Destroying “Foul and Filthy” Committee Evidence: Revisiting a Peculiar Private Bill and a Senate Scandal

A unique and dramatic set of events unfolded in the Senate of Canada when Mary Matilda White petitioned Parliament for a divorce bill in 1888. She was the first petitioner since Confederation to allege her husband’s impotence and the ensuing committee procedures involved a medical examination. What happens next is a scandal that resulted in the Senate ordering the destruction of a committee’s evidence. This article recounts this peculiar tale from the annals of Canadian parliamentary history. NB: Quoted source material in this article contains language that is anachronistic and offensive. As such, reader discretion is advised.

Charlie Feldman

Charlie Feldman is president of the Canadian Study of Parliament Group. The author submits that the views herein are not those of any employer.

The full story behind An Act for the relief of Mary Matilda White is one largely lost to history.1 Indeed, the key committee evidence was ordered destroyed by the Senate! While the parliamentary tale of this bill is remarkable for that notable event alone, the story (or what is known of it) puts into focus the unique experience of one woman with Canada’s Parliament – long before women could vote or serve in it. Regrettably, as all of the actors involved have long since departed from this world, there is nobody left to answer the question: what really happened?

Procedurally, An Act for the relief of Mary Matilda White was Bill “B”, a private bill for divorce. Bills for divorce were required at a time when there was no federal divorce legislation and many provinces did not have their own statutes on the subject. Senate Procedure and Practice traces the interesting evolution of private bills for divorce, which eventually constituted the bulk of the Senate’s legislative workload before the enactment of federal divorce legislation in the late 1960s.2

Bill “B” was introduced in the Senate on March 20, 1888, having been preceded by the customary notice and petition. What made this divorce petition and bill unique was the primary allegation of the petitioner, Mrs. Mary Matilda White. Her notice in the Canada

Gazette, dated August 15, 1887, read as follows:

TO WHOM IT MAY CONCERN.

Take Notice that at the next session of the Parliament of Canada, I, Mary Matilda White, of the Village of Port Dover, Province of Ontario, will make application for a Bill of Divorce from my husband, David Crystal White, of the same place, teacher, on the ground of incapability of consummation of the marital relations.

MARY MATILDA WHITE.

Port Dover, 15th August, 1887.

The grounds of “incapability of consummation of the marital relations” was a first for a divorce bill before the Parliament of Canada.3 As explained in 1889’s The Practice of the Parliament of Canada upon Bills of Divorce, if it could be proven that impotency existed at the time of the marriage, it would render the marriage contract null.

As required at the time, notice of this bill proceeding to second reading was posted on the door of the Senate for 14 days, from March 20 to April 4, 1888.4

The bill provided more precision than its petition. The preamble asserted that Mrs. White’s husband, David Crystal White, was, “by reasons of his frigidity and impotence, or malformation of the parts, legally incompetent to enter into the contract of marriage,” and added that “said frigidity and impotence of malformation of the parts is wholly incurable by art or skill.” Accordingly, alleged Mary Matilda White, the couple had been married on June 25, 1872 “in fact but not in law.”

The bill sought to declare the 15-year marriage “null and void.” The preamble further alleged that four years into their marriage, Mrs. White was “pressed and importuned” by Mr. White to give him a “large sum of money” for the purchase of land. The bill sought to have that land transferred back to Mrs. White within one month of their separation.

The Senate was in the midst of debating its approach to divorce bills generally when this bill came for second reading. Senators discussed whether to wait for possible rule changes before striking a committee to consider Bill “B”.

When it emerged that Mrs. and Mr. White were already in Ottawa – she was, as the Speaker noted, in the gallery at the time this first discussion occurred – it was felt that the Senate should proceed quicky as to not prejudice the couple, who had travelled from Port Dover, Ontario.5

By decision of the Senate on April 10, 1888, a committee was struck and empowered to take evidence on oath, employ a short-hand reporter, and was instructed to examine “any collusion or connivance between the parties to obtain a separation.”6

What happens next leads to perhaps the strangest committee proceeding in Canadian parliamentary history. A procedural reference work from 1889 reports that – consistent with English practice – “two medical experts were appointed by the Committee.”7 This detached framing leaves out the fact that the two medical experts were, in fact, other senators!

