In the House of Lords.
ON APPEAL
FROM HIS MAJESTY'S COURT OF
APPEAL
(ENGLAND).
between
CHRISTABEL HULME
RUSSELL
(Respondent) Appellant
AND
JOHN HUGO RUSSELL (Petitioner)
Respondent.
CASE FOR THE APPELLANT.
WITHERS & CO.,
4 Arundel Street,
Strand,
W.C.2,
Solicitors for the
Appellant
Parliamentary
Archives,
HL/PO/JU/4/3/754
Die Veneris, 30° Maii,
1924.
After hearing Counsel as well on Thursday
the 20th
as Friday the 21st, Monday the 24th,
and Tuesday the 25th, days
of March last, upon
the Petition and Appeal of Christabel
Hulme
Russell, wife of the Honourable John Hugo
Russell, of
46D, Harrington Gardens, in the
County of London, praying, That
the matter of
the Order set forth in the Schedule
thereto,
namely, an Order of His Majesty's Court of
Appeal, of
the 24th of July 1923, might be
reviewed before His Majesty the
King in His
Court of Parliament, and that the said Order
might
be reversed, varied, or altered, or that
the Petitioner might
have such other relief in
the premises as to His Majesty the King
in His
Court of Parliament might seem meet; as also
upon the
printed Case of the Honourable John
Hugo Russell, lodged in
answer to the said Appeal;
and due consideration had this day of
what was
offered on either side in this Cause :
It is Ordered and Adjudged, by the
Lords
Spititual and Temporal in the Court of Parliament
of His
Majesty the King assembled, That the
said Order of His Majesty's
Court of Appeal, of
the 24th day of July 1923, complained of in
the
said Appeal, be, and the same is hereby, Reversed,
and
that the Verdict and Judgment be set aside :
And it is further
Ordered, That the Respondent do
pay, or cause to be paid,
to the said Appellant
the Costs incurred by her in the Court of
Appeal
and also the Costs incurred by her in this House,
so
far as regards the question of the admissibility
of the evidence
: And it is further Ordered, That
the Appellant do pay, or
cause to be paid, to the
said Respondent the Costs incurred by
him in the
Court of Appeal and in this House, so far as
regards
the questions of misdirection and verdict
against the weight of
the evidence, such Costs
to be set off, and the amount of the
respective
Costs in this House to be certified by the Clerk
of
the Parliaments : And it is also further Ordered,
That the
Cause be, and the same is hereby,
remitted back to the Probate,
Divorce and
Admiralty Division of the High Court of Justice,
to
do therein as shall be just and consistent with
this Judgment.
Russell v, Russell.
Earl of
Birkenhead.
Viscount
Finlay.
Lord
Dunedin.
Lord
Sumner.
Lord
Carson.
sess. 1924—[h.l.]
RUSSELL
v.
RUSSELL.
The Earl of Birkenhead.
MY LORDS,
this long drawn-out litigation
has been so much reduced
in the course of its passage through the
Courts that only one main
issue, and that of law, survives.
There are, it is true, matters,
relatively of less importance,
which are still material and upon
which a conclusion must be recorded.
But these do not involve
much research or difficulty when a decision
has been reached upon
the question which is fundamental.
The Appellant appeals here
against the decision of the Court
of Appeal declining
interference with the finding of the Jury that
the Appellant had
committed adultery with a man unknown. I ignore
the changing
details and recriminations which the two long hearings
disclosed.
For, in my opinion, these no longer possess any relevance.
My own impression may be stated
at once, that unless the
evidence given by the husband, the
Petitioner, was in law receivable
there was no evidence of
adultery proper to go to the Jury at all.
But I am willing to
hear argument upon the point. The question,
therefore, if I am
right, which your Lordships have to decide is
whether or not by
the law of England evidence of non-access
may, in proceedings for
divorce, be tendered by a spouse and
received by a Court with the
object, or possible result, of bastardising
a child of the
marriage.
I have formed the clear opinion
that such evidence is not
receivable; that it ought not to have
been allowed to go to the Jury;
and that therefore, unless there
was other evidence proper to go
to them, the verdict cannot
stand.
The importance of the matter
renders proper some slight exami-
nation of the history of the
legal considerations involved, though
I do not, for reasons which
will appear, think an exhaustive enquiry
necessary.
The leading case on the subject
(Goodright's case) was decided
by Lord Mansfield in the
year 1777. The facts of the case are not
important; but this
great Judge laid down the law, at two separate
stages of the
hearing, with characteristic lucidity.
The first passage, which was
interlocutory, was as follows :—
" The law of England is
clear that the declarations
' of a father or mother cannot be
admitted to bastardise
" the, issue, born after
marriage"
In the second passage he said
:—
" As to the time of birth,
the father and the mother
' are the most proper witnesses to
prove it, but it is a
1 rule founded on decency,
morality and public policy
' that they should not be permitted to
say after marriage
' that they had had no connection and
therefore that the
' offspring is spurious, more
especially the mother, who
' is the offending party. The point
was solemnly deter-
" mined by the Delegates."
This learned Judge founds
himself (and he was very careful
in such matters) upon the "
solemn determination " of the Delegates
who, as is well
known, prior to the Act 2 & 3 William IV., cap. 92,
constituted
the Supreme Ecclesiastical Court of Appeal.
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We approach the matter in this
House without responsibility
for the genesis of the rule. We have
not to ask whether we should
ourselves have laid it down; still
less to consider whether changed
social conditions have undermined
its authority. We find the rule
living and authoritative. We find
its application to legitimacy
proceedings everywhere conceded. Our
task, therefore, is to deter-
mine whether evidence inadmissible
in such proceedings is admissible
in divorce. It is a simple, a
limited, but an important task.
The rule as laid down is not
limited to any special class of case.
It is absolutely general in
the comprehensiveness of its expression.
It has no geographical
qualification. It does not, for instance, lay
down that where
husband and wife are present in the same bed;
the same bedroom;
the same house; or the same town, the evidence
must be repelled;
but that it may on the other hand be received
if the husband has
(for instance) been absent from the country for
twelve months
before the birth of the child. It says, upon the
contrary, that
such evidence shall not be given at all; and the
reason
given is that it would tend, if given, to bastardise the issue
and
to invade the very special sanctity inherent in the
conjugal
relation; and the reason is assigned which led first the
Delegates
and then the ordinary Courts to a conclusion so widely
expressed.
It is a reason founded upon " decency, morality
and public policy."
This passage from the judgment of Lord
Mansfield has not the
meaning ascribed to it by the Court of
Appeal. Indeed upon this
point the Lords Justices went strangely
wrong.
Lord Sterndale, for instance,
said :
" Morality v. decency
in Lord Mansfield's judgment
" seems to me to come to the
same thing. Now decency
" is very difficult to apply in the
Divorce Court, and
" for this reason, that from the very
nature of the pro-
" ceedings there evidence must constantly
be given that is
" perfectly loathsome to the ordinary mind."
And Lord Justice Warrington said
:
" With regard to decency,
when we have to consider
" the proceedings in the Divorce
Court it is strange that
" we should be asked to exclude some
particular item
" of evidence on the ground that to admit it
would be
" contrary to the principles of decency."
Lord Mansfield was not concerned
with the grossness or
indecency of the subject matter which the
reception of such
evidence might involve. Nor indeed ought any
Judge, who
understands his business, to trouble his head as to the
indecency
of evidence if its examination be required for the
elucidation
of truth. No Court is contaminated by examining any
facts,
or reviewing any language, which the administration of
Justice
requires. Judges must do their duty, sacrificing if
necessary
their delicacy in the process. What Lord Mansfield meant
was that
a deeply seated domestic and social policy rendered it
unbecoming
and indecorous that evidence should be received from
such a source;
upon such an issue; and with such a possible
result.
A long series of later
decisions, of which I shall only examine
one, has confirmed and
re-stated the rule as laid down in Goodright.
The case in
question, Rex v. Kea (11 East 132), was one of
those
familiar Pauper Settlement cases in which it became
necessary to
determine whether a child was legitimate or not, in
order to provide
him or her with the legal parish of settlement.
It was tried in the year 1809.
It was therein laid down that a
woman cannot give evidence
of the non-access of her husband so
as to bastardise her issue, even
though the husband had died
before the date of her examination
as a. witness.
3
Lord Ellenborough, G.J., when
the case was called for hearing,
said that the evidence
recommended would be in direct contra-
diction to the decision in
The King v. Reading and other cases.
The principle
of public law precluded the wife from being a witness
to the
effect of the non-access of the husband.
The other members of the Court
signified their concurrence
with this opinion.
The argument of Counsel who
appeared to support the Order
of Sessions was in itself very
significant. They said that this case
was distinguishable from
others, because the husband was dead
at the time when the wife was
examined; and therefore if the rule
had stood merely on the ground
that the giving of such testimony
was calculated to promote
dissension between husband and wife,
it would have ceased to apply
in this instance, where one of the parties
was dead; but if the
Court considered that the rule stood on the
broad ground of
general public policy, affecting the children born
during the
marriage as well as the parties themselves, they could not
pretend
to argue in support of the Order.
The Court unanimously assented
to this broad statement of
the rule, affirmed its re-statement in
the terms proposed, and
discharged the Order of Sessions
accordingly.
It is not disputed that the rule
existed, and was of the highest
authority. But two main
contentions are advanced to repel the
ease made by the Appellant.
It is replied in the first place
that the rule only applied to
legitimacy proceedings properly so
called.
And it is replied in the second
place that the Act of 32 & 33 Vict.,
cap. 68, sec. 3, has
rendered evidence of non-access admissible in
such cases.
In my opinion both these
contentions fail.
I find nowhere in any of the
cases which were elaborately cited
before us any authority for the
suggested limitation. And by
reference to what principle (and we
are after all dealing with
principles) is such a distinction to be
drawn? When we are told
that a rule is founded upon public policy,
decency and morality it
would seem natural to propose it in all
cases to which it applies
verbally provided that we are still able
to bring ourselves within
the public considerations which were the
expressed basis of the rule.
If, for instance, in an issue where
the child himself is a party—a
legitimacy proceeding in
rem in the true sense—it is against public
policy to
admit the evidence of a parent to prove the bastardy of
that
child; why should an entirely different policy permit such
evidence
in the case where a vital issue is still the legitimacy of the
child,
even though it be raised for a different purpose, and perhaps
with
secondary emphasis ? Nor ought we to shut our eyes to the
glaring
absurdity in which a different decision would involve
the
administration of this branch of the law. This evidence, we
are
told, is admissible in divorce; being therefore so received
it
bastardises the child. But if and when the child, as in this
case he
certainly will do, becoming of age, applies for his writ
in this
House; and proceedings follow; the evidence will not be
admissible
and he mil be pronounced legitimate. Equally, of
course, if the
child instituted proceedings to-morrow for a
declaration of legitimacy
we should be afforded the agreeable
prospect of holding judicially
in 1924 that the infant was
illegitimate; and in 1925 that he was
legitimate. Nothing but
absolute necessity, founded upon decisions
binding upon me, would
drive me to a conclusion so ludicrous and
incongruous. I find here
no such necessity. On the contrary, by
adhering to an ancient rule
of the highest authority, in its natural
and ordinary meaning;
adding nothing to it; but giving full effect
to the terms in which
it has been expressed; 1 am able to avoid an
inconsistency which
would rightly bring the law into disrepute.
It was urged by Counsel that
similar discrepancies of decisions
were to be found in the Divorce
Court; that A for instance might
4
be found guilty of adultery with
B; and B in the same proceedings
found innocent of
adultery with A. This contingency, the logical
basis of
which I carefully examined in Rutherford v. Rutherford,
has
nothing in common with the consequences I am
contemplating
here. A reference to my judgment in that case will,
I believe, make
the matter plain.
It remains only to notice one
other argument which arose in
this part of the case. It is said
that the view recommended above
will revolutionise the practice of
the Divorce Court. And my
attention was called to the fact that in
an undefended divorce case
which I myself tried at Nisi Prius I
had admitted evidence of non-
access, bastardising the issue, and
given by a soldier petitioner.
The matter was not argued; so that
ray attention was not directed
to the point. With argument, I am
sure that I should have reached
my present conclusion. In such
cases the non-access can almost
always be established aliunde.
If it cannot be so proved the practice
of the Divorce Court
must accommodate itself to the authority of
the rule.
I have only now to consider
whether section 3 of the Act of
1869 has affected the validity of
the doctrine.
The section runs as follows :—
" The parties to any
proceeding instituted in conse-
" quence of adultery, and the
husbands and wives of such
" parties, shall be competent to
give evidence in such pro-
" ceeding. Provided that no
witness in any proceeding,
" whether a party to the suit or
not, shall be liable to be
" asked or bound to answer any
question tending to say
" that he or she has been guilty of
adultery, unless such
" witness shall have already given
evidence in the same
" proceeding in disproof of his or her
alleged adultery."
I am myself quite unable to
understand how this section can
have the effect assigned to it by
the Court of Appeal It makes
indeed the parties to any proceeding,
instituted in consequence of
adultery and the husbands and wives
of such parties, competent
to give evidence in such proceeding.
What in effect does it make
such persons competent to do? Plainly
and only, I should have
thought, to give such testimony as the law
of evidence allowed
at that date, or as after-wards modified that
law may allow. It
did not, and it did not purport to, alter any
existing rule of evidence
except that which dealt with the actual
competency to give evidence
at all. I cannot follow upon this
point the reasoning of the late
Master of the Rolls.
