Concubinatus (Latin, "concubinage") was a monogamous union, intended to be of some duration but not necessarily permanent, that was socially and to some extent legally recognized as an alternative tomarriage in theRoman Empire. Concubinage became a legal concern in response toAugustan moral legislation that criminalized adultery and imposed penalties on some consensual sexual behaviors outside marriage.[2]
Reasons for choosingconcubinatus over marriage varied. If one partner wasfreeborn and belonged to thesenatorial order, and the other was a formerslave, there were legal penalties for marrying. More generally, wealthy widowers or divorced men might avoid the legal complexities of a second marriage in preserving their estates for heirs while still acknowledging a commitment to their partner. However, both partners might befreedpersons,[3] with the benefits ofconcubinatus over marriage for people of this status not entirely clear in the historical record.Concubinatus was distinguished inRoman law fromcontubernium, a de facto marriage in which the partners were both slaves or one was a slave and the other a freedperson.[4]
The female partner, "perhaps always" the person of lower social rank in the Classical period,[5] was aconcubina, literally a "bedmate", one for lying with, but a socially respectable role in contrast to thepaelex, a sexual partner who was a rival to a wife. The naming of aconcubina as such in epitaphs indicates that she was accepted as part of the extended family, and juristic texts accord theconcubina certain protections. The listing ofconcubinae along with legal wives on grave markers indicates serial monogamy, not their coexistence, as tombs were often communal and included multiple members of a household, from different times of the male partner's life.
In Latin literature, however,concubinae are more often disparaged as female slaves kept as sexual luxuries, sometimes along witheunuchs.[6] The discrepancy lies in whether the union was legally verifiable as monogamousconcubinatus; anancilla (female slave as part of a household) might be kept as a "bedmate" and referred to asconcubina but was not eligible for the privileges of formal concubinage.[7] The equivalent term for a male,concubinus, is used only informally, most often for a same-sex relationship.
Although usage of the wordconcubina during theRoman Empire poses ambiguities of role and status, the difference between the Imperial-era concubine as a subject of legal interest and apaelex or extralegal concubine during theRepublic is fairly straightforward: thepaelex was a woman "installed" by a married man as a sexual rival to his wife,[8] whereas theconcubina was a wife-like companion as well as sexual partner.
According to the 2nd-centuryantiquarianAulus Gellius, in early Romepaelex was a disparaging word for a woman in a continuing sexual liaison with a man who had also contracted an archaic form ofmarriagecum manu, meaning that he heldpatriarchal power over his wife.[9] In a much-cited law attributed to the semilegendaryNuma Pompilius, secondking of Rome (ca. 716–673 BCE), a concubine (paelex, not aconcubina) was barred from thecultivation ofJuno, the goddess of marriage: "apaelex shall not touch the altar of Juno. If she touches it, she shall sacrifice, with her hair unbound, a ewe lamb to Juno."[10] Thepaelex in Latin literature is a woman perceived as a sexual threat by the wife, just as Juno was perpetually aggrieved by her husbandJupiter's "affairs", few if any of which were perpetrated with willing partners. In mythology, particularly in the cycle of myths pertaining to theTrojan War, thepaelex is often awar captive and hence slave brought into the home as booty by the returning husband. The wordpaelex is so used by the comic playwrightPlautus and was the title of a lost play byNaevius. Writing under Augustus,Ovid often uses the wordpaelex for abducted or captive women and for non-wives subjected to domestic rape in the myths he depicts in theMetamorphoses and other works.[11] In these stories, thepaelex is often depicted as foreign or barbarian.[12][13][14]
Asconcubinatus became regularized under Imperial law and the status of theconcubina elevated as the extralegal equivalent of a wife within imposed monogamy, usage ofpaelex inversely degraded so that it came to mean nothing more than a woman who had sex with a married man, and in late antiquity seems to have been a synonym for "prostitute"[15] or "whore".[16]
During the reign ofAugustus, the first Roman emperor, certain forms of sexual conduct outside marriage, including some consensual behaviors, were criminalized asstuprum, illicit sexual intercourse, sometimes translated as "criminal debauchery"[17] or "sex crime".[18]Stuprum encompasses diverse sexual offenses includingrape[19] andadultery.Stuprum could only be committed against a citizen in good standing; slaves and prostitutes were neither protected by nor liable to these laws, nor were theinfames, those whose social standing was permanently compromised by their professions or offenses against public morality.
