Russell v Russell
| Jurisdiction | England & Wales |
| Judge | The Earl of Birkenhead,Viscount Finlay,Lord Dunedin,Lord Sumner,Lord Carson |
| Judgment Date | 30 May 1924 |
| Judgment citation (vLex) | [1924] UKHL J0530-3 |
| Date | 30 May 1924 |
| Court | House of Lords |
[1924] UKHL J0530-3
Earl of Birkenhead.
Viscount Finlay.
Lord Dunedin.
Lord Sumner.
Lord Carson.
House of Lords
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.
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 examination 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 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."
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.
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 determine 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 proceedings 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.
Lord Ellenborough, C.J., when the case was called for hearing, said that the evidence recommended would be in direct contradiction 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...
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