That distinguished Judge made
the following observations
upon the subject:
"I agree that the statute
did not make (the parties)
" competent to give any sort of
evidence whether it was
" according to the rules or not; it
enabled them to give
" evidence subject to the restrictions
as to what could be
" given that apply to any other witness;
therefore, for
" instance, hearsay could not be given by
those parties.
" But subject to that it seems to me
that the result of
" making them competent witnesses in a
proceeding
" instituted in consequence
of adultery made them wit-
" nesses who could give evidence
on any matter which
"was relevant to the issue
to be tried; that issue being
" whether the respondent had or
had not committed
" adultery."
With the greatest possible
respect for this lamented Judge,
I think that the whole of the
passage which I have quoted involves
a confusion of thought. When
the old rule was applied, before
the statute came into existence,
the evidence under consideration
5
was not excluded upon the ground
that it was irrelevant. ; It was
excluded, and was
expressed so to be, in obedience to deeper impli-
cations of
social policy. Those implications evidently still survive;
and it
is therefore as unimportant to-day, as it would have been
before
the statute, to insist that the evidence if it were allowed
(which
it is not) would be relevant.
It is worth noticing that the
supposed effect of the statute
furnished the ratio decidendi in
the Court of Appeal. The judgments
of that Court, therefore, if
wrong upon that point, contribute little
or nothing to the problem
before us. The view that in this
particular they were right was
not very strenuously argued by
Counsel; and has not, I believe,
commended itself to many of your
Lordships.
The conclusions, therefore,
which I reach upon the whole
matter are: firstly, that the rule as
laid down by Lord Mansfield,
and other great Judges, is a general
rule to be applied, in the full
generality of its scope, to all
cases which it is wide enough to cover;
secondly, that the Act of
1869 has not affected the rule in any way.
The witnesses indeed
have become competent: but still they may
not give this evidence;
for the law does not allow it.
I am therefore of the opinion
that this verdict cannot stand,
and I move your Lordships
accordingly.
sess. 1924. [h.l.]
Earl of
Birkenhead.
Viscount
Finlay.
Lord
Dunedin.
Lord
Sumner.
Lord
Carson.
RUSSELL
v.
RUSSELL.
Viscount Finlay.
MY LORDS,
in this
case the husband filed a Petition for dissolution
of marriage on
the ground of adultery. Paragraph 6 of the Petition
is as
follows:
" That the said Christabel
Hulme Russell has committed
" adultery with a man unknown to
your Petitioner, in
" consequence of which adultery the said
Christabel
" Hulme Russell gave birth, on the 5th day of
October,
*' 1921, to a male child, of which the said man
unknown,
" and not your Petitioner, is the father."
Adultery was also charged with
certain named Co-Respondents.
The case has been tried twice.
On the first trial the jury
negatived the allegations of adultery
with the named co-respondents
(who were dismissed from the suit),
but were unable to agree on
the issue as to adultery with a man
unknown.
Before the second trial the
Petition was amended by alleging
adultery with one Mayer and the
case was tried again before
Mr. Justice Hill, with a special
jury. The jury found that adultery
had been committed with a man
unknown, but not with Mayer.
Mayer was dismissed from the suit,
and a decree nisi was granted
on the ground of adultery
with a man unknown.
The wife moved in the Court of
Appeal that the verdict should
be set aside and the Petition
dismissed, or alternatively, that a
new trial should be had on
the grounds (1) that the verdict was
against the weight of
evidence; (2) that there was no evidence
on which the jury could
find adultery; (3) that the learned Judge
was wrong in law in
admitting the evidence of the Petitioner that
intercourse did not
take place between the husband and the
Respondent; and (4) on the
ground that there was misdirection
and insufficient direction.
The ground that the verdict was
against the weight of evidence
was abandoned in the Court of
Appeal by Counsel for the wife,
and this House has for that
reason refused to entertain the appeal
on that ground.
The case was argued in the
Court of Appeal on the question
whether the evidence of the
Petitioner was wrongfully admitted,
as alleged in the third
ground above mentioned, and the Appeal was
dismissed, the Court
of Appeal holding that the evidence had been
rightly admitted,
and that there was evidence of adultery. The
ground that the
verdict was against the evidence was, as I have
said, abandoned,
and the Court of Appeal held that there was no
misdirection. The
case now conies before your Lordships' House
on the wife's
Appeal, and the substantial question is whether the
evidence of
the Respondent as to non-access to his wife was rightly
admitted.
This is
purely a question of law. The inquiry falls under two
heads : (1)
as to the law of England on this subject as to such evidence
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before the passing of the Act of
1869 making the parties to proceed-
ings in consequence of
adultery admissible as witnesses; and (2) as
to the effect of that
Act upon the law in this particular.
There is a strong presumption
that the child of a married woman
was begotten by her husband.
This, however, is not a presumption
juris et de jure ; it
may be rebutted by evidence. The fact that the
wife had immoral
relations with other men is not of itself sufficient
to displace
the presumption of legitimacy; non-access by the hus-
band at the
time when the child must have been begotten must
(unless there be
incapacity) further be proved. Proof of non-access
cannot be given
for this purpose either by the husband or by the
wife; neither of
them can be asked any question tending to prove
such non-access;
it must be established entirely by the evidence of
other
witnesses.
The rule is one of public
policy, and is not confined to cases in
which the evidence would
have been of an indecent nature. Though
the fact that the husband
was not the father of the child is to be
established by showing
that at all material times the husband and
wife were living in
different places, or in different countries, and never
met,
neither husband nor wife can give evidence to that effect.
Very good reasons could be given
for respecting the sanctity
of married life in this matter, to use
the phrase employed by Lord
Halsbury in a case to which I shall
have occasion to refer further
on. But the rule is absolute, and
wisely so. It is not decent
that husband or wife should give
evidence to bastardise the issue
of the wife during the marriage,
however decorous the evidence
might be in itself. It cannot be
admitted, irrespective of the fact
that if it were admitted it
might run into details of a positively
indecent character, such as
were found in the present case.
The rule has been recognised in
a great variety of cases. There
is no ground for the suggestion
that it is confined to cases in which
it is sought to establish
legitimacy or illegitimacy as a matter of
status by proceedings in
the nature of proceedings in rent. It applies
in every case
in which, for any purpose, it becomes necessary to
determine the
question whether a child born of the wife during the
marriage is
the child of the husband. And the same rule applies
to
declarations on the subject of the paternity of the child made
by
the husband or the wife out of Court just as much as to
evidence
given in Court. It has been applied in many cases; for
example, in
actions of ejectment, when the title depended on the
legitimacy of
a particular person—in cases as to the parish of
settlement
of paupers, which might depend on a question as to the
legitimacy
of an infant pauper—in Peerage cases, in which the right
to
the Peerage depended on the question of the legitimacy of a
child
born of a married woman.
It is now suggested that the
establishment of the Divorce
Court and the Act of 1869, allowing
parties to proceedings in con-
sequence of adultery to give
evidence, have changed the rule of
evidence as to proof of
non-access. But before dealing with this part
of the case it is
essential to consider the authorities as to the law
of England,
apart from that statute, as settled by a series of decisions.
It
will be found that the law of England excluded evidence such as
was
admitted in the present case.
In the year 1777, Lord Mansfield
laid down the law on this point
in the ease of Goodright on the
demise of Stevens against Moss (2
Cowper, 591). The
action was one of ejectment, and declarations
by the parents of
the lessor of the plaintiff (i.e., the real plaintiff)
were
offered to prove that he was born before the marriage of his
parents.
They were rejected by Baron Eyre, the Judge who pre-
sided at the
trial. A motion was made in the Court of King's Bench
for a new
trial on the ground that the evidence should have been
3
admitted, and a new trial was
granted. Lord Mansfield laid down
the law with perfect clearness,
first during the argument and again
in the course of his Judgment.
He pointed out that there was ho
objection to evidence or
declarations by the parents that a particular
child had been born
before marriage, whereas they could not give
evidence to prove
that offspring born after the marriage was spurious.,
In the
course of the argument, he said :
" All the cases cited are
cases relative to children born
" in wedlock, and the law of
England is clear that the
" declarations of a father or
mother cannot be admitted to
" bastardise the issue born
after marriage. But here the
" evidence offered is only to
prove the time when the issue
" was born and to show whether
it was before the marriage
" or after."
In the course of his Judgment,
Lord Mansfield said:
" As to the time of birth,
the father and the mother are
" the most proper witnesses to
prove it, but it is a rule
" founded on decency, morality and
public policy that they
" should not be permitted to say,
after marriage, that they
" had had no connection and
therefore that the offspring is
" spurious, more especially
the mother, who is the offending
" party. The point was
solemnly determined by the
" Delegates."
Lord Mansfield points out in
these passages that the evidence
tendered had been rejected owing
to a misunderstanding and lays
down the true rule. It is clear
that the expression used in Lord
Mansfield's observation during
the argument, " bastardise the issue,"
is not confined
to proceedings in the nature of a suit in rem to have
a
formal and binding declaration as to legitimacy or the reverse.
The
expression merely denotes giving evidence to show that the child
is
illegitimate, and this in the case of a child after marriage,
no
parent can be admitted to give.
The same rule was applied where
the question arose as to
settlement of paupers.
The child of a married woman is
prima facie legitimate. To
displace this presumption it
must be shown that the husband
could not have been the father of
the child, and this will be
established if it be proved that there
was no access by the husband
during the period when, in the course
of nature, the child must
have been conceived. In a great many
cases, efforts were made
to show that the parish of settlement of
the husband of a married
woman should not be the parish of
settlement of the child born by
her, on the ground that the child
was a bastard, in which case the
parish of birth would have been
ordinarily the parish of settlement
of the infant. It was
uniformly held that non-access for this
purpose could not be
proved by the testimony of the husband or the
wife, and that their
evidence could not be received on such a point.
In 1809 the
question arose in the case of Rex v. Kea (11
East,
132). An Order had been made by two Justices for the
removal of
the pauper, a child of the age of seven years, to the
parish of
St. Evall, the parish where Pope, the husband of the
mother, was
legally settled. At the time of the birth, she was
cohabiting in
another parish with one Davey. She was called as
a witness before
the Justices to prove non-access by Pope, her
husband, and the
Sessions, on appeal, on her evidence reversed the
Order of removal
to his parish of settlement, subject to a case
stated to raise the
question whether the evidence of the mother
in proof of non-access
of her husband, ought to have been
received. Lord Ellenborough
ruled that this evidence was not
receivable and that the principle
of public policy prevented her
from being a witness to that fact.
The Order of the Sessions was
reversed and that of the Justices
restored.
A2
In the year 1836, the point
again arose as to the settlement
of a pauper on a Case stated by
Sessions on an appeal against an
Order of the Justices for the
removal of a pauper from one parish
to another (Rex v.
Sourton, 1836, 5 Adolphus and Ellis, 180). The
Respondents
relied on proof by the husband of the mother of
the pauper of
non-access for the purpose of proving illegitimacy.
The Sessions
stated that they were satisfied with the proof of non-
access, if
they were right in admitting the evidence of the husband
(Tickle).
The Order was to be quashed if this evidence was
inadmissible. The
Order was quashed by the Court of King's Bench
on the ground that
such evidence was inadmissible. The Court
consisted of Lord
Denman, C.J., Mr. Justice Littledale, Mr. Justice
Patteson and Mr.
Justice Williams. Lord Denman, C. J. said:
"It is desirable to show,
in a case of such importance
" as this, that we adhere to the
old rule of law without
" any doubt. The rule cited in 2
Starkie on Evidence,
" page 139, Note (x), Second
Edition, from Goodright on
" the demise of Stevens
v. Moss (supported also by The
" King v.
Kea in the same note) is that parties should not
" be
permitted after marriage to say that they had had no
"
connection. Then, it being clear that for the purpose of
"
proving non-access neither husband nor wife can be a
"
witness, the question is whether the circumstances of
" the
present case bring it within that rule."
He then goes on to say that
Tickle, having been called for a different
purpose, was
cross-examined for the purpose of proving non-access,
and adds:
" They (the Sessions) have
therefore admitted the
" husband to prove what, by a rule of
law clear and
" undoubted, and of obvious public utility,
they could not
" receive as evidence from him. The Order of
the Sessions
" must be quashed."
Mr. Justice Littledale said that
he agreed in the rule that
neither the wife nor the husband ought
to be called to prove non-
access, and that it excluded all
questions which had a tendency to
prove non-access. He concluded
his Judgment by saying:
" I think that the evidence
was as much inadmissible
" as if the question had been put
whether or not the parties
" had had any connection."
Mr. Justice Patteson agreed, and
said :
" It is trifling to say
that all inquiries may be
" made of the witness close up to
the point of access or
" non-access, so that by a variation
of terms the direct
" question on that subject be avoided."
Mr. Justice Williams said that "
non-access is a fact not to be
" proved by the husband or
wife."
The point has often arisen on
cases of controversy as to the
right of succession to a Peerage.
The same rule to which I have
already adverted as applying to
questions of descent in actions of
ejectment and of settlement of
paupers has always been applied in
proceedings of this nature
before the Committee of Privileges.
Lord Halsbury refers to the
existence of that rule in the Poulett
Peerage case (1903,
A.C. 395, pp. 398-399, Minutes of Evidence
before the Committee of
Privileges on the Poulett Peerage case,
pp. 53-54). The
question there was whether Lord Poulett, the
husband, could give
evidence that he was not the father of a child
of which his wife
was found to be pregnant when she married him.
