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Courted and Abandoned

Courted and Abandoned: Seduction in Canadian Law

Copyright Date: 2002
Pages: 274
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  • Book Info
    Courted and Abandoned
    Book Description:

    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.

    eISBN: 978-1-4426-2081-0
    Subjects: History, Law, Sociology

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
    (pp. vii-viii)
    R. Roy McMurtry and Peter N. Oliver

    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 forCourted and Abandoned. A pregnancy outside of marriage was a traumatic event in frontier Canada, one that had profound legal implications, not only for the...

  4. Preface
    (pp. ix-xii)
  5. [Illustrations]
    (pp. xiii-2)
  6. 1 Fiction of the Law
    (pp. 3-11)

    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 hisColonial 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’...

  7. 2 The Market of Shame
    (pp. 12-28)

    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...

  8. 3 Women of Quality and Lewd Mothers
    (pp. 29-42)

    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’sPamela(first published in 1740), a girl educated beyond her station is hired out as a serving girl. Her master uses numerous subterfuges to...

  9. 4 Feudalism Triumphant
    (pp. 43-56)

    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...

  10. 5 Rewarding the Insinuating Arts
    (pp. 57-78)

    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...

  11. 6 Virtue by Statute
    (pp. 79-99)

    According to Tennyson, woman was ‘dipt in Angel instincts ... interprets between the Gods and man.’ In his epic poemThe 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...

  12. 7 An Action of Their Own
    (pp. 100-120)

    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...

  13. 8 Wife Seduction: Punishing the ‘Gay Lothario’
    (pp. 121-132)

    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,...

  14. 9 To Protect the Poor Unfortunate Child
    (pp. 133-148)

    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...

  15. 10 MacMillan v. Brownlee
    (pp. 149-173)

    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...

  16. 11 Death of a Tort
    (pp. 174-193)

    Once women had a right to sue for ‘fornicationper 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 wassui 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...

  17. 12 The Complex Dance of Seduction
    (pp. 194-205)

    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...

  18. Epilogue
    (pp. 206-210)

    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....

  19. Appendix A
    (pp. 211-211)
  20. Appendix B
    (pp. 212-212)
  21. Notes
    (pp. 213-244)
  22. Index
    (pp. 245-252)
  23. Back Matter
    (pp. 253-255)