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CHAPTER V.: OF INTEREST DERIVED FROM SEXUAL CONNEXIONS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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OF INTEREST DERIVED FROM SEXUAL CONNEXIONS.
I. The superiority of the interest which the relation of husband and wife is capable of creating, when compared with the interest capable of attaching itself to any of the others, is too obvious, and too clear of dispute, to need bringing to view by any special observations.
The only particulars to which, on the subject of this relation, it can ever happen to need bringing to view, are the cases forming so many exceptions to the general rule: the cases in which the interest commonly attached to this relation, and acting on testimony in a correspondent direction and with a correspondent degree of force, may happen to act with an inferior degree of force, though in that same direction; or even in a direction plainly opposite.
The general rule is too obvious to admit the possibility of the judge’s regarding it in any case with a degree of attention inferior to that which is its due. On this occasion, as on others, one great use of a body of instructions from the legislator to the judge, is the preventing him from seeking, in the cover afforded by general rules, a cloak for imbecility, or indolence, or negligence, or indifference, or partiality, or corruption of a still grosser nature:—in the present instance, for affecting to see an influencing interest where there is none, or to see such interest where there is an opposite one: for presuming the bias of the witness to be on one side, when the facts in the cause, if he chose to look at them, would show it to be acting on the opposite side.
A suit or cause, criminal or civil; the husband, plaintiff or defendant: on his side, or on the opposite side, the testimony of his wife is called in. If nothing else appears in the cause than that she is his wife,—if, of the terms on which (in respect of amity or the contrary) they live, no special indications present themselves—nothing but the existence of the matrimonial relation,—the ordinary degree of affection must, and will of course, be understood to subsist.
But this presumption ought to be understood as capable, for this purpose, to be rebutted at any time, by the proof of special facts indicative of the contrary: such as separation, whether by consent, or by authority of law; elopement on the part of the wife; habitual and open adulterous cohabitation, on the part of the wife, in a house separate from that of the husband.
But neither should these indications, howsoever strong the presumption which they afford, be regarded as conclusive evidence of the absence of all interest.
Separation will not take away the pecuniary interest which the wife has in the gain or loss that may happen to her husband, unless her maintenance is fixed, has been so for a length of time, and all intercourse between them has ceased: nor even then altogether, since pecuniary loss on the part of the husband would in some cases disable him, wholly or in part, from affording such maintenance.
Notwithstanding separation, elopement, or adulterous cohabitation still subsisting, the common interest may have regained its original force, if from other incidents there appears reason to believe that a reconciliation has already taken place, or is likely to take place.
The interest, and its influence on the testimony, depending not on the outward and factitious bond or symbol of connexion, a token given at some distant point of time—but upon the affections prevalent in the bosom of the witness at the very time of the utterance of her testimony,—whatever indications of a contrary interest happen at that time to present themselves, present the same demand for the judge’s attention as any other evidence by which the trustworthiness of testimony may be affected.
On this occasion, however, it concerns the judge to keep his attention open to two circumstances.
1. One is, that—where the importance of the cause, in its own nature or in the eyes of the party and witness, is such as to create an interest capable of supporting them under the trouble of the imposture—appearances of dissension, and even enmity, between the husband and the wife, may be put on, for the purpose of rebutting the presumption of conjugal partiality, and thence gaining for her testimony a degree of credit beyond what properly belongs to it.
2. Another is, that whatsoever ill-humour or antipathy may be really prevalent at the time, the pecuniary interest (a self-regarding interest, an interest in a considerable degree inseparable from the legal obligations attached to the connexion) remains on the other side to oppose its force to that of the dissocial interest: so that unless the case be such that the disadvantage that would fall on the husband in consequence of the loss of his cause, would have no material effect on his purse,—her testimony will not, by any such disagreement, be divested of all bias in favour of his side of the cause; unless (as is sometimes the case between adversaries, e. g. in all acts of aggression so open as to expose the aggressor to inevitable punishment) her antipathy for her husband has for the moment become stronger than her regard for herself.