It was decided that
he could, and Lord Halsbury pointed out that
the case was quite
different from that of proving non-access during
marriage. He said
in the course of his opinion (page 54 of Minutes):
" My
Lords, I can only say for my own part, as regards
" the rule
which I think most wisely and properly protects
5
" the sanctity of married
intercourse and permits it not
" to be inquired into in any
Court of Law, it would be a
" gross perversion of that
principle to say that, under the
" circumstances which I have
suggested, the husband
" should not be at liberty to prove
his own virtue at all
" events, and to prove that he had not
induced the woman
" whom he was afterwards to make his wife
to be guilty of
" the sin of fornication."
This is a very emphatic
recognition of the rule of evidence in
this matter by a great
master of the law of evidence. The passage
has been criticised at
the Bar as too wide a statement of the rule.
Such criticism seems
to me to be mistaken. Lord Halsbury was
dealing with a ease in
which the legitimacy of the child was in question,
and pointing
out the great difference between denial of intercourse
during
marriage and denial of intercourse before marriage.
In the Aylesford Peerage case
(1886, L.R. 11 A.C. 1) letters
of the wife were admitted in
evidence before the Committee of
Privileges as part of the res
gestoe and evidence of conduct (p. 11,
Lord Selborne). At page
9, Lord Selborne says:
" But it is said that a
declaration by the wife bearing
" directly upon the point, if
occurring in such a letter,
" ought not to be received. I
agree that it should not be
" received as direct evidence of
the fact."
But he was of opinion that the
letter might be read as evidence of
conduct.
Lord Bramwell says as to these
letters (page 11):
" As mere declarations by
Lady Aylesford, of course,
" they would not be admissible;
they are only admissible
" as part of the conduct—part
of the res gestoe."
It is unnecessary to labour this
part of the case. It is beyond
controversy that by the common law
of England neither husband
nor wife could give evidence of
non-access after marriage for the
purpose of showing that a child
of the wife born during the marriage
was illegitimate. Reference
was made on the argument to the fact
that Mr. Wills, Q.C.,
admitted in the case of the Notting-
ham Guardians "
that the husband's evidence would have been
admissible except to
bastardise his issue'" (L.R. 4 C.P.D. at
p. 346). The whole
object of the evidence in the present case is
to bastardise the
child so as to prove the adultery. The Respondent's
argument on
this point rests on the misapprehension of the meaning
of the term
" bastardise " employed by Lord Mansfield in
Goodright
against Moss, to which I have adverted in
commenting on that case.
The term covers all cases in which the
evidence is given to prove
the illegitimacy of the wife's child
born during the marriage.
I pass to the question whether
the rule has been altered by
statute.
The Respondent contends that,
whatever was the old rule,
the Act of 1869 (32 & 33 Vict., ch.
68, s. 3) has rendered evidence
of non-access by husband or wife
admissible. That section is in the
following terms:
" The parties to any
proceeding instituted in conse-
" quence of adultery, and the
husbands and wives of such
" parties, shall be competent to
give evidence in such
" proceeding : Provided that no witness
in any proceeding,
" whether a party to the suit or not,
shall be liable to be
" asked or bound to answer any question
tending to show
" that he or she has been guilty of adultery,
unless such
" witness shall have already given evidence in
the same
" proceeding in disproof of his or her alleged
adultery."
The first observation to be made
on this Act is that it is an
Act to render the husband and wife
competent witnesses. It leaves
6
intact the law as to what
evidence they may give; the proviso
merely confers a certain
immunity against questions tending to
show that the witness has
been guilty of adultery.
The question is one simply of
the construction of the statute.
The competency of persons to give
evidence in a certain case has
no bearing on the question of what
evidence they may give. The
Master of the Rolls said, in his
judgment in this case (App., p. 637,
A-B), that the statute did
not make the husband and wife com-
petent to give any sort of
evidence, whether it was according to
the rules or not: " it
enabled them to give evidence subject to the
restrictions as to
what could be given, just like any other witness."
This seems
to me an accurate statement of the effect of the statute.
He goes
on to say, however, that he thinks they may in this case
give
evidence of non-access to prove the illegitimacy of the
child,
because the issue in the case is whether adultery was
committed,
and the evidence of non-access is given only to show
that adultery
must have been committed, as it was not begotten by
the husband.
The Master of the Rolls held that the rule is
confined to
cases in which legitimacy is the issue in the suit. I
cannot assent
to this limitation. Every reason for the rule is
just as applicable
to a case in which illegitimacy is proved to
show adultery as it is
to cases in which the inquiry is merely as
to the status of the child.
The limitation suggested is
entirely novel. The rule does not exclude
evidence by husband and
wife of non-access universally; what it
does exclude is such
evidence given to prove the illegitimacy of a
child born during
the marriage. It has never been held that its
applicability is
confined to " legitimacy cases "—it applies to
every
case in which legitimacy is in dispute.
It was in an action of ejectment
(Goodright on the demise of Stevens
v. Moss) that
Lord Mansfield laid down this rule. He said that decla-
rations
by the parents that the child had been born before marriage
had
been improperly rejected, and, when he stated the true rule as
being
that the declarations of a father or a mother cannot be admitted
to
bastardise the issue born after marriage, it is obvious that he
was
speaking of it with reference to the class of action which was
before
the Court. The Settlement cases in which the rule was so
often
applied were not legitimacy cases in the sense in which the
M.R.
uses the term, they were merely cases in which the parish
of
settlement depended on legitimacy or illegitimacy, just as the
title
to land in ejectment may so depend. Such evidence has been
always
excluded not merely when the status of legitimacy is to
be
determined in proceedings for the purpose, but whenever the
question
of legitimacy arises in order to ascertain the right to
land, to a
parochial settlement, to a title, or to anything else.
The rule applies
to all evidence by husband and wife of
non-access in order to show
that a child born of the wife after
marriage is illegitimate. As the
M.R. said, the evidence which
the husband and wife may give is subject
to all legal
restrictions, and one of these is that they cannot be called
to
disprove intercourse so as to bastardise the child.
Lord Bramwell in the Aylesford
Peerage case made some ob-
servations which bear upon this
question of the effect of the Statute
of 1869. In that case
there was a petition by the brother of
the seventh Earl of
Aylesford that he should be summoned to
Parliament as having
succeeded to the Earldom on the death of
his brother (1885 11 AC.
1). The petition was opposed on behalf
of an infant son of the
widow of the seventh Earl as entitled to the
Peerage. Letters
written by her were tendered in evidence. Mr.
Horace Davey,
K.C., on her behalf, objected to their being admitted.
He said
(p.7) " These letters are said to contain statements as to the
'
legitimacy of the child. It is clear upon the authorities that
'
the mother not only could not be called to state the fact who
'
the father of the child was but could not be asked any collateral
'
questions tending to prove or disprove that fact for the rule
'
extends equally to such collateral questions. Her statements or
7
" declarations are
therefore equally inadmissible for the purpose
" of
bastardising the child "; and he referred to R. v.
Inhabitants
of Sourton (ubi supra). Lord Bramwell said that
the rule excluding
husband and wife was based on public policy and
asked whether
the rule exists now that by Act of Parliament
husband and wife are
admissible witnesses in divorce suits (p. 8).
The letters were
admitted as part of the res gestoe. Lord
Bramwell prefaced his
judgment on the point by saying that he had
raised a doubt as to
whether the rule of law referred to by Mr.
Davey was still in existence
and added " That doubt is
removed not merely by the authorities
" cited by Mr. Davey
but also by the reason of the thing as put by
" him, that is
to say, that it is a positive rule of law, and that it is
"
not expressly abrogated by statute."
This is an expression of opinion
by Lord Bramwell that the
statute did not affect the rule as to
proof of non-access. It may be
that the statute of 1869 should not
be treated as affecting such
cases as the Aylesford case,
as not being a proceeding in conse-
quence of adultery. But Lord
Bramwell clearly was of opinion
that the statute did not affect
the rule against proving non-access
either by the evidence or by
the declarations of husband and wife.
The other members of the
Committee (the Earl of Selborne and
Lords Blackburn and
Fitzgerald) assume for the purpose of their
decision that the rule
exists but express no opinion upon the effect
of the statute.
This Act has been referred to in
two cases arising in Courts
of Equity.
In Rideout's Trusts (1870
L.R. 10 Eq. 41) on a question as to
distribution of estate the
husband gave evidence that a Respondent
claiming to be entitled as
one of the children of the marriage was
born during the coverture
but alleged his illegitimacy on the ground
of non-access. The
third section of the Act was referred to. James,
V.C., said he did
not like to say that the effect of the statute was
to supersede
the old rule and required other evidence of non-access
which was
procured. It may be pointed out that the proceeding
was not one in
consequence of adultery so that the Act did not
apply, but we have
the opinion of the V.C. that it would not have
altered the old
rule.
In Yearwood's Trusts (1877
5 Ch. Div. 545) Hall, V.C., discussed
the decision in Rideout's
Trusts, but I do not think that what was
said by him throws
light upon the present case.
There is some discussion of
these two cases in The Guardians
of Nottingham v. Tomkinson
(1879, 4 C.P.D. 343) before Grove, J.,
and Lopes, J., on a
case stated by justices in proceedings against a
husband for an
order on him to maintain a child born of his wife
in, wedlock, but
which he maintained was illegitimate. The pro-
ceedings were
obviously not proceedings instituted in consequence
of adultery
and the Court decided on this ground that evidence
by the husband
of non-access was inadmissible. The construction
of the Act is not
considered in the judgments; as it did not apply,
the case was
clear on the general rule of law to which I have
referred
repeatedly in the course of this judgment.
The question of the effect of
the Act on evidence by husband
and wife of non-access to prove
illegitimacy is not elucidated by
any of these eases except the
Aylesford case, in which Lord Bramwell
gave it as his
opinion after consideration that it had not the effect
for which
the Respondent contends. It appears to me on the
reason of the
thing that he was right; the statute does not deal at
all with the
admissibility of evidence, it deals with the competence
of
witnesses to give evidence. The common law rule, therefore,
remains
unshaken.
It was suggested on behalf of
the Respondent that the rule
of evidence as to non-access not
being proved by husband or wife
does not apply to a suit for
dissolution of the marriage. There
8
is no authority for this
proposition, and it is contrary to principle.
Divorce is legal,
but the party who wishes to obtain divorce
is not dispensed from
observing the rules of evidence. In the
present case, the charge
of adultery rests solely upon the birth of a
child, which is said
to be bastardised by the husband's proof of
non-access. It falls
within the very terms of the rulings of Lord
Mansfield and Lord
Ellenborough. This evidence is given directly
for the purpose of
bastardising the child, and is the only evidence of
the adultery.
We have been referred to the
practice of the Divorce Court
in admitting such evidence in
proceedings for divorce. I desire
to refer, in this connection, to
a passage in the Judgment of the
Master of the Rolls in the
present case (Appendix, page 640, letters
A to B).
" I am not going to trouble
very much about the prac-
" tice which we have been told has
been in existence of
" admitting evidence of this kind. I
think there are cases
" which have been cited before the late
Lord St. Helier,
" before the late Lord Hannen, and before
other Judges
" of the Divorce Court, which all go to show
that, in their
" opinion, according to the practice of the
Divorce Court,
" such evidence could be given whether upon
questions of
" adultery or sometimes on questions of the
custody of
" children, where the question of the paternity
comes in
" issue. It may be that practice has been wrong, at
any
" rate, it is a practice which does not bind us. In my
"
opinion it was not wrong. I think it proceeded upon
" the
proper ground : the evidence was admissible and
" relevant,
and the exception which did not allow it in
" legitimacy
cases does not extend to cases in the Divorce
" Court, cases
instituted in consequence of adultery."
I have not been able to find the
cases referred to by the M.R.
in this passage as containing such
expressions of opinion. The
cases referred to by the Respondent's
Counsel on this point were
the following:—Hetheringtan v.
Hetherington before Hannen, J.
(1887, 12 P.D. 112), Rowell
v. Rowell in the C.A. (1899, 1 Q.B. 9),
Synge v.
Synge before Sir Francis Jeune (1900, P. 80), and in the
Court
of Appeal (1901, P. 317), Gordon v. Gordon before Sir
Francis
Jeune (1903, P. 141), and Gaskell v. Gaskell
before the Lord Chancellor
(1921, Times Law Reports, Vol. 37,
p. 1). In none of these cases
can I find any intimation of opinion
from the Bench upon the point
such as the M.R. refers to.
Hetherington v.
Hetherington (ubi supra) is reported also in the
Law
Journal (56 P. and Adm. 78) and in the Law Times Reports
(57 L.T.
N.S. 533). It was a case of an application to Sir J. Hannen
to
vary an order which had been made by Justices under s. 4 of
the
Matrimonial Causes Act, 1878 (41 Vict. c. 19) that the wife
should
no longer be bound to cohabit with her husband, who had
been
convicted of an aggravated assault upon her, and that he
should
pay her a weekly allowance, which by the Act might cease if
she
were guilty of adultery. The application was dismissed on
the
ground that the Court had no jurisdiction to vary such an
order
except on appeal. Nothing was said by Sir J. Hannen in
approval
of the practice of the Divorce Court as to the admission
of evidence
such as that now under consideration. Indeed, it
appears from all
the three reports of the case that he pointed out
with some fullness
that the Separation Order had the effect of a
judicial separation,
that all presumptions arising from the state
of marriage were at
an end, and that any child born more than nine
months after the
separation was presumably illegitimate. Rowell
v. Rowell (ubi supra)
was a case of covenant for an
allowance to the wife and the
question was whether on the terms of
the separation deed it had
9
ceased owing to a renewal of
intercourse between the husband and
wife, while Synge v.