Previously in the Republican era, the father of an unmarried daughter could bring a charge of rape against a man who had sex with her, regardless of her consent, because marriage was required for sexual access to women who had standing as citizens. Rape was a capital crime, but the man's intentions mattered, and paternal accusations of "rape" – includingbride abduction[20] orelopement when the woman had consented[21] – were generally settled privately among families. Adultery likewise was normally considered a private matter for families to deal with, not a serious criminal offense,[22][23] though thecensors could reduce the status of men who debased the institution of marriage, and some cases of adultery and sexual transgressions by women had been brought to theaediles for judgment.[24]
After 18 BC, thelex Iulia de adulteriis ("Julian law on adultery") and other legislation established illicit sex as a concern of public law. If a man was accused of rape, the consent of his female partner was no defense – he could still be charged with the more general sex crime ofstuprum against a citizen, or withadulterium if either was married to someone else, and consent implicated the woman in the crime too.[25] If the man was unmarried, his female sexual partners were thus limited to slaves, prostitutes, or theinfames, persons against whomstuprum could not be committed – "frivolous liaisons" and not the kind of moral uplift the legislation was intended to promote.[26]Concubinatus evolved to accommodate a relationship which was based on companionship, including but not limited to sexual companionship, but which was not likely to result in a marriage, for any variety of reasons.[26]
Although not a legal institution,concubinatus raised questions in relation to marriage, and concubines occupied an entire chapter, now fragmentary, in the 6th-century compilation of Roman law known as theDigest.[27] The ad hoc nature ofconcubinatus is reflected in the varied and at times conflicting legal reasoning on the part of Roman jurists.[26] Even legal experts had trouble navigating the hazards ofstuprum in parsing which women were eligible as sexual partners outside marriage and which could be partners in monogamous concubinage without damaging either party's social standing.[28] The juristUlpian said that "only those women with whom intercourse is not unlawful can be kept in concubinage without the fear of committing a crime,"[29] but if a woman was already a penalty-free sexual partner,concubinatus would not be necessary to avoid a charge ofstuprum.[30] The juristModestinus definedstuprum as sexual relations with a free woman (libera mulier) outside marriage, unless she was aconcubina.[31]
What legally differentiated concubinage from marriage wasaffectio maritalis, the intention of both partners to enter into marriage and have children. Marriage itself existed in several forms, at times elusive of proof, as the juristPapinian noted.[32] But a person committed to aconcubinatus was not allowed to have a spouse at the same time – a man could not have both a legal wife(uxor) and aconcubina.[33]
Concubinatus came to define many unions that would be unsuitable marriages according toRoman custom, such as asenator's desire to marry a freedwoman or hiscohabitation with a former prostitute.[34]Concubinatus between a woman of senatorial rank and her former slave might be possible but was not condoned, in part because the Romans disapproved of the woman having the higher status in relationships that were not socially equal.[35] The inequality ofconcubinatus is paralleled in the marriage of a master to a slave he has freed for this purpose; when the manumission of a freedwoman had been arranged on the condition that she marry her former master, she lacked the usual agency of Roman women in marriage and could obtain a divorce only with the male partner's consent or under other very limited circumstances.[36] A quasi-marital relationship involving aRoman citizen and aforeigner was not considered concubinage but a non-Roman marriage based on international law (matrimonium juris gentium),[37] without legal consequences except those deriving from theius gentium.