The estimation in which a woman is held, is apt to be more or less disadvantageously affected, when, after her having cohabited with a man in the character of his wife, a discovery is made that there was no marriage, or that for some cause or other the marriage was void. In general, therefore, were no other interest at stake than the interest of her reputation,—in a cause in which the fact or validity of the marriage were in question, the testimony of the wife, if examined on that side, would be drawn by a strong bias to the affirmative side.
Yet cases are not wanting in which the bias would be still more incontestably on the other side. For example, where the wife is prosecuted for bigamy. If she can induce a persuasion that the supposed former marriage never took place in fact, or was not legal, she thereby exempts herself from whatever punishment is attached to that offence.
In adultery on the part of the wife, concealment is commonly an object with both delinquents; and so far as it is preserved, reputation remains unaffected. But open adultery is likewise not without example: nor is the case without example, in which, for the purpose of divorce, proofs of the transgression have been purposely furnished by the wife.
In a cause in which the husband is a party, concealed adultery on the part of the wife cannot with reason be regarded as a circumstance diminishing in any considerable degree (much less destroying) the complex and powerful interest by which the testimony of the wife is drawn towards the husband’s side. The unity of pecuniary interest, and of that sort of reputation which is attached to condition in life, remains unimpaired. With ill-will, in any degree, the transgression has on her part, though a most natural, not a necessary connexion, either in the character of cause or in the character of effect. Friendship may remain unchanged. The only thing certain is, the existence of a man in whose society she has reaped a sensual gratification, which (by reason of absence, or debility, or indifference, or estranged appetite, or inferiority in personal accomplishments,) she has failed of experiencing in the arms of the man to whom she is joined by law.*
For rebutting the presumption of partiality created by the legal connexion—a partiality in general little inferior in strength to that which either, being alone, would feel for his or her own cause,—the judge will naturally carry to account whatsoever counter-indications happen in any case to present themselves. But it is seldom that the utility of such lights, with reference to truth, and security against deception and consequent misdecision, will be important enough to outweigh the vexation, expense, and delay—more particularly the vexation—that would naturally be inseparable from an inquiry carried on for that special purpose.
Cases, however, warranting and prescribing such inquiry, are not altogether out of the natural course of things. Suppose a homicide, and the husband under prosecution for the murder. In the ordinary state of things, and to judge on the ground of general presumptions, the testimony of the wife should be little less partial to the husband’s side than his own would be. But cases have happened, in which a wife, by herself, or in conspiracy with others, has been concerned in the murder of her husband; and the case may be, that bearing towards her husband a degree of ill-will strong enough to have determined her to the enterprise of ridding herself of him by such flagitious means (her husband being innocent of the crime, and known by her to be so,) her design is to employ her testimony to the purpose of procuring him to be convicted. In this case, the prevention of the tremendous calamity of judicial homicide may depend on a scrutiny into the particulars of the habitual intercourse between the husband and the wife.
II. For the particular purpose here in question,—for the purpose of judging of the influence of social connexion upon testimony,—it will not always be easy to say whether, in the case of the female testifying in a cause in which the male is a party, the action exerted on the testimony by the interest resulting from the connexion, is likely to be most powerful in the case of the wife, or in the case of the concubine.
In the case of the wife, the bond of connexion (excepting in the extraordinary case of divorce) is perpetual: in the case of the concubine, it may be dissolved at any time, at the pleasure of either of the parties.
But, in the case of the concubine, the proof of sympathy borne to her by the male is more conclusive than in the case of the lawful wife; for if no such affection existed, the probability is, that he would not maintain her in that character: whereas in the case of the wife, though aversion had taken the place of amity, she would not be the less his wife.
On the other hand, again, the point in question here is not the affection of the male as towards the female, but the affection of the female as towards the male. But, of the affection on the part of the female towards the male, the existence of the sexual connexion is comparatively but a remote article of evidence. Without affection on the part of the male, the connexion would not continue: but it may continue without any affection on the part of the female; since her means and even prospects of subsistence may depend upon it. It may be, that from the first the sentiment never had existed: perhaps, having originally existed, it has become extinct: perhaps it has not only become extinct, but given place to the opposite sentiment, antipathy.
Let the cause in which the male is a party be of the number of those in which money is at stake. Let it be considered, in this particular case, what differences are presented between the situation of the wife and the situation of the concubine.
