved father even told a neighbour that ‘it is as if the Pl. had murdered his daughter.’ The jury responded with a verdict for £125. Finally, in L’Esperance v. Duchene (1849)56 Chief Justice Robinson put into words the principles that explained so many of the jury awards: ‘the grievance which the law regards and desires to afford redress for, is the injury to feelings, the mortification, the domestic unhappiness, the blighted hopes, which follow the seduction.’ The seduction cases also reveal much about family life in early Canada. Unlike rural Ireland of the same period, where an unmarried female was shunned and ‘despised if not cast off by her own family’57 the same woman in Upper Canada could usually rely on a united family to stand behind her. Rather than shun his daughter, Sebastian Hogle’s impulse was to rally to his daughter’s cause and take her seducer to court. Through the seduction tort, the family had a legal tool at its disposal which, in a way, restored the balance between seducer and seduced. Perhaps because it had evolved into a way of redeeming a family’s honour, a review of twenty-three seduction cases from 1823 to 1840 shows that they were astoundingly successful, for only two cases were dismissed. While it has been suggested that ‘the judges overturned about half of these verdicts on points of law,’58 most verdicts went unchallenged and the damage awards unreduced. In one of the rare instances of an unsuccessful seduction action, Monk v. Casselman (1835), both the jury and the appeal judges agreed that the scabrous conduct of the father defeated his claim. He was described as ‘a man of profligate character, so exceedingly profligate indeed, that the ruin of the morals of any member of his family must seem to have been more justly attributable to himself than to any other cause.’ At trial, accusations of a most scandalous nature were made, but not proven, against the defendant. There was substantial testimony that the seduced girl was a ‘young female of unusually depraved character and licentious habits.’ The jury

28

courted and abandoned

concluded that either the father was to blame for his daughter’s loose conduct or that the defendant was not the seducer. Either way, the judges would not interfere with the verdict, especially when it coincided with their own views of refusing relief when the parents had been exceedingly lax in their duties. In his passing comments, Robinson revealed that he considered this case to be more than a mere tort. A seduction trial was literally a morality play in which the private lives of the parties were minutely examined in public. If the defendant was found ‘guilty’ (as Robinson phrased it), then ‘he must have been rendered forever infamous.’ Even when acquitted, his embarrassment must have been acute. There was also a fear of parading immoral conduct before the public. It was bad enough that cases such as Monk v. Casselman had to be tried, but exposure of the public to such details should be kept to a minimum. Robinson primly added a postscript: ‘that so far as respects the public morals, it is worthy of consideration that we ought not, except to answer the necessary ends of justice, to expose the public a second time to the hearing of such disgusting details as occupied the attention of the court and jury upon the trial of this case.’59 One can only speculate how disgusting these details were to gentlemen such as Robinson and how commonplace they may have been to the average farmer. The judges may not have recognized the pressures of frontier life, the cramped quarters, the dispersed settlements, the urgency of marriage – all factors that made premarital sex desirable. The judges rejected any notion of relaxing the moral code to tolerate limited sexual play among young people. The settlers, through their juries, expressed their view that liberties should be granted to youngsters. But if pregnancy should occur, they also felt that the man should face his responsibilities and marry his lover or pay seduction damages. Yet the judges, more concerned with setting the proper moral tone, occasionally frustrated attempts by fathers to extract money from seducers. If anything, they left the burden on fathers to supervise their daughters and prohibit unseemly conduct. In the last resort, the settlers had a legislative tool at their service, the colonial House of Assembly, to override the judges and more firmly affix the custom of the country in law.

3 Women of Quality and Lewd Mothers

Attitudes towards premarital sex varied widely among Upper Canadians. Among settlers, young people were probably exposed to the facts of life at an early age, and the necessity of finding a mate discouraged any lengthy or formal courtship. Yet in the class-conscious parlours of York or Kingston the tragic consequences of premarital sex were continually ingrained in the younger generation. For the educated, the seduced woman as a literary motif was well known. In Samuel Richardson’s Pamela (first published in 1740), a girl educated beyond her station is hired out as a serving girl. Her master uses numerous subterfuges to seduce her. However she rebuffs his overtures (as well as those of most other men she encounters) until he, finally realizing her true worth, marries her. Richardson’s portrayal of the eighteenthcentury gentleman as driven by his own lust had enough basis in contemporary reality to be believable. In Daniel Defoe’s Moll Flanders, the heroine is forced to work for a wealthy family and is seduced by the eldest son. Upon learning of her pregnancy the beautiful Moll upbraids men in general: ‘They had the character and Honour of a Woman at their Mercy, often times made it their Jest, and at least look’d upon it as a Trifle, and counted the Ruin of these, they had their Will of, as a thing of no value.’1 The pattern of these stories, of the employer abusing an impecunious working girl or of a man of property dangling the prospect of marriage before a girl of few prospects, were all aspects of the seducer’s art.

30

courted and abandoned

This romanticized version of seduction that was such a reliable motif in contemporary literature was also familiar in Canada. In the same vein as Moll Flanders, Anna Jameson narrated the story of the fall of a Canadian gentlewoman in the 1830s.2 She had been seduced by a British army officer, and when he tired of her, she was passed on to his brother officers. Eventually, she went to England with the regiment’s colonel. Sometime later, the original officer was back in London and amusing himself at a fashionable bordello. His assigned escort was none other than the girl he had degraded in Canada, or, as Jameson so vividly described her, ‘the impudent, degraded, haggard, tawdry thing before him, the poor child who had been his victim in Canada.’ She swooned. He then offered to reinstate her with her family, but she nobly refuses any favours from his polluting hands. This wildly coincidental story seems unlikely to be true, however it does illustrate the attitude among the educated that women, either because of their position, or inability to control their emotions, could easily become the prey of wealthy and unscrupulous men. Unlike the literature of the day, the seduction cases as detailed in the Upper Canadian judges’ benchbooks and law reports never relate stories of compelling romance. Rather, they deal exclusively with the misadventures of ordinary farming or labouring people. Almost invariably the seducer is not a wealthy rogue, but a man of similar status as the seduced who was allowed certain liberties in the hope that he might ultimately marry into the family. However, the circumstances that made seduction a common feature in the lower classes do not appear to exist among the well-to-do. To the small, wealthy elite, a stringent moral code, lack of crowding, and less pressure to marry seem to have reduced the incidence of premarital sex. Courtship among the elite was so important, and so under parental control, that any notion of bundling was an anathema. Physical intimacy was probably kept to a minimum while parents evaluated the social standing of potential mates.3 Too much familiarity could easily result in the destruction of any prospect of a suitable marriage. According to an 1823 editorial in the Upper Canada Gazette, ‘the degree of female chastity existing in a nation might serve as almost a certain rule by which to estimate that nation’s moral, religious, and political character.’4 By that measurement, the provincial character was low indeed. The editorial, written by ‘Eusebius,’ went on to condemn an unnamed magistrate who had seduced and impregnated a young woman. That this victim was also a near relative added to the horror of

Women of Quality and Lewd Mothers 31

his offence, and the Gazette urged that the offender be publicly censured and shunned by his peers. Such were the perils of seduction among the magisterial class. Polite society dictated that ceremonies be part of the courtship ritual, and formal balls were arranged so that young people could meet each other. The great social arbiter of Upper Canada, Anne Murray Powell, organized many of these dances for the young elite of York. Mrs Powell, the wife of Justice (after 1816 Chief Justice) William Dummer Powell, had been born in England and was acutely conscious of her place in the social hierarchy. During her youth she had to run a millinery shop, and this ‘loss of caste’ was for ever a bitter humiliation.5 Among the elite, pre- or extra-marital sex was not only undesirable, it was ruinous. In 1799 Elizabeth Small was accused by the attorney general, John White, of having had several liaisons with him and others. This outraged Small’s husband, who killed White in a duel. Whatever the truth of the accusations, Elizabeth Small could no longer be accepted by polite society. In an attempt to settle the dispute, LieutenantGovernor Francis Gore invited Mrs Powell and her daughters to a ball in 1807 at which Elizabeth Small would attend. Mrs Powell flatly refused, as she explained: ‘Nothing has taken place to remove the imputations cast on this wretched Female, and nothing shall ever induce me to introduce my Daughters to doubtful characters or to show them, that however violently resented a deviation from Virtue may be at the moment it is discover’d time will overcome indignation and restore to respectable society a Woman who by criminal conduct, had forfeited her right to it.’6 This high moral standard applied to her own family as well. Mrs Powell’s granddaughter left her husband in 1839 and became the lover of a British officer. This was, in Mrs Powell’s view, almost criminal conduct that forever banned her from polite society. At this same period in England, it was noted that servant girls from the country exhibited an alarming moral laxness. Lionel Rose has observed that in England ‘girls who had come from the country, where poverty and overcrowding and rustic earthiness relaxed moral inhibitions, were quite likely to be sexually experienced already; no shame was attached to premarital pregnancy in many rural districts.’7 It was perhaps out of a fear of this attitude that Mrs Powell encouraged her son to marry a proper lady from the local gentry. She worried that if he delayed marriage, ‘he may probably fall into the disgraceful fashion of the country and by so doing, shut the doors to his brothers and sisters.’8 The distinction between the upper and lower classes in sexual matters must, Mrs Powell maintained, be strictly observed.

32

courted and abandoned

The elite could sympathize with an abandoned woman, but only if she had not broken any of the social codes. In 1817 Mrs Powell took in a Mrs Irving, a woman of modest means who had been abandoned by her husband. Mrs Irving was blameless; as Mrs Powell phrased it, ‘the extreme propriety of her manner increased the interest excited by her forlorn and helpless situation.’9 Mrs Powell saw that she and her children received aid and were sent back to her family in England. But charity had its limits. The following year one of Mrs Powell’s unmarried serving girls gave birth to a child. There was no sympathy for the serving girl, and the enormity of her crime outweighed her need: A little flight of Snow enabled me to put the Mother and her Child and a Sister who came to attend her into a Sleigh and send them to her miserable Father on Sunday last. Her determination to conceal the name of the Father of the Infant is uniform; and all who knew her lament the error into which she has fallen the too probable contemplation of a crime never to be forgiven; this is quite a history and a proof of moral depravity.10

Mrs Powell’s reaction to the disgrace of her unmarried servant was typical of the response that a poor seduced girl could expect. At the other end of the spectrum, far removed from the ‘women of quality’ and even from the families of respectable settlers, were single workingclass females. Unlikely to find a living other than subsistence work in service or millinery, a single woman would be unable to support a family. Moreover, her disgrace would likely cause her to lose the precarious living she currently held. Society approved and probably demanded the discharge of a serving girl who bore an illegitimate child. One way of avoiding the infamy of illegitimacy was to cross the border to the adjacent states to deliver the child.11 Undoubtedly, most serving girls were aware of their peril. The woman and her child would become dependent on a grudging charity, for in the early nineteenth century, women were completely dependent upon a man for the family’s survival. Dr John Strachan, the rector of York, recognized as much when he commented on the limitations in using the militia during the War of 1812: ‘Few Farmers have any servants: if the Father therefore be taken from home, there is no person to take care of the stock, to provide fuel and supply the necessary wants of his wife and children.’12 The pregnant, single woman’s predicament was made even worse by the absence of any legal recourse. The seduction tort enabled only a father or guardian to sue for damages to goods; the seduced, on her

Women of Quality and Lewd Mothers 33

own behalf, had no rights whatsoever. Even if the seducer had means and paternity could be shown (both formidable hurdles), the tort was of no benefit to the person most directly affected. The woman would have to face the ignominy of bearing an illegitimate child alone. Even before the War of 1812, there had been growing concern over the number of illegitimate births. In 1810 a bill was introduced into the Assembly for the relief ‘from such charges as may arise from Bastard Children being born within this Province.’13 Despite the absence of a poor law, district justices of the peace provided limited sustenance to illegitimate children through ordering that district funds be used to maintain them in the homes of willing individuals.14 But this support was sporadic at best, and by the 1820s the burden of poor support was cast on voluntary societies and the discretion of the justices of the peace. N.P. Willis, an English travel writer, was astounded by the extent of illegitimacy in Upper Canada in the 1830s. Yet he drew a perverse lesson from it by concluding that ‘children were a valuable commodity’ and that by having children ‘in this irregular fashion’ a woman became ‘a species of heiress.’15 The reality was that unwed motherhood caused humiliation and ruin and the likelihood of a life in poverty. There are no reliable figures for the number or the rate of illegitimate births, but one aspect of these births is remarkable: there was tremendous pressure to simply get rid of the child. As Upper Canada had rejected the poor laws and affiliation proceedings as a remedy, the practice of infanticide was widespread. It has been noted that ‘dead babies, whether found in shallow grave, privies, or under the ice of a frozen bay, were, and are, grim reminders of a brutal side of Upper Canadian life.’16 The York Weekly Register of 1825 remarked that infanticide was not ‘an uncommon offence’ but was usually restricted to the ‘lower classes.’17 Under the prevailing criminal law, the penalty for infanticide fell heavily on the female. In Stuart England, puritanical concern with sexual promiscuity manifested itself in a 1624 statute to prevent the killing and concealment of bastards by ‘lewd women.’ One of the first infanticide cases tried in Upper Canada, that of Angelique Pilotte in 1817, illustrated the severity of the law and the relationship between infanticide and the inadequacy of the seduction tort. Pilotte, a Native woman, was servant to a lady on Drummond Island, Michigan. Shortly after the War of 1812, she accompanied her mistress to France. There, she had a dalliance with a British officer and became pregnant. By August 1817 she came to Upper Canada, where she delivered a child. According to her own confession, she admitted to

34

courted and abandoned

burying the child. She was convicted under the 1624 statute, but the jury strongly urged mercy. Justice William Campbell, who presided at the trial, felt that she had been convicted on ‘clear and sufficient evidence’ and sentenced her to hang. There was much public sympathy for Pilotte, and a petition argued that all she knew was the ‘customs and maxims of her own nation’ and by Native custom she would not suffer death. Her sentence was reduced to a year’s imprisonment.18 Throughout all this, there appeared to be little concern for the dead child. Too fragile to take part in the lives of adults, the infant simply did not count. Certainly, the Pilotte case and those that followed showed that public concern centred around reducing the severity of the 1624 statute, with little concern shown for the victim. The infanticide cases also show the differences between the judges and juries. Just as in the seduction cases, where juries were eager to award damages no matter what the circumstances, so in the infanticide cases, they were anxious to show mercy while the judges attempted to enforce the harsh reality of the law. The jury may have considered that a woman such as Pilotte had no hope of a legal action against the father and that in the circumstances, infanticide was a rational alternative. Succeeding cases showed the reluctance of juries to convict. In R v. Kris (1834) there was substantial evidence that the prisoner had borne an illegitimate child and shortly after its birth had buried it in a field. Justice Macaulay’s jury charge was heavily weighted against the prisoner: ‘The P[risoner] said the child was born alive and died owing to her inability to help it. – If she can cause the death to be that it might not come to light whether born alive or not but concealed she is within the Stat’ (that is, guilty). In spite of the evidence and the judge’s charge, the jury, after a brief deliberation, acquitted Sarah Kris. Even more striking is R v. Graham (1830), where a child had been suffocated by having dirt stuffed in its mouth. The judge, once again Macaulay, leaned towards conviction, for he instructed the jury that ‘there was circumstantial Ev. of the child being born alive and the P.[risoner] having either by exposure or thrusting Earth into its mouth causing its death.’ Despite this evidence, the jury acquitted.19 No matter what the law or the judges said, there was a strong feeling of sympathy from the jurors for the plight of unwed mothers who, under the strain of circumstances, felt compelled to kill their children. The case that first brought the severity of the 1624 statute before the public was that of Mary Thompson in 1823. The facts of her case read as an almost classic account of infanticide in the early 1800s. Thompson

Women of Quality and Lewd Mothers 35

was a poor, illiterate girl who worked as a servant in York. After her arrest for infanticide she denied the crime, but eventually confessed and led the authorities to the child’s makeshift grave. She was tried and sentenced to hang. Because there was some doubt as to whether the child had been born alive, she was eventually pardoned.20 The Thompson case sparked a nine-year movement to repeal the 1624 statute, a movement headed by the leading members of government. In 1831 John Robinson (now chief justice and speaker of the Legislative Council) introduced and guided the passage of a bill which repealed the 1624 statute and required that ‘trials for the murder of bastard children were to proceed like other murder trials.’21 Concealment of the dead child was reduced to a misdemeanour. The repeal of the 1624 statute revealed a growing discontent with the severity of English law, for on the Upper Canadian frontier the act of infanticide could be a logical one when society and the law offered no alternative. The increase in infanticide might be caused by the frequent unavailability of the tort of seduction. Public discontent with the inadequacy of the seduction tort was apparent from the reaction of jurors to the directions given to them by the courts. In 1832 a Gore District jury considered the case of Pearce v. Wilkes in which a seventeen-year-old girl had been impregnated by her employer. During the trial, she maintained that she always intended to return home. Justice James Macaulay realized that under the prevailing law, her case was hopeless. There was simply no evidence that she had been supplying services to her father and he recorded in his benchbook: ‘I am of the op[inion] the case cannot be sustained. I charged the jury to find for the Deft – but that I consider it their duty to find for the deft ... There is no proof of the relation of Master and Servant subsisting at the time of the Seduction.’22 Typically, the jury chose to ignore Justice Macaulay and awarded damages of £250. Defiance of the judiciary now seemed to be a regular feature of seduction cases. The momentum for seduction reform in Upper Canada might also have come from comparisons with the practice in the province of Lower Canada. As the civil code permitted the seduced woman to sue on her own behalf, the courts recognized that a ‘fille majeure et usante de ses droits’ had a right to sue her seducer.23 Although the action was framed as a ‘déclaration de paternité’ instead of common law seduction, the intent of the process was similar. The civil code protected the mother, at least to the extent of giving her a right to sue for the support of her child at the time of birth. As one judge explained, ‘La mère d’un enfant

36

courted and abandoned

illegitime (quoi qu’elle n’a pas été nommée tutrice) a une action contre le père pour le soutien de l’enfant.’24 Not only was this law considered just, it was in the public interest, for without it, women would be forced to rely on abortion or infanticide. This example of giving the person most affected by the illegitimate birth a right of action may have had its effect on the legislators in Upper Canada. This fiction of the law, seduction, could be revamped to provide relief for those at the bottom of the social structure, by giving the right of a lawsuit to the person directly injured. The law could thereby give monetary relief (if not relief from infamy) to a mother who might otherwise contemplate killing her child. The Seduction Act of 1837 Although the rising pace of political agitation in Upper Canada during the 1830s, culminating in the Rebellion of 1837, has claimed attention, the decade’s numerous law reforms have been largely ignored. In addition to the repeal of the 1624 statute, a new penal act was passed in 1833 which became the province’s first step in substituting a correctional policy for the brutal deterrence of the ‘Bloody Code’ of eighteenthcentury English criminal law. Chief Justice Robinson, the leader of the tory faction during the 1820s, introduced the 1833 penal act into the Legislative Council and probably drafted the act. He boasted after its passage that capital offences had been reduced from 127 to less than twenty and, consequently, that ‘fewer offences are punishable capitally with us than continue to be punishable in England.’25 Also in 1833, the legislature adopted a criminal extradition act, and in 1836 the Felon’s Counsel Act gave an accused felon the right to a lawyer and to call witnesses.26 Once again, the colony had passed this act before a similar measure was adopted in England. Of all the law reforms of the 1830s, one had far-reaching effects for women and their offspring. As has been noted, the English poor laws required the father of an illegitimate child to pay for the child’s support through an affiliation order. The parish, which would otherwise have to pay for the child’s support, was the main enforcer of these orders. The English illegitimacy rate was rising in the eighteenth and early nineteenth centuries, peaking at 7 per cent of all births in the 1840s. There was official concern that profligate women were dumping children on the parish to be supported by the poor rates. Others viewed the affiliation actions as ways for unscrupulous women to blackmail men out of

Women of Quality and Lewd Mothers 37

money or into marriage. The Poor Law Commission of 1834 examined this system and reformed the affiliation action to make it as difficult as possible. A putative father could only be sued by the local Poor Law Union at the Court of Quarter Sessions. ‘Corroborative evidence’ of paternity was now required to protect innocent men from false accusations. The clear intent of the 1834 Poor Law was to reduce affiliation actions against fathers and force women to guard their chastity by magnifying the consequences of illegitimacy.27 As a result of this change, an English unwed mother would be placed in a lying-in ward for a few days and then be transferred to an able-bodied ward and forever separated from her child. Consequently, it was a system that generated fear and horror among those who had to depend on it. And it had the desired effects. Affiliation proceedings declined by almost a half, while the destruction of illegitimate newborns became an absolute holocaust of infants. By 1845 Benjamin Disraeli would write that ‘infanticide is practiced as extensively and legally in England as it is on the banks of the Ganges.’28 At the same time that England was placing the burden of illegitimate children on mothers, Upper Canada was moving in the opposite direction. The preamble to the 1837 Seduction Act stated that ‘Whereas in some cases the law fails in offering redress to parents whose daughters have been seduced; And whereas the law makes no provision in this Province for compelling the fathers of illegitimate children to contribute to their support.’29 The assemblymen might have had in mind reversing cases such as Hogle v. Ham, where, in the judges’ view, gross neglect by the parents could excuse the seducer and put the entire burden on the family of the seduced. The Assembly, reflecting the concerns of settler juries, wanted to insure that, notwithstanding the conduct of the seduced girl, her ravisher would at the very least have to contribute to the support of his child. To this extent, the Assembly was remedying the defect in the law that failed to provide for affiliation proceedings. Moreover, they intended to expand relief to the aggrieved family by providing that when a daughter was serving or residing elsewhere for hire, her father or guardian was still entitled to sue. It was the intention of the colonial Assembly to dispense with the feudal restrictions of the inherited common law and compel putative fathers to pay for damages to a person, not to an appendage of a man’s estate. They made this intention clear in section 2, which dispensed with the necessity of proving services and provided that ‘the same shall be in all cases presumed, and no proof shall be received to the contrary.’

38

courted and abandoned

They thereby abolished the very reason for the tort as it had been created by Norton v. Jason in 1653. The thrust of the legislative change was to make the family and not the servant relationship the heart of the lawsuit. The fourth section created an affiliation proceeding in order, as the legislators phrased it, ‘that some check may be imposed upon the unfeeling conduct of persons who refuse to make provision for the support of their illegitimate children.’ Any person who provided food and lodging for an illegitimate child could sue a putative father provided that the mother swore an affidavit of paternity within six months after the child’s birth. The affidavit was, by itself, not definitive proof of paternity and the same had to be shown by ‘legal evidence.’ While maintaining its original form, the trespass for seduction was evolving into something quite different for the 1837 statute marked the transition from viewing personal relationships in terms of property into more modern concerns with what would later be called child support. There is no record of the debates that led up to the Seduction Act, but with the colony’s relatively wide franchise (permitting almost all men who owned land to vote) it is likely that the legislators’ views reflected those of the juries who sat on the seduction cases. At the time of its passage, the act was reviewed by the ubiquitous Mrs Jameson. She disapproved. If anything, she wanted to make young women entirely responsible for their conduct. ‘They are enacting here,’ she noted in dismay, ‘a law which in England has lately been repealed.’ Jameson stressed that women should properly bear the burden and disgrace of an illegitimate child as an inducement to preserving their virtue, for ‘the first step towards our moral emancipation is that [English] law which shall leave us the sole responsible guardians of our honour and chastity.’ Instead of sharing the burden, Canadians should do the English thing and cast the entire odium upon the unwed mother. She felt that ‘The best boon we could ask of our masters and legislators is to be left in all cases responsible for our own actions and our own debts.’30 Historians have also had difficulty with the 1837 Seduction Act. It has been credited with ‘ending or reducing various moral crimes’ when it did not deal with crimes at all but with the extension of a civil remedy. Constance Backhouse has suggested that the act was passed due to pressure resulting from W.L. Mackenzie’s abortive uprising. ‘In the wake of the 1837 Rebellion with its class-conscious discourse and demands, the Legislature of Upper Canada moved to correct this deficiency. The Seduction Act of 1837 stepped in to eliminate the requirement for the proof of service entirely.’31 But this idea of radical dynamics

Women of Quality and Lewd Mothers 39

on the frontier cannot be maintained when the facts are that the act was passed by the legislature and became law on 4 March 1837. The rebellion did not break out until December of that year. Not only was there no temporal connection between the two, at no time did Mackenzie ever make any suggestion that reform of the seduction laws was one of his objectives. If anything, the act was more likely attributable to the tory element in the Assembly (who were in the ascendant in 1837) and who had been largely responsible for the other legal reforms of the 1830s. It was their desire to see the law fairly applied and to see that indigents were properly looked after rather than class demands that motivated the Seduction Act. Constance Backhouse has also suggested that there was a darker purpose behind the act, and that ‘the legislators dispensed with the original basis for the action and in so doing extended the property interests to which fathers had traditionally been entitled at law.’ She has suggested that the act was a patriarchal attempt on the part of the province’s fathers to assert their ‘property interests over her [the daughter’s] chastity as well. The legislation thus fundamentally extended property rights over women.’32 Moreover, this property grab occurred just as single women were about to enter the industrial labour market. According to this interpretation, the Seduction Act was intended to enable fathers to enforce their property rights in their daughters even after they left the family for service elsewhere. Yet this analysis fails to account for the remedial nature of the act – that the removal of the service requirement effectively extended the law’s reach to those who employed women outside the home. Whereas an employer had been immune to any claims arising out of an illegitimate birth, under the new act he had to answer to the seduced girl’s family. In addition, the introduction of the affiliation action to provide sustenance to the unwed mother and her child expanded the number of persons who could seek relief, and extended the nature of that relief to include the necessities of life. Far from being an extension of paternal property rights, the act was genuinely remedial and intended to cure an obvious defect in the law whereby a seducer could escape liability when (in so many cases well before industrialization) a young woman was working outside her own home. Section 4 was a clear indication of the legislators’ intent to extend at least some relief to the mother herself. While the principal benefit remained with the woman’s father (although it was by no means restricted to him; in his absence the mother or a guardian had equal rights), to have changed this system would have required a

40

courted and abandoned

profound change in the law. Yet the 1837 Seduction Act was not an attempt to freeze the legal relationship between fathers and daughters ‘into a feudal proprietary mold’ but a significant step in breaking this mould by discarding the feudal roots of the action in the father’s rights to his daughter’s service. There was also a modern twist to the Seduction Act of 1837, for it was an attempt to refashion the very nature of the action from one based in property into one of injury to a relationship. Twenty-five years after its passage the Upper Canada Law Journal would laud the act as remarkably foresighted, for at least in Upper Canada the seduction lawsuit was based on ‘the relationship of parent and child, [rather] than that of master and servant.’33 Early Canadian legislators were practical men who worked within the framework of existing law. This act must be seen in the context of its times as an attempt, albeit an imperfect one, to assist the injured family by transferring money from the seducer to the family who would have to bear the burden of raising his illegitimate child. Yet even this limited reform was significant when compared with legal changes in the adjacent states. Americans had inherited the tort of seduction and applied it with results similar to Canadians. The basis of the tort was the same – that is, the plaintiff father had to prove that the daughter was his servant. In many cases in the early nineteenth century, American courts performed mental gymnastics to satisfy this requirement. The Illinois Supreme Court even ventured to say in 1846 that the requirement to prove services rendered ‘has latterly been so completely frittered away by numerous decisions both in this country and in England, that hardly any vestige of it now remains.’34 However, four years later the New York Court of Appeals denied this result and ruled instead that proof of service remained an integral part of the tort. In 1846 Michigan became the first state to officially abolish the requirement to allege a loss of services. Other states also moved to reform their seduction laws and, for once, some thought was being put into whether these changes suited modern ways. When New York adopted its Field Code in 1848 to reform and simplify civil proceedings, among its provisions was a new section enabling women to sue in their own right to recover damages for seduction. Drafters of the Field Code were influenced by the British moral philosopher William Paley, who regretted that unmarried mothers were frequently driven to infanticide. In Paley’s view, liability should reside with the ‘authors of such mischief.’ The drafters thought so

Women of Quality and Lewd Mothers 41

highly of his views that a copy of Paley’s comments were appended to the Field Code.35 Eleven states, mostly in the west, adopted the Field Code, ‘almost fortuitously, without amendment, or even discussion’ and with little to no reflection on its likely impact.36 American judges also increasingly recognized that the essential wrong was to family honour and not to any fabricated ‘loss of services.’ In 1883 a Michigan court would uphold a suit brought by a seduced woman as within the law and stated that the reformed seduction provision was intended ‘to give the person seduced the right to recover damages for the injury she has sustained and thus do away with the unjust rule that prevailed at common law.’37 Although Upper Canada had taken the legislative initiative in this area ahead of Britain and the United States in liberating the tort of seduction from common law limitations, the effectiveness of the reform remained moot until it was applied in the courts. The judges’ initial response to the 1837 Seduction Act led to a guarded hope that they would embrace the Assembly’s initiative. In Briggs v. Burnham (1843), Robinson observed that the preamble of the act intended to make the remedy ‘more effectual’ and while it did not create any new remedy, it improved the old one by abolishing the need to prove services. This requirement was illusionary in most cases, Robinson admitted, and the courts were ‘winking pretty hard’ to acknowledge a daughter’s occasional visits as service to her father. The new act abolished this pretence and by doing so it enabled the father to recover damages for the real injury, ‘namely, the injury to his feelings; the disgrace brought upon his family; the disappointment of all hope of his daughter being respectably settled in life, which is a damage in a pecuniary sense, as well as a source of unhappiness.’38 In a case decided a few months later, Whitfield v. Todd, Robinson, in one of his few personal asides, praised the Assembly’s initiative, indicated that ‘there was formerly this evil on the other side, which I have seen, namely, that the remedy of an afflicted parent was sometimes defeated by the circumstance that the girl was at the time living in the service of a master who had himself been her seducer.’ No longer would the inability to prove a servant relationship with the daughter defeat a father or mother’s claim for redress for the disgrace visited upon the family, ‘When I read the whole act, I think I see clearly that the legislature intended not to allow, hereafter, the remedy for the real injury to be lost to the person injured, by reason of the impediment (obligation to prove services).’39 As a result of these decisions, there was optimism that judges and juries would cooperate to see that seducers paid for their actions.

42

courted and abandoned

The year 1837 also saw the outbreak of rebellion in Upper Canada. One of the lasting images of that conflict is of Elizabeth Lount, the strong, self-reliant wife of a condemned rebel, who amassed a huge petition in a futile attempt to save her husband’s life. Yet another woman came into prominence in that year who better represented the coming age. On 20 June 1837 Princess Victoria assumed the throne of England. She would lend her name to an age that would look with severity on the seduced or lewd woman. In the coming years the Seduction Act would be interpreted by the strict moral yardstick of the Victorian age.

4 Feudalism Triumphant

It was a changed world. Mid-Victorian Canada was an unrecognizable place from the rude frontier of earlier days. Vast areas of wild lands had been settled, and farmers looking for new land had to look westwards. Upper Canada (after 1841 Canada West, and after 1867 Ontario) remained an overwhelmingly rural society. However, railways permitted the rapid movement of people and goods and effectively ended the isolation and rootlessness of the frontier. Accompanying the railways was a settled clergy. The 1,474 churches in Upper Canada in 1851 had become 4,094 by 1871. By mid-century, churches were a central factor in community life, and, as J.W. Grant observed, ‘most conspicuously, churches set the moral tone of these communities.’1 Prosperous farmers and shopkeepers developed a devotion to religion and to temperance, and an aversion to the lewd conduct of former years. By 1881 less than 1 per cent of Ontario’s people claimed no religion; this Protestant culture of Victorian Canada penetrated ‘the entire social system, to shape the very consciousness of society.’2 The movement to assert social control was in full charge by the 1840s, with new laws to enable municipalities to limit the number of taverns and enforce observance of the Sabbath.3 A pervasive Methodist discourse fostered a new domestic ideal and young men and women were both advised that they could avoid the perils of the world by uniting in matrimony. Unwed mothers knew that some neighbours would turn away, and others would whisper behind their backs. If they were Pres-

44

courted and abandoned

byterians, they might well be required to make a public confession as a rebuke for fornication. Shaming punishments such as these occurred in Ontario as late as the 1880s.4 It is therefore not surprising that the reports of legal cases no longer carry an argument such as J.B. Macaulay’s in 1825 that permitting casual sex with a daughter was merely the ‘custom of the country.’ Such a shameful proposition would have been abhorrent in mid-Victorian Canada and unacceptable to a people who treasured respectability as a prime virtue. It has been estimated that the number of illegitimate births as a percentage of live births in English Canada did not exceed 5 per cent at any time in the nineteenth century, and if so ‘the incidence of illegitimacy was significantly lower in Canada than throughout most of contemporary western Europe.’5 Yet even if the incidence of illegitimacy was relatively low, to what extent was a morally conscious society prepared to accept the unmarried mother? While the country and society had changed, the question remained as to whether judicial attitudes had altered sufficiently to recognize the 1837 attempt to recompense the damaged family. For his part, Chief Justice Robinson was prepared to recognize the underlying rationale of the 1837 Seduction Act to extend the seduction remedy to insure that the seducer paid for his rashness. This attitude may have been a reflection of his sponsorship of many of the significant reforms of the 1830s, such as the Capital Punishment Act of 1833. It has been suggested that conservatives fostered these changes to augment their control of society and because better social policy made for more effective government control.6 However, in the case of the seduction laws, Robinson’s sympathies with the settlers’ concerns could have more to do with his experience in handling seduction cases at the district assizes. As a result of these experiences, he was fully conscious of the ignominy that would befall the family of a disgraced girl. In his decisions, he indicated his agreement with the Assembly’s intentions to eliminate the fiction of the law, the proof of services, and compel a seducer to make some small recompense for the grievous loss of family honour. Yet there were limits to judicial sympathy. In Kimball v. Smith (1847)7 a jury awarded damages for seduction despite evidence which showed that the victim was a ‘young girl of very indifferent character’ whose child might or might not have been fathered by the defendant. In these circumstances, even Robinson felt constrained to put aside the jury’s award of damages, and rule that as the girl’s pregnancy could not be proven to be caused by the defendant, the case must be dismissed.

Feudalism Triumphant

45

There was also a question as to whether the girl had been supplying services, and to some extent, he felt that the law remained unchanged ‘with regard to loss of service from the seduction as the foundation for damages.’ Two years later, in L’Esperance v. Duchene (1849),8 the court had a much clearer situation before it. Susanna L’Esperance was not a wanton creature such as Miss Kimball but a respectable girl living with the family that had raised her since infancy. She had not lived with her father’s family for more than twenty years. After her seduction, but before the birth of her child, an action was started in the name of her father. Robinson readily agreed that the action could not lie for mere intercourse. ‘Few things, perhaps, could be less desirable, than that parties should be encouraged to suppose that an action for seduction could be maintained upon the mere proof of criminal intercourse, not followed by the birth of a child, not even by pregnancy.’ The public should not be entertained by cases relating salacious details of love affairs gone awry, but deal with serious issues arising from pregnancies out of wedlock. Robinson felt that this was precisely the situation the 1837 act intended the remediate, ‘since our statute 7 William IV Chapter 8, the grievance which the law regards and desires to afford redress for, is the injury to feelings, the mortification, the domestic unhappiness, the blighted hopes, which follow the seduction.’ While the act did not create a new form of action, it made the old one more effective for ‘it provides further, that whether the daughter be living at home or abroad at the time of being seduced, her parent may equally sustain an action for the wrong; in other words, the statute enables us to look upon the relation of master and servant as existing in all such cases, for the purpose of this action.’ Therefore the jury was entitled to make a substantial award of £200 in damages as ‘they had a discretion to give damages for what the law regards as the real injury.’9 However, there were cracks appearing in the judicial resolve to treat the 1837 act in a remedial manner. A different view was expressed by Justice William Henry Draper, an English-born tory who had served as an articled clerk for Robinson in 1828. He did not have his former master’s experience in civil litigation, nor his sympathy for a family coping with the disgrace of an illegitimate birth. Moreover, he entertained a deep suspicion of the motives of the women who appeared before him in court, for he felt that the seduced woman would not have yielded ‘if the seducer would not have been a good matrimonial connection, or a good mark for damages if he could not be coaxed or frightened into marriage.’10 In L’Esperance v. Duchene, Draper parted

46

courted and abandoned

company with Robinson and held that the loss of service was, since its origins in England, ‘the very gist of the action’ and that the 1837 act did not ‘have the effect of superseding the necessity of proving the loss of service.’11 The only effect of the act was to presume that the relationship of master and servant existed in the parents; however, a successful recovery of damages still had to be shown by a loss of services. Justices Macaulay and McLean, Robinson’s former colleagues from frontier days, sided with the chief justice and the more open interpretation of the act prevailed, at least for the moment. Both Robinson and Macaulay viewed the act as a much-needed improvement, and a benefit to the aggrieved family as a whole. Macaulay, whose concurrence with Robinson in Kimball v. Smith was unreported, later refined his view that the action had become a family rather than a property issue. In Lake v. Bemiss (1854) he ruled that ‘the statute has virtually changed the nature of the action, from one resting on the relation of master and servant to that of parent and child, and in effect to entitle the latter to an action for seduction of his or her child.’12 In the only case that discussed the origins of the 1837 Seduction Act in detail, the majority of judges in Cromie v. Skene (1869) described how the act was intended to address specific problems native to Upper Canada. According to Justice John Wilson: The struggles of the earlier settlers for existence, frequently compelled the younger members of a family to leave home and engage in domestic service; but those in whose employment they engaged were of the same class, and usually treated their servants as members of the family, and in their associations held them as equals. Nor was it unusual for the younger members of families from the British Isles, both male and female, to precede their parents and settle here, betaking themselves to domestic service till they had bettered their condition and acquired experience of the country.13

Justice Gwynne joined with him and added that the policy designed for frontier days was still very much applicable. During the 1830s and 1840s a large influx of British immigrants had boosted the province’s population. This phenomenon greatly benefited both the mother country and the colony: We cannot overlook the fact that it is part of the policy of the Government of this country to invite young persons of the female sex to leave the

Feudalism Triumphant

47

protection of their parents and come from abroad to make this country their home: it would be a painful thing if we should be compelled to pronounce a judgement, which would have the effect of declaring that, notwithstanding such invitation, they have not equal protection by our law with the children of parents residing among us, and that our law abandons them, without redress, to the danger to which the virtue of young females is most exposed, namely, the seductive advances of the members of the family of the persons to whose care they may be confided.14

However, there were fundamental disagreements among the judges about how far they should go to improve access to the courts in seduction cases. In Cromie v. Skene, Chief Justice John Hawkins Hagarty disagreed with his colleagues and felt that a parent who remained in Britain lost all right to sue. Any parent who permitted a child to go abroad ‘and leave a daughter of fifteen or sixteen years of age far away from his guidance and protection, shall forfeit all claim to have damages awarded to him for the injury presumed to be done to him by her seduction. Looking at the general aspect of these actions, it is perhaps as well for the morality of the community that parents so acting should have no legal remedy.’15 Two opposing camps were emerging among the judges. One fostered a remedial application of the act to protect the family’s integrity, while the other was concerned that a too liberal interpretation could not bode well for the morality of the community. Section 2, the provision that purported to abolish the need to show services, emerged as the judicial battleground. The section stated: ‘That upon the trial of any action for seduction brought by the father or mother, it shall not be necessary to give proof of any acts of service performed by the person seduced, but the same shall be in all cases presumed, and no proof shall be received to the contrary.’ Despite the majority opinion against him in L’Esperance v. Duchene, Justice Draper remained the pillar of the conservative interpretation and persisted in the view that the 1837 act had changed nothing. Services had to be demonstrated in order for a seduction claim to succeed. Moreover, he made it clear that he felt that the testimony of all seduced women was suspect and should be closely scrutinized. During the Toronto assizes of 1857 he had the opportunity to impose his views on one litigant.16 Charlotte Chapman had emigrated to Canada with her husband in 1853. Her husband died on the passage and she went to live with the defendant as a housekeeper. He seduced her and she bore a child which

48

courted and abandoned

died shortly after birth. At trial, Draper instructed the jury that the case could not succeed as ‘it was necessary to prove service to sustain the action.’ Stubbornly, the jury turned a deaf ear and awarded her father £150. When the defendant brought a motion to dismiss the verdict as contrary to the law, Draper used the opportunity to overrule the jury on the basis that section 2 was limited to unmarried females and that clearly excluded a widow such as Charlotte. Throughout the 1850s and 1860s Draper would give the seduction law the narrowest possible interpretation. In 1859 he denied the administrator of an estate the right to carry on an action on behalf of a deceased parent. and in Smart v. Hay (1862) he considered section 2 and concluded that ‘the necessity of proving the loss of service, however, remains unaffected by our statute.’ Never one to hide his convictions, Draper freely admitted in an 1865 decision that ‘I am not inclined to extend the operation of the Seduction Act by what may be deemed a large and liberal construction. My own observation as a judge has by no means led me to think that it has had a favourable influence on female morals.’17 If that were possible, it might even make women worse by dangling before them the prospects of a cash recovery for a pregnancy out of wedlock. Draper was at one extreme, and his brother judges were usually more sympathetic to the plight of the unwed mother. The conflicting views of the judges were clearly irreconcilable and would have to be settled by a definitive judgment from the newly created appellate division, the ‘Court of Error and Appeal.’ Almost thirty years after its passage, the 1837 statute was given final form in Westacott v. Powell (1865).18 Many of the judges in the appeal court – for example, W.B. Richards, John Hawkins Hagarty, and Oliver Mowat – were the political reformers who had swept away the oligarchy of colonial times and established responsible government. Yet as far as the common law was concerned, they were not revolutionaries, for they upheld the traditional application of seduction. Richards felt that the law’s only effect was to enable a widow to bring the seduction action in lieu of a deceased father. The plaintiff’s obligation to prove loss of services was as true after the 1837 statute as before. To reach this conclusion, he cited the Kimball v. Smith case of 1847, where there had been strong suspicion that the defendant had not caused the pregnancy. Yet despite these unique circumstances, Richards felt that this case was of general application. Comments by Justice Jones in Kimball v. Smith encouraged Richards in the conviction that there was a body of precedent supporting the principle that nothing had really changed and

Feudalism Triumphant

49

that ‘in such a case, before the action can be sustained, some loss of service arising from the defendant’s wrongful act must be shown.’ It slightly troubled Richards that this conclusion seemed inconsistent with the statute, for it ‘may involve some logical absurdities, such as requiring some loss of service to be shown, where the statute says it shall not be necessary to give proof of any act of service.’19 Two of the judges were afraid that the end result would be a total absurdity. Upper Canada’s vice chancellor, John Godfrey Spragge, recognized that the majority opinion effectively defeated the attempted reform: ‘I think that the preamble and the sections of the act to which I have referred, all manifest an intention to abrogate the technical ground upon which the action was previously founded.’20 Justice Adam Wilson delivered a lengthy rebuttal to the majority decision. Throughout his public career, Wilson had been an advocate of law reform, and had been a member of the task force to revise and consolidate the province’s laws. On the bench, he demonstrated a refreshing inclination towards independent thought and dissented from the majority on many occasions. At one point, he even publicly commented that ‘the judges ought to be curious and subtle to invent reasons and means to make acts effectual according to the just intent of the parties.’ In Westacott v. Powell, Wilson felt that the intent of the legislation was readily apparent: ‘I treat the statute as dispensing, by influence irresistible, with proof of loss of service as well as of acts of service.’ But if service was dispensed with, did this not result in a situation in which a parent was entitled to sue for the mere carnal knowledge of his child? Wilson conceded that this was the inevitable result, but exactly what the Assembly intended: ‘the remedy is given to the parent for the mere seduction of his child, and the act of fornication, if it constitutes seduction, is made a punishable offence.’ The majority’s preservation of the obligation to show service was, in Wilson’s view, ‘to repeal the statute, and to revive the fiction of service, but not as before, to afford a remedy; but for the mere purpose of defeating redress for the only actual wrong which has been done, (loss of family honour) and which always was the only ground upon which damages were awarded.’ Justice Wilson admitted that the absurdity of having to prove service (such as making a cup of tea) was not creditable to the law, and furthermore, ‘I can see no reason why the parent should not sue, then, and if so, the remedy is, as I think the statute has made it, for the mere act of seduction.’21 Yet in a revealing aside, he suggested that even this reformed tort did not go far enough to protect women: ‘The law would

50

courted and abandoned

seem to be very defective in leaving wholly unprotected the chastity of women, excepting by this incongruous and very unsatisfactory mode of redress, in which the person not directly wronged is the person who gets the recompense, and the person who is the most wronged recovers nothing.’22 Wilson remained an anomaly: the majority of judges opposed even the limited reform of the 1837 Seduction Act. Why were so many Canadian judges hostile to this common sense approach? It may be that there was a ‘gnawing uneasiness over the liberated sexual behaviour of some unmarried women.’23 There was a frequently expressed concern over the number of seduction cases that regularly came before the courts and there was a distinct suspicion that women could manipulate the action to extort money in cases in which they had been the sexual aggressors. But perhaps the main reason for the opposition to reform lies in the legislature’s failure to take the decisive step and abolish the seduction tort altogether. The Assembly could have replaced seduction with an entirely new action to provide a direct benefit to the seduced woman. Yet their reverence for English common law was such that they preserved the feudal action. When Robinson observed in 1849 that the 1837 act ‘deals with the action of seduction as already well known to the law’24 he was merely stating the obvious, that the tort that had existed since the 1650s was merely being modified. As the bold step of replacing one action with another had not been taken, those judges who limited the scope of the seduction action to cases of a loss of services were not entirely wrong. While Justice Wilson could argue for a generous interpretation to provide relief whenever a daughter had been seduced, the majority’s opinion to limit relief to situations of loss of services reflected a conservative viewpoint that was applied generally whenever it was suggested that common law rules be altered. This tendency towards a conservative interpretation of the common law pervaded British North America. In 1852 Prince Edward Island became the first colony to permit the seduction action to be brought by the seduced woman.25 This innovative statute went well beyond Upper Canada’s 1837 act by recognizing that compensation was due to the person injured. Yet the action still remained one for the loss of a servant according to the Latin maxim, per quod servitium amisit. Therefore, when the provincial Supreme Court reviewed this act in 1854 in McInnis v. McCallum,26 it rejected a liberal interpretation, ruling that ‘the substance of the second section is merely that the Jury, in assessing damages, shall be guided by the same principles as before the passing of the

Feudalism Triumphant

51

Act.’ Once again, it has been suggested that there was an ulterior purpose to this decision, that ‘the judiciary was deliberately reasserting the paternal claim in direct opposition to the legislative intent to transfer the right of action to the woman concerned.’27 Yet it is far more likely that, rather than a conscious attempt to reinstate the father as a central authority figure, these cases reflect the inherent inertia of the law; as long as the legislatures retained the seduction tort as a remedy for a loss of a servant, the courts would interpret it according to its feudal precepts. This approach seems consistent with the staid tendency of the nineteenth-century courts to apply common law principles until they were definitively changed by the legislature. Thanks to judges such as Draper and Hagarty, the fiction of loss of services had triumphed, and despite the 1837 statute, a parent suing for the seduction of a daughter would have to demonstrate this loss. Notwithstanding this brake to the action, seduction remained one of the most popular torts in mid-nineteenth century Canada West. At least one, if not several cases, would appear in each session of the district assizes. Appeals on motions to dismiss successful seduction claims filled the Upper Canadian law reports. Indeed, so pervasive are seduction cases during the 1840–70 period that they tend to show the other side of the increased religiosity of the province. Despite the profusion of established churches, premarital sex continued to be widespread and, as the number of cases show, damage awards were still substantial. In twenty-eight recorded cases between 1840 and 1859, juries awarded an average of £100. In the decade of 1860–9, out of thirty-four cases, the average award was $340, and despite Westacott v. Powell, only two cases were dismissed (see appendix A). And court proceedings were only one aspect of the seduction claim. Now that the seduced woman could bring an action in her own right for the support of the child, she had a powerful weapon at hand to compel a seducer to settle out of court. Indeed, many of the cases probably never made it as far as the district assizes, but were quietly settled after the affidavit of paternity was filed. In 1869 one lawyer recorded a typical arrangement: ‘Settled suit for seduction against Mr Atkinson of Cookston for $100, $40 paid to the girl at the time $5 towards costs.’28 The Middlesex fall assizes of 1877 are an illustration of the popularity as well as the profitability of seduction claims. The assizes, which featured an unusual seven seduction cases, also gave a glimpse of the courtship rituals which persisted in rural Canada. Hannah Miranda Colwell had kept company with Henry Nichol for four and a half years.

52

courted and abandoned

They both came from farming families and both went to the same church. Miranda did not go to balls or see other men and her mother confirmed that ‘he [Nichol] was accepted as Miranda’s lover.’ It was only after Nichol’s promise of marriage that the couple had sexual relations in the Colwell house. However, Nichol’s sister Abigail turned him against Miranda and her family. To Nichol’s lawyer, Miranda maintained that a lengthy courtship such as this was not unusual and that ‘Sometimes the people in the country court as long as five or six years.’After Miranda’s pregnancy became apparent, her parents confronted Nichol and asked why he would not marry their daughter. He replied: ‘I can’t and I shan’t.’ To show that love and business were never far distant, Nichol explained to the Colwells that he owned fifty acres but would lose an additional one hundred acres of his inheritance if his family knew that he married Miranda. In the circumstances, he would just as soon lose the fifty acres. Nichol did not testify and indeed there was nothing for him to say. He was responsible for the child and he realized that the jury would hold this against him. The only question was how much. His lawyer argued for a reduction in the damages, ‘principally in the interests of public morality as, to his mind, if large damages were given in this case, similar amounts might also be expected to follow in the six cases yet to be tried.’ It is a measure of how the jury understood the custom of the country that their award of $500 might have bought a fifteen-acre farm.29 As well, it was a vindication for Miranda, a confirmation of her value and Henry Nichol’s vice.30 In another case, James McGeary, a respectable carpenter, had courted a Miss Harper for many years and seduced her under a promise of marriage. In his charge to the jury, Chief Justice Harrison leaned heavily in Harper’s favour, and they responded with an award of $600. Also at this assizes was the case of Eliza Hamilton, a girl of good family also seduced by a scoundrel under a promise of marriage. Her father testified that one of Eliza’s seven sisters had ‘so felt the stain on the family name that she had since left the paternal home.’ As occurred at all the claims heard at these sittings, there was no defence and the chief justice, Robert Harrison, ‘was unusually severe on the conduct of the defendant; said there was no excuse for it, and as he was in a good business, it would be for the jury to assess the damages as high as they thought the plaintiff had a right to.’31 A Victorian jury needed little urging to do the right thing for the wronged woman and the damages were a crushing $1,000. There is no report on the remaining four claims and it is likely that the defendants saw the trend and quickly made the best settlements they could.

Feudalism Triumphant

53

Cases from the Middlesex assizes such as Eliza Hamilton’s or Miranda Colwell’s show how seduction trials satisfied a number of public goals. A family’s honour was vindicated, a woman’s virtue was at least partially redeemed, and the author of the misfortune was publicly chastened. While a marriage would likely have been the most desirable outcome, the seduction trial met some of the shared cultural objectives of Victorian Canadians. The extent of illegitimacy in Canada, and the frequency with which it was publicly exposed in the courts, seems greatly at odds with the heightened religiosity of the society. Moreover, it appears in contrast to the ‘Cult of True Womanhood,’ which was gaining popularity in popular consciousness. To Victorian society, women were supposed by nature to be purer than men. That is, women lived in separate spheres in which their piety and submissiveness should not be disturbed or sullied. Any aspersions on a woman’s honour was especially odious as it destroyed this aura of purity.32 While among the upper classes the notion of the wife as the ‘angel in the house’ acting as a moral influence on her brutish husband may have existed, it is questionable how applicable these notions are to Canada West after 1841. The host of seduction cases is only one indication of the pervasiveness of premarital sex and seems to belie the ideal of feminine purity. It has been suggested that ‘the majority of women in Upper Canada could not because of personal circumstances emulate such standards. Others clearly choose not to do so.’33 Common women, much like the common men of the period, lived lives of simple pleasures and hard work. It is therefore not surprising that any notion that women lived in a separate sphere of domestic bliss seems at odds with the reality of the period. Another facet of mid-nineteenth century life was that whenever premarital sex resulted in a pregnancy, infanticide often seemed the best alternative. Newspapers regularly reported the finding of dead newborns, usually after a clumsy attempt to hide the evidence. On 11 May 1853 the Hamilton Daily Spectator noted: As we stated last week, there were two cases of child-murder. This crime, unfortunately, is of frequent occurrence. The details we consider unfit for publication. Both the females were found guilty of having committed a misdemeanor only. It might be a question worthy of consideration, whether some good would not result from a law giving power to place the father, and too often the seducer of the female in the dock with the unfortunate mother in cases of this kind, the same punishment being meted out to the one that might be meted out to the other.

54

courted and abandoned

Six years later the situation had not improved; in the first three months of 1859 the same newspaper reported two instances of newborn bodies being found in makeshift graves. Unmarried women, usually domestic servants, would give birth in as private a place as possible, such as a barn or a field; frequently neither the mother nor the child would survive the ordeal. It is likely that these women at the very bottom of the social ladder could not even afford the vindication offered by a seduction trial. Some unwed mothers would go to extremes to avoid the infamy of illegitimacy. Before she drowned herself in 1884, Flora Tripp confided to her sister that she was pregnant and did not know where to turn. At the ensuing inquest, the jury did not consider issues such as child support or how Flora could have lived with her child in dignity. Instead, they focused on who bore the greatest moral blame, recommending ‘a law being passed to make seduction a criminal offence.’34 Of course, not all women were sensitive to public disgrace. When it came to the determination of who should pay damages or support for a child born out of wedlock, the law reports are full of women who openly divulged details of their sex lives in order to enforce their (or their father’s) rights. This is especially apparent in the affidavits filed in affiliation proceedings. Women who anticipated bringing the seduction action (through their fathers) frequently invoked section 4 of the 1837 statute by swearing an affidavit of paternity. This affidavit, which had to be sworn within six months of the birth of the child, was the essential first step for any claim for child support. All cases on seduction still referred to the action as being brought by the father, and the affidavits were likely sworn to force an out-of-court settlement. Affidavits of paternity or affiliation were frequently filed by women, where they publicly declared with whom and when they had sex. These most unVictorian declarations would surely be public knowledge within a few days. Yet the surviving records of the affidavits for Newcastle District (1837–49), Leeds and Grenville (1837–93), and Elgin County (1880–99) indicate that women were not afraid to risk their purity, but rather ‘the rural Ontario family of the mid and late nineteenth century was sufficiently elastic to absorb bastardy, and the rural community seems to have accepted it as well.’35 The Kingston British Whig commented in September 1888 that in North York nine seduction claims had arisen in two years and all but one had been settled before trial. While only seven affidavits were filed for Northumberland and Durham counties in the 1837–8 period, by 1860 seventeen were filed for that year alone. It was a

Feudalism Triumphant

55

trend that seemed to accelerate during the century, for in the united counties of Leeds and Grenville forty-eight affidavits were filed for the years 1879–81.36 The number of these affidavits shows the true extent of seduction and the fact that the vast majority were compromised after the filing of the affidavit shows that most seducers saw the wisdom of resolving the dispute as privately as possible. Even though most would agree that the seduction tort served a useful purpose, the willingness of juries to award damages, even when the woman seemed to have been the instigator, was a phenomenon that exasperated the judges. In Cane v. Reid (1851)37 the plaintiff’s daughter originally claimed to have been raped by her employer, William Reid. When the criminal allegation threatened to subvert her civil action, she changed her story to one of seduction by persuasion. Her story became even more implausible when evidence mounted that she had frequently had sex with another servant, one Stepney. She even admitted telling others that Stepney was the father of her child. The defence brought out further evidence that the plaintiff’s father was upset, not at his daughter’s dishonour, but that it had occurred at the hands of the impecunious Stepney. A reliable witness overheard a conversation wherein it was admitted ‘that Stepney was the father of the child, but it was arranged between them that the child should be laid to the defendant, as he was a man of property, from whom something might be obtained.’ But even with evidence this flimsy the jury still awarded £100 in damages. Cases during the 1850s indicated almost a brazenness among plaintiffs to exploit sexual misconduct for profit. In McKay v. Burley (1858)38 the brother of a Mrs Berry complained of his sister’s seduction eight years previously by Burley. At the time of the seduction she had been over thirty while her seducer was nineteen! Since the alleged disgrace, she had married another man. Hagarty counselled the jury that the plaintiff’s claim was spurious and the case itself was ridiculed by a local newspaper as ‘the most ridiculous affair of the kind probably ever brought before a Court of Justice.’ Even so, the jury awarded nominal damages. This result did not survive review by Chief Justice Robinson, who felt that ‘the action was really an absurd one, as the jury appears to have thought, for they gave only 25c. damage. The seduction took place many years ago, and the girl or women alleged to be seduced was about double the age of the defendant.’ While Victorians could pride themselves as moral creatures and elevate women as paragons of virtue, the above examples, among many seduction actions, indicate that women were not timid in discussing

56

courted and abandoned

their sexual activity and that, in many instances, they were eager to divulge the most intimate details of their sex lives to advance a monetary claim. A study of contemporaneous American love letters reveals that an erotic intensity existed among middle-class men and women that denies the Victorian stereotype.39 It is also true that in Victorian Canada, premarital sex frequently remained an important factor in many peoples lives. As a result, the women beloved of Victorian fiction cannot be found in the reports of the seduction cases, if indeed, they existed at all.