Synge (ubi supra) was a case of refusal of marital
intercourse
by the wife, and neither of them throws any light on the
present
case. Gordon v. Gordon (ubi supra) merely illustrates
the
proposition that the husband is the father unless intercourse
is
disproved, and Gaskell v. Gaskell (ubi supra) (as
to the period of
gestation) contains nothing relevant to this
Appeal.
It appears that in the Divorce
Court a practice has grown up
of admitting such evidence by
husband and wife, to the extent of
allowing proof by them as to
absence at the material time. The
question now arises whether this
practice is right. I have given
my reasons for thinking that it is
erroneous and that the rule
excluding such evidence is not
confined to " legitimacy cases," as
the M.R. thought,
whatever that expression may denote, and
that its application
extends to all evidence of non-access. The
practice must be based
on a certain construction of the Act of
1869. If it appears that
the Act does not bear that construction the
foundation for the
practice is gone and the whole superstructure
collapses. The fact
that such a view is favoured by the practice
of the Divorce Court
cannot affect the meaning of the Statute.
The admission of such
evidence must in many cases shorten cases
and save expense. There
is great pressure of business in the Divorce
Court, a great many
of the cases are undefended, and, in the cases in
which a defence
has been entered, very commonly both parties are
equally anxious
to get a divorce. The point has never really been
seriously
considered and adjudicated upon.
we have been referred to the
practice of admitting the
evidence of the husband and wife in
nullity suits, and in suits for
cruelty as between husband and
wife. Such suits have no relevance
to the present question. In
them there is no question of paternity,
or of bastardising issue.
It is immaterial with what object such
evidence is given, but,
unless there is a child, and the evidence is
to show that that
child is not the child of the husband, the rule
never comes into
play at all. In condonation cases the question
of bastardising
issue will, in the nature of things, very rarely, if
ever, emerge.
If it should, in the course of the consideration of such
a
defence, become necessary to ascertain the paternity of a
child,
non-access could no more be proved by the husband or wife
than
it could in other proceedings.
It is admitted that evidence of
non-access by husband or wife
is inadmissible in Peerage cases, in
legitimacy cases, and in actions
of ejectment for land. To what an
extraordinary state would the
admission of this evidence in the
present case reduce the law of
England? The infant may be
illegitimate for the purpose of
proving adultery; but legitimate
for the purpose of succeeding to
property or a title !
It was sought to palliate the
proposed creation of such anoma-
lies by referring to the case
which sometimes occurs in the Divorce
Court of a finding that A
committed adultery with B, while B is
acquitted. It sometimes
happens that there are admissions by the
Respondent of adultery
with the Co-respondent or vice versa. In
such cases there
may be a finding against the one but not against
the other. Such a
case, depending as it does on the absence of
evidence against one
of the parties, has no analogy with that now
under discussion.
It is clear that such evidence
would not be admissible in an
action of ejectment or proceedings
as to right to a peerage. The
Legitimacy Declaration Act, 1858 (21
& 22 Vict. c. 93), provides
that application may be made by
Petition to the Court for Divorce
and matrimonial causes praying
the Court for a decree declaring
that the Petitioner is the
legitimate child of his parents and that
the Court may hear and
determine the application and may make
such decree declaratory of
the legitimacy or illegitimacy as to the
Court may seem just, and
such decree shall be binding on all persons
A 5
10
with an exception for the case
of persons who have not been cited
or made parties and for any
case in which it is proved that the decree
was obtained by fraud
or collusion. It cannot be disputed, and
indeed was admitted, that
on such a petition the evidence of the
husband would not be
admissible to prove non-access. The result
might be that on the
petition there would be a declaration in favour
of the legitimacy
of the child. If your Lordships should come
to the conclusion that
the evidence by the husband of non-
access was admissible in these
divorce proceedings, and if such
evidence be not admitted, as
seems inevitable, on any such
Legitimacy Petition, there might be
a grotesque conflict in the
results of the two proceedings, the
child illegitimate in the one,
legitimate in the other. The
Respondent attempted to meet this
by saying that such paradoxes
are not unknown to the law of
England; I am not aware of any so
startling, and if there were it
would be no reason for creating
another. Your Lordships are now
asked to introduce by decision a
difference in the substance of
the law of evidence according to
the tribunal before which the
question may arise with the
possibility of results whimsical in
themselves and discreditable
to the law.
In my opinion the evidence
should not have been admitted.
Earl of
Birkenhead.
Viscount
Finlay.
Lord
Dunedin.
Lord
Sumner.
Lord
Carson.
RUSSELL
v.
RUSSELL.
Lord Dunedin.
MY LORDS,
In this case the
Appellant has been found guilty of adultery
with a man unknown.
In the course of the case no fewer than
three co-respondents have
been successively arraigned, and in each
case they have been
discharged in virtue of a verdict in their
favour. There being no
evidence such as a confession, which may
be evidence against the
maker of it but not against others, these
verdicts are equally in
favour of the Appellant.
The finding that the Appellant
has been guilty of adultery
rests upon three propositions: (1)
That she has had a child;
(2) that a child cannot be conceived
and born to a woman without
previous intercourse with a man; and
(3) that the Appellant,
during the period within which, according
to nature, the child
that was born must have been conceived, had
no such intercourse
with her husband the Respondent.
As to the two first of the
propositions there is no controversy—
the third is denied
by the Appellant.
I have designedly used the
somewhat imprecise word " inter-
course " because the
facts in this case, as set forth in the summing-up
of the learned
Judge, are very peculiar, and I should think unique.
The
Appellant conceived and had a child without penetration
having
ever been effected by any man; she was fecundated ab
extra;
she had denied intercourse of any sort with any man not
her
husband; she had admitted that her husband had never
effected
penetration, but she had said, and he had admitted,
that he had
been in use to lie between her legs with the male organ
in more
or less proximity to the orifice of the vagina, and to proceed
to
emission; but he asserted that, in his opinion, all he had
done
could not have caused conception, and he specially denied
that
there had been these practices during the relevant period,
though
he admitted that he was in bed with her on at least two
night;
during the same. The jury, this evidence being admitted,
after
a charge by the learned Judge which I consider was
scrupulously
fair, chose (as they were entitled to do) to prefer
the evidence of
the husband to that of the wife, and therefore
came to the con-
clusion that she had been fecundated ab extra
by another man
unknown, and fecundation ab extra is, I
doubt not, adultery.
It is obvious that the
particular verdict depends upon the
admissibility of the
husband's evidence. Your Lordships have
already decided that the
question of whether the verdict can be
supported is not open to
us, the point having been abandoned by
the Appellant's Counsel in
the Court below. The only matter,
therefore, that remains (a
question at once novel and of immense
importance) is whether the
evidence of the husband was admissible
as to non-access to his
wife. I say the evidence of the husband
because, although the
wife was examined as to the same subject,
that was only done
because the evidence of the husband had been
admitted, and if the
evidence of the husband was inadmissible her
evidence also must
be disregarded. This would not hurt her case,
[3.5.24] (2)22435—26(22252—3)
Wt 5494—0.83 15 6/24 E & S A
2
because it is evident that the
onus of the affirmative in what I have
called the third
proposition is on the Respondent, and that, without
his own
evidence, he must as to this particular verdict undoubtedly
fail.
My Lords, I am sorry to have to
go into details which may shock
listeners, and I regret
whole-heartedly that, according to a recent
decision of this
House, cases such as the present may not be tried in
camera ;
but, as it stands, if justice to my thinking is to be done
one
must mention these things.
Fecundation ab extra is
admittedly, by the medical testimony,
as vouched by the learned
Judge in his summing-up, a rare, but not
impossible, occurrence;
but its accomplishment will depend, not
only or exclusively on the
proximity of the organs, but on certain
other potential qualities
of the particular man. A comparison in
this matter between the
unknown man and the husband is obviously
an impossibility. The
crucial evidence therefore comes to be this,
the testimony of the
husband, that on particular nights he did not
indulge in what had
been a usual practice.
I may here leave the particular
facts, and put the question as
general: Is a husband to be allowed
to go into the witness box and
say, " Though I am not
impotent, though I had connection with my
" wife on other
occasions, though I was in bed with her on certain
" nights,
yet I say on those nights I did not have connection, and
"
if, accordingly, her conception must be referable to that period
"
she has been guilty of adultery ? "
My Lords, so stated, the
proposition, I confess, to my thinking,
is outrageous. But I will
at once make an admission. I do not think
for a moment that the
line can be drawn at what happened where
there is an admission
that the parties had been in bed together.
Non-access, although in
the relevant sense it means non-access to
the wife's person, must
include all the forms of non-access which
exclude the idea, on the
principle that the greater includes the less.
Otherwise one would
get into an inextricable quagmire. What of
separate beds in the
same room—of separate rooms with a connecting
door, and so
on ? So that I agree that the proposition must cover,
not only the
actual non-access, but also facts from which non-access
follows as
a necessary consequence.
But, while I admit this, I am
entitled to say this to those who
hold the other view, that they
on their side cannot have it both ways.
If they are entitled by
the mouth of the husband to prove that he
was in another Kingdom—a
proof in which no sense of propriety or
decency is wounded—they
must also on their theory face the out-
rageous feelings which the
point, as I have explained it above,
excites.
Now the pronouncement on which
the Appellant principally
relies is what Lord Mansfield said in
the case of Goodright on the
demise of Stevens v. Moss
(2 Cowper, 591). In the course of the
argument he had said : "
The law of England is clear, that the
" declaration of a
father or mother cannot be admitted to bastardise
" the issue
born after the marriage," and in the Judgment he said :
"
It is a rule founded on decency, morality and public policy that
"
they (i.e., the spouses) shall not be permitted to say after
"
marriage that they had had no connection, and that therefore the
"
offspring is spurious."
Upon this, two questions arise:
(1) Whether the dictum
applies to any but proper legitimacy cases;
and (2) whether, if
it does apply to cases where the issue is
adultery, it was made of
no effect by the Statute 32 and 33
Victoria, ch. 68, which provided
that the parties to any
proceedings instituted in consequence of
adultery and the husbands
and wives of such parties shall be com-
petent to give evidence in
such proceedings. 32 and 33 Victoria
represents the year 1869, and
therefore up to that time the exact
question here could not be
determined, because husbands and
wives in such proceedings were
inadmissible as witnesses. Since
3
that date, the point has never
in terms been decided, but there is
at least one authoritative
utterance. In the Poulett Peerage case,
the question was as
to whether the husband could give evidence
that he had not had
connection with his wife before marriage, and
Lord Halsbury, in an
opinion concurred in by Lords Macnaghten,
Davey, Robertson and
Lindley, expressed himself in general terms.
The passages are two:
"As regards the rule, which I think most
" wisely and
properly protects the sanctity of married intercourse,
" and
permits it not to be inquired into in any Court of Law" ;
he
then goes on to say that it does not apply to a period before
marriage,
and again he speaks of " a principle wisely
ingrafted, as I think,
" into our Law, which protects the
sanctity of the matrimonial
" relationship."
Sir Douglas Hogg, in the course
of as able and concise a speech
as I have ever heard at your
Lordships' Bar, admitted with perfect
frankness that the evidence
would be inadmissible in a legitimacy
case. I shall hereafter
advert to one of the necessary consequences
of such an admission,
but I hasten to add that I understand that
admission as applying
to nothing except legitimacy suits in the
narrowest sense, by
which I mean when the person himself whose
legitimacy is in
question is a party to the suit, or when the question
of Yea or
Nay to legitimacy necessarily settles the point of
controversy.
The dictum of Lord Mansfield is
not limited in expression.
It was pronounced in a case where the
actual person whose legitimacy
was in question was not any party,
but where the answer, Yea or
Nay, to the legitimacy settled the
true question in the case. The
same may be said of all the Poor
Law cases. The point is whether
A is chargeable to the Parish of B
or to the Parish of C. If A is
legitimate, then, as his legal
father had his settlement hi the Parish
of B, he is chargeable to
that parish; if he is not legitimate, then,
if either the real
father is known and belonged to the Parish of C
or if, the father
being unknown, the mother belonged to the Parish
of C, C is
liable. In none of these cases is it denied that the dictum
applies,
and that the evidence is inadmissible.
Now let me see how the case of
adultery stands. Adultery is a
fact. In the case we have here to
do with there is no direct proof
of the fact, but the fact is
logically and properly inferred from two
other facts, namely,
birth (which includes conception which again
infers fecundation)
and non-access of the husband.
Now the two facts give rise, not
to one, but to two logical and
proper inferences; they lead, as I
have already said, to adultery,
hut they also lead to illegitimacy
of the child that is born. Is
there any real difference, then,
between this case and the cases of
settlement, as to legitimacy
being the true issue ? In both cases it
is the solution of the
underlying question, whether the legal father
is the real father,
that determines the issue. In the one case the
result is to
declare a certain status, in the other it is to affirm a
certain
fact. I confess that, so far as I am concerned, I see no
real
difference between the two cases, so that, according to my
thinking,
the dictum of Lord Mansfield applies in terras. At the
same time I
admit at once, as I have said, that up to the present
it has not been
so applied.