Although not a requirement, a formalconcubinatus might benefit from the preparation of atestatio,[38] a document declaring the couple's honorable intention in the presence of witnesses, who signed it.[39]Testatio is a general term for an evidentiary document signed by witnesses. It was not a "marriage license" issued by the state but rather a document drawn up by the consenting parties, similar to documents expressing intent and consent to marry.[40] The relevant passage from theDigest is vexed, but the jurist appears to recommend preparing such a document as the best way to ward off charges ofstuprum when the concubine was a freeborn woman in good standing.[a] Thetestatio was one way thatconcubinatus mirrored marriage as an institution.[41]
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Concubinatus differed mainly from lawful marriage in the legal status of heirs. The couple's children werenaturales, "natural" children. Afilius naturalis (femininefilia naturalis) was any child born into a family formed from aconcubinatus orcontubernium union, which were not valid marriages in Roman law, or more generally any child whose biological paternity was known. Thenaturalis was distinguished from afilius legitimus (a child born from a legally valid marriage) orspurius (a child of unknown paternity).[33][b]
Because anancilla could not be a partner inconcubinatus, her child could not be legitimated simply by calling her aconcubina. The purpose of this enactment underConstantine I was to discourage men ofdecurion rank from cohabiting withancillae and introducing questions oflegitimacy into the family's hereditary civic obligations.[44] However, in the later empire, children born into concubinage could be legitimated if the couple married legally, and theemperor could grant legitimation as a special privilege.[45] Retroactive legitimation of children was an encouragement for a man of rank to marry the freebornconcubina with whom he had been living monogamously when he had no legitimate heirs from a previous marriage.[46]
Roman inheritance law was one reason that a man of high rank would live with a woman in concubinage after the death of his first wife; the claims of his children from the first marriage could not be challenged bynaturales children from the later union.[47]Marcus Aurelius had aconcubina rather than remarrying so that relations with his children would not be complicated by a stepmother.[48] Children are mentioned infrequently in connection withconcubinatus, and in her study of the subjectBeryl Rawson wondered whether children were perhaps not particularly desired from this relationship.[49]
There is no word to specify the male partner inconcubinatus.[50] An upper-class man who had aconcubina generally was either a young man who was not ready to enter a permanent marriage, or a widower or divorcé who had already produced heirs and was seeking companionship for its own sake.[50] Men of senatorial rank had the most narrow options for contracting a valid marriage.[51] Thelex Iulia et Papia of 9 CE set up legal barriers to senators[c] marrying women with certain debilities of status, including freedwomen; women whose professions made theminfamis, such as stage performers; prostitutes; or any woman who had ever been apprehended in the commission of a crime, regardless of conviction.[53] Men who violated the ban by marrying an inappropriate partner were legally consideredcaelibes, unmarried, and were subject to penalties under the laws regulating marriage and morality.[54]
The succession of female partners of the futureSaint Augustine (born 353 CE inRoman Africa) demonstrates the pattern of the young man seeking steady sexual companionship in the period between puberty and age thirty.[55] From the age of 18 to 29, during the time when he was aManichee, Augustine had a concubine, conceiving a natural son(filius naturalis) with her in the first year they were together. He was faithful to her and wrote that their relationship was lacking only "the honorable name of marriage",[56] but when he became engaged to a ten-year-old girl[57] at the instigation of his mother,[58] he dumped theconcubina and sent her back to Africa.[59] He does not name hisconcubina, although he says he was brokenhearted at her loss, and he keeps their son, who dies in childhood, while he assents to a marriage partner whose family would be an asset to his planned career. During the two years he had to wait for his fiancée to come of marriageable age, Augustine felt unable to remain celibate and took a second concubine. As it turned out, he never wed, owing to his new Christian calling, but his writings contain a great deal of moral guidance on sexual behavior and the responsibilities of marriage.[60]
Several emperors had an acknowledged and socially acceptedconcubina after the death of the first wife,[61] includingVespasian,[62]Antoninus Pius,[63][64] andMarcus Aurelius.[65] If an emperor wanted a wife of appropriate social status, he could readily find one, and the choice of a particular woman, particularly a freedwoman as in all three of these unions, may argue for a relationship based on personal affection.[61]
This inequality of status inconcubinatus may evoke romantic ideals[66] or power dynamics,[67] but when freedwomen are identified asconcubinae in inscriptions, their partner most often is also a former slave; only about 21 percent of male partners can be identified as freeborn, but about 68 percent areliberti.[68] Among male partners who are either freedmen or of unstated status, a significant number are commemorated for their roles inimperial cult or local government.[69] Male partners were also employed in everyday occupations such as "repairer ofcarding-combs" or cloak dealer[69] that would make them the ancient equivalent of securely "middle class", neither poor nor wealthy.[70]