Ontario senators Michael Sullivan and Donald McMillan were selected by the committee responsible for the bill to perform a medical examination of Mr. White. Sullivan was a professor of anatomy and had been President of the Canadian Medical Association.8 McMillan worked as a coroner and had been Vice- President of the Ontario Medical Association.9

Both doctor-senators would presumably have encountered patients like Mr. White, who was described in newspaper reports as “misshapen in body and diminutive in stature, in fact [he] is almost a dwarf.”10

Mr. White’s physical appearance is noted in many stories about the matter and sparks some colourful commentary. The Toronto Daily Mail offered its readers this insight:

The respondent is David Crystal White, who has been by turns preacher and editor. He is very much misshapen in body and is diminutive in stature. He would be the last man whom one would suspect of going a-wooing, and still more unlikely to enact the part of a gay Lothario. The grounds upon which legislation is asked in this case are just the antipodes of those in which divorce suits usually have their origin. Infidelity, inconstancy, fickleness, wicked gallantry or strange amours are faults to which the respondent in this case can, if Mrs. White’s complaint is well founded, truthfully plead not guilty. Unlawful passion has not been White’s bane, nor does one jot of jealousy figure in this unique divorce drama. Mrs. White does not complain of rudeness or unkindness, but simply resents her husband’s entire indifference to her in her character as a wife.11

As relayed in a procedural work, Mr. White revealed that while there was some difficulty consummating the marriage during the first year, it had happened since.12 He suggested that if anyone was deficient, it was Mrs. White.13 Mrs. White’s physical description received less ink in the press than that of Mr. White – a local Ontario paper reported she was “about 40 and fairly good looking.”14

This is where the story takes an important turn. The two doctor-senators also examined Mrs. White and reportedly found “that the physical condition of the Petitioner was such as to contradict her statement that the marriage had not been consummated.”15 The precise nature of this physical examination is unclear, though one might suspect – the year being 1888 – it involved practices that run counter to today’s medical consensus.16 As well, it is important to consider the broader context of how women were treated in the law at the time – including, in particular, in divorce matters.17

The Journals of the Senate include the committee’s short report three days later. The committee reported the preamble of Bill “B” not proven, found that “there is no ground whatever for the allegation made against the Respondent,” and recommended that the husband receive $20.18

Here, the story takes a dramatic parliamentary turn. Senators who received the terse committee report did not feel that they had enough evidence to decide how to vote. At the same time, some senators felt quite strongly that the committee evidence should be suppressed given its nature. However, on April 19, 1888, the Senate was rocked by the allegation that the committee evidence had circulated – and was seen in the hands of a “boy of only 15 summers.”19

The debate that ensues is one for the ages. The Globe’s report begins: “The Fathers of the Senate were in a white heat of indignation to-day over the publication of the evidence taken in connection with the White divorce petition.”20 The Montreal Daily Witness referred to it as a “scandal,”21 and a Manitoba paper described the evidence as “very smutty.”22 One senator reported: “I saw, myself, some gentleman at the hotel reading some copies of this just before I came up here – conning it over and having quite an agreeable meeting.”23 The news spread from coast to coast – with Victoria’s Daily Colonist reporting as follows:

The Senate is virtuously indignant over the fact that copies of the evidence in the White divorce case got into circulation and will make it hot for the official having charge of the copies. The evidence is a mass of filth and it is a pity it was ever printed.24

There was a range of opinion offered in the Chamber on the evidence itself. Said one senator of the “filthy, disgusting trash” committee evidence: “Some ladies appeared as I was reading it and I blushed for shame – I felt my manhood horrified.”25 Said another, “I thought it my duty as an honest man to burn my copy. I should have been ashamed to show it to anybody.”26 But, of course, not everyone shared that view. Said another senator, “I cannot understand why hon. gentleman are so squeamish about it.”27

Yet more storylines emerge in this saga. What were the questions asked in committee? Said one senator:

A medical man has often to get information on a delicate point, but I do not think he puts his question in the coarse way they are put to the petitioner in this way. I should have been ashamed to ask a female, when alone with her in private consultation, the questions that have been asked of the petitioner in this case. The questions could have been put in much more professional language than they were; and I think the reason that this evidence is so disgusting is partly owing to the nature of the case and perhaps a little to the way in which the questions were asked.28

In a debate the following year on divorce bill practice, a senator noted: “There were questions put to one of the witnesses which almost paralyzed some of the members.”29 These questions (and any answers) would have been in the committee’s evidence.