5 Rewarding the Insinuating Arts

One of the most popular and reprinted stories in the North American press in mid-century was of Lucy Dutton, the girl ‘with the seal of virtue upon her heart and a rose-leaf on her cheek.’ She has the misfortune to encounter a city slicker and loses her innocence to him. She is young, ‘very untaught,’ and therefore no match for the city youth. The child of their union dies; Lucy goes mad at the funeral and then dies herself.1 Lucy had lost the guiding star of virtue, and her insanity and death seemed a fitting consequence. Although popular, this story seems to bear little resemblance to the reality apparent in the seduction cases. For one thing, reports show that many women in rural Canada were far from innocents but had sexual motivations matching those of their male counterparts. When Susannah Dodge’s father brought a seduction action in 1859, the defence adduced a number of young men ‘to testify that the character of the young woman was of the worst description.’2 In 1858 Livinia Maselles testified that she had intercourse with her seducer at various times and places. For the defence, a local justice of the peace testified that Livinia never swore the usual affidavit of paternity naming the father. Moreover, others commented on Livinia’s ‘general reputation for chastity ... it is not very good ... I know she has had criminal connections with some other person besides deft.’ Under cross-examination, the witness reluctantly testified that he had intercourse with her at ‘different times – not very often.’3 Despite evidence that this seduced woman fell far short of the standard of ‘true woman-

58

courted and abandoned

hood,’ her parents received an award of $150 from the jury. Livinia was far from child-like, nor did the loss of her virtue lead to her derangement; if anything, it had stiffened her family’s resolve to seek revenge. The eagerness of claimants to profit from seduction shocked some judges. In Ryan and Wife v. Miller (1861)4 the daughter had been impregnated by one man but a few months later married another. The defence relied on the principle that the child was the legitimate offspring of the woman’s husband. To counter this, the plaintiff argued that the child was really a bastard, the child of someone other than the mother’s legal husband. The daughter so testified and at trial her mother received $300 damages. On a successful motion to dismiss, the judges held that it was a violation of public policy to ‘receive the evidence of the mother to bastardize her issue,’ and they struck out all evidence of the daughter’s premarital sex. But with the prospect of $300 before her, the mother again went to court and this time based her claim on hearsay comments that the defendant was the child’s father. Even with this limited evidence, she was still successful, but for a reduced amount of $40. This was still too much for the court, who dismissed this judgment as well.5 Bastardy was (or should be) a great dishonour, and the judges could not permit a case to be based on it; ‘the grandmother is seeking to prove what the daughter is wisely forbidden to do, to bastardize the issue born in wedlock.’ Justice Hagarty dismissed the second case as ‘one of a most revolting kind, wholly opposed to the merciful policy of the law.’ Even so, persistent litigants would go to court and allege seduction on the most tenuous evidence. This shallow opportunism was the other face of seduction – the opposite to those cases where a ill-used women was advancing a justified claim against a wrongdoer. Was Emma Brook of Brantford a virtuous woman who deserved recompense? When a former lover’s marriage soured, he again took up with Emma to the extent that during the year 1871 he used to take her to the Catholic cemetery and have sex with her there. To escape from shame, Emma moved to Battle Creek, Michigan, to have his child. In cross-examination, she admitted that in return for an evening in the cemetery, Hawkins, who was a married man with three children, had given her $14. Hawkins confessed to having had sex with Emma Brook in 1870 and that he had paid about $1,500 in support of the child but could pay no more. His lawyer pleaded that Emma’s conduct was more akin to prostitution than seduction and ‘that it was a clear barter for so much’ and that the ‘sin was greater on the part of the plaintiff.’ Nevertheless, Emma’s mother benefited from the jury award of $800.6 Defendants’ lawyers

Rewarding the Insinuating Arts

59

must have been hardened to defeat, for it seemed that no matter how improbable the victim’s story, she would be believed. In 1876 a Miss Longworth appeared in court at her parents’ insistence and, with some reluctance, named her former employer as her seducer and admitted, for good measure, that she had filed affidavits which were ‘a tissue of perjuries.’ The defendant indignantly denied ever having sex with her and adduced evidence that the girl had admitted to relations with an American who had fathered her child. There was further evidence that when the American refused to marry her, her parents had initiated the seduction claim. In light of this, Justice Gwynne strongly urged the jury to dismiss the case, but ‘as juries are so apt to do, they evidently made a compromise of it and gave plaintiff a verdict for $200.’7 It is apparent from cases such as Miss Longworth’s and Emma Brooks’s that the Victorian jury was prepared to accept the seduction story no matter how implausible its details. But at a minimum they would, as Justice Gwynne observed, compromise on damages, at least when the female had been carrying on a lengthy affair and had not been misled by a marriage promise. In one 1865 case it was observed that ‘the parties had not been long acquainted and there was no promise of marriage.’ Damages were a paltry $100.8 This was accepted as demonstrating the girl’s partial guilt for the affair, or at least a moral flaw that should reduce the penalty. Technically, it was irrelevant whether or not the seduced person was pure, for the suit was brought for the loss of a servant and the morality of that servant should have been inconsequential. Neither should the presence or absence of a promise of marriage have been of any consequence. But it was, for the very nature of the seduction action was so based on notions of family honour that the character of the victim inevitably became a factor in the award of damages. When Mary Ann Charter’s mother sued her daughter’s former employer for seduction and claimed $2,000, she insured that her daughter’s virtue would become an item of public comment. According to a local newspaper, the evidence disclosed that not only had Mary Ann had the occasional lapse in goodness, she had become ‘one of the women about town’9 and while the claim was allowed, it was reduced to a mere $10. It was also difficult to give credence to Elizabeth Shuter’s case. Her action (ostensibly brought by her mother) alleged that the defendant had seduced her on a regular basis to the extent that she had borne two children by him. Under cross-examination by B.B. Osler she was compelled to admit that six years previously she had borne another illegitimate child. Osler

60

courted and abandoned

explored her relationship with her mother and determined that ‘for some years her mother had cast her off.’ After two hours of deliberation, the jury returned with a verdict for 25 cents, an amount that reflected their conclusion that Elizabeth Shuter simply had no virtue to lose.10 It sometimes appeared that the sole purpose of the seduction trial was to judge the virtue of the seduced woman. Indeed, it was a standard defence ploy at these trials to argue that the woman was promiscuous. At the Simcoe fall assize of 1869, of the three seduction cases tried, the defendants’ lawyers argued that ‘the girl was loose in her morals’ or that ‘the girl was a free and easy character.’11 To no effect, as all three claims succeeded. Yet at times the allegations that the female was the promiscuous one seemed far more than courtroom tactics. At the Bruce county assizes of 1875, Catherine McCreary presented herself as a demure young lady, and recited the standard story that the defendant, Grundy, had seduced her and caused her pregnancy. For his part, Grundy brought forward a reluctant witness, Isaac Meek, who swore that he had been Catherine’s lover and that she had accused him of fathering her child. He was prepared to present additional evidence of Catherine’s bad character when the judge put a stop to the proceedings. In his view, Catherine’s chastity (or lack thereof) was of no moment to the court. He further advised the jury that persons such as Meek had a perfect right to refuse to answer questions which tended to bring them into public odium. Nevertheless, the jury must have been swayed and, while they found in Catherine’s favour, they gave her a low award of $100. On a motion to quash this decision, Christopher Robinson, the son of the chief justice, argued for Grundy that the jury’s award reflected their conclusion that Catherine was already soiled goods. Any man facing a seduction accusation was already facing an up-hill fight, Robinson argued, and he was entitled to bring forward evidence of the girl’s character. Chief Justice Robert Harrison, the same judge who at the Middlesex assizes of 1877 had censured those men who had abandoned the women they had impregnated, would use the case of McCreary v. Grundy to unburden himself of his own thoughts on seduction actions. Harrison was one of the most erudite and introspective figures of the period and while still an eighteen-year-old law student, he had begun to write on legal issues. After his admission to the bar, he wrote a digest of leading cases and thereafter wrote articles and comments on legal issues.12 He began his decision on Catherine McCreary’s case by quoting from Lord Hale’s dictum on rape that it was an accusation

Rewarding the Insinuating Arts

61

easily made, hard to prove, and even harder to defend, and that ‘of the cognate action of seduction it may be said it is an action easily brought, easily proved, and hard to be defended by the party accused, though never so innocent.’ He was at a loss to understand the jury’s verdict of only $100 for if a man was truly guilty of seducing a woman, he should be soundly punished, and ‘If not guilty, he should be acquitted. The law ought not to allow damages to be given for mere acts of prostitution.’ In his view, the trial judge had improperly curtailed testimony as to the daughter’s chastity, for this was a central issue and relevant to the amount of damages. He quoted with approval from a text that the damages should be commensurate with ‘... the character of the wife or daughter [who] has been previously unblemished or profligate.’13 It seems impossible to reconcile the above cases with the ideal of women as passionless creatures, the innocent victims of male lust. The basis of female moral superiority was based on the characterization of women as non-sexual creatures. But this ideal could not hold up when Livinia Maselles or Elizabeth Shuter appeared before the courts. The Lucy Duttons of literature were fictions and had little resemblance to their active, passionate sisters in the real world. It was perhaps because of this unpleasant truth that Canadian judges were becoming increasingly uneasy about publishing the facts behind seduction allegations. In the case of Susannah Dodge, the judge commented that the evidence was ‘too gross for publication.’ In Anderson v. Rannie (1862), a widow with four children had been attending to her elderly father when she was seduced by a neighbour. Her jury award of $100 was quashed by Draper on the basis that she had not really been rendering services to her father. Added to this strict application of the seduction law was an admonition, probably directed to the lawyers, to stop bringing so many seduction cases before the courts: It has been said the verdict is small, and it is not in the interest of public morals to have cases of this kind brought before the notice of an assembled court; but it may also be observed that actions of seduction are becoming far too frequent, and, in not a few instances, show such a total want of moral principle among the so-called victims of seduction, as to make one fear that the prospect of publicly avowing their own frailty on the trial where large damages may be recovered, does not make them sufficiently careful of exposing themselves to temptation, even if it may check them from leading others into it. Nor is that public confession always attended with that sense of shame and disgrace which ought to attend the con-

62

courted and abandoned

sciousness of yielded virtue, either in the mind of the fallen one, or of the community around her.14

Not only were the judges displeased by the parade of immorality in their courtrooms, they were developing a callous attitude towards the women who appeared before them claiming damages on behalf of their fathers. It was clear that many of these women had displayed a want of moral principle and were no better than their purported seducers. Respectability was one of the prime virtues of the mid-Victorian world and it was being regularly flounted by the seduction cases that appeared with such tedious regularity. During the 1859 Oxford assizes, Justice Burns charged a jury that he had grave doubts whether actions of this kind were calculated to advance public morals. He was afraid that large damages operated as an incentive to parents placing their daughters in the way of temptation; and this had been proved to be the case in some actions brought before the courts. Parents should not be allowed to make a market of their shame.15

Burns was expressing the precursor of the opinion that women could use their sexuality for financial gain that would gain weight during the debate on the criminalization of seduction. By the 1880s lawyers and jurists would question whether seduction was being used, not as a shield to defend family honour, but as a tool whereby disreputable persons could parade their immodesty as a means to extort money. ‘A Methuselah, every inch of it’ It may seem puzzling that all-male juries were sympathetic to these claims, even when the evidence indicated that another man was the father or that the woman was promiscuous. However, it was consistent with Victorian notions of chivalry, for despite the fiction of the law that the seduction action was brought by the father, most juries understood that in the vast majority of cases the damages would flow to the unwed mother.16 Was there any more worthy a cause? It has been suggested that this was not the case and that in most instances women were victims of the legal system. The examples of rape cases in which women were not believed and of police courts in which women were treated with undue harshness ‘dispel the myth of a one-time chivalrous criminal justice system.’17 But such examples do not explain how an all-male

Rewarding the Insinuating Arts

63

legislature abolished the harsh penalty for infanticide, or how, in case after case, all-male juries would simply release women who were clearly guilty of infanticide. In the nineteenth century, women were far more likely than men to be acquitted by reason of insanity.18 When a New Brunswick woman ‘swore’ a child against one man but later changed her mind and charged another, she was believed both times. The Saint John Globe ruefully noted: ‘the defendant in such a case has a small chance for justice if the woman chooses to swear falsely.’19 As many of the already cited seduction cases show, a woman’s testimony was almost invariably accepted as the truth. The jury had before them a distressed woman with an illegitimate child. The visceral reaction of any Victorian gentleman was to go to her aid. It must be presumed that she was telling the truth, or why would she so debase herself? It is true that most rape charges were dismissed, but it is essential to make the distinction between criminal charges such as rape, which carried the death penalty and had to be proven beyond a reasonable doubt, and civil matters such as seduction, which need be proven only on a balance of probabilities. Judges would be circumspect before donning the black cap and sentencing a rapist to die, and a woman’s testimony would be severely tested before it would be accepted. But in seduction claims, the chivalric tendency in nineteenth-century legal system was apparent. Even those women who were willing to make a ‘market of their shame’ in order to blackmail men for profit would know from experience that the jury’s natural inclination was to empathize with the woman who was left to her own devices to support a child. This partiality of the civil law system towards women reflected the deep belief of Victorian society that women were finer creatures than men and that all extra-marital sex was initiated by men. As an 1885 editorial in the Barrie Northern Advance explained, ‘It is manifest that woman is infinitely more sinned against than sinning in this direction,’ and most Victorians agreed that she deserved the favour of the law. Not only were seduction cases still a regular staple of the courts, but the jurors’ sympathies in favour of the seduced were now increasingly conjoined with those of the judiciary. In the frightful circumstances of Palmby v. McCleary (1886), a servant girl of eighteen was seduced by her well-to-do master and died in childbirth. Although the evidence of seduction was not substantial, the jury found against the defendant and gave $750 to the dead girl’s family. Justice Galt condemned the defendant for abusing his position, and as he was ‘the author of all the

64

courted and abandoned

trouble and sorrow brought on the plaintiff,’ he upheld the jury’s award.20 Seducers could find themselves paying in more ways than one. At the York assizes of 1883, Arthur Barber, a farmhand, was compelled to pay for his seduction of Mary Beeshaw. Even though the evidence disclosed that the act had occurred more than three years previously, and Mary had since taken a husband, Barber was still found liable. Because the evidence at the seduction trial showed that he had attempted to have Mary take an abortifacient, he was charged with this offence as well. This time, Mary Beeshaw appeared reluctantly in court and declared that ‘she did not want to see Barber go to prison.’ But he did, for six months.21 In many cases the jury believed the seduced women, even in the most implausible of circumstances. In the case of Annie White, her child was born eleven months after the last date she allegedly had intercourse with the defendant. The leading medical men of St Thomas were examined and they all agreed that an eleven-month gestation period was simply impossible. However, Annie’s family produced a Dr Southwich, who swore that about thirty-five or forty years ago he had observed an eleven-month pregnancy. The defendant also produced a young man who had boarded with the family about nine months before the birth and he confessed to having repeatedly had sex with Annie. The defendant, a railroad worker, produced his notebook, which showed that he was not in St Thomas near the time the child was conceived. Annie’s lawyer produced the child in court, passing the bemused infant along for the inspection of each jury member, proclaiming that the wondrous youngster was ‘a Methuselah, every inch of it.’ The jury was almost won over – only two held out against the plaintiff. Against the odds, the Whites had almost succeeded in making a claim on the most incredible of evidence.22 At least in some isolated instances, rural Ontario did not appear to have changed significantly. In 1884 the courts heard the seduction case of a father who had permitted his sons, daughters, and their visitors to sleep together in one room. One visitor took advantage of this arrangement and had sex with a daughter in the communal bedroom. This paternal neglect of duty earned a rebuke from the judge ‘that it was a disregard of their duty as parents, showing an indifference to the purity and chastity of their daughters.’23 No lawyer dared raise a defence that this was merely the way of the country folk. However it occurred, one constant in the seduction cases was the requirement that the woman take the witness stand and discuss her sexual life in detail. In 1876 Ellen

Rewarding the Insinuating Arts

65

Dickey confessed to ‘improper intimacy’ with her suitor. She had told him that she did not want to have sex. ‘I said I had enough sins to answer for ... he unbuttoned my drawers and I told him not to do it.’ Nevertheless, they proceeded to have intercourse by local railway tracks and sheds.24 Yet no matter how brazen the woman’s conduct, a new judicial attitude emerged to support jury verdicts in favour of the seduced woman’s family. This attitude was even being demonstrated in areas where the courts had previously been hostile to the female’s conduct. In Mulligan v. Thompson (1892) Catherine Clark had been separated from her husband and was living with another man at the time she gave birth. The trial judge would not let her testify as to the paternity of the child as this would be against public policy ‘that a woman should come into court and bastardize her issue.’ However, a motion to dismiss was overruled and the facts of the seduction were admitted. It was grossly unfair to cast the odium of the affair entirely on the female, as Justice Rose reasoned: I see no reason in principle or in justice for shutting out such evidence. If the defendant is the father of the illegitimate child born to the plaintiff’s daughter, they have been partners in the guilt, and in whatever of illicit pleasure there was in such forbidden connexion, and it is not fair that the woman should bear the suffering and the shame, and the defendant escape without loss. If, according to the mistaken notions which I venture to say prevail in society, the stigma of shame cannot be placed upon the man as well as the woman, let him at any rate bear his share of the financial burthen which is the result of the illicit connexion.25

Rose acknowledged that society placed most of the blame on the woman, but he was progressive enough to suggest that this ‘mistaken notion’ could be brought partially into balance by sharing the cost of the child. Preserving Honour If some women sought to take advantage of the court system, it remained a fact of mid-nineteenth-century life that pregnancy out of wedlock was one of the greatest disasters that could befall a woman. Any hope of gaining respectability or, perhaps more important, a husband who would be a reliable partner, was likely lost. Added to this was the public odium of illicit sex. An editorial in the Essex Record of 1875 described in florid but legitimate terms the plight of the seduced:

66

courted and abandoned

‘Don’t give her a chance to rise and invade respectable society again. She has been tried and tempted, and she has fallen from the holy estate of innocence, and it behooves every virtuous woman to see to it that she is not allowed to breathe the foul malaria of her presence among the pure of her sex’ and she should be shunned, for ‘There is a contamination in her touch. There is moral darkness and degradation in her presence.’26 As one expedient to avoid this calamity and reclaim respectability, an unwed pregnant woman would frequently allege that she had been raped by the defendant. While in theory Victorian Canadians abhorred forcible sex, and the crime was still punishable by death until 1873, government sessional papers indicate that only a small fraction of accused rapists were actually convicted. The onus on the complainant to prove that she had been forced to have sex against her will led to many acquittals. As well, the character of the complainant was frequently a factor, and if there was any question that she was free with her virtue, then a conviction was most unlikely.27 The criminal sanction for rape was uncertain at best, and in any event, of no benefit to the victim. Yet the mere accusation of rape was one avenue whereby an unwed mother could regain the moral high ground over a former lover who refused marriage. The difficulty arose when the criminal law jurisprudence of rape was mixed with the civil remedy of seduction. This confusion first became apparent in the case of Vincent v. Sprague (1846), where the seduced daughter was the only witness called, and she swore that she had borne the plaintiff’s child. This was a predictable story until cross-examination revealed that what she meant by seduction was that he had forced sex on her. However, she also testified that she had never complained of any violence, that they had sex on an ongoing basis before the child’s birth, and moreover, she was willing to marry him. Vincent’s lawyer argued that all of this evidence should have been left with the jury to weigh and determine whether or not this was a case of rape or seduction. Jonas Jones, now a justice of Queen’s Bench, felt otherwise. Jones, the former roué, whose sympathies seemed to have been consistently extended to those accused of seduction, was convinced that ‘she either proved seduction or rape: persisting in a statement which proved the crime, there was no evidence to prove seduction, and I so directed the jury ...’28 Years later, an Ontario judge would attempt to define the distinction between rape and seduction that ‘in order to constitute seduction, the defendant must use insinuating arts to overcome the opposition of the seduced, and must by wiles and persuasions without force, debauch her.’29

Rewarding the Insinuating Arts

67

Yet, four years after the Vincent case, in Brown v. Dalby (1850), the court’s sympathies would favour the seduced. Miss Brown, a servant of the defendant, stated that ‘I was scrubbing the ball room: he [the defendant] came in and shut the door – he locked the door; he threw me down on the floor and used me shamefully,’ and further that she ‘struggled with him and slapped him in the face, but it was of no use.’ The defendant argued that by the girl’s own evidence no charms or persuasion indicative of seduction had been used. In startling contrast to Vincent, Justice Robert Sullivan left it to the jury to decide the legal issue of rape versus seduction. True to form, they decided on seduction and awarded damages. On a motion to dismiss, Chief Justice Robinson ruled that it was the first policy of the law to bring the offender to justice for criminal acts and then to seek compensation for damages. However, as the trial judge was not sure whether the act constituted rape, the jury was free to draw its own conclusions. Robinson let the verdict stand, as there were ‘attendant circumstances’ which would permit the jury to accept some of her story and discount the allegation of rape, for ‘We think the jury were well warranted by the evidence in discrediting the girl’s statement that she was wholly under the influence of force or fear as she declared herself to be.’ As a result, the legal distinction between rape and seduction remained unresolved.30 In subsequent cases, both juries and judges seemed to cast a blind eye to assertions of rape. After all, no decent girl would willingly yield her virtue except under a threat of violence. In 1869 Justice Gwynne read into a victim’s account of rape that ‘she merely meant to convey that she yielded, not with any active volition on her part, but to a species of semi-coercive persuasion of the defendant.’31 But was this merely a way to preserve that all-important virtue, respectability. Well into the Victorian era, seduction remained a staple of the courts. Nevertheless, the cases no longer featured the free-and-easy sex of the frontier, and there was an increasing concern to demonstrate the purity of the victims. It was most palatable to the court to perceive the seduced woman as virtuous, and a victim of a man’s baser instincts. Such a woman was Chestina Williams. Her case had, in her lawyer’s words, occasioned ‘considerable talk about in Oakville.’ In July 1869 her father, a sailor, had left his family in the care of a friend and local storekeeper, Michael Robinson. At trial, Chestina gave evidence that Robinson was the only man to have sex with her and that she was carrying his child. The defence lawyer, M.C. Cameron, drew out the circumstances of the actual seduction. The

68

courted and abandoned

previous June, Robinson had enticed her to his shop under pretence of having a telegram from her father. The store was empty, there was no telegram, and he proceeded to rape her on the floor of the back room. About a month later a similar incident occurred: ‘he shut the door of the room and threw me down on the floor; he held my hands and put his hand over my mouth when I began to scream; I did not consent he forced me.’32 The plaintiff also brought out damning evidence from Robert Chisholm, a notary public who took Chestina’s declaration of bastardy against Robinson. Chisholm had discussed the claim with Robinson, who appeared agreeable to a settlement. To the jury, this was a likely acknowledgment of paternity. Robinson denied ever having sex with Chestina or that he was even in Oakville when the acts occurred. The Williams’s lawyer, the young Robert Harrison, then delved into Robinson’s personal life. He was asked whether he had been true to his marriage vows and, when pressed on the point, Robinson admitted that he occasionally ‘kicked over the traces.’ Both lawyers then turned to the jury. ‘Actions for seduction were of frequent occurrence in this country,’ began M.C. Cameron, so frequent in fact that it was a question with many whether the law should not be abolished. Previewing the argument that would later arise during the debate on the criminalization of seduction, Cameron suggested that the law offered a premium for immorality. In this case, however, if the jury believed Chestina’s evidence, Robinson was a rapist who should answer most severely for his crime. If she was a liar, then he had nothing to answer for. Cameron suggested that this case was more about money than sex, that Chestina’s father had ‘pitched on the defendant as the one whom they could bleed to the best advantage.’ Cautiously, Justice Wilson instructed the jury that if they accepted all of Chestina’s evidence then the issue was a criminal one and ‘it would not be right that he should be allowed to escape by paying a sum of money when the penalty was death.’ On the other hand, if they did not accept all of her evidence that sex had been forced on her, then they could award damages. After seventeen minutes deliberation, the jury awarded Chestina’s father the enormous sum of $2,000, the largest award ever made for a seduction claim up to that date. As if to show that a seduction case was still very much a public morality trial between good and evil, upon receipt of the verdict an Oakville mob burnt the defendant Robinson in effigy.33 On appeal, the court upheld the jury’s decision, for the defendant Robinson was clearly trying to use the criminal law as a way of avoid-

Rewarding the Insinuating Arts

69

ing civil responsibility. Could he demand to be tried on a criminal charge (and take his chances on being hanged) in order to avoid paying damages? As a matter of policy, the Court of Appeal conceded that a charge of rape must be tried in criminal courts. But was this rape? Chief Justice Hagarty did not think so. As he reviewed the evidence, he felt that Chestina’s theatrical cry of forced sex was unbelievable, that there was an air of ‘improbability in her story.’ The store where the intercourse had occurred was open to the public and therefore a most unlikely place to force sex on an unwilling woman. At the conclusion of each alleged rape, Chestina had enough presence of mind to adjust her appearance and leave the store with her parcels. It seemed likely that sex between her and Robinson was more by dint of persuasion than force. So why had she exaggerated? Perhaps because it was simply out of the question for a respectable middle-class girl in 1869 to admit that she had engaged in casual sex with a married man. She retained her sense of honour by alleging force. Chestina’s shame was greatly reduced if she became a pure girl forced into illicit intercourse. The judges and jurymen were prepared to wink at her story, dismiss her allegation of rape, and award generous civil damages in compensation. If the seduction had netted Chestina’s father a small fortune, it had come at the cost of his daughter’s public humiliation. Yet at each county assizes, women were being paraded, babe in arms, to seek money from seducers. So popular was this tort that a seasoned lawyer such as M.C. Cameron would grumble that ‘the charge of seduction was one very easily made ... no matter what might be the man’s character.’ Statistically, Cameron had a point, for seduction was becoming increasingly lucrative. While the average seduction award for the period 1860 to 1869 was $340, in the following decade that figure rose to $445 and several awards averaged between $1,000 and $2,000, even though during the 1870s many of the damage awards were for $200 ‘on consent,’ signifying that both sides were satisfied with the bargain.34 By the decade of the 1880s, seduction awards had risen to an average of $600,35 sums that could buy small farms of between ten to twenty acres. Yet it is questionable how far even these awards went in covering the cost of raising a child. In contrast, Quebec juries were free to make awards that reflected the woman’s need for ongoing support. Although Agnes Beattie of Montreal had her seduction claim of £500 reduced to a mere £3 in damages, the jury still recognized her need and ordered the father to pay £4 for lying-in costs and £1 a month for child maintenance for two years.36

70

courted and abandoned

Common law juries had no such flexibility and frequently the defendant’s entire case became not whether the putative father was responsible, but if he could pay a lump sum award. These examinations, while common, were improper. The court ruled in Ferguson v. Veitch (1880) that as ‘the jury, no doubt, would give higher damages against a rich man, and the defendant’s means do in general, in some way came out at trial,’ nevertheless, ‘it should be immaterial, as Lord Mansfield said, whether the damages came out of a deep pocket or not.’37 One distinction between judges and juries was that judges felt that they should look only at the merits of the claim while the juries preferred to examine the ability of the defendant to pay. In one extraordinary case, a Hamilton jury foreman simply took down each juror’s estimate of the father’s loss from his daughter’s dishonour, divided that figure by the number of jurors and presented this sum to the judge as the jury’s considered opinion of the damages owing!38 After Brant County witnessed a spate of seduction claims, the local newspaper editorialized that ‘the ease with which verdicts in these and similar cases may be obtained from tender-hearted juries has been provocative of much evil’39 and that there was a positive financial inducement for a young woman to yield her virtue to any man of property. This trend mirrored American practice where ‘the number of cases based on loss of chastity began to grow, damage awards, augmented by punitive damage components, skyrocketed.’40 By the 1850s a few seduction damage awards in American states were counted in thousands of dollars, enormous figures for the time, which enabled the claimants to realize a windfall far in excess of the cost of supporting the child. And the reason for these enormous awards was, as one Georgia judge explained in vivid detail, to redress ‘the dishonour and disgrace thus cast upon his [the father’s] family; for this atrocious invasion of his household peace ... Say to the father, there is $1049, embrace your innocent daughter, for the last time, and let her henceforth become an object for the hand of scorn to point its finger at!’41 Many a Canadian jury would agree with him that no award of damages could properly compensate for the loss of family honour. However, the profitability of seduction actions and the alacrity with which some families initiated claims was not good news to a morally fervid public which was no longer prepared to tolerate a parade of promiscuous women coming to a public forum and eagerly giving details of their sex lives. A Hamilton newspaper thought that the evidence from a seduction case from the town of Lyndon ‘showed the

Rewarding the Insinuating Arts

71

morals of that small but wicked place to be anything but exemplary.’42 Brantford, Ontario, residents were particularly incensed as the outcome of a 1875 assize which featured two rape cases and four claims of seduction. At the conclusion of the fourth seduction case, Justice Adam Wilson remarked to the jury that he heartily regretted that over half of the cases on the civil calendar ‘should be of this painful character.’ The Expositor followed this with a searing editorial on these morbid public recitals, which are too often made without any sense of shame, and with the bold intention of making a substantial thing out of the easy manner in which verdicts are too often obtained in seduction cases. The law as to seduction is sadly in need of being modernized somewhat. As it stands, and as it has been handed down to us from remote times, no action can be brought for seduction except by the parent or relative of the woman seduced, and that for loss of service merely, by reason of the wrongful act. The crime is not supposed to be considered at all, except in so far as the shame and sorrow of the daughter for the violation of her honor has deprived the father of her assistance and service. It places the civil action for seduction on the most mercenary basis.43

It was detrimental to public morals to have a woman going to court to ‘blazen her shame and publish her own unchastity’ for profit, especially when so many of these cases were, in the Expositor’s view, merely dressed-up blackmail. This was by no means an atypical point of view. The Huron county spring assizes of 1876 featured five seduction cases on the civil list and one defence lawyer argued ‘that five seduction cases at one assizes did not argue strongly for the morality of a county and that giving heavy damages was holding out a premium to fornication.’44 Moreover, judges were becoming increasingly frustrated that their courts were turning into circuses where shameless persons could relate their stories of amatory adventure in the hope of a windfall. For example, at the Wentworth assizes of 1878, the defendant denied seducing one Julia Fisher. The defendant’s lawyer, B.B. Osler, told the jury that he would show that Julia was an experienced woman of bad reputation. The defendant’s brother admitted that ‘Julia and I had some sport together: we were in the cellar together, and the conversation led to the bedroom.’ The courtroom audience responded with appreciative noises. At this point, the shockable Justice Galt intervened and ‘declared that this case was getting perfectly disgusting and disgraceful, and he would try and put a stop to it, the joking part in particular.’ By

72

courted and abandoned

that time, Osler had done his job and Julia’s reputation lay in tatters on the courtroom floor. The jury’s award of $135 reflected their propensity to rule in favour of the seduced, but the low award also seemed to reflect a conclusion that little had been lost. It is the judge’s outrage which is significant, for Justice Galt continued to express the opinion that ‘It was a shame that this country had been put to a heavy expense by such a shameful case.’45 Julia Fisher’s case was likely the high point of the assizes for most of the spectators and it likely remained the source of amusement for weeks to come. While the judges may have felt that such displays were a disgrace, it is unlikely that these feelings were shared by common people. But the real question remained whether these melodramas fulfilled the pressing need of support for families who had to bear the cost of raising illegitimate children. The Law Reform That Never Happened Canada’s maritime provinces also instituted changes which altered, but did not eliminate, the tort. Prince Edward Island, the first province to pass an act that devolved the seduction action to the female victim, took another significant step in 1876. It passed an act to direct that seduction claims be initiated by petition to a Supreme Court judge, who could, at his discretion, refer the claim to a justice or justices of the peace to be decided. Damage claims were limited to $200.46 PEI provincial records indicate that about twenty petitions a year were filed, and they offered a degree of privacy unknown to those who had to testify in court. For example, Malvina Reynolds successfully petitioned Roderick McDonald for seduction but did not have to recount publicly how they frequently had sex aboard his Cardigan River ferry boat.47 But, much like the poor laws, these seduction actions by petition offered only grudging relief. The statute was likely modelled on the British Bastardy Act of 1872, in which support payments were to be made directly to the unwed mother and not to the parish. In 1881 Justice Hawkins noted the significance of this reform, by which a single woman no longer had to depend on the whim of parish overseers and her child need not be ostracized but had a legal right to support from its parents: I rejoice too to think that since the days of Queen Elizabeth, our laws have been so far humanized that a bastard child is no longer a mere thing to be shunned by an overseer – whose existence is unrecognized until it becomes a pauper, and whose only legitimate home is a workhouse, that it is

Rewarding the Insinuating Arts

73

no longer permissible to punish its unfortunate mother with hard labour for a year, nor its father with a whipping at the cart’s tail: see Eliz.c.3, and Datton’s Justices of the Peace, p. 34, but that even an illegitimate child may find itself a member of some honest family, and that the sole obligation now cast upon its parents is that each may be compelled to bear his and her own fair share of the maintenance and education of the unfortunate offspring of their common failing.48

This charitable interpretation was not applied in all the maritime colonies. In New Brunswick a technical failure to bring a bastardy action ‘in the next available term’ enabled a putative father to avoid bearing his fair share of the maintenance of his offspring.49 Moreover, in New Brunswick and Nova Scotia the action had not been granted to the mother, but remained with the local overseer of the poor. The county courts of New Brunswick would regularly conduct a ‘bastardy docket’ where the commissioners for the local almshouse would seek to enforce affiliation orders. Those who could not pay were jailed. Interestingly enough, the same expedient that settled many seduction cases could resolve bastardy cases. When Patrick McLaughlin of Saint John came up on the bastardy docket, his liability was proven but ‘McLauglin refusing to marry, was sent to jail.’50 Nova Scotia filiation actions of the 1880s read much like those tried before Daniel Defoe in the England of 1780s. In the Overseers of the Poor v. Davidson (1882), Olive Phinney ‘received aid from said overseers for herself and the said child, since birth of child, being paupers ...’51 However, the issue before the court was not how Olive and her child could be supported by the father, but rather, which township could claim compensation for this unwelcome burden on the overseers. It is therefore not surprising that infanticide remained a common occurrence in Halifax during the 1860s. This was in large part because illegitimacy had such disastrous consequences for the mother. ‘Work as a servant was out of the question – a woman was generally fired as soon as pregnancy was discovered. In fact, most respectable lines of work were closed to an unmarried mother, and she was faced with a choice between life in the poor asylum, life on the street, or a forced retreat to the home of a sometimes distant family.’52 There was a significant number of illegitimate births in Halifax during the 1860s, and of these an appalling 32.6 per cent resulted in infanticide. The bastardy acts clearly offered little prospect of aid to an unwed mother. The creation of a ‘Home for Young Women of Good Character’ in 1869 was a charitable

74

courted and abandoned

attempt to provide refuge for young women who had come to Halifax from the country, for its purpose was to steer them away from ‘the numerous dens of infamy which abound in the City.’53 As its name would imply, the charity was only available to women of proven respectable character; it was not until the establishment of the Halifax Infant’s Home in 1875 that unwed mothers had a formal institution to take their offspring. While this did alleviate the problem and offered a small modicum of relief to unwed mothers, the law gave them little cause for hope. In the late nineteenth century there were a number of limited reforms to remove feudal relics affecting women. Foremost among them was the Ontario Married Woman’s Property Act54 of 1884 which granted wives the legal right to own property independent of their husbands. But the seduction law defied reform and, as the judges had decreed in Westacott v. Powell, even limited changes were unwelcome. While concerned moralists decried the number of seduction cases that titillated the curious and outraged the pure, in so many cases, the tort continued to fail to provide a remedy to those most in need of relief. This became glaringly apparent in Rosenberg v. Goldenberg (1859)55 in which a German serving girl, Anna Maas, had been seduced and her guardian sued on her behalf. The jury agreed that the sum of £50 should be paid, ‘which sum they desired should be given to the mother of the child.’ Regretfully, the judge, Chief Justice Robinson, advised them that the money had to be paid to the guardian, for ‘it is neither in the power of the jury or the court to order the amount of the verdict to go to the mother, it must go to the plaintiff.’ The most the jury could do was make an award of damages and add a comment ‘expressing a hope that the plaintiff would not see the mother or child want.’ Judges were not oblivious to the reality that in so many cases the award went to someone other than the one who truly needed it. Justice W.B. Richards lamented in an 1854 case, in which a seduced woman’s brother received a large sum, that ‘it is recovered by a brother, who has not probably the same inclination which a father may be supposed to entertain, to apply the amount to the benefit of the injured party.’56 There were even inequities within the tort itself. It was widely held by the judges that the damages should reflect the status of the injured woman. In Ford v. Gourlay (1878) the seduced was a servant. Her employer did not turn her out but instead kept her in his house during her confinement and ultimately sued her debaucher. The judges considered that while dishonour brought onto a respectable home was a grave

Rewarding the Insinuating Arts

75

matter, the same principles could not be applied to a mere menial servant who did not in any way associate with the members of the family, or who had been in her place for only a little while, might not, by her seduction, be supposed to entail much loss, if any, upon her master; while a governess associating with the young women of the family, or a respectable girl in a farmer’s family in the country, who associated freely and upon almost equal terms with the members of the family, as is usual in such cases, if seduced might, it is evident, cause very serious prejudice in that household in many ways, and much more harm than could be done in the case first put.57

In much the same vein, the seduction of Ellen Gant, a poor black woman, resulted in an award of only $100. This may also have reflected the circumstances of the defendant, who was also black and a waiter at the Rossin Hotel in Toronto. The jury may have considered that he would be hard-pressed to pay even this limited award.58 True to its feudal origins, the amount of damages was based on the worth of the person damaged. The debauching of a trusted governess was worth far more than the unexpected pregnancy of a scrub woman. As the cases of Ellen Gant and Chestina Williams show, the seduction almost invariably took place within the same class and milieu, and the classic tales of a wealthy rogue seducing a poor girl were not to be found in real life. In one of the few cases of cross-class seduction, a Miss Scott, a ‘daughter of a very respectable farmer’ laid the blame for her pregnancy on an itinerant farm labourer. She admitted in crossexamination that they had been having a lengthy affair. In light of her culpability and the unlikelihood that the defendant could pay, damages were only $40.59 Feudal notions pervaded the tort, for not only was the plaintiff woman given a value, but if the defendant was of low status, this was also reflected in the damage award. Discontent with the seduction laws surfaced briefly in 1859. In an editorial on 20 April entitled ‘Fictions of the Law’ the Toronto Globe discussed seduction, ‘the whole fabric of the law on this point is built upon a fiction’ it noted and in all of its aspects, the seduction tort was a fraud. Damages, which were based on the ‘loss of services’ were really founded on ‘the loss of reputation and the non-fulfillment of lovers’ vows.’ The tort ‘denies the injured woman a remedy in her own name, and refuses to admit that she has ever just cause of complaint.’ The spark that ignited this editorial was a recent Hamilton case, Bailey v.

76

courted and abandoned

Hannon. Rosanna Black, a serving girl with no parents in Canada, was seduced by a Joseph Hannon, who decamped before trial. The Globe then described the scene in court: It was necessary that the plaintiff’s attorney should prove his case before he could take a verdict. He put the woman into the witness box, and as is the custom in such extremities, the woman held her deserted child in her arms. Her testimony was elicited, and her sorrows seemed to engage the sympathies of those present. The judge made his notes as if that were a labour in vain.60

The reason for the judge’s impatience became apparent when Rosanna mentioned that she was living with her employer. The judge stopped the proceedings. ‘Does that not put you out of court?’ he asked her lawyer. She could only sue in the name of her employer at the time of the seduction, and the failure to name him as plaintiff vitiated her lawsuit. The law by its ‘fancies and fictions’ had deprived Rosanna of any hope of compensation. British courts had long recognized with regret that a seduction claim was no answer to the problem of who was to support an illegitimate child. In Manley v. Field (1859) the seduced woman was thirty-two, living on her own, and operating a millinery business. Because she was not rendering services to a master her claim failed, and Justice Williams commented: ‘However painful it is to make the maintenance of an action of this kind depend upon services rendered by the daughter to the father, still, as the law is so, we are bound by it.’61 But the law was still wrong. One of the leaders of the English bar, Sergeant Manning, said in an 1844 case that ‘the quasi fiction of servitium amisit affords protection to the rich man whose daughter occasionally makes his tea, and leaves without redress the poor man whose child is sent unprotected to earn her bread amongst strangers.’62 An 1874 editorial in the English Law Times recognized the futility of the seduction tort. This editorial was inspired by the decision in Vian v. Maynard, where the seduced girl had failed on a breach of promise of marriage action and, at the judge’s suggestion, her father had brought a seduction action on her behalf. As a result, she was put to the expense of two trials to prove her case. ‘On what grounds such an anomaly is perpetuated it would be difficult to say, except that it has become venerable by age,’ noted the English journal, and furthermore ‘the rule amounts to this, that the party really injured has suffered no injury sufficient for the law to

Rewarding the Insinuating Arts

77

notice.’ This editorial was reproduced in the Canada Law Journal and could be said, with equal justice, to apply to the state of Canadian law.63 Occasionally the public seemed surprised at how antiquated and capricious heartbalm torts such as seduction could be. Elizabeth Harvey, an independent serving girl in Barrie, Ontario, worked in the house of James Burns. One morning in 1880 he entered her bedroom and asked if she wanted anything in town. He then tried to get into bed with her. ‘I did not want him to,’ she testified at trial, ‘he coaxed me, he said if he did any harm he would marry me.’ After she became pregnant, Burns refused to marry her and warned that if she brought a seduction claim ‘he could get lots to say they had to do with me.’64 Elizabeth brought the claim in her father’s name even though he had not seen her for years nor had he taken any interest in her lawsuit. Justice Galt instructed the jury to dismiss the action on the basis that it was really Elizabeth and not her father who had instituted the suit. The local newspaper, the Barrie Northern Advance, expressed surprise that she had to sue in her father’s place ‘which point, it seems, is essential in an action of this kind.’65 In the circumstances, James Burns owed no legal responsibility to Elizabeth Harvey. An examination of the state of the seduction law in the late 1800s is the study of a law reform that never happened. While many considered that the law served a valid public purpose by punishing those guilty of seduction and granting some recompense to the family, in practice the tort was highly capricious. There was public dismay that, due to some technical detail such as ‘loss of service,’ it failed to help those who truly needed it. On the other hand, it was so widespread and so frequently abused that it offended the moral sensibilities of respectable people. Despite both of these failings, the status quo prevailed; by denying women the right to maintain their own claims, the law left them in a subservient and vulnerable state. In 1869, when Mary Colgate, described as ‘the very picture of desolate misery,’ was brought before a Toronto police magistrate and charged with the killing of her illegitimate child, a reporter asked, ‘Where is the scoundrel who brought the girl to this strait,’ and why was that man not before the court? An 1882 editorial in the Canada Law Journal described this imbalance: ... the man practically goes unpunished; he is scarcely tabooed in society; in fact his companions think him rather a fine fellow ... while the unfortunate woman bears the whole burden, becomes an outcast, is driven from home, disgraced and ruined to bear her trial alone, overwhelmed by an

78

courted and abandoned

agony of shame that too often ends in some hideous crime or piteous suicide.66

Yet there was no serious movement in Canada to reform the seduction laws and instead of imposing coherence, the law was the source of a palpable injustice. The only change occurred in Ontario in 1877 when the Seduction Act was divided into two parts, one dealing with the tort and the other with affidavits of illegitimacy.67 This was of no help, for in the case of McKenzie v. McLean (1884) Janet Pickham, an orphan, was in the employ of the seducer’s brother-in-law at the time of her seduction. Even though no services to a parent were demonstrated, the judge decided to leave the case with the jury and they assessed damages at $700. On a motion to quash the verdict the court, consistent with previous decisions, ruled that the wrong was vested in the master and not the person seduced. The judges agreed with the defendant’s lawyer that ‘the verdict of the jury can only be accounted for on the ground of the sympathy which juries always show for the girl seduced.’68 According to the Canada Law Journal, this case illustrated to perfection ‘the absurd condition of the law relating to actions for damages for the seduction of females’ and further that: ... it is high time that the form of action for seduction, as at present recognized by the law, should be abolished altogether, and instead of it, a right to action given directly to the party seduced; or else let it be made a criminal offence as it is in some other countries.69

Nevertheless, the public seemed largely indifferent to the plight of women such as Janet Pickham and Elizabeth Harvey. While they were unconcerned with the financial responsibilities arising from an illegitimate birth, late Victorian Canadians were becoming increasingly alarmed by a threat, or a perceived threat, to the virtue of decent young women. As a result, they were about to tighten restraints on premarital sex to enforce a strict sexual conformity. Statutory codes would be created to prohibit deviations from sexual standards, and seduction would cease to be a matter of property or child support and become instead an issue of public morality.

6 Virtue by Statute

According to Tennyson, woman was ‘dipt in Angel instincts ... interprets between the Gods and man.’ In his epic poem The Angel in the House, the Victorian poet Coventry Patmore extolled women’s virtues as vastly superior to men’s on every point. ‘Were he but half of what she is and he but twice himself,’ she was still worthier than the man. This effusion, enormously popular in its time, illustrated the widely held view of women as exalted creatures. So highly regarded was the feminine ideal that in polite Victorian discourse it was considered unlikely that a proper young girl had any sexual thoughts at all.1 This domestic angel frequently appeared in Canadian literature. In 1891 the Dominion Illustrated published ‘Nelly Barton’s Lover,’ a sentimental tale of a village girl seduced by a town boy. Nelly is stereotypically ‘young, fair, unprotected, foolish; and she fell.’ Even though she is ruined, the faithful Nelly protects her betrayer. Nowhere is it suggested that she is at all responsible for her predicament.2 The message was clear – women were inherently innocent, and those who violated this ideal deserved harsh punishment. To combat a predicament such as the fictional Nelly Barton’s, the ‘social purity’ movement agitated in the last quarter of the nineteenth century for laws to protect women. This movement sought strict enforcement of Sabbath laws, temperance legislation, and the enforcement of prohibitions against pornography and gambling. Frequently spearheaded by women’s groups such as the Woman’s Christian Tem-

80

courted and abandoned

perance Union, social purity sought to strengthen the middle class not only by fighting the liquor trade but by providing education and protection for young women. As middle-class women became active outside the domestic sphere they increasingly devoted themselves to the moral improvement of the working class. The WCTU was especially active in this campaign by emphasizing a single standard for sexual morality (abstention from sex outside of marriage) for both men and women.3 While in its earlier phase social purity stressed personal reform in dress and habits, it also worked to impose a conservative evangelical consensus on the criminal law. In 1879 a group of female associations began circulating petitions in Toronto calling on the government to make seduction a criminal and not just a civil offence.4 This was an entirely new direction in the law, for in early nineteenthcentury Britain and Canada, there were few statutes controlling morality. Blackstone’s Commentaries on the Law of England (1765), noting the reaction against the severe mores of the puritan Commonwealth, stated that during the Restoration, Parliament had neglected to renew an act of 1650 making adultery a felony punishable by death. During the Commonwealth the ‘extraordinary strictness and purity of morals’ resulted in adultery being made a crime. However, at the court of Charles II the gentry ‘fell into a contrary extreme of licentiousness, it was not thought proper to renew a law of such unfashionable rigour.’5 Matters of morality were best reserved to the ecclesiastical courts. However, by the mid-nineteenth century, there was a pronounced movement to protect young women in Britain. A determined English reformer, W.T. Charley, introduced bills in 1873 and 1874 to criminalize grosser forms of male exploitation. Although these bills failed to become law, the protection of women remained a legislative concern, and from 1881 to 1882, a parliamentary select committee studied the abduction of young women for the purposes of prostitution.6 Many of these laws already existed in the United States. As Lawrence Friedman observed, ‘On the surface, the republican period carried on a rich, colonial tradition, committed to sexual control (or, more accurately, repression). There was no abrupt break with the past. By law, only married people were entitled to any kind of sex life at all, and only within narrow limits. Everything else was not only a sin, it was a crime.’7 In Philadelphia during the 1870s, husbands and wives frequently brought adultery and desertion cases before the municipal court. Private disputes concerning love and betrayal were thereby carried into a public sphere for resolution. The climate was one of strict sexual conformity and even an

Virtue by Statute 81

attempt by a few daring Americans to debate ‘free-love’ and sex education issues was quashed by a growing movement to stifle all debate on sexuality.8 Prior to the 1880s, Canadian law controlling morality had mirrored British law – that is, for the most part there was none, other than an antiquated provision that sex with a female child under ten was deemed to be rape and was punishable by death. The colonies of British Columbia, Newfoundland, Upper Canada (until 1841), and the Northwest Territories had no statutes protecting girls and women over the age of ten. In 1759 Nova Scotia raised the age of consent to twelve. Other maritime colonies later made it a misdemeanour to have carnal knowledge of a girl between ten and twelve. In 1854 New Brunswick had taken the unusual step of criminalizing adultery.9 While this pious statute was seldom enforced, it came to public attention in 1882 when John Ellis and a Mrs Lizzie Rose of Maine used New Brunswick for a discreet tryst. Mr Rose had Ellis charged with adultery, and while Justice Watters had ‘never heard of a case of this kind coming up in this Province before,’ Ellis was convicted.10 However, New Brunswick’s adultery law was not copied by other provinces. Canadian criminal law prior to the 1880s simply did not concern itself with female virtue. If seduction was to be criminalized in Canada, it needed a champion to mobilize civic opinion, define the offence, and then enshrine it in law. John Charlton, Liberal member of Parliament for Norfolk North, Ontario, from 1872 to 1904, was almost the definition of the Christian statesman. Born in New York State in 1829, Charlton was a shrewd businessman who made a fortune in the lumber trade. In politics, his interests were commercial, and he favoured an economic union with the United States. Morally, he embodied the fervent religious impulses that remained strong in rural Canada. He was the founder of the Dominion Lord’s Day Alliance, an opponent of cruelty to animals, and an advocate of social purity.11 On 17 February 1882 he rose in the House of Commons to introduce a bill to make seduction a criminal offence. The preamble stated that it was ‘expedient to provide for the punishment of offences against chastity, morality and decency, and to afford some measure of redress to the victims of debauching wiles of offenders against virtue and domestic peace.’ ‘Any person enticing a virtuous young girl into a sexual relationship’ was guilty of a crime. Moreover, enticing a female to have sex under a promise of marriage also became a crime. In the sixth clause, teachers who seduced a pupil were subject

82

courted and abandoned

to imprisonment. Charlton’s bill did far more than criminalize seduction. It even proposed that adultery should become a misdemeanour and that couples who engaged in ‘gross lewdness’ were liable to a fine or imprisonment. Illicit sexual intercourse between two adults, one of whom was unmarried, was deemed to be adultery and could be punishable by not more than a year in prison. Inveigling a chaste female to enter a house of ill fame became a crime. Not content with widening the scope of criminal sanctions against immorality, the act also purported to extend the civil remedies for seduction, for the ninth section extended the right of civil seduction to the female seduced and the eleventh clause purported to undo Westacott v. Powell by providing ‘that in those (seduction) actions, action for loss of service shall not be prevented.’ Charlton did not to explain how a federal criminal statute could override provincial laws relating to property and civil rights. In support of the bill, he noted that seduction was already a crime in twenty-seven American states and was unquestionably ‘a step in the right direction, whether the details are right or not.’12 Prime Minister Sir John A. Macdonald was equivocal, and while he was compelled to say that ‘a certain portion of the Bill meets with my most hearty approval and will receive my most hearty support,’ he had reservations about other aspects, especially the criminalization of adultery. Charlton was not optimistic and he noted in his diary: ‘Introduced my bill today regarding seduction and adultery etc. and it received first reading. It will not pass I think and will receive very little support.’13 Perhaps to his surprise, the bill passed second reading by a vote of 107 to 16 and was sent to special committee. Charlton chaired the committee that refined the bill and placed it back on the order paper. However, when no action was taken, Charlton complained that Macdonald was plotting to shelve the bill. This was indeed the case, for it was left to die on the order paper. With dogged persistence, Charlton would reintroduce his seduction bill annually for the next four years. The bill had attracted some attention, not all of it favourable. The Legal News dismissed the bill as ‘Charlatanism.’ On the other hand, the Canada Law Journal felt that ‘he must be either a very ignorant person or a very heartless libertine who could pooh-pooh in such an airy manner one of the crying evils of the day.’ A woman bearing an illegitimate child in the 1880s ‘bears the whole burden, becomes an outcast, is driven from home disgraced and ruined.’ The seducer, who was at least equally responsible, did not share in the infamy and if anything, his companions might consider him to be a ‘fine fellow.’ The Canada Law

Virtue by Statute 83

Journal pointed out that rapists were imprisoned and flogged, but men who accomplished the same result by ‘seductive acts’ escaped punishment altogether. While the objective of the bill was ‘the impossible task of making men good by Act of Parliament ... we trust good may result from the move made by Mr. Charlton.’14 Parliament became the battlefield where the two opposing views of women’s nature would be fought out. Charlton had the seduction bill brought back before the House of Commons in March 1883. Just before it went to committee, he reminded the members of the need to curb this vice of ‘a very grave character’ and that New York State had enacted such a law as long ago as 1848. Once again, Macdonald straddled the issue, for while he considered some parts of the bill to be in ‘the interests of morality,’ he still maintained that ‘there are vices which cannot be reached by legislation but can be reached by education, and especially religious education, and by the maintenance of a high standard of morality among the people.’15 As for Charlton’s argument that twenty-five American states had adopted a similar course, Macdonald sniffed that they had nothing to teach Canadians about morality, and in New York in particular ‘there prevails a very grave state of immorality.’ The special committee considering Charlton’s bill met on 9 March 1883 and reported out the bill the same day. The first clause, which made adultery a misdemeanour punishable by imprisonment not exceeding two years, was struck out. Charlton’s objections, if any, were muted. The House was not prepared to make private conduct between adults, however sinful, a matter for the police. Three offences remained: seduction under a promise of marriage, seduction by a teacher, and enticing a woman to enter a brothel all became criminal acts. Tempering the effect of the bill was a requirement that the prosecution be commenced within a year of the act and that corroborative evidence be produced. The Globe reported that Charlton was pleased with the bill and hopeful that it would clear the House of Commons. Charlton’s bill still ran afoul of Macdonald, who persisted in the view that criminalizing seduction would enable ‘adventuresses’ to entrap men. Those who opposed the criminalization of seduction looked back to their experiences as lawyers with civil seduction cases. In many of those cases, the accusers were apparently seeking to use seduction as a convenient method of extracting money from former lovers. Macdonald’s apprehensions have been dismissed by later commentators, who have suggested that ‘fears of the “designing woman” who might take matters into her own hands, arose from misogynist stere-

84

courted and abandoned

otypes of female sexuality.’16 This is to ignore the reality of the time that the civil tort of seduction already offered women several distinct advantages. As so many of the cases detailed in the preceding chapters show, seduction cases could be brought on the most tenuous of evidence in the confidence that they would still be believed by a jury. Macdonald’s fears had a very real basis in the cases he saw tried at every assizes. At the same time as Charlton’s bill was being debated in Ottawa, Whitby, Ontario, witnessed the spectacle of Mary Lush, who was bringing her third seduction action to the courts notwithstanding that she had two children by two other men.17 During his law practice, Macdonald had frequently made the acquaintance of seduction claimants such as Mary Lush and the experience had embittered him. ‘We all know and I have had occasion in my practice to know – the agencies that young men have been subjected to by unjust charges of this kind.’ Unscrupulous women already had the civil tort of seduction at their power. Charlton’s bill would give them another weapon, the threat of criminal prosecution to force an innocent man to the altar or to make him relinquish his savings. ‘It is framed apparently for the purpose of enabling any woman who likes, to force any unmarried man she chooses to marry her.’ Macdonald sensed that the bill would do no good and was likely to do great harm: It is the brazen huzzy, the disappointed vindictive woman, who does not mind having her shame blazoned in every newspaper in the country, who will take advantage of this Bill to prosecute a man who has perhaps with very good cause for refusing to marry her ... Under this bill we are to promote morality, forsooth, by rewarding the woman who comes forward and confesses that she did commit a sin, while the man is to be punished for years and to have all his prospects ruined.18

Another lawyer, Hector Cameron, added to Macdonald’s condemnation. Cameron had litigated many civil seduction cases and had concluded that ‘it tends far more to increase immorality in the country than to remove it ... in nine-tenths of the cases, they [women] are more to blame.’ The attitude of Macdonald and Cameron, based as it was on their experience as lawyers, also seems to refute the notion that the Victorian bourgeoisie were confident in their superior roles. Latenineteenth-century art and literature, as Peter Gay has observed, showed a greater appreciation of the predatory female and that ‘Influential men came to see that the angel in the house was no angel and need not stay in the house.’19

Virtue by Statute 85

The House of Commons was debating two different visions of the Canadian woman of the 1880s. Was she Tennyson’s ‘Angel’ or Macdonald’s wily ‘Adventuress’? To Charlton and his supporters, women were virtuous but weak creatures who needed the law’s protection from stronger, unscrupulous men. In an 1884 debate, Charlton would crystallize this Victorian perspective: The man is the active, the woman the passive agent to a great extent; and I must hold that in almost every case the man is much the guiltier party ... women are, as a rule, better and more virtuous than men. I believe that they have a higher moral organization, that they are not exposed in the same degree to the temptations that beset men in life; that they grow up in a more refined condition, and that their natural tendencies are better than the natural tendencies of men.20

The chivalric tendency of the legal system should, in Charlton’s view, be extended even further to recognize this difference between the sexes – that the virtue and purity of women should be guarded by the criminal law. This position reflected a unique perception of women for, as one of Charlton’s supporters commented, seduced women were ‘simple “soft” girls’ and women, because of their lack of sophistication, were easy prey for men. In a later debate, Charlton would cite a shocking statistic, that of 18,700 summary convictions of females in Ireland, 11,463 were of prostitutes. He attributed the creation of this ‘degraded class’ to seduction, that these women had been exposed to premarital sex and afterwards naturally turned to prostitution.21 While this perception flattered women as being by far the most virtuous sex, it also condemned them as brainless creatures who easily gave in to temptation and, once having done so, would inevitably become even more degraded. Macdonald and Cameron, on the other hand, saw women as worthy and occasionally unscrupulous opponents who could use the illcontrolled spark of sexuality against men. In response to Charlton’s assertions that women would never use seduction for purposes of blackmail, Macdonald simply replied, ‘I have known of several cases in my own practice.’ The seduction bill’s likely beneficiary, in the view of Senator Henry Kaulback, was ‘an unprincipled adventuress’ who was determined ‘to trade in her own loss of virtue, and to entrap and make victims of the youth of our country.’22 By this interpretation, women were strong, designing creatures, able to use their sexuality to inveigle hapless males. By the spring of 1883, Charlton’s bill had caught the attention of the