In the ordinary state of things, the interest of the wife in this case is identified with the interest of the husband. Sharing together, and in the company of one another, the common property (though in proportions in some degree dependent on the pleasure of the stronger party,) the gain of the husband is the gain of the wife, the loss of the husband the loss of the wife. In the case of the concubine, the identity wants much of holding good, since the connexion may be dissolved at any time.
But whether there be gain or loss, the wife will be still the wife. In case of gain, her share in the additional mass will not be apt, in her expectation, to differ from the share she had been accustomed to occupy in the original mass: and so (mutatis mutandis) in the case of loss, her share will be, in her expectation, naturally in the same proportion.
On the other hand, in the case of the concubine, the gain (if to a certain degree considerable) may, in her expectation, be liable to excite his thirst for pleasure, and send him in search of more agreeable connexions, either in the same way, or in the way of marriage: but, moreover, in case of loss, the loss (if to a certain degree considerable) may render the pecuniary burthen too heavy to be borne by one who has it in his power to rid himself of it at any time.
One case there is, in which it is but natural that the interest of the concubine should act with much more force on her testimony, than the interest of the wife on her’s. This is where, though the marriage has not been dissolved to the purpose of giving room for another marriage, the wife lives separately from her husband, and at a fixed allowance. In this case, be the gain of the husband what it may, the expectation of sharing in it is not likely to have place in the bosom of the wife: whereas, in the bosom of the concubine (unless where the gain appears considerable enough to excite new projects,) an expectation of a share in the concern will come of course. As to loss,—in the bosom of the concubine, the prospect of it will excite a double apprehension—the apprehension of seeing her share diminished, and the apprehension of experiencing a total dissolution of the connexion from which it should have flowed. But to any such loss the separated wife may be comparatively indifferent; unless among the effects of it be that of trenching upon her separate maintenance.
Two obvious circumstances there are, by the force of which the condition of a concubine is gradually led towards a coincidence with the condition of the wife. One is, the birth of children: especially when, by their continuance in life, their existence adds every day to the force of the bands by which their parents were united in the first instance: the other is, the duration of the connexion between the parents themselves.*
Where the importance of the cause is such as to warrant the inquiry, the judge will perceive that the force with which an interest of this nature is capable of acting upon testimony, has at least as good a claim to be taken into the account as that of any interest of a nature merely pecuniary, expressible by a definite sum, liable to be gained or lost by the testimony, according as the result of the cause is in favour of the one party or the other.
From the addition of any other interest or interests operating in the same direction (be their force what it may,) pecuniary interest cannot but receive additional strength and efficacy. And if, in the case of a pecuniary interest derived from this or any other of the social relations, the quantum is not so apt as in the case of a simple pecuniary interest, to be susceptible of liquidation—of being expressed by a determinate sum,—the force with which it is apt to act on testimony is scarcely on that account the less considerable. Of a sum not liquidated by any arithmetical process, the dimensions are left to be adjusted by the imagination; and in a case of this sort, the imagination is not less apt to err on the side of increase than on the side of diminution.
The relation of concubine to keeper is not recognised by the laws, or it would not be what it is: it would be changed into that of wife to husband. In some countries it has been—in any country it is capable of being, taken for a ground of punishment. That which the legislator is disposed to punish—that which he would wish to prevent—that which he would prevent if it were in his power, and if the mischief of the coercion necessary to prevention would not outweigh the mischief of the obnoxious practice,—cannot be regarded with satisfaction by the legislator, nor ought in general to be so by the judge. But in his displeasure, how strong soever it be, neither the one nor the other will find any sufficient warrant for withdrawing their attention from the object by which it is called forth: from the object, or from the effects, good or bad, which flow from it on all sides.