The full debate on the situation concerning the committee evidence goes for many pages in Hansard, to the point where one senator suggests it is becoming so protracted as to attract its own attention and perhaps it should have taken place behind closed doors.30 The debate goes on from there to include suggestions that maybe Mrs. White should be charged for perjury, and that perhaps the Senate shouldn’t publish the evidence lest it be accused of circulating obscene materials. Of course, the Senate was curious who leaked it and it was suggested that the press should limit their reporting of the matter.31 It was further suggested that the Minister of Justice prosecute any Senate official found responsible for the leak.32

In the end, the Journals reflect the adoption of the committee’s report and an exceptional order of the Senate: “That the Clerk be instructed to destroy the printed copies of the evidence in re the Bill entitled An Act for the relief of Mary Matilda White which were printed for the use of Members of the House of Commons.”33 While copies may have existed for senators and potentially in the Senate Archives, any such materials would not have survived the Centre Block fire of 1916. No copies were located in the research for this work.

The parliamentary story does not end there because the legislation was advanced as a private bill. As was the practice, a refund of the $200 deposit for the private bill (less fees and expenses) was to be considered. While the question of the property mentioned in Bill “B” had been dropped in the Senate,34 a newspaper had indicated (before the medical exam and evidence scandal) that “the real trouble is about a certain property in Port Dover.”35 During the refund discussion, the sponsor of the bill informed the House as follows:

I have been informed since then, on good authority, that the Petitioner in this case being unable to raise this $200, by the same system of deception which she has practised before this House, induced her mother or sister to lend her the money to deposit with the Clerk of this House, and expecting to obtain the property which she claimed from her husband and which was referred to in the Bill, she was to refund the money.36

As indicated in later Sessional Papers of the Senate’s accounts, Mrs. White was refunded $123.45. Of her $200, $56.55 in expenses went to Holland Brothers for printing of the evidence, and $20 was paid to Mr. White (to cover his return home).37 Confirmation of authority for sums paid to Mr. and Mrs. White was specifically queried by the Auditor General in reviewing the Senate’s accounts.38

The Senate’s portion of events ends rather unceremoniously – on May 11 the Senate ordered its Clerk to return Mrs. White’s marriage certificate to her.39 No further efforts appear made to identify the persons responsible for the leak of the committee’s evidence, let alone punish them. And, it seems, no further action was taken against Mrs. White.

While this ended the Senate’s consideration of An Act for the relief of Mary Matilda White and connected matters, the Toronto Daily Mail offers additional reporting that casts the entire episode in a different light:

The petitioner and respondent in the White divorce case have left the city. One of the strange circumstances about the case was that a Dr. Maclean, well-known in the Port of Dover and vicinity, has all along acted as Mrs. White’s chief adviser in her efforts to procure separation from her husband. He accompanied her to Ottawa and continued to act on her behalf here. It is said that that doctor at one time boarded with the Whites. The two men quarreled and had subsequently spirited passages at arms in local newspapers. Mr. White was then editor of a paper in Jarvis and he and the doctor, who wields a bitter pen, had weekly quarrels, the doctor’s attacks appearing in the rival sheet. Their lucubrations reeked with personalities, even Mr. White’s unfortunate physical deformities not escaping his enemy’s scathing English. Their differences at length reached the courts, and this attempt to deprive the editor of his wife is the latest incident in the feud. The attempt, however, has failed and the petitioner has still to retain her husband’s name.40

Regrettably it seems much of this reported “feud” is lost to history.

One might speculate what married life was like for husband and wife after the nation’s papers reported the wife’s allegation of the husband’s impotence. A senator said that in putting questions to Mr. White he gathered that “divorce would seem to be a relief for him rather than a penalty.”41 While the full story behind An Act for the relief of Mary Matilda White may never be known, an Ontario paper at the time offered this concluding thought on the matter: “Divorce is evidently not to be made easy in this country.”42

Notes

1 The author would like to thank Charles Thompson, Meghan Cloutier, Christy Amatos, Alexa Biscao and others for comments on a previous draft.