86

courted and abandoned

press. In a lengthy comment on social reform, the Toronto Globe praised Charlton’s bill: ‘It casts the shield of legal protection around the weak, the facile, the thoughtless and the inexperienced.’ As matters stood, Canadian law proclaimed ‘free trade in seduction.’ The Globe accused Macdonald of having eviscerated the bill by removing the clause concerning seduction committed under a promise of marriage. This was a prime illustration, editorialized the Globe, of the relative moral standards of the Liberals and the Conservatives. Macdonald’s anxiety to protect men from blackmail contrasted with ‘his scanty consideration for the far greater wrongs continually suffered by the unfortunate victims of the seducer’s perfidy.’ With boundless hyperbole, the Globe characterized the Tory view of women as a ‘mere toy for man’s hours of leisure, to be caressed or abused as the caprice of the hour may dictate.’23 Beyond this exaggeration, there were pressing concerns with the potential impact of Charlton’s bill. The Toronto Daily Mail published a letter in which Charlton’s bill was dismissed as ‘a distressing irruption of Pharasaism’ and an attempt to inject religion into the civil laws. The writer cited Professor Goldwin Smith (a professed opponent of the criminalization of seduction) that every woman ‘knows that a promise is not a marriage.’ The law already protected women against forcible sex, and to go further would be to ‘interfere alike with self-respect and equal freedom, nor could be desired by any true woman.’ Moreover, Charlton’s bill demeaned women for it told them that ‘they are so effete in virtue, so chilled in heart, and empty in brain, that their only hope of honorable existence lies in terrorizing men by placing seduction upon the criminal code as a “crime” in men but not in women.’24 Added to these charges was a fundamental criticism of inserting moral values into the civil laws. The Hamilton Spectator, in an editorial entitled ‘Virtue by Statute’ held that ‘We have little hope that men and women can be made moral by Act of Parliament’ and that well-meaning people wrongly felt that ‘drunkenness can be prevented by prohibition and heinousness stopped by imprisonment.’25 It was the nature of man, thought the Spectator, to take liberties and ‘the man who finds the opportunity is not likely to consult the statutes of 1883 on the subject.’ The teaching profession was particularly stung by Charlton’s bill: they resented being singled out for consideration in a criminal statute. G. Mercer Adam, the publisher of the Canada Educational Monthly asked ‘if the bill is to enumerate the classes against which society is asked to protect itself, why stop – or indeed why begin with teachers?’ At a meeting of Toronto teachers in April 1883, Charlton’s seduction bill was

Virtue by Statute 87

condemned as an insult to the teaching profession. One teacher suggested that the bill presupposed that teachers were of low moral character and ‘They might as well hang a dog as give him a bad name.’26 Charlton had his supporters among the liberal press. The Toronto World, a newspaper sympathetic to working people, thought the bill long overdue. A World writer recognized that in situations of illegitimate births that the seduced woman ‘pays the heaviest penalty in her shame, her physical sufferings, the utter ruin of her character and the cares and cost of supporting her illegitimate offspring while the seducer escapes from every penalty.’ The only solution to this imbalance was to criminalize seduction. The Seduction Bill of 1883 was widely commented on in editorials across Canada. A Halifax newspaper considered it a ‘triumph’ but noted that it was likely to suffer at the hands ‘of the sharp old men in the Senate.’27 The seduction bill passed third reading, but did indeed fail in the Senate. Sir Alexander Campbell saw to that. Campbell, the minister of justice, gave the government’s perspective on the bill: ‘You would put in the hands of a licentious woman, or a woman full of passions, or one anxious at all hazards to accomplish her ends, not only great power, but an absolute temptation to sin, because she would feel “I shall have that man in my power. He must marry me or go to the Penitentiary.”’28 The tories ruled the Senate and the prospects of Charlton’s bill appeared to be bleak. One of Charlton’s advocates, Senator R.W. Scott, noted the absence of that one group mostly directly affected by the debate. ‘This is a congress of males,’ Scott observed, and ‘it is quite clear that the female portion of the community is not represented here.’ The prevailing norms put all the odium on the seduced woman, for ‘she becomes a Magdalen,’ and ‘loses her opportunity for taking that position in life which all women aspire to, of being the wife of some respectable man.’ Scott was also a practising lawyer, and in his experience, most seduction claims were genuine, for women felt excruciating shame after a seduction and were frequently driven to kill the child. The bill would redress this imbalance by legislating part of the penalty onto the man. While the bill was lost in the Senate, the Globe encouraged Charlton to persevere: ‘Whatever may be the fate of the bill this year, Mr Charlton has nothing to lose since its principle has been asserted by the House of Commons by overwhelming majorities.’29 The bill was gradually refined and began to generate support. The section selecting teachers for special treatment was dropped. Seduction of a previously chaste female was made a misdemeanour only if she

88

courted and abandoned

was under the age of twenty-one. Labour unions endorsed the bill as an important measure to protect female workers from sexual exploitation.30 For example, the Knights of Labor in Hamilton had become involved in the seduction issue through their support of the clemency campaign of Maria McCabe, an Irish immigrant who had murdered her illegitimate child. As working-class women were at risk of bearing the entire burden of illegitimacy, the Knights of Labor supported Charlton’s bill as a measure to equalize the burden. According to the Hamilton Palladium of Labor, workers had a particular concern in seeing Charlton’s bill passed, to protect their labouring sisters from ‘lecherous employers.’ Religious institutions also began to support Charlton. The General Assembly of the Presbyterian Church in Canada unanimously endorsed Charlton’s bill in 1885. Nor were judges passive observers of the purification movement. A Presbyterian committee on the issue chaired by Justice MacLennan expressed its concern that offences ‘against the chastity of women’ was a growing problem. With the support of major Protestant churches and organized labour, Charlton’s bill now seemed to have sufficient momentum to succeed. But the Senate still stood in the way. The 1884 seduction bill was passed by the House of Commons, but was blocked by the upper chamber. According to the Globe, Macdonald was quietly content with this impasse, for ‘the uselessness and servility of the Senate have again been demonstrated ... Sir John Macdonald who takes a cynical pride in showing the country how completely he is the master of the Senate.’31 Strangely enough, these subsequent bills failed to generate the controversy that had arisen in 1883. In 1884 Charlton gave a speech in Almonte, Ontario, the day after introducing the bill and he failed to even mention it. The criminalization of seduction had become a persistent, but peripheral issue. By 1885 the mood in Parliament was shifting. Even such a staunch opponent of previous bills as Sir John A. Macdonald was recognizing the inevitable and was swinging about to support it. Ever the flexible politician, Macdonald was probably reflecting the popular mood. After Charlton proposed his amendments to the Offences Against the Person Act to criminalize the seduction of a previously chaste female under the age of twenty-one, Macdonald rose to speak in support of the bill. To loud cheers (some of them no doubt sarcastic), Macdonald added that he was ‘particularly anxious that this bill should pass.’32 Only days after this debate, the British Parliament also considered a bill to protect women. However, the principal interest of this bill was to halt a supposed white slavery traffic in British girls being abducted and

Virtue by Statute 89

taken to the continent for the sex trade. W.T. Stead, a notorious anti-vice campaigner, had gone to the extreme of fabricating a situation in which a girl was bought for the purposes of continental prostitution. Stead wrote a sensational piece in his newspaper, the Pall Mall Gazette, ‘The Maiden Tribute of Modern Babylon,’ that described the alleged white slave trade in decent English girls. This case brought the necessary public pressure to bear to pass the 1885 Criminal Law Amendment Act. Later it was discovered that the crisis had been largely fabricated and that Stead’s subject had been abducted by him. He was convicted and sent to prison.33 No matter, the purity lobby had triumphed and the resulting act mandated the suppression of brothels and the punishment of those who forced women to work there. The British statute was comparable to the Canadian proposal, for both made it a misdemeanour to have sex with a female between the ages of thirteen and sixteen. During the previous seduction debates Charlton had cited American precedent. Now, at last, he had a thoroughly British provision to rely on. By 1886, the momentum in favour of the seduction bill was overwhelming. Charlton introduced it for the fifth time, tabling a petition signed by thousands of women demanding protection from seducers. The bill, now supported by Liberals and Conservatives, was easily passed. Even senators were prepared to accept it as ‘legislation that is needed, and comes before us with an example we may safely follow; that is, British legislation.’34 Significantly, the bill was now entitled the ‘Bill for the Better Protection of Women and Girls.’35 The protection of women, as opposed to the advocacy of morality, was obviously a better selling point. The statute contained a significant provision, and one which was unique among similar statutes in British domains. The act made the seduction of a female ‘of previously chaste character’ between the ages of twelve and sixteen a crime. This clause was apparently modelled on a phrase in the German seduction law, for Charlton observed that ‘the law in Germany makes it a misdemeanour to seduce a female under sixteen years of age, provided she is of previously chaste character; and it seemed to me that it was only just that that provision should be inserted in this Bill.’36 Two distinct classes of females were thereby created and only those of chaste character could call on the protection of the law. All others were beyond the pale and, presumably, were not the women Charlton intended to protect. The act retained the distinction between seduction and breach of promise of marriage. Any man over twenty-one who used a promise of marriage

90

courted and abandoned

to have intercourse with an unmarried female under eighteen had committed an offence. In keeping with British law, the inducement of a girl under the age of twelve to enter a brothel was a felony; if the girl were between the ages of twelve and sixteen, the act of inducement became a misdemeanour punishable by two years imprisonment. In every case, the prosecution had to show corroborative evidence. There was no great public reaction to the act, and it was largely ignored by the press. Even Charlton’s local newspaper, the Norfolk Reformer which called it ‘among the important public measures of the session’ gave few substantive details. Throughout this struggle, Charlton had received little credit. ‘I have been subjected to many gibes and to some abuse,’ he complained in the House. ‘I have been characterized as the apostle of cant.’37 Yet in his unpublished memoirs, Charlton proudly noted that the act ‘to protect women and girls,’ as he called it, was popularly referred to as the Charlton Act. Debate on the legality of extramarital sex was being carried out across the Anglo-American world. Although surprisingly consistent (in that seduction became criminalized in Britain, many American states, and Canada), the results were not exactly harmonious. The colonies of South Australia and Tasmania adopted seduction laws similar to Britain’s in 1885, but New South Wales hesitated to follow. The prime advocate of New South Wales’s seduction bill accepted that ‘Women as a rule were chaste, and very few went wrong unless they were placed in peculiar circumstances or were deluded by some unprincipled vagabond.’ However, the opposition, in an eerie similarity to Macdonald’s views, considered those women who cried seduction were morally suspect and it would be unwise to put men at their mercy, so the colony refused to criminalize seduction.38 Social Purity Enforced The movement begun by Charlton’s agitation did not end in 1886. In subsequent years, D.A. Watt, a zealous reformer and leader of Montreal’s Society for the Protection of Women and Girls, lobbied intensively for stricter laws against procuring girls for the purposes of prostitution. Unlike Charlton, Watt was heavily influenced by popular British campaigns such as that of W.T. Stead. Thanks to his efforts, Canada developed a comprehensive code regulating sexual activity. When amendments to create Canada’s Criminal Code were first drafted in 1890, Watt stormed the Department of Justice with proposals to

Virtue by Statute 91

strengthen the purity laws. He suggested that the age of consent be raised to eighteen (to match a Massachusetts law) and should extend the protection given to immigrant females.39 If given his way, Watt would have raised the age of consent to twenty-one but, to his regret, this was considered impractical. When the Criminal Code was debated in Parliament in May 1892, there was some concern expressed at the growth of moral offences. One member, David Mills, felt that these came from ecclesiastical law and had no place in a secular code where only proper concern should be ‘attacks upon property or life.’ Yet it is a measure of how far the purification movement had come that the Justice Minister (and Macdonald’s chief lieutenant), John Thompson, defended Charlton’s act and associated moral laws on the basis that seduction and enticement ‘are offensive to the people, or set a bad example.’40 Watt’s persistence was reflected in amendments which raised the age of consent to eighteen and increased the age of ‘unlawful harbouring in a brothel’ to twenty.41 Yet even the placing of seduction in the Criminal Code subtly revealed the true appreciation of the offence. Seduction of a female under the age of sixteen, or the seduction of a female under eighteen under the promise of marriage fell under Part XIII, which was contained within Title IV ‘Offences Against Religion, Morals and Public Convenience.’ Seduction of a female under twenty-one who was in the seducer’s employment in a factory (in 1900 this protection was extended to shop and store workers) was also made a criminal offence. More traditional sexual offences such as rape were included in Part XXI under Title V ‘Offences Against the Person and Reputation.’ Wherever it was found, the end result was that ‘Canada’s Criminal Code of 1892 had and retains the most comprehensive system of offences for protecting young women and girls from sexual predators.’42 The movement for social purity now seemed to have its own momentum. In Toronto, Mayor William Howland (elected 1886) created a special Morality Department to act as the mailed fist of social purity. This department would be responsible for laying charges for offences against morality and generally guarding the public against impurity.43 In 1892 Ontario amended its Municipal Act to permit municipalities to pass by-laws to prevent ‘vice, drunkenness, profane swearing, obscene, blasphemous or grossly insulting language, and other immorality and indecency.’ The propagation of a new moral order, enforced by statute, was well under way. Pronouncing on these moral certainties in Parliament was one thing.

92

courted and abandoned

Enforcing them in the criminal court, where the vagaries of human conduct left few certainties, was quite another. ‘Despite the severity of the penalties imposed by the Charlton act, the offences which is proscribes do not seem to diminish,’ warned the Toronto Globe in October 1889. ‘In fact they seem to be of common occurrence in the County of Hastings for there is scarcely a court but there is a case or two of this character to be disposed of.’ The report went on to detail a local scandal in which a school teacher had debauched a pupil. So great was public outrage that the perpetrator barely escaped lynching before being taken into custody. In 1894 three white youths in Windsor, Ontario, were convicted of having sex with an underage black girl. They received three months detention and a harangue from a magistrate, who ‘said the case was one of the most shocking that had come under his notice for a long time. He wished he had it in his power to have the boys given a taste of the lash.’44 Even when a seducer escaped the consequences of Charlton’s act, the result could still be devastating. At the London, Ontario, assizes of 1894, the family of a seduced woman withheld prosecution for a year in the hope that the seducer would marry the girl. As the father explained, ‘That is what that man should have done. It would have saved the poor girl he had ruined.’ But the statute specified a strict one-year limitation from the date of the offence, and in these circumstances, an acquittal was mandated. But before the smirking prisoner left the dock, he had to endure a withering admonition from Justice Robertson: I want before this multitude to tell you what I think of your offence. It is that you proved yourself a dastard. You ruined the poor girl under promise of marriage. There is no doubt of it in my mind. You seduced that poor girl and this statute was made for the purpose of catching just such characters as you. You have been saved by a mere technicality ... You have wronged a poor girl, stolen her virtue and robbed her of her prospects in life.45

The young man left the courtroom spurned by all, even his own family. Judges applied the new law with a will, for in 1890 a teacher convicted of debauching a student was given twenty-three months’ imprisonment and, in passing sentence, the judge regretted that he could not award any more.46 In 1894 Robert Perry, aged sixteen, used the absence of parents as an opportunity to have intercourse with a compliant thirteen-year-old cousin. Even after his conviction, the jury pleaded

Virtue by Statute 93

for mercy based on his age. But the judge would have none of it, and after a tongue-lashing, sentenced young Perry to five years in the penitentiary ‘to allow his sentence to serve as a warning.’ The severity of this punishment is all the more notable in that it was for an act of adolescent sexual experimentation which only eight years previously would not have carried any criminal liability at all.47 Criminal seduction seems to have had a number of consequences, some anticipated, others unforeseen. As Macdonald had warned, the offence could be used to coerce reluctant bridegrooms to the altar. In 1890 Frances Cornyea of Tweed issued a warrant for the arrest of Walter Lynch for criminal seduction. After laying the charge, she informed the crown attorney that she intended to withdraw because of an impending marriage. The following year, in Fitzroy Township near Ottawa, a local farm boy seduced the daughter of a respectable family. Promising his undying devotion, he had courted her and was permitted to ‘keep company’ with her in the kitchen. Unknown to the parents, the couple had sex on the kitchen table. When the parents learned of their daughter’s pregnancy, they confronted her suitor and insisted that he marry her. Initially he denied any responsibility for her condition or, if he was, that he had ever promised to marry her. The girl’s mother then suggested that they could offer him a home on a neighbouring farm if he agreed to a marriage. The suitor agreed to consider this but later relented. The love affair had become a negotiation of terms, and when this failed, a criminal charge was laid under Charlton’s act. The lawsuit in Cole v. Purdy (1889) began with the seduced girl charging Purdy under Charlton’s act. When the criminal charge failed, she sued him for breach of promise of marriage. However, before this could be heard, he relented and married her. Cases such as this indicate that criminal seduction was a formidable addition to the female arsenal that in many cases enabled them to force a hesitant suitor to the altar. It has been suggested that there existed a barter system between the sexes,48 whereby women traded sex for marriage. If so, then Charlton’s act was of significant benefit to females, for in addition to the civil tort that could bankrupt a man, she could have him committed to prison as well. Thus, Karen Dubinsky has concluded ‘In several of these cases, the threat of court proceedings seemed to force the men involved to uphold their part of the sexual bargain by marrying the woman ... despite the low conviction rate, the law gave some women a degree of bargaining power to make men uphold their part of the sexual bargain.’49 Yet one has to question whether it was a proper use of the

94

courted and abandoned

criminal law to enforce one person’s civil rights over another. In many instances the threat of a charge under the seduction law was being used to compel a marriage or a civil settlement. This was clearly a misuse of the criminal law and it is questionable how warm and loving were those marriages that resulted from a threat of imprisonment. Criminal seduction also had a long-term effect not foreseen by its advocates. Charlton’s act became a useful tool for parents to manipulate their children’s lives. When the father of eighteen-year-old Anna Balakovsky laid charges against his daughter’s seducer, she was called by the Crown to prove the charge: ‘Is he the father of your child?’ asked the magistrate. With considerable poise, and not betraying a moment of embarrassment, she responded: ‘I refuse to answer that question, sir.’ She further told the court that charges had been pressed by her father and that, for her part, she had no intention of testifying. Confronted with her determination to protect her lover and her own privacy, the charge was dismissed.50 In 1903 one vigilant father with an eye for carnal observation heard rumours that his daughter Mary Ellen had been having an amorous courtship with a young ironworker. The father spied on the couple and one evening observed their courting in the kitchen. He recounted for the court watching his daughter: ‘I saw him sitting on her knee with his arm around her neck and they were kissing each other. In a few minutes they changed places and he raised her clothes and he unbuttoned his trousers ... he accomplished the act ... he seduced her.’51 There was no comment from the court on his voyeuristic spying on his own daughter. He brought the seduction charge, even though the supposed victim refused to testify. In this manner, a parent could use the new morality laws to end a relationship he disliked. It furthermore enabled a parent to control his child’s sexual activity and expose her intimate private life to public scrutiny at his discretion. Rather than levelling the scales between the sexes, Charlton’s act must have been viewed by many young women as an unwelcome intrusion into their privacy and an affirmation that they remained under their parent’s authority. The introduction of criminal seduction inevitably led to a blurring between civil and criminal acts. Where a man had used force or persuasion to have sex with a girl, the civil jurisdiction may have been ousted. As Justice Teetzel commented in Czerwinski v. Harlock (1905) where a father sued for the maintenance of a seduced child, that if ‘the evidence was correct, it was proper for the Crown Attorney to apply the Criminal Code.’52 The overriding importance of applying the Criminal Code

Virtue by Statute 95

could prevent a situation from being handled discreetly by the civil law. For example, during the Flesherton Seduction Affair of 1907 it was revealed that the seducer, one Hugh Thompson, had reached an agreement to pay $400 in cash and a mortgage on his farm to the family of the seduced female. However, before a release could be signed, criminal charges were laid. The family’s lawyer noted that ‘if criminal proceedings were to be taken he did not think it would be fair to Thompson to have him pay money to settle civil proceedings.’53 The criminal charges had interfered with what would have been a straightforward civil case. There was also confusion as to the distinction between rape and seduction. In Queen v. Doty (1894), the prisoner was originally charged with rape. However, the evidence would not support this charge so the jury convicted on the lesser offence of seduction.54 On appeal, the prisoner’s counsel argued that rape and seduction were distinct offences. However, the trial judgment was upheld and seduction became a lesser, or subsisting, charge to rape. The distinction between civil seduction, rape, and criminal seduction was becoming increasingly vague. In 1888 Charles Lawrence was alleged to have dragged his fourteen-year-old servant Ellen Hebb from a rig as they traversed a long stretch of prairie outside of Winnipeg and raped her. Later, he was accused of assaulting her as she was milking cows. Lawrence’s counsel argued that ‘the plaintiff had gone too far, and had made out a criminal charge against Lawrence, and the civil side could not be invoked before the criminal side had been satisfied.’55 Had he criminally seduced the child, raped her, or merely committed a civil tort? The jury took the well-travelled road and awarded Ellen’s mother a large award for civil seduction. Cases such as these showed the transition of disapproval of illicit sex among young unmarried couples from public disfavour to the broader criminal arena. As Justice Osler observed in R. v. Karn (1909), the provisions to prohibit sex with women between the ages of fourteen and eighteen were intended to criminalize ‘certain acts hitherto only unlawful in the sense that they were breaches of the moral law.’56 As a young man at the turn of the century, Canada’s future prime minister, Mackenzie King, appears from his diary to have furtively visited prostitutes on his strolls of Toronto’s back streets. King was almost driven insane by remorse for these deeds which, only a half century earlier, would have been shrugged off as the natural frolics of a young man.57 The pervasive impact of the social purification movement may have accomplished its purpose and imparted virtue by statute, or even the mere threat of statute.

96

courted and abandoned

Yet the purification of society had its limits. Canadian morality laws were unique in that they created categories of women and the law’s protection was limited to those women ‘of previously chaste character.’ But what constituted chastity? The courts of the Northwest Territories were confronted with this problem in 1903 in Rex v. Lougheed.58 The victim, Kate McCutcheon, had been having sex with the accused for a year and a half. According to her testimony, about once a week he promised marriage. When she became pregnant and he continued to balk at marriage, she had him charged with seduction. Was Kate of ‘previously chaste character’? According to American sources, chaste meant just that, the woman had to be a virgin prior to the seduction. Justice Prendergast relaxed this definition to spread a wider net and instead felt that the court should look at ‘disposition of mind which constitute an unmarried woman’s virtue or morals’ as well as an exhibition of ‘such conduct and behaviour as to imply reform and selfrehabilitation in chastity.’ Unfortunately for Miss McCutcheon, the judge felt that her sexual history outside of marriage was too extensive to admit her to the ranks of the chaste. According to Prendergast, the fact that ‘she had illicit connection with the accused from week to week for the space of fifteen months’ precluded any finding of ‘previous chaste character.’ To illustrate the extent to which the phrase could mean whatever the judges wished it to mean, the Alberta Supreme Court stretched the notion of chastity to an absurdity when it held that a young woman who left home, fell in with a criminal crowd to take up the ‘sporting life,’ and become a prostitute was of chaste character. Justice Walsh reasoned that the bait which the man held out to her was money, and ‘if instead of doing this, he had by adopting the course which the practiced seducer usually adopts, created a desire for sexual intercourse which after a time she found it impossible to control,’ then the end result was all the same. According to this interpretation, either money or artful persuasion could bring down a chaste girl.59 Clearly, Justice Walsh came from the school which considered all women (even prostitutes) to be Tennyson’s angels; essentially pure creatures, but so feeble of will that they were always susceptible to male wiles. By contrast, the Nova Scotia Supreme Court preferred the American interpretation. In R. v. Comeau (1912), that court ruled that the complainant must show that she was chaste, and ‘chaste character as here used means actual personal virtue, not reputation. The woman must be chaste in fact.’60 This view also seemed to prevail in Quebec. Justice Langelier considered a

Virtue by Statute 97

woman who had previously committed acts of gross indecency to be beyond the law’s protection. According to him, ‘she has shown by her manners that she could not be put on the same footing with pure women for the protection of whom the law has been framed.’61 Charlton’s act only shielded the pure. The act would not appear to have been uniformly enforced across the country. For example, the Winnipeg fall assizes from 1890–2 do not reveal any charges under these sections. Police in London, Ontario, recorded 654 convictions in 1905, but only one of these was for seduction. It has been estimated across Canada that the average yearly conviction rate for those few seduction charges which were laid was about 9.1 percent between 1900 and 1910.62 This contrasts directly with the success rate of about 90 percent for civil seduction cases. Constance Backhouse has interpreted a similar differential between civil seduction and rape cases (where the rate of conviction was estimated at about 34 percent) on the basis that civil seduction trials pitted one man against another. Therefore, the difference ‘relates to the visible presence of the woman’s father in the seduction trial, a factor which turned the competition into one between two males,’ and further that in civil seduction trials male jurors were sympathetic to the father’s ‘sense of loss and repeatedly attempted to avenge his dishonour’ while they were indifferent to the plight of a raped woman.63 Yet she fails to account for the fact that in breach of promise actions commenced by women, the success rate was similar to or even higher than seduction actions begun by fathers (see appendices A and B). Her conclusion also fails to appreciate the difficulty in obtaining a criminal conviction based on a standard of reasonable doubt versus a civil case which need only be proved on a balance of probabilities. Because of the higher standard of proof in criminal charges, the conviction rate was likely to be lower. Attempting to portray civil seduction as succeeding because it was a male domain ignores a crucial factor that in many, if not most, criminal seduction cases, it was also the seduced female’s father who initiated the charge. The low conviction rate can be explained by several factors unrelated to any bias in the courts. Charges had to be laid within a year and many complainants, hoping for a marital resolution, failed to abide by the deadline. Parliament had also stipulated that in order to succeed, a charge of criminal seduction had to be corroborated by material evidence. As the crime arose out of a private (frequently illicit) relationship, corroborative evidence was often lacking. In R. v. Pieco, the Alberta Supreme Court ruled that evidence that the victim’s mother had once

98

courted and abandoned

caught her daughter sneaking out of a window to meet the accused at a street corner was insufficient. However, in the majority of cases, judges strained the meaning of corroboration to sustain a conviction. For example, the Ontario Court of Appeal in R. v. Daun accepted as confirming the seduction evidence that the accused and his victim had their picture taken together and in R. v. Burr, Ontario’s Chief Justice Moss rejected a strict application of the rule requiring corroborative evidence as it would ‘virtually render a conviction impossible.’64 In the latter case, the accused’s merely saying that he wanted to have sex with the female was held sufficient to sustain the charge. Instead of fostering a masculine-protective system, the judges who presided over criminal seduction cases did everything in their power to facilitate convictions. While on the one hand, Charlton’s act stereotyped women as soft and easily misled, it also cast men as lustful connivers. As is the case for all stereotypes, both were misleading, and strangely out of touch with late Victorian society. The social purity movement had flowered at a time when thousands of single young women had begun to migrate into urban areas. Without parental constraints and with some money at their disposal, they became as involved in the excitement and vitality of city life as their male companions. Far from being led to moral ruin, they were likely to have been willing participants in sexual escapades. While single working women were still vulnerable to economic and sexual exploitation, ‘to pleasure-seeking working girls, however, commercial amusements were sites of self-expression and escape from the dreariness of standing behind sales counters and sitting in front of sewing machines.’ Even the acerbic moral reformer C.S. Clark, the author of Toronto the Good, complained that these new city girls exhibited a frightening boldness and that they had cast aside the old rules of courtship to actively seek out men. Clark recounted one huzzy at a public skating park deliberately bumping into the same young man. When a friend admonished her for her forward conduct, she replied: ‘My reputation ... I don’t give a damn for that, I lost it years ago.’65 How relevant to these women were laws which made criminal those sexual entanglements which they might well have instigated? Nevertheless, by the turn of the century it was apparent that those who had wanted to enshrine virtue by statute had prevailed. Moral offences which had previously existed only in ecclesiastical law had become part of the criminal fabric of the nation. The rules and conditions which controlled modern life and maintained social order were extended to control society’s view of improper sexual relations. By so

Virtue by Statute 99

doing, the law intruded into the barter system between men and women and even enabled parents to manipulate their children’s relationships. Debate on Charlton’s act had also shown the diversity of attitudes towards women, either as the innocent victims of male lust or, as other male legislators saw them, strong adversaries ready to use the law to their advantage. In the end result, the Victorian perception of young women as hapless creatures who needed the law’s protection prevailed. Yet, above all, Charlton’s act reflected the law’s increasing capacity to regulate human affairs, even the most intimate relations between a man and a woman.

7 An Action of Their Own

The ascendancy of social purification did nothing to help a seduced woman such as Catherine Bachsinger. In 1886, the same year that Charlton’s act was passed, this twenty-year-old Welland, Ontario, woman was seduced and bore the child of one Bell. Her mother and stepfather sued for $3,000. The defendant’s lawyer, B.B. Osler, crossexamined Catherine and took her through the details of her affair with Bell. After leaving her stepfather’s farm, she had worked in St Louis, Missouri. Returning to Welland, she had met Bell, and became intimate with him. Upon learning of her pregnancy, ‘I wrote the defendant one letter asking him to come and make it all right.’ Osler moved, unsuccessfully, to dismiss the case on the basis that when Catherine’s mother remarried, she lost all rights. In summation, Catherine’s lawyer appealed to the jury ‘for the girl who had by the act of Mr Bell been disgraced’ – that is, he appealed directly on behalf of Catherine and not her parents, that ‘the damages claimed, $3,000, are not too high when all things are considered, for the bringing up and maintenance of the child.’ Osler reminded the jury that Catherine was not living at home, did not provide any services to a parent, and therefore had no legal claim for damages. Justice Galt, in an address that could have been taken from Chief Justice Robinson a half-century earlier, instructed the jurors that ‘it was not for the loss of service that the law intended damages should be awarded but for the moral injury and the loss of honour sustained.’ The jury gave an award of $1,500.1 It was a near run

An Action of Their Own

101

thing, and if the prevailing law requiring the plaintiff to prove loss of services had been applied, Catherine would likely have been left with nothing. While the new statutes criminalizing seduction of young girls demonstrated the force of the new morality, they were not often applied and seldom led to convictions. Civil seduction, on the other hand, was a regular feature of the courts in late nineteenth-century Canada. The benchbooks of Ontario judges for the last two decades of the nineteenth century demonstrate the incidence of seduction cases. The benchbooks of Justice Sir Adam Wilson show that of twenty-two civil cases tried between 1866 and 1873, two were for seduction; similarly, Justice Galt’s benchbooks demonstrate that civil seduction comprised 9 per cent of all civil cases tried at his assizes from 1881 to 1882. Between 1880 and 1882, Justice J.D. Armour’s court decided on four seduction cases out of a total of sixty.2 At the Huron county assizes of 1876, five out of eight civil cases were for seduction and at Pembroke in 1891, two out of seven civil cases were seduction and one for breach of promise of marriage.3 Far from being a mere symbol of society’s disapproval, the seduction tort was a tangible and frequently invoked proof of public censure. By the last two decades of the nineteenth century, it seemed as if those cases alleging criminal seduction arose in towns or cities where more sophisticated parents sought to use the force of the state to compel a settlement or a marriage. However, civil seduction was still relied on in the country in circumstances that would have been familiar in frontier days. Minnie Brousseau was a servant to a local farmer. When it was discovered in 1891 that he had impregnated her, he was forced to tearfully confess the situation to his own wife, Minnie’s family, and the neighbourhood.4 It was a rural tale that might well have occurred in the earlier part of the century. Notions of rustic chivalry still dominated the seduction hearings, for at the beginning of the case of Jones v. Coulter (1880) the parties asked for an adjournment as a marriage had been proposed as a method of settlement. This was an excellent idea, thought Justice Armour, for ‘if he had the making of laws, he would compel any man seducing a girl to treat her as his wife and support both her and the child.’ However, the parties were not reconciled and as the case proceeded Armour left no doubt where his sympathies lay: ‘if young men kept away from young women, such suits would not be brought,’ but if they were, ‘he urged the finding of heavy damages, as these cases seemed to be increasing in number.’ The jury willingly obliged with a verdict of $2,000, twice as much as the sum claimed.5

102 courted and abandoned

The father of Mary Hope also profited from the concern from both juries and judges to preserve rural honour. ‘The parties were all respectable and belonged to the farming class,’ noted the case report. Mary’s lover, a Sunday school teacher, had learned of her pregnancy and urged her to come to live with him at a city hotel. He alleged that this was at her own request as ‘her father being a stern man, and she thought he would kill her if she remained at home. It was the defendant’s wish to make her satisfied.’ His lawyer argued that taking her away was done to minimize the damage of this affair. ‘The real facts of the case are, that two young people being thrown together forgot themselves, and the evil being done, the defendant wished as little disgrace as possible to attach to the girl or her family, and got her out of the way in the hope that something might occur, and the whole matter pass off with as little injury as could be done.’ However, at trial he undid his discretion by bringing forward Mary’s letters which exonerated him from blame, denied any promise of marriage, and in which she admitted to having had intercourse with his brother. At first Mary admitted that the letter was hers, but when the incriminating parts were read she reversed her previous testimony and denied their validity. Despite the implausibility of her story, the jury awarded her $1,600. The defendant moved for a new trial on the basis that these damages were excessive and the jury’s finding was perverse to the evidence. However, the judges sided with the jury and even condemned the defendant for bringing forward the letters, as a step ‘calculated to bring her down to a lower depth of degradation than she was in by his act of seducing her.’ Chief Justice Richards upheld the jury’s verdict, but added that, ‘We all would have been better satisfied if the damages in this case had not been so large, but it is not desirable that trials of this sort should be multiplied, or that our courts should be tainted with them oftener than is necessary.’6 Yet awards of this magnitude based on evidence this tenuous all but guaranteed that courtrooms would be repeatedly tainted by tales of scandal. Near the end of the nineteenth century, civil suits for seduction were as popular as ever. Yet, as always, the problem lay in the failure of the 1837 Seduction Act to eliminate the requirement to prove service to a master. This could be a formidable hurdle, especially in a society in which so many women were leaving the farm to work in cities. Increasingly, they avoided domestic service to work in manufacturing. In 1887 the Ontario Bureau of Industry questioned why these women would want to work under the grinding conditions prevailing in factories, for it found that ‘no inconsiderable number are daughters of country farm-

An Action of Their Own

103

ers who prefer city life and fixed hours of work, even at low wages, rather than remain at home, on the farm.’7 But remaining on the farm was no longer desirable to many young women and when they moved out they ceased to render ‘services’ to a parent. In 1897 the Ontario Court of Appeal considered Harrison v. Prentice, a situation in which a daughter had intercourse (without any resulting pregnancy) with her employer. Faithful to precedent, Chief Justice Burton concluded that the feudal requirement to prove a loss in service remained in effect. In a ruling that would become significant years later when one of Canada’s most prominent elected officials stood trial for seduction, he ruled that ‘What has always been required to be proved is that some illness has followed the defendant’s act which has affected or diminished the daughter’s ability to serve.’ In addition, to loss of service, a pregnancy was necessary to maintain the action. But in a portent of things to come, Justice MacLennan, the same judge who had assumed such an active political role in supporting Charlton’s criminalization of seduction, wrote in dissent that the mere act of seduction gave the father a right to damages and that, ‘we cannot shut out eyes to the fact that the act of seduction is what the legislature deemed to be the wrong for which it intended to enlarge the remedy.’8 That is, a father had a property right in his daughter’s virtue and this alone should lead to damages. But this was decidedly not the law, and as the independent working woman could not be serving her father, there was no case for seduction and no hope for relief. As the grand jury at the Lindsay assizes of 1881 reported, in so many cases seduction remedies provided no relief to independent women: We are of opinion that the law in regard to cases of seduction as it now stands is a defective one, especially as in the case of orphan girls and those not under the care of a father for a certain length of time. These it seems cannot avail themselves of the pecuniary redress which the law now provides in such cases. We therefore feel that some change should be made for the better protection of women.9

The courts would rule in numerous cases the actual or implied relation of master and servant must subsist between the plaintiff and the person seduced at the time of the seduction; but there was another remedy available to an independent woman – a remedy based on a wrong done directly to her and in no way dependent on a servile relationship to any other person.

104 courted and abandoned

Independent Women, Independent Action A few women in the last half of the nineteenth century were living lives of unconstrained liberty that would have amazed the previous generation. Sara Jeannette Duncan was a popular writer (under the name of Garth Grafton) for the Toronto Globe and a political correspondent for the Montreal Star. In 1898, together with another female correspondent, she travelled the world and shared her exotic experiences with her readers. In 1897 Clara Brett Martin of Toronto, with the active support of Dr Emily Stowe, Canada’s first woman doctor, became the first woman admitted to the practice of law in the British Empire.10 These, of course, were exceptional women. The vast majority of independent women eked out a living at work such as a ‘jam-dolloper’ in pastry factories or tobacco-rollers for tobacconists. While these women usually worked for low wages and under demeaning conditions, they were independent of family and domestic master and for them the rituals of courtship were no longer under domestic control. While for the wealthy elite chaperonage may have continued, for the new class of working women ‘the rules of right conduct which bound most other women gradually relaxed after 1850 ... New opportunities for work and leisure drew them out of the home and into the community, away from the supervisory gaze of relations and neighbours.’11 Courtship could now take place in public places, under the more relaxed and anonymous conditions of city life. And while lessened surveillance brought greater freedom, as in former times, an unexpected pregnancy was not beyond the control of the law. When that occurred, these independent women had one legal action at their disposal that had rarely been invoked in the first half of the nineteenth century. A promise of marriage was, until the seventeenth century, a matter of canon law. Parties could sue in ecclesiastical courts to enforce or compel a marriage. However, marriage by judicial decree proved impractical, and by the 1600s women were suing for breach of the marriage contract itself.12 When ecclesiastical authority was abolished in 1753, ‘breach of promise of marriage’ became a simple common law action to enforce a contractual right. Much like any other action, the law recognized the right of parties to freely enter into agreements and that such agreements created binding obligations. To that extent, it was indistinguishable from any other commercial contract. As Justice Hagarty advised a jury in Bristowe v. Spear, the groom’s failure to appear rendered him liable ‘just as the case of a man agreeing to be at a

An Action of Their Own

105

place to purchase one hundred bushels of wheat at a given time.’ By intermingling the romantic ideal of love and marriage with commercial pursuits, breach of promise cases were in contrast with the prevailing wisdom that ‘extolled Christianity, the work ethic, the family, marriage, and the home as defences against the persistent threat of social disintegration.’13 In a breach of promise lawsuit, the end of a romance was transformed from a personal tragedy to a pecuniary opportunity, and it was this transformation which trampled on the poetry and beliefs of the Victorian world. The question of whether breach of promise of marriage was a tort or a contract was settled in an early case Davey v. Myers (1824). The prospective groom had died, and his estate’s lawyer, John Beverley Robinson, argued that the bride’s lawsuit had died with him. However, the judges agreed that the action was in contract and could be maintained against an estate.14 Yet breach of promise was strikingly similar to the seduction tort. In most instances, the proceedings were initiated by a pregnancy out of wedlock, and in both cases the woman was compelled to reveal intimate details of her personal life for the public’s consumption; there was almost a charivari atmosphere to any assize that featured a breach of promise or seduction case. It was an opportunity for the locals to hoot at unusual or disreputable behaviour to the discomfort of those who had transgressed accepted norms. At the Middlesex and Elgin assizes of 1852, a breach of promise case ‘excited considerable interest among those whose taste lay in that way.’ Forty years later, the same county assizes featured another breach of promise case and there was ‘a large attendance at the assize court on Tuesday, in anticipation of hearing the breach of promise case.’ The Stratford assizes of 1894 featured two breach of promise cases, and it was reported that ‘a large audience crowds the courtroom anxiously expecting to hear a couple of spicy and interesting stories of blighted affection.’15 As part of this morality play, the woman’s case would usually be based on her reluctance to yield her virtue and that she had only surrendered on receipt of a promise of marriage. The defence also adopted the course recognizable in seduction cases – that the woman was already sexually experienced and it was unlikely that the defendant had fathered the child. In some ways, breach of promise trials can be viewed as a more civilized replacement of the charivari. Charivaris were still common in Canada in the mid-nineteenth century. These public demonstrations, frequently led by youths playing discordant music, were intended to be

106 courted and abandoned

a ritualized display of community disapproval to show ‘the collective wrath of the community [towards] adulterous relationships, cuckolded husbands, wife and husband beaters, unwed mothers.’16 As the charivari faded away, the entertainment it had provided was often supplied by the courts. For example, the 1873 breach of promise action of Florence Major of Yorkville was leading news in the Toronto Globe of April 1873.17 As a plaintiff could not testify, she proved the promise of marriage by tendering various love letters and ‘during the reading of the letters and counsel’s address there was a good deal of amusement created, and it was only on a declaration of his Lordship’s that the court would be cleared that order could be kept.’ Presenting such private affairs in a public forum all but guaranteed a raucous audience, and while the proceedings may have been unseemly (the judge in the above case admonished the crowd ‘for the levity of their demeanour during a trial that must have been painful for all parties’) they nonetheless revealed an improvement in civility over the rowdiness of a charivari. Instead of being entertainment, judges frequently hoped that the public would take these cases to heart as salutary moral lessons. Under the headline ‘What It Costs to Flirt with Young Widows,’ the London Free Press reported the story of the widow Ingersoll, a woman in her late twenties, who had an affair with a younger man. Her lawyer read out letters in which her paramour declared his love – declarations which became more strained after she informed him of her pregnancy. A witness confirmed that until this affair she was ‘a respectable and well conducted woman’ and even now ‘the sympathies of the whole community were with her.’ However, even her lawyer conceded that this untoward event was a severe shock to polite society. Much of that society crowded the London courtroom to grasp every sordid detail of the affair. Even in the absence of a charivari, such conduct needed some public atonement, but this time it came from the bench, where Justice Hagarty condemned Mrs Ingersoll for having been ‘so carefree of her own virtue, and of the reputation of her children, so as to admit a young man into criminal intimacy on a promise of marriage.’ Still, it was the faithless lover whom the public condemned, for the jury held him to account for $300 in damages. While seduction and breach of promise actions were public spectacles and both usually featured a woman who had borne a child out of wedlock, there were significant differences between the two. The female plaintiffs in breach of promise cases were frequently independent women who had been employed for several years. They did not have to

An Action of Their Own

107

rely on any fiction of rendering services to a master, but rather appeared in court advancing a claim on their own behalf. While the evidence rules prohibited a woman from testifying in her own case until 1882, it was important that she appear before the jury as the injured party. These women were not vulnerable waifs, but self-sufficient persons who had been wronged. For example, in Hendricks v. McChesney (1891)18 Emily Hendricks presented herself as a mature woman, and impressed the reporters as a ‘handsome attractive young lady.’ Her lawyer, B.B. Osler, proved that the defendant had left her with an illegitimate child and thereby ‘ruined the plaintiff for life.’ Even though there was no real evidence of a promise of marriage, her evidence inferred that the length and ardour of the defendant’s suit was proof of a commitment. She left the court with a judgment and some shreds of honour. When Clara Erschler sued a former fiancé, she was described as self-confident and a ‘comely looking Russian Jewess.’19 An English court observer noted that the amount of the award in breach of promise cases seemed to have a direct relationship to the attractiveness of the plaintiff. A beautiful woman, particularly if she showed some degree of vulnerability, was almost guaranteed a high award.20 Such a beauty was Mary Fryfogel of Turnberry, Ontario, who was described as ‘very tastefully and becomingly dressed in black velvet ... she was a cynosure to the eye of every person who was not blind to every sense of beauty.’ And even though she had not been seduced by the defendant, the stunning Miss Fryfogel was awarded $250 for having been misled.21 As a young lawyer, Robert Harrison recalled a breach of promise case in 1871 in which he made one of the best speeches he ever made on behalf of the accused man. But it all went for naught as ‘the woman was young and pretty the speech went for nothing. Her face was more winning than my speech.’ Six years later, when he was chief justice, Harrison again paid homage to this proclivity: ‘Attorneys, whose clients are young or good looking, generally conceive it to be their duty, especially in actions of this kind, to endeavour by the presence of the young woman to strengthen the favourable impression which the jurors are asked to take of the evidence.’22 No one seemed better able to take advantage of this tendency in the law than Ceretha Teetzel, a confident, poised young woman from Chatham, Ontario. She appeared in court in 1889 in a fine blue silk dress topped by a Mary Queen of Scots cap and pointed to Paul Walker as the father of her child. With no hint of embarrassment, she described how Walker had courted her, begged to clasp her to his breast, and in

108 courted and abandoned

due course, as the local newspaper reported, ‘Paul’s wish was gratified and the clasping process was given a practical test.’23 Ceretha’s sister, ‘a big strapping woman ... supplied corroborative evidence, and spoke with considerable warmth much to the amusement of a large audience.’ Throughout the case, Ceretha did not stoop to cry, but simply pled her case for what she felt Walker owed her under the law. According to her story (Walker did not appear for trial), he had repeatedly urged her to have sex with him. She had steadfastly refused these suggestions until ‘she at last consented to improper relations, which resulted in the usual way.’ Onlookers were impressed by her unwillingness to humble herself, ‘Ceretha was unmoved. She looked pretty, but the tear that in such cases so often trickles to catch the sympathy of a jury failed to make its appearance.’ She was awarded a large verdict of $1,700 damages. A breach of promise action not only enabled a woman to seek redress in her own right, above all, it enabled her to maintain her self-respect, for although she had surrendered her virtue, she had only done so after a promise of marriage. In many of these cases, it was the woman who initially captured the moral high ground. Myra Hurrell ‘an attractive young lady who earns her living working a typewriter,’24 sued Thomas O’Callaghan in 1889 for breach of promise in the enormous sum of $50,000. There was considerable salacious interest in the case, for ‘a large crowd filled the court-room when the case was called, and everyone appeared anxious to get a look at the fair plaintiff whose affections had been trifled with for such a large amount.’ The personal affairs of the couple were put on public display, including O’Callaghan’s love letters to Miss Hurrell. One major difference between this action and a seduction trial was the absence of the baby, as the root of the action was the promise of marriage. On Miss Hurrell’s evidence, she had remained a virgin and had rebuffed O’Callaghan’s ‘indecent proposal.’ She quickly established herself before the jury as the defendant’s superior. After he had propositioned her, ‘I said I was a poor girl, but not for him nor Hamilton nor all England would I do what he wanted.’ The trial revealed that O’Callaghan possessed considerable assets and, with a verdict for $4,000, Miss Hurrell left the courtroom pride intact and considerably better off than when she had entered. Average awards in breach of promise cases were higher than for seduction and fewer claims were dismissed at trial (see Appendix B). Breach of promise and seduction cases became staple fare for the lawyers of the late 1800s. Myra Hurrell’s lawyer, B.B. Osler, was one of the most prominent lawyers in the country. In the era before motor

An Action of Their Own

109

vehicle litigation, breach of promise and seduction were the source of many well-paying files. In some instances, Osler would take the wronged woman’s arm and accompany her into the courtroom. The jury would see the woman being escorted by one of the most respected men in the country. When acting for the accused man, he would argue that the plaintiff’s virtue was minimal to nonexistent and consequently its loss was of no importance. Osler’s addresses were widely reported and were heard in packed courtrooms. Nor were breach of promise cases infrequent. In the Ontario spring assizes of 1883, numerous cases were brought by disappointed lovers. In the case of seduction, legislators more in touch with popular demands tried to expand access to the tort by abolishing the requirement to prove loss of services. The judges, conscious of their superior role in maintaining moral standards, tried to restrict the action by reinstating the requirement. In breach of promise, the comparable issue to loss of service was the extent to which the courts would demand evidence to prove the marriage contract. Unlike conventional contract cases, it was not necessary to prove a mutual promise; the conduct of the parties could justify an inference of a promise of marriage. The promise could be proved by the exchange of a ring, love letters, or, that the couple had kept company for a number of years. Deep in the emotionally charged atmosphere of a breach of promise case, an isolated piece of evidence might suffice. Clara Erschler of Hamilton came into court conspicuously wearing the engagement ring given to her by her feckless lover. Annie Haines proved her breach of promise case by presenting a letter in which James Hastie gushed that ‘I love you Annie with all my heart and mean to do so as long as you are faithful to me.’25 This note alone was felt to be enough to prove an engagement. The poignant case of Mary Ann Wellington in 1869 showed just how far a jury was willing to go to forge a contract where none seemed to exist. As an orphan, Mary Ann could not make a seduction claim and was compelled to rely on a breach of promise. Her strange story revealed a history of both deception and obdurate love. While still an adolescent, she had gone to ‘Dr Brent’s Turkish Baths’ in Oshawa for an ailment. The young doctor (who despite his title was still studying medicine) became her lover and the father of her child. As Mary Ann could not testify, she had the matron of the lying-in hospital, a Mrs Black, describe the scene in the child delivery: Brent ‘shook hands with her, asked her how she was, and put his arms around her neck and kissed her. She commenced to cry and he said, “Mary my dear, don’t feel bad, I’ll do the best I can.”’ Brent confidently advised the matron

110 courted and abandoned

that he was a medical student and could look after her himself. Mrs Black could not help nudging him: ‘she seems a nice, quiet decent girl,’ she said, ‘why don’t you marry her?’ He responded that at the moment it was impossible, and anyway ‘young people frequently make promises on such occasions that they never keep’ and, for that matter, he was also engaged to another. The following summer the same matron was surprised to again meet Dr Brent and hear his request that an unwed mother be admitted to lying-in, and that the affair be kept ‘as private as might be.’ Her surprise grew upon learning that his patient was the same Miss Wellington. After telling Mary Ann that she considered her to be a great fool, the formidable Mrs Black turned on Brent and asked him what his fiancée thought of this. He merely shrugged: ‘Oh dozens of people in the City do this,’ and he mentioned the names of several prominent citizens. On hearing this the courtroom erupted in laughter. As Mary Ann’s case developed, it became clear that she had such a perfervid love for Brent that she had borne him two children out of wedlock. It was also apparent that her affections were not being returned, although he did find her a useful source for sexual gratification. At the conclusion of the trial, Brent’s lawyer argued that this was a case of ‘mutual wrong’ and that ‘as the plaintiff had a second child by defendant, it was plain that she was largely to blame.’ While Brent was more unprincipled than most, the trial judge felt obliged to caution the jury that there was no real evidence of any promise of marriage which created a contract. If anything, the evidence suggested that Mary Ann was content to be his lover with no prospect of marriage. But just as juries were willing to see a loss of services where none existed, they were prepared, in the case of the deceiving Dr Brent, to presume that a promise of marriage had been made and Mary Ann was awarded $500 in damages.26 It was perhaps because of this tendency of juries to stretch the law, to fabricate the elements of a contract, that legislators looked with such suspicion on breach of promise actions. Perhaps their concerns were similar to those which agitated against the criminalization of seduction – that is, that women could twist the law to their own ends. Even though the evidence rules were relaxed in 1867 to permit plaintiffs to testify, breach of promise cases were specifically excluded.27 It was not until 1882 that women were permitted to testify in their own breach of promise cases, and even then corroborative evidence was required.28 If the legislature was so suspicious of the ‘designing woman,’ what was the attitude of the judges?

