Concubinage

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At the present day, the state — more or less permanent — of a man andwoman living together in illicit intercourse. In its strict sense it is used of those unions only in which the man and thewoman are free from anyobligation arising from avow, the state of matrimony orHoly Orders, or the fact of relationship or affinity; it is immaterial whether the parties dwell together or not, the repetition or continuance of illicit relations between the samepersons being the essential element.

However, the meaning conveyed by the term has not always been the same; in theOld Testament, for instance, a legitimate spouse, if of an inferior social grade, or a bondwoman, is often given the appellation of concubine, not to call in question the validity of her marriage, but to indicate that she did not share in her husband's rank orproperty nor in the administration of the household to the same extent as the principal wife. From Genesis 21:9-14, we see that her dismissal and that of her children was permissible. But in those Scriptural times, whenpolygamy was permitted or at least tolerated, such a concubine was not the only marriage partner. Thus Lia and Rachel, the first two spouses of Jacob, had the full social standing of wives, while Bala and Zelpha, both bondwomen, were his concubines, married for the purpose of bearing children for Rachel and Lia (Genesis 30:3, 9, 13). Here, therefore, the main difference between the state of legitimate marriage properly so called and that of legitimate concubinage is to be found in the disparity of rank which characterized the latter.

The meaning of the term inRoman law, and consequently in earlyecclesiastical records and writings, was much the same; a concubine was a quasi-wife, recognized by law if there was no legal wife. She was usually of a lower social grade than her husband, and her children, though not considered the equals of those of the legal wife (uxor) were nevertheless termed natural (naturales) to distinguish them from spurious offsprings (spurii). For this legitimate concubinage theRoman law did not require the intention of the two parties to remain together until death as man and wife; theLex Julia and thePapia Poppæa allowing both temporary and permanent concubinage. The former was always condemned as immoral by theChurch, who excluded from the ranks of hercatechumens all who adopted this mode of living, unless they abandoned their illicit temporal, or converted it into lawful permanent, wedlock. Permanent concubinage, though it lacked the ordinary legal forms and was not recognized by thecivil law as a legal marriage, had in it no element of immorality. It was a real marriage, including theintention andconsent of both parties to form a lifelong union. This theChurch allowed from the beginning, whilePope Callistus I broke through the barrier of state law, and raised to the dignity ofChristian marriage permanent unions between slave and free, and even those between slave and slave (contubernium).

The Council of Toledo, held in 400, in its seventeenth canon legislates as follows forlaymen (forecclesiastical regulations on this head with regard toclerics seeCELIBACY): after pronouncing sentence ofexcommunication against any who in addition to a wife keep a concubine, it says: "But if a man has no wife, but a concubine instead of a wife, let him not be refused communion; only let him be content to be united with onewoman, whether wife or concubine" (Can. "Is qui", dist. xxxiv;Mansi, III, col. 1001). The refractory are to beexcommunicated until such time as they shall obey and do penance.

With the destruction of the Roman Empire and the consequent decline ofknowledge of theRoman law, its institution of legitimate concubinage fell into disuse, and concubinage came more and more to have only the modern significance, that of a permanent illicit union, and as such was variously proceeded against by theChurch. Theclandestine marriages which gradually came to be tolerated in theMiddle Ages, as they lacked the formality of a public sanction by theChurch, can be considered as a species of legitimate concubinage. TheCouncil of Trent (1545-1563), Sess. XXIV, chap. i, not only renewed the oldecclesiastical penalties against concubinage, but added fresh ones, also forbade and rendered null and void allclandestine unions, thus forever doing away with even the appearance of legitimate concubinage. From that time the modern invidiousidea of the term alone obtains. The decrees ofTrent, however, were in force only in countries strictlyCatholic; the new marriage law (Ne temere) ofPius X (1908) extends the prohibition againstclandestine marriages toCatholics the world over.

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