Russell v Russell [1924] UKHL 1

House of Lords
Between
RussellAppellantRussellRespondent
Before
Lord DunedinLord SumnerLord Carson
[1]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. * (10.5.240 (2)22435—24(28252—5) Wt5494-0.83 15 6.24 E & S A 2 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 [9.4.21] (2)22435—25(22252-1) Wt 5494—0.83 15 6/24 E & S A 2 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 R ex 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 G oodright 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 R ideout'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 G askell v. G askell (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, s ub 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. 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.[2]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.[3]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.[4]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.[5]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.[6]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"[7]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."[8]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. * (10.5.240 (2)22435—24(28252—5) Wt5494-0.83 15 6.24 E & S A 2[9]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.[10]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.[11]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."
[12]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."
[13]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.[14]It was tried in the year 1809.[15]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[16]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.[17]The other members of the Court signified their concurrence with this opinion.[18]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.[19]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.[20]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.[21]It is replied in the first place that the rule only applied to legitimacy proceedings properly so called.[22]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.[23]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.[24]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.[25]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.[26]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.[27]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."[28]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.[29]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.[30]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."[31]Adultery was also charged with certain named Co-Respondents.[32]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.[33]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.[34]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.[35]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.[36]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 [9.4.21] (2)22435—25(22252-1) Wt 5494—0.83 15 6/24 E & S A 2 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.[37]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.[38]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.[39]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.[40]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.[41]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.[42]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."
[43]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."[44]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.[45]The same rule was applied where the question arose as to settlement of paupers.[46]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 R ex 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[47]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 G oodright 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."[48]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."
[49]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."
[50]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."
[51]Mr. Justice Williams said that " non-access is a fact not to be " proved by the husband or wife."[52]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.[53]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."
[54]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.[55]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."
[56]But he was of opinion that the letter might be read as evidence of conduct.[57]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."
[58]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.[59]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."
[60]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.[61]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.[62]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.[63]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."[64]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.[65]This Act has been referred to in two cases arising in Courts of Equity.[66]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.[67]In Yearwood's Trusts (1877 5 Ch. Div. 545) Hall, V.C., discussed the decision in R ideout's Trusts, but I do not think that what was said by him throws light upon the present case.[68]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.[69]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.[70]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.[71]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 G askell v. G askell (ubi supra) (as to the period of gestation) contains nothing relevant to this Appeal.[72]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.[73]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 ![74]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.[75]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.[76]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,[77]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.[78]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.[79]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.[80]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.[81]My Lords,[81]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.[82]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 ? "[83]My Lords,[83]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.[84]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.[85]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."[86]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."
[87]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.[88]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.[89]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.[90]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.[91]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.[92]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.[93]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 ?[94]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.[95]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.[96]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.[97]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.[98]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.[99]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.[100]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.[101]The Appellant relies on a rule which forbids spouses, s ub 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).[102]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.[103]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.[104]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.[105]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 ?[106]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.[107]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.[108]My Lords,[108]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 ?[109]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.[110]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.[111]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.[112]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.[113]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.[114]My Lords,[114]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.[115]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.[116]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.[117]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.[118]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.[119]My Lords,[119]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.[120]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.[121]My Lords,[121]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.[122]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.[123]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."[124]My Lords,[124]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.[125]My Lords,[125]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.[126]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.[127]My Lords,[127]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 witha. A.b. 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 ?[128]My Lords,[128]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.[129]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[130]My Lords,[130]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.