But now let me turn to the ratio
of the dictum—that it is
contrary to decency, morality and
public policy to allow the parents
to say that during marriage
they had no connection, and that there-
fore the offspring was
spurious. Let me take each of the reasons,
though probably
morality and decency may be classed as one. I
have already pointed
out that the proof of non-access varies, accord-
ing as it invades
the privacy of the marriage chamber or only deals
with absence,
which prevented the spouses meeting. It may be
conceded at
once that no argument as to morality or decency touches
the latter
instance. But Lord Mansfield was dealing with all the
possibilities,
and it is, I think, equally clear that evidence as to what
4
happens when married persons are
in bed together does offend
against decency, which, in. the time
of Lord Mansfield, would have
been generally considered as
synonymous with morality. And here
I must most respectfully
protest against the sense attributed by the
learned Judges of the
Court of Appeal in this case to the term
" decency." The
late Master of the Rolls, whose judgments I have
always considered
with the greatest respect, did, I cannot help
saying, to my
thinking, entirely misinterpret the word " decency "
as
used by Lord Mansfield. Again and again he insists on the fact
that
in many other cases Judges are faced to consider details of the
most
unsavoury character, and that there can be no reason to
suppose
that, if they are subjected to that unpleasantness, they
would
shrink from what they might have to meet in respect of the
evidence
in question. My Lords, decency, as Lord Mansfield used
the term, I
venture to think had nothing in the world to do with the
feelings
of Judges. Judges are bound to do their duty. How far
they may
become case-hardened to all they are called on to hear will
depend
on individual attributes. But, whether it pains them or not,
I am
sure they will do their duty. The decency that Lord
Mansfield
referred to was the decency before all the world of
laying bare the
most secret, and, at the same time, the most
sacred, of the legitimate
relations of man and woman as husband
and wife. I do not think
I need emphasise the natural repugnance
which such a proposal
excites. Let me rather point out for a
moment the consequences
of allowing such evidence. I agree that in
so doing, though not
leaving the question of decency, I
necessarily also enter the domain
of public policy. Let me first
remind your Lordships that the sole
question is as to proving
adultery by reason of the two concomitant
facts, the birth of a
child and non-access by the husband. It is
common knowledge that
the use of various means to effectuate
birth-control is not
unknown, and is practised by some, be they
many or few. Are we to
have a husband going into the box to say:
" This child was
not mine, because I took the precautions which are
"
effectual," and then to have the jury consider the question as
to
whether this statement satisfies them ? Or again, is there to
be the
necessity that the jury are to be satisfied as to the
reliability of the
man's memory as to whether he, on a stated
occasion, did not exercise
marital functions ? And here I must say
I am not moved by the
observation made by the learned Judges of
the Court of Appeal when
it was pointed out that this opened the
door to a married man to
asseverate adultery on the part of his
wife when she had had a child,
that juries might be trusted.
Juries are not always right in
their determinations; they are
sometimes swayed by considerations
really irrelevant to the issue
before them, and the verdict of a
jury cannot be set aside merely
because it is wrong. If this
evidence is rightly admitted it puts
a weapon in the hands of a
husband, tired of his wife and anxious
for a new start (for be it
remembered this method of proving adultery
is unavailable to the
wife) the efficiency of which comes to depend
upon the view of a
jury upon a fact which hitherto has been thought
to be one which
ought never to be considered, except by the parties
themselves,
and it subjects the juries, where there is assertion and
denial,
to what I think is really an impossible task, namely, to find
out
which spouse is speaking the truth on a subject where no
corro-
boration of either is possible.
But the question of public
policy does not rest alone on the con-
siderations where it is
associated with decency. I have already
mentioned the admission of
the learned Counsel for the Respondent
that the evidence is
inadmissible in a true case of legitimacy; there-
fore, said he,
if the child in the present case grows up, and survives
the
Respondent and the Respondent's father, he will be able,
nemine
contradicente, to take his seat in this House. But
the child need not
wait till then; he may take proceedings under
the Declaration of
Legitimacy Act and have his legitimacy
proclaimed at once. What
5
a situation ensues. This
verdict standing, judgment is only reached
by the admission of the
fact that the seemingly legal father of the
child was not his real
father, and, if that is not a, declaration of
bastardy, what is ?
Yet at the same time, or at no long interval,
the same Court may
be called on to declare that the child is legitimate.
Is that a
position consistent with public policy ?
The learned Counsel seemed to
think that it was a good answer
to point out that in a case where
adultery is charged the wife may
be found guilty, and the
co-respondent with whom the adultery is
committed is set free. But
the case is not the same. Two persons
are there in question; the
one against whom a confession made by
herself is used, pays the
penalty; the other, against whom there
is no admissible evidence,
is not found liable in damages; there is no
question of status as
to him. But here the same person, and that
one who is powerless to
defend himself, is the subject of two
positively contradictory
findings. I am therefore of opinion that
the words of Lord
Mansfield are directly applicable to this case,
and that it is
against the interests of decency and public policy
that the
spouses should be allowed to give evidence of non-access,
and thus
de facto, even if not de jure, to bastardise their
issue, when
conception and birth alike fell within the time of
wedlock.
As to the form of non-access,
or, more accurately, the class of
evidence, such as absence, from
which non-access to the person can
be inferred, this can, I should
say, in every case be proved by
evidence aliunde.
If, then, the dictum applies,
was it altered by the passing of
the Act which made the spouses
competent witnesses in proceedings
arising out of adultery ? My
Lords, I cannot conceive how this
can be. The competency of a
witness, as a witness, is a perfectly
different thing from what
can be accepted as testimony. In Lord
Mansfield's time there was
no question as to the competency of the
spouses as witnesses; he
specially draws the distinction. He says
they are not only
competent, but the best witnesses as to the date
of birth. In all
the Poor Law cases, after the disability interest
was abolished,
the spouses were competent witnesses. I confess,
therefore, that
if once the rule is established, I see nothing in the
admission of
the spouses to be competent witnesses to alter the rule.
I have
had the advantage of reading the opinion delivered by Lord
Finlay
and I therefore do not repeat what he has said about Lord
Bramwell's
opinion in the Aylesford case : nor have I thought
it
necessary to quote the various cases which affirmed Lord
Mans-
field's dictum in terms.
But then it is said that the
testimony' of the spouses has been
admitted in many other cases—in
nullity, condonation, cruelty, and,
lastly, in adultery, in the
Divorce Court of recent years.
Now as regards nullity, cruelty
and condonation I do not
feel the slightest difficulty; the whole
point of Lord Mansfield's
dictum rests on the concluding words: "
and to make the issue
spurious," in other words, it is when
conjugal conduct is used,
not as a thing in itself, but as leading
to other inferences that
the harm comes in. No proof of conduct or
want of conduct which
shows nullity, no proof of cruelty, such as
communicating venereal
disease, no proof of connection such as in
itself is condonation,
has the remotest reference to the point of
legitimacy of issue. The
evidence of the spouses in these cases is
the only evidence available
to the direct fact in issue, and has
in the giving of it no evil
consequences.
Then, as to the practice of the
Divorce Court, Sir Douglas Hogg
has probably practiced but little
in that Court, but he had with him
others who had, and I did not
understand him to say that he could
cite any instance of the class
of testimony in evidence in this case
which has ever been given. I
can well imagine that, especially after
the war, it was found
convenient in undefended cases to allow the
husband to say: "
I left England on such and such a day; I did
x 22485—26 B
6
" not return until such a
day, and then I either found my wife had
" had a child or she
had subsequently had a child, when conception
" must have
been at the date when I was abroad." There was no
one to
object, and it saved time and trouble. But the facts could
equally
well have been proved by other witnesses in the regiment
to which
he belonged. The practice has never been sanctioned
by decision,
it is not binding on your Lordships, and I see no real
encroachment
on justice which its surrender would entail. I am,
therefore, not
affected by the fear that a judgment in the sense
in which I think
it ought to be pronounced would in any way upset
the practice of
the Divorce Court, or make the discovery of the truth
more
difficult. A judgment the other way would, in my opinion,
open the
door to gross abuse, put upon juries an almost impossible,
task,
do the very cruellest of wrongs to persons who cannot lift a hand
to
protect themselves, and introduce into the law an uncertainty
based
on inquiring into the details of life which ought to be
sacred
between the persons concerned. I am, therefore,
unhesitatingly
of opinion that the evidence ought not to have been
admitted,
and that the verdict cannot stand. To hold otherwise
would be to
open wide a door through which in the sequel falsehood
will enter
oftener than truth.
I am bound to make one other
observation. It may be said
that such harm as can be done to the
child is already done. His
legitimacy in law is secure, his
legitimacy in the eyes of the world has
perished with the verdict.
It is indeed a misfortune for him, if
my view is right, that the
evidence was ever admitted, even if we
find it was wrongly
admitted. But, after all, the verdict of the
jury is not
necessarily right. I do not consider myself at liberty,
in the
circumstances already mentioned, to examine the evidence,
and,
having done so, to express a conclusion of my own; but I may
say
it is trite law that Judges, who cannot interfere with the verdict
of
a jury, because they cannot say that there was no evidence on
which
such a verdict might be given, yet can and often do think
the
verdict of the jury was wrong. If this evidence was wrongly
admitted,
the verdict goes, and whether the verdict, even on the
evidence,
was right or not can never be a concluded question.
sess. 1924.—[h.l].
Earl
Birkenhead.
Viscount
Fin lay.
Lord
Dunedin.
Lord
Sumner.
Lord
Carson.
RUSSELL
v.
RUSSELL.
Lord Sumner.
MY LORDS,
the only
question upon which I shall trouble your Lordships
is the
admissibility of the Petitioner's evidence to the effect that at
no
material times were his relations with his wife such as could
have
resulted in the birth of the child of which she was delivered.
If
that was rightly admitted, the evidence before the jury was
such
that, after the unexceptionable direction of Hill, J., the
verdict
cannot be disturbed.
It is, of course, impossible
not to be very fully alive to the
fact that this case excites and
will continue to excite warm feelings
of sympathy, commiseration
and chivalry. Some will be on the
side of the husband, more of
the wife, most of the child. I recognise
that such sensibilities
are respectable and deep, but they do not
concern the law. The
questions raised in this Appeal come before
your Lordships on a
basis of fact which is settled by the verdict
of the jury, and
as, in my view, they are pure questions of law,
difficult, but
dry, on which it is impossible to dogmatise, and useless
to be
perturbed, I am constrained, to my regret, to submit to
your
Lordships a longer examination of the law than I should have
wished,
or perhaps than is proper in a mere dissentient opinion.
The Appellant relies on a rule
which forbids spouses, sub modo
or, in the alternative
unconditionally, to give any evidence which
tends to show that at
some material time marital relations did not
take place between
them, at least until the age for such relations
is passed. The
first question must needs be in what terms should this
rule be
laid down ? Lord Mansfield's words in Goodright's case
and
Lord Halsbury's in the Poulett Peerage case have been
chiefly relied on.
I need not quote them again. In terms, the
latter are wider than
the former. They differ further in other
respects, but I understood
the Appellant to contend in the first
instance for Lord Halsbury's
version literatim. This
cannot be right. To say that the law does
not permit married
intercourse to be inquired into in any court of
law is in
conflict with the clear rule that it can be and always is
inquired
into in nullity cases, in condonation cases whether there
is a
child or not, and in cases where cruelty by the communication
of
a venereal disease is alleged. I do not suppose Lord
Halsbury
intended to give the rule a wider ambit than Lord
Mansfield's;
that is to say, I think that it is a common feature
of both statements,
expressed in the one case and implied in the
other, that,
whatever be the policy of the rule, such evidence
cannot be
admitted to bastardise issue born after marriage. In
both cases
legitimacy was directly before the court; in
Goodright's case that of
the plaintiff's lessor, in the
Poulett case that of the claimant to the
peerage. In both,
as it happens, the enunciation of the rule was,
strictly
speaking, unnecessary to the decision. In both it was
extempore.
The rule was stated only for the purpose of saying
that it did
not apply. Hence no doubt less precision was
x [27.5.24]
(2)22435—27 (22252—20) Wt 5494—0.83 15
6/24 E & S A
2
needed in formulating it than
otherwise might have been
the case, and it became unnecessary for
the opinions subse-
quently delivered to criticise or to restate
it. Lord Halsbury's
statement was made in an interlocutory opinion
upon an objection
taken to evidence in the course of the hearing,
and, as the Minutes
of Evidence before the Committee for
Privileges show, the authorities,
Which have been before your
Lordships, had not been discussed.
The Anonymous case
reported in 22 Beav. 481 and 23 Beav. 273
alone had been referred
to at length, and no doubt Lord Halsbury
thought, and rightly
thought, that the nature of the case before the
Committee
sufficiently safeguarded his language from misconception.
The
Appellant, however, contends that the prohibition is not limited
to
cases where offspring would be " bastardised " by the
evidence,
whatever the meaning of that word may be, but that it
applies
generally for the protection of the sanctity of marriage.
R. v. Sourton is
another case much relied on as containing
statements of the rule
in an unlimited form, e.g., that of Williams,
J., viz., "
non access is a fact not to be proved by the husband
" or
wife." The headnote itself is stupid, for it purports to
lay
down a universal proposition :—" Neither husband
nor wife can be
" examined for the purpose of proving
non-access during marriage "
—which went beyond the
decision. Not only, however, was this
a pauper settlement case,
one of a class in which the rule un-
doubtedly applies, but Lord
Denman, giving the first judgment,
expressly quoted it from "
Starkie on Evidence," Ed. 2. Now
Starkie, in his original
work (1824), as well as in the edition quoted
of 1833, followed
the plan of the older Abridgments and
Digests, and arranged this
part of his book under headings
such as Bastardy and Pedigree.