2 Senate Procedure in Practice (2015), pp. 165-166.

3 The practice of the Parliament of Canada upon bills of divorce, (Toronto: Carswell), 1889, John Alexander Gemmill, ed., p. 111.

4 Senate Journals, 6th Parliament, 2nd Session, Vol. 2. April 10, 1888 at 99.

5 Senate Debates, 6th Parliament, 2nd Session, Vol. 1, April 10, 1888, p. 290-293.

6 Senate Journals, 6th Parliament, 2nd Session, Vol. 22, April 10, 1888, p. 100.

7 Supra note 3.

8 Personnel of the Senate and House of Commons, Eight Parliament of Canada, Elected June 23, 1896: portraits and biographies of the members. Montreal: J. Lovell, 1898, p. 82

9 Ibid at 78.

10 The Northern Advance (Barrie, ON), April 19, 1888, p. 5.

11 “The White Divorce Case,” The Toronto Daily Mail, April 10, 1888 p 8.

12 Supra note 3 at p. 191.

13 “The Senate’s First Divorce Case,” The Dutton Enterprise (Dutton, ON), Vol 7, No 17, April 19, 1888, p 1.

14 Ibid.

15 Supra note 3 at p. 191.

16 See generally: Olson, R., García-Moreno, C. Virginity testing: a systematic review. Reproductive Health 14, 61 (2017). https://doi.org/10.1186/s12978-017-0319-0

17 See generally: Chambers, Lori and Joan Sangster, eds. Essays in the History of Canadian Law, Volume XII: New Essays in Women’s History University of Toronto Press (Toronto, ON), 2023. Of note in that collection is “The Trials and Travails of Eliza Maria Campbell: Gender and the Law in Ontario in the 1870s” by Jim Phillips.

18 Senate Journals, 6th Parliament, 2nd Session, Vol. 22, April 13, 1888, 110-111.

19 Senate Debates, 6th Parliament, 2nd Session, Vol. 1, April 19, 1888, p 330-1.

20 “From The Capital” The Globe (Toronto, Ont.) 20 Apr 1888, p. 3.

21 The Montreal Daily Witness, April 20, 1888, p. 6.

22 The Manitoba Free Daily Press, April 21, 1888, p. 1, col. 5.

23 Senate Debates, 6th Parliament, 2nd Session, Vol. 1, April 19, 1888 at p 339.

24 “Capital Notes”, The Daily Colonist (Victoria, BC), April 20, 1888, p 1.

25 Senate Debates, 6th Parliament, 2nd Session, Vol. 1, April 19, 1888 at p 333.

26 Senate Debates, 6th Parliament, 2nd Session, Vol. 1, April 19, 1888 at p 340.

27 Senate Debates, 6th Parliament, 2nd Session, Vol. 1, April 19, 1888 at p 332.

28 Senate Debates, 6th Parliament, 2nd Session, Vol. 1, April 19, 1888 at p 337.

29 Senate Debates, 6th Parliament, 3rd Session, Vol. 1, February 21, 1889 at p. 42.

30 Senate Debates, 6th Parliament, 2nd Session, Vol. 1, April 19, 1888 at p 341.

31 Senate Debates, 6th Parliament, 2nd Session, Vol. 1, April 19, 1888 at p 347.

32 “Senators and Divorce Evidence”, The Globe (Toronto, Ont). 20 Apr 1888, p. 3.

33 Senate Journals, 6th Parliament, 2nd Session, Vol. 22, April 19, 1888 at p. 126.

34 Senate Debates, 6th Parliament, 2nd Session, Vol. 1, March 1, 1888 at p 111.

35 Supra note 11.

36 Senate Debates, 6th Parliament, 2nd Session, Vol. 1, May 14, 1888 at p 717.

37 Sessional Papers, 6th Parliament, 4th Session, Vol. 4, No 5, p. G-123.

38 Sessional Papers, 6th Parliament, 4th Session, Vol. 4, No 5, p. G-124.

39 Senate Journals, 6th Parliament, 2nd Session, Vol. 22, May 11, 1888, p 204-205.

40 “From the Capital”, The Toronto Daily Mail, April 14, 1888, p 16.

41 Senate Debates, 6th Parliament, 2nd Session, Vol. 1, April 19, 1888 at p 339.

42 Supra note 10.