An Action of Their Own

111

Justice John O’Connor was far removed from the ‘quality’ who had previously occupied the bench in central Canada. He had grown up on a small farm in an Irish Catholic enclave in southern Ontario. A farming accident in which one of his legs was amputated left him unable to do manual labour and he turned to the law. After establishing a successful practice, he took to Dominion politics and served for several years in the Macdonald cabinet. He was appointed a judge of the Queen’s Bench in 1884; the first Roman Catholic to occupy the post.29 His judgments displayed a popular understanding of some of the difficulties courting couples faced in the 1880s. In Costello v. Hunter (1886) the only corroboration of the marriage promise was a witness who swore that the defendant said that young women were pursuing him in order to get his fine brick house but, ‘they were not going to get it, none of them. He says, I am going to take the one that wants me, not the one that wants the house. I said, “I suppose that is Ann Costello” and he said “yes.”’ O’Connor was willing to give the widest latitude to corroborative evidence and after considering all of the surrounding circumstances, ‘if altogether there is evidence as makes her story a highly probable one, that is sufficient.’30 Unless this approach was taken, it would be almost impossible to prove a breach of promise. Showing an awareness of human foibles, he noted that ‘young men, when they are going to, as they say “pop the question” do not do it in the presence of others as a general thing.’ Two years later, in Yarwood v. Hart (1889),31 the judges would accept evidence that the couple was of the same social status and had been courting for six years as sufficient corroboration. Chief Justice Armour noted that there was evidence that they had been exclusive in their courting and that he had showered her with gifts. This was just the kind of evidence that was always relied on to infer a promise of marriage. The defendant argued that this evidence was equally consistent with the keeping of the plaintiff as his mistress. Perhaps it was, but the chief justice ruled that the presumption of the law would fall ‘against the immoral relationship, and in favour of the moral one.’ While the legislature restricted access to the action by imposing evidentiary hurdles, contemporary judges seemed inclined to relax the burden of providing corroborative evidence to enable independent women to succeed. The Consequences of a Lost Union This eagerness of both judges and juries to presume evidence in favour of the marriage contract also reveals a unique social nuance of late

112 courted and abandoned

Victorian society. That is, it was assumed that almost all respectable women aspired to the married state. Pressure from family, parish, and community all impelled women towards marriage. Therefore, a failure to marry was a tragedy, and any acts which diminished a woman’s prospects of marriage would be considered as damaging. Publicly humiliating a woman, causing her to bear a child out of wedlock, or simply keeping her off the market by a lengthy engagement, were all acts which reduced a woman’s chance of a proper union, and should, most right-thinking persons would agree, entitle her to recompense. Any middle-class female who did not marry had ‘failed in business’ or was merely ‘redundant.’ In the eyes of the world, she was deemed to be a failure and, as unfeminine as it may have seemed, boldness in seeking a mate was required to avoid this fate.32 As an editorial in the Toronto Globe of 1887 advised, modern women ate healthily and dressed warmly for there was ‘little claim for weaklings in the race for husbands.’ The breach of promise cases described in the stories of Florence Major and Myra Hurrell also echo the world of Jane Austen, where marriage was the focus of a young woman’s life. Human relationships could be reduced to a struggle for marriage and position, and if a woman failed to marry (as did Jane Austen), then ‘She was condemning herself to a lifetime as a second-class citizen, an object of contemptuous humour, an old maid.’ In Jane Austen’s world, a woman ‘had one chance in her life to say “I do,” and in the period of Austen’s life, these words – as reflected in her work – rhymed psychologically with the phrases: I am, I exist.’33 A lengthy editorial in the London Free Press of 1890 captured the essential need for this action. It was required to deter young men from denying women marriage opportunities by playing with their affections when the men had no intention of requiting them. It was vital, the newspaper held, that ‘some measure of punishment, even if it be of a pecuniary kind, is due to a mean fellow who has trifled with the affections of a lady for his own amusement, or as a tribute to his own vanity.’ Much as in the case of the Middlesex assizes of 1876, when the courts had acknowledged the important social purpose of seduction actions, there was also a belief that the mere existence of the breach of promise suit was a sword defending women from wrong. It was an object lesson that ‘Before a man sets out on a career as a “masher” and is ready to pretend a passion he never feels, to conclusions which he is determined to avoid, he has now to reckon with the probability that his cowardly pastime may turn out to be an expensive one, besides involving him in censure on the part of all honorable men.’34

An Action of Their Own

113

Any man who frustrated a woman from succeeding was justly considered to be liable and it was the jurors, the average male Canadian of the period, who assessed liability. Much as in the seduction cases, they came down hard on those men who had deceived the females they had courted. Sometimes the judges guided them along in assessing damages. In Major v. McKenzie, Justice Galt noted that the young man ‘appears to be fickle, which should call for heavy damages. They [the jurors] should consider what was due to injured feelings.’ Similarly, in a New Brunswick case, Bell v. Giberson (1890), a judge directed the jury that ‘you have a right to consider her feelings, the feelings of her family and friends, her altered relations in the community, her altered social relations.’ For once, the judges were as sensitive to this wrong as juries. When William Robson broke off his engagement to Evaline Jones just before she gave birth to their child, this caused a stir in their community, for they ‘were both members of the oldest and most respected families in Markham.’ Justice Galt all but directed the jury to give Evaline a substantial judgment for ‘they should consider the difference between a breach of contract for the sale of 1,000 bushels of wheat ... and such a case as this before them. The element of difference was the injury to a person’s prospects in life, and the wounded feelings.’35 Clearly this was no normal contract case where the question concerned the value of a lost shipment of grain. Jurors were called upon to evaluate the female’s loss of status in the community and the value of the embarrassment caused to her. It was no easy task, but as Chief Justice Harrison observed in 1877, ‘breach of promise cases are generally favoured by jurors.’36 Not only were damages substantial, the aggrieved woman stood every chance of profiting twice. In 1893 Miss Squire, a twenty-two-year-old school teacher, bore the child of a local farmer. Her mother sued for seduction and was awarded $500. The following day her daughter announced that she would also sue for breach of promise of marriage.37 Even when the damages were unusually large, the courts were content to let them stand. In a case where the defendant’s conduct was reprehensible in convincing a girl to destroy her love letters (her only proof of his commitment) but still continued to see her, the jury levied a huge award of $4,500. Moreover, the defendant was a rich man and well able to reimburse her for the embarrassment he had caused.38 It was a mark of the shifting boundaries of propriety that women frequently advanced successful breach of promise cases in their own right to gain recompense for, as one judge phrased it, ‘the loss of the settle-

114 courted and abandoned

ment in life and the wounded feelings.’ The number of marriageable men in Ontario was declining in the second half of the nineteenth century, and in the younger age groups the number of young women substantially exceeded the number of young men. As a result, ‘an imbalance in sex ratios, limited alternative means of livelihood, and the cultural idealization of marriage as a women’s highest goal in life suggest that a broken engagement was probably one of the more serious injuries women could suffer in Victorian Ontario.’39 The other side of the business transaction was how much it cost the young man to get married. In mid-nineteenth-century Canada lengthy engagements were the result of the inability of many young men to establish themselves. It was a difficult era of economic transition in which a lack of available land, falling commodity prices, and a depression disappointed the expectations of young men. And if they had no future as independent farmers, they could not offer their fiancées what they expected – that is, to become mistresses of their own households. Therefore, it was the case that ‘more serious from the vantage point of young women of marriageable age, was the impact which the land, economic and inheritance crises had on the relative opportunities to marry.’40 A rural society in transition could wreak havoc on both sexes, leaving women ‘redundant’ while the men they might have married were reduced to itinerant farm labour or factory work. Ceretha Teetzel had shared this fate when she won a breach of promise case only to have her lover leave Ontario for better prospects in the west. The flowering of breach of promise suits was a North American phenomenon, for U.S. juries also tended to give enormous damage awards for these claims. As one Georgia judge observed, this was entirely appropriate to remedy ‘the pain, mortification, and wounded feelings’ sustained by a dishonoured woman. Still, an American critic of breach of promise was dismayed: ‘That juries should tend to give very high damages is hardly surprising, nor is it to be wondered at that the courts have been disinclined to review their findings on this point.’41 With equal justice, these comments could be applied to Canadian courts. In view of these cases, it is difficult to accept recent feminist scholarship that ‘the sexual contract is a story of subjection’ and that ‘the contract establishes men’s political right over women – and also sexual in the sense of establishing orderly access by men to women’s bodies.’42 Indeed, a review of breach of promise cases shows that the marriage contract was highly prized by women; probably more so than by men. The marriage contract was neither slavery, nor ‘the means through

An Action of Their Own

115

which modern patriarchy is constituted’; it was often an effective lever at the disposal of women to equalize the balance of power between the sexes. To give an example from the historical record, when a widower, Alderman McCully of St Thomas, Ontario, invited a widow, Mrs Kelly, to live with him and help raise his children, she had a legitimate expectation that in due course she would become Mrs McCully. After six years of work, no marriage was planned and McCully was lavishing his attentions on a younger woman. Romance aside, Mrs Kelly had fulfilled her part of the contract and she sued McCully for his failure to reciprocate. The jurors readily agreed and gave her $700 for her aggravation.43 In another case, when Georgina Lalonde of St Polycarpe, Quebec, had her imminent wedding plans cancelled, so great was her disappointment that she had to be committed to the Longue Pointe asylum. The public no doubt approved when her insurance company initiated a claim for $10,000 against her faithless lover. The sexual contract, far from being one of slavery, was a business and social arrangement that greatly benefited the woman and was so prized that its loss entitled her to monetary compensation. Yet, as in all contract cases, there were limits to a jury’s sympathies. While the protection of the criminal seduction law only applied to women of ‘previously chaste character’ the civil awards of damages also reflected this hierarchy of morality and were limited to women of virtue. If the woman’s reputation was poor, then she lost nothing out of a broken courtship. For example, in Isaac v. Rice a jury refused to award damages to a young woman who had shared a bed (while fully clothed) with other male family members. It is likely that this evidence of her lewd character influenced the jury to dismiss the case.44 Indeed, any man was expected to break off an engagement to a woman who revealed herself to be already sexually experienced. It was a reflection of the times that Justice Falconbridge would go even further and suggest in an 1888 case that ‘chastity referred to is not merely freedom from unlawful sexual commerce, but freedom from obscenity or impurity in language or conversation.’45 Not only did the woman have to be chaste, she had to exhibit the virtues of the Victorian lady, or the promise of marriage could be disavowed. Even when the plaintiff was of acceptably chaste character, some judges were uncomfortable with the law purporting to deal with such intangibles as mortification and lost prospects. In one of the few instances in which a jury ruled against a plaintiff in a breach of promise case, Morrison v. Shaw (1877), Chief Justice Harrison commented that when it appears ‘that the young woman

116 courted and abandoned

is, in the language of the jurors “old enough to take care of herself” or as is sometimes the case old enough to be the mother of the defendant jurors are more or less indisposed to do much, if anything, for her.’46 And in Costello v. Hunter (1886), Justice Rose questioned the appropriateness of breach of promise of marriage proceedings: If the plaintiff be a woman, one would think the chances of marrying would not be increased by the exhibition of herself in court as rejected or forsaken, subjecting herself to the ridicule attendant upon a crossexamination as to the incidents of the courtship, and by in some senses making herself public property. It certainly is not in the interest of the public, or the parties, that those who have no affection for each other should be forced into an unwilling marriage, for morality is not served by such a union. Moreover, it would appear that any woman cannot, on the whole, suffer loss if a man, who does not love her refuses to marry her. To be released from such a one must be a great gain.47

There was also uneasiness at the willingness of some women to describe their sexual conquest for gain. The Toronto Globe noted in 1879 that fear of these proceedings could, as in seduction cases, ‘easily be made to work into the hands of the blackmailer.’ From time to time the legal journals would weigh in on the question; for the most part, they opposed breach of promise. The Upper Canada Law Journal of 1859 felt that these proceedings were distasteful and that ‘the very fact, then, that a woman brings an action for breach of promise is conclusive proof that she could not have loved, and not having loved, she was not in a moral condition to marry.’ An almost identical sentiment was expressed by the Local Courts and Municipal Gazette of 1868: ‘the very fact that a woman will go into court and permit her heart’s secrets to be exposed to the public gaze and her love passages made the feast of counsel and the provocation to ‘shouts of laughter’ is of itself proof that she is not a woman whom any man ought to be compelled to marry.’48 It has been suggested that judges were aware of public dissatisfaction with breach of promise, but continued to entertain these cases through a mechanistic application of existing rules: ‘Admittedly, judges continued to apply established contract rules despite the outcry about the propriety of imposing commercial values on courtship and marriage. Because they impartially applied those rules in the context of an increasing number of policy arguments against such an approach, On-

An Action of Their Own

117

tario judges maybe said to have manifested a “conservative” attitude.’49 The difficulty with this is that there was no widespread outcry against breach of promise cases. Other than rare editorials, the action was a common and accepted part of legal proceedings in late Victorian Canada. It is also reversing the order of things to suggest that judges had any choice over which cases would come before them. Women brought breach of promise cases at their initiative to resolve their feelings of loss. Whether the judiciary was conservative or not was irrelevant in the face of litigants who were determined to drag former lovers into court. Lastly, it must be noted that the judges in these cases were doing nothing more than their duty. If the public truly felt that these cases outraged propriety, they could have lobbied the provincial legislatures to abolish or restrict access to breach of promise. Such a movement did appear briefly in the British House of Commons in 1879 but it made no impact in Canada. British legal writers were probably concerned that breach of promise was being invoked as an exercise in vindictiveness instead of righting a wrong. Opponents cited comments from Judge Mathews during an 1893 breach of promise trial that ‘love is not a necessary element in a breach of promise case.’50 But in Canada, with no legislative intervention, there was no option for the judges but to apply the common law. In the first decade of the twentieth century, breach of promise seemed as popular as ever and trials featuring blighted affections regularly entertained courtroom hangers-on and newspaper readers.51 For example, Charlotte Barbaree, of East Luther, Ontario, described as ‘of prepossessing appearance,’ had brought her trousseau for a wedding that was cancelled in 1907. The jury was instructed that ‘she was entitled to damages for injury to her feelings.’52 In 1912 Viola Schram of Essex, Ontario, sued a Dr Ashton for $50,000 for breach of promise. She had tolerated an eight-year engagement with the aspiring doctor and after he had attained an education and position, he rejected her. Her claim was based on lost time and humiliation and further, ‘I wanted to be vindicated and I wanted the world to know that I was good enough and accomplished enough for him ... it wasn’t so much the money I wanted as sweet revenge.’53 Her award of $6,000 was a good measure of both. In the same year, a Saskatchewan judge found in a similar case that ‘the feelings of the plaintiff, through the refusal of the defendant to marry her as he had promised, were very much hurt, and that she had suffered in consequence in body and mind.’ However, her hurt feelings were only valued at $200.54 Increasingly, the courts were dealing with

118 courted and abandoned

tangible losses arising out of railway mishaps and industrial accidents, and it may be the case that they placed less emphasis on hard-toquantify claims such as hurt feelings. Heartbalm for Men Just before the turn of the century, a new phenomenon appeared in the civil courts. For the first time, men came forward with claims that, after wedding plans had been arranged, their fiancées had shied away from the altar. Ominously, this raised the possibility that one of the heartbalm actions could be turned against women. While breach of promise gave an independent power to women to seek recompense against a seducer, men now had the same weapon at hand. It reveals a great deal about society’s concepts of the respective roles of men and women, however, that it would be an ineffectual weapon in the hands of most men. John Brandau, a ‘peripatetic carpenter’ of limited means, appeared in a Stratford court in 1894 claiming that Annie Turnbull owed him damages for breaking off their engagement. His claim was so unconventional that ‘a large audience crowds the courtroom.’ Annie had been engaged to him for several years, until in 1890 she broken off their engagement because of his drinking and gambling. Moreover, after she bore a child by another man in 1892, Annie recalled that he had rejected her and suggested another man who might take her. In response to this, Brandau claimed to be a forgiving soul who insisted that their engagement remained intact. When he took the stand, he claimed that their engagement had never been set aside, that he had always ‘cherished a pure and chaste affection for the defendant,’ and introduced the couple’s love letters as proof. These letters, described as the ‘ordinary epistles that are produced in breach of promise suits,’ showed the upand-down relationship between the two. By the time the lawyers for each party had finished dissecting their contents, a local newspaper reporter felt that ‘whatever was the inherent fragrance had changed into a musty odor of entitlement.’ Annie Turnbull related another story, the one that probably motivated the entire proceedings. Her father had left a large estate to his sons, but in order to avoid lawyer’s fees he drew up his own will and had his sons witness it. This last detail left the instrument void as no witness was permitted to be a beneficiary. By this turn of events, Annie became entitled to an equal share, but almost succumbed to her brothers’ pressure to surrender her claim. Enter Robert Turnbull, who be-

An Action of Their Own

119

came Annie’s confidant and urged her to stand up for her rights. In due course she inherited almost $20,000, and Turnbull earned her hand in marriage. In his summation, Annie’s lawyer suggested that it was ludicrous for a man to bring a breach of promise case, that Brandau’s lawsuit was motivated by Annie’s recent good fortune and, with a disdainful gesture towards Brandau, pointed to ‘this apology of a man [who] asks damages because he didn’t get his damaged goods.’ Any decent man of the period would also express ‘his utter contempt of any man who should place himself in the pitiful ludicrous position of a breach of promise suit against a woman.’ This sentiment was echoed by the trial judge, Justice Street, who reminded the jurors that ‘it was generally thought the woman suffered more damage through the breach of such a contract than the man.’ In this brief comment, he revealed much about the universe of the late Victorians. The failure to marry was a significant loss to a woman, while for a man opportunities abounded. Not only had he lost nothing, but a man who initiated such a claim necessarily dragged a woman’s reputation before the public – a most unchivalrous and unmanly act. After a lengthy deliberation, the jury returned a verdict for Brandau, but in the sum of one dollar. Street revealed his feelings when he ordered Brandau to pay all the costs of the proceedings ‘because he considered that Brandau’s action in dragging the woman’s misfortune before the court was shameful and unnecessary.’55 Any other man who might hope to profit from a breach of promise action was forewarned. In addition to women, could parents be sued for a breach of contract? While these cases were rare in Quebec, in 1899 a young man in Beauharnois sued his prospective father-in-law for inducing his daughter to breach a written contract of marriage. Sixteen-year-old Alexina Normandeau had agreed to the marriage but soon after changed her mind. In this case, the judges found no evidence against the father, but conceded that it was possible that a parent could be ‘responsable du dommage causé par la rupture d’une promesse de mariage.’56 The Canadian Law Times reported with surprise an English case in 1905 in which a man had successfully sued a woman for breaching a promise of marriage. Her lawyer argued that a man could not maintain the action, for ‘the woman may have an action against a man, the reason for that is because marriage is an advancement to the woman, but is no advancement to the man.’ The jury rejected this double standard, and held that the man had sustained a loss on being rejected by his former lover. Even so, having this recourse was of little use for men, for the editors noted

120 courted and abandoned

that ‘cases of this kind do not often come before the courts, and, if they do, they frequently bring small consolation to the plaintiff.’57 On rare occasions they tried. For example, in 1907 George Murray of Windsor, Ontario, sued Miss Pinkham, a former girlfriend, for changing her mind about marriage. He had already made a number of purchases and it was unlikely that he could recover his outlays. A judge suggested that they patch up their quarrel and ‘to this George replied that he wanted a judgment and did not desire to go with the girl again. Miss Pinkham said there was no danger of that.’58 Seen in the context of its times, the breach of promise of marriage action made eminent sense. It enabled the new class of independent working women to have a claim in their own right against those men who had caused them a severe loss by reducing their prospects of respectable marriage. It was, moreover, an affirmation of identity and a pursuit of dignity. But in many cases, especially when the woman had not endured the ignominy of an illegitimate birth, the legitimacy of the claim was questionable. Breach of promise provided unequalled opportunities for character assassination, or just plain blackmail. As the Victorian age waned, questions arose as to whether these actions that touched on a species of intimate relationships that should, perhaps, be beyond the sanction of the law.

8 Wife Seduction: Punishing the ‘Gay Lothario’

While breach of promise was often invoked in the late nineteenth century, another heartbalm tort began to come to the fore. The law reports of the 1890s regularly noted claims for ‘criminal conversation’ – that is, when a third party had seduced a man’s wife and thereby deprived him of his exclusive right to her consortium. This tort was closely related to seduction and breach of promise in that the basis of the claim was a proprietary interest in another human being. Just as a father owned a daughter as a chattel, or a woman had an interest in a betrothed, criminal conversation presumed that a husband had an exclusive interest in his wife. Only he had a right to have sex with her. Whether or not the wife consented to an affair was irrelevant. The blossoming of criminal conversation as a popular action was greatly facilitated by the Beecher–Tilton scandal of 1875. Henry Ward Beecher, one of the most prominent and charismatic preachers in the United States, was accused by a parishioner, Theodore Tilton, of having committed ‘criminal intimacy’ with Tilton’s wife, Elizabeth.1 The Brooklyn trial, which lasted from January to July of 1875, caught the undivided attention of the North American public. They avidly read each new phase of the trial, which showed that, while Beecher had an intense relationship with Elizabeth, there was no direct proof of adultery. A remarkable feature of the scandal – one that would mark every criminal conversation case – was how it tended to blacken all concerned. As the Montreal Evening Star noted, a clergyman accused of

122 courted and abandoned

seducing a fervent parishioner and the counter-accusations of perjury had prejudiced ‘the public mind against both complainant and defendants, and invites a verdict that all are unsound.’ The Toronto Globe was concerned with the trial’s impact on public morality and prayed that ‘the great scandal will gradually pass from men’s minds.’2 However, for lawyers it was a great awakening that there was a host of potential litigants awaiting them in the form of disgruntled husbands. Criminal conversation was directly related to seduction, for both were based on the act of depriving a master of his servant. In the defining case of Guy v. Livesy (1619),3 an English court first pronounced the rule that the loss of a wife created a right to sue for loss of consortium. It was important, the court cautioned, to realize that ‘the action is not brought in respect of the harm done to the wife, but it is brought for the particular loss of the husband, for that he lost the company of the wife ... as the master shall have for the loss of his servant’s services.’ To put the wife on a slightly higher plane than a servant, the loss of consortium included a bundle of rights including comfort, society, and, of course, exclusive sexual relations. Criminal conversation cases became linked to divorce proceedings, for most petitions to Parliament for a divorce usually included a tale that a marital interloper had poisoned the relationship. By the 1760s the law concerning a husband’s right to his wife was so strict that Blackstone warned that ‘if one’s wife missed her way upon the road it was not lawful for another man to take her into his house unless she was benighted and in danger of being lost or drowned.’ And if he dared take her in, the consequences could be severe, for wife seduction was ‘considered as a civil injury (and surely there can be no greater) ... wherein the damages recovered are usually very large and exemplary.’4 While criminal conversation was based on the act of adultery, other species of wife seduction crept into the common law. The case of Winsmore v. Greenbank (1745) created the tort of ‘enticing’ a wife to leave her husband. Americans created yet another variant on this tort in ‘alienation of affections’ whereby even if a wife had not left a husband, he could still sue someone who had interfered with his domestic relations. It was not uncommon for a criminal conversation action to be joined with alienation of affections or enticement. Alienation of affections became a common heartbalm remedy in the United States, while enticement was relatively rare in Britain. Perhaps because of the proximity of the United States, Canadian courts also applied alienation of affections in tandem with criminal conversation, although technically alienation of affections did not exist in Canadian law.5

Wife Seduction

123

In the early nineteenth century, criminal conversation cases were rare but notable events in Canada. One outstanding wife seduction case occurred in Halifax in 1820. It featured a prominent member of society who claimed £5,000 from a Major George Barrow for, among other things, the destruction of his ‘social happiness as a husband.’ So popular was the case that the facts were published and circulated throughout Nova Scotia. But criminal conversation did not come into its own till near the end of the century. The resulting lawsuits show that, however much women may have desired marriage as socially fulfilling, once wed, they were subject to controls which were as restrictive as those of the Middle Ages. After marriage, a woman surrendered her separate identity to her husband and he became the effective owner of all her assets. Furthermore, no matter what their relationship, he had an on-going right to her body as well. A typical specimen of criminal conversation occurred in the 1900 case, Bailey v. King. In 1886 forty-five-year-old Elizabeth Mary Bailey, the mother of nine children, fled from her English husband with her twentytwo-year-old lover. They moved to Canada and lived in Toronto as man and wife. Ten years later her husband, Charles Bailey, tracked her down, and successfully sued her lover for, as Justice Moss called it, ‘the defilement of his wife, the invasion of his exclusive right to marital intercourse.’6 The fact that Elizabeth Bailey wanted to leave her husband and live with another man was not relevant. Underlying all English and Canadian law on criminal conversation was the right of a husband to have his wife inviolable for, as Justice Osler explained, ‘It is a matter of consideration, whether a man, whose wife has been seduced by another man, has not been subjected to intolerable insult and wrong,’ and even if he was separated from his wife, this ‘does not render the blow to his honour less acute.’ But a lawsuit could not win back his wife, and even the Supreme Court of Canada noted in upholding Charles Bailey’s claim that Elizabeth remained with her new lover.7 Implicit in this and all contemporary criminal conversation cases was the understanding that married couples were not individuals with distinct emotional and intellectual desires. Rather, they were inextricably linked, with the husband in the predominant position of having a claim to the exclusive rights to his wife’s body. This was apparent when Harford Ashley, warden of Hastings County and a former candidate for Parliament, took the witness stand in Belleville in 1889 to confront Fred Brenton with the seduction of Mrs Ashley. The case of Ashley v. Brenton contained all the arguments of a typical criminal conversation case. Yet it is in marked contrast to breach of promise of marriage. While in breach of promise cases, a wronged

124 courted and abandoned

woman appeared in court to demand her rights, a criminal conversation trial required all parties to reveal the most sordid and shameful aspects of their private lives. A lawyer presenting such a case had to peel away layers of deception to reveal conduct that was repulsive to Victorian society. At the same time, the plaintiff’s lawyer had to try and show the plaintiff as a ‘wronged man’ and not the person responsible for the emotional destructiveness of a criminal conversation trial. R.C. Clute, a renowned crown prosecutor, acted for Ashley and took him through his relationship with Fred Brenton. Brenton had worked in Ashley’s cheese factory for many years and ‘we were like brothers until my suspicions were aroused.’ Brenton’s wife informed him that she thought that her husband was having an affair with Sabea Ashley, and in November 1887 Ashley caught the couple in flagrante. After this discovery, Ashley dictated the terms of their future relationship. Sabea would keep house, but he would not be intimate with her (despite the fact that she insisted on sleeping in his bed) and they would only be seen together on certain social occasions. On his behalf, Brenton attempted to call Sabea to testify, but she would not appear in court. The infamy of her husband’s lawsuit had already ruined her, and appearing in public to discuss her adultery was probably more than she could endure. Brenton then turned on Ashley and produced a former servant who testified that Ashley had all but rejected his wife years before the affair. He had treated her with such disdain that he anticipated that she would return to her father’s house. Even Brenton’s long-suffering wife swore that once Ashley had told her that ‘he had no love for his wife’ and that she had already had an affair with a Dr Allen. The trial judge gave an impartial charge to the jury and noted that the Ashleys seemed to have been estranged well before the affair. Nevertheless, the jury agreed with R.C. Clute that the ‘defence of the sacredness of our homes’ was paramount and awarded $5,000. But at what cost? Brenton had fled to the United States where he was unlikely to pay any award. Sabea had sought refuge with her father. Ashley’s private difficulties, his censorious conduct towards his wife, and his being cuckolded by one of his employees, were now all on public display. The lawyers had done their job and presented their cases, but none of the litigants had been vindicated, and, in varying degrees, all of them had been diminished.8 Criminal conversation was probably the most repellant of the heartbalm torts for, even more than seduction or breach of promise, it was an open invitation to blackmail and abuse. One plaintiff, a pauper,

Wife Seduction

125

had convinced his wife to concoct a story against a respected businessman, alleging that he had loaned her money and then debauched her. Not only was her testimony inconsistent, but the businessman recounted how her husband had approached him and said that if he did not ‘give him $1,000 he would scandalize his name in the township.’ Extortion failed on this occasion, and the case was thrown out.9 But no matter how foul the plaintiff’s conduct, if he could show that his wife had slept with another man, the law was on his side. It even sided with James Patterson, a dissolute, abusive husband, who shortly after his marriage seduced one of the serving girls. When his wife tried to leave, he attacked her and almost choked her to death. She escaped to a nearby barn where she was found crouched in a corner, trembling with fright. After she made good her escape with the help of her mother and some female friends, Patterson tracked her down and promised violence if she did not give their child to him. Eventually, her family hired an older solicitor, a Mr McGregor, to get a court order preventing Patterson from claiming his wife’s earnings as a teacher. Perhaps in gratitude for his help in rescuing her from a dangerous and demeaning predicament, Mrs Patterson eventually became McGregor’s lover. Patterson, not content to let her live in peace, sued McGregor. In light of these circumstances, Patterson’s lawyer, Robert Harrison, knew that any defence based on a blow to Patterson’s honour was likely doomed. He therefore argued that the decent Mr McGregor was ‘making a strumpet’ of another man’s wife, and that the evidence against Patterson was suspect in that it ‘was from women and it was well known that such evidence was not of the most reliable character.’ The trial judge grudgingly conceded that Harrison was right in law and that any man who slept with another man’s wife was liable; but he rejected any argument excusing Patterson’s conduct and told the jurors that it exhibited ‘great cruelty and showed personal violence towards her [Mrs Patterson] on many occasions.’ The jury followed his lead and held for Patterson, in the amount of 25 cents.10 When a repulsive character such as Patterson could call on the law to enforce his exclusive rights to his wife, it must have seemed that there was something profoundly wrong with the law. Nevertheless, criminal conversation became the most enduring of the heartbalm torts, and one which sturdily defied reform. There is no greater study in the contrast between the inertia of the common law and the urgency of law reform than the persistence of criminal conversation. Both Harford Ashley and Charles Bailey held a right to their wives’ bodies that remained legally

126 courted and abandoned

enforceable in the courts. At the same time that this tort which echoed medieval notions of bondage was growing in popularity, many legislatures were attempting to modernize at least some of the laws affecting spouses. Through the mid-1800s, most Anglo-American jurisdictions recognized that women should be recognized as individuals with the right to own property. This was particularly true in abusive relationships, where the old law of coverture (the marital union of the husband and wife under the effective control of the husband) left women at the mercy of violent men. By this rule, if a married woman sued for a debt owing to her, all proceeds of the lawsuit had to go to her husband. Formal legal equality was established in Ontario by the Married Women’s Property Act of 1884.11 Under this statute, married women could obtain, mortgage, manage, and dispose of land or money as if they had never wed; they could sue or be sued as if they were single women. It was a major achievement, but, as we shall see, judges were inclined to give it as narrow an interpretation as possible. Occasionally, the public could be shocked at just how antiquated the law could be. Decent Englishmen were appalled by the facts in Queen v. Jackson (1891) in which a spurned husband kidnapped his wife as she left church. While there was some law in his favour, the courts ruled that times had changed, and a man no longer had a right to hold his wife captive against her will. The Jackson case had reverberations in Canada, where Ontario’s Chief Justice Armour noted that it had been a ‘shock which startled all England.’ Armour, alone among Canadian judges, was a critic of criminal conversation, which he called a ‘disgrace in our law.’ But if it endured, at the very least it should be applied equally to both sexes. It is possible that in a case decided a year after Jackson, Armour hoped to administer a bit of a shock to Canadians. The case concerned a Mrs Quick, of Woodstock, Ontario, whose husband was beguiled by a Mrs Church. She induced him to visit her home and, after her husband died in 1889, she avidly pursued the susceptible Mr Quick. In due course, he became her lover and fled with her to Green Bay, Wisconsin. A jury awarded Mrs Quick $4,500. On the motion to set aside this verdict, Chief Justice Armour quoted from Samuel Johnson that ‘Between a man and his wife a husband’s infidelity is nothing; wise married women do not trouble themselves about the infidelity of their husbands’ for ‘a man imposes no bastards on his wife.’ In Armour’s view, this antiquated notion should be disowned and women should be allowed to sue for the seduction of their husbands. Much as Charlton had relied on American statutes to bolster his

Wife Seduction

127

case, Armour cited several American decisions where women were held to possess the same rights for the seduction of a spouse as a man. Moreover, he cited the changes brought about by the Married Women’s Property Act which enabled a woman to sue without being required to join her husband as the beneficiary of the lawsuit. Now that coverture had been abolished, the aggrieved wife had an absolute right to sue the seducer in her own name. While criminal conversation might be a disgrace to the law, ‘it would be a still greater disgrace to our law if it existed only for the husband and not for the wife.’12 Among Armour’s brother judges, however, there was a persistent sense that criminal conversation served a beneficial purpose in deterring those who might disturb the respectable state of matrimony. Their decisions also give a strong hint that most of them still sided with Dr Johnson that a wife’s infidelity was far more heinous than her mate’s. When a wealthy Montreal businessman sued an associate for running off with his wife, the judge ruled that it was important for Quebec courts to ‘maintain the principle’ of the sanctity of marriage and he awarded $5,000 damages.13 At the Simcoe assizes of 1894, Justice Thomas Robertson declared to a jury that the stealing of a wife by way of criminal conversation was ‘the most disgraceful case he had ever presided over.’14 The trial of this case, Helsdon v. Mabee, took three full days, at a time when murder trials were frequently disposed of in a day. Over forty witnesses testified and at the conclusion Robertson strongly charged the jury against the defendant. They responded with an enormous award of $5,000. The following year at the Toronto assizes, Robertson presided over another case of spouse theft similar to Mrs Quick’s. The husband in this case, Matthew Lellis, had become enamoured of the widow Lambert and made assignations with her in various Toronto hotels. The redoubtable Mrs Lellis told the court of tracking her husband on one of his escapades and catching the amorous couple in a bedroom. Upon hearing his wife enter the room, Lellis took refuge under a bed until his wife roused him with a blackthorn stick and proceeded to thrash him. As if this was not punishment enough, upon his return, Lellis was set upon by the neighbours who, in an echo of the charivari, rolled him about in the mud on the street. A Toronto crowd was much amused by the ‘Gay Lothario’ case and, while it was a source of public merriment, the defendant’s lawyer thought that ‘this is not the sort of case that should be encouraged. If it is, you will have the courts flooded with them.’ Justice Robertson disagreed and felt that this little morality play served

128 courted and abandoned

a broader purpose. ‘It will teach married men to stay at home and attend to business and not be running around after widows.’15 As he had at the Simcoe assizes, Justice Robertson came down hard on those who disturbed the marital state and the jury responded with an award of $2,250 against Mrs Lambert. In view of the fact that she had recently mortgaged her only asset, a house, for $500, this sum would likely have destroyed her. Yet when Lellis v. Lambert was appealed, the court, in stark contrast to Armour’s ruling only four years previously, held that a woman did not possess the property rights in her husband that he possessed in her. The Court of Appeal found that the Married Women’s Property Act did not create any new causes of action; it merely enabled married women to sue for any existing wrongs. They concluded that the right to sue an adulterer was a option that belonged only to the husband. Justice Osler quoted from a venerable authority that ‘The wife having no legal interest in the person or property of her husband cannot in general join with him in any action for an injury to them.’ Chief Justice Burton quoted another authority that ‘The change affected by this act [the British Married Women’s Property Act] is limited to a married woman’s proprietary rights, and to those alone; her matrimonial status is not affected – the common law right of the husband to her society and comfort remains; he is still head of the family.’16 At the turn of the century this feudal relict of a husband’s exclusive rights to his wife’s consortium remained as strong as ever. While they were occasionally the source of public fun, cases such as Lellis v. Lambert clashed with accepted notions of propriety. In 1904 a criminal conversation case involving an unusual level of disdain for respectable conduct troubled the Toronto courts. The Milloys had been married in 1875 and had lived together uneventfully until 1889. In that year, the husband came to suspect that his wife had not told him the truth about a recent visit she had made to Buffalo. Therefore, in January 1890 he published a notice that his wife had left his bed and board. She in turn blamed her husband’s vile temper and drunkenness for their rupture. The final breach occurred after Mrs Milloy discovered that she was afflicted with a ‘loathsome disease’ contracted from her husband. She moved to Chicago and obtained an Illinois divorce (which was not recognized in Ontario) but returned to Toronto three years later as ‘Miss Douglas.’ In 1896 she met the defendant Wellington and married him in 1899. Upon learning of this, Milloy sued for, as the judged phrased it ‘the public affront ... the disgrace which the commission of

Wife Seduction

129

adultery by a man’s wife puts upon him, the disgrace which he suffers in public opinion by his wife living openly with another man.’ But the question remained, just how much of an affront was it to lose a wife he had infected, estranged, and not seen for more than a decade? The trial judge, Justice Francis Anglin, did not doubt that wife seduction was a public matter and that when a man was deprived of his wife’s society that it was a matter for the courts; ‘no wrong that one man can do to another, no wrong that one man can inflict on another, can be greater than that of which the plaintiff complains in this action.’17 Yet he also suggested to the jury that if Milloy had irrevocably abandoned his wife the claim should be dismissed. It may therefore have surprised him when the jury returned a massive verdict in favour of Milloy for $5,000. In many respects this is consistent with a history of perverse jury verdicts in seduction and breach of promise cases. If a plaintiff appeared to be at all aggrieved by the defendant’s conduct, juries were inclined to ignore the evidence and side with the selfdeclared victim. However, the Divisional Court was not as oblivious to the realities of the situation. After reviewing all of the facts before the jury, Chief Justice Meredith felt ‘unable to understand how any twelve jurymen acting reasonably could, upon the facts of this case have reached the conclusion that the respondent was entitled to the sum.’ But did this feeling allow him to set aside an award that was within the discretion of the jury? In Meredith’s view it did, as the jury’s verdict was hopelessly out of proportion. Even if there was an injury to the husband, only a nominal sum would be justified on these facts. It was apparent from Milloy’s testimony that he had abandoned his wife and it was unlikely that there was any case for the jury to consider. Over and above that, the jury’s verdict implied that the wife had no right to leave a hopeless situation. If upheld, it would force women to stay in a desperate relationship ‘and to discourage by their verdict attempts on the part of persons wishing to throw off the yoke.’18 This case of Milloy v. Wellington was evidence that criminal conversation was a brutal relict of a time when a man had absolute domain over his wife. It made no allowances for modern conditions where marriages could fail and a woman might seek solace with another man. If she did so, she risked exposing him to a financially disastrous claim that he had violated the rights of a lawful husband. In the following years, the case continued to wind its way through the appellate system. Even after Milloy died in 1905, he continued to torment his former wife and her lover with a case that was regularly argued before the Toronto

130 courted and abandoned

courts. In 1906 the Court of Appeal ruled that Milloy’s estate could continue to sue but expressed the hope that ‘the parties may be able to make such arrangements as will prevent the case from ever being against heard of.’ Nevertheless, a second trial was held and it resulted in reduced damages of $500. With some misgivings, this was upheld on appeal in 1907.19 To what extent did the existence of criminal conversation affect the conduct of married couples? These cases were reported frequently enough to give a subtle warning to women that their husbands had a proprietary interest in them, and even if they were abused, any man who tried to help them could be ruined. For their part, husbands must have had confidence that the law favoured them and their wives’ options were limited. Criminal conversation and its related actions of enticing or harbouring a fugitive spouse came into greater use in the early twentieth century. With the later two actions, the plaintiff did not even have to prove adultery, merely that the defendant had poisoned the marital relationship. In another signal to married women of how powerless they were to direct their own affairs, in 1913 Justice Middleton in Ontario upheld a case against a defendant who had acquired a ‘malign influence’ over a wife and caused her to grow aloof from her husband. Similarly in Alberta, conduct by a rancher which led to a farm hand becoming estranged from his wife created a cause of action.20 In both cases, women were acting on their own free will, but their conduct gave their husbands a legal right to assert control. Of all the heartbalm torts, it was criminal conversation that seemed to meet society’s needs. One American observer of the courts noted that ‘criminal conversation and alienation of affections became increasingly popular in the 1920s,’ with verdicts ranging from five to twenty thousand dollars.21 In Manitoba, for example, criminal conversation was the only heartbalm remedy noted in the benchbooks of Justice Prendergast from 1914 to 1919.22 In one case, a Brandon soldier returning from the First World War sued a neighbour for seducing his wife. James Milroy had been wounded several times and had returned from overseas to his farm to find his wife and children living with another man. According to his wife, Milroy had been a brutal and uncaring man before he left for the war. The question put to the jury was: ‘Did the Defendant willfully cause or encourage the Plaintiff’s wife to entertain any undue or improper feelings of love for himself?’23 That is, a group of strangers was being asked to consider the deepest of human emotions and determine whether love had been improperly stolen. It meant, in the final

Wife Seduction

131

analysis, that a woman’s body and love were a commodity to be valued at a fixed amount. Occasionally, even judges seemed to be baffled as to how they were to punish those who followed their hearts. One Ontario judge candidly instructed a jury to assess damages in a criminal conversation case: ‘you may take into consideration the compensation to the husband for the injury to his feelings, the blow to his honour, and the hurt to his family life. How you get at it I do not know; nobody can tell, but you get at it the best way you can.’24 No one thought that a lawsuit could save a marriage or restore love; indeed, quantifying the loss of a husband’s ‘honour’ was all but impossible. But there was little doubt that in the hands of a vengeful man, criminal conversation was a brutal tool that could do great harm. Significantly, the judges were not disturbed by the idiosyncracies of criminal conversation; it was the impropriety and affront to public respectability of the parties’ conduct that the courts wished to deny. During his charge to the jury in Milloy v. Wellington, Anglin was relieved that evidence of a grossly objectionable nature had been avoided by the lawyers and that: We are fortunate in Canada in not having frequently to deal with cases of this character; they are, at least in modern times, comparatively rare events in the history of our courts. It may be that this indicates an improvement in the moral tone of the community; it is to be hoped that it does; whether that be so or not, it is a matter for congratulations that we are so seldom called upon in our courts to deal with cases of this kind.25

Heartbalm cases, whether for seduction, breach of promise, or criminal conversation, resulted in a disturbing display of private sexual activity in the public forum of the court. This was most out of keeping with the emergence of ‘respectable society’ in the Anglo-American world. The last decade of the nineteenth century had witnessed a marked decline in drunkenness and crime in both England and Canada. In England, illegitimate births had dropped significantly from 7 per cent at mid-century to 4 percent by 1900.26 Sobriety, stable families, and respectability was the ideal goal for all decent citizens. The ideal of respectability was so pervasive that in 1908 a Peterborough madam tried to commit suicide and regretted that ‘someone did not blow up my house with dynamite before all this disgrace should be brought before the public.’27 Turn-of-the-century Canada was being transformed by a huge influx of population and the coming of urban industrial life.

132 courted and abandoned

Accompanying this transfer, the Christian social gospel was gaining in influence and with it the ideal of a reformed and decent society. In this climate of propriety and social betterment, how likely was it that men and women would continue to advance claims that revealed their private lives and made them the focus of public shame?

9 To Protect the Poor Unfortunate Child

Work was hard on the western Canadian frontier, pleasures few, and families were spread out with little contact between them. Jessie Raber found to her amazement that her new home in Lacombe, North-West Territories, in the 1890s had ‘one large room made of rough boards, no partitions, a stove in one corner with a stovepipe going straight up through the roof ... no sign of any beds.’ An English emigrant described a Manitoba log hut in 1881 where ‘half the inside is curtained off for bed-room.’ The same young man observed that women were at such a premium that there were no casual liaisons: ‘Every girl is pounced on directly she puts her face inside the settlement.’1 There were many options for a young female, and no urgency to surrender her virtue to capture a mate. Since the 1830s, the Metis population had respected church marriages and maintained a ratio of illegitimate to legitimate births that was lower than in Quebec and much lower than in Europe.2 Moreover, the west was settled when Victorian morality was at its peak; even though there was a lack of privacy, notions of respectability prevailed. Consequently, illegitimacy was not the problem on the prairies that it had been in early Canada. Western settlers, who came mainly from Ontario, brought the common law with them. Therefore, when a rare case of seduction arose, the feudal rules applied to this latest fringe of European settlement. In 1889 Amy Hebb of Winnipeg had hired out her fourteen-year-old daughter Ellen as a servant. Even though Ellen claimed that on many occasions

134 courted and abandoned

her master raped her, he denied everything and suggested that her boyfriend was more likely to blame for her pregnancy. The trial judge was urged to dismiss the case, as Ellen had not been supplying any services to her parent. He chose to leave the case with the jury who, true to their usual sympathies with a widow who now had a daughter with an illegitimate child, gave her $430. However, this verdict was quashed by the Manitoba Court of Appeal, Chief Justice Killam ruling that ‘It is well settled by the laws of England such action will only lie at the suit of the master or mistress.’3 In defiance of logic, the law reserved the right to sue to the victim’s rapist. The Manitoba Daily Free Press noted that the jury’s verdict had been set aside ‘according to the fiction of the law, the mother who brought the action could only recover when her daughter’s services were lost to her.’4 Yet there was no dissatisfaction with this ruling and in 1892 Manitoba enacted a Seduction Act which merely duplicated the Ontario statute.5 In a 1900 case it was argued that this statute was passed as a reaction to Amy Hebb’s plight and that the object was to ‘prevent the seducer escaping liability because of the female being in his employ at the time of the seduction.’6 It was apparent that the Ontario law did no such thing, but merely maintained the feudal status quo. The ‘settled law of England’ (as Chief Justice Killam called it) was not long tolerated by other westerners. In 1903 the legislature of the NorthWest Territories (to become in 1905 the provinces of Alberta and Saskatchewan) adopted an ordinance that radically altered the existing tort law. The ordinance adopted the Ontario provisions but added a clause that: 4. Notwithstanding anything in this Ordinance an action for seduction may be maintained by any unmarried female who has been seduced, in her own name, in the same manner as an action for any other tort and in any such action she shall be entitled to such damages as may be awarded.7

If an unmarried female could sue for seduction as if it were any other tort, then the feudal requirement of ‘loss of service’ was effectively extinguished. The 1903 ordinance completed the reform initiated by the 1837 Seduction Act by jettisoning feudal notions of ownership in another person and reducing the issue to merely another claim for a financial injury. It is unclear just what motivated this revision. One observer felt that ‘The North West Territories preferred the more chivalrous American view that the woman seduced must also be deemed to

To Protect the Poor Unfortunate Child

135

have suffered.’8 The Canadian notes to Arthur Underhill’s 1922 text on tort law noted that seduction had been ‘complicated by provincial legislation’ and that this was dangerous for, as the text found, the extension of the tort to the seduced woman created complications ‘because it violates the well-known principle of volenti non fit injuria.’9 That is, a person cannot agree to be injured and then sue the perpetrator. However well intentioned, the 1903 ordinance inverted the usual principles of tort law and enabled a willing participant (perhaps the instigator) of the seduction to turn around and sue her lover. Westerners were not hesitant in giving effect to this sea-change in the law. In 1913 the Alberta Court of Appeal ruled in Collard v. Armstrong that the loss of service as the basis for the seduction action had been abolished in Alberta. According to Chief Justice Harvey, ‘As the woman could not lose her own services as her parent or master could, it must necessarily follow that when the action is brought by her as in the present case there can be no question of loss of services.’10 Not only could a woman sue in her own right, in Harvey’s view she was entitled to ‘a fair proportion of the defendant’s wealth.’ If the seducer had married her (as he should have) she would have been entitled to dower or a third of his estate. Therefore the jury’s award of $20,000 to Miss Collard (equal to several years of a working man’s wages) was justified as ‘she has to bear the indignity and disgrace of the seduction, for which money alone cannot furnish adequate compensation.’ Harvey’s zealous application of the 1903 ordinance in this action would be curiously transposed when he came to apply the same principles in Canada’s most infamous seduction case. In addition to abolishing the feudal roots of the tort, this reform caused the courts to rethink the roles of men and women. Now that women could sue for their own seduction, could they still remain Tennyson’s idyllic angels? Many judges doubted it. If a woman could allege that she had been seduced, men had an equal right to claim that she had initiated the liaison. In Gibson v. Rabey (1916),11 the plaintiff was a waitress at an Edmonton hotel and shared a bedroom with a fellow waitress. There they entertained male companions, and if the room was already in use, another vacant one was usually available. The evidence showed that the coquettish Miss Gibson went to movies with young men, ‘some of whom appear to have been of doubtful reputation.’ On occasion, she entertained her friends by donning the latest craze, a Japanese kimono. This was no innocent waif adrift in a hostile world, but an independent working woman who enjoyed the company of

136 courted and abandoned

men. Upon learning that she was pregnant, she had her lover charged under Charlton’s Act with seducing her under a promise of marriage. When he was acquitted, she sued him for seduction pursuant to the 1903 ordinance. To illustrate the low expectation the judiciary placed on women such as Miss Gibson, Justice Scott observed that ‘some of her acts would, in some social circles, be considered improper, but, in her station, a greater degree of freedom of conduct is exercised by young girls without incurring any suspicion of unchastity.’ While loose conduct might be expected in a working-class woman, it did not necessarily prove immorality. The essence of the defence was simply that Gibson had not been seduced. While numerous acts of sexual intercourse were admitted, the defendant denied that he had ever employed any artful wiles or deception. Scott reviewed various definitions of seduction and concluded that for the plaintiff to succeed, the defendant must have ‘enticed and persuaded’ her to commit the act. True to form, the jury held that she had been improperly enticed. The Court of Appeal gave her the benefit of the doubt and upheld this verdict. Nevertheless, Justice Beck concluded that if the law gave the female the privilege of suing, then this also entailed a weighty obligation: Now that the woman is entitled to be the plaintiff, I think her action is subject to a like defence, that is, if she be the tempter or even if she deliberately consents from lasciviousness or even from strength of mere natural passion, provided her consent has not been brought about by enticement of the defendant, she cannot recover.12

Women were no longer perceived as passive receptacles of a man’s passion: the circumstances of the seduction and the aggressive role of the female became relevant factors. This levelling of the playing field was apparent in the arts as well as the courtroom. When Canadian dancer Maud Allan attempted to perform Salome’s dance in bare legs and chiffon veils on the London stage in 1908, only the intervention of an appreciative sovereign, Edward VII, kept her performance from being censored. A young lady from rural Ontario, Elinor Glyn, would scandalize Edwardian society with her tales of sexual escapades. In her 1907 novel Three Weeks, an older woman seduces a young gallant and for three weeks this older, mysterious ‘Lady’ has a purely physical relationship with him. Three Weeks shocked society by suggesting that a new balance of power between the sexes was possible, and perhaps even desirable. This notion of the woman as the aggressor, seeking her

To Protect the Poor Unfortunate Child

137

own pleasure, upset the staid formula of the romantic novel. In 1927 Glyn’s It and Other Stories created an icon of a woman as a powerful sexual figure. The ‘It’ girl with pouting lips and bared navel was far more likely to be the seducer than the seduced.13 Now that women had stepped down from the pedestal, why should they be able to punish men for what was really a matter of mutual passion? For example, in Cline v. Battle (1927)14 the plaintiff alleged that after moving to the defendant’s farm in Bethune, Saskatchewan, she had been repeatedly raped by him. The judge, however, was impressed by the fact that after each alleged rape she had made no effort to leave the farm. It was also noted that she had been engaged to two other men, one of whom admitted to having sex with her. Ultimately, Cline failed to prove that she came within the law’s definition of seduction – that is, ‘the act or crime of persuading a female by flattery or deception to surrender her chastity’ – for she presented herself as a sexually experienced individual who had willingly engaged in affairs without enticement. Ontario did not copy the 1903 ordinance, and its laws remained much as they were in 1837; the only change being to divide seduction among two statutes, one dealing with common law seduction and the other with the affiliation action for maintenance.15 Yet the attitude of the judges showed a significant change. In Stoner v. Skene (1918) they considered a situation where an action was brought by the widow of a daughter whose father had died before the seduction. By previous interpretations, the right of action vested in the father and could not be transmitted to a widow. Justice Lennox reviewed the 1837 Seduction Act and ruled that such a stilted and patently unjust interpretation was inconsistent with the intent of the 1837 statute and the Married Women’s Property Act; ‘The statutes – all the statutes I have referred to – are remedial, and intended to do away with some of the hardships and injustice incident to the “fictions” and “suppositions” of the common law.’ He added: ‘The Seduction Acts have been progressively remedial, and are to be interpreted liberally’ and therefore the action was maintainable by the widow in her own right.16 In 1923 an Ontario court went even further and held that a plaintiff no longer had to prove loss of services and that the case was complete when he proved that her ability to serve had been interfered with.17 A century after its passage, the 1837 Seduction Act was finally being given effect. It is one of the ironies of the seduction law that by the time it was truly effective it was becoming increasingly irrelevant. Even by the 1890s, seduction cases were becoming infrequent.18 Various Ontario

138 courted and abandoned

assizes from 1910 to 1914 report hardly any seduction cases,19 and few if any seduction cases were brought in Manitoba in the early years of the twentieth century. The benchbooks of two Ontario judges for 1914 and 1915 do not report any seduction cases.20 Part of the reason for this decline may be attributable to women such as Miss Cline, who had shown that modern women were not easily misled innocents who needed the tort law to protect them. It was fundamental to any seduction claim to prove that the victim had been duped into surrendering her virtue, and in the era of the ‘It’ girl this was becoming increasingly difficult. There may also have been a connection to the fertility transition of the late nineteenth century. Between 1870 and 1901 Ontario’s birth rate declined by 44 percent. The 1871 legitimate birth rate of 378 live births per 1,000 women was comparable to the 1700s. However, by 1891 the rate had declined to 285 live births per 1,000 women.21 With fewer children being born, and most of those to older mothers, it is likely that the incidence of illegitimacy declined as well. A doctor noted in the Dominion Medical Monthly of 1909 that illegitimate births in rural Ontario had become rare. By the early 1900s infanticide had also become a rare occurrence as women could opt for private adoption or place unwanted children with the Children’s Aid Society, and ‘increasingly, contraception and abortion became the preferred means of restricting the number of children.’22 Another factor in the decline of illegitimacy may have been the increase in domestic space. No longer did entire families have to share one room; it was now possible for parents, children, and servants to sleep in separate quarters and ‘by the post-First World War era the vast majority of Canadians could look forward to their own bed at night.’23 Discrete accommodations were fitting in a society that placed such a premium on respectability and it had the added benefit of not exposing children to the facts of life at an early age. The rise of respectable society gave illegitimacy a graver stigma than it had ever had before. Social purity advocates were so keen in the early years of the century that a ‘provincial bureau of purity’ had been proposed for Ontario in 1912 to put an end to vice. Propriety was everything, and even in those rare instances when a mother killed an illegitimate child, she was unlikely to be convicted of anything other than concealing the body of the child, for ‘after all, the victims, had they lived, would have been illegitimate and therefore a burden to respectable society.’ In this social climate, merely bringing a seduction action was a sure way to lose family dignity and would have been an extreme option for any family hoping to retain a semblance of propriety.

To Protect the Poor Unfortunate Child

139

While civil seduction faded from the courts, the social purity movement as embodied in the morality provisions of the Criminal Code was very much alive. In one of his last campaigns in the House of Commons in 1899, John Charlton moved to amend the code by abolishing the burden of proving ‘unchaste character’ and to raise the age of consent to eighteen. Charlton’s Act had been a success, he argued, and the extension of the act would ‘have public virtue in the Dominion of Canada lifted higher, preserved and guarded by legislative enactment.’ His critics pointed to the growing army of seventeen- and eighteenyear-old women in Canadian cities who were capable of looking after themselves without Parliament’s intervention. Social purity was losing its momentum and the most the House of Commons would do was to transfer the burden of proving unchaste character from the victim to the accused. When this bill failed to clear the Senate, Charlton came back the following year, stubbornly arguing that the duality of the law which protected only the chaste should be extended to all women and that ‘those who desire the preservation of female chastity are unanimous in their opinion that these words [previously unchaste character] should be struck out.’24 The prime minister, Sir Wilfrid Laurier, lauded Charlton but reminded him that this change would never be approved by the Senate. However, as part of the general amendment to the Criminal Code in 1900, the burden of proving previously unchaste character was transferred to the accused.25 The question of whether the victim was of chaste character was the one issue which would absorb the attention of the courts as well as Parliament. The State Intervenes While civil seduction declined in popularity in the early twentieth century, it was not the only area where reformers began to view the common law as inadequate. Regulatory systems, enforced by the government, were far more effective ways of confronting social problems. For example, injured workers were compelled to use a lengthy and expensive litigation system to obtain redress from employers. As the employer could claim that the injury was caused by a fellow employee or by the claimant’s negligence, these lawsuits were frequently unsuccessful. To remedy this, Ontario adopted a comprehensive workmen’s compensation scheme in 1914 to eliminate lawsuits entirely and shift workers’ claims to an administrative agency. This eliminated the cost of litigation and guaranteed regular payments to the worker.26 In light of the capricious and unsatisfactory operation of the seduction tort, the

140 courted and abandoned

advantage of using such a system to help the victims of seduction must have been obvious. Even before the turn of the century, reformers recognized that if the common law could not protect neglected children, then the state had a direct interest in doing so. While orphans homes and industrial schools provided a regimented environment for children, by the 1890s children’s aid societies were placing children in real homes instead of institutions. This marked a shift in early charitable work from that which had been limited to religious institutions27 to state sponsored intervention on behalf of the poor. This concern went well beyond Charlton’s act and its use of repressive measures to require sexual conformity, towards educational and religious attempts to encourage higher moral standards. Both religious and political leaders hoped that temperance, Sunday observance, and a sexual life restricted to marriage would foster a better Canada. During the First World War, the federal government’s Conservation Commission was a practical application of this view, for with its emphasis on pure food and a healthy lifestyle it ‘evolved Romantic vitalist philosophies as well as the Christian concept of the “Resurrection and the Life.”’28 An early manifestation of this moral reform in Ontario was the Children’s Protection Act of 189329 which enabled the province to remove children from unfit homes and raise them with foster families under government supervision. Dealing with a remedial system instead of deciding rights between litigants was a new experience for many judges and needed some conceptual explanation. In Re Granger (1897) six children had been ordered committed to a children’s aid society. This order was not penal in nature, the judge noted, but ‘is on the contrary, benevolent in its aims and operation, and is intended to protect those children who come within its protection.’30 As a result of this state intervention, the prospects of neglected and illegitimate children were vastly improved in the twentieth century. A reporter visiting Vancouver’s Creche in 1912 noted that the infants were all well cared for: ‘All were bonny children, the offspring of the working classes of Vancouver. They were all fatherless: the mothers found it necessary to work by day for the maintenance of the little ones.’31 The drive to assist single mothers became all the more important in the first decades of the century with the loss of so many fathers to industrial accidents, the First World War, and the influenza epidemic. Social reformers were keen to preserve family stability as a key element of national stability in a time of crisis. To support single mothers, postwar Canadian governments would use their power to

To Protect the Poor Unfortunate Child

141

extract support from putative fathers through a predictable, bureaucratic system.32 Perhaps the main reason why the seduction tort fell into decline was the slowly building government involvement in protecting the illegitimate child and coercing support payments from putative fathers. No longer was it necessary to parade babe in arms before a courtroom of strangers and beg for relief when a statutory remedy could be enforced by government edict. Provincial child welfare statutes would create a legal web far more efficient and private than the seduction tort to force fathers to accept responsibility for their children. Agitation from both women’s suffrage groups and social reformers in western Canada were particularly strong in advocating these reforms. For example, in Vancouver, the Local Council of Women had been lobbying for mothers’ pensions since 1901 and in 1904 they passed a resolution that: ‘Whereas illegitimate children are frequently left chargeable to the City and Province, there being no law to compel the maintenance of such by the father, therefore be it resolved that the Local Council of Women endeavour to secure similar legislation on this point to that which is provided in other provinces of the Dominion.’33 Perhaps in response to this, the British Columbia legislature passed the Support of Illegitimate Children Act in 1904 which created a filiation action. As did the filiation proceedings that had long existed in the maritime provinces, it enabled the seduced woman to make an affidavit before a justice of the peace declaring that the person charged was the father of the child and liable to pay support. However, far more effective than these filiation proceedings were child welfare statutes compelling fathers to support their children. In this area, innovations seemed to originate in the west. In 1912 Manitoba enacted the Illegitimate Children’s Act, which made it possible for unwed mothers to bypass the seduction route altogether and use the provincial law to lay a charge against the father requiring him to pay for the support of his child. These provisions were extended by Manitoba’s Child Welfare Act of 1922, which established a detailed scheme whereby an unmarried woman could lay an information against the father and have him brought before a judge, where he could either post a bond to secure support payment or go to jail. Section 35 of the Manitoba statute provided that even if the mother did not lay the information, any other person acting on her behalf or the provincial director of child welfare could start proceedings against the putative father. In all of these child welfare statutes, a new powerful figure, in the form of a director or superintendent of child welfare, would take a

142 courted and abandoned

dominant role in the relations between the unwed mother and the father. In support applications the female would now have the authority and resources of the state to back her claim against the father.34 There seemed to be an intimate connection between the suffrage movement and the child welfare laws. The most effective female politician in Alberta, Irene Parlby, had worked tirelessly for women’s suffrage and in one of her few legislative initiatives, had introduced Alberta’s Children of Unmarried Parents Act into the legislature in 1923. As did most child welfare laws, this statute empowered the provincial superintendent of child welfare to take a direct role in obtaining support for the unwed mother.35 At the same time the Alberta statute preserved existing rights, including the right to sue for seduction. In 1922 the British Columbia legislature passed a similar law which granted the superintendent of child welfare sweeping powers to ‘take such action as may seem to him advisable in the interests of the mother and child.’ The government had wanted to go further, but the opposition objected to clauses which made a putative father liable for medical bills and which ‘the opposition contended that the illegitimate child and its mother were given greater protection than where the child was born in wedlock.’ Nevertheless, as were all the child welfare statutes that were enacted shortly after the First World War, the British Columbia statute was a significant change in law and society. Yet, it was largely ignored by the public. The only law to pique the attention of the public during the 1922 session was an act to permit women to sit on juries.36 The transition from tort law to a child welfare system was not always smooth. A Manitoba father was surprised at having to serve jail time for failing to support his illegitimate child. Upon his release, he learned that his troubles were not over for the judge reminded him that ‘his committal to jail in no way relieves him from his liability to maintain the child.’37 In Saskatchewan, Justice Taylor noted in a 1930 case that while the child welfare laws seemed criminal in nature, they were not intended to punish crime but to ‘enforce a pecuniary obligation.’38 Adding to the confusion was the coexistence of the seduction law with the child welfare statutes. While the provincial child welfare laws created a new statutory scheme, they specifically preserved existing common law remedies such as seduction. For example, in Bilinski v. Kowbell (1931) the unwed mother had already brought a successful claim under the Saskatchewan child welfare law. Then, in order to extract as much compensation as possible, she sued the child’s father for her seduction. At trial, Justice Bigelow ruled that, while this action was available to

To Protect the Poor Unfortunate Child

143

her, damages should be reduced to reflect the father’s statutory support payments. The Court of Appeal agreed that Miss Bilinski had been induced to surrender her virtue and therefore had a legitimate seduction action. It is significant to note that the court added a qualification that while an unmarried female could sue for her own seduction, ‘This does not mean, in my opinion, that the right of action for mere seduction [that is, consensual sex] but the cause of action must be seduction followed by damage resulting from the seduction [that is, pregnancy].’39 Four years later, when the Alberta courts struggled to understand the law in the Brownlee case, this distinction would become critical. In other ways besides child welfare, the western provinces and particularly Manitoba, took the lead in protecting children. Among its many reforms, the Norris government of Manitoba introduced the Mothers’ Allowance Act in 1916.40 By this enactment Premier Norris declared that the state had a direct interest in the well-being of the young: ‘This is another trail blazed by the people of Manitoba for the rest of America,’ he grandly pronounced. ‘Manitoba was first. Others have followed.’41 By this statute monthly payments were made to widows or women whose husbands were disabled and ‘a comprehensive bureaucracy was instituted to ensure that the province could be confident of ‘assisting the proper type of woman to bring up its future citizens.’42 Seduced women, however, could not avail themselves of this plan as unmarried mothers were declared to be ineligible. With one notable exception, mothers’ allowances would be reserved to ‘deserving’ single mothers. The guardians of the poor ‘advocated mothers’ allowance for widows since they were poor through no fault of their own, whereas deserted mothers were considered morally dubious and unwed mothers were flatly morally unacceptable.’43 The British Columbia case was unique in that, in contrast to all other provinces, almost every women’s group supported the rights of unwed mothers to take part in the pension scheme. As one women’s group proclaimed, ‘We feel that many unmarried mothers have children who are just as good as those who are married; why should one be deprived of support, if she is your daughter or my daughter – let us stand together.’44 This ringing solidarity did not extend to women of Asian descent who were excluded from the act’s provisions. While other jurisdictions feared the potential immorality of giving public money to unwed mothers, British Columbians were preoccupied with notions of ‘race-suicide’ and a white mother, even an unmarried one, was a commodity to be treasured. When the Mothers’ Pension Act45 was passed in