Lord Denman, citing and ap-
proving this work, of course knew, as
did his colleagues, that the
statement quoted occurred under the
latter heading and was not
of general application, but, as the
case in hand was a case of derivative
pauper settlement, he had no
need to draw the distinction. Without
bearing these facts in mind,
the judgments in R. v. Sourton are apt
to be cited
as laying down a wider proposition than was intended (see
for
example per Lopes, J., in Nottingham Guardians v.
Tomkinson,
L.R. 4 C.P.D. 343).
Lord Mansfield's version of the
rule, as the decisions have gone
hitherto, is applicable (1) in
peerage cases; (2) in issues directed by
the Court of Chancery to
try questions of legitimacy; (3) in cases
where a claim is made to
a fund or an estate by or on behalf of persons
on whose legitimacy
the right to claim depends; (4) in ejectments
brought to try a
title to land, which depends on the legitimacy
of a party or his
lessor, in whose light he claims; (5) in cases of
derivative
pauper settlements, of affiliation cases, and of claims by
poor
law authorities against persons who fail to maintain
children,
whether legitimate or bastard, for whose support they
are liable.
The common feature of all these cases is, of course,
that the
legitimacy of a person, whose status, rights and
treatment, are
before the Court, is directly in issue and is to be
determined, with
consequent effect upon Ms legal rights and
fortunes. Beyond such
cases Lord Mansfield's rule has never yet
been applied, in the
century and a half since it was formulated.
Although the contrary was
argued, I do not think that this
last named class of cases can be
treated as one in which the
rights of the person whose legitimacy
is in question are not
directly affected. Accordingly these cases
cannot be urged as
authority for applying the rule to divorce
cases now. It is true
that of all five classes this alone has any
appearance of carrying the
rule beyond cases in which the
legitimacy of the supposed bastard is
in issue directly, but it is
an appearance only. No doubt in pauper
settlement cases the
complainants before the justices are the overseers
or guardians,
on whose area the pauper is actually chargeable
though he has not
acquired any legal settlement there, and the
3
respondents represent the area
of his last legal settlement, to which
he is to be transferred,
but the order made is an order, that binds
him and, is one on
which he can be heard. It is not true that the issue
is, which
parish shall pay for keeping him, nor is the guardians' claim
a
claim in debt. The issue is whether the pauper shall be
bodily
removed, and, if the complaint succeeds, the order is that
this shall be
done. If confirmed by an order of Quarter Sessions,
the decision is
binding as a judgment in rem concluding the
status of the pauper as
settled in a particular place and binds
not merely the two parishes con-
cerned but all other parishes and
all the world, the pauper himself in-
cluded (R. v. Wick
St. Lawrence, 5 B. & Ad., at p. 535; Reg. v. Wye,
7
A. & E., at p. 769), and it was for this reason and for
his protection
that, following the general rule in proceedings in
rem, the pauper him-
self could appeal to Quarter Sessions
against the Justices' order (per
Bayley, J., R. v. Catterall, 6
M. & S., at p. 85). It is true that, being
ex-hypothesi
without means and often an infant, he may rarely have
exercised
this right, but the principle remains. Such was the law
when the
settlement cases were decided which are material autho-
rities, on
the present Appeal, and I do not think that changes
introduced by
subsequent Poor Law Legislation affect these con-
siderations. It
was not suggested that the affiliation cases or the
others carry
the matter any further. In all of them the legitimacy
or
illegitimacy of the child to be maintained fixes the liability
to
maintain it and is the issue in the case.
The rule excluding this evidence
has been applied in the
Divorce Court, but only when the interests
of children have
been directly in question and the proceedings for
a divorce were
concluded. Taken in conjunction with the entire
absence of
decisions excluding it in proceedings instituted in
consequence
of adultery, this is strong to show that Lord
Mansfield's rule at
any rate has always been held not to extend
beyond cases in
which the rights and interests of the supposed
bastard are being
directly dealt with. In Gordon v. Gordon,
after the decree for
dissolution of the marriage had been made
absolute and the
respondent and co-respondent had married, a
question arose as to
the custody of the respondent's child. She
was asked " who is the
" father of the child " ;
and, on objection taken (by Mr. Duke, K.C.),
Sir Francis Jeune
disallowed the question, saying " if the child was
"
proved not to be the issue of the marriage I should have no juris-
"
diction over it" and, failing sufficient proof to bastardise the
child,
he made an order for its custody (Times newspaper,
16 February
1903). Here it was the child and the arrangements for
its welfare
that were in issue and not any proceeding in
consequence of adultery,
since that had been disposed of, and Sir
Francis Jeune exercised his
jurisdiction to protect the rights and
interests of the child not his
jurisdiction to enquire into an
issue of adultery for the purpose of.
dissolving the marriage. The
decision in Pryor v. Pryor (12 P.D.
165) with regard
to varying settlements after the decree points
in the same
direction.
It is argued that this absence
of authority is of small significance.
Before 1869 spouses could
not give evidence at all in divorce cases, and
it is suggested
that since then the question does not appear to have
been debated.
Husbands, however, could give evidence for several
years before
1869 in actions for goods supplied on a wife's credit, and
the
objection to pay, on the ground that the goods were required for
a
child of the wife's, not begotten by the husband, can hardly
have
been unknown, but no case, so far as I know, is reported
upon
the point. The fact that before 1869 spouses could not
testify
in divorce proceedings at all adds another difficulty with
regard
to the statement made by Lord Mansfield in Goodright's
case.
He referred, apparently as authority for his
proposition, to a recent
decision of the Delegates, of which no
note seems to have been found.
If that decision was in a case
where the rights of an infant were
directly in issue and were to
be dealt with by the Delegates, it is
A 2
4
of no assistance for the purpose
for which Lord Mansfield's judgment is
now cited. On the other
hand, I fail to see how it could have arisen
before them in such a
question as is now before your Lordships.
If under any
circumstances the Delegates could take the evidence
of the spouses
in the matrimonial causes with which they dealt, s. 3
of the Act
of 1869 was not required, since the jurisdiction of the
Delegates
had been already vested in the Divorce Court by the
Act of 1857.
If they could not, how did this question arise before
them for
decision ?
For fifty years it seems to have
been the view of the Judges
who have sat and of the members of the
legal profession who have
practised in divorce cases that by its
nature the rule in Goodright's case
is not a rule of
Divorce law. The point is not that the books contain
little, if
anything, to the contrary of the application of the rule,
but that
there is nothing to show that it has been held to apply
at all.
The question cannot have been entirely absent in litigation
until
the last three or four years, and we know that in that period
many
decrees have been granted after and in consequence of the
admission
of a husband's evidence, which, if applicable, this rule
would
have excluded. It is no answer to say that a husband's evi-
dence
of non-access has only been admitted to save expense and time.
That
is not the way in which matrimonial jurisdiction is or ought to
be
exercised. Decrees of dissolution of marriage are to be made
only
upon strict proof. Consent to a decree, direct or indirect,
is inad-
missible, nor is there any one present to make
admissions, if the suit
is undefended. In such cases the Judge
must, and I doubt not does,
watch vigilantly to see that the
evidence on which he acts is such
only as he is entitled to
receive, and the rule in Goodright's case, if
it applies at
all, is a striking one which could hardly be overlooked.
The fact
that both parties are equally anxious to get a divorce is
precisely
a reason why the Judge should be absolutely strict as to
proof.
No consideration of saving time and trouble can be
a
legitimate ground for admitting illegitimate evidence. Once
only
does the matter appear to have been referred to. Horridge,
J.,
whose wide experience in such cases is well known, raised a
doubt in a
defended case (Bowden v. Bowden, 62 Sol.
Journ. 105) but nevertheless
admitted the evidence. Neither the
grounds for the doubt nor the
grounds for the decision are
reported. In Gaskill v. Gaskill (1921,
P. 425), where
the admission of the husband's evidence tending to
prove
non-access was not questioned at the hearing, I cannot but think
that
the Attorney-General would have challenged it on the further
inquiry,
if it had been of even doubtful admissibility, for the objec-
tion,
if well founded, was fatal to the whole suit and its issue need
not
then have been perilled on a nice and difficult matter of
medical
evidence. This is all the more noticeable because the
rule about the
weight of the evidence required to rebut the
presumption of coition
(a matter removed from consideration in
this case by the verdict),
which was dealt with in Morris v.
Davies, was discussed and con-
sidered by Lord Birkenhead
and his quotation of Lord Lyndhurst's
opinion is followed by the
words: " I need only mention that Lord
" Lyndhurst
referred to a sentence of divorce pronounced in accord-
"
ance with the law as it then existed, and the rule he stated must
"
be modified to accord with the present state of the law, but no
"
point arises here upon that aspect of his judgment. It is true
"
that the observations were made in reference to a legitimacy suit,
"
but I cannot conceive that in the present case any
different
principle can apply otherwise it might happen that the
mother
" would be condemned for adultery on evidence which
would not
disentitle the child to be declared to be the legitimate
issue of her
" husband." An argument which gave rise
to such observations,
could hardly have stopped short without
drawing attention to
Goodright's case and R. v.
Sourton, except upon the assumption
that, in the opinion
of the profession, such a rule had no application
to the suit.
It should be borne in mind that
the reasons which Lord
Mansfield gave for his version of the rule
differed from those which
are to be found in the decided cases on
which, according to the report
in Cowper, he purported to base
himself. Further, it was many, years
before his version was fully
accepted in other cases. So far as
the rule and its reasons can be
collected from JR. v. Willey, 1734, and
R. v. St.
Peter's, Worcester, 1735, and R. v. Stockland, in
Burrows'
Settlement Cases, pp. 25, 27 and 608; from R. v.
Reading, 379,
Cases temp. Lord Hardwicke, p. 379 and R.
v. Rook, 1 Wilson 340, the
reason for closing the mother's
mouth was supposed to be that her
evidence of non-access tended to
relieve her husband from supporting
the child, and so was
interested evidence; though, apparently, if no
other evidence of
it could be got, her evidence might be admitted on the
ground of
necessity (R. v. Bedall, 2 Str. 941, 1076). Francis
Buller
(afterwards Buller, J.) published his Nisi Prius Cases,
which were
founded on notes made by Lord Apsley, L.C., when
Bathurst, J.,
in 1772, only five years before Goodright v.
Moss. Not only does
he seem to be a stranger to the rule in
Lord Mansfield's form, but
he cites R. v. St. Peter's
and R. v. Reading as unqualified authorities,
and
so they remained in subsequent editions down to 1817. A com-
parison
of R, v. Luffe (8 East 193) with R. v. Kea
(11 East 132) shows
how long it was before the consideration
of the child's interest in not
being bastardised superseded
finally the consideration of the
husband's interest in not having
to keep the child as the ground on
which the rule was thought to
be justified. Down to 1856 (Legge v.
Edmunds, 25
L.J., Ch. 125) we find it to have been the opinion of so
eminent a
person as Wood, V.C., that Lord Mansfield's statement of
the law
in Goodright v. Moss was new, and I venture to think,
con-
sidering what grounds there are for taking this view, that
one ought
not to attach very great weight to so general a
statement of the
reasons for a rule, which Lord Mansfield only
mentioned for the
purpose of saying that it did not apply in the
case before him.
My Lords, notwithstanding that
the rule, as Lord Mansfield
states it, has never been applied in
proceedings instituted in con-
sequence of adultery and that, as I
believe, the whole inclination of
opinion of the bench and the
legal profession has been against such
an application, it is no
doubt competent to your Lordships to
declare the law, even after
all these years, in the sense for which
the Appellant contends.
Accordingly, two questions next arise,
firstly, what is the
meaning of the reference to bastardising issue,
which Lord
Mansfield made ? and secondly, what is the basis and
the object of
the rule itself ?
It will be observed that there
is a difference between the effect
of the words " founded on
decency, morality and public policy "
and that of the words "
to bastardise the issue born after marriage."
The latter are
an integral part of the rule itself; they limit its
content. The
former merely give the reason for having such a
rule; they are, as
it were, simply the expression of the motive of the
legislator.
The reference to bastardising the issue is therefore much
the more
important.
Against those who say that by "
bastardising the issue " Lord
Mansfield merely denotes
evidence to show that the child is illegiti-
mate, I am afraid
that, beyond indicating with humility that I do
not believe it, I
can only add that the evidence admitted did in
fact show that the
child was a bastard, though not an adulterine
bastard, and that
bastardise is a term of art and presumably was so
used. If it is
to be held, that in the present proceedings this evidence
was
really admitted to bastardise the issue, it is hard to say in
what
proceedings such evidence could have been admitted. I will
venture
to put two cases. (1) A married woman bears a child con-
genitally
afflicted with a venereal disease, and then it is stated of
her
husband that he is responsible. To clear his character he
brings
an action of slander, and, to meet a plea of justification and
proof
that he was in fact infected with this disease, he desires to
6
say, as the fact is, that though
he lived in the same house as his
wife, yet, knowing himself to be
infected, he was scrupulous to
keep away from her at all times
material to the child's conception.
If this evidence is admitted
and believed his character is at least
cleared from the worst
imputation. If it is not admitted, his case
is gone. Does this
evidence bastardise the issue any more than
the present
Respondent's did? On the other hand does anyone
say that in such a
case his mouth would be closed?
(2) Again, a man is indicted for
incest with a young woman
alleged to be his daughter. His one
defence is that, though born of
his wife during their marriage and
brought up as his child to avoid
scandal, he had not begotten her;
she was a bastard of his wife's.
If he can give this evidence, he
has a defence to go to the jury;
if, on the other hand, the rule
applies, then, in a case where no
evidence of non-access but his
own is available, he will go to
prison. These results follow,
notwithstanding that, in the first
case, by 14 & 15 Vict. c.