Where the existence of such a connexion is taken for a ground of punishment, it might be a severe task upon the sympathy of the judge, were it out of his power to form his opinion relative to the existence of such a connexion for the purpose of judging of its influence upon testimony, without proceeding to apply such his opinion to the same fact considered in the light of an act of delinquency, and thereupon to apply punishment in consequence. Fortunately, no such collateral conclusion need be formed. To warrant the application of pure punishment—of a suffering which produces not, on the part of any other individual, any enjoyment to counterbalance it,—stronger and more cogent proof is requisite, than in the case in which that which passes out of the hand of one man in the shape of loss, passes into the hand of another man in the shape of gain; insomuch that, by the transference, though something in the way of happiness, yet not everything, is lost upon the whole. For the purpose of punishment, neither community of abode, nor domination of the female by the male, nor both together, ought to be accepted as sufficient proof, in the character of circumstantial evidence: but, for the purpose of judging of the influence of domestic relation upon evidence, such intercourse may well serve for sufficient proof, subject to the effect of any counter-evidence deducible from other sources.
In the case of concubinage, the common subsistence is, for a variety of obvious reasons, most apt to have for its source the property of the male. Hence, in the relation between keeper and concubine, the station of keeper is (in the ordinary course of language, as in the ordinary course of practice) referred to the male sex—that of concubine to the female.
Instances, however, in which the parts have been reversed, are not without example; and to the judge, as to the legislator, nothing that can ever happen to call for his attention ought to be strange.
To a case thus deviating out of the ordinary course of things, it seems scarcely necessary that any detailed instruction should be adapted. In what respects this converse case agrees with the ordinary case, will be easily pointed out by analogy: in what respects they differ, may, with little more difficulty, be discovered by the light of contrast.
III. It remains to consider the simple case of the relation between two lovers.
The passion of love is a passion of the force of which, on other occasions, it cannot well happen to the judge not to be aware: it would be a sad oversight, if, on an occasion of such importance as the one here in question, its influence were to be overlooked.*
Without any aid from pecuniary interest, the interest created by this passion is capable of rising beyond any height to which pecuniary interest (particularly in a state to act on testimony) has ever been known to arise.
But, in the state of things in which love aims at marriage, pecuniary interest is capable of adding its whole force.
In the case of the male, the impression made by the personal charms of the female may have risen to any degree of strength; there are no limits to the quantum of the property in possession or expectancy, in which he may be entertaining expectations of possessing a husband’s share, and the right to which may be dependent on his evidence; his own may amount to anything or nothing; nor are there any assignable limits to the load of debt under the pressure of which it may happen to him to labour.
Change the sexes: what difference there may be, will be scarcely worth noting for this purpose. The power which, by marriage, the female acquires over the property of the male, is not in general so great as the power which, by the same contract, the male acquires over the property of the female. In this respect, the force with which the interest created by the relation in question is capable of acting on the testimony of the female, may be considered as suffering some diminution in comparison with the opposite case, though a diminution so precarious, as, on the present occasion, to have scarcely any claim to notice. On the other hand, as property is apt to fall in larger masses into the lap of the female than into that of the male, at the same time that the male is less restrained than the female in his choice, elevation by this ladder has been more apt in the instance of the female sex than in the instance of the male, to have risen to extraordinary heights. From the very lowest origin, females have been raised by marriage even to the throne. Men, though they have been raised to a station equally high, have never, by that same ladder, been raised from a station equally low.
[* ]Among the Lacedæmonians and Romans, though adultery was no more dispunishable than horse-stealing, a man would lend his wife to a friend as he would his horse. To whatsoever degree illaudable, the custom does not the less prove the rashness of any opinion that should regard adultery on the part of the wife as a proof of the extinction of that partiality, by which, in a cause in which the husband is party, her testimony will naturally be drawn towards the husband’s side.
[* ]Of this latter circumstance such is the force, that, under the laws of some countries, cohabitation, without further proof, unless it be the acquiescence of the man in the assumption of his name by the woman, is regarded as possessing, to that purpose, whatsoever force has been given by law to the prescribed solemnities.—[This may be said to be the case in Scotland, where parties are held as married, if they have lived “habit and repute as man and wife;” that is, if they have allowed themselves to be treated by society as man and wife, without taking measures to show that they wish their connexion to be held in another light. Were it proved, however, that the passing for husband and wife was in pursuance of a design concocted beforehand by the parties, to serve a separate purpose,—say to save the woman’s reputation,—marriage would not be held to have taken place. It has to be observed, that the cohabitation does not, of itself, constitute marriage;—it is merely held as a proof of its existence—of the parties having consented to be married.—Ed.]
[* ]It is completely so by English law.