144 courted and abandoned

1920, British Columbia became the only jurisdiction in North America to include unwed mothers for pension purposes. Within a year this farsighted (if racially exclusive) statute had created a demand which outstripped the finances of the provincial government. Even this was too much for Ontario. During the war years the Hearst government was a reluctant convert to social reform. Its 1919 Riddell inquiry into the effect of fatherless homes resulted in a conservative report which advocated minimal allowances for mother-led families. One of the purposes of these benefits was to enable the state to supervise the fitness of the recipients, and the investigators were consequently dubious of the claims of unwed mothers. As the 1921 annual report of the Mothers’ Allowance Commission phrased it, the mother ‘is regarded as an applicant for employment as a guardian for future citizens of the state, and if she does not measure up to the State’s standards for such guardians, other arrangements must be sought.’46 In the case of the unwed mother, she had already failed the moral test for guardianship. When Ernest Drury and the United Farmers of Ontario came to power in 1919, mothers’ allowance legislation was passed within three months of their victory. However, when Toronto MPP J.W. Curry suggested that mothers’ pensions be extended to include unwed mothers, the proposal was rejected by the Drury government ‘on the ground that the bill was an experiment and it would not be wise to load it up with too much detail at the start.’ Even after pressure from labour groups to include unmarried mothers, Labour Minister Walter Rollo ‘held out little hope in the case of mothers of illegitimate children.’47 However, in 1921 the Drury government did enact a law to extend the right of unwed mothers to use provincial social assistance offices to force a father to pay support. The statute had its origins in the agitation of J.J. Kelso, the same reformer who had crafted the Children’s Protection Act of 1893. Kelso’s views probably reflect those of most liberal reformers of the time, for in 1901 he felt that an unwed mother should put the child up for adoption as ‘the experience of ages has proved conclusively that no unmarried mother can successfully bring up her child and save it from disgrace and obloquy, whereas the child, if adopted young by respectable, childless people, will grow up creditably, and without any painful reminder of its origins.’48 Kelso’s views on how to deal with unmarried mothers and their offspring had evolved, especially after an incident in 1912 in which thirty-five infants died during an epidemic in the Toronto Infants’ Home. The Children of Unmarried Parents Act of 1921 was a decisive step away from institu-

To Protect the Poor Unfortunate Child

145

tional care, for it provided the independent means for the mother to support herself and the child. The act contained a comprehensive code to both protect children and enable a mother or guardian to get support from the putative father until the child reached the age of sixteen. According to Kelso, this act ‘is one of the most advanced steps in social legislation that has been taken by any country. Having been confronted daily with the suffering, abandonment and premature death of children belonging to this class, I can appreciate more than most people the need that exists.’50 While the public was largely indifferent to this need, Ontario judges recognized the child welfare system as a conspicuous social change. In Chadwick v. McCrie (1924), Justice Middleton noted that the antiquated process for affiliation orders ‘was found to be inadequate and in 1921 the Children of Unmarried Parents Act, 11 Geo. V, c. 54 by which the father’s liability was greatly increased was passed.’51 Both the modern and the feudal regimes coexisted uneasily, for in the above case the victim’s father had successfully sued for seduction. Nevertheless, the Court of Appeal upheld the judgment under the 1921 unmarried parents statute, for ‘there is no authority for the contention that the maintenance of the child must be taken to have been included in the verdict in the action for seduction.’ That is, the feudal remedy continued to exist as a thing apart from the modern administrative remedy. The courts seemed anxious to facilitate this new regime, and the standard of corroborative evidence to prove paternity was not high. In one case, a woman’s uncontradicted assertion of paternity was upheld as ‘material evidence’ to obtain a maintenance order.52 In Saskatchewan, Chief Justice Haultain ruled in Karst v. Berlinski (1930) that an agreement releasing the father from the operation of the child welfare law was ineffective and furthermore, the law was applicable even when the child was born prior to its enactment. Of course, any administrative remedy is only as effective as the government wishes it to be. In its early years there was little bureaucratic support provided for the Ontario Children of Unmarried Parents Act; consequently, over 90 percent of accounts went uncollected. When sufficient officers were hired to pursue putative fathers, almost one-quarter of cases resulted in settlement payments to the mother. In half of the cases there was insufficient evidence of paternity and in the others, no action was desired by the parties. In its first decade of operation 13,848 cases were investigated.53 When they were enforced, child welfare laws enabled women to get fast, government-endorsed support orders against putative fathers. Where

146 courted and abandoned

the common law had failed, the legislatures had provided a remedy that promised reliable, on-going relief. In light of these new circumstances, it might be questionable whether a lawyer of a seduced woman would ever counsel her to risk the uncertainties and infamy of a seduction action. Yet in the maritime provinces the bastardy laws proved remarkably endurable. New Brunswick’s bastardy provision was amended three times between 1915 and 1923 until it was simply repealed in 1925.54 Yet it was not replaced by any welfare legislation, and the 1929 Report of the New Brunswick Child Welfare Survey found that the odds against a single mother raising a healthy family were enormous. The lack of support from the province was leading to family breakdown, and worse, to prostitution and child-beating. The province enacted a mother’s allowance scheme in 1930 but did not provide funds for it until 1944. In 1923, Nova Scotia’s Maintenance of Bastard Children Act went through a titular change and became the Maintenance of Illegitimate Children Act. A subsequent amendment significantly improved the rights of illegitimate children by making them their mother’s lawful heir and legitimizing them in the event of a subsequent marriage. With these changes, Nova Scotia’s bastardy laws survived until 1951.55 In direct contrast to British Columbia, single mothers in Quebec were deliberately shamed for daring to break the moral law. While childbearing was honoured, doing so outside of marriage violated the strict religious codes as defined by the church and society. Quebec religious hospitals provided a refuge where unwed mothers could give birth, but perhaps more importantly, contemplate the gravity of their sin. A study of Montreal’s Hôpital de la Miséricorde during the 1930s showed that women ‘were either mothers at home or their antithesis, prostitutes,’ for an unwed mother ‘was an outcast from the time her condition was obvious; her chance of regaining a place in her milieu was linked to the success with which her fault could be concealed from those around her.’56 Quebec resisted comprehensive social pensions, and even the Public Charities Act of 1921, which provided a cost-sharing formula for charitable institutions, was attacked as being intended to erode religious influence in these institutions and advance anti-clerical designs. This opposition effectively discouraged any further reforms to public welfare.57 What was it like to bear an illegitimate child in the Canada of the 1930s? While the degree of ignominy may have been as great or greater than

To Protect the Poor Unfortunate Child

147

the previous century, at least the courts seemed intent on applying the child welfare system to provide as much protection as possible. In 1917 Marcia Adelaide married Charles Dodd in Idaho and went to live with him in Salmon Arm, British Columbia. By 1930 they had grown apart and in May 1933 Marcia began an affair with George Wilcox. The following year she bore him a daughter. Despite the fact that the child was not his, Dodd did the honourable thing and registered the child under his name. But he could no longer tolerate the adultery, and Dodd told Marcia that she could no longer live under his roof. In October his divorce petition was granted. Marcia and her child were left in destitution, dependent upon the pittance of district relief, and Marcia was diagnosed as ‘broken in health and spirit. Her medical advisor stated that she had suffered a nervous break-down.’ Added to her predicament was a ruling from a police magistrate that, as she was not a ‘single woman’ as defined by British Columbia’s Children of Unmarried Parents Act, she could not bring forward evidence to bastardize her own child. This effectively barred her from getting any support from George Wilcox. On appeal, a very different approach was taken. Justice Swanson ruled that evidentiary rules should not be used as a tool to reduce this unfortunate woman to penury. He took a liberal interpretation of the term ‘single woman’ to include a woman who was formerly married but who, on the laying of the information, was divorced. In addition to giving her legal status, he brushed aside the ancient rule against receiving evidence to bastardize a child born out of wedlock: Now the proceedings are taken by virtue of this Act chiefly for the care, protection and maintenance of this innocent unfortunate child. The mother of this child is now destitute without means to support herself and child, she has been getting a pittance of relief from the district municipality but that is a very uncertain reed for her to lean upon. It would seem a very tragic thing for this child’s welfare if a so-called rule of evidence is to deprive it of all remedy under the law.58

If anyone needed the protection of the law, it was Marcia Dodd, and an order against George Wilcox was issued ordering him to support his child. Yet it is significant that at no time did Marcia start a seduction or breach of promise action. For a woman in desperate circumstances, the new statute was a godsend, as it enabled her to demand relief through a government agency. The child welfare statutes that were making tort

148 courted and abandoned

remedies obsolete were later to be criticized as transferring ‘dependence upon one man to reliance upon a male-dominated state’ and that these reforms were ‘not liberation ... but merely the familiar dependence in a new form.’59 These criticisms fail to account for the difficulties most working-class women would have faced in hiring a lawyer and pursuing a lawsuit. Moreover, even if they had the resources to do this, the outcome of a tort action was uncertain at best. Government intervention to force putative fathers to pay support was a major achievement in advancing equity for women and their dependants. For a woman such as Marcia Dodd, the intervention of the state to protect her and her child must have been heartily welcomed, for it was a vast improvement over the uncertainties of the common law. Care, protection, and maintenance were the objectives of this new child welfare system. The state would hereafter play an active part in seeing that fathers supported their illegitimate children. As a result of this advance, it seemed by the 1930s that the days of the dramatic seduction trial, with crowds elbowing forward to hear every depraved detail, were at long last over. Yet the antiquated tort of seduction remained in existence as an obscure encrustation of the law. While it had been supplanted by a regulatory regime, as long as the seduction tort existed, even as a provincial curiosity, it might still be invoked.

10 MacMillan v. Brownlee

Over six foot, with an erect, stern demeanour, John Edward Brownlee was a model of incorruptibility. While he was attorney general of Alberta during the 1920s he was an implacable foe of the liquor trade. Even those who transgressed the Lord’s Day Act by working on Sundays (unless it was harvest time) incurred the wrath of the attorney general. Brownlee had been born in Ontario and attended ‘the heart of Canadian Methodism,’ Victoria College of Toronto. In 1909 he moved to Calgary and obtained a position as a law student. After he was admitted to practice, he was successful in commercial law and his work entailed assisting farmers and grain elevator companies to form the United Grain Growers. The UGG provided a variety of services to rural Albertans and this activity eventually involved Brownlee with the political movement, the United Farmers of Alberta. Although he remained an urbanized lawyer, farm groups came to value his expertise. In 1921 he became attorney general in a UFA government. Social reform was high on the UFA agenda and in 1921 Brownlee worked with Irene Parlby to introduce a bill to protect the property of married women and to amend the Mothers’ Allowance Act. Parlby, a fierce advocate on behalf of women and children, ‘relied on Brownlee for advice about the legal technicalities of reform.’1 But like most people, she considered him to be cold and aloof. In 1925 Brownlee became premier. In rapid order he balanced the provincial budget and sold off one of the government’s worst liabilities,

150 courted and abandoned

the provincial railway. While the province was beginning to produce oil and gas, neither could contribute to the provincial coffers until control of natural resources was transferred to the province. During negotiations on the transfer, Mackenzie King was impressed with Brownlee’s acumen and considered a bold stroke of asking him to join the Liberal cabinet. While King admired his ability, he considered him ‘a dour sort of person wrapped in mystery, not too frank.’2 In 1929 Brownlee secured control of the province’s natural resources from the federal government and was welcomed back to Edmonton by a victory bonfire and a massive crowd of supporters. His enduring popularity seemed assured. Brownlee’s Alberta was a profoundly religious society, where bible schools, temperance societies, and fervent evangelicalism were everyday realities to many citizens. Revival campaigns even extended to the cities and greatly increased regular church attendance.3 Therefore the disclosure of a scandal in his government made some question its fitness to govern. O.L. McPherson, the minister of public works, had been divorced and remarried. This unfortunate situation was compounded when Neil MacLean, a lawyer and leading Liberal, brought a petition on behalf of the first wife alleging that McPherson had illegally enticed her into an adulterous affair. The organ of the provincial Liberals, the Edmonton Bulletin saw that free copies with salacious details of the McPherson scandal were distributed in the minister’s riding.4 In Alberta, religion, scandal, and politics were never far from one another. The depression years took their toll on Alberta farmers, and Brownlee’s government came under attack from several quarters. Many felt that his government should intervene directly to help those who could no longer make a living on the land. To assist farmers, Brownlee had taken an active role on the Royal Commission on Banking in order to advocate a program of relief for debtors who were burdened by low grain prices. After working on the royal commission through the spring of 1933, Brownlee, as was his custom, sent his family to a cottage. On the evening of 5 July he telephoned a stenographer and long-time family friend, Vivian MacMillan, to ask if she would like to join them. She replied that she had not made up her mind and that she had other problems to discuss. At her request, Brownlee drove to her apartment and took her out for a drive. Shortly after picking her up, he noticed that they were being followed. There then ensued a bizarre chase in which the Alberta premier sped through the Edmonton streets in an unsuccessful attempt to lose his pursuers. This unusual episode ended

MacMillan v. Brownlee

151

with a shaken Brownlee dropping MacMillan off at her apartment. He joined his family and thought no more of the car chase until early August when he received a letter from Neil MacLean stating that he had been instructed to commence an action against Brownlee for the seduction of Miss Vivian MacMillan. As no statement of claim was forthcoming, Brownlee continued his work on the banking commission. Perhaps MacLean and his clients had hoped that Brownlee would approach them with an offer to settle. In August 1933 Brownlee and his wife drove to the MacMillans’ home in Edson, Alberta, to see if the matter could be resolved. Vivian’s mother was surprised to see the province’s premier arrive unannounced at her doorstep. While Brownlee stood awkwardly outside the screen door and asked to speak to Vivian’s father, Mrs MacMillan asked them to leave. At last she grudgingly let them in. Brownlee told her that ‘I am not asking you to refrain from your action, but I want to tell you that the allegation is not true and I will face them frankly and answer any questions ... If its money you are after, I haven’t got it.’5 Nothing was settled, and the Brownlees returned to Edmonton. The claim of Vivian MacMillan and her father Allan was filed on 22 September 1933. To achieve maximum publicity, MacLean gave the pleading to his Liberal friends in the Edmonton Bulletin and had it published before it was actually filed in court. Except for the prominence of the defendant, the claim was similar to any other seduction action. It alleged that during the provincial election campaign of June 1930, Brownlee had visited the town of Edson whose mayor, Allan MacMillan, took Brownlee to a farmers’ picnic. On the trip there and the return to Edson, Brownlee chatted amiably with the mayor’s daughter Vivian. She would later swear that at the social later that evening she danced several times with the premier and he had remarked, ‘You will grow up to be a beautiful woman.’ So enchanted was he that he urged her to abandon her musical aspirations and come to Edmonton where he could arrange a government job for her. Thus, after separating her from her home and parents, Brownlee advanced his plot by explaining to her that his wife Florence was an invalid and if Vivian did not submit to him, he might be forced to resume marital relations with his wife and that this would likely kill her. Moreover, Brownlee had loved Vivian from the moment they met and the statement of claim went on to allege that he had persuaded her that sex with him, far from being wrong, ‘was for the good of all concerned.’ As for Vivian, the statement of claim described her as ‘an inexperienced and innocent girl

152 courted and abandoned

of eighteen’ and that Brownlee ‘by his false statements, wiles, flattery and expert love making’ had convinced her that it was her duty to submit to ‘save the unhappy lonely Premier for his important work to his province and his country.’ This patriotic duty eventually required her to have sex with the premier in locations as varied as the back seat of a government car, the premier’s office, and even his own wife’s bed.6 While Brownlee immediately issued a statement that there was no truth to the allegations, he realized that the mere accusation of sexual impropriety would forever brand him. He offered to resign from the banking commission and considered leaving public life altogether. It took persuasion from his closest colleagues to convince Brownlee to stay in office while the case proceeded. Meanwhile, his counsel, A.L. Smith, organized a vigorous counterattack by charging that Vivian had colluded with her fiancé, John Caldwell, a third-year medical student, to blackmail Brownlee. The provincial attorney general hired a detective to investigate whether any embezzlement had occurred and a detective did find out that Caldwell had bragged to several people that he was about to come into a large sum of money from someone ‘high up in political life.’ One agent posed as a loan shark and engaged Caldwell in conversation in a hotel room about a possible loan. A police stenographer was hidden in a closet and later under a bed. He recorded that Caldwell said that he could pay back the money when the Brownlee case was settled, and that Caldwell had said: ‘I hate Brownlee and am out to get him and the innocent must suffer with him – he is sewn up so tight he’ll never get out of this – I deliberately set out to frame him.’ Caldwell added that he had deliberately sought out a Liberal lawyer, Neil MacLean, to prosecute. Caldwell even gave an insight into the strange car chase when he related how, together with fellow members of a secret order, he had organized the escapade to entrap Brownlee. And the goal was money. ‘I expect to get $20,000 or $25,000 out of this,’ he confirmed, and added that they had given Brownlee a chance to settle out of court, but that he had refused. Promising as this was, Caldwell did not state that allegations of a sexual relationship between MacMillan and the premier were a sham. But it was enough for Brownlee to file a counterclaim that Vivian and Caldwell had conspired to blackmail him. For many Albertans, the start of MacMillan v. Brownlee enabled them to put aside, at least for the moment, the anxiety of another hot, dry summer and the dark valley of the seemingly endless depression. The spectacle of a high government official charged with having an illicit

MacMillan v. Brownlee

153

love affair with a beautiful young stenographer caught the public’s attention across Canada and the United States. Even the London Daily Mail and the Paris Midi covered the trial, which the Midi called ‘L’un des procès les plus sensationnels qu’ait connus le Nouveau Monde.’ By the spring of 1934 the MacMillan seduction case had become, in the words of the Edmonton Bulletin, ‘the greatest drama ever to be heard in an Alberta court.’ Judge William Carlos Ives, the ‘cowboy judge,’ would preside. A quintessential Albertan, Ives had spent his early years on the family ranch until he had travelled to Quebec for legal training. He was known as a sphinx-like judge who let the lawyers present their case and kept his thoughts to himself until the last moment. There were many sinister overtones to the case, including the intriguing story of Carl Snell, a former schooteacher of Vivian’s, who refused to come to Edmonton and had to be deposed in Nova Scotia. It was even reported that a mystery witness, now living in Germany, would appear at the trial. When the case was finally called on 25 June 1934, the Bulletin described Brownlee as tired and drawn as he sat at the jammed counsel table with his wife Florence, ‘the most tragic figure of all in the crowded courtroom.’8 Most of the first day’s proceedings were taken up by the empanelling of the six-man civil jury. However, the trial really began when Vivian MacMillan took the stand. Poised and articulate, the well-groomed twenty-two-year-old was hardly the rustic waif who had appeared babe in arms in early seduction cases. She described growing up in the small town of Edson where she taught Sunday school and played the organ in the local Baptist church. She had become a friend of her Latin teacher, Carl Snell, in 1930 but had declined his marriage proposal. On a routine campaign tour during the summer of 1930, Brownlee had visited the MacMillans and first chatted with Vivian. She implied that Brownlee was infatuated with her and that he suggested she give up her planned musical career and come to Edmonton to study business. Together, they danced at a post-political banquet and Brownlee complimented her on her beauty and repeated his suggestion that she study business in Edmonton. Her acceptance of this suggestion would forever change her life. That September, accompanied by her mother, she moved to Edmonton to study business at the Alberta College. Shortly after her mother’s departure, she was called by Brownlee, who invited her to dinner with his family. She would eventually become a regular fixture in the Brownlee household. However, only a month after her first visit, she alleged that Brownlee drove her out on the

154 courted and abandoned

Jasper highway about six miles from the city, turned down a side road and parked. He turned to her and confessed that he was lonely and in need of a confidante. Another pregnancy would endanger Mrs Brownlee’s life, he confessed to this almost complete stranger, and he had not slept with his wife for many years. He went right to the point, would Vivian help Mrs Brownlee by becoming his mistress? She was aghast and asked if there was any other way she could help. This was the only way, he assured her. He could not continue as premier unless she gave in to him. The following week, while he was driving her home, Brownlee became far more aggressive. He repeated that he was madly in love with her and that it was her duty to the province and Mrs Brownlee to submit. Brownlee then forced her into the back seat of his car and, even though she struggled to escape, ‘When he forced me down he had one arm around me. With one hand he raised my clothes and unfastened his own clothes and tried to have sexual intercourse with me ... I fought against him, but he gained partial entrance.’ Brownlee flew into a rage, returned to the driver’s seat and drove off. Despite this terrifying incident, Vivian took another drive with him two weeks later and this time he succeeded in forcing himself on her. ‘He again forced me down onto the back seat of the car. I fought against him but this time he was too determined to be moved by my tears or pleas... after he had been sexually satisfied he sat on the back seat of the car and took me in his arms and told me how wonderful I was.’ When a trembling Vivian told him of her fears of becoming pregnant, Brownlee assured her that he could provide abortifacient pills to prevent any accidents.9 A few days later, a gratified Brownlee told her how happy he was to be her first lover and that ‘the condition of his clothes’ had sufficiently proved that point. Shocking as this was, far more salacious details were to follow. After Brownlee had arranged a job for her at the attorney general’s office, he demanded sex from her in his home. The Brownlee house on 88th Avenue was a modest two-storey structure. The second floor was divided into four rooms, including a bathroom, a maid’s room, one bedroom for Brownlee and his son Jack and another for Florence and their other son Alan. In the spring of 1932 the maid was away and Vivian occupied her room. During the night, Brownlee would turn on taps as a signal for her to leave her room. Then he would flush the toilet to disguise Vivian’s movements. Together they would walk in lock-step to sound like one person and return to Brownlee’s bedroom. At his bedside, he would spread his bathrobe wide to receive her and they

MacMillan v. Brownlee

155

would have intercourse in the bed next to his sleeping son. Later, they would retrace their steps to return Vivian to her room. This went on, she stated, every night for almost six weeks. In the summer of 1932 Vivian was hospitalized by ‘stomach troubles brought on by nerves.’ Mrs Brownlee wrote the cheque to cover her stay and upon her release from hospital she returned to her parents in Edson. However, in the autumn she returned to Edmonton and her affair with the premier. When she fell in love with John Caldwell, Brownlee reacted with jealous rage and threatened to have her fired. The thought of losing her job in the middle of the depression terrified her. As well, she feared that leaving Brownlee could have fatal consequences for Florence. She found that she could not break off their relationship as Brownlee exerted such a powerful spell over her. It was so powerful that on the late morning of 2 January 1933, when Brownlee ordered her to leave her mother and come to the Parliament Buildings to have sex with him, she felt compelled to do so. She simply could not resist his demands. On Hallowe’en in 1932, Vivian visited the Brownlees. Even though the premier was ill in bed and Vivian protested that she was on her way to a party with Caldwell, Brownlee insisted that they have intercourse. Again she complied. At the end of January 1933 she broke down and confessed all to Caldwell and, at his urging, she consulted MacLean. Yet even while she was fixed in her resolve to sue Brownlee and expose his immorality, she continued to maintain normal relations with his family. This might have seemed deceitful to some, but Vivian’s partisans in the Edmonton Bulletin ignored any inconsistencies and praised her in glowing terms as ‘bearing up with wonderful fortitude, the slim, haggard-faced girl never flinched.’ Even the Bulletin’s headline, ‘Vivian Testifies to Harrowing Ordeal,’ all but confirmed that she was the heroine and Brownlee little short of a monster. According to the Bulletin’s court reporter, J.S. Cowper, Vivian had faced this ordeal ‘with courageous mien.’ In contrast, he described Brownlee as a ‘love-torn, sex crazed victim of passion and jealousy, forcing his will upon her in parked autos and on country highways.’ As the jurors were not sequestered and were free to read popular journals such as the Bulletin, these lurid accounts could become a vital factor in the case. And in any event, her story was so extraordinary that it surpassed belief that this pleasant-looking young girl could have invented such a bizarre tale. When A.L. Smith rose to cross-examine Vivian he realized that he had to walk a very fine line. It was imperative to discredit her testi-

156 courted and abandoned

mony, but he had to do so in so genteel a manner that he would not kindle the jury’s sympathies for her. He began by returning to their early relationship, when Brownlee had first visited Edson. While Vivian swore that at this meeting Brownlee resolved to seduce her, the MacMillans had heard nothing from him for weeks afterwards. While Vivian had testified that she had never considered going to an Edmonton college before meeting Brownlee, Smith produced a letter in which she had written to Alberta College well before the Brownlee visit. Even though she claimed that Brownlee had professed to be her guardian, he had taken no part in her move to Edmonton. Moreover, it was Vivian who refused to live in the students’ residence and instead moved into the YWCA. Perhaps it was mere speculation that motivated a query by Smith as to when Vivian first suspected that Brownlee had induced her to come to Edmonton for immoral purposes. Her answer was an unexpected bonus for the Brownlee camp, for she replied: ‘It was after I was given a position in the Attorney-General’s department. I used to hear the girls talking, and we would read files in the office about girls getting into trouble. It was then my eyes became opened.’ Smith would later question whether this lawsuit had its origins in fact or in Miss MacMillan’s perusal of the seduction files of the Alberta attorney general’s office. These files could certainly supply the facts to enable her to fabricate a plausible case. While her story seemed to gain credibility from its wealth of detail, Smith showed that in many cases these details were in error. On the evening of the second alleged seduction on the Stony Plain Road (where Vivian had not noticed any unusual weather) there was a blizzard in progress. Strange weather indeed for a love tryst on a lonely country road. Vivian had insisted that upon their return to the government garage, Brownlee had changed cars and taken a small Studebaker with licence ‘104.’ She was certain of this and positive that this was the licence number. However, Smith advised her that this car had not been purchased until a more than a year after the alleged incident. Under reexamination, her answer became ‘I am not sure of the licence number.’ Throughout, she maintained that sex was forced upon her, but that she had yielded to save Mrs Brownlee, or from some presumed duty, but always against her will: Q. So that in this city of 80,000 people here you were, your parents in Edson on long distance telephone, which you frequently use, having intercourse with this man from terror?

MacMillan v. Brownlee

157

A. From terror and because he told me it was my duty to do it. Q. What do you mean, did he hypnotize you? What do you mean? A. I can’t exactly describe it. Q. Did it make you feel queer in the head? A. It made me feel that I was unable to refuse to do anything that he wanted of me ... When I was in his presence I always had a feeling that I could not refuse to do anything that he asked me to do.10

Other facts fell under Smith’s cross-examination. Vivian’s assertion that when Florence was away she had stayed in the maid’s room was shown to be wrong when Smith produced letters from the Brownlee boys that Vivian had stayed in Mrs Brownlee’s bedroom. She conceded that she was mistaken on this point. There was a bolt on the inside of Florence’s door, why had she not used it? ‘Because I just did as Mr Brownlee said,’ she replied. She testified that each sexual encounter with Brownlee was physically painful. And yet she came back. Even after she went to Edson to recover from her illness, she insisted (despite her parents’ pleas) on returning to Edmonton. Her amiable public conduct seemed impossible to reconcile with her private ordeal. To the Edmonton Bulletin, Vivian had withstood the ordeal with heroic fortitude. Described as ‘pallid of face, but with eyes feverishly bright, like a deer at bay before the hunters ... not even when her voice choked with sobs did she ask for any quarter.’ By this account, there was no question that she was the wronged heroine, even as she ‘gave answers to the questions designed to tear away all privacies of soul and body and expose her inner consciousness to the jury.’11 At no time would the Bulletin ever question her integrity or the fact that the lawsuit and the tearing away of ‘all privacies’ had been instigated solely by Vivian MacMillan and her father. This unquestioning attitude would persist even when she testified that night after night, Brownlee would take her into his room to have sex with her only eighteen inches from his seventeen-year-old son. On one remarkable occasion, Jack had stirred in his sleep while Vivian lay in his father’s bed: A. Jack moved in bed and sort of murmured to himself and Mr Brownlee turned on the red light to see that he was alright.

158 courted and abandoned Q. And you really tell us that this man Brownlee, turned on the light with you in bed with him? A. Yes, sir. Q. Do you mean that? A. I do.

Nor would the Bulletin question her story when Smith asked why Brownlee could procure abortifacients for Vivian but not for his own wife. When pressed on this issue, she gave no audible response. ‘It makes your story look peculiar, doesn’t it?’ suggested Smith. ‘“Yes, it is peculiar,” she agreed, “but true.”’ Lastly, Smith would use her previous sworn statements to destroy her credibility. Like a good craftsman, he would prepare the ground by having her repeat her previous statements given at her pre-trial examination on discovery so that the jury would know that she had, on that occasion, given one version of the truth. Then, he would use other pieces of evidence to show that this version could not possibly be true. The witness would be exposed as either a liar or hopelessly unreliable. In one of the few specific allegations in the statement of claim, it was alleged that during April, May, and June 1932, Brownlee had forced Vivian to stay in his home for seven weeks and every night forced her to have sex with him. During her examination on discovery, this period was substantially modified to eliminate April, the first two weeks in May, and the last two weeks in June. At trial, she changed the period again to the last two weeks in April and the first two in May. Smith then picked up the premier’s appointment book and read out his schedule for these weeks. For all but ten nights, he was out of Edmonton on business. Her one specific allegation of seven weeks of forced sex was, under closer inspection, reduced to a period that could not have been longer than ten days. ‘You are accusing this man of some terrible things,’ Smith reminded her, ‘and I want to have your memory right about it occasionally ... How long was it?’ She could not give no answer other than ‘as far as my memory serves me it was more than ten days.’ As it was vital to Brownlee’s case for the jury to see Vivian as more actress than stenographer, Smith had her recount how on 29 June 1933, after she had made arrangements to sue Brownlee and degrade his family, Vivian had her usual daughterly meeting with Mrs Brownlee

MacMillan v. Brownlee

159

and kissed her goodbye as she left for vacation. Never once had Vivian given her any indication of her true feelings. On one particularly horrific night she alleged that Brownlee had twice forced himself on her: A. Mr Brownlee had intercourse with me, I would say on many occasions that I was menstruating. Q. And on this occasion [June 28] he had intercourse with you twice? A. Yes. Q. Disgusting? A. Yes.

Yet on the day after this nightmare she wrote a pleasant letter to the wife of the man who had just twice raped her, explaining how she had made a cake that the Brownlee boys had condemned as tasting ‘like Lysol.’ A.L. Smith introduced the letter as evidence and described it as a ‘happy, chatty letter to Mrs. Brownlee on the day after having intercourse with her husband in her bed while menstruating.’ If she could play such a role before Mrs Brownlee, what part was Vivian playing before the jury? In an attempt to bolster his case, MacLean called a former Brownlee maid who recalled that one night the premier had gone for a drive with Vivian. When MacLean attempted to ask her about any car rides she had with the premier, Ives stepped in and halted the line of questioning. A daughter of Vivian’s former landlady recalled seeing her crying one night. The reason was not established. Ives would not permit MacLean to introduce into evidence a self-serving letter written by Vivian allegedly breaking off the affair. None of this corroborated her case. Even her doctor’s testimony that she was suffering from an intestinal complaint belied her claim that she had injuries attributable to sexual intercourse. Allan MacMillan’s testimony likewise seemed to reinforce the defence. The MacMillans’ discussion with the premier in 1930 had lasted about an hour and had mostly concerned rural Alberta politics. MacMillan agreed that during this conversation, Brownlee had said nothing untoward. He left Edson promising to forward material on the Alberta College. However, he never did so, neither did he bother to contact Vivian.

160 courted and abandoned

Before the court adjourned for the day, Smith asked Justice Ives to consider the fantastic stories that were being circulated by the Edmonton Bulletin. With their accounts of a ‘love-torn’ Brownlee having ‘sexorgies’ with his stenographer, they were highly overdrawn depictions of the evidence. Ives was a taciturn judge who usually let opposing counsel fight their case without judicial interference. However, this situation cried out for intervention and Ives ruled that the Bulletin’s conduct threatened the very integrity of the trial. Both the publisher and reporter J.S. Cowper were convicted of contempt of court; the former was fined $300 and the later $100 and the newspaper’s press privileges were revoked. This conviction would be added to the paper’s list of grudges against Justice Ives. Yet the Bulletin’s appeal of this conviction failed, and even some civil libertarians felt that the newspaper had gone too far in their lust to destroy Brownlee.12 On the fourth day of the trial, John Brownlee himself took the stand. He emphatically denied all the charges. When asked for his opinion of Vivian, Brownlee replied: ‘She was very dear to me, Mr Smith: just like a daughter. She certainly was one of my family.’ On those occasions when Vivian alleged that he had been forcing himself on her, his diary showed him to be out of Edmonton or otherwise engaged on government business. For example, she had specifically identified 28 October as one of the evenings in which Brownlee had driven her out into the country to have sex. Brownlee turned to his diary (which was supplemented by newspaper accounts) of the speech he had made that evening in Stettler, a town far removed from Edmonton. In fact, the premier’s appointment book was so crowded that, during the summer, he only occasionally fitted in an evening of golf. He declared that his sexual relations with Florence were normal. As for luring Vivian to Edmonton, he had never induced her to come nor promised to act as her guardian. When Smith confronted him with the allegation that he had found a government job for Vivian so that she would be under his control, he retorted: ‘In the thirteen years of my public life I have never promised a position to anyone.’ He disputed Vivian’s account that she had been put in the maid’s room and said that on those days when she was a guest she had slept in Florence’s room. As for Florence, she was a very light sleeper and any noise, squeaking floor boards or running taps, was guaranteed to awaken her. On the one specific allegation that Brownlee had forced Vivian to have sex with him in the premier’s office shortly after 11:00 a.m. on 2 January 1933, Brownlee again turned to his appointment book. At the time in question, he had been in his office

MacMillan v. Brownlee

161

having an extended discussion with O.H. Snow, the mayor of Raymond. In cross-examination, MacLean asked Brownlee why the taxpayers, through the provincial attorney general, had financed the investigation into Caldwell’s activities. He responded that there were serious concerns that Caldwell was trying to commit extortion. Notwithstanding this, and over the attorney general’s protests, Brownlee had insisted on reimbursing the province for the cost of the investigation.13 In response to a question from MacLean, Brownlee revealed that he had noticed a change come over Vivian in April 1933. She came over to the house less often but in response to an inquiry from Mrs Brownlee had denied that she was offended. When Vivian MacMillan chose to make her sexual life a matter of public record, she left Florence Brownlee no option but to do likewise. Florence testified that while she had medical difficulties after Alan’s birth, she and her husband had been having a normal sex life since 1928. At no time had Florence ever seen anything which aroused her suspicions and ‘I never saw a look of any kind or a glance, nor did I ever hear a word, and I think I have the average woman’s instinct, the average intelligence, I never saw anything that would arouse my suspicion.’ As for her relationship with Vivian, ‘she was like a daughter to me,’ and while she could occasionally be annoying, ‘she was careless around the house just one of the family ... she was just a bit of sunshine in the house.’ So attached was Vivian to the Brownlees that when the premier was offered a federal position, Vivian moaned, ‘What will become of me if you go to Ottawa?’ In skilful hands, a cross-examination can be a useful way of insinuating a point of view to a jury. MacLean asked Florence if she could imagine that a former Brownlee maid had also been invited out for ‘drives.’ This fact had never been established by other evidence. Florence refused to believe it. In a comment loaded with irony, MacLean applauded her response: ‘I think it is the only thing for a wife to do, and I honour you for it.’ With an eye cocked towards the jury, he was suggesting that Florence would say anything to protect her husband. Yet other defence witnesses substantiated parts of Brownlee’s testimony. Civil Service Commissioner Frederick Smailes flatly contradicted Vivian’s assertion that John Brownlee had anything to do with her appointment. Mrs Brownlee had spoken on her behalf, but Smailes had hired her at his own discretion. Jessie Ellergert, the Brownlee maid from 1930 to just recently, swore that she had no reason to suspect any improper relations between the premier and Vivian. Moreover, she vividly recalled the Hallowe’en night when Vivian

162 courted and abandoned

alleged that Brownlee had insisted on having sex in his (unlocked) bedroom. All that evening house was a beehive of activity with children coming and going and that night she had been in her upstairs room with the door open. Four janitors (each of whom had keys to Brownlee’s office and could enter at any time) testified that they had never seen any young women entering or leaving the premier’s office on weekends.14 With the case nearing completion, Smith surprised the court by suggesting that the jury view the road where Vivian claimed Brownlee had first seduced her. The jury also expressed an interest in seeing this road and so Ives authorized a ‘court on wheels’ to travel out to the site. A cavalcade of lawyers, court staff and judge, led by a car driven by Vivian, headed west out of Edmonton. On the way, the narrow tires of several cars skidded off of muddy roads and lawyers and jurors were forced to drag them back onto the unpaved highway. At last they stopped two hundred yards from the main road south of the Stony Plain highway. This road matched Vivian’s description of a side road having a ditch on one side and trees on the other, however, it was not in an isolated area, but was adjacent to a heavily populated settlement. Another road (one Brownlee admitted he had driven on with Vivian) was also visited. This turned out to be a heavily travelled highway and a rather unlikely place for an affair. On the way back, the entourage stopped at the Brownlee home. Jurors could not help noticing the squeaky floor boards on the upstairs, or the bolt on the inside of Florence’s bedroom door. Was this last detail consistent with her assertion that she was having a normal sex life with her husband? On the other hand, many witnesses had testified that Vivian slept in Florence’s room. Why had she not taken the simple expedient of bolting the door? Upon the resumption of the trial on 30 July, A.L. Smith made two extraordinary announcements. The defence would not call Carl Snell and whatever stories he had to tell would never be known. He then declared that Brownlee had decided to drop the counterclaim against Caldwell and Vivian. ‘We have now a very clear cut issue – seduction or no seduction, and I do not intend to complicate it by the counterclaim in respect to conspiracy,’ he explained. From Smith’s vantage, this may have been good tactics. He may have felt that as the case against Brownlee was so unsubstantiated, it was best not to muddy the waters with the conspiracy issue. From another perspective, however, this may have been a fatal error. The jury had been led to believe that Brownlee’s defence would come forward with proof of the conspiracy to blackmail

MacMillan v. Brownlee

163

him. Thanks to the previous investigations, the defence did have some evidence of a plot to extract money. Even these facts might have planted seeds of doubt among some jurors that Vivian MacMillan was not all she claimed to be. Brownlee’s defence disappointed the jury and, having reneged on this one position, may have created doubt as to the overall credibility of the defence. Yet another surprise announcement was made at the close of evidence. Brownlee had decided to resign the premiership. While this revelation was made out of court, all the jurors had access to newspapers, and many must have wondered whether this was a public acknowledgment of his guilt. While these thoughts may have been in the minds of the jurors, Smith proceeded with a lengthy summation in which he reminded the jurors that the burden of proof was on the MacMillans. Their accusations were the most damning that could be raised against any man. And what had they proved? Vivian had narrated a fantastic story of being forced to perform sexual acts in the back seat of the premier’s car, in his wife’s bedroom, and even in the legislative office. Yet there were a host of discrepancies in her story. Her original claim of a seven-week ordeal in the spring of 1932 had, under close scrutiny, been reduced to perhaps ten days. On days in which she alleged that Brownlee had all but raped her in Edmonton, he had been occupied by government business elsewhere. While the MacMillans claimed that their daughter had been lured to Edmonton to be debauched, the record showed that Brownlee had mentioned the Alberta College in passing and then made no attempt at all to assist her in coming to the capital. ‘Is that the act of a man who had then and there determined to lure this girl from her home and debauch her?’ If her evidence was to be believed, during the period from October to December 1930 Brownlee had sex with her about three times a week, that is ‘he devoted absolutely every day he was home to this girl, and without the suspicion of his wife. Isn’t it too absurd? Too perfectly absurd?’ The dour premier seemed to be the last man to give way to flashes of vibrant sensuality. Smith repeated the story of Brownlee allegedly having sex with this girl while lying only inches from his own son and suggested that ‘surely the credulity of the human race all combined in six men, cannot bear such stretching.’ MacLean’s rebuttal was one of the most remarkable put forward by a plaintiff’s counsel. He candidly admitted that her story was fantastic but insisted that ‘if she had been concocting the story which she wanted you gentlemen to believe, do you think she would have told you about that? ... I submit to you gentlemen on the evidence, the very incredibil-

164 courted and abandoned

ity of the story is evidence of its truth.’ By this weird logic, the more fantastic a story was, the more likely it was to be true. As Vivian’s story was completely uncorroborated by any supporting evidence, he turned instead to attack Brownlee and pointed out the ‘abnormality of life in the premier’s family’ as itself somehow proving Vivian’s case. Justice Ives’s charge to the jury left no doubt as to his feelings. While the jury was obliged to weigh the evidence and the balance of probabilities, they had to consider that ‘the story of the female plaintiff ... is wholly and entirely unsupported by any other evidence.’ Brownlee’s defence, on the other hand, was supported by many witnesses and moreover: Undoubtedly it is astonishing that over a period of three years no one, either the wife of the defendant or the maid in the house, over a period of three years of frequent visiting to that house ever saw or heard anything that in any way gave them ground for a suspicious thought. It may be possible, but is it probable?15

The jury retired at 4 p.m. and almost five hours later returned with their verdict. On the four questions posed to them by Justice Ives, they answered: Question One: Did this defendant seduce the plaintiff, Vivian MacMillan? Jury: Yes. Question Two: If so, when? Jury: At the time as stated by Vivian MacMillan. Question Three: If so, did she suffer damages and in what amount? Jury: Yes, $10,000. Question Four: If there was seduction, did the male Plaintiff suffer damages and in what amount? Jury: Yes. $5,000.

According to the Edmonton Bulletin, an outburst of cheering greeted this result. Other reporters thought that the crowd was stunned by the

MacMillan v. Brownlee

165

verdict and that ‘cries of indignation rose from all sides.’16 Justice Ives appeared visibly disturbed and, looking down upon the jurors, left no doubt of his feelings, ‘Gentlemen of the jury, you are excused and you may go. I think I should say openly and publicly while you are here that I strongly disagree with your decision.’ MacLean then moved that the jury’s verdict be entered as the court’s judgment. Usually this followed as a matter of course. However, Brownlee’s associate defence counsel, M.M. Porter, argued that the verdict should be dismissed. The verdict in favour of Allan MacMillan was clearly improper as there was no evidence of loss of service to a parent. A similar principle applied to Vivian, he argued, and she had to show that there was a loss of service before any damages could be granted. MacLean protested that the judge could not overrule the jury’s verdict, but in tones that must have made him fear that victory was slipping from his hands, Ives responded, ‘Oh, I have done so before now on two different occasions and been upheld by the Court of Appeal.’ On the following Monday, 2 July, Ives delivered his judgment. First, Vivian had left Edson with the consent of her parents and been accompanied to Edmonton by her mother. Secondly, no illness had resulted from the seduction, and there was no evidence that she was unable to render services to her parents or that there was ‘an interference with the woman’s ability to serve.’ He held that this was the gist of the seduction action in the 1930s just as much as it had been in the 1650s. The verdict in favour of both the MacMillans was dismissed with costs payable to Brownlee. ‘This decision has set the clock back 300 years,’ overstated the president of the Canadian Civil Liberties Protective Association, George D. Koe. ‘We will make a public appeal for funds, if necessary, to take this case to the foot of the Throne,’ he added. An eminent (but unnamed) Alberta legislator was quoted as saying that ‘if this stands, one of the rights of the subject is wiped away.’17 Public protests were organized and subscriptions started to fund an appeal. Across Canada, citizens expressed outrage in newspapers and one civil libertarian felt that ‘they have lighted fires which will blaze clear across Canada.’ True to form, the Edmonton Bulletin beat the drum the loudest. Under an editorial entitled ‘What Price Womanhood?’ the Bulletin identified the issue at stake as the safety of young females ‘the womanhood of this province is entitled to something better than the protection it now has,’ it argued.18 Other editorialists were more circumspect. ‘It was an unsavoury case,’ the Winnipeg Evening Tribune commented, but typically, they accepted

166 courted and abandoned

the jury’s verdict as sound. Despite Brownlee’s record of public service and achievement for his province, the Evening Tribune felt that he had to go; ‘there is the unanimous verdict of a civil jury that Mr. Brownlee was guilty of seduction, and from the standpoint of his public career, that is sufficient.’ Brownlee recognized this as well and stated that his previously announced resignation would be effective on 10 July. Yet even this would not appease the outcry against Ives’s rejection of the jury’s verdict. The Winnipeg Free Press suggested that Ives be investigated for what appeared to be favouritism towards a high public official. A few were sympathetic. The Vancouver Sun compared Brownlee to the fallen Irish hero Parnell, and felt that ‘his personal difficulties should not have been aired publicly.’19 After the spurt of editorial venom, both sides shifted their attention to the Court of Appeal. The dominant figure on that court, Chief Justice Horace Harvey, was one of the giants of the Alberta bench. Known as a stern judge who ‘took a rather strict view of both common law and statute law: he was not one to overthrow precedent,’20 he was sympathetic to advances in the status of women. In R. v. Cyr (1917) he had departed from the common law rule that women could not sit as magistrates and held that they were entitled to preside as judicial officers. However, he had no sympathy for the MacMillans. Harvey shared Ives’s incredulity at the jury’s verdict, and while he conceded that the jury was the sole trier of fact, a trial judge was entitled to determine if their decision was unreasonable or perverse. This was exactly the situation before him. ‘It appears to me that the verdict was so utterly irreconcilable with the evidence, when reasonably considered, that it ought to be set aside.’ For starters, there was no medical evidence that Vivian MacMillan was not still a virgin! Other than her own assertion, there was no proof that she had ever had sex with anyone. She had testified that sex with Brownlee was always physically painful and disgusting. Yet even after several weeks at home, she had insisted upon returning to Edmonton. As for her veracity, even after she had consulted a solicitor, she continued to pretend to be a friend of the Brownlees. On the witness stand, she had testified that she did not know that Brownlee was being followed on that wild car chase in July 1933. Harvey considered this an obvious lie, for she must have played a leading role in this contrived attempt to entrap Brownlee. Moreover: Her whole story is quite unsupported by other evidence in all material respects and in many of its details is of such an improbable, not to say

MacMillan v. Brownlee

167

incredible character, that it seems impossible that any reasonable person could believe it in its entirety. There is also apparent in her cross-examination a readiness to admit that she may be mistaken as regards very positive and definite statements previously made when by the questions it appears that there may be independent evidence to show that she is wrong.21

When a story was as improbable as this, it was most unsafe to rely on it unless it was supported by other evidence. Vivian’s story was not. Moreover, the jury had found that she had been seduced, that is, willingly consented to have sex with Brownlee. Yet she had consistently sworn that Brownlee had forced her to have sex. Therefore, the jury must have concluded that she was lying throughout the trial. Could a man’s life and career be destroyed by such perjured testimony? Not only did the chief justice agree with Ives, he found that there were other circumstances which appear from the record which suggest that the jury’s verdict was not founded on the evidence in the case. The damages awarded seem unduly large considering that there was no publicity attached to her relationship with the defendant except what she herself brought about. Ordinarily there is a child or at least a pregnancy which publishes the fact of the woman’s shame to the world. In this case though she states that for more than 2 years she had been having intercourse with the defendant in his own home, in his own office in the Legislative Buildings and in the Government car used by him as Premier upon the public highways about Edmonton, there is no hint in the evidence that anyone had seen anything that furnished even a suspicion of impropriety until she disclosed what had been going on to the young medical student who proposed to marry her.22

However, on the legal issues, right and wrong was not so clear. As for Allan MacMillan, it was apparent that Vivian had not been rendering him any services, and as this was the basis of the tort, Ives had been correct to dismiss his lawsuit. However, for Vivian’s claim, the question was whether section 5 of the Alberta Seduction Act (originally the 1903 Ordinance of the North-West Territories) gave her a cause of action notwithstanding the absence of services: ‘Notwithstanding anything in this act an action for seduction may be maintained by any unmarried female who has been seduced, in her own name, in the same manner as an action for any other tort and in such action she may be entitled to

168 courted and abandoned

such damages as may be awarded.’23 Harvey carefully reviewed the English cases which confirmed that the essence of seduction was damage done to a servant. Every successful case, with one possible exception, had featured an illegitimate birth or conception. Quoting from a 1914 Irish case, Harvey noted that ‘but the cause of action does not arise from the mere sexual intercourse. If pregnancy does not follow, no action lies. The wrong is the diminished capacity to serve arising from the pregnancy.’24 Going back to early Canadian law, he cited the 1837 Upper Canadian statute whereby the action was extended to the mother or guardian. In his view, this reform had not given women a separate action but only created the affiliation action to provide support for illegitimate children. He quoted with approval Chief Justice Robinson’s warning in L’Esperance v. Duchene (1849) that ‘Few things, perhaps, could be less desirable than that parties should be encouraged to suppose that an action for seduction could be maintained upon the mere proof of criminal intercourse, not followed by the birth of the child, nor even by pregnancy.’25 The crucial issue was whether section 5 had created a new cause of action. Harvey reviewed a number of cases, including the recent Saskatchewan decision of Bilinski v. Kowbell (1931) in which the Court of Appeal had ruled that this was not the case. ‘Damages – loss of service – per quod servitium amisit – has always been the gist of the action, and I think the intention of the Legislature was to confer upon the woman seduced the right to a similar kind of action.’26 Harvey referred to MacLean’s argument that section 5 was intended to protect ‘inexperienced young girls against the wiles of older men.’ This was clearly not the case, for the provision applied to women of fifteen or fifty and was intended to provide compensation for damages, not to protect the innocent. The chief justice concluded that ‘the Legislature intended no change in the nature of the action but only specified another class of person who could maintain it.’ The essential nature of the action, including the need to show a loss of service, remained. Two other judges, Mitchell and Ford, agreed that no new tort had been created. The decisive legal question was whether section 5 extended the existing tort to women or whether it created an entirely new tort of seduction per se. As Justice Mitchell phrased it, was it now that law that ‘the mere fact of seduction constituted a sufficient damage upon which to found the action.’ The majority agreed that the legislature had not taken this dramatic step. However, two judges wrote dissenting opinions. While Justice Clarke thought that Vivian’s story was ‘stranger than fiction,’ it was not per-

MacMillan v. Brownlee

169

verse and the jury could choose to believe it. He also differed from the chief justice on the law. A new tort had been created from section 5, and in support of this view, he cited the chief justice’s own decision in Collard v. Armstrong of 1913. In that decision, Harvey had ruled that ‘As the woman could not lose her own services as her parent or master could, it must necessarily follow that when the action is brought by her as in the present case there can be no question of loss of services.’ Turning the chief justice’s words against him, Clarke suggested that where a woman had a right to maintain her own seduction action, the essential element in her cause of action was the seduction itself. Yet this threatened to create a logical quagmire, for under this new tort a woman would merely have to claim that she had sexual intercourse in order to succeed. Therefore, she stood to profit from an act in which she may have been a willing participant. Clarke tried to reconcile this conundrum by referring to a comment in the Corpus Juris that this new tort was limited to situations where the seduction was accomplished by ‘persuasion, flattery, deceit, false promises, or other artifices’ and that mere ‘illicit or unlawful intercourse does not of itself constitute seduction.’27 That is, the courts now possessed the power to look into the dynamics of the relationship between two people and determine when a woman had been improperly persuaded to have sex and other instances where the parties had enjoyed illicit intercourse. According to Justice Clarke, the jury in the Brownlee case possessed this remarkable power and had determined that in his case there had been a seduction. Justice Lunney emphasized the opening words of the section – ‘Notwithstanding anything in this Act’ – as proof that an entirely new tort had been created. Not everyone was persuaded, and the minority opinion of Justices Clarke and Lunney was dismissed by one legal scholar who felt that only ‘the clearest language in a statute would authorize such a radical departure from the common law.’28 Yet both Clarke and Lunney agreed that the common law rules applied to Allan MacMillan’s case and that it was properly dismissed. The Court of Appeal’s decision was released on 2 February 1935, and in contrast to the boisterous trial, it was given only perfunctory press coverage. Lurid details of the premier’s sex life could not compete with a dry analysis of legal rights. As Allan MacMillan had lost his appeal before all five justices, he abandoned his claim. But Vivian, buoyed by the dissenting opinions in the Court of Appeal and by a public subscription organized by the Edmonton Bulletin, determined to take her case to the Supreme Court of Canada. In August 1935 Brownlee stood for re-election to the provincial parliament and the choice of a woman,

170 courted and abandoned

Edith Rogers, to oppose Brownlee may not have been a complete coincidence. Brownlee was soundly defeated, as were all his party’s candidates. He left political life never to return. By the time the Supreme Court released its decision on 1 March 1937, all references to flushing toilets, locked footsteps, and mysterious car chases were forgotten. These pungent details which had so flavoured Brownlee’s trial were conspicuously absent from the dry legal analysis of the appeal. The pre-eminent figure on the court, Chief Justice Lyman Duff, had been an active Liberal and even on the bench he still had significant contributions to make to the Liberal party.29 As had the lower courts, Duff could have dismissed the appeal on the basis that the jury’s verdict was perverse. Instead, he simply ignored the facts and accepted the jury’s peculiar views without question or comment. Duff and the majority of the judges focused instead on the legal issue of whether section 5 had created a new tort. The chief justice conceded that it led to an unusual situation, one in which a voluntary participant in an act could later demand redress for that act. Nevertheless, that is what the legislature intended. In all other sections of the Seduction Act, the loss of the daughter’s services was the basis of the action. Whether or not she had consented to intercourse was irrelevant as the only issue was the parent’s loss of service. But under section 5, the feudal relict of service to a master was swept away and substituted for it was the concept that ‘the woman seduced was, at the time she was corrupted by the defendant, a woman of virtuous life and habits;’ The enticement of a virtuous woman to have sex became the basis for this new tort. Duff accepted the reasoning of two western cases that a new tort had emerged and that a virtuous woman could sue her betrayer in all cases except ‘if she be the tempter or even if she deliberately consents from lasciviousness or even from the strength of mere natural passion ... she cannot recover.’30 Duff and his colleagues accepted without question that a jury could look into the human soul to see the difference. That is, to differentiate between an Elinor Glyn and a Vivian MacMillan. Duff added that the presumption was always that the woman was virtuous and that she had been improperly enticed by the man. He gave no reason to support this belief. Under this interpretation, section 5 required a jury to look at the facts and determine whether a woman had consented to sex or had been ‘improperly enticed.’ The difference between the two was something only the two lovers were likely to know, and perhaps even then, it was not likely that they would agree. The only dissent came from Justice Henry Davis. After reviewing the

MacMillan v. Brownlee

171

trial evidence, he shared Ives’s and Harvey’s incredulity at the verdict. By her own evidence, Vivian had frequent intercourse with a married man over a period of two and a half years. In January 1933 she told her fiancé Caldwell about the affair but continued it nonetheless. No pregnancy or illegitimate birth had occurred and at no time had Brownlee ever deceived her by promising marriage: In my opinion one has only to state the facts of this case to see, and I say it with the greatest deference to those from whom I differ, that the appellant cannot succeed upon the broadest possible interpretation most favourable to the appellant, that can be put upon s. 5 unless it be reduced to giving a cause of action for fornication per se.