99, ss. 1, 2, the plaintiff was a com-
petent and compellable
witness and in the second was a competent
witness by 61 & 62
Vict. c. 36, excepting as to the giving of evidence
of
communications between himself and his wife.
I suppose it will be recognised
that as the objection to the admis-
sibility of evidence has to be
taken before the evidence is given, it is
to be decided on the
assumption that, if given, it will be material and
may be
believed. If so, it will not affect the value of my illustrations
as
tests to say, as doubtless it is very natural to say, that such
men
would not get anyone to believe them and that in any case
it
serves them right. The question is whether the evidence tendered
can
be shut out. On the other hand, on this assumption exclusion of
this
evidence means that an injured husband's mouth is closed and
his
story goes untold for the benefit of an unfaithful wife, simply
for
fear of prejudicing a child, who is not his in fact, however
the law
may insist on regarding it.
It is convenient to consider
further how far the rule would go
if applied in ordinary divorce
cases, not, of course, for the purpose of
deciding questions
before they arise but of testing the grounds for
applying the rule
at all. The fact to be proved, on which the husband's
right to a
divorce is based, is simply the wife's adultery. Whether
her
adultery resulted in the birth of a child or not is immaterial
to
that right. The birth of the child is not one of the facta
probanda but
it may be one of the facta probativa. For
this purpose the birth
of a still-born child or a miscarriage or
mere pregnancy would,
if sufficiently referable to the critical
time, be equally probative.
On the other hand, if the child died
before the hearing or were a
hopeless imbecile from birth, how
could bastardising it cause any pre-
judice ? In this connection,
therefore, the existence of a living child is
but an incident, if
not a mere accident. In the catena of proof of the
adultery
alleged his birth and existence may range almost anywhere
from
being practically conclusive to being of no importance
until dates
can be fixed, which the rest of the evidence leaves in
doubt. If,
both spouses being white themselves and of indubitably
white
ancestry on both sides, the wife bears a mulatto child of
marked
negro paternity, I do not see what need there is of further
testimony
about access, and I suppose (at least I hope) that common
sense
would prevail over presumption. At the other end of the scale,
until
the petitioner can fix his own absence or abstinence between
dates
that preclude the possibility of Ms having begotten the child
that
has been born, the birth of the child is in itself of little or
no
significance. So untrue is it to say that, in proceedings
instituted
in consequence of adultery the legitimacy of the child
can be the
real issue before the Court.
Now it is not disputed that in
the present case neither the
Petitioner's evidence nor the jury's
verdict nor the Court's decree
affects the rights of the child as
presumably legitimate or can be
used against him to deprive him of
those rights. How then can
7
it be said that the
evidence objected to was given to bastardise,
or did bastardise,
the child ?
I refrain from putting further
specific illustrations on this point.,
It is everyday experience
that for practical purposes people's'
reputations are often at
stake in proceedings to which they are not
parties, and where they
have no protection beyond that of delivering
a watching brief.
They must suffer in silence. A witness is called,
on whose
credibility the whole case depends, and the jury disregard
his
story. Till the case is forgotten everybody will say of him,
that
he told lies in the witness box; many will say that the
jury
convicted him of perjury. In a legal sense they did not; in
a
popular sense they did. So in a legal sense the Appellant's
child
is not bastardised in the present proceedings but only in a
popular
one. Again, the witness can bring an action to clear his
character
against those who make such statements about him; but
the child,
better off, can hold and succeed to all his rights as
the legitimate
offspring of the Respondent till someone takes
proceedings to impugn
them. So far he is the better off of the
two. What reason is
there for protecting the baby and not the
witness? The mute
testimony of the one and the spoken testimony of
the other are
mere media of proof of an issue, by which neither
child nor witness
is legally bound. For my part I fail to see any
substantial distinction.
If the bastardising of the
issue, whether in the legal or in the
popular sense, is to be the
real point of the rule, there is considerable
difficulty both in
reconciling Lord Mansfield's statement with Lord
Halsbury's and in
taking the former as a principle that will solve all
the cases
that the tender of such evidence might raise. In the Poulett
case
there is no doubt that Lord Poulett's evidence was given in
advance
and was subsequently admitted with the object and effect
of
bastardising in the fullest sense of the term a claimant who
was
prima facie legitimate, being born of Lady Poulett
during her
marriage to the witness. Why was it admitted ? Not
because it
did not bastardise the offspring, for it did, but
because it did not
tend to prove that there had not been
connection between the
spouses during the marriage; because on the
contrary it proved
Lord Poulett's virtue as a bachelor without
touching the per-
formance of his marital duties as a married man.
Accordingly the
sanctity of matrimony was really preserved by the
admission of his
evidence.
I will put a case, not to invite
its decision for it is perfectly
legitimate to say that the case
need not be decided till it arises,
but because I have used it
myself as a test of the principle of this
rule and frankly do not
see the answer. Those who remember Sir
Fitzjames Stephen's "
Digest of the Law of Evidence" will recall a
footnote in
which he explains how promptly in his time in India the
widows of
soldiers, who died, married again so as to keep on the
strength of
the regiment. Suppose such a case. A soldier, a man of
some family
connections, through whom any child of his would become
some day
entitled to property, dies after cohabiting with his wife up
to
his death. She remarries in two or three weeks, but by
consent
between the spouses the second marriage is not consummated
until,
firstly, it is ascertained whether or not she will conceive
by the first
husband, and, secondly, when it is found that she is
with child, not
until after the child is born. Whose is that child
? In proceedings to
establish his right as the first husband's
son, can the second husband
and the mother prove the above facts
as to non-consummation or
can they not ? There is no question of
bastardising the child in either
case. His interest calls for the
admission of the evidence, which
makes him the child of a man of
property and not the child of a
common soldier. On the other hand
the sanctity of married inter-
course is violated and its secrets
are divulged if the spouses are
allowed honestly to describe the
courses which they honestly pur-
sued. For my part I cannot solve
the problem. I imagine the
A 4
8
evidence would be excluded on
some ground, but not knowing what
I feel a difficulty in trying to
extend the rule to new cases.
My Lords, I cannot find any
guidance in the application of the rule
either in Lord Mansfield's
words, decency, morality and public policy.
The last tells us
nothing. All our law, even statute law, is supposed to
rest on
public policy, but as public policy is an evolving not to say
an
unstable thing, the public policy of one century may not be quite
the
same as that of the next but one. In a matter like the present
the
word morality tells us nothing. In this case what moralists
condemn
the law ignores. What the Petitioner described was outside
the law
but it was matter of fact. The questions were would the
law admit
evidence of that fact and would men of the world believe
it ? Upon
these three subjects morality, decency and public
policy, I will
only say this. If it had been feasible for the
Petitioner to have given
evidence of "non-access" by the
mouth of some third person,
some chambermaid or spy, or, it may
be, by the wife's written
confession, that the child was not his
and that nothing had taken
place between the spouses that could
have made it his, he could
have taken his proceedings and called
this evidence, and if he failed
to obtain his decree it would not
have been decency or morality or
the bastardising of the child
that would have defeated him but the
incredulity of the jury. If
on the other hand the evidence, which his
case required, was
merely something " tending to prove non-access,"
as for
example absence from home, then a well-to-do man, able to
afford
the search for and the production of the evidence of third
persons
to prove it, would get his decree, but a labourer who had
wandered
in search of work and could only prove his absence from
home by
his own evidence would find his mouth closed on a vital
point and
would remain tied to an unfaithful wife and bound to
maintain
another's child in the name of a rule founded on public
policy.
That the exclusion must extend
to any evidence tending to
prove " non-access " if there
is to be exclusion at all, I quite agree.
There are many dicta to
this effect, and I think your Lordships
have felt throughout the
weight of this contention. The indecency
is in the denial of those
normal connubial relations which are pre-
sumed in law, not in the
relations which may have been substituted
for them, nor in the
details of various forms of amorous, but
non-generative,
behaviour. It cannot be a question of the same
bed, the same room,
the same house, or the same parish. Non-
access, as it is called,
is the matter either to be proved or to be
excluded, and the
exclusion of the spouses' evidence must extend to
all items of
proof without regard to their relative magnitude, since
each one
may be essential to the conclusion. One has only to
imagine how
possible it might be with time, money, and skilled
advice to build
up a sufficient case of non-access without calling
the husband,
who procures, pays for and profits by the result, and
how
impossible such a course would be to a man who has no time,
no
money and no advisers, but merely knows the truth himself
better
than anyone else can know it, to see the inequality of the
working
of this rule of exclusion in divorce cases.
It is to be remembered that only
a few years ago a husband,
who had been forbidden by law to prove
that fact of non-access
which, if proved, would have completed his
case for a divorce, might,
if he refused further to cohabit with a
wife, whom he knew to have
been unfaithful, have been subjected at
her instance to an order for
the restitution of her connubial
rights, and in case of disobedience, have
been imprisoned for his
contumacy. If, on the other hand, he caught
her in further
matrimonial offences, and this time secured his decree,
he could,
on the question of the custody of the child, close her mouth
as to
its paternity and keep from her the child whom he and she
both
knew to be her paramour's. As for the child, he would have
to
console himself for a bleak and unkindly childhood by reflecting,
9
when of age, how scrupulously
the law had safeguarded his status
of legitimacy.
As for decency, I agree that
Lord Mansfield did not exclusively
refer to what is in itself
unseemly or disgusting. He probably
thought more of things which a
husband should be ashamed to
say, than of things that a judge
must blush to hear, but what
does that prove? Decency would not
surely prevent a husband
from saying that during such and such a
year he was continuously
in India, and yet decent or not that is
excluded when the rule applies
at all, since it tends to prove
"non-access." I find no guidance to
be derived from this
word, and will only say how grave an injustice
is done, in my
opinion, to the memory of the late Lord Sterndale
in thinking that
he went strangely wrong in applying Lord Mansfield's
word
"decency" to the feelings, which bars things
contaminating
and gross (an error, if it be one, which I share) or
in dwelling on
the revolting aspect which such evidence might
take, so as to
make the task of Judges in divorce cases lighter,
and to enable
them to shirk duties which they ought to perform. Of
such
a course he was incapable nor would it occur to Judges of
the
High Court in England so to interpret his reasoning. I
have
had the great honour of being counted among their number,
and
I am convinced that all the heavy responsibilities, which
these
cases involve, are accepted without demur, and further that
they
watch the admissibility of the evidence tendered in
undefended
divorce cases as vigilantly as if they were protecting
the interests
of a prisoner undefended by counsel.
The argument must next be
examined, which rests on the
phrase about protecting the sanctity
of married intercourse, sub-
stituted by Lord Halsbury for Lord
Mansfield's about bastardising
the issue. Both are relied on as
reasons for extending the rule to
the present case. Are they
merely alternative ways of stating an
identical principle or are
they distinct conditions, both of which
have to be satisfied? If
they are the former, I think that the
whole jurisdiction in
divorce negatives the application of the rule.
Petitions are
presented under that jurisdiction for the express
purpose of
enabling the spouses themselves to publish the facts
of their
married life and so to obtain a decree dissolving the marriage,
the
sanctity of which the rule stated in the Poulett case was
devised
to preserve. If, on the other hand, the preservation of
the sanctity
of married life and the protection of the legitimacy
of the issue born
in wedlock are separate and distinct conditions
of the applicability
of the rule, the question arises whether in
the present case both
these conditions can be satisfied.
My Lords, I am afraid that the
sanctity of married intercourse
passed into the limbo of lost
causes and impossible loyalties in 1857.
It is not a matter only
of the physical relations between spouses.
These are equally fit
or unfit to be divulged whether there is
a child or not. You
cannot give the spouses the legal right
to have their married life
investigated in open court, with a
view to its formal and legal
termination, without being prepared
when necessary to violate the
sanctity of that life. The law
recognises this. The Divorce Court
sits that the secrets of
married life may be divulged. Its decorum
is preserved by those
who preside and those who practise in
it, and is preserved with
extraordinary success; but to exclude a
particular class of evidence
when it is given by one person and
not when it is given by another,
is a thing that can only
prejudice that decorum by making it plain
that the Court is being
kept in the dark on a material part of the
case, while making the
sanctity of matrimonial intercourse the
subject of prurient
curiosity and malicious gibes as before. Decently
or not, the law
permits a husband to obtain a decree by Ms own sole
evidence, if
he catches the guilty parties in flagranti delicto. How
is
a rule to be justified which forbids him to give relevant facts
that
merely tend to the same result ? The effect on the sanctities
x 22435—27 B
10
of married life is the same; the
effect on the offspring is the same.
The evidence, so far as the
child is concerned, is equally material
socially and legally
equally immaterial. The only logical exit from
this antinomy is to
say that the rule only applies where the child's
rights are
legally affected. To close the husband's mouth otherwise
is not a
principle; it is a taboo. To my mind, the only logical
and legal
solution is to recognise what is legally true, that
a divorce
petition and a legitimacy issue are distinct, to apply the
rule
which is essentially a legitimacy rule, when, but only when,
courts
have been wont to apply it before, and to establish in a
court,
which exercises a distinct and statutory jurisdiction the
principle
that all relevant evidence is admissible unless it is
excluded by
Act of Parliament.
