Does Russell v. Russell Apply in Criminal Cases?
| DOI | 10.1177/002201834000400209 |
| Date | 01 April 1940 |
| Published date | 01 April 1940 |
| Subject Matter | Article |
Does Russell v. Russell apply in
Criminal Cases?
IN
the well-known case of Russell v. Russell (1924),
A.C.,
687,
the House of Lords by a bare majority of three to two
decided that no married man or woman could in a divorce
case be allowed to give evidence of non-access so as to
bastardize a child born in wedlock.
This
had long been
the accepted rule in legitimacy cases, but such great divorce
judges as Sir James Hannen and Sir Francis Jeune had
regularly admitted such evidence in divorce cases, where
strictly the question to be decided was not the legitimacy of
a child,
but
the adultery of one of its parents.
The
fact that
this adultery had resulted in the birth of a child would be
cogent evidence in a divorce case, and the decision of the
court in many cases no doubt had the effect of bastardizing
a child, born in wedlock. But the legitimacy of the child
was not the issue before the court.
It
is interesting to note that the
Lord
Chancellor, Lord
Birkenhead, at the commencement of his judgment (p. 697)
states that the question at issue is " whether or not, by the
law of England, evidence of non-access may, in proceedings
for divorce (our italics), be tendered by a spouse and received
by a court with the object or possible result of bastardizing
a child of the
marriage".
But cases were cited to the court,
which showed that the rule had been applied not only in
legitimacy cases,
but
also in cases concerning the settlement
of paupers, in peerage cases, and so on (see pp. 732,733) ;
and the court appears to have based its decision upon the law
as stated by
Lord
Mansfield in Goodright o. Moss (1777),
2
Cowp.,
591, where he
said:
"The
law of England is clear
that the declarations of a father or mother cannot be admitted
223
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