Section 5 had to be interpreted in the context of the rest of the Seduction Act and where the right of action was given to an unmarried female, ‘the substance of the statutory cause of action, the birth of a child or at least the condition of pregnancy remains.’31 Shortly after this decision was rendered, Brownlee decided to settle the case and paid the judgment amount and costs to Vivian. In a final attempt to save his reputation, he applied for and received an order in council on 1 July 1937 permitting him to make one final argument before Canada’s highest Court of Appeal, the Judicial Committee of the Privy Council in London. Brownlee’s lawyer, Frank Gahan, argued that to give a woman damages for the voluntary loss of her chastity was such a radical departure from the common law that the right should be narrowly interpreted. Because pregnancy was the usual way of proving loss of service, it was natural to assume that any action for seduction, even one brought by the woman seduced, could only succeed where there was a pregnancy. Their Lordships rendered their decision on 4 June 1940, almost ten years to the day after John Brownlee and Vivian MacMillan had danced together at that fateful Edson social. Justice Thankerton revisited the law on the essence of the seduction action as defined by Norton v. Jason in 1653. Under the original tort, it was never intended that the daughter have any form of redress. But section 5 was entirely new law and the Judicial Committee agreed with Duff that something outside the common law had been created.32 Brownlee’s appeal was dismissed. In the final tally, Brownlee was left having to pay Vivian the $10,000 judgment, interest and costs. When his own considerable legal bill was added to this, the cost of the lawsuit must have exceeded $25,000. This

172 courted and abandoned

was an enormous sum for the 1930s and would have bankrupted most businessmen of the time. Brownlee survived, and to an extent, even recovered. As president of the United Grain Growers, he became more active than ever and was ‘known by his staff as a man whose life was his work, who lived in his briefcase, and whose only recreation seemed to be moving from one job to another.’33 In 1956 he was one of the advisors on the Canadian delegation to the Third International Wheat Agreement in Geneva. He retired from the UGG on 1 July 1961, only two weeks before his death. Ironically, Vivian MacMillan did not remain with Caldwell, but instead married an Edson confectioner. After his death, she moved to Calgary and became a secretary for a construction company. Consistent with her fondness for married men, she disengaged her employer from his wife and married him in 1955. She died in 1980. Did John Brownlee seduce Vivian MacMillan? It is an intriguing question and one which defies any definitive answer. Brownlee’s austere appearance could have masked a man infatuated with a desirable young woman. At least some of her stories of love trysts on lonely side roads were theoretically possible. But truth in a courtroom should be determined by the evidence, and based upon the plaintiff’s evidence, the case was not proven. Much of her evidence was contradictory, disproved by other facts, or unsupported by any corroborative evidence. For a jury to accept this as proof of seduction was hopelessly perverse and seemed to harken back to Victorian notions that if any decent girl should make such an accusation she must be believed without question. The mere accusation that a man, even a provincial premier, had inveigled an innocent girl was to be accepted, no matter how improbable her story. In that respect, the Brownlee verdict is a reiteration of so many seduction cases of the late nineteenth and early twentieth centuries, where the woman was to be believed in the most incredulous of circumstances. The Victorian ideals that motivated John Charlton in the 1880s were very much a fact of life in the 1930s. A generation later, it is likely that any Vivian MacMillan who claimed that she had slept with a married man for almost three years but was still an innocent victim would be laughed out of court. Many would have questioned who had seduced whom. On the legal question, however, it appears that judges such as Harvey and Ives were themselves beguiled by the prevailing common law notions that the seduction tort was inextricably linked with service. The interpretation given by Clarke in the Court of Appeal and Duff in the

MacMillan v. Brownlee

173

Supreme Court of Canada is probably a better reflection of what the legislature intended. That is, that the enticement of a virtuous woman was actionable per se. Given the religious climate in the North-West Territories at the time section 5 was enacted, there is good reason to suppose that this is exactly what the legislators intended. When John Brownlee died in 1961, his great accomplishments as premier – a balanced budget and provincial control over natural resources – were forgotten. As one Alberta historian noted, ‘Brownlee resigned and left public life, a capable man caught up in personal tragedy.’34 In other provincial histories, details of the scandal are inaccurately reported, or it is presumed without question that Brownlee was guilty. His death was not widely noted in Alberta and it was a Toronto obituary that marked the one event that forever branded his public life and place in history: ‘He was a central figure in one of Alberta’s most sensational court cases.’35

11 Death of a Tort

Once women had a right to sue for ‘fornication per se’ (as Justice Davis called it), it appeared that the floodgates had been opened to a tide of seduction actions. Brownlee’s counsel before the Judicial Committee warned that a ‘very wide door would be opened by the construction of seduction under s. 5 as independent of any injury.’1 However, in the following years it became clear that the Brownlee trial was sui generis, a exceptional case of prairie evangelism metamorphosing into courtroom drama. It had little impact on the law outside Alberta, and one legal writer felt that ‘section five of the Alberta Seduction Act was a unique attempt to legislate morality that went far beyond many other jurisdictions. In itself, this statute may support the popular image of moralistic Alberta.’2 Edward Jolliffe wrote in the Canadian Bar Review that it was unlikely that any floodgates had been opened: Whether such actions will ever be brought by women who really prize their virtue, or by fathers truly desirous of protecting their daughters, is a question worthy of consideration by the provincial legislatures. The law gains little dignity or usefulness by cases involving no more than the history of a broken liaison, while the avid interest of the public makes it inevitable that the ultimate success of a defendant should be in the nature of an anti-climax and, no doubt, a bitter disappointment to Dame Rumour.3

Death of a Tort 175

Despite the decision of Canada’s highest court that, at least in Alberta and Saskatchewan, women had an independent right to sue for seduction, there was no stampede to the courts. On the contrary, the reluctance to sue for seduction that was apparent before the Brownlee trial became even more apparent. The humiliation of recounting illicit intercourse may have put off many women. While the fear of public display had little impact in arresting seduction trials in the nineteenth century, now that other and more effective remedies such as child welfare claims were available, why should a woman choose to submit herself to Vivian MacMillan’s ordeal? After MacMillan v. Brownlee, only one reported case even referred to it as a precedent.4 The Brownlee decision was never to become a landmark in Canadian law as the tort it recognized found no favour with lawyers or their clients. Outside of the west, pleading seduction became even more of a hopeless gambit. In the 1946 case of Vickers v. Robinson,5 an Ontario mother of an illegitimate child sued for the child’s seduction. Perhaps it is fitting that the facts of the last reported seduction case in Ontario read like a story from the early 1800s. The victim was a poor sixteen-year-old who had been hired out for farm labour and who had been seduced by her employer. The claim failed, as neither the father nor the mother of an illegitimate child could bring an action, and in any event, the victim was employed by her seducer and was rendering no services to her mother. With more and more women working outside the home in industrial jobs, even the fiction of providing services was next to impossible to maintain. After the end of the Second World War the tort of seduction was in peaceful desuetude in Canada. The tort was ignored in the law schools and rarely, if ever, heard by the courts. While seduction might be threatened to effect a settlement, changing social perspectives and the availability of child welfare made it unfashionable. And in any case, with other, more effective remedies available, why would a woman seek to invoke a law which categorized her as a chattel?6 Yet one heartbalm tort survived and even seemed to blossom in the postwar years. Husbands increasingly came before the courts complaining that another man had seduced their wives. Demanding their rights to have their wives inviolate, husbands claimed that any man who had committed criminal conversation with their wives must be held liable. As one Ontario judge graphically described it, ‘the gist of the action of criminal conversation is not merely the loss of the society,

176 courted and abandoned

comfort, and assistance of the wife, but it includes also the wrong done by the intolerable insult to which he has been subjected by the corruption of his wife.’7 In a Newfoundland case in 1946, even after a judge concluded that a wife had left her husband as a result of his violent conduct, he still awarded nominal damages against a man who had assisted her, ‘recognizing his [the husband’s] proper assertions of his rights.’8 In the hands of a determined man, criminal conversation could be a weapon to compel a woman to remain in a union she detested by threatening to financially destroy her lover. For example, in two lengthy trials in Whitby, Ontario, in 1943 and 1945, Fred Mowder used criminal conversation to prosecute his wife’s lover and, through him, his own wife. Despite the fact that Mowder was himself guilty of infidelity and that his wife was alienated from him before her affair, Mowder succeeded in obtaining judgments of $10,000 at each trial. Before the Court of Appeal, the defendant’s lawyer argued that you cannot steal a love that no longer existed. Mowder, through his mistreatment of his wife, had already alienated her affections, and her lover had only offered her the comfort her husband had denied her. On behalf of the plaintiff Mowder, J.J. Robinette replied that whether or not the marriage had broken down or the wife had consented was irrelevant, as ‘the essence of criminal conversation is the invasion of marital honour and of the husband’s exclusive right to have sexual intercourse with his wife.’ Mowder v. Roy contained hints of conspiracy, for there were allegations that Mrs Mowder had deliberately permitted herself to be seduced in order that her husband could sue. However, this issue, which was supported by some evidence, was not left with the jury. In its decision on the value of Fred Mowder’s claim for the loss of his wife, the Court of Appeal reached a conclusion which would have satisfied the men of property of the 1600s. Justice Laidlaw set down a five-fold test for evaluating the value of a seduced spouse: 1. Damages are compensatory only, and exemplary or punitive damages are not permissible ... 2. The two main considerations upon which damages are to be based are these: ‘first, the actual value of the wife to the husband; secondly, the proper compensation to the husband for the injury to his feelings, the blow to his marital honour and the serious hurt to his matrimonial and family life.’

Death of a Tort 177 3. The value of the wife has two aspects, namely, the pecuniary aspect and the consortium aspect. 4. The whole character and conduct of both the wife and the husband is in issue. 5. The ease or difficulty with which the defendant gained his desire and his conduct in general, may be a most direct aid in the ascertainment of the value of the wife upon the consortium aspect. Likewise, the blow to the husband, and the shock to his feelings, depend to a large extent on the conduct of the defendant, including such features, if present, as treachery, grossness of betrayal, wantonness of insult and like circumstances.9

Laidlaw’s test would have required the shrewdest insight into the human soul in order to determine issues such as the shock to the husband or the blow to marital honour. Moreover, the test showed a subtle change in the nature of the action. It had shifted from one for loss of chattel into one which combined loss of chattel with an interference in domestic relations. As a judge would say in a later case, the cause of action was now to the ‘marital relation of the plaintiff and her husband’ and not simply to the property interest in a spouse.10 In Mowder’s case, the judges were satisfied that in the circumstances of this failed marriage, the jury had overvalued the loss of the wife and ordered yet another trial. Filling the void left by the absence of seduction trials, criminal conversation cases regularly titillated a curious public. For example, in 1946 Richard Rigney, a seventy-six-year-old farmer, sued a neighbour for seducing Rigney’s forty-seven-year-old wife. The trial judge, Justice Walter Schroeder, was a strict ‘black-letter’ judge, and he reminded the jurors that notwithstanding the age of the parties, ‘The family hearth has an important place in the life of the people ... the marriage tie is sacred.’ They agreed and awarded heavy damages.11 In the same year, a Nanaimo fisherman recovered substantial sums from an insurance agent who had seduced his wife while the husband was absent on fishing trips.12 If seduction had become a relict of former times, criminal conversation still served a useful, almost patriotic, role in preserving the integrity of the family. ‘Though the quasi-proprietary interest of a husband in his wife is undoubtedly an anachronism’ one English writer conceded, ‘society has still a high interest in the protection and nourishment of family life, and causes of action which protect this interest

178 courted and abandoned

deserve to be judged by their social effects rather than by their historical antecedents.’13 While seduction cases were stories of failed courtships, criminal conversations were domestic tragedies that brought the intimate details of failed marriages before the public. The constant running through criminal conversation cases was that they attributed ‘fault’ to marriage breakdown. The man who dared violate a married woman had interfered with a marriage and, even if the marriage was already over, the husband could still make him liable in damages. It was a new fiction of the law. Marriages did not simply fail; someone had enticed the wife away from her lawful husband. And that someone would pay. In view of the female equality resulting from the Second World War, why should that someone not be a female? In 1943 Mildred Gilchrist met Solly Applebaum of Toronto and the two became lovers. When Applebaum’s wife Violet discovered the affair, she was outraged and sued Mildred for enticing away her husband. The case had echoes of Mrs Lellis, the redoubtable woman who had used the blackthorn stick to such good effect on her husband. But ever since Lellis v. Lambert, Canadian courts had rigidly applied the rule that a wife could not sue for her husband’s seduction. After Justice Schroeder dismissed her claim in March 1946, Violet asked Nathan Phillips to appeal the case. Phillips was not renowned as an appellate counsel, but was so effective in municipal politics that he would eventually become mayor of Toronto. Nonetheless, he put forward an innovative argument to the effect that, as the Married Women’s Property Act of 1887 had been amended in 1913 to conform to the wording in the English statutes whereby a woman had exactly the same rights to sue for injuries as did her husband, so the rule in the Lellis case no longer applied. He also distinguished the Applebaum claim from the Lellis one in that the former was suing for enticement whereas the latter had sued for alienation of affections. Yet there was little to distinguish between these two actions as both were merely different ways of describing the seduction of a spouse. On the face of it, Violet’s appeal should have failed. Chief Justice Robertson ruled against Phillips on his first point and held that the Married Women’s Property Act did not vest women with any new actions, and at the time the act was passed in 1887, women could not sue for criminal conversation or alienation of affections.14 But if the law had not changed, the judges had. The chief justice acknowledged that many American authorities permitted a married woman to sue for the loss of her husband’s affections.

Death of a Tort 179

Yet even if there were no precedents supporting Violet’s position, Robertson felt that ‘we would be warranted by the social changes that have in modern times tended toward equality of the sexes before the courts in deciding that the statement of claim in this action states a good cause of action in law.’ In the postwar climate, the judges were not content to recognize a system that gave a right to husbands but denied it to their wives. Robertson concluded: The suffrage has been granted to women. We have women occupying seats in the Senate and in the House of Commons. We have women practising law and medicine. They have, especially in the late war, invaded almost every industry and filled the places of men in war service, and in great numbers they even enlisted, as non-combatants, in the military and naval services. In the face of the social changes that have resulted from these and other causes, it is impossible to hold that a married woman is still in a status of inequality with her husband in so far as the right to consortium is concerned. The proper conclusion is that in this Province, as in England and generally in the United States of America, the legal rights of husband and wife in relation to consortium are mutual, and a violation of that right will support an action for damages.15

Justice Laidlaw joined him in a ringing endorsement of this new era. ‘Can it be that the emancipation of women, entitled to the liberties, benefits and rights afforded to them by the laws of this Province, is so incomplete as to deny the existence in their favour of a remedy for the violation of their most precious rights?’ and he concluded that it was a tort for anyone to interfere with the relationship of a husband and wife. The tool used by the judges to evade the rule in the Lellis case was the creation of a distinction between enticement and alienation of affections. While Mrs Lellis had relied on the later and failed, Mrs Applebaum could invoke the former and succeed. However, the distinction between these two alternatives to criminal conversation was so fine as to defy any clear distinction; significantly, not one of the majority judges attempted to define the difference. While the Lellis claim was substantially the same as the Applebaum one, to secure social justice the courts had concocted yet another fiction of the law; that there was a perceptible difference between enticing a spouse and alienation of affections, and that, thanks to that difference, both men and women now had a proprietary interest in their spouse’s body. Despite its logical shortcomings, courts in other provinces would agree that Applebaum v. Gilchrist

180 courted and abandoned

reflected a new era between the sexes. In 1961 the British Columbia Supreme Court heard a case in which the female third party had artfully manipulated a husband to leave his wife. She had completely dominated and controlled the husband and the court had no difficulty in finding her guilty of destroying the marital home and therefore liable to the wife.16 As comforting as it would be to think of Applebaum v. Gilchrist as a turning point in the equality of the sexes, such a progressive conclusion is not necessarily warranted, for the very foundation of enticement lay in the archaic notion of a property interest in another person. In the 1930s the American scholar Jacob Lippman had recognized that the action was based on the inferiority and subservience of women and any attempt by American judges to extend the tort to both sexes was misguided: ‘the real basis of the action is ignored. The archaic fiction of property rights in the body of a spouse ... is not destroyed but is given new life.’17 As had many American judges, the Ontario Court of Appeal hoped to breathe new life into the tort by extending its applicability to women. But even the correctness of the Court of Appeal’s decision is questionable for, as Justice Roach (the lone dissenter) pointed out, a married woman had no right at common law to sue for the enticement of her husband. When faced with the same issue in 1930, the Australian Supreme Court ruled that at common law a woman had no rights to her husband’s consortium. The majority upheld the historical view that a wife had no action for enticement; ‘If the law be archaic, and not in keeping with modern development and thought, the remedy lies with the Legislature, and not with the court, for the court’s duty is to expound, not make the law.’18 While Justice Roach acknowledged that times had changed, the answer did not lie in extending inequality, but rather ‘it is time that the Legislature released a wife from the position of marital inferiority which our court has previously held characterized her position at common law.’ Unlike his colleagues, Justice Roach had come to the real nub of the issue. Was there any point in continuing to maintain that there existed a property right in either spouse? If adultery was a choice made between consenting adults, then why should anyone be entitled to damages when a spouse engaged in an extramarital affair? While Nathan Phillips had persuaded the courts to extend the action for enticement to the aggrieved wife, entitlement was one thing, happiness was another. It was reported that Violet was unable to collect either damages or legal costs as Mildred Gilchrist had fled to

Death of a Tort 181

California with a sailor. Solly Applebaum had moved back in with his parents. There were still limits on the judiciary’s willingness to bend the common law. ‘The facts are sordid,’ began Chief Justice McRuer in his 1953 review of a claim brought by a wife against her husband’s lover. Arthur Frampton, a senior officer of the Ontario Hydro-Electric Power Commission, had an affair with one woman in 1946, and in 1949 he seduced his married secretary. The secretary became ‘Mrs Frampton’ and attended social functions as the wife of this ‘highly-paid and successful husband.’ The real Mrs Frampton obtained a divorce in 1950 and sued her usurper for worming her way into her husband’s affection and dislodging her from her rightful position. McRuer, one of Canada’s most eminent jurists, had no doubt that the courts were entitled, if not obligated, to apportion blame in adultery cases. As the injury to the first Mrs Frampton was ‘unquestionably great,’ McRuer awarded her $7,500 for damages for alienation of affections. However, under a separate heading for criminal conversation, Mrs Frampton also claimed that she had a right to have her husband pure and inviolate. McRuer felt that this tort was still the special reserve of husbands. The manly prerogative to have a pure wife was based on his right not to be exposed to an obligation to provide for children who might not be his own. While adultery on the part of a wife might impose spurious children on a husband, he quoted Lord Eldon to the effect that ‘no such injustice could result to his wife from the adultery of a married man ... but it might become the especial duty of a wife to forgive her husband’s misconduct from motives of tenderness and concern.’19 So while a husband had a right in law to be protected from the chance that he may be raising another man’s children, if he strayed from the paths of purity it was his wife’s duty to forgive. Modern progress could not, McRuer decided, alter this historic double standard. While it is unlikely that McRuer would acknowledge it, there was a glaring incongruity between this standard and social reality. The notion that in the Canada of the 1950s a law existed to discourage women from siring children by men other than their lawful husbands seemed to belong more to the age of Elizabeth I than Elizabeth II. Even though Chatelaine magazine might foster the image of Canadian women as domesticated attachments of their husbands, the number of women in the labour force had grown by 56 per cent between 1951 and 1961 and by another 73 per cent in the next decade.20 While in the immediate postwar economy the number of working women had declined, by the

182 courted and abandoned

1950s and 1960s more and more women were working outside the home. The domestic image fostered by the media was in contrast to the postwar trend among a growing number of women to gain sexual independence, freely choose a mate, and make decisions on whether or not to have children.21 A few judges were growing uneasy at the application of medieval remedies in light of these trends. In a 1960 decision, Mitchell v. Joly, Justice Laidlaw condemned the plaintiff husband as a ‘man of most vile and vicious suspicion.’ With no justification, he had accused his wife of engaging in incestuous relations with her brother and uncle. When she was pregnant, he told her that he hoped that she would not bear the child and he expressed his indifference to her after she miscarried. In 1957 the wife consulted a doctor and she found in him a kind and sympathetic listener. There was no suggestion of any adulterous relationship. Shortly after the medical consultation, she left her husband for two brief periods. She had since returned, but refused to occupy the same bedroom and expressed a desire to remain apart from him. A jury held the doctor liable in that he had ‘used his professional position and wealth and fortune to alienate the plaintiff’s wife’ and awarded the husband $5,000. This was too much for Justice Laidlaw, who was clearly incensed at jury awards which were so blind to the facts. In overturning the jury’s decision, he found that ‘there is no evidence from which a finding could reasonably be made that such loss was caused by the defendant. It is more probable that such loss was caused by the plaintiff himself.’22 As in the past, there was a gulf apparent between juries who were eager to compensate claimants and judges who only awarded damages when a viable relationship had been abused. Mitchell v. Joly led to learned articles on technical issues such as whether Mitchell’s claim was properly an enticement or an alienation of affections.23 Above all, one writer questioned ‘whether or not enticement and alienation of affections actions are desirable at all. The author would have little hesitation in recommending their abolition.’ He ruefully noted that enticement and criminal conversation cases had been increasing in frequency in Ontario in the early 1960s, and that there was an ‘enhancement of the inequalities existing between husband and wife in this field of law.’24 However unequal or archaic it might be, the common law seemed impervious to change. In 1952 the British House of Lords in a leading case, Best v. Samuel Fox & Co, considered the claim of a wife whose husband had suffered an industrial accident which destroyed his sexual

Death of a Tort 183

capacity. Their Lordships unanimously ruled that a wife had no right to the loss of consortium for, as Lord Goddard noted, ‘loss of consortium is founded on the proprietary right which from ancient times it was considered the husband had in his wife.’25 In so doing, the House of Lords was simply repeating what the law had always stated – that as the husband was the superior to the wife, she could not claim any right to a loss of his services. Throughout the 1960s this became the judicial mantra, that a husband had an intrinsic right to sue for the loss of his exclusive right to have intercourse with his wife.26 Particularly in British Columbia, where criminal conversation did not exist per se but had become an effective part of divorce proceedings, there were numerous damage claims for adultery in cases where marriages had broken down. Even when the courts saw that the marriage had become a barren relationship, there was still an inclination to award damages against the transgressor.27 Just as the seduction cases of the nineteenth century were vignettes of rural life, so the criminal conversation cases of the 1950s and 1960s showed the attitudes of married couples in a secular, industrial society . And, just as the seduction cases revealed a legal system steeped in antiquity, criminal conversation actions show a legal system which was hopelessly out of step with its times. Above all, these legal cases illustrate contemporary social phenomena; for while the seduction cases demonstrated that the ‘Cult of True Womanhood’ was an exaggeration and that women were far more sexually active than popular morality would have it, the criminal conversation cases reveal the women of the postwar society exercised far more autonomy than the law contemplated. For example, in the Nova Scotia case of Dorey v. Denome, a husband had sued a man who had dared develop a relationship with his estranged wife. The facts clearly showed that the husband had treated his wife shabbily, beaten her frequently, and refused to allow her any social life. The wife met a fish-cutter from Lunenberg and the two became fast friends. She determined to leave her loveless marriage and told her new friend that ‘she wanted him to take her out, that she wasn’t used right as a wife, and that while at first he did not think it wise to be taking her out, that it was she who made the advances.’28 The court accepted her testimony that she had not been improperly enticed but had made up her own mind to leave her husband and seek out another companion. To the surprise of some, these cases revealed that the seduced wives of modern Canada were not simple housewives being led astray. In many senses, these trials are the stories that offer

184 courted and abandoned

constructs of contemporary sexuality. During the 1960s the research of Masters and Johnson had revealed that women were fascinated by sex and just as capable of delighting in it as men, but the judiciary were reluctant to accept this reality. As it became more apparent that many women were reclaiming ‘the right to sexual pleasure’ and leaving behind the notion that sexually active women were corrupt, the legal system was entrenched in former times. This was never more apparent than in Smith v. Smith and Morrow (1977), where a British Columbia judge was shocked to discover that an ambitious wife had reversed the usual marital roles in order to pursue a rising career in banking. After she transferred to Comox, her husband had not gained employment, but became the guardian of the children and looked after the home. In addition to her banking aspirations, Mrs Smith also led a sexually adventurous life and had several affairs while on business trips. On a one-week course in Vancouver in 1975 to advance her position in the bank, she began a sexual relationship with a casual acquaintance. Her husband learned of these transgressions, but was prepared to forgive them until at a Christmas party in 1976. There she began making advances to a neighbour, a Mr Morrow, and succeeded in seducing him. Her husband could stand no more and as part of the subsequent divorce proceedings he also sued Morrow. Despite Mrs Smith’s frank admission that she ‘may have enticed the respondent Morrow into the situation,’ and that ‘she was the pursuer of the respondent Morrow,’ Justice Cashman could not accept a situation in which the woman was the sexual aggressor who had broken up the relationship. He held that she must have made up the story to protect her latest lover and ‘I conclude that this voluntary and somewhat unusual testimony on her part was calculated to be of the most service possible to Morrow, in an attempt to minimize damages.’29 Just as Chestina Williams had to invent a story of rape (as no decent Victorian girl could admit to having a casual sexual affair), so the court found it impossible to accept that Mrs Smith, a respectable married woman, might also be an independent woman seeking out lovers whenever she chose to do so. Heartbalm had its foundations in a received law which no longer had any connection to authentic experience. The inherited law presumed that men were invariably the sexual aggressors and that married women were virtuous and passive creatures, entirely dependent upon a man. No matter how divorced they were from current realities, however, these laws would continue to be raised by aggrieved husbands until

Death of a Tort 185

they were addressed by the provincial legislatures. Even in Quebec, where alienation of affections was a common law addition to the civil code, there was disquiet over its application. In the late nineteenth and early twentieth century, the action had become popular in Quebec and ‘l’action dite “en alienation d’affection” est bien inscrite dans les moeurs juridiques québécoises.’30 Quebec judges enthusiastically seized upon alienation of affections proceedings as a way of preserving the sanctity of the family. As Judge Routhier pronounced in Laférriere v. Ribardy (1873), ‘Quel plus grand dommage peut-on causer a un homme que de ruiner son bonheur doméstique.’31 Yet after the Second World War there was increasing discontent with the application of the law. At least one jurist in Quebec was coming to the conclusion that the real solution was not to increase damages nor to extend the tort to women, but to abolish this archaic relict once and for all. In N. v. H. (1969), the husband had been awarded $5,000 for the loss of his wife. The Quebec Court of Appeal reduced the award to $500, but Justice Rinfret questioned whether there should be any award at all: Je suis d’accord avec la proposition qu’on doit rejeter l’attitude moyenâgeuse qui faisait de la femme mariée un vil objet mobilier ou un vulgaire bétail propre seulement à satisfaire les désirs charnels de l’homme. La femme d’aujourd’hui est beaucoup plus évoluée, sûrement plus libre et sa destinée est infiniment plus grande et plus noble; elle est la compagne, l’associée de son mari, et avec lui forme une équipe ... ... il est plus que temps pour cette cour de réagir et d’affirmer le mariage n’est pas devenu un simple accouplement d’animaux sans âme ni conscience.32

While Rinfret’s view of the woman of the late 1960s was far more accurate than the legal reality, it would take a determined review of the law to do away with these actions which relegated women to being little more than common chattels. Repeal When it came to the reform of the heartbalm torts, Canada lagged far behind some American states. During the 1930s there had arisen a public outcry against seduction actions as the source of blackmail. It was a ‘refined racket under judicial approbation,’ as one Louisiana judge called it, and ‘such suits are not infrequently the mere instru-

186 courted and abandoned

ments of extortion.’33 In 1934, the year in which Vivian MacMillan came to court to advance her seduction claim, Roberta West Nicholson stood in the Indiana statehouse to reintroduce her bill to abolish seduction and related actions. She had been introducing this bill since 1931 to stop the ‘itching palms in the guise of aching hearts ... I submit to you that love and respect and affection are not transferrable, negotiable commodities – certainly not recoverable in a court of law.’34 Her bill became law in 1935 and abolished criminal conversation, breach of promise of marriage, alienation of affections and limited seduction cases to instances where the woman was under twenty-one. Section 3 of her statute made it an offence just to threaten to bring a seduction action. Several other states followed this lead, by 1938 four states had completely abolished heartbalm, four abolished all heartbalm torts except for seduction which was reserved to minors, and three states abolished most heartbalm actions but left seduction intact. Significantly, many female legislators were behind this surge, and their attitudes towards feudal torts seemed of a piece with the struggle for women’s suffrage and equal employment.35 If women were to become truly autonomous, it was incongruous that they should remain subject to these demeaning laws. As a Missouri court ruled on the case of a twenty-nine-year-old who had successfully sued for seduction in 1977, ‘The woman of today is not the woman of yesteryear. She has a new-found freedom. The modern adult woman is sophisticated and mature ... The modern woman is not “easily beguiled” and does not easily fall to the “wiles” of man. Women desire and should be held to a reasonable responsibility.’36 There was no such agitation in Canada. Several reasons may be suggested for this. Seduction and breach of promise of marriage actions had all but fallen into disuse by the 1930s. It was likely that the occasional threat of an action was made and a quiet settlement arranged, but there is an absence of public comment on these affairs. In true Canadian fashion, seduction seems to have gone away quietly instead of in a blaze of glory. While in the United States, the abolition of seduction was (in a few states) a recognition of women’s sexual autonomy, in Canada seduction had largely ceased to be an issue at all, and its abolition would have done little to change the perception of women in society. Even in the United States, of twenty-three states that contemplated heartbalm abolition in the 1930s, fifteen did not take any action. Most states resisted doing away with the tort for, as one Indiana state senator asked, ‘Do you mean to tell me you will help women by

Death of a Tort 187

taking away their civil rights against philanderers and men who prey on them?’37 Perhaps, as in the case of criminal seduction, Canadian law reformers were influenced by British developments. British academics were dismayed by the result of Best v. Samuel Fox and its refusal to extend the right of lost consortium to wives. One writer lamented that ‘for all the change in social conditions since the Middle Ages, for all the equality of status of husband and wife, for all the so-called reciprocity of their duties,’ the courts were still operating on the basis of the wife being the husband’s chattel.38 Professor John G. Fleming dutifully reported the continued existence of proprietary rights in spouses and children in his 1971 text on tort law, but added an editorial comment that ‘in our day, there has become evident mounting scepticism whether the law of torts has a role any longer to play at all in this area.’39 In 1963 the English Law Reform Commission investigated the issue of loss of services in domestic situations and recommended the complete abolition of seduction; ‘the extension of the master’s right to the services of his servant to the parent-child relationship does not belong to this century.’40 Neither were British judges silent on the law’s inadequacies. In 1967 Justice Diplock described the action for the enticement and procuring of a spouse as ‘legal fossils incapable of further growth beyond the point which binding precedent compels us to acknowledge that they have already reached.’41 A follow-up report in 1969 by the English Law Reform Commission on matrimonial proceedings also urged that heartbalm remedies be discontinued. The following year, seduction and all heartbalm torts (except loss of consortium) were abolished. If the mother country saw the practicality of this step, it should have been apparent to other common law jurisdictions. The 1968 study prepared for the Family Law Project of the Ontario Law Reform Commission reported that seduction was an anomaly in the law and that its basis on the idea that the child was the servant of its parents was entirely outmoded.42 Abolition of heartbalm was just one frequently overlooked part of a general reform of family law in Ontario. Public attention focused on the debate on the division of property in the event of marriage breakdown rather than on the abolition of antiquated torts. With the growing consensus on the autonomy and equality of both parties in a marriage, the only question seemed to be how a relict such as heartbalm had lasted as long as it had. As Ontario’s 1969 Report on Family Law noted, ‘These actions [enticement, criminal conversa-

188 courted and abandoned

tion] were founded on the assumption that the husband had a kind of property interest in his wife ... The placing of a price on sexual conduct between a person’s spouse and a third party belongs to a past age.’43 There appeared no urgency to repeal these actions, and it was not until the Family Law Reform Act of 1978 that all heartbalm torts were abolished in Ontario.44 Changing attitudes towards men and women as equal partners in a marriage made it increasing awkward in applying these legal fictions. In the United States, those states that had abolished heartbalm found a judiciary eager to give effect to these changes.45 In the Canada of the 1960s seduction and its related actions also seemed inconsistent with reality. In 1967, then Justice Minister Pierre Trudeau advised the House of Commons to remove ‘fault’ from divorce proceedings and replace it with the neutral concept of ‘marriage breakdown’: ‘We are now living in a social climate,’ Trudeau observed, ‘in which people are beginning to realize, perhaps for the first time in the history of this country, that we are not entitled to impose the concepts which belong to a sacred society upon a civil or profane society.’46 In his most famous phrase, Trudeau asserted that ‘the state has no place in the bedrooms of the nation’47 and with equal justice it might be said that the tort law had no place in the affairs between a woman and a man. In many cases the movement for abolition came from provincial law reform commissions, although there seemed to be an extraordinary delay between recommendations and action. The Newfoundland Family Law Study of 1973 had recommended abolition of criminal conversation, enticement, and seduction, but it was not until 1989 by an ‘Act to Abolish Certain Ancient Rights’ that criminal conversation and enticement were abolished. Even then, seduction continued to be referred to in Newfoundland statutes and was relied on in a 1994 case where a young boy sued a priest for sexual assault.48 While the court dismissed the motion and stated that ‘clearly the assaults in this case were of a different nature than is contemplated by “seduction”’ it also inferred that seduction was abolished due to the effect of the equality provisions of the Canadian Charter of Rights and Freedoms. Saskatchewan’s 1981 Tentative Proposals No. 53 relating to children recommended the abolition of seduction, but it was not until 1990 that it did so, making Saskatchewan the last province to repeal its seduction statute.49 Manitoba acted with greater efficiency, and after its 1979 report recommended that seduction be abolished, the Equality of Status Act, 1982 ended seduction and all remaining heartbalm actions.50 Sometimes

Death of a Tort 189

extrinsic factors caused seduction to fall. For example, in 1984 the Alberta attorney general moved to abolish seduction as ‘it would not be valid under the Charter of Rights.’ The equality provisions in the Charter caused all provinces to audit their statute books and cull out those which conflicted with the new entrenched constitutional rights. The Alberta Seduction Act, briefly noted in a press report as the same one ‘which 50 years ago led to the downfall and humiliation of a premier,’ was repealed in 1985.51 Attitudes and approaches could vary. British Columbia was unique as it had adopted the law of England as it had existed on 19 November 1858, a much more recent date than the eastern provinces. Therefore the English Matrimonial Causes Act of 1857 applied to British Columbia, and while this act abolished criminal conversation, a husband’s right to sue another man who had interfered with his marriage was preserved. This action, which was governed by the same principles as criminal conversation, became a regular part of many divorce actions. In contrast to Ontario where heartbalm was abolished in 1978, British Columbia’s Family Relations Act of 1978 actually extended the existing right to sue an adulterer to both spouses.52 The BC Supreme Court reviewed this statute in 1980 and lauded the government for its progressive thinking in ‘equalizing the rights at law between husband and wife.’ When applying this new equality, a judge was required to determine both the degree of enticement used and the active interference in the marriage, for ‘both are a form of seduction. They constitute interference with the matrimonial state, and the laws always try to protect and encourage the stability of marriage.’53 This judicial attitude was surprising since by this time many were questioning whether it was a valid use of state power to meddle in a marriage, even for the worthy purpose of fostering its stability. Seduction and criminal conversation had always been a social barometer of acceptable social conduct. The legion of fathers who came forward in the nineteenth century claiming that their daughters had been seduced were reinforcing society’s acceptance that daughters were, in essence, their father’s chattel. In the same vein, the criminal conversation cases of the twentieth century confirmed a husband’s right to his wife as an object. By the late twentieth century the growth of women’s authority and independence was making both these actions offensive. Indeed, the pace of women’s autonomy was probably accelerating at a rate faster than the average judge could absorb. In 1980, when British Columbia judge, Justice Taylor, considered the case of a Mrs Lozada

190 courted and abandoned

who sued her husband’s lover, he seemed shocked to discover that the female defendant had taken the initiative and had all but seduced Mr Lozada. The defendant had known that Lozada was married, but pursued him relentlessly until he yielded to her wishes. Despite the evidence that it was the husband who had been seduced, Taylor could not accept that in the Canada of the 1980s, women might be capable of taking what they wanted: ‘it must still be recognized, I think, that the sexes are not, in fact, the same ... Until the ways of mankind change markedly, it will, I think, be more difficult to persuade a court that a woman has overborne or dominated a married man, and lured or enticed away from his spouse, than that a man has done these things in respect of a married woman.’54 The courts were still locked into a protective mode, upholding morality, the stability of marriage, and the increasingly tenuous concept of the woman as the passive angel. This protective impulse was even present in British Columbia’s 1983 Law Reform Commission Report, which maintained that there was a need for society to condemn improper conduct which interfered with domestic relations.55 The subsequent debate was perhaps the last time a Canadian legislature considered the merits of heartbalm. British Columbia’s attorney general brought forward the Family Law Reform Act of 1985 to ‘abolish as well certain obsolete civil legal actions whereby a husband can sue for monetary compensation where his wife has been seduced.’ However, one member carried a brief for breach of promise actions. ‘That’s a very ancient action,’ argued the NDP’s Alexander Macdonald, ‘used by women who have been in many cases debauched, and in other cases despoiled, with evil intention, in the expectation of getting married.’ Just because other provinces had abolished it was no reason for British Columbia to follow suit, ‘let the cad be visited with damages, and why not?’ Nevertheless, the reform act was passed and to the relief of the would-be cads of British Columbia, heartbalm was abolished.56 Nevertheless, there was a marked reluctance to eliminate heartbalm entirely in the western provinces. Alberta retained criminal conversation and enticement in its Domestic Relations Act.57 This caused one judge to comment in 1988 that ‘many people feel that these types of actions are an anachronism and something that should have disappeared with the Victorian era. Nevertheless, the action is there. The legislature has never seen fit to repeal it.’ In this case, the plaintiff claimed that the defendant had enticed his wife and committed adultery with her. But after the trial judge had unravelled the complicated

Death of a Tort 191

relations between the three, he discovered that the story was not one of Victorian seduction and betrayal but rather that ‘the parties simply gradually fell in love and the rest is inevitable.’ As there was no enticement, there was no loss, and the damages were nominal.58 Other provinces also left criminal conversation intact. In Prince Edward Island, for example, the defendant in a criminal conversation case pointed to the province’s Family Law Reform Act of 197859 which placed the husband and wife on an equal footing. However, unlike the Ontario statute, the PEI law did not abolish criminal conversation and therefore a court ruled in 1980 that despite being ‘an anachronistic procedure which is no longer relevant in today’s society,’ it remained part of the common law until it was repealed.60 But even if seduction was dead and criminal conversation was reduced to a ghost rattling its chains in the legal attic, there was a note of frustration expressed by judges even in the rare case when they were called on to apply these medieval remedies to modern situations. For example, on 12 June 1989 Joyce Miller of Perth-Andover, New Brunswick, broke into the house of her husband’s new lover, Glenna Davenport, dragged her into a shed, and with the help of two friends, used scissors to shear off all her hair to within a half inch of her scalp. While Davenport sued Miller for the assault, the offended Mrs Miller countersued her for criminal conversation. It was a case which posed the old question: ‘Can a wife sue the other woman for breaking up her marriage?’ Justice McLellan noted that the wife already had many remedies, such as court ordered support and child custody orders. But to seek damages arising out of adultery was to invoke such an obsolete law that he doubted its usefulness. Moreover, he challenged the validity of the Ontario decision in Applebaum v. Gilchrist and ruled that the common law had not been modified to allow a wife to bring an action against another woman for enticing her husband. Instead, McLellan invoked the authority of the recently entrenched constitutional rights, for ‘in my opinion the sexism of the quasi-proprietary right of the husband in the wife which underlies these archaic causes of action is a blatant contradiction to the provisions of the Canadian Charter of Rights and Freedoms touching upon freedom of association (s. 2(d)] and equality (s. 15).’61 In the end, damages were awarded for the hair-shearing but not the adultery. Even if the heartbalm torts were referred to in a few maritime statutes, the effect of the equality provisions of the Charter had rendered them meaningless. Heartbalm torts had come to a fitful end in Canada. But not without a

192 courted and abandoned

struggle. When an Ontario hairdresser discovered that his lawyer was having sex with his wife, he sued him for ‘traumatic neurosis.’ This 1986 claim was to all intents and purposes the same as the archaic proceeding for criminal conversation and the lawyer’s counsel submitted that it was barred by reason of section 69 of Ontario’s Family Law Reform Act. However, the trial judge ruled that ‘while adultery forms part of the core facts of this claim, and is admitted, the action itself is founded on the allegation that the plaintiff’s mental and emotional status was adversely affected by the defendant’s misuse of confidential information.’62 Damages were awarded for what may be the final criminal conversation case in Ontario. Others have tried to revive heartbalm actions. In 1997 one enterprising plaintiff claimed that her former common law partner had breached a promise to cohabit. However, as the judge pointed out, ‘If there is no right to bring an action for a breach of promise to marry it follows that no action shall be brought for breach of promise to cohabit.’63 In 2001 a former lover of Toronto’s mayor Mel Lastman claimed that he had committed the tort of ‘intentional or reckless infliction of mental suffering’ by abandoning her and their children.64 While this tort does exist in law, the courts ruled in favour of Mayor Lastman and refused to extend the principle to the relationships between partners. As Justice Bertha Wilson noted in Frame v. Smith, ‘... if it [the tort of mental distress] were made available throughout the family law context, [it] would have the same potential for petty and spiteful litigation and, perhaps worse, for extortionate and vindictive behaviour as the tort of conspiracy’ and would be ‘an ideal weapon for spouses who are undergoing a great deal of emotional trauma.’65 Significantly, her argument against reviving heartbalm echoes many of the nineteenth-century editorials which argued for its abolition; that is, that it is a tool for extortion and revenge. While the determination to do away with these torts had, for the most part, come from law reform commissions and been enacted by several legislatures, it was the entrenchment of the Charter and its equality provisions which was the definitive act which ended forever a property interest in a spouse or child. Abolition of the tort was also a reaction to the sexual revolution. Seduction was patently obsolete in a society where women were no longer valued for their purity and where both sexes were free to seek partners. There was no longer any need to control sexual conduct legally when a woman’s ‘value’ no longer equated to her ‘virtue.’ In one sense, this abolition was a legal recognition of the autonomy of spouses and an acknowledgment that spouses were equal

Death of a Tort 193

parties and not objects to be manipulated. From another perspective, it brought to an end an extended period where the law had played a vital role in intervening in personal affairs to protect women against those who deceived them into entering into sexual relations, and to protect spouses where an interloper had destroyed a family. To a minority, it may have seemed that the repeal of heartbalm was an irreparable loss that weakened the home and left the seducer free to cause serious harm with no fear of consequence.

12 The Complex Dance of Seduction

The social purity laws of the 1880s showed remarkable endurance, and persisted in the Criminal Code until near the end of the twentieth century. That these laws outlived the Victorian society that begat them was a tribute both to the inertia of the law and to fundamental disagreements over what should succeed them. In 1968 an English judge commented on the perverse result of the longevity of social purity, for these laws ‘were passed in order to protect young girls from seduction. Unfortunately, in many of the cases today in which teenage boys are concerned, it is they rather than the girls who are in need of protection.’1 In Britain, the Wolfenden Report on Homosexuality and Prostitution of 1957 influenced parliamentarians with its argument that laws should prevent harm, not enforce morality. Canadian Justice Minister John Turner was also impressed with this argument, and during the 1969 debate on reforms to the Criminal Code to remove the sections criminalizing certain sexual conduct between consenting adults, he quoted the Wolfenden report’s view that ‘there must remain a realm of private morality and immorality which is, in brief and crude terms, none of the law’s business.’2 Despite this evolution, consensual sex with young women remained a criminal offence in Canada and criminal seduction endured as one of the legal fossils which had changed little for over a century. In 1892 section 181 of the Criminal Code made it an indictable offence to seduce a woman of previously chaste character between the ages of fourteen

The Complex Dance of Seduction 195

and sixteen. In 1920 the section was extended to apply to every man over the age of eighteen who seduced a chaste woman between the ages of sixteen and eighteen.3 In a concession to concerns for working women, a 1920 amendment also made it a criminal offence for an employer to seduce a chaste female employee under the age of twentyone. If anything, in the years after John Charlton the moral element in the law was strengthened, even though the courts would make sure that the seduction laws were only applied to the virtuous. As a Saskatchewan court ruled in R. v. Gasselle (1934) ‘the word “seduces” imports not only illicit connection but also the surrender by a woman of her chastity to a man as the result of his persuasion, solicitation, promises, bribes or other means without the employment of force.’4 The protection provided by the seduction law was only available to one select class of women, for in R. v. Johnston (1948), it was held that only the girl ‘who can properly be described as decent and clean in thought and conduct, comes within the meaning and intention of the words “chaste character” as used in this particular section of the Code.’5 This law prevailed into the early 1980s and any ‘decent and clean’ girl between sixteen and eighteen (or under twenty-one if there was a promise of marriage) who had consensual sex with a man could have him charged with a criminal offence. Principles of law better suited to the age of crinolines had survived past the era of the mini skirt. It is a fair comment on this double standard that ‘the Canadian development of legislation governing consent and sex in adolescence follows a long paternalistic tradition strongly upheld by the double standard and cult of chastity.’6 It was not until the Law Reform Commission of Canada’s 1978 Working Paper on Sexual Offences that criminal seduction was given a critical review: ‘Many sexual offences deal with restrictions on sexual intercourse with women, ostensibly to protect them. However, some have argued that such legislation reflects anachronistic perceptions of the role of women in contemporary society and actually protects something more akin to property rights.’ Dealing specifically with criminal seduction, the commissioners found that it ‘embodies a conception of women which no longer has a place in the criminal law’ and they concluded that: These sections are rarely invoked and are often quoted as ridiculous examples of the criminal law. They assume a general sexual immaturity among women and also attribute to men the sole responsibility for making sexual decisions. Such assumptions, not only incorrect but unjust to men

196 courted and abandoned and women, should not be reflected in the criminal law. We therefore recommend the repeal of sections 151, 152 and 154 from the Criminal Code.7

Yet no action was taken; the repeal of criminal seduction was simply not a pressing issue. Overshadowing it and consuming public attention were concerns over compelling a rape victim to give testimony on her previous conduct and whether a man honestly believed that a woman had consented to intercourse. In 1976 Parliament would pass the first of several laws to protect rape victims from intrusive and irrelevant crossexamination on prior sexual conduct. In reconsidering the rape laws, Parliament would be guided by the Badgley Committee appointed in 1981. Its 1984 report made recommendations on the protection of youths from sexual offences. The intention of the report was to move the law away from its obsession with vaginal penetration, and to de-gender the offence into one of assault, on the individual, whether male or female. Rape was changed to sexual assault, an offence against the person, not morality.8 Among progressive thinkers there was a growing feeling that sexual assaults had little to do with sex. As one judge noted, ‘There is a view held by a segment of society today that so-called sex offences are neither sexually motivated nor intended for sexual gratification but rather are forms of aggression and should be treated primarily as such. A review of the new sexual offences legislation persuades me that it was enacted mainly with this concept in mind.’9 That sexual assault was to be considered another form of violence to be subsumed within the general law dealing with assaults was reflected by its shift from Part IV of the Criminal Code on ‘Public Morality’ to Part VI, ‘Offences Against the Person and Reputation.’ In 1982 the whole of section 139 of the Criminal Code defining ‘previously chaste character’ was abolished. But in all other respects, the sections dealing with the criminal seduction of previously chaste females were left intact.10 This was an incongruent result that was not remedied until 1987 when Parliament formally abolished criminal seduction including seduction under promise of marriage.11 With no fanfare, the social purity movement that had so consumed public interest in the previous century had come to an end. Yet many of the same issues that social purity had dealt with still lay before the people and Parliament. For example, the new de-gendered laws on sexual assault did not make a distinction between an older person taking advantage of a younger and other kinds of sexual experimentation between peers and it is possible that this showed an ‘inflex-

The Complex Dance of Seduction 197

ible attitude to sexuality in adolescence, and with a corresponding failure to separate adult impositions of sex upon teenagers and children from sexual relations between or among peers.’12 It was a problem as old as Upper Canada, where limited foreplay (perhaps even bundling) was permitted among young people. In frontier society, sexual experimentation had been allowed and even encouraged as a way of fostering marriages. Now, was sexual touching to be criminalized even among teenagers? According to some legislators, it should be. During the 1981 debates on the Criminal Code amendments, Benno Friesen of British Columbia maintained, in words that would have brought nods of approval from John Charlton, that ‘young people are not ready to absorb the pleasures which could be theirs when they are 16, 18 or 20 years old. I think we need to take a very careful look at whether we are not pushing the age limit too low.’13 If anything, youngsters (particularly young women) were sexually experienced, and with predictable results; teenage pregnancies and even the occasional infanticide still occurred. In the late nineteenth century a pregnancy out of wedlock was so disastrous that some young women looked to suicide as their salvation. It is a measure of how far society had changed that by the late twentieth century unwed motherhood no longer bore such a stigma. Despite the rise in sexual activity among young people, during the 1990s pregnancies among teenagers dropped significantly and in 1997 Statistics Canada reported that for the first time, more teenage pregnancies ended in abortion than live births.14 The response to an unexpected pregnancy was no longer to sue the boyfriend for seduction or charge him with violating a minor. The availability of abortion and support systems for unwed mothers made these heavy-handed remedies obsolete, for the seduced woman could either solve her own problem or turn to the modern bureaucratic state for aid. Although it was not commented on or even perceived at the time, the real impact of the Badgley Report was to create a new and even more encompassing social purity. Recommendation 9 of the report sought to criminalize every person in a position of trust who sexually touched anyone under the age of eighteen and a teacher would be ‘conclusively deemed’ to be in a position of trust. However, Parliament would not make this assumption, and the new sexual exploitation law, section 153 of the Criminal Code left it to the courts to determine whether an accused was in a position of trust or authority. Even though the section was of general application to parents or employers, it was most fre-

198 courted and abandoned

quently invoked in the case of teachers. It is ironic that in the 1880s teachers had angrily resented being made the focus of seduction laws, yet the same objective was accomplished in the 1980s with barely a murmur. When the Supreme Court of Canada first dealt with the sexual exploitation law in R v. Audet15 (1996), it strictly applied the provision to a situation where a twenty-two-year-old male teacher had a brief sexual encounter with a fourteen-year-old he had taught the previous year. At trial, the teacher was found not to have been in a position of trust and he was acquitted. However, the Supreme Court of Canada seemed to presume that the mere office of the accused as an educator made him guilty, and even if the girl no longer attended his school, his conduct was still a grave breach of trust. Whatever their merits, the de-gendered principles of section 153 applied to both male and female teachers. However, it soon became apparent that these principles were ill-suited to the human condition. When British Columbia teacher Heather Ingram was charged in 1999 under section 153 with seducing a seventeen-year-old student, there was a division of opinion as to who (if anyone) was responsible. The male student, who was already sexually experienced, had avidly pursued Ingram, spent hours at her house persuading her to have sex, and admitted that ‘the idea that she sexually exploited me is crazy.’ For her part, Ingram admitted that ‘I allowed him to seduce me. That’s the best way I can put it.’16 Nevertheless, the official response was severe, for Ingram was suspended by a school superintendent and at her sentencing, a judge termed her conduct an ‘affront to society’ and sentenced her to ten months of house arrest and a year of probation. Yet many in the community sympathized with Ingram and her lover, a sympathy that would not have existed had their genders been reversed. About the same time as the Ingram case, police in British Columbia were trying to investigate allegations that a female teacher had seduced all fifteen members of a boys’ volleyball team. The investigation was hindered by the fact that none of the victims would complain and, as a police officer commented, ‘it has all been kind of smirks and smiles ... Young men think like that. As far as the community is concerned, there has been no big outcry. It would certainly be different if it were a male coach and female students.’17 At a deeper level, this officer was expressing a truth that eluded most of Canada’s social planners. Basic elements of the accepted roles of the sexes were as true in the 1990s as they had been in the previous century; men were seen as more powerful and the aggressors and therefore they should be held criminally responsible for

The Complex Dance of Seduction 199

having sex with younger women under their control. On the other hand, if a woman in a position of authority chose to have sex with a younger man, he was anything but a victim. These perceptions of the relative roles of men and women persisted, despite attempts by the state to enforce de-gendered notions of sexual exploitation. The attempt to mask the roles of men and women in the law and repeal social purity did not end the debate on what constituted acceptable conduct between a man and a woman in private; if anything, the debate increased in volume and complexity during the 1980s and 1990s. The debate was given added vigour after the Supreme Court of Canada’s decision in 1991 in the R. v. Seaboyer18 case which struck down as unconstitutional the restriction on the admissibility of evidence of sexual history. While the reaction to Seaboyer is largely beyond the scope of this study, it raised issues which are similar to the historical debate on seduction. When Justice Minister Kim Campbell introduced remedial legislation, Bill C-49, it became instantly known as the ‘no means no’ bill. Reversing the usual presumptions, section 273.2(b) of the bill provided that consent was no defence where ‘the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.’ That is, the burden was now on the accused to show that his belief that the victim was consenting to the sexual act was reasonable. ‘If sexual assault is to be seen from a woman’s perspective,’ wrote one feminist academic, ‘consent must be viewed as requiring a positive – as in deliberate – statement’ and that she was free to change her mind about continuing to engage in any particular form of sexual activity at any stage.19 To some, this suggested that written consent forms would be required in the future. Testifying before the Commons committee that studied the bill, Alan Borovoy of the Canadian Civil Liberties Association warned that the proposed law covered ‘everything from a brutal rape to a goodnight kiss.’ An editorial in the Globe and Mail warned that the new act went too far; it ‘would leave little room for that most ambiguous of human acts: seduction.’ Nevertheless, Bill C-49 became law in 1992 and was lauded for, among other things, changing the previous law that an accused could rely for defence upon an honest but mistaken belief that the woman had consented to the act. Now the onus was always on the man to take reasonable steps to ascertain that his companion was consenting. Section 273.1 of the Criminal Code now provided that no consent was obtained where ‘the complainant expresses, by words or conduct, a lack of agreement to engage in the activity.’20 But many

200 courted and abandoned

wondered if there was still a modicum of space for seduction. The problem lay in defining the line between those criminal sexual advances which were obviously violent and intrusive and those which were intended to initiate consensual sex. But under the ‘no means no’ law there was uncertainty as to where responsibility lay in any malefemale sexual encounter. The question became a matter of national discussion in 1999 when the Supreme Court of Canada rendered its decision in R v. Ewanchuk. Steve Ewanchuk fancied himself something of a Lothario. He encountered the seventeen-year-old complainant at an Edmonton mall and Ewanchuk suggested that she might be interested in joining him in his woodworking business. The following day the young woman, wearing shorts and a T-shirt, met Ewanchuk in his van for a job interview. Later, they repaired to his trailer where he closed the door. Eventually, the conversation turned to personal matters and Ewanchuk asked the complainant to give him a massage. She massaged his shoulders for several minutes and he did the same for her. As the massaging progressed, he tried to initiate more intimate contact such as massaging her stomach and bringing his hands underneath her breasts. She stopped him and said ‘No.’ He stopped, but shortly thereafter he tried a new tack and began to massage her. Once again, she told him to stop and he did so. Ewanchuk then began to knead her feet and move gradually up her legs to her thighs. She said nothing because she was afraid any resistance might cause him to become violent. Yet at no time did he use or even threaten to use force. When he began to grind his pelvic area against hers, she asked him to stop and again he did so. Still, he persisted and shortly thereafter he took out his penis. After she again told him to stop he got off of her and said, ‘It’s okay. See, I’m a nice guy, I stopped.’ He gave her a $100 bill and asked her not to tell anyone what had happened. At Ewanchuk’s trial, the complainant’s conduct was characterized as ‘implied consent’ and he was acquitted. Before the Alberta Court of Appeal, Justice John A. McClung, the grandson of one of Canada’s women’s rights pioneers, Nellie McClung, considered the facts and observed that the complainant had not presented herself at Ewanchuk’s van ‘in a bonnet and crinolines.’ The judge described his conduct as ‘clumsy passes’ that would ‘hardly raise Ewanchuk’s stature in the pantheon of chivalric behaviour, but it did take place in private and following her protest ‘No’ – led to nothing.’ He then suggested that women use physical force rather than resort to

The Complex Dance of Seduction 201

the courts for ‘in a less litigious age going too far in the boyfriend’s car was better dealt with on site – a well-chosen expletive, a slap in the face or, if necessary, a well directed knee.’ He concluded that Ewanchuk did not know the woman’s underlying state of mind but once she had expressed it, he desisted.21 This decision was overwhelmingly rejected by the Supreme Court of Canada. Justice John Major, writing on behalf of six other justices, ruled that while an accused still had a right to claim that he had an honest but mistaken belief that the woman had consented, it was up to the man to elicit facts to support such a belief. Once the complainant has expressed unwillingness (as Ewanchuk’s guest had on several occasions), then ‘the accused should make certain that she has truly changed her mind before proceeding with further intimacies.’22 There was nothing on the record to support the accused’s claim that the complainant was tacitly consenting to his various advances. Justice Claire L’Heureux-Dubé wrote a separate decision in which she agreed that the complainant had clearly expressed her absence of consent and that Ewanchuk’s conduct in the face of this no was patently criminal. Moreover, there was nothing chivalrous about a seventeenyear-old woman trapped in a trailer with a man twice her age and size. It was hardly a scenario that reflected romantic intentions and she pointedly rejected McClung’s reasoning and his comments on the attire and lifestyle of the complainant. L’Heureux-Dubé’s criticism of a fellow judge unleashed a fury of controversy23 that almost obscured the central issue. How far could a prospective seducer go in trying to convince a woman to have sex with him? According to some, the Supreme Court of Canada’s decision had finally implemented the legislative reforms of 1983 and 1992, for women were not to be presumed to be sexually accessible at all times until they resisted. A man had to seek and obtain consent for sexual touching, and anything less than that was a sexual assault. As one supporter of the Supreme Court’s decision pointed out, ‘Wearing shorts and a T-shirt is not a licence to take out your penis at a job interview.’24 Yet others were fearful that the law had gone too far. One writer noted that the woman had freely entered Ewanchuk’s trailer and freely left it: As a society we face a choice. We can [as the Supreme Court is doing] presume that every sexual approach is a crime ... It is a rare encounter in which both parties initiate sex equally and simultaneously. Ordinarily, the process involves persistent initiation and exploration by one, and gradual

202 courted and abandoned consent or refusal by the other. And it becomes hazardous indeed if a seduced party – even a spouse – can later tell police she was in a state of unexpressed terror, and the accused partner must prove otherwise.25

To some, the implications of the Ewanchuk decision were alarming: ‘Any man who tries but fails to sexually interest a woman can now be found guilty of a criminal offence because he didn’t get her consent first.’26 To others, Ewanchuk was a refreshing indication of judicial determination to do away with stereotypes and recognize the bodily integrity of the woman and her right to say no. While the weight of the judiciary and much of the public was behind Justice L’Heureux-Dubé, some felt that the principles expressed in Ewanchuk ‘reflects an unfortunate ideology that seeks to protect the vulnerable but in so doing evidences a puritanical and artificial conception of human sexual behaviour.’ The Ewanchuk decision may have been an indication that by the late twentieth century the wheel of history was turning back to a more Victorian condemnation of attempted seductions. ‘The Ewanchuk judgment reflects an emerging sexual orthodoxy whereby consideration of sexual activity is to be influenced by notions such as the inherent vulnerability and weakness of women, and the inevitable power imbalance which necessarily shapes any consent.’27 Were Canadians returning to an era where women were again stereotyped as ‘simple, soft’ creatures and men always presumed to be predators? Going well beyond Ewanchuk, feminist scholars such as Catharine MacKinnon argued that the notion of consent was meaningless, because each sex act was a seduction. Men and women are in a constant state of conflict and, due to the imbalance of power, all sex between employees and employers, teachers and students, was coercive and therefore a form of sex discrimination.28 While Canadian law did not have any restrictions similar to the sexual harassment provisions in Title VII of the US Civil Rights Act, provincial human rights’ codes prohibited sexual harassment at work. It is not the intention here to detail sexual harassment law in Canada, but to point out that the similarities between this new action and the earlier tort for seduction are inescapable. For example, in 1990 a University of British Columbia graduate student from Ontario was on a field trip with a senior biologist. He drove her to an isolated project area, booked one room for the two of them, and eventually coaxed his way into bed with her. Despite some protestations from her, they had sex. To the British Columbia Council of Human Rights, this was a perplexing case, for it ‘explores