It is, however, said that, if
the distinction is drawn between
the technical issues in a divorce
case and the technical issues in
a subsequent legitimacy case,
absurd and unpopular results will
follow. In the one case, a jury
may find that the respondent bore
a bastard child whereon the
Judge dissolved her marriage, while in
the other it may be held
that the child is no bastard but his putative
father's son; for
the father's mouth is undoubtedly closed by
the law in legitimacy
proceedings. I do not see why we should be
dismayed at this. If
the petitioner could have made out his case
by the evidence of
third persons tending to prove and sufficiently
proving his
non-access, precisely the same results would happen,
and this
contradiction could not be helped. When two persons
are indicted
for a criminal act committed on one another and
are not tried at
the same time, one may be acquitted and the other
convicted; yet
no one proposes that the act should for that reason
no longer be
regarded as an offence at all. The accident of
different results
arrived at on the two trials is recognised as an
accident. No
difficulty will arise in the present case, if people
will only
realise that the trial of a petition for divorce between
spouses
is not in fact or law the trial of an issue as to the
legitimacy
of another person or vice versa, and that what is
evidence
on the one occasion is not evidence on the other, but
that the
child can only be affected legally in proceedings to which
he is a
party and by evidence that is admissible against him,
and is not
given behind his back. This may be paradoxical and
incongruous but
it is the basis of legal and fair trial.
I am not at all insensible to
the possibility, that has been pointed
out, of perjured evidence
of non-access by a husband being the
means of casting off an
innocent wife and child. The suggestion
is rather one for
melodrama than for the disillusioned minds of those
who know the
Divorce Court, but the risk, great or small, must be
run. Every
enlargement of the classes of competent witnesses and
of
admissible questions is accompanied by a certain amount of
perjury.
Such is the unregenerate nature of man, but Judges and
juries are
not wholly unaware of it, and are the best protection that
we
have. After all, a great many witnesses are honest and a good
many
perjurers are transparent, and quoad ultra we must hope for
the
best. The law has gone too far and too long in the direction
of
admitting all material testimony to warrant a latter-day
extension
of an archaic rule against the admissibility of material
evidence for
fear lest a few scoundrels might try, and,
peradventure, with occa-
sional success, to get the better of
counsel, jury and judge, to say
nothing of the Court of Appeal and
of your Lordships.
My Lords, my own view is that in
the administration of justice
nothing is of higher importance than
that all relevant evidence
should be admissible and should be
heard by the tribunal that
is charged with deciding according to
the truth. To ordain that a
court should hear the relevant facts
and decide and at the same
time that it should not hear some of
the relevant facts from
the person, who best knows them and can
prove them at first hand.
11
seems to me to be a
contradiction in terms. It is "best that truth
should out and
that truth should prevail. With this, if the matter
were one of
first impression and we were free to lay down an ideal
procedure,
I think all must agree. As it is,, the rule in Goodright's
case
exists and must be applied but only when it is
applicable. It is of
ancient origin, the product of conditions no
longer clearly known,
and of social necessities no longer existing
in the form in which they
arose. The reasons for it have been
variously stated and have never
been very clear. It has never been
applied in a divorce case and
to such a case it is, in my humble
opinion, in its nature inapplicable.
I can be no party to the
extension of such a rule to new cases,
where it must work
anomalously, and cannot produce the results
for which it appears
to have been devised, and I therefore think
that the opinions of
the Judges in both Courts below were right,
that the evidence was
rightly admitted, and that the Appeal should be
dismissed.
sess. 1924.—[h.l.]
Karl of
Birkenhead.
Viscount
Finlay.
Lord
Dunedin.
Lord
Sumner.
Lord
Carson.
RUSSELL
v.
RUSSELL.
Lord Carson.
MY LORDS,
I agree with the learned Judge
who tried this case, with
the Court of Appeal, where the three
learned Judges were
unanimous, and with my noble and learned
friend Lord Sumner,
that the evidence of the Respondent was
admissible on the issue
of adultery to prove non-access or
non-connection with his wife
the Appellant.
This is the only question which
this House is now called upon
to decide, as your Lordships have
already held that it is not open
to the Appellant here to raise
the question that the verdict was
against the weight of
evidence—that ground of appeal having been
abandoned in the
Court of Appeal by Counsel on behalf of the
Appellant. Your
Lordships have also been satisfied that there
was no misdirection
by the learned Judge at the trial, and that
the case was properly
submitted to the jury. Indeed, no one could
read the summing up
of the learned Judge without feeling how
impressed he was with
the seriousness of the duty cast upon him,
and the jury who tried
the case and his warnings to the jury as
to the burden of proof
and the duty of the Petitioner to satisfy
the jury beyond
reasonable doubt that the child was not begotten
by him is, I
think, the best answer that can be given to some of
the extreme
and hypothetical cases put by some of your Lordships—
as
showing the care and fairness with which our laws are
administered
to prevent injustices. Having regard to some of the
observa-
tions made, I should like to add that in many cases of
the
vilest and most unfounded charges, trial by jury is the only
and
has hitherto proved an efficacious protection for the
subject
attempted to be implicated. I must decline therefore to
be any
party to throwing any doubt upon the verdict of the jury
or to being
influenced by the fact either that the charges
against certain named
co-respondents have failed or that there
was no confession which could
be used against the Appellant. The
question to be decided is
purely one of law, and, as I understood
the argument of Sir Douglas
Hogg on behalf of the Respondent, it
was limited to this, that the
rule relied upon by the Appellant's
Counsel as stated by Lord
Mansfield in Goodright on the demise
of Stevens against Moss,
assuming that it still
exists, has no application in a proceeding for
a divorce when the
issue is whether the wife has been guilty of
adultery with a man
unknown.
Before dealing with this
rule it is, I think, important to
remember that it was not until
1857 (20 & 21 Vict. c. 85) that a
court was established in this
country with power to dissolve marriages,
and that it was not until 1869
(32 & 33 Vict. c. 68) that " the parties
" to any proceeding in
consequence of adultery and the husbands
" and wives of such
parties shall be competent to give evidence
" in such proceedings."
My Lords, I have read carefully
all the cases which have been
cited on behalf of the Appellant,
and I agree with the Master of the
Rolls that they are all
decisions in which the legitimacy of a child
was directly in
issue and was the question to be tried with legal
consequences
flowing from the result of the issue. It is unnecessary
for mo at
this stage to go through them in detail. The King v.
Luffe
(1807) 8 East 193, The King v. Kea (1809) 11 East
132, The
x [27,5,24]
(2)22435—28(22252—19) Wt 5494—0.83 15
6/24 E & S
2
King v. Sourton (1836)
5 Ad. & Ellis 180, the three cases mainly
relied upon since
the dictum of Lord Mansfield in Goodright's case
were all
cases coming under the administration of the Poor Law and
in which
the legitimacy of the child was the direct issue with
resultant
legal consequences involving the status of the child
according to
the finding of legitimacy or illegitimacy and it
is not
unimportant to observe that as stated by Denman, C.J.,
in McQueen
v. Nye, 7 Ad. and Ellis, p. 769, a judgment
deciding
the settlement of a person included in the order
was a "
judgment in rem" " conclusive not only between the
"
parties but against the world." In the Poulett Peerage case
the
issue was the legitimacy of a child born after marriage but of
which
the wife was pregnant at the date of her marriage, and the
dicta
of Lord Halsbury relied upon by the Appellants if they had
any
relevance at all, must have been with reference to a case
when
the direct issue to be tried was the legitimacy of the child.
If
his Lordship laid down or intended to lay down as a
general
proposition, which I do not think he did, that the law did
not
permit the sanctity of married intercourse to be inquired into
in
any court of law, I am bound to say I can find no authority
to
support such a proposition. Indeed, any such rule would go
far
beyond the statement of Lord Mansfield or any of the other
cases
relied upon by the Appellants. The Aylesford Peerage case
also
involved the direct issue of the legitimacy of the child in
question.
My Lords, I do not think it is
necessary to decide whether the
rule as laid down by Lord
Mansfield was altered by the Act of 1869
to which I have already
referred, as in my opinion the only autho-
rities cited show that
it was only applied in cases where the direct
issue was the
question of the legitimacy of a child. It is a
remarkable fact
that so far as the reports show no attempt
to apply the rule has
ever been made in the 55 years that
have elapsed since the passing
of this Act in the trial of such
issues as adultery, condonation,
custody of children, &c. If
you take the rule as founded on
decency and morality the very
nature of the issues to be tried
from day to day in the Divorce Court
shows how constantly such
decency and morality has to be
outraged, and the books are full of
cases when, to use the words of
Lord Dunedin, the most secret and
at the same time the most sacred
of the most legitimate relations
of man and woman as husband and
wife are laid bare before all the
world. I do not merely refer to
cases of nullity, when the very
nature of the case requires the most
painful disclosures by
husband or wife, but also to cases as to
whether intercourse put
an end to a deed of separation (Rowell v.
Rowell, 1900,1
Q.B. 9), whether intercourse was refused (Rippingale
v,
Rippingale, 1876, 24 W.R. 967), whether spouse was
unable or
unwilling to consummate marriage, thereby excusing
desertion
(Ousey v. Ousey, L.R. 3 P. & M. 223)
and many other cases.
Indeed the Master of the Rolls,
who it must be remembered was
himself for a while the President of
the Probate and Divorce Division,
has in his judgment stated: "I
think there are cases which have been
cited " before the late
Lord St. Helier, before the late Lord Hannen
" and before
other Judges of the Divorce Court which all go to show
" that
in their opinion according to the practice of the Divorce
"
Court such evidence could be given whether upon questions of
'
adultery or sometimes on questions of the control of children
•'
when the question of the paternity comes in issue," and
his
Lordship approved of such practice. My Lords, having
practised
to a considerable extent for some years in the Probate
and Matri-
monial Division, I venture to express ray concurrence
with the
Master of the Rolls.
I think it is well to refer to
two of such cases, because they seem
to me to be entirely at
variance with the rule the application of
which is contended for
in this case. In Gordon v, Gordon and
Bell, 1903, Prob.
Div. 92, a wife alleged that the last child born
3
during wedlock was the child of
the co-respondent, and in a written
confession, which she signed,
she stated that she had misconducted
herself with the
co-respondent, and that he was the father of her
child. At the
trial the father was cross-examined with a view to
showing the
child was not his, and the President laid it down that,
for the
purpose of raising a question as to custody, the wife should
have
filed an answer to the suit raising the question of paternity.
In
the case of Hetherington v. Hetherington (12 P. Div.
112),
where an order had been made under s. 4 of the Matrimonial
Causes
Act, 1878, authorising a wife to refuse to cohabit with her
husband
and it was sought to rescind such order on the grounds of
the wife's
adultery the justices refused to receive direct
evidence of the husband
or the admission of the wife as to the
paternity of the child. Sir J.
Hannen (afterwards Lord Hannen),
the President of the Court,
reversed the decision of the justices
and stated as follows : ' Unfor-
" tunately in refusing to
act on evidence of the parties they (the
" magistrates) seem
to have been under the impression that the
" issue was one of
bastardy which it was not, but one of adultery "
and he there
drew exactly the distinction which the Master of the
Rolls has
taken in the present case.
My Lords, having listened
carefully to the arguments in this
case I am not at all certain
that I understand how far it is contended
the rule in question
should be applied in cases where the issue to
be tried is not the
illegitimacy of the child or involving any legal
consequences to
the child. For instance, in the present case it
is said the
evidence of the father as to non-access is inadmissible
because it
would bastardise the child—would the evidence be
inadmissible
if no child had been born but the mother had a mis-
carriage which
would equally prove the adultery ? If a woman
confessed " I
committed adultery with A. B. when my husband
" was abroad,"
would the admissibility of this confession depend
upon whether a
child was born or not, and would the husband be
able to give such
evidence on an issue of adultery in the one event
and not in the
other ?
My Lords, let us take another
case where the issue is condonation
by resuming cohabitation.
Supposing a woman avers that her
husband resumed cohabitation
after knowledge of her adultery
and thereby condoned it, will he
be allowed to give evidence that
no such cohabitation took place
if no child has been born, and will
he be precluded from giving
such evidence if in the meantime a
child has been born ?—the
knowledge of the conception of which
may have been the very reason
why the woman invented a false
story of the husband's intercourse.
Attention has been drawn to the
anomaly which would be
created if the present verdict is to stand,
and my noble and learned
friend, Lord Finlay, has remarked in the
course of his speech:
" To what an extraordinary state would
the admission of this
" evidence in the present case reduce
the law of England ! The
" infant may be illegitimate for the
purpose of proving adultery;
" but legitimate for the
purpose of succeeding to property or title"
I should like,
however, to point out that exactly the same result
would follow if
non-access was proved by a witness other than the
father, which
would admittedly be legal proof and that, further,
under such
circumstances it would be open to a Court before whom
the direct
question of the child's legitimacy was tried to disregard
the
verdict of adultery and to come to the conclusion that the
child
was legitimate! But, my Lords, to what an extraordinary
state
would the rejection of this evidence in the present case reduce
the
law of England ? Here is a husband who knows, and who has
proved
to the satisfaction of a jury that he has not had access to
or
connection with his wife, and that his wife therefore must be
guilty
of adultery, and he is to be informed that the law of
England gives
him no relief, and binds him to his adulterous wife
because he is
.not allowed to give evidence which he alone is
capable of giving!
4
My Lords, I can find no rule of
law which excludes the husband's
evidence to prove his wife's
adultery, and I am therefore of opinion
that the verdict of the
jury, which cannot be challenged if the
evidence was admissible,
should stand, and that this Appeal should
be dismissed. The
question of whether, apart from the evidence
of the husband, there
was evidence proper to be submitted to the
jury has not been
argued before us, and I therefore express no
opinion upon it.