In contrast to marriage, which required an intention to marry on the part of both parties and for which the social equality of partners was preferred, legal cases determining whether a relationship was marriage orconcubinatus generally prioritize the intentions of the male partner.[5]
In theprovinces, active-duty soldiers during thePrincipate were not permitted to marry, but inscriptions indicate that they sometimes had a localconcubina. These unions may often have been an exception to the norms of concubinage as an alternative to marriage when marriage was not desired; rather, they were substitutes for marriage when marriage was not permitted.[26] A pair of inscriptions set up by brothers, veterans of theEighth Legion, points to the difficulty of understanding the reasons for choosing concubinage or marriage: both brothers commemorate their female partners, but one had married a freedwoman following his discharge, while the other had a freedwoman of his family(gens) as aconcubina.[71]
The title of concubine was not necessarily derogatory in ancient Rome, as it was inscribed on tombstones.[47] Almost 200 known inscriptions, mostly from Rome and the Italian peninsula, name women asconcubinae; of these, 67 are identified aslibertae, freedwomen. Only three areingenuae, freeborn.[72]Concubinae are included in inscriptions on family tombs, and it is not unusual to find them listed along with the male head of household's legitimate children and deceased wife.[73] Epitaphs for the whole family to be laid to rest in a particular spot often were set up on a single stone in advance or were added to later, complicating the determination of the order in which the man might have had wives and concubines. In Rome, an inscription set up by thelictor and freedman Marcus Servilius Rufus records three female partners: a wife(uxor), aconcubina specified as deceased, and another wife, listed in that order. The first wife named was probably his partner at the time Rufus had the inscription made; theconcubina already deceased; and the second wife added when he remarried after the death of the first.[74]
A woman inconcubinatus with a man of high rank might be technically eligible for marriage but not socially feasible as a wife for him. She benefitted from an improved standard of living and could receive "substantial" gifts from her partner.[d][50] These gifts were hers to keep and could not be taken back if the relationship ended.[75]Susan Treggiari described the situation of a woman inconcubinatus as "relatively secure".[50] Concerning the difference between a concubine and a wife, the juristPaulus wrote that "a concubine differs from a wife only in the regard in which she is held", meaning that aconcubina was not a social equal, as his wife ideally was.[76] The minimum age for becoming aconcubina was twelve,[29] the legal age ofbetrothal for Roman girls (fourteen for boys).[77]
One example of an imperialconcubina isGaleria Lysistrata, who was the freedwoman ofFaustina, the wife of Antoninus Pius, and succeeded her as the emperor's primary female companion.[64] Lysistrata's relationship is unusually high-profile but fits a common pattern ofconcubinae who had been freed by women.[78]
Even an informalconcubina who was a slave had some protections under the law. If her owner went bankrupt, nearly all his assets were subject to being seized by creditors and sold, excluding personal possessions such as clothes and slaves who were established in the household as personal attendants. Among these exclusions were aconcubina and any natural children he had fathered with a female slave, as Roman law tended to discourage breaking up families.[79] Inlate antiquity, an "obscure"constitutio underJustinian seems to suggest that if anancilla had lived with her master as his concubine for a long time and until his death, and if he had no other wife at the time, she would be released from slavery and any children they had would be regarded as freeborn.[80] She was also entitled to keep anypeculium accumulated for her, the fund or property a master set aside for a slave's use.[81]
An exception to the lower status of women inconcubinatus arises with the spread of Christianity. Perhaps becauseRoman state religion was intertwined with the holding ofpublic office and serving in themilitary, men were slower to convert to Christianity than women. An upper-class Christian woman therefore might have to choose between marriage with a social equal andconcubinatus with a Christian male of lower rank.[82] TheFirst Council of Toledo (400 CE) recognized the respectability ofconcubinatus as a monogamous union by not denyingcommunion to the participants, but men who had both a wife(uxor) and a concubine were excluded.[83]
Themasculine formconcubinus might be used of the subordinate male partner of either a man or a woman. Since no same-sex unions were recognized as legal forms of marriage under Roman law, a man'sconcubinus could not be a partner inconcubinatus as a legally recognized form of de facto marriage.[84] Literary references generally treat theconcubinus of a man as a form ofpuer delicatus, a well-groomed slave boy who might be so young that from the perspective of 21st-centurysexual ethics the relationship would express pedophilia.
In the only extant and completewedding song from Roman antiquity,Catullus warns the groom that he will have to give up hisconcubinus,[e] who himself is about to leave boyhood for adolescence.[85] The imperial biographerSuetonius refers to aconcubinus ofGalba who remained the emperor's companion as he grew older.[86]Concubinus might also be used disparagingly of a subordinate male kept at the pleasure of a woman of superior status.[87] Noconcubinus is identified as such in any known inscription.[88]