The Complex Dance of Seduction 203

the boundary between permissible social conduct and sexual harassment. The Council notes that human rights legislation does not prohibit consensual social and sexual contact between managers and employees.’29 But it did protect women who were at risk of being exploited by men in positions of authority. The facts in this case are remarkably similar to those of the seduction cases of the previous century. A young woman, alone, in a strange place, has a brief sexual encounter with a man she knows only slightly. The difference was that the human rights tribunal did not have to deal with the parent bringing the claim under an arcane heading of loss of services. The seduced person could use the human rights laws to hold her seducer directly to account for using a position of authority to seek his own sexual gratification. It was a vast improvement over feudal remedies and an important tool to enable women to discourage sexual aggression.30 When seen in this context, it seems that seduction law has not been eradicated but has only mutated and changed form. For better or worse, there are many striking similarities between seduction and sexual harassment claims. When Robin Blencoe, a cabinet minister in the British Columbia government was accused of sexual misconduct in 1995, he was summarily fired from his ministerial position. Blencoe’s situation was remarkably similar to Brownlee’s, for the mere accusation was enough to destroy both men. The one major difference between them was that Brownlee could confront his accuser in open court while Blencoe’s accusers demanded (and received) their privacy. Moreover, the accusations against Blencoe went unresolved for years, and on a motion to quash the charges due to delay, British Columbia’s Chief Justice McEachern wrote in 1998 that ‘the fact remains that unproven charges of sexual harassment and sexual discrimination are, in our society, charges accompanied by a high stigma. Such charges have the power to destroy lives.’31 Throughout the centuries, the law has never been able to define satisfactorily the acceptable tolerances in the relations between men and women. Perhaps this new, emerging purity movement is necessary to protect women. But it will inevitably lead to an erosion in trust between the sexes and the reimposition of an orthodox moral code. It may well be the case that the modern women’s movement is the leading wave of a new Victorianism. Much of the nineteenth century crusade for equality, marriage reform, and suffrage eventually came to reflect the image of the helpless woman in need of protection and was thereby incorporated into movements calling for a repressive code of

204 courted and abandoned

social purity. From an historical perspective, it has been observed that ‘birth control, for example, was condemned because feminist leaders thought it would turn women into ‘prostitutes.’ In this manner, the feminist movement of the day became a pillar of a conservative purity movement.’32 In much the same way, the second wave of feminism may be evolving into a new puritanism. It may well be the case that this second wave will also foster the creation of laws which will prohibit or interfere with consensual sexual activities and thereby restrict the liberties of both men and women. We have already reached a stage in Canada where the fruits of this new social purity movement would be considered extreme, even by the Victorians. Under the force of zero tolerance policies, medical associations forbid any sexual relations between health professionals and their patients. Consensual sexual relations between mature parties are forbidden, and a rural doctor who has sex with a patient he or she treated for a minor ailment in the past is subject to expulsion.33 In early 2001 a girl who had just turned twelve was charged with sexual assault in Toronto after sexual experimentation with a group of peers. Perhaps the most absurd manifestation of modern social purity has occurred in the Canadian Forces where men and women serving together on peacekeeping operations have been ordered to refrain from any sexual involvement. The senior command has banned hand-holding, flirting, and especially sexual intercourse – even among personnel who are married to each other! It is not surprising that the rule is frequently broken. The follies of this new Victorianism are leading to a more repressive society, the rules of which are held in disdain by ordinary people. Even the lawmakers of the nineteenth century realized that there were limits on the law’s prerogative to intrude on private affairs. To them, a little girl’s sexual experiments were a subject to be dealt with by the family, not by society at large. It is only in the past few years that the law has made a teacher’s relations with a mature student a criminal instead of a personal matter. To the dismay of the officials charged with enforcing this new social purity, many of these charges of teacher seduction, especially those involving women and mature men, are not considered criminal or even reprehensible by the community. Indeed, there seems to have been backlash against this new Victorianism. Prince Edward Island, which also adopted the absolute prohibitions against doctorpatient relationships, recently dealt with a case against a doctor who began dating a patient seven years after he had stopped treating her. The prosecution was thrown out by Chief Justice MacDonald, who

The Complex Dance of Seduction 205

ruled that the public was ill-served by this kind of ‘unbending law’ which subjected ‘the complex relationships and feelings that may exist between doctor and ex-patient to zero-tolerance rules.’34 In a commentary written shortly after Ewanchuk, Montreal social commentator Lysiane Gagnon felt that Canadians were beginning to use the law to impose rigid and simple-minded rules on affairs of the heart. She gave the examples of a Sudbury student who was kissing his date and reached under her blouse to touch her breast. She pushed his hand away. Nevertheless, he was convicted of sexual assault and put on probation. After a night of drinking, a soldier was invited into a female comrade’s quarters for the night. She disrobed in front of him and invited him to share her bed. However, when he attempted to perform a sexual act on her, she had him charged. Gilbert Rozon, a Montreal impresario, found himself handcuffed, arrested, fined $1,100 and prohibited from travelling to the United States after a clumsy pass at a young woman at a party. As these examples indicate, human sexuality is far too complex to conclude that there is no third option between yes and no. The history of criminal seduction has been a story of how society has tried to insert itself in the most intimate of personal affairs. For the most part it has been a carnival of absurdities, from the moral idealists who tried to control young women in the nineteenth century to the zero-tolerance rules of the late twentieth. Most recently, under the guise of harassment and zero tolerance, the wheel has turned again and women are presumed unable to give free consent and men are presumed to be the antagonists. Has the circle turned to the extent that every sexual approach, even a persuasive rather than a coercive one, has become a criminal act in the character of a rape? Ultimately, is it ‘absurd to assume that there can never be implied consent in the complex dance of seduction’?35

Epilogue

Throughout history the law has proven to be an unwieldy tool in the harnessing of desire. During the 1700s, when the common law was the pawn of men of property, the virtue of some women was protected as an aspect of property. Gradually the law came to view the disgrace of a daughter as an issue of family honour and deserving of a special award of damages. Yet in Canada the tort of seduction remained, with the exception of two provinces, based on a loss of service and, to the detriment of many a frontier family, it stubbornly resisted change. Even when the web of relationships based on feudal notions had declined and given way to a capitalist system based on contract, seduction (unsatisfactory as it may have been) remained a mainstay of the law. It is nothing less than remarkable that a judge-made rule from the early 1600s governed personal relations well on into the industrial age. During all this, it is the seduction stories, the voices of former times, that reveal the lost world and precepts of these lovers. As shown by Miss Fuller, the unfortunate victim of bundling at the Niagara assize of 1824, early Canadians accepted the notion that young women could be avid participants in sexual encounters. Indeed, they were compelled to be, for the life of the frontier dictated that they take active steps to find a mate as soon as possible. But frontier Canadians (if not always their judges) felt that the man should also bear some of the burden arising from an illegitimate birth. In this way, each seduction case was a brief temporal drama which gives us an insight into what common people

Epilogue 207

felt were acceptable and unacceptable rites of courtship. As the century progressed, respectability emerged as a prime virtue. That Chestina Williams would have to cry ‘rape’ in court in the 1870s, shows the need for women to save some measure of propriety, even when their claim was based on a lengthy affair with a married man. So vital had respectability become by mid-century that Chestina would be believed no matter how unlikely her claim. This conviction persisted well into the twentieth century, and the widespread sympathy for Vivian MacMillan, the victim (or destroyer) of a premier, showed the enduring legacy of Victorian views of women as inevitably pure and to be believed at all costs. This idealized conception of women (at least middle-class women) led to legal change and in Canada resulted in the most severe moral code in the Anglo-American world. The social purity movement reflected its times and was an attitude profoundly at odds with the frontier society that preceded it as it was with the secular de-gendered society of the late twentieth century. It is important that current sensibilities should not be used to undermine our understanding of these earlier times. Attempting to deconstruct the 1837 seduction law by deeming it to be a paternal attempt to control women is to impose modern concepts on the past. The statute should be accepted for what it was – a well-intentioned but futile attempt to extend relief to the unwed mother. Similarly, a conclusion that convictions under Charlton’s Act were low because a male judiciary would not hold men accountable for sexual escapades is not only inaccurate, it imposes modern political judgments on an earlier period. It is far more relevant to evaluate the seduction cases by objectively viewing the lives of the men and women caught up in the vagaries of the law. These cases reveal the timelessness of human conduct and the different ways in which the law has attempted to control the sexual order. Indeed, there is no reason to believe that we have come to an end in our attempt to control seduction. The relations between men and women are so complex and far-reaching that a case such as Ewanchuk can generate heated debate about what is legitimate persuasion and what constitutes a violation of a woman’s bodily integrity. We have no reason to assume that Canadians have reached some level of perfection immune from historical change. While the seduction tort could never survive in a society where women were independent persons seizing equality in the workplace and seeking out the personal relationships they chose, it seemed as if Canadian society is on the cusp of a countersexual revolution in which attempts to induce sex in selected circum-

208

epilogue

stances are now considered criminal. The power of the law has threatened to intervene, as it had many times in history, to make moral judgments on personal relations. Indeed, it may well be that we are on the verge of a new social purity that has its roots, not in Christian morality, but in a strict code of conduct that presumes female vulnerability and male aggression. The repeal of a few laws has not, of course, brought an end to seduction. The human condition is such that persuasion and enticement to have illicit sex will always be with us. What has changed over time is how the law seeks to control intimacy While there has been a movement in modern civil law to retreat and cede control over seduction to the individuals concerned, it is becoming apparent that earlier views on the governance of seduction – that society has a real interest to be protected – in the guise of sexual assault and sexual harassment has been making a determined comeback. It is even possible that in a new form we may eventually see the return of civil seduction. American society has always had a formative influence on Canada, and in the late 1990s a series of heartbalm cases renewed interest in the tort. Foremost among these was Dorothy Hutelmyer’s 1997 North Carolina lawsuit against the woman who had seduced her husband. Hutelmyer had been enjoying the advantages of middle-class family life until the defendant Cox, her husband’s secretary, initiated a campaign to steal his affections. Hutelmyer sued for criminal conversation and alienation of affections and collected $1 million in damages.1 Some feminists cheered this result as a victory for ‘first wives’ against younger women who gained the monetary advantage of marrying an older man. Others noted that it put a price tag on the parties to a marriage and denied the modern concept of marriage as a partnership.2 Two years later, a Mississippi court upheld the viability of alienation of affections for ‘the marital relationship is an important element in the foundation of civil society.’3 Heartbalm may well be making a return to American civil law, especially in a new moral climate where there is considered some merit in providing legal protection for marriages and defending the family. Even while Canadian society seems content with the changes of the 1960s which removed the state from any role in consensual sexual matters among adults, there is a residual concern that seducers are going unpunished. In 1999 a major Canadian newspaper bemoaned the loss of the seduction tort and that advocates of ‘speed seductions’ (who conducted seminars instructing men on how to attract and then discard women as fast as possible) went unpunished. The article cited a Winnipeg woman in her mid-thirties who was the victim of such a sexual

Epilogue 209

conquest. After she was exploited, she suffered from physical and mental problems and was further disappointed to learn from a lawyer that she had no legal remedy against her seducer.4 Some litigants have even tried, with limited success, to resuscitate the tort. In 1986 an Ontario Court allowed a claim that was identical to criminal conversation on the basis that it had caused ‘emotional distress’ to the plaintiff.5 In 1999 a British Columbia woman sued a former lover for the ‘loss of self-esteem’ caused by her abandonment. Innovative lawyers are seeking out new headings to advance what is in reality an ancient claim. After a Toronto woman discovered that her lover was married, she alleged that she was ‘assaulted by the defendant each and every time they had sexual activity since her consent could not be said to have been free, voluntary and informed.’ A consensual relationship between adults was thereby transformed into a ‘sexual battery.’ The rise of this new tort of sexual battery is one of the legal phenomena of the late twentieth century. It includes situations where women have been assailed but also takes in instances where a power imbalance or mere trickery led them to have sex. One academic has noted that sexual battery encompasses situations where women have been willing participants in activity that was later the subject of a lawsuit and to that extent, ‘there is a possibility that parallels to the present situation might be found by examining the action for seduction.’6 Are these cases an indication that the heartbalm torts served some deep human need for vindication? Did they not reflect a genuine sense that there should be accountability and fault in domestic arrangements? For most of human history, deceiving a woman into having sex or seducing a spouse has been considered a wrong. It is our current society that is the anomaly by pretending that these acts do not cause any grievous loss. One only has to go back to the Middlesex assizes of 1877 to see how therapeutic a seduction claim could be in seeing that a deceiver was punished and in removing, at least in part, the stain to family and personal honour. Does not providing a legal deterrent to extramarital affairs in order to preserve family solidarity serve some useful social purpose? Why not punish the seducer who deceives and exploits a person into entering into a short-term sexual relationship for his or her own gratification? A return of seduction law, likely framed under a modern title such as deliberate psychological trauma or sexual battery might be considered a progressive policy and a useful social goal. The difficulty, as always, would be that it would require a fallible legal system to attempt to evaluate and put a monetary figure on that most elusive of damages, the broken heart.

This page intentionally left blank

Appendix A

The following is a summation of available reported seduction cases from the law reports, judges’ benchbooks, and newspaper reports. It is not a comprehensive list and is meant to be representative of the periods described. Period

Number of cases

Average rounded award

1823–9

5 cases 1 dismissed

£145

1830–9

16 cases 1 dismissed 3 no result

£85

1840–9

14 cases 1 dismissed 4 no result

£90

1850–8

8 cases 1 no result

£140

1859

8 cases 1 dismissed 1 no result

$75

1860–9

27 cases 2 dismissed 5 no result

$340

1870–9

45 cases 8 dismissed 1 settled

$445

1880–9

37 cases 8 dismissed 2 no result

$600

1890–9

14 cases 3 dismissed

$380

Appendix B

Summation of available breach of promise of marriage cases. Period

Number of cases

Average rounded award

1860–79

11 cases 1 dismissed

$880

1880–9

13 cases 1 dismissed

$1,000

1890–9

12 cases none dismissed

$550

Notes

Chapter 1. Fiction of the Law 1 Colonial Advocate (York), 13 May 1826. 2 Charles Lindsey, The Life and Times of William Lyon Mackenzie, Appendix B, Mackenzie’s Speech in His Own Defence (Toronto: Randall, 1862), I: 321. 3 Colonial Advocate (Queenston), 5 August 1824. 4 J.C. Dent, The Story of the Upper Canadian Rebellion (Toronto: Robinson, 1885), 75–6, quoting from W.L. Mackenzie’s Sketches of Canada and the United States (London, 1833), 405–9. 5 Colonial Advocate, 19 August 1824. 6 Wilfrid Hooper, The Law of Illegitimacy (London: Sweet and Maxwell, 1911), 13. 7 William Holdsworth, A History of English Law (London: Methuen, 1966), 8: 427–9; 13: 522–3. 8 Anne Lawrence, Women in England, 1500–1760: A Social History (London: St Martin’s Press, 1994), 82–3. 9 [1600] Cro. Eliz. 770, 78 ER 1001. 10 [1653] 1 Sty. 398, 82 ER 809. 11 Robert Marys’s Case (1612), 9 Co. Rep. 111b, 77 ER 895: ‘If my servant be beaten, the master shall not have any action for this beating, unless the battery is so great that by reason thereof he loses the services of his servant.’ See also Gray v. Jefferies, [1587] Cro. Eliz. 55, 78 ER 316. 12 Jones v. Brown, (1794) 1 Esp. 217, 170 ER 334.

214 notes to pages 7–10 13 Tullidge v. Wade, [1769] 3 Wils. 18, 95 ER 909. 14 Bedford v. McKowl, [1800] 3 Esp. 119, 170 ER 560. 15 Eager v. Grimwood (1847), 16 LJ Ex. 236. One exception to this rule was Manvell v. Thompson (1826) 2 C&P 303, 172 ER 137. In this case, as a result of the seduction, the woman required medical care but did not become pregnant. While damages were awarded, this result was not applied to subsequent cases. 16 Grinnell v. Wells (1844) 7 Man. & G. 1033, 135 ER 419. 17 Postlethwaite v. Parkes (1766) 3 Burr 1878, 97 ER 1147. 18 Dean v. Peel (1804) 5 East 45, 102 ER 986. 19 Satterthwaite v. Dewhurst (1785) 4 Dougl. 315, 99 ER 899. 20 Bennett v. Allcott (1787) 2 TR 166, 100 ER 90. 21 Mary Wollstonecraft, Vindication of the Rights of Woman (1792, reprinted Hammondsworth: Penguin 1978), 164 and 250. 22 18 Eliz. c. 3 (1576); later amended by 39 Eliz. c. 3 (1597) and 43 Eliz. c. 2 (1601). 23 Holdsworth, English Law, 4: 401; see also J.R. Poynter, Society and Pauperism: English Ideas on Poor Relief, 1795–1834 (London: Routledge and Kegan Paul, 1969). 24 Thomas Turner, The Diary of a Village Shopkeeper, 1754–1765, ed. David Vaisey (London: Folio Society, 1998), 111–17. 25 Brereton Greenhous, ‘Paupers and Poorhouses: The Development of Poor Relief in Early New Brunswick,’ Histoire sociale / Social History 1 (1968), 103; see also James M. Whalen, ‘The Nineteenth Century Almshouse System in Saint John County,’ ibid. 7 (1971), 5. 26 A.W.H. Eaton, The History of King’s County (Belleville, 1972), 161–2. 27 32 Geo. III, c. 3 (1792) (New Brunswick). 28 Robert M. Lewis, ‘Representative Beggars of a Set of Paupers; the Politics of Social Welfare and Traditional Newfoundland,’ Newfoundland Studies 13 (1997), 142. 29 Queen v. Murphy (1842) 3 NBR 524; Regina v. McCoubry (1847) 5 NBR 384. 30 Simpson v. Read (1858) 4 NBR 52. 31 32 Geo. III, c. 1 (1792) (Upper Canada). 32 Russell Smandych, ‘Colonial Welfare Laws and Practices: Coping without an English Poor Law in Upper Canada, 1792–1837,’ Manitoba Law Journal 23 (1996), 215; see also Rainer Baehre, ‘Paupers and Poor Relief in Upper Canada,’ Canadian Historical Association: Historical Papers (1981): ‘The main catalyst for this ideological shift (rejection of the poor law) was the spiralling cost of relief in the early nineteenth century which was regarded as an obstacle to the accumulation of capital’ (p. 58).

Notes to pages 11–14

215

33 Rosalind Mitchison, Coping with Destitution: Poverty and Relief in Western Europe (Toronto: University of Toronto Press, 1991), 59. 34 Smandych, ‘Colonial Welfare Laws,’ 224. 35 Elliott v. Nicklin (1818), 5 Price 641, 116 ER 719. 36 Revill v. Sattergitt, [1816] Holt 451, 171 ER 301. Chapter 2. The Market of Shame 1 Aileen Dunham, Political Unrest in Upper Canada, 1815–1836 (Carleton Library; Toronto: McClelland and Stewart, 1963), 85–6; see also Gerald Craig, Upper Canada: The Formative Years, 1784–1841 (Toronto: McClelland and Stewart, 1963), 34–5. 2 John Goldie, Diary of a Journey through Upper Canada, 1819 (privately published). 3 Anna Jameson, Winter Studies and Summer Rambles in Canada (London, 1838; Toronto: Coles reprint, 1972), II: 217. 4 Catharine Parr Traill, The Backwoods of Canada (London: T. Nelson, 1892; reprint Toronto: McClelland and Stewart, 1929), 136. 5 G.P. deT. Glazebrook, Life in Ontario (Toronto: University of Toronto Press, 1968), 31–2; see also Adam Shortt, Life of the Settler in Western Canada before the War of 1812 (Kingston: Queen’s University Press, 1914), 3–4. 6 Janet Watt, ‘An Architectural Tour of Sutton,’ York Pioneer (1965) 14. 7 Edwin C. Guillet, Pioneer Days in Upper Canada (Toronto: University of Toronto Press, 1964), 9–21. 8 Edwin C. Guillet, Pioneer Farmer and Backwoodsman (Toronto: University of Toronto Press, 1963), I: 56. 9 Henry Reed Stiles, Bundling: Its Origins, Progress and Decline in America (1861; reprinted by Applewood, Cambridge, n.d.), 69. 10 Susanna Moodie, Roughing It in the Bush, a Forest Life in Canada (Toronto: McClelland and Stewart, 1923), 87. 11 R. v. Gallagher, 19 September 1845, J.B. Robinson benchbook, Kingston assizes; R. v. Hiram, 31 March 1843, J.B. Robinson benchbook, Home District assizes. 12 R. v. Hewison, 1 October 1847, J.B. Robinson benchbook, Hamilton assizes. 13 Bedstead v. Soper, April 1847, J.B. Robinson benchbook, Brockville assizes. 14 Carson v. Webb, 1 September 1830, J.B. Macaulay benchbook, Midland District assizes. One witness describes the premises thus: ‘The House Consists of Kitchen and Bedroom.’ 15 Beadstead v. Wyllie, [1823] Taylor UCKB 60. 16 Philippe Ariès, Centuries of Childhood: A Social History of Family Life (New York: Knopf, 1962), 394–5.

216 notes to pages 15–19 17 Tulk v. Beaman, 26 May 1838, J.B. Robinson benchbook, Home District assizes. 18 Marie-Aimée Cliche, ‘Unwed Mothers, Families and Society during the French Regime’ in Bettina Bradbury, ed., Canadian Family History: Selected Readings (Toronto: Copp Clark Pitman, 1992), 43. 19 Allan Greer, Peasant, Lord, and Merchant: Rural Society in Three Quebec Parishes, 1740–1840 (Toronto: University of Toronto Press, 1985), 57. 20 Cliche, ‘Unwed Mothers,’ 41. 21 Ibid., 50–1. 22 B. Light and A. Prentice, Pioneer and Gentlewoman of British North America, 1713–1867 (Toronto: New Hogtown Press, 1980). 23 Gill v. Brown (1841), 6 UCKB (OS), 142. 24 McLean v. Ainslie (1843), 6 UCKB (OS), 456. 25 Elliott West, Growing up with the Country (Albuquerque: University of New Mexico Press, 1989), 74. 26 Light and Prentice, Pioneer and Gentlewoman, 5. 27 Donnell v. Hughson, 13 October 1859, reported in Kingston Weekly British Whig. 28 N. Kasserman, Fall River Outrage: Life, Murder and Justice in Early New England (Philadelphia: University of Philadelphia Press, 1986), 33. 29 T. Hareven and M. Vinovskis, eds., Family and Population in Nineteenth Century America (New York: Princeton University Press, 1978), introduction, 17. 30 Maselles v. Swackhammer, 4 November 1858, W.H. Draper benchbook. 31 J.B. Robinson benchbook, Western District assizes, 12 August 1833. 32 Esterlin, Alter, and Condran, ‘Farms and Farm Families in Old and New Areas: the Northern States in 1860’ in Hareven and Vinovskis, eds., Family and Population, 41. 33 Carson v. Webb. 34 Coulthard v. Wood, 29 October 1846, J.B. Robinson benchbook, Peterborough assizes. 35 J.E. Sanderson, The First Century of Methodism in Canada (Toronto: W. Briggs, 1908), I: 54. 36 Egerton Ryerson, The Story of My Life (Toronto: W. Briggs, 1883), diary entry of 23 September 1827. 37 Jameson, Winter Studies, 216. 38 OA, Stuart Papers, John Stuart to James Stuart, 28 June 1804. 39 W.H. Higgins, The Life and Times of Joseph Gould (Toronto, 1887), 88–9. 40 OA, Upper Canada Sundries, RG 5, A1, vol. 90, Sherwood report of the case: ‘Neither the magistrate applied to nor the witnesses were aware that

Notes to pages 20–30

41 42 43 44 45 46 47 48 49 50 51 52 53

54 55 56 57 58

59

217

the act of the convict answered to any offence punishable in law.’ OA, Macaulay Papers, J.B. Robinson to John Macaulay, 13 September 1810. Beadstead v. Wyllie (1823), 62. Stiles, Bundling, 13, 50–1. Alva Myrdal, The Swedish Experiment in Democratic Family and Population Planning (Boston, Mass.: MIT Press, 1968), 42–3. Colonial Advocate (Queenston), 19 August 1824. Henry B. Parker, ‘New England in the 1730s,’ New England Quarterly 3 (1930), 407. E.J. Dingwall, The American Woman: An Historical Study (New York: Rinehart, 1957), 38. Hogle v. Ham, [1825] Taylor UCKB 248. Kingston Chronicle, 2 September 1825; see also The Upper Canada Herald (Kingston) 30 August 1825. Ibid. Dingwall, The American Woman, 252. R.J. Morgan and R.L. Fraser, ‘Sir William Campbell,’ Dictionary of Canadian Biography (Toronto: University of Toronto Press, 1987), VI: 116. J.B. Robinson, Canada and the Canada Bill (London, 1840; reprinted New York: Johnson Reprint Co., 1967), I: 42–3; Macaulay Papers, J.B. Robinson to John Macaulay, 8 December 1835. Brantford Expositor, 15 October 1858. 19 September 1839, J.B. Macaulay benchbook, Prince Edward District assizes. L’Esperance v. Duchene (1849), 7 UCQB 146 at 148. K.H. Connell, ‘Illegitimacy before the Famine,’ Irish Peasant Society: Four Historical Essays (London: Oxford University Press, 1968), 51. Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada (Toronto: University of Toronto Press / Osgoode Society, 1991), 56. Monk v. Casselman (1835), 4 UCKB (OS), 336 at 338. Chapter 3. Women of Quality and Lewd Mothers

1 Daniel Defoe, Moll Flanders (New York: W.W. Norton, 1973), 27. 2 Anna Jameson, Winter Studies and Summer Rambles in Canada (London 1938; Toronto: Coles reprint, 1972), I: 113–16. 3 This is how Mrs Powell evaluated a potential daughter-in-law’s family: their family is ‘the most respectable in the country,’ she is the daughter of a lieutenant-colonel and is ‘in the habit of the most rigid economy.’ See

218 notes to pages 30–5

4 5 6 7 8 9 10 11

12 13 14

15

16 17 18 19 20

21 22

Metropolitan Toronto Library, Powell Papers, Anne Powell to George Murray, 10 July 1808. York, Upper Canada Gazette, 29 May 1823. Edith Firth, ‘Anne Murray Powell,’ Dictionary of Canadian Biography (Toronto: University of Toronto Press, 1988), VII: 639. Powell Papers, Anne Powell to George Murray, 13 July 1807. Lionel Rose, The Massacre of the Innocents: Infanticide in Britain 1800–1939 (London: Routledge & Kegan Paul, 1986), 19. Powell Papers, Anne Powell to George Murray, 10 July 1808. Ibid., 19 October 1817. Ibid., 1 April 1818. R v. Kris, September 1834, J.B. Macaulay benchbook, London District assizes: in testimony ‘P.[risoner] said she was to go to the States – gave no reason – it might be shame.’ G.W. Spragge, ed., John Strachan Letterbook, 1812–1834, entry for December 1813. Bureau of the Provincial Archives, 1912, 8th Report, House of Assembly, 19 February 1810, 323. Russell Smandych, ‘Colonial Welfare Laws and Practices: Coping without an English Poor Law in Upper Canada, 1792–1837,’ Manitoba Law Journal 23 (January 1996), 223. N.P. Willis, Canadian Scenery (London, 1842), quoted in Martha J. Bailey, ‘Servant Girls and Masters: The Tort of Seduction and the Support of Bastards,’ Canadian Journal of Family Law 10 (Fall 1991), 154. Robert L. Fraser, ‘Mary Thompson,’ Dictionary of Canadian Biography (Toronto: University of Toronto Press, 1987), VI: 771. Weekly Register, 18 August 1825. Robert L. Fraser, ‘Angelique Pilotte,’ Dictionary of Canadian Biography (Toronto: University of Toronto Press), V: 672–4. R. v. Graham, August 1830, J.B. Macaulay benchbook, Johnstown District assizes. Constance Backhouse, ‘Desperate Women and Compassionate Courts: Infanticide in Nineteenth-Century Canada,’ University of Toronto Law Journal 34 (Fall 1984), 447. She concludes that women who committed infanticide were treated leniently by the courts, as ‘the male legislators, lawyers, judges and jurors who controlled the legal system did not have to be concerned about these women in order to ensure the proper continuation of male blood lines.’ (1831) 2 Will. IV, c. 1. Pearce v. Wilkes, 26 September 1832, J.B. Macaulay benchbook, Gore District assizes.

Notes to pages 35–43

219

23 McElwee v. Darling (1853) Montreal Condensed Reports 8. See also Chevrier v. Dupreuil (1911) 20 Rapports Judiciares de Québec, 284: ‘Sous l’ancien droit, il n’y a pas de doute que l’action en déclaration de paternité pouvait être portée par la mère de l’enfant ... sans qu’elle fut obligée de ce faire nommer tutrice, et la preuve de la paternité était très facile’ (p. 285). 24 Bilodeau v. Tremblay (1871) La Revue Légale, III: 445. 25 Upper Canada Penal Act (1833) 3 Will. IV c. 3; Robinson’s comments on the Penal Act are from a grand jury address in Sandwich in Canadian Emigrant, 17 August 1833. 26 (1836) v. 6, Will. IV, c. 44. 27 Rose, Massacre of the Innocents, 30–9; see also Poor Law (1834), 4 & 5 Will. IV, c. 76; s. 69 of the act specifically repealed the mother’s right to charge a putative father. See also Derek Fraser, The New Poor Law in the Nineteenth Century (New York: St Martin’s Press, 1976), 1–5. 28 Rose, Massacre of the Innocents, 36. 29 (1837) 7 Will. IV, c. 8. 30 Jameson, Winter Studies and Summer Rambles, I: 156. 31 G.P. deT. Glazebrook, Life in Ontario: A Social History (Toronto: University of Toronto Press, 1968), 100; Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada (Toronto: University of Toronto Press / Osgoode Society, 1991), 60. 32 Constance Backhouse, ‘The Tort of Seduction: Fathers and Daughters in Nineteenth Century Canada,’ Dalhousie Law Journal 10 (June 1986), 50–1. 33 ‘The Law of Seduction,’ Upper Canada Law Journal (1862), 310. 34 Anderson v. Ryan (1846), 8 Ill. 583. See also M.B.W. Sinclair, ‘Seduction and the Myth of the Ideal Woman,’ Law and Inequality 5 (May 1987), 43–6. 35 Lawrence M. Friedman, A History of American Law (New York: Simon and Schuster, 1973), 340–7. 36 Lea VanderVelde, ‘The Legal Ways of Seduction,’ Stanford Law Review 48 (April 1996), 893: ‘This reform passed in some eleven states apparently by simple oversight with states adopting the Field Codes in their entirety and without any homegrown state efforts at legal reform.’ 37 Watson v. Watson (1883), 49 Michigan 540 at 544. 38 Biggs v. Burnham (1843), 1 UCQB 106 at 108. 39 Whitfield v. Todd (1843), 1 UCQB 223 at 225. Chapter 4. Feudalism Triumphant 1 J.W. Grant, A Profusion of Spires: Religion in Nineteenth-Century Ontario (Toronto: University of Toronto Press, 1988), 154.

220 notes to pages 43–50 2 William Westfall, Two Worlds: The Protestant Culture of Nineteenth-Century Ontario (Montreal: McGill-Queen’s University Press, 1989), 14. 3 13, 14 Vic., c. 65; 14 & 15 Vic., c. 120; and 16 Vic., c. 184 (Canada). 4 W. Peter Ward, ‘Unwed Motherhood in Nineteenth-Century English Canada,’ Canadian Historical Association Historical Papers (1981), 45. 5 Ibid., 38. 6 Peter Oliver, ‘Terror to Evil-Doers’: Prisons and Punishments in NineteenthCentury Ontario (Toronto: University of Toronto Press / Osgoode Society, 1998): ‘Deterrence encompassed the most essential purpose of the criminal law; its absence suggested weakness which, if unchecked, must, as Robinson believed, eventually undermine law, order and the entire social structure’ (pp. 96–7). The statute itself is An Act to Reduce the Number of cases in which Capital Punishment may be inflicted, 3 Will. IV, c. 3 (Canada). 7 Kimball v. Smith (1847), 5 UCQB 32. 8 (1849), 7 UCQB 146. 9 Ibid., at 148–9. 10 Snure v. Gilchrist (1863), 23 UCQB 81 at 83. 11 L’Esperance v. Duchene at 152–3. 12 Lake v. Bemiss (1854), 4 UCCP 430 at 432. 13 Cromie v. Skene (1869), 19 UCCP 328 at 335–6. 14 Ibid., at 346. 15 Ibid., at 333. 16 Kirk v. Long (1857), 7 UCCP 363. 17 Ball v. Goodman (1859), 10 UCCP 174; Smart v. Hay (1862), 12 UCCP 528 at 530; Hicks v. Ross (1865), 25 UCQB 50 at 53. 18 Westacott v. Powell (1865), 2 UCEA 525. 19 Ibid., at 528. 20 Ibid., at 532. 21 Graham Parker, ‘Sir Adam Wilson,’ Dictionary of Canadian Biography (Toronto: University of Toronto Press, 1990), XII: 1107–8. 22 Westacott v. Powell, at 537–9. 23 Constance Backhouse, ‘The Tort of Seduction: Fathers and Daughters in Nineteenth-Century Canada,’ Dalhousie Law Journal 10 (June 1986), 63. Ironically, while Backhouse condemned the Seduction Act for freezing ‘the legal relationship, between fathers and daughters into a feudal proprietary mold’ (p. 50) she likewise condemns the judiciary’s refusal to implement the act, not because the judges opposed a patriarchal hierarchy, but rather because they feared that it could become a vehicle for extortion. ‘Fear that wanton women might fabricate stories and extort

Notes to pages 90–5 221

24 25 26 27 28

29

30 31 32

33

34

35 36

money from alleged seducers stood in the way of their willingness to recognize the male property interests of their fathers’ (p. 63). This analysis presumes a patriarchal agenda behind the act which the judges tacitly agreed with but which they frustrated as they feared that women might use it for their own ends. There is no public record to substantiate the first proposition that the act was intended to protect the property rights of fathers. If anything, the preamble of the act indicates the opposite. The second proposition is largely refuted by several judicial decisions in which it is stated that the loss of services requirement was applied due to the fact that it had not been specifically abolished by the statute. L’Esperance v. Duchene at 146. Seduction Act (1852) SPEI, 15 Vic., c. 23. McInnis v. McCallum, [1854] Peter, PEI Reports 72. Backhouse, ‘The Tort of Seduction,’ 55. Peter Oliver, ed., The Conventional Man: The Diaries of Ontario Chief Justice Robert A. Harrison, 1856–1878 (Toronto: University of Toronto Press / Osgoode Society, forthcoming). On land values in Middlesex: Instrument No. 3468 – 50 acres London township, $40 per acre Instrument No. 5652 – 50 acres London township, $60 per acre Instrument No. 9640 – 100 acres Westminster township, $60 per acre. Instrument No. 6623 – 50 acres North Dorchester township, $56 per acre. Instrument No. 6416 – 50 acres North Dorchester township, $23 per acre. Instrument No. 577 – 50 acres London township, $32 per acre. Colwell v. Nichol, London Daily Free Press, 24 October 1877. Hamilton v. Taylor ibid., 25 October 1877. Barbara Welter, ‘The Cult of True Womanhood, 1820–1860,’ American Quarterly 18 (Summer 1966), 151–74; and Linda Kerber, ‘Separate Spheres, Female Worlds, Women’s Plans,’ Journal of American History 75 (June 1988), 9–39. Elizabeth Jane Errington, Wives and Mothers, Schoolmistresses and Scullery Maids: Working Women in Upper Canada, 1790–1840 (Montreal: McGill– Queen’s University Press, 1995), 23–4. Trent University Archives 84-020-file 13, as quoted in Bernadine Dodge, ‘Let the Record Show: Women and Law in the United Counties of Durham and Northumberland, 1845–1895,’ Ontario History 92 (Autumn 2000), 136–7. Ward, ‘Unwed Motherhood,’ 48. OA, RG 22-3789, Northumberland and Durham Affiliation Affidavits; RG 22-2987, Leeds and Grenville Affiliation Affidavits.

222 notes to pages 55–63 37 Cane v. Reid (1851), 2 UCCP 342. 38 Brantford Expositor, 15 October 1858: see the appeal, McKay v. Burley (1859) 21 UCQB 251; Robinson’s comments are at 253. 39 Karen Lystra, Searching the Heart: Women, Men and Romantic Love in Nineteenth Century America (Oxford: Oxford University Press, 1989). Chapter 5. Rewarding the Insinuating Arts 1 Barbara Welter, ‘The Cult of True Womanhood, 1820–1860,’ American Quarterly 18 (Summer 1966), 155–6. 2 Brantford Expositor, 21 October 1859. 3 4 November 1858, William Henry Draper benchbook, Maselles v. Swackhammer. 4 (1862), 21 UCQB 202. 5 (1862), 22 UCQB 87. 6 Brantford Expositor, 24 September 1875. 7 Longworth v. Robinson, Huron Signal (Goderich), 26 April 1876. 8 Grummet v. Longworth, ibid., 19 October 1865. 9 London Daily Advertiser (London), 11 November 1875. 10 Globe (Toronto), 12 January 1875. 11 Barrie Northern Advance, 30 September 1869. 12 Carole B. Stelmack, ‘Robert Alexander Harrison,’ Dictionary of Canadian Biography (Toronto: University of Toronto Press, 1972), X: 336. 13 McCreary v. Grundy (1875), 39 UCQB 316 at 318 and 325. 14 Anderson v. Rannie (1862), 12 UCCP 538–9. 15 Hamilton Daily Spectator, 29 October 1859. 16 There are cases of women independently advancing the seduction case when they had long ago left the family home, and for that matter when their fathers had remained in England. In an 1864 case, the seduced female ‘instituted the present case herself, her father saying he would have nothing to do with it.’ See McRitchie v. Gant, reported in the Huron Signal, 21 April 1864. 17 See Helen Boritch, Fallen Women: Female Crime and Criminal Justice in Canada (Toronto: Nelson, 1997), 138–9. 18 Jill Newton Ainsley, ‘Some Mysterious Agency: Women, Violent Crime, and the Insanity Acquittal in the Victorian Courtroom,’ Canadian Journal of History 35 (April 2000), 38; on the partiality of the justice system towards women, see Carolyn Strange, Toronto’s Girl Problem: The Perils and Pleasures of the City, 1880–1930 (Toronto: University of Toronto Press, 1995). She cites the case of Clara Ford, where the evidence of her having deliberately

Notes to pages 63–9 223

19 20 21 22 23 24 25 26 27 28 29 30 31 32 33

34

35

murdered a man seemed conclusive (pp. 79–83) However, she was released for, as the Toronto World of 8 May 1895 reported, ‘there are few men so little touched by sentiment as not to shrink from the idea of hanging a woman.’ St. John Globe, cited in Halifax Evening Reporter, 5 November 1975. Palmby v. McCleary (1886), 12 OR 192 at 195. Globe, 21 and 22 March 1883. White v. McIntosh, reported in Globe, 25 October 1879. Walmsley v. Mitchell (1884), 5 OR 427 at 428. Dickey v. Copeland, 2 May 1876, OA, RG 22 Series 390, G.W. Burton benchbooks. Mulligan v. Thompson, 23 OR 54 at 61. ‘Abandoned Women,’ Essex Record 23 April 1875. On Ontario sessional papers, see Ruth A. Olson, ‘Rape – An Un-Victorian Aspect of Life in Upper Canada,’ Ontario History 68 (June 1976), 75–92. Vincent v. Sprague (1846), 3 UCQB 283 at 285. E. v. F. (1905), 10 OLR 489. Brown v. Dalby (1850), 7 UCQB 160 at 163. Walsh v. Nattrass (1869), 19 UCCP 453 at 457. Globe, 21 January 1870. See Peter Oliver, The Conventional Man: The Diaries of Ontario Chief Justice Robert A. Harrison 1856–1878 (Toronto: University of Toronto Press / Osgoode Society, forthcoming), diary entry for 21 January 1870. For example, during the Huron fall assizes of 1874, two cases were settled in this manner: Lamont v. McLean for $200 and Brown v. Hays for $215, reported in Huron Signal (Goderich), 11 November 1874. See Appendix A for statistics on average awards for high awards; see Robinson v. Williams (1870) for $2,000; Hope v. Davidson (1873) for $1,600; Fitzhenry v. Murphy (1878) for $2,000. It is difficult to give modern equivalents to the seduction awards and to modern eyes, the amounts may not seem significant. But the amounts were substantial for the times. The average award of £140 during the 1850s was almost enough to buy a farm lot. During the 1850s one land speculator was buying two-hundred-acre farm lots in Essex County for £200. See Patrick Brode, Alexander Cameron and the Flowering of the County of Essex (ECHS Paper No. 4, 1987: 4–5). Even this figure could vary. As a result of the economic crash of 1858, farms would sell for far less, and seduction awards (if the plaintiffs could collect on them) would be even more valuable. By the 1870s, as was indicated in chapter 4, note 29, equipped farms with buildings could sell for about $20 to $50 an acre in Middlesex County.

224 notes to pages 69–78

36 37 38 39 40 41 42 43 44 45 46 47

48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66

An award of $1,000 could therefore purchase a significant capital item. In towns, building lots could sell for about $125 to $150 (see Essex Record 4 September and 30 October 1874 on building lots for railway workers). A jury award of $445 was therefore an appreciable sum. Beattie v. Dooly, reported in Montreal Gazette, 8 November 1850. Ferguson v. Veitch (1880) 45 UCQB 160 at 161. Wilson v. Ashbury, reported in True Banner (Dundas) 28 October 1874. Brantford Expositor, 1 October 1875. Lea Vander Velde, ‘The Legal Ways of Seduction,’ Stanford Law Review 48 (April 1996), 888. Kendrick v. McCrary (1852), 11 Ga. 603. Camp v. Blows, reported in the Hamilton Daily Spectator, 13 September 1857. Brantford Expositor, 1 October 1875. Huron Signal, 26 April 1876. Globe, 12 January 1878. Seduction Act, 39 Vic., SPEI 1876, c. 4. PEI Public Archives and Records Office, Record Group 6.1, Supreme Court Series Listing Series 20, Petition of Malvina Reynolds, 15 August 1876. Hardy v. Atherton (1881), 7 QB 264 at 269. Ex. Parte Reid (1896), 34 NBR 133. Saint John Daily News, 6 November 1874. Overseers of the Poor v. Davidson (1882), 16 NSR 58. Mary Ellen Wright, ‘Unnatural Mothers: Infanticide in Halifax, 1850–1875,’ Nova Scotia Historical Review 7, no. 2 (1987), Halifax, 17. Acadian Recorder (Halifax), 19 February 1869. 47 Vic., c. 19. Toronto Leader 16 April 1859. Alterman v. Smith (1854), 4 UCCP 500. Ford v. Gourlay (1878), 42 UCQB 552 at 558. Gant v. Glen, reported in Globe, 21 October 1870. Scott v. Read, reported in Barrie Northern Advance, 1 May 1873. Bailey v. Hannon, reported in Daily Spectator, 2 April 1859. Manley v. Field (1859), TCB (NS) 96, 141 ER 751 at 752. Grenell v. Wells (1844), 7 M. Gr. at 1044. Canada Law Journal 10 (NS) (May 1874), 132–3. Harvey v. Burns, 19 September 1881, Justice Galt benchbooks, RG 22, box 153. Barrie Northern Advance, 22 September 1881. Canada Law Journal 18 (July 1882), 151.

Notes to pages 78–81

225

67 An Act Respecting the Action of Seduction, RSO 1877 c. 57, and An Act Respecting the Support of Illegitimate Children, RSO 1877 c. 131. 68 McKenzie v. McLean (1884), 6 OR 428 at 430. 69 Canada Law Journal (20 December 1884), 414. Chapter 6. Virtue by Statute 1 Quoted in Gertrude Himmelfarb, The De-Moralization of Society: From Victorian Virtues to Modern Values (New York: Knopf, 1995), 61–6; see also Deborah Gorham, The Victorian Girl and the Feminine Ideal (Bloomington: Indiana University Press, 1982), 54. 2 Dominion Illustrated 6, no. 137 (14 February 1891), 158. 3 Sharon Anne Cook, ‘Through Sunshine and Shadow’: The Woman’s Christian Temperance Union, Evangelicalism and Reform in Ontario, 1874–1930 (Montreal: McGill-Queen’s University Press, 1995). On the WCTU, see also Wendy Mitchinson, ‘The WCTU, “For God, Home and Native Land”: A Study in Nineteenth Century Feminism,’ in R.D. Francis and D.B. Smith, eds., Readings in Canadian History, 2nd ed. (Toronto: Holt Rhinehart, 1986), 322–34; Sharon Anne Cook, ‘“Do not ... do anything that you cannot unblushingly tell your mother”: Gender and Social Purity in Canada,’ Histoire sociale / Social History 30 (November 1997), 215; and Mariana Valverde, The Age of Light, Soap and Water: Moral Reform in English Canada, 1885–1925 (Toronto: McClelland and Stewart, 1991), 16–19. 4 Globe, letter of 26 March 1883 from ‘A Friend of Woman.’ 5 William Blackstone, Commentaries on the Laws of England (London, 1844), 4: 65. 6 See Graham Parker, ‘The Legal Regulation Sexuality and the Protection of Females,’ Osgoode Hall Law Journal 21 (June 1983), 187–244. 7 Lawrence M. Friedman, Crime and Punishment in American History (New York: Basic Books, 1993), 127. 8 On the truncation of the American debate on sexuality, see Helen Lefkowictz Horowitz, ‘Victoria Woodhull, Anthony Comstock, and the Conflict over Sex in the United States in the 1870s,’ Journal of American History 87 (September 2000), 403. 9 SNS 1759, c. 13, s. 7; SNB 1829, c. 21, s. 11; RSPEI 1836, c. 22, s. 11; RSNB 1854, c. 145. 10 Queen v. Ellis, reported in St. John Daily News, 24 October 1882. 11 R.R. Hett, ‘John Charlton Liberal Politician and Free Trade Advocate’ (Ph.d. thesis, University of Rochester), 1969; see also the Charlton diaries and unpublished manuscript in the Thomas Fisher Rare Book Library, University of Toronto.

226 notes to pages 82–90 12 Canada, House of Commons, Debates, 17 February 1882, 47; 13 March 1882, 326–7. 13 Thomas Fisher Rare Book Library, John Charlton Papers, manuscript 110, vol. I. 14 Canada Law Journal 18 (15 April 1882), 151. 15 House of Commons, Debates, 6 March 1883, 123. 16 Karen Dubinsky, ‘“Maidenly Girls” or “Designing Women”? The Crime of Seduction in Turn-of-the-Century Ontario’ in Franca Iacovetta and Mariana Valverde, eds, Gender Conflicts: New Essays in Women’s History (Toronto: University of Toronto Press, 1993), 49. 17 Lush v. Bond, reported in Daily Mail (Toronto), 22 March 1883. 18 House of Commons, Debates, 15 March 1883, 222–3. 19 Peter Gay, The Bourgeois Experience: Victoria to Freud, Vol. 2, The Tender Passion (London: Oxford University Press, 1986), 417. 20 House of Commons, Debates, 7 February 1884, 142. 21 Ibid., 1 April 1886, 442. 22 Canada, Senate, Debates, 18 April 1883, 261. 23 Globe, 23 March 1883. 24 Daily Mail, 26 March 1883. 25 Hamilton Spectator, 24 March 1883. 26 Globe, 4, 13 April 1883. 27 Toronto World, 28 March 1883; see also Halifax Morning Herald, 31 March 1883. 28 Senate, Debates, 18 April 1883, 259, 268–70. 29 Globe, 22 April 1883. 30 Karen Dubinsky, Improper Advances: Rape and Heterosexual Conflict in Ontario, 1880–1929 (Chicago: University of Chicago Press, 1993), 69–71. 31 Globe, 7 March 1884. 32 House of Commons, Debates, 22 June 1885, 276–8. 33 See Charles Terrot, The Maiden Tribute: A Study of the White Slave Traffic of the Nineteenth Century (London: Muller, 1950); Paul McHugh, Prostitution and Victorian Social Reform (London: Croom, Helm, 1980); and Deborah Gorham, ‘The Maiden Tribute of Modern Babylon Re-examined: Child Prostitution and the Idea of Childhood in Late Victorian England,’ Victorian Studies 21 (Spring 1978), 353. 34 Senate, Debates, 4 May 1886, 366. 35 (1886) 49 Vic., c. 52 (Can.). 36 House of Commons, Debates, 1 April 1886, 443. 37 Ibid., 441.

Notes to pages 90–8 227 38 Michael Sturma, ‘Seduction and Punishment in Late Nineteenth Century New South Wales,’ Australian Journal of Law and Society 2 (1985), 80. 39 Department of Justice Archives, D.A. Watt to minister of justice, 9 February 1890; quoted in Parker, ‘Legal Regulation Sexuality,’ 222. 40 House of Commons, Debates, 25 May 1892, 2968. 41 Carman Miller, ‘David Allan Poe Watt’ in Dictionary of Canadian Biography (Toronto: University of Toronto Press, 1998), 1041–3. 42 Graham Parker, ‘The Origins of the Canadian Criminal Code’ in D.H. Flaherty, ed., Essays in the History of Canadian Law I (Toronto: University of Toronto Press / Osgoode Society, 1981), 268; see also Canadian Criminal Code 1892 SC, 55–56 Vic., c. 29, title 13. 43 Desmond Morton, ‘Mayor Howland: The Man Who Made Toronto Good,’ York Pioneer 75 (1980), 23. 44 Windsor Evening Record, 19 January 1894. 45 R v. Kilbourne, reported in London Free Press, 5 October 1894. 46 R. v. Blondin, reported in Globe, 16 October 1889. 47 R v. Perry, reported in Woodstock Sentinel-Review, 27 and 28 September 1894. 48 Christine Stansell, City of Women: Sex and Class in New York, 1789–1860 (New York: Knopf, 1968), 87. 49 Dubinsky, Improper Advances, 77. 50 Hamilton Spectator, 12 September 1921. 51 Dubinsky, Improper Advances, 76. 52 Berlin Daily Telegraph, 2 September 1905. 53 Hamilton Spectator, 6 April 1907. 54 Queen v. Doty (1894), 25 OR 362. 55 Manitoba Daily Free Press, 5 November 1890. 56 R. v. Karn, [1909], OWN 247 at 248. 57 C.P. Stacey, A Very Double Life: The Private World of Mackenzie King (Toronto: Macmillan, 1976), 41–3. 58 R. v. Lougheed (1903), 6 Terr. LR 77 at 79–80. 59 R. v. Rioux (1914), 17 DLR 691 at 693. 60 R. v. Comeau (1912), 5 DLR 250. 61 R. v. Fiola (1918), 41 DLR 73 at 78. 62 John McLaren, ‘Chasing the Social Evil: Moral Fervour and the Evolution of Canada’s Prostitution Laws, 1867–1917,’ Canadian Journal of Law and Society 1 (1986), 150. 63 Backhouse, ‘The Tort of Seduction,’ 77. 64 (1916), 35 DLR 124; (1906), 12 OLR 227; (1906), 13 OLR 485 at 488. 65 Carolyn Strange, Toronto’s Girl Problem: The Perils and Pleasures of the City, 1880–1930 (Toronto: University of Toronto Press, 1995), 9, 120.

228 notes to pages 100–7 Chapter 7. An Action of Their Own 1 Myers v. Bell, Welland Telegraph, 22 October 1886. 2 OA, RG 22, series 390, box 118, Sir Adam Wilson benchbook for November 1866 to October 1873; box 153, Galt benchbook for 1881 to 1882; forty-five civil cases, four seduction; box 208, Armour benchbooks, for 1880 to 1882; sixty civil cases, four seduction. 3 Huron assizes, reported in Huron Signal, 26 April 1876; Pembroke assizes, reported in Globe, 22 April 1891. 4 Globe, Brousseau v. Crozier. 5 Amherstburg Echo, 20 October 1880. 6 Hope v. Davidson (1873), 33 UCQB 550 at 557. 7 Ontario Bureau of Industry, Annual Report (1887), 28, quoted in Carolyn Strange, Toronto’s Girl Problem: The Perils and Pleasures of the City (Toronto: University of Toronto Press, 1995), 38. 8 Harrison v. Prentice (1897), 24 OAR 677, 683 and 686. 9 The Canadian Post (Lindsay) 30 September 1881. 10 On Sara Jeannette Duncan, Marjory Lang, Women Who Made the News: Female Journalists in Canada, 1880–1945 (Montreal: McGill-Queen’s University Press, 1999), 27–8; on Clara Brett Martin, see Constance Backhouse, ‘“To Open the Way for Others of My Sex”; Clara Brett Martin’s Career as Canada’s First Woman Lawyer,’ Canadian Journal of Women and the Law 1 (1985), 1. 11 Peter Ward, Courtship, Love, and Marriage in Nineteenth-Century English Canada (Montreal: McGill-Queens University Press, 1990), 86; see also E. Hellerstein, L. Hume, and Karen Offner, eds., Victorian Women (Palo Alto: Stanford Unversity Press, 1981), 120–1. 12 Baker v. Smith [1650], Style 205, 82 ER 722; Holcroft v. Dickenson [1685], Carter 233, 124 ER 933. 13 As quoted in Rosemary J. Coombe, ‘The Most Disgusting, Disgraceful and Iniquitous Proceeding in Our Law: The Action for Breach of Promise of Marriage in Nineteenth Century Ontario,’ University of Toronto Law Journal 38, no. 1 (1988), 74, 66. 14 Davey v. Myers (1824), Taylor UC, QB 89. 15 London Free Pess, 6 May 1852; Daily Mail, 18 January 1893; Globe, 2 October 1894. 16 Bryan D. Palmer, ‘“Discordant Music”: Charivari and Whitecapping in Nineteenth Century North America’ Labour/Le Travailleur 3 (1978), 9. 17 Major v. McKenzie, reported in Globe, 3 April 1873. 18 Hendricks v. McChesney, Lambton assize, reported in Globe, 21 April 1891.

Notes to pages 107–15

229

19 Globe, 24 February 1895. 20 J. Dundas White, ‘Breach of Promise of Marriage,’ Law Quarterly Review 10 (1894), 135. 21 Fryfogel v. Fleming, reported in Huron Signal, 15 April 1881. 22 See Peter Oliver, The Conventional Man, on Cuthbert v. Bowers, 27 September 1871; Morrison v. Shaw (1877), 40 UCQB 403 at 408. 23 Teetzel v. Waller, reported in Globe, 26 September, 1889. 24 Hurrell v. O’Callaghan, reported in Free Press, 29 April 1889. 25 Erschler v. Epstein, as reported in Globe, 24 February 1895; and Haines v. Hastie, as reported in Stratford Weekly Bulletin, 21 October 1891. 26 Wellington v. Brent, reported in Globe, 7 April 1869. 27 An Act to Amend the law of Evidence in Civil Cases, SO 1869, c. 68, s. 2. 28 An Act for the Removal of Certain Defects in the law of Evidence, SO 1882, c. 10, s. 3. 29 ‘John O’Connor,’ in David B. Read, The Lives of the Judges of Upper Canada and Ontario (Toronto, 1888), 425–34. 30 Costello v. Hunter (1886), 12 OR 333 at 334. 31 Yarwood v. Hart (1897), 16 OR 23. 32 See Deborah Gorham, The Victorian Girl and the Feminine Ideal (Bloomington: Indiana University Press, 1982), 54–5. 33 Jane Aiken Hodge, The Double Life of Jane Austen (London: Hodder & Stoughton, 1972), 83; Carol Shields, ‘Why Jane Austen Breaks Our Hearts,’ Saturday Night, 27 January 2001, 31. 34 London Free Press, 7 January 1890. 35 Jones v. Robson, as reported in Globe, 4 April 1873. 36 Morrison v. Shaw, 407. 37 Squire v. Torrie, reported in Daily Mail (Toronto), 28 September 1893. 38 Woodman v. Blair (1879), 30 UCCP 452. 39 Coombe, ‘Most Disgusting, Disgraceful and Iniquitous,’ 95. 40 David Gagan, Hopeful Travellers: Families Land and Social Change in MidVictorian Peel County, Canada West (Toronto: University of Toronto Press 1981), 77. 41 Robert C. Brown ‘Breach of Promise Suits,’ University of Pennsylvania Law Review 77 (1929), 487; also quotes Georgia case Graves v. Rivers, 51 SE at 320. 42 Carole Pateman, The Sexual Contract (Palo Alto: Stanford University Press, 1988), 2–3. 43 Kelly v. McCully, reported in London Free Press, 11 February 1888. 44 Isaac v. Gray, Hagarty benchbooks, OA, RG 22, series 390, box 81. 45 Grant v. Cornock (1888), 16 OR 406 at 417.

230

notes to pages 116–22

46 Morrison v. Shaw at 407. 47 Costello v. Hunter at 346. 48 Upper Canada Law Journal 5 (1859), 152; Local Courts and Municipal Gazette 4 (1868), 150. 49 Coombes, ‘The Most Disgusting, Disgraceful and Iniquitous,’ 105. 50 White, ‘Breach of Promise,’ 141. 51 See ‘Love Troubles’ in the Brantford Courier of 12 January 1900, reporting a typical case in vivid detail. The plaintiff is described as ‘five feet seven inches in height and isn’t ethereal in her build.’ For other cases, see Kistner v. Ricker, reported in Vancouver Daily News, 24 September 1903; Fallis v. Wilson, in Globe, 16 October 1907; and Carpenter v. Merriam, in Peterborough Examiner, 15 September 1908. 52 B.M. Britton benchbook, OA, RG 22, circuit book 14, Orangeville, 22 April 1908, Barbaree v. Eaton. 53 Windsor Evening Record, 10 January 1912. 54 Chizek v. Tripp (1912), 20 WLR 648. 55 Stratford Weekly Herald, 3 October 1894. 56 Delage v. Normandeau (1899), 9 Rapports Judiciares de Québec 93. 57 Canadian Law Times 25 (1905), 98. 58 Windsor Evening Record, 30 May 1907. Chapter 8. Wife Seduction 1 Richard Wightman Fox, Trials of Intimacy: Love and Loss in the Beecher-Tilton Scandal (Chicago: University of Chicago Press, 1999); Laura Hanft Korobkin, Criminal Conversations: Sentimentality and Nineteenth-Century Legal Stories of Adultery (New York: Columbia University Press, 1998); Robert Shaplen, Free Love and Heavenly Sinners: The Story of the Great Henry Ward Beecher Scandal (New York: Knopf, 1954). 2 Montreal Evening Star, 24 July 1874; Globe, 3 July 1875. 3 On the origins of criminal conversation, see Frederick Pollock and Frederick Maitland, The History of English Law Before the Time of Edward I (1898, reprinted Cambridge University Press, 1968), 543–4; and Jeremy D. Weinstein, ‘Adultery, Law and the State: A History,’ Hastings Law Journal 38 (1968): ‘The husband’s action was analogous to the master’s, but it was based on a loss of consortium rather than loss of services’ (p. 217). 4 William Blackstone, Commentaries on the Laws of England (1768), 3: 139. 5 Weinstein, ‘Adultery, Law and the State,’ 220–1; in 1962 the Supreme Court of Canada thoroughly reviewed the question of whether or not alienation of affections existed in Canada. They traced the confusion to an Ontario

Notes to pages 123–31

6 7 8 9 10 11

12 13 14 15 16

17 18 19 20 21 22

23 24 25 26

231

case, Bannister v. Thompson (1913), 29 OLR 562, where Justice Middleton held that the action of ‘enticing’ a wife was a part of the common law. However, the Supreme Court in Kungl v. Schiefer (1962), 33 DLR reversed this, and Justice Cartwright concluded that there was no historical basis for a separate cause of action for alienation of affections in Canada. Bailey v. King (1900), 27 OAR 703 at 712. King v. Bailey (1901), 31 SCR 338. Ashley v. Brenton, reported in Belleville Daily Intelligencer, 30 April 1889. Cundish v. Graham, reported in London Free Press, 16 January 1890. Patterson v. McGregor, reported in Globe, 3 February 1870. (1884), 47 Vic., c. 19; see also Lori Chambers, Married Women and Property Law in Victorian Ontario (Toronto: Osgoode Society / University of Toronto Press, 1997). Quick v. Church (1893), 23 OR 262 at 279. Hart v. Shorey, as reported in Montreal Daily Star, 22 October 1897. Simcoe assize, 5 November 1894, Justice Robertson benchbook, Helsden v. Maybee. Lellis v. Lambert, reported in Globe, 6 November 1895. Lellis v. Lambert (1897), 24 OAR 654 at 660. This situation did not arise in any other province. In most American states, women could sue for alienation of their husband’s affection: see Arthur Underhill, A Summary of the Law of Torts (Toronto: Butterworth, 1922), 148. Milloy v. Wellington (1904), 3 OWN 561 at 563. C. v. D. (1904), 8 OLR 308 at 322–3. C. v. D. (1906), 13 OLR 24 at 27; Milloy v. Wellington (1907), 9 OWR 749. See Bannister v. Thompson (1913), 15 DLR 733; and Van Dorn v. Felger (1918), 42 DLR 760. Jeremy D. Weinstein, ’Adultery, Law and the State: A History,’ Hastings Law Journal 38 (1986), 222. Manitoba Archives, Justice Prendergast notebook G. 2989 #3. Civil assizes Winnipeg Fall 1914: 12 cases 1 criminal conversation Civil assizes Winnipeg Summer 1914: 13 cases, no heartbalm Civil assizes Brandon Winter 1915: 9 cases, no heartbalm Civil assizes Brandon Fall 1919: 4 cases, 1 criminal conversation. Milroy v. Wharton, Manitoba Archives, series G 2990#3, Fall assizes, Western Provincial District, Brandon. Maguire v. Maguire (1921), 64 DLR 564 at 568. Milloy v. Wellington at 562. Gertrude Himmelfarb, The Demoralization of Society: From Victorian Virtues to Modern Values (New York: Knopf, 1995), 222–3; see also Robert Craig

232 notes to pages 132–7 Brown and Ramsay Cook, Canada, 1896–1921: A Nation Transformed (Toronto: McClelland and Stewart, 1974), 24–5. 27 Peterborough Examiner, 1 September 1908. Chapter 9. To Protect the Poor Unfortunate Child 1 Jessie Raber, Pioneering in Alberta (New York: Exposition, 1951), 27; Edward Ffolkes, Letters from a Young Emigrant in Manitoba (Winnipeg: University of Manitoba Press, 1981), 100. 2 Gerhard J. Ens, Homeland to Hinterland: The Changing Worlds of the Red River Métis in the Nineteenth Century (Toronto: University of Toronto Press, 1996), 58–9. 3 Hebb v. Laurence (1890), 7 Man. Rep. 222 at 224. 4 Manitoba Daily Free Press, 20 December 1890. 5 Seduction Act, SM 1892, c. 43. 6 St. Germain v. Charette (1900), 13 Man. Rep. 63 at 64. 7 An Ordinance Respecting the Action for Seduction, Ordinances of the Northwest Territories, 2d less, 5th Assembly, c. 8. 8 Edward Jolliffe, ‘Seduction – Nature of Action – Female Plaintiff in Alberta – Powers of Trial Judge,’ Canadian Bar Review 5 (May 1935), 335. 9 Arthur Underhill, A Summary of the Law of Torts (Toronto: Carswell, 1922), 4, Canadian edition edited by H.A. Smith. 10 Collard v. Armstrong (1913), 6 AR 187 at 188. 11 Gibson v. Rabey (1916), 9 AR 409, 411. 12 Ibid., at 415. 13 On Maud Allan, see Sheila Rowbotham, A Century of Women: The History of Women in Britain and the United States (New York: Viking, 1997); on Elinor Glyn, see M. Etherington Smith and J. Pilcher, The ‘It’ Girls (New York: Harcourt, 1986), and Marion Fowler, ‘The High Priestess of “It,” The Beaver (October–November 1994); ‘Three Weeks, created a new genre, the sex novel, and was years ahead of its time’ (p. 21). 14 Cline v. Battle, [1928] 3 WWR 12; 4 DLR 189. 15 Support of Illegitimate Children Act RSO 1877, c. 131. 16 Stoner v. Skene (1918), 44 OLR 609 at 617. 17 Fleming v. Miller, [1923] 25 OWN 183. 18 See Appendix A for a decline in noted seduction cases during the 1890s. Also note that in 1896 during the winter and fall assizes in Toronto, Elgin, and Essex, no seduction claims appear (see Globe, 16 September and 10 October 1896; Windsor Evening Record, 10 September 1896).

Notes to pages 138–40

233

19 As reported in the Globe: 16 March 1910 – Toronto assizes 9 civil cases, no seduction – 3 railway negligence 7 March 1911 – St. Catherines assizes 2 civil cases, no seduction 16 March 1911 – Victoria assizes 2 civil cases, no seduction 18 March 1911 – Toronto assizes 5 civil cases, no seduction – 2 railway negligence 21 March 1911 – Hamilton assizes 5 civil cases, no seduction – 3 railway negligence 15–19 March 1912 – Toronto assizes 23 civil cases, no seduction 15–30 March 1913 – Toronto assizes 9 civil cases, no seduction 11 March 1914 – Welland assizes 4 civil cases, all railway negligence. Reported in the London Advertiser, 13 January 1914; Middlesex assizes 5 civil cases, no seduction. 20 Ontario Archives, Robert Sutherland benchbooks RG 22 490-1-9, 1915 – 60 civil cases, No seduction; Sir Glenholme Falconbridge benchbooks RG 22 443 1914 Cornwall and Niagara assizes – 22 civil cases, no seduction. 21 Jacques Henripin, Trends and Factors in Fertility in Canada (Ottawa: Statistics Canada, 1972), 36–9; Angus MacLaren and Arlene Tigar MacLaren, The Bedroom and the State (Toronto: McClelland and Stewart, 1986). Specific comment on the fertility transition can be found in Marvin McInnis, ‘The Fertility. Transition, 1851–1891,’ Historical Atlas of Canada. Vol. 2, The Land Transformed, 1800–1891 (Toronto: University of Toronto Press, 1993), plate 30. In Peel County, Ontario, between 1861 and 1891 the birth rate fell from roughly 40 births per thousand to less than 30. See also David Gagan, Hopeful Travellers (Toronto: University of Toronto Press, 1981), 74. 22 Carolyn Strange, ‘Casting Light on Women in the Shadow of the Law: Toronto at the Turn of the Century,’ in Elspeth Cameron and Janice Dickin, eds., Great Dames (Toronto: University of Toronto Press, 1997), 112. 23 Peter Ward, A History of Domestic Space: Privacy and the Canadian Home (Vancouver: UBC Press, 1999), 82–3. 24 Canada, House of Commons, Hansard, 10 May 1899, p. 221; 23 May 1900, p. 5907. 25 Criminal Code Amendment Act (1900), c. 46, s. 3. 26 See R.C.B. Risk, ‘“This Nuisance of Litigation”: The Origins of Workers’ Compensation in Ontario’ in D.H. Flaherty, ed., Essays in the History of Canadian Law, vol. 2 (Toronto: University of Toronto / Osgoode Society, 1983), 418–91. 27 On the religious nature of early charity, see Stephen A. Speisman, ‘Munifi-

234 notes to pages 140–3

28

29 30 31 32 33

34 35

36

37 38 39 40

41 42

cent Parsons and Municipal Parsimony: Voluntary vs Public Poor Relief in Nineteenth Century Toronto,’ Ontario History 65 (1973), 33. Mariana Valverde, The Age of Light, Soap and Water: Moral Reform in English Canada, 1885–1925 (Toronto: McClelland and Stewart, 1991): ‘The Great War caused a quantum leap in the concern about conserving human life’ (p. 24). SO, 1893, c. 45; Manitoba passed a similar act in 1898, SM, 1898, c. 6. Re Granger (1897), 28 OR 555; quotation from the English case The Queen v. Jennings, [1896] 1 QB 64 at 66. Vancouver Sun, 26 April 1912. Neil Sutherland, Children in English-Canadian Society: Framing the Twentieth Century Consensus (Toronto: University of Toronto Press, 1976) 239–40. Vancouver News-Advertiser, 3 February 1904; on social agitation for mothers’ allowances, see Richard Allen, The Social Passion: Religion and Social Reform in Canada, 1914–1928 (Toronto: University of Toronto Press, 1971). SBC 1904, c. 6; SM 1912, c. 29; SM 1922, c. 2 Part IV. SA 1923, c. 50, s. 6: ‘The mother of any child born out of wedlock and any unmarried woman pregnant with child or who has undertaken the care and maintenance of such child with necessaries may apply to the Superintendent for aid and advice in all matters pertaining to the child, and the Superintendent shall thereupon take such lawful action as may seem to him to be in the Interests of the mother and the child.’ Vancouver Sun, 15 November, 17 December 1922; ‘the amendment to the Jury Act, sponsored by J.W. deB. Ferris, a private member of the house, is probably the most revolutionary enactment of the session, providing as it does that women shall now sit on juries in the civil and criminal courts of the province.’ Boyak v. Kobylanski (1929), 1 WWR 364 at 367. Westfall v. Bonner (1930), 24 SLR 583 at 584. Bilinski v. Kowbell (1930), 3 WWR 638 (King’s Bench); [1931] 4 DLR 756 at 759 (Court of Appeal). SM 1916, c; see also Veronica Strong-Boag, ‘Wages for Housework: Mothers’ Allowances and the Beginnings of Social Security in Canada,’ Journal of Canadian Studies 14 (Spring 1979), 33. Manitoba Free Press, 3 January 1920. Mary Kinnear, A Female Economy: Women’s Work in a Prairie Province 1870– 1970 (Montreal: McGill-Queen’s University Press, 1998); ‘Until the programme was discontinued at the end of the Second World War, mothers’ allowances served as an exemplar of the idea that it was right for the State to serve as a substitute husband’ (p. 65).

Notes to pages 143–9

235

43 Margaret Little, ‘No Car, No Radio, No Liquor Permit’: The Moral Regulation of Single Mothers in Ontario, 1920–1997 (Toronto: Oxford University Press, 1998), 27. 44 Margaret Little, ‘Claiming a Unique Place: The Introduction of Mothers’ Pensions in B.C.,’ B.C. Studies 105 and 106 (Spring/Summer 1995), 90. 45 1920, SBC, c. 46 Province of Ontario, Mothers’ Allowance Commission, Annual Report, 1920–1921, p. 27. 47 Ontario Legislature, Debates, 21 May 1920, 8 February 1921. 48 As quoted in Andrew Jones and Leonard Rutman, In the Children’s Aid: J.J. Kelso and Child Welfare in Ontario (Toronto: University of Toronto, 1981), 156. 49 1921, SO, c. 54. As Ernest Drury’s biographer noted, there was a very conservative thread running through acts such as this, namely ‘the preservation of the family unit and its built-in obligations as a sure route to the salvation of society.’ See Charles M. Johnston, E.C. Drury: Agrarian Idealist (Toronto: University of Toronto Press, 1986), 154. 50 Jones and Rutman, In the Children’s Aid, 158. 51 Chadwick v. McCrie (1924), 27 OWN 124 at 124–5. 52 Re Yeo v. Brenner (1926), 29 OWN 486. 53 Jones and Rutman, In the Children’s Aid, 160. 54 The Children of Unmarried Parents Act, SNB, 1925, c. 10; Prince Edward Island repealed its Seduction Act, in 1924. SPEI 1924, c. 10. 55 RSNS 1923, c. 49; SNS 1923, c. 20; Children of Unmarried Parents Act, SNS 1951, c. 3, s. 41. 56 Andrée Lévesque, ‘Deviants Anonymous: Single Mothers at the Hôpital de la Miséricorde in Montreal, 1929–1939,’ in Veronica Strong-Boag and Anita Clair Fellman, eds., Re-thinking Canada: The Promise of Women’s History, 2nd ed. (Toronto: Copp Clark Pitman, 1991), 324. 57 B.L. Vigod, ‘Ideology and Institutions in Quebec: The Public Charities Controversy, 1921–1926,’ Histoire sociale / Social History 11 (May 1978), 167. 58 Dodd v. Wilcox, [1935] 4 DLR 797 at 802. 59 Strong-Boag, ‘Wages for Housework,’ 33. Chapter 10. MacMillan v. Brownlee 1 Franklin Foster, John E. Brownlee: A Biography (Edmonton: Foster Learning, 1996), 47. This book is the only full-length treatment of Brownlee’s personal and political life. On Brownlee as a reformer, see Veronica StrongBoag ‘Canadian Feminism in the 1920s: The Case of Nellie McClung,’ Journal of Canadian Studies 2 (Summer 1997), 62.

236

notes to pages 150–69

2 Foster, Brownlee, 165. 3 Eric Crouse, ‘The Great Revival: Evangelical Revivalism, Methodism and Bourgeois Order in Early Calgary,’ Alberta History 47, no. 1 (Winter 1999), 18. 4 Edmonton Bulletin, 18 and 21 September 1933. 5 Testimony of Florence Brownlee as reported in Calgary Herald, 30 June 1934. 6 Statement of claim reprinted in full in the Edmonton Bulletin, 22 September 1933. 7 Paris Midi, 2 July 1934, as quoted in Thomas Thorner and G.N. Reddekopp, ‘A Question of Seduction: The Case of, MacMillan v. Brownlee,’ Alberta Law Review 20 (1982), 447. 8 Edmonton Bulletin, 25 June 1934. 9 Ibid., 26 June 1934. 10 Ibid. 11 Ibid., 27 June 1934. 12 Darcy Marsh, ‘Nell Tolls the Curfew,’ Canadian Forum 14 (1934), 426; ‘The newspapers have been filled with the sort of detail which the pornographic mind loves to turn to its own base purposes.’ 13 Calgary Herald, 29 June 1934. 14 Ibid., 30 June 1934. 15 Ibid., 3 July 1934. 16 Thorner and Reddekopp, ‘A Question of Seduction,’ 459. 17 Calgary Herald, 5 July 1934. 18 Edmonton Bulletin, 5 July 1934. 19 Winnipeg Evening Tribune, 5 July 1934; Winnipeg Free Press, 5 July 1934; Vancouver Sun, 6 July 1934. 20 Louis Knafla and Richard Klumpenhouwer, Lords of the Western Bench: A Biographical, History of the Supreme and District Courts of Alberta, 1876–1990 (Edmonton: Legal Archives Society of Alberta), 69. 21 MacMillan v. Brownlee, [1935] 1 DLR 481 at 486, 487, 2 WWR 511, 62 CCC 159. 22 Ibid., 1 DLR at 489. 23 RSA 1922, c. 102, s. 5. 24 Barnes v. Fox (1914), 2 Ir. R. 276. 25 L’Esperance v. Duchene (1849), 7 UCQB 146 at 147. 26 Bilinski v. Kowbell, [1931] 4 DLR 756. 27 Collard v. Armstrong, [1935] 1 DLR at 500, 506. 28 Edward Jolliffe, ‘Seduction – Nature of Action – Female Plaintiff in Alberta – Powers of Trial. Judge,’ Canadian Bar Review 5 (May 1935), 334.

Notes to pages 170–7

237

29 Duff was not adverse to giving a judgment which could be of help to the Liberal party. For example, see David Ricardo Williams, Duff: A Life in the Law (Vancouver: University of British Columbia Press, 1984). As commissioner of the Royal Commission of Inquiry into Hong Kong, he greatly assisted the Mackenzie King government by delivering a report that exonerated it from wrongdoing. King received ‘a personal note from the Chief Justice saying that the report gave a clean bill of health ... his wording really made me rejoice’ (p. 231). 30 MacMillan v. Brownlee, [1937] 2 DLR 273, SCR 318, 68 CCC 7. 31 Ibid., 2 DLR at 283. 32 Brownlee v. MacMillan, [1940] AC 802. 33 Foster, Brownlee, 296. 34 John J. Barr, The Dynasty: The Rise and Fall of Social Credit in Alberta (Toronto: McClelland and Stewart, 1974), 35; on inaccuracies in later accounts of the scandal, see J.G. MacGregor, A History of Alberta (Toronto: Hurtig, 1972), where it is presumed that Brownlee was guilty and that Albertans had become disenchanted with him for daring to ‘partake of amorous activities’ (p. 264); and Leslie A. Pal, ‘The Political Executive and Political Leadership in Alberta’ in Allan Tupper and Roger Gibbons, eds., Government and Politics in Alberta (Edmonton: University of Alberta Press, 1992); ‘a sensational scandal in 1933, when his former secretary charged him with seduction and forced sexual relations’ (p. 13). 34 Globe and Mail, 17 July 1961. The Calgary Herald, 18 July 1961, in contrast, only reported the Brownlee funeral service and made no mention whatsoever of his career. Chapter 11. Death of a Tort 1 Brownlee v. MacMillan, [1940] AC 802 at 805. 2 Thomas Thorner and G.N. Reddekopp, ‘A Question of Seduction: The Case of MacMillan v. Brownlee, Alberta Law Review 20 (1982), 474. 3 Edward Jolliffe, ‘Seduction – Nature of Action – Female Plaintiff in Alberta – Powers of Trial Judge,’ Canadian Bar Review 5 (May 1935), 336. 4 Naujokat v. Bratushesky, [1941], 1 WWR 671; (1942), 2 WWR 97. 5 Vickers v. Robinson, [1946], OWN 812. 6 I would like to thank Mr Brendan O’Brien, QC, and Mr John Honsberger, QC for their comments on seduction in modern legal practice. 7 Maguire v. Maguire (1921), 50 OLR 579. 8 Rose v. Kavanagh, [1946] NR 428 at 437. 9 Mowder v. Roy, [1946] OR 154 at 160 and 171.

238 10 11 12 13 14 15 16 17 18 19 20

21 22 23

24

25

notes to pages 177–83

Brydon, v. Abernethy, [1951] OWN 428 at 431. Rigney v. O’Mara, reported in London Evening Free Press, 6 April 1946. Sharbo v. Borthwick, Vancouver Sun, 5 March 1946. Douglas Payne, ‘Enticing and Harbouring Spouses,’ Modern Law Review 12 (1958), 298. Applebaum v. Gilchrist (1946), OR 695. Ibid., at 706–7, 709. Judge v. Smith (1961), 30 DLR (2d) 521. Jacob Lippman, ‘The Breakdown of Consortium,’ Columbia Law Review 30 (1930), 664. Wright v. Cedzick (1930), 43 CLR 493 at 535. Frampton v. Whiteman, [1953] 1 DLR 337 at 342. Joy Parr, ed., A Diversity of Women: Ontario, 1945–1980 (Toronto: University of Toronto Press, 1995) 6; see also Pat and Hugh Armstrong, The Double Ghetto: Canadian Women and Their Segregated Work (Toronto: McClelland and Stewart, 1978), 17. Female workers as a percentage of the workforce had risen steadily from 22 per cent in 1951 to 37.4 per cent in 1976. Riane Eisler, Sacred Pleasure: Sex, Myth and the Politics of the Body (New York: Harper, 1996), 196–7. Mitchell v. Joly, [1960] OR 470 at 478. The distinction between the enticement of a spouse and the alienation of affections was elusive, and both were used interchangeably until 1962. In Mitchell v. Joly Justice Laidlaw insisted that there was a formal distinction between the two. An enticement occurred whenever ‘any person who unlawfully procured, induced or persuaded a wife to leave her husband,’ while alienation of affections was ‘any person who unlawfully interferes with the conjugal rights of a husband or a wife’ (p. 472). If that failed to clarify matters, in 1962 the Supreme Court of Canada ruled that this mysterious distinction was of no moment in any event. In Kungl v. Schieffer (1962), 33 DLR (2d) 278, Earl Cherniak argued that no separate cause of action for alienation existed in Ontario. The Supreme Court of Canada reviewed the history of alienation of affections and its origins in American decisions. Although it might form an element in the assessment of the husband’s damages, the Supreme Court ruled that it was not part of the common law in Canada. B.M. Haines, ‘Family Law – Loss of Consortium – Distinction Between Enticement and Alienation of Affections – A Revival of the Forms of Action?’ University of Toronto Faculty Law Review 19 (1961), 147, 139. Best v. Samuel Fox & Co, [1952] AC 716 at 731. Lord Goddard did regret that ‘It is an anomaly at the present day that a husband can obtain damages for an injury to his wife, but English law is free neither of some

Notes to pages 183–7

26

27 28 29 30 31 32 33 34

35

36

37

38 39

239

anomalies nor of everything illogical, but there is no reason for extending them’ (p. 733). See Maliewski v. Pastushok, [1960], OWN 393; Dahl v. Dahl and Arnold (1967), 62 WWR 348. The court made an award for damages as part of the BC divorce proceedings and even though the court found that ‘Despite the barrenness of the relations between the Dahls the plaintiff did sustain some blow to his marital honour and hurt to his matrimonial and family life’ (p. 353). Zamba v. Zamba (1966), 60 DLR (2d) 178. Dorey v. Denome (1956), 6 DLR (2d) 296 at 298. Smith v. Smith and Morrow, [1978] 3 RFL 13 at 19. Adrian Popovici, ‘De l’alienation d’affection: Essai critique et comparatif,’ Canadian Bar Review 48 (1970) 235. Laférriere v. Ribardy, [1873] 5 RL 742. N v. H, [1969] BR 348. As cited in Frederick L. Kane, ‘Heartbalm and Public Policy,’ Fordham Law Review 5 (1936), 66. Speech in support of the Indiana anti-heartbalm bill, 1 February 1935, quoted in M.B.W. Sinclair, ‘Seduction and the Myth of the Ideal Woman,’ Law and Inequality 5 (May 1985), 84. Professor Nathan Feinsinger of the University of Wisconsin explained the unusual legislative receptivity to the abolition of heartbalm as being based on a ‘realization of the failure of these actions to accomplish their original social purposes, and their non-conformity with changed mores concerning sex, morality, the status of women and the functions of the family.’ The abolition of seduction recognized changing social concepts and the relaxation of ‘such controls by recognizing and protecting increased freedom of association between each spouse and the outside world.’ See ‘Legislative Attack on Heart Balm,’ Michigan Law Review 33 (May 1935), 979 and 1009. Breece v. Jett (1977), 556 SWR (2d) 696 at 708. In the end result, the Missouri Court of Appeals was compelled to rule that, however unwise the action, it did exist in the state until abolished by the legislature. Sinclair, ‘Seduction,’ 91; Frederick Kane of Fordham University, in ‘Heartbalm and Public Policy,’ argued against the abolition of a remedy such as seduction which had existed for centuries. This pell-mell rush was unfortunate, Kane thought, for seduction laws served a useful social purpose in the preservation of the home. Family solidarity and the purity of offspring were still ideals worth protecting by force of law. Alan Milner, ‘Injuries to Consortium in Modern Anglo-American Law,’ International and Comparative Law Quarterly 7 (July 1958), 432. John G. Fleming, The Law of Torts, 4th ed. (Australia Law Book, 1971), 570.

240

notes to pages 187–90

40 English Law Reform Committee, Report on Loss of Services (1963), Cmnd. 2017, para 22, pp. 103 and 104. 41 Pritchard v. Pritchard (1967), p. 195 at 208. 42 Study Prepared by the Family Law Project, Ontario Law Reform Commission, vol. 6 (Toronto, 1968), 177. 43 OA, Series 4-66, Ontario Law Reform Commission, Report of Family Law (1969), I: 97. 44 SO 1978, c. 2, s. 69. 45 Laura Korobkin, Criminal Conversations: Sentimentality and NineteenthCentury Legal Stories of Adultery (New York: Columbia University Press, 1998), 162. Korobkin points out that by the twentieth century the courts began to describe criminal conversation cases as matters of mutual choice rather than seduction. Females were thereby considered to be responsible individuals able to make choices. Conversely, it also made them accountable to the wives of the men who became their lovers (pp. 168–9). 46 Canada, House of Commons, Debates, 5 December 1967, p. 5083. 47 See Richard Gwyn, The Northern Magus (Toronto: McClelland and Stewart, 1980), 64. Trudeau actually said in a 22 December 1967 interview that ‘The state has no place in the nation’s bedroom.’ However, the phrase as quoted in the text is the most repeated version of his comment. 48 Family Law in Newfoundland (1973), 341, report of the Newfoundland Family Law Study; The Family Law Omnibus Act, SN 1989, c. 11, s. 2. Seduction was still cited in the Survival of Actions Act, RSN 1990, c. S.32, s. 11; and the Juries Act, SN 1991, c. 16, s. 32(1). The later statute was relied upon for the motion for a jury trial in John Doe et al. v. Hickey et al. (1994), 125 Nfld. and PEI 21 at 24. 49 Saskatchewan Law Reform Commission, Tentative Proposals No. 53, Relating to Testamentary Custody and Guardianship of Children; SS 1990, c. C8.1, s. 61(1). 50 Manitoba Law Reform Commission, Report No. 9C, The Seduction Act; The Equality of Status Act, SM 1982, c. 10, ss. 2–4. 51 See report in Toronto Star, 10 November 1984,. The Alberta debate on the repeal of the seduction law made no reference to Premier Brownlee; see Alberta, Hansard, 29 May 1985, pp. 1224–8. The act was repealed by Charter Omnibus Act, SA 1985, c. 15, ss. 43(1). The seduction law of the North West Territory was abolished due to the effect of the Charter; see Statute Law Amendment Act SNWT 1985(3), c. 10, s. 105. 52 Family Relations Act SBC 1978, c. 20, s. 76. 53 Rutherford v. Rutherford, [1980] 2 WWR 330 at 342. 54 Lozada v. Lozada (1980), 120 DLR (3d) 506 at 508.

Notes to pages 190–6

241

55 British Columbia Law Reform Commission Working Paper No. 42, Intentional Interference with Domestic Relations (Vancouver, 1983), 31–5. 56 British Columbia, Debates, 20 November 1985, p. 7031; Family Law Reform Amendment Act SBC 1985, c. 72, s. 36 and 37. 57 RSA 1980, c. D-37, ss. 13 and 40. 58 Mastalerz v. Garland (1988), 62 Alta. LR (2d) 129 at 137–8. 59 SPEI c. 6, ss. 64–7. 60 Coles v. Roach (1980), 25 Nfld. and P.E.I. Reports 172 at 175. In this decision, the PEI court rejected the Ontario Court of Appeal ruling in Skinner v. Allen (1977), 18 OR (2d) 3 whereby it was presumed that the general declaration of the equality of the spouses had the effect of abolishing criminal conversation. 61 Davenport v. Miller (1990), 108 NBR (2d) 336 at 346. After rendering his decision, Justice. McLellan learned that New Brunswick had passed an omnibus act to comply with the Charter of Rights which abolished criminal conversation and enticement. SNB 1985, c. 41, ss. 4(6), 4(7) and 4(8). 62 Szarfer v. Chodos (1986), 54 OR (2d) 663 at 678. 63 Graham-Rowe v. Culver (15 January 1997) unreported, Simcoe General division. 64 Louie v. Lastman (2001), 54 OR (3d) 286. 65 Frame v. Smith, [1987] 2 SCR 99 at 128; 42 DLR (4th) 81 at 93. Chapter 12. The Complex Dance of Seduction 1 2 3 4 5 6

Ex Parte Blackburn, [1968] 2 QB 118 at 139. Canada, House of Commons, Debates, 23 January 1969, p. 4723. Criminal Code Amendment Act, SC 1920. R. v. Gasselle (1934), 62 CCC 295 at 297. R. v. Johnson, [1948] 5 CR 320. Terrence Sullivan, Sexual Abuse and the Rights of Children (Toronto: University of Toronto Press, 1992) 45. 7 Law Reform Commission of Canada, Working Paper 22: Sexual Offences (Ottawa, 1978) 3, 28. 8 R. Badgley, et al., Report of the Committee on Sexual Offences against Children and Youths (Ottawa: Ministry of Justice and Attorney General, 1984). See also S.J. Usprich, ‘A New Crime in Old Battles: Definitional Problems with Sexual Assault,’ Criminal Law Quarterly 29 (1986–7); ‘Assault is an offence because it is an unwanted interference with the victim’s physical integrity, a violation of bodily privacy’ (p. 201). 9 R. v. Chase (1984), 13 CCC (3d) 187 at 190.

242

notes to pages 196–201

10 Criminal Code Amendment Act, SC, 1980–81–82, c. 125, s.5; see Martin’s Criminal Code (1984); ‘This [repealing of the definition of previously chaste character but leaving the operative sections intact] may have been an oversight resulting from the fact that in earlier versions of the Act this section was to have been repealed’ (p. 135). 11 Criminal Code and Canada Evidence Amendment Act, SC 1987, c. 24, s. 3. 12 Neil T. Boyd, ‘Sexuality and the State: A Comment on Moral Boundaries in the Physical. Realm,’ Canadian Review of Family Law 7 (1989), 356. 13 House of Commons, Debates, 17 December 1981, p. 14175. 14 Heather Dryburgh, ‘Teenage Pregnancy,’ Health Reports 12, no. 1 (Ottawa: Statistics Canada, October 2000). 15 R. v. Audet (1996), 106 CCC (3d) 481. 16 ‘We Love Each Other, Student Says of Teacher,’ National Post, 19 April 2000. The school superintendent, Clifford Smith, was dismayed that many in the community supported. Heather Ingram and her lover: ‘What I have discovered personally is that the moral ground on which we base the commonly held values that you see reflected in schools and school policies is much shakier than we ever imagined’ (ibid., 18 April 2000). 17 ‘Female Teacher Alleged to Have Had Sex with Team’ National Post, 26 April 2000. 18 R. v. Seaboyer (1991), 66 CCC (3d) 321, 7 CR (4th) 117. 19 Patricia Hughes, ‘From a Woman’s Viewpoint,’ UNBLJ 42 (1993), 347. 20 The defence of honest but mistaken belief had arisen from the case of R v. Pappajohn (1980), 52 CCC (2d) 481; it was effectively annulled by the Criminal Code amendments of 1992, SC, c. 38, s.1. 21 R. v. Ewanchuk, [1998] 6 WWR 8; 13 CR (5th) 324; 57 Alta.LR (3d) 235; quotes from Justice McClung at 6 WWR 23. Alberta’s Chief Justice Fraser issued a strong dissent: ‘“No,” especially here during a job interview, surely means “No.” If this word is not sufficient to meet the Code’s requirements of expressing a lack of agreement to continue in the subject activity, then it is difficult to imagine what could do so.’ The fact that after each no the perpetrator carried out a more advanced sexual activity and that this was not a sexual assault was, in the view of Fraser, illogical (6 WWR at 42). 22 R. v. Ewanchuk (1999), 131 CCC (3d) 481 at 501. 23 In an unprecedented public response to a decision of a superior court, Justice McClung wrote a letter of rebuttal that was published in the National Post on 28 April 1999. He criticized L’Heureux-Dubé’s ‘graceless slide into personal invective’ and suggested that rulings such as hers explained the high male suicide rate in her home province of Quebec. Legal writers rallied to the standard of each judge. Edward L. Greenspan

Notes to pages 201–4

24 25 26 27

28 29 30

31

32 33

243

felt that ‘L’Heureux-Dubé did an unnecessary and mean-spirited thing. It was undignified and very wrong’ (National Post, 2 March 1999); Alex Kozinski, a California federal judge responded: ‘What should a Supreme Court justice do when she sees such [offensive] language in a lower court judgment? Is she to remain mute? Or does she have a duty to repudiate the language and the sentiments behind it?’ (National Post, 9 March 1999). Marie Corbett ‘A Retired Judge Responds,’ Law Times, 22–8 March 1999. Link Byfield, ‘Casanova Outlawed,’ Alberta Report, 29 March 1999. Marjaleena Repo, ‘The Ewanchuk Ruling Is No Reason to Rejoice,’ Globe and Mail, 4 March 1999. Deborah R. Hatch ‘Culpability and Capitulation: Sexual Assault and Consent in the Wake of R. v. Ewanchuk,’ Criminal Law Quarterly 43 (1999), 52, 63. Catharine MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven: Yale University Press, 1979). Dupuis v. Seip (1994), 20 CHRR i. Some feminist writers wanted to take sexual harassment several steps further and suggested that the legal requirement that the woman provide proof that she had rejected the man’s advances be abolished. See Fay Faraday, ‘Dealing with Sexual Harassment in the Workplace: The Promise and Limitations of Human Rights Discourse’ Osgoode Hall Law Review 33 (1994); ‘the legal system affirms that it is “natural” for men to make sexual advances to women, and that the onus is on women to indicate, after the fact, that the sexual attention is unwanted’ (p. 44). Blencoe v. British Columbia Human Rights Commission (1998), 53 CRR (2d) 189 at 205; on the Blencoe scandal, see Vancouver Sun, 4–6 April 1995. Finally, on 5 October 2000, the Supreme Court of Canada ruled that the delay in Blencoe’s case was not a bar to the human rights proceedings. He was found liable for sexual harassment. Rene Denfeld, The New Victorians: A Young Woman’s Challenge to the Old Feminist Order (New York: Warner, 1995), 20, 239. See Margaret Wente, ‘The Folly of Zero Tolerance,’ Globe and Mail, 10 April 2001, and Eli Schuster, ‘Professional Sex,’ Report Newsmagazine, 30 April 2001. On the absolutist nature of the ban, see The Final Report of the Task Force on Sexual Abuse of Patients in the Independent Task Force Commissioned by the College of Physician and Surgeons of Ontario, chaired by Marilou McPhedran (25 November 1991; ‘Due to the position of power the physician brings to the doctor-patient relationship, there are NO circumstances – NONE – in which sexual activity between a physician and patient is acceptable.’ This recommendation was implemented in Ontario in 1994.

244 notes to pages 205–9 34 National Post, 1 September 2001. 35 Lysiane Gagnon, ‘The Complex Dance of Seduction,’ Globe and Mail, 6 March 1999. Epilogue 1 Hutelmyer v. Cox, 30 September 1997, North Carolina District Court; 1 June 1999, North Carolina Court of Appeals. 2 Suzanne Reynolds, ‘Crimes and Torts of the Heart,’ Wake Forest Law Jurist 28 (June 1998), 8. See also Jill Jones, ‘Fanning an Old Flame: Alienation of Affections and Criminal Conversation Revisited,’ Pepperdine Law Review 26 (1998), 61. 3 Bland v. Hill, Mississippi Court File 97-CA-00970, 22 April 1997. 4 Douglas J. Johnston, ‘Seduction,’ National Post, 17 September 1999. 5 Szarfer v. Chodos (1986), 54 OR (2d) 663 at 678. 6 Bruce Feldthusen, ‘The Civil Action for Sexual Battery: Therapeutic Jurisprudence,’ Ottawa Law Review 25 (1993) 207.

Index

abortion 64, 138, 154, 197 adultery: as a crime 80, 81, 82–3; and criminal conversation 122–3 affiliation affidavits 38, 57, 59, 68; effect of 54 Alberta 96, 97, 134, 135, 142; religious nature of 150; and Brownlee scandal 151–71 and 174–5; repeals seduction law 189–90 alienation of affections 208, 237 n23; in United States 122; conflict with seduction law 178–9 Allan, Maud 136 Anglin, Justice Francis 129–31 Applebaum v. Gilchrist 178–80, 191 Armour, Chief Justice J.D. 101, 111; opposes criminal conversation 121 Ashley v. Brenton 123–4 Assembly (Upper Canada) 37–8, 50 Austen, Jane 112 Australia: and criminal seduction 90; and criminal conversation 180

Badgley Committee 196–7 Bailey v. Hannon 75–6 Bailey v. King 123 Barrie Northern Advance 63, 77 Beadstead v. Wyllie 19–20 Beecher-Tilton scandal 121–2 Best v. Samuel Fox and Co. 182–3, 187 Bilinski v. Kowbell 142–3, 168 blacks 75, 92 Blackstone, Sir William 80 Bloody Code 36 Boulton, Justice D’Arcy 3–6 Boulton, Henry John 20 Brandau, John: and criminal conversation 118 Brandon (Manitoba) 130 Brantford Expositor 71 breach of promise of marriage vii, 7, 123, 192; origins of 104–5; as entertainment 105–6; contrasted with seduction 106–8, 109–16 passim; raised by men 118–19; repealed 188–91

246 index British Columbia 140–2, 177, 180, 184, 198; unwed mothers in 143–4, 147–8; heartbalm repeal 189–90 Brook, Emma 58–9 Brownlee, Florence 153–5; testifies 161 Brownlee, John Edward 189; described 149–50; and seduction scandal 151–72; death of 173 bundling 197; in Upper Canada 5–6, 20–1; described 13–15; and Hogle v. Ham 23–6 Burns, Justice Robert 62 Burton, Chief Justice George 103, 128 Caldwell, John: and Brownlee scandal 152–5, 161, 162 Calgary 149 Cameron, Hector 84–5 Cameron, Malcolm C. 67; views on seduction 68–9 Campbell, Alexander 87 Campbell, Kim 199 Campbell, Chief Justice William 34; background of 24–5 Canada Law Journal: and seduction law 77–8; and Charlton’s act 82–3 Canadian Charter of Rights and Freedoms: abolishes seduction 189, 191–2 Cartwright, J.S. 23–4 Chapman, Charlotte 47–8 charivari: in Canada 105–6, 127 Charley, W.T. 80 Charlton, John 195; career 81; parliamentary campaign on seduction 82–90; last campaign 139 Charlton’s act 136, 207; described 89–90; enforced 90–6; rate of convictions 97–8

Chatelaine 181 child welfare: in provinces 140–6; impact of 147–8 Child Welfare Act, 1922 (Manitoba) 141 children 47, 81; on the frontier 14–16; lack of concern for 34; state concern for 140–6; and new morality 197–8 Children of Unmarried Parents Act, 1923 (Alberta) 142 Children of Unmarried Parents Act, 1921 (Ontario) 144–5 children’s aid societies 138, 140 Children’s Protection Act, 1893 (Ontario) 140 Clark, C.S. 98 Clarke, Justice A.H. 168–9 Colonial Advocate 3 Commentaries on the Laws of England 80, 122 Court of King’s Bench (Upper Canada) 20–1, 26–7, 63; interprets Seduction Act 44–51 Court of Quarter Sessions 11, 33 Criminal Code (Canada) 194–9; seduction provisions in 90–1; and prosecutions 92–8; 1900 amendment 139 criminal conversation vii, 7 186, 187–9; origins of 122–6; women invoke 127–9, 178–81; as weapon against women 129–31; increase in after Second World War 175–8; retained in Alberta 190–1: see also alienation of affections, enticement criminal law: and moral offences 80–1 Criminal Law Amendment Act, 1886

Index (Canada) 89–90. See also Charlton’s act Davis, Justice Henry: and Brownlee 170–1 Defoe, Daniel 29, 73 divorce 122, 147, 189 Dodd v. Wilcox 147–8 Draper, William Henry: suspicions of women 45–8, 61–2 Drury, Ernest 144 Duff, Sir Lyman Poore 170 Dutton, Lucy 57 Edmonton: and Brownlee trial 150–65 passim Edmonton Bulletin 150–7 passim, 164–5, 169; contempt charges 160 enticement 122, 179–80 Essex Record 65–6 Ewanchuk v. R. 200–2, 207 Falconbridge, Chief Justice Sir William Glenholme 115 Family Law Reform Act, 1978 (Ontario) 188, 192 fertility transition 138 Field Code 40–1 First World War 130, 138, 140 Frampton v. Whiteman 181 frontier 13–5, 101; impact on seduction law 16–9. See also Upper Canada Fuller v. Secord 5–6, 21 Gagnon, Lysiane 205 Gant, Ellen 75 Galt, Justice Thomas 63, 100, 113; shocked by seduction cases 71–2 Gay, Peter 84

247 Glyn, Elinor: as ‘It’ girl 136–7, 170 Gore, Francis 31 Great Britain 31; early law of seduction 6–9, 11; infanticide in 36–7, 46–7; and Bastardy Act 1872 72–3; discontent with seduction laws 76–7; and breach of promise 104, 117; and criminal conversation 122, 182–3; repeal of heartbalm 187 Hagarty, Justice John Hawkins 47, 55, 58, 69, 104, 106; described 48 Hagerman, Christopher 22–6 Halifax 73–4, 87, 123 Hamilton (Ontario) 53–4, 70, 71, 75, 88, 109 Hamilton Spectator 86 Harrison v. Prentice 103 Harrison, Robert 52, 68; views on seduction 60–1; views on breach of promise 107, 113, 115–16 Harvey, Justice Horace 135; decision on Brownlee 166–8 Hearst, Sir William 144 heartbalm remedies 3–6, 7, 131; outdated 184. See also seduction, criminal conversation, breach of promise Hebb, Amy 133–4 Hogle v. Ham 22–6, 37 House of Commons: debates Charlton’s act 81–90 Howland, William 91 Hurrell, Myra 108, 112 Hutelmyer case 208 illegitimacy 9–10, 22, 53–4, 65, 72, 82, 140; in England 6–7; in Quebec 15–16, in Upper Canada 27, 30–3;

248 index in Great Britain 36–7; in Nova Scotia 73–4; in late 1800s 131; in western Canada 133; decline of 138 Illegitimate Children’s Act, 1912 (Manitoba) 141 infanticide 77, 87, 138; in Upper Canada 33–5; in Ontario 53–4; in Halifax 73 Ingram, Heather 198 Ireland 27, 85, 168 Ives, Justice William Carlos 159, 160; described 153; delivers Brownlee verdict 165 Jameson, Anna 30; describes Upper Canada 12, 18; disapproves of Seduction Act 38 Jolliffe, Edward 174 Jones, Justice Jonas 20, 22–6, 66 Judicial Committee of the Privy Council 171, 174 jury awards 55, 59; contrasted to judges 26–7, 63, 65; concern for unwed mothers 34, 52; and damages 70–2; and breach of promise 110, 113 Kelso, J.J. 144–5 Killam, Chief Justice A.C. 134 King, W.L. Mackenzie 95; and Brownlee 150 Knights of Labor 88 Kris v. R. 32, 34 labour unions: support seduction laws 88 Lastman, Mayor Mel 192 Laidlaw, Justice R.E. 176–7 Laurier, Sir Wilfrid 139

Lellis v. Lambert 127–8 L’Esperance v. Duchene 27, 47, 168; details of case 45–6 L’Heureux-Dubé, Justice Claire 201–2, 241 n23 London (Ontario) 92, 97, 106 London Free Press 112 loss of service: as an element in seduction 7–8; attempted abolition 37–8; in United States 40–1; reinstated 47–9, 102–3 Lower Canada. See Quebec Macaulay, Justice J.B. 34, 35, 44, 46; defends bundling 23–4 Macdonald, Sir John A. 93; opposes Charlton’s bill 82–5; supports bill 88 Mackenzie, William Lyon 3–6, 20, 21, 38–9 MacKinnon, Catharine 202 MacLean, Neil: prosecutes Brownlee 150–71 passim MacLennan, Justice James 88, 103 MacMillan, Allan 151, 159, 165 MacMillan, Vivian 207; meets Brownlee 150–1; and seduction trial 151–71; death of 172 Maiden Tribute of Modern Babylon 89 Maintenance of Bastard Children Act, 1923 (Nova Scotia) 146 Manitoba 95, 138; criminal conversation in 130; seduction in 133–4; and child welfare 141; abolishes heartbalm 188 Married Woman’s Property Act, 1884 (Ontario) 74, 126, 127, 137, 178 Maselles, Livinia 57–8 Masters and Johnson 184 McCabe, Maria 88

Index McClung, Justice John A. 200–1, 241 n23 McInnis v. McCallum 50–1 McRuer, Chief Justice C.J. 181 Meredith, Chief Justice Sir William 129 Metis 133 Middlesex assizes, 1877 51–3, 209 Middleton, Justice W.E. 145 Michigan 40–1 Milloy v. Wellington: abuse of criminal conversation 128–31 Moll Flanders 29–30 Monk v. Cassleman 27–8 Montreal 69, 90, 121, 127, 147 Moodie, Susanna 14 Mothers’ Allowance Act, 1916 (Manitoba) 143 Mothers’ Pension Act, 1920 (British Columbia) 143–4 Mowat, Oliver 48 Mowder v. Roy 176–7 Nelly Barton’s Lover 79 New Brunswick 63, 113; and poor law 9; bastardy law 73; adultery law 81; child welfare 146; criminal conversation 191 Newcastle district 54 New England: and bundling 13, 20–1 Newfoundland 81, 176; poor law in 10; abolishes heartbalm 188 New York State 18, 21, 40, 81; and seduction law 83 Nicholson, Roberta West 186 Norris, Premier T.C. 143 North-West Territories 81, 96; conditions in 133; passes Seduction Act 134–5

249 Norton v. Jason 38, 171; defines seduction 7 Nova Scotia 81, 123, 153, 183; poor law 9; illegitimacy in 73–4; and chaste character 96; and bastardy law 146 Oakville 67–8 O’Connor, Justice John 111 Ontario 102–3, 140; social conditions 43, 114; seduction actions in 51–4; social purity in 91; and mother’s allowance 144–5; decline of seduction cases 137–8, 175; increase in criminal conversation 182; abolition of heartbalm 187–8. See also Upper Canada Osler, B.B. 59–60, 71, 100, 107; and breach of promise 108–9 Paley, William 40–1 Pamela 29 Parlby, Irene 142, 149 patriarchy 114–15, 207 Phillips, Nathan 178–80 Pilotte, Angelique: infanticide case 33–4 Poor Law: origins of 9; in Canada 9–11; reformed in Maritimes 72–3 Powell, Anne Murray: background of 31–2 presbyterians 44; support seduction law 88 Prince Edward Island 205; reforms seduction law 50–1, 72–3; retains criminal conversation 191 prostitution 85, 89, 146; and Charlton’s act 82 Public Charities Act, 1921 (Quebec) 146

250 index Quebec 133; seduction during French regime 15–6; laws compared to Upper Canada 35–6; damage awards 69; and chaste character 96–7; and breach of promise 115, 119; treatment of unwed mothers 146; discontent with criminal conversation 185 rape 134, 137, 196, 199; in Upper Canada 18–19; courts attitude towards 63; contrasted with seduction 65–9, 95 religion 51, 140; influences Charlton’s bill 88, 79–80; and respectable society 131–2 Richards, Justice W.B. 48–9, 74 Riddell Inquiry 144 Robertson, Chief Justice R.S. 178–9 Robinette, J.J. 176 Robinson, Christopher 10 Robinson, John Beverley 26, 27, 55, 74, 105, 168; at Niagara assizes 3– 6; described 20; and Thompson case 35; and Seduction Act 36–9, 41, 44, 50; on rape cases 67 Rose, Justice John 65; questions breach of promise 116 Ryerson, Egerton 18 St John Globe 63 Saskatchewan 117, 134, 142, 175; abolishes heartbalm 188 Schroeder, Justice William 177 Scott, R.W. 87 Seaboyer v. R. 199 Second World War: and role of women 178–9 Seduction Act, 1837 (Upper Canada) 134, 168, 207; enactment of 36–8;

impact of 39–41, 44–8; final judicial interpretation 48–50; given effect 137 Seduction Act, 1903 (North-West Territories)137; enacted 134–5; impact on Brownlee case 167–73 seduction, tort of vii-x, 27; origins of 7–8; as a fiction 11–12; and frontier 16–19; judges view of 24–6; compared to literature 29–30; elite views of 30–2; popularity of 51–3; success of 57–8; damages for 59–62, 70–2, 222 n35; discontent with 75–8; movement to criminalize 80–90; popularity of 101–3; declines in use 137–9, 141–5, 175; movement to repeal 185–91 Senate: opposes criminalizing seduction 87–8, 139 sexual battery 209 sexual contract: in breach of promise cases 111–16 sexual harassment 202–3 sexuality: and Victorian Canadians 55–6, 79–80; and ‘It’ girl 135–7; and modern women 183–5, 192–3. See also Women Sherwood, Justice Levius Peters 25–6 Smith, A.L.: cross examines Vivian MacMillan 155–9; conducts defence 160–3 Smith, Goldwin 86 Smith v. Smith and Morrow 184 social class: as a factor in seduction cases 30–2; and preserving honour 67–9; in seduction cases 74–6 social purity movement 207–8; described 79–80; in United States 80–1; and seduction law 82–90;

Index impact of 95–6; early twentieth century 138–9; decline of 194–6 Speenhamland System 10 Spragge, Justice John Godfrey 49 Stead, W.T. 89, 90 Stratford (Ontario) 118–19 suffrage movement 142, 179 Sullivan, Justice Robert 67 Support of Illegitimate Children Act, 1904 (British Columbia) 141 Supreme Court of Canada: and Brownlee appeal 170–1 teachers: and Charlton’s act 81–3, 86–7, 92; and modern Criminal Code 198 temperance 79, 140, 149 Tennyson, Alfred Lord 79, 85, 96 Thompson, John 91 Thompson, Maria 3–5 Thompson, Mary: infanticide case 34–5 Toronto 75, 80, 86–7, 129–30, 144; social purity in 91; and ‘Gay Lothario’ case 127–8 Toronto Globe 106, 116, 122, 199; editorial on seduction 75–6; and Charlton’s bill 83, 86, 92 Toronto the Good 98 Toronto World 87 Traill, Catharine Parr 12 Tripp, Flora 54 Trudeau, Pierre 188 true womanhood, cult of 183; in Canada 53–4; seduced women and 57–8 Tulk v. Beaman 14–15 United Farmers of Alberta 149–50, 170

251 United Farmers of Ontario 144 United Grain Growers 149, 172 United States 10, 13, 32, 153; reforms seduction laws 40–1; damages awarded 70; moral laws in 80–1; as an example to Canada 83; breach of promise cases 114; criminal conversation in 121–2, 178–9, 180; used as an example 127, 134–5; repeals seduction 185–6; modern developments 208 Upper Canada 40; seduction in 6; and poor law 10–11; conditions in 12–15, 18–19; morals in 30–3; passes Seduction Act 36–8 Upper Canada Law Journal 40, 116 Upper Canada Gazette 30 Vancouver 140, 141 Victorian era 42, 53, 54, 105, 207; and chivalry 62–3; view of women 79–80, 115–16; and respectability 131; and Brownlee 172 Vincent v. Sprague 66 Watt, D.A. 90–1 Weekly Register (York) 33 Wellington, Mary Ann: breach of promise 109–10 Westacott v. Powell: defines Seduction Act 48–9, 51, 74 Williams, Chestina 67–9, 75, 184, 207 Williams v. Robinson 67–9 Willis, N.P. 33 Wilson, Justice Adam 71, 101; upholds seduction reform 49–50 Wilson, Justice Bertha 192 Wilson, Justice John: describes origins of Seduction Act 46 Windsor (Ontario) 92, 120

252 index Winnipeg 95, 97, 133 Wolfenden Report 194 Wollstonecraft, Mary 9 Woman’s Christian Temperance Union 79–80 women 55–6, 112, 126; law’s view of 7–9; and frontier 12–15; judicial views of 24–5, 115–16; and true womanhood 57–61; chivalric tendency of courts 62–3, 97–8;

parliamentary view on 83–5; stereotyped 98; leaving farms 102–3; physical appearance in court 107; invoke criminal conversation 126–7; growing independence of 135–7; after Second World War 178–9, 181–2 York (Toronto) 19, 29, 35, 64

publications of the osgoode society for canadian legal history 1981 David H. Flaherty, ed., Essays in the History of Canadian Law: Volume I 1982 Marion MacRae and Anthony Adamson, Cornerstones of Order: Courthouses and Town Halls of Ontario, 1784–1914 1983 David H. Flaherty, ed., Essays in the History of Canadian Law: Volume II 1984 Patrick Brode, Sir John Beverley Robinson: Bone and Sinew of the Compact David Williams, Duff, A Life in the Law 1985 James Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution 1986 Paul Romney, Mr Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791–1899 Martin Friedland, The Case of Valentine Shortis: A True Story of Crime and Politics in Canada 1987 C. Ian Kyer and Jerome Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers, and Legal Education in Ontario, 1923–1957 1988 Robert Sharpe, The Last Day, the Last Hour: The Currie Libel Trial John D. Arnup, Middleton: The Beloved Judge 1989 Desmond Brown, The Genesis of the Canadian Criminal Code of 1892 Patrick Brode, The Odyssey of John Anderson 1990 Philip Girard and Jim Phillips, eds., Essays in the History of Canadian Law: Volume III – Nova Scotia Carol Wilton, ed., Essays in the History of Canadian Law: Volume IV – Beyond the Law: Lawyers and Business in Canada, 1830–1930 1991 Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada 1992 Brendan O’Brien, Speedy Justice: The Tragic Last Voyage of His Majesty’s Vessel Speedy Robert Fraser, ed., Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography 1993 Greg Marquis, Policing Canada’s Century: A History of the Canadian Association of Chiefs of Police F. Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution 1994 Patrick Boyer, A Passion for Justice: The Legacy of James Chalmers McRuer Charles Pullen, The Life and Times of Arthur Maloney: The Last of the Tribunes Jim Phillips, Tina Loo, and Susan Lewthwaite, eds., Essays in the History of Canadian Law: Volume V – Crime and Criminal Justice Brian Young, The Politics of Codification: The Lower Canadian Civil Code of 1866

1995 David Williams, Just Lawyers: Seven Portraits Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law: Volume VI – British Columbia and the Yukon W.H. Morrow, ed., Northern Justice: The Memoirs of Mr Justice William G. Morrow Beverley Boissery, A Deep Sense of Wrong: The Treason Trials and Transportation to New South Wales of Lower Canadian Rebels after the 1838 Rebellion 1996 Carol Wilton, ed., Essays in the History of Canadian Law: Volume VII – Inside the Law: Canadian Law Firms in Historical Perspective William Kaplan, Bad Judgment: The Case of Mr Justice Leo A. Landreville F. Murray Greenwood and Barry Wright, eds., Canadian State Trials: Volume I – Law, Politics, and Security Measures, 1608–1837 1997 James W. St.G. Walker, ‘Race,’ Rights, and the Law in the Supreme Court of Canada: Historical Case Studies Lori Chambers, Married Women and Property Law in Victorian Ontario Patrick Brode, Casual Slaughters and Accidental Judgments: Canadian War Crimes and Prosecutions, 1944–1948 Ian Bushnell, A History of the Federal Court of Canada, 1875–1992 1998 Sidney Harring, White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence Peter Oliver, ‘Terror to Evil-Doers’: Prisons and Punishments in NineteenthCentury Ontario 1999 Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900–1950 G. Blaine Baker and Jim Phillips, eds., Essays in the History of Canadian Law: Volume VIII – In Honour of R.C.B. Risk Richard W. Pound, Chief Justice W.R. Jackett: By the Law of the Land David Vanek, Fulfilment: Memoirs of a Criminal Court Judge 2000 Barry Cahill, The Thousandth Man: A Biography of James McGregor Stewart A.B. McKillop, The Spinster and the Prophet: Florence Deeks, H.G. Wells, and the Mystery of the Purloined Past Beverley Boissery and F. Murray Greenwood, Uncertain Justice: Canadian Women and Capital Punishment Bruce Ziff, Unforeseen Legacies: Reuben Wells Leonard and the Leonard Foundation Trust 2001 Ellen Anderson, Judging Bertha Wilson: Law as Large as Life Judy Fudge and Eric Tucker, Labour before the Law: The Regulation of Workers’ Collective Action in Canada, 1900–1948 Laurel Sefton MacDowell, Renegade Lawyer: The Life of J.L. Cohen

2002 John T. Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism Patrick Brode, Courted and Abandoned: Seduction in Canadian Law David Murray, Gelded Justice: Justice, Morality, and Crime in the Niagara District, 1791–1849 Barry Wright and F. Murray Greenwood, Canadian State Trials: Volume II – Rebellion and Invasion in the Canadas, 1837–1839