Concubinatus

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Concubinage in ancient Rome
)
The concubina Fufia Chila is included in this family gravestone set up by Marcus Vennius Rufus to commemorate himself, his father and mother, and his wife (Museo Archeologico Nazionale di Napoli )[1]

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 to marriage in the Roman Empire. Concubinage became a legal concern in response to Augustan moral legislation that criminalized adultery and imposed penalties on some consensual sexual behaviors outside marriage.[2]

Reasons for choosing concubinatus over marriage varied. If one partner was

senatorial order, and the other was a former slave, 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 be freedpersons,[3] with the benefits of concubinatus over marriage for people of this status not entirely clear in the historical record. Concubinatus was distinguished in Roman law from contubernium, 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 a concubina, literally a "bedmate", one for lying with, but a socially respectable role in contrast to the paelex, a sexual partner who was a rival to a wife. The naming of a concubina as such in epitaphs indicates that she was accepted as part of the extended family, and juristic texts accord the concubina certain protections. The listing of concubinae 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 with

concubinus
, is used only informally, most often for a same-sex relationship.

Paelex

Although usage of the word concubina during the Roman Empire poses ambiguities of role and status, the difference between the Imperial-era concubine and a paelex or concubine during the Republic is fairly straightforward: the paelex was a woman "installed" by a married man as a sexual rival to his wife,[8] whereas the concubina was a wife-like companion as well as sexual partner.

According to the 2nd-century

Jupiter's "affairs", few if any of which were perpetrated with willing partners. In mythology, particularly in the cycle of myths pertaining to the Trojan War, the paelex is often a war captive and hence slave brought into the home as booty by the returning husband. The word paelex is so used by the comic playwright Plautus and was the title of a lost play by Naevius. Writing under Augustus, Ovid often uses the word paelex for abducted or captive women and for non-wives subjected to domestic rape in the myths he depicts in the Metamorphoses and other works.[11]
In these stories, the paelex is often depicted as foreign or barbarian.

As concubinatus became regularized under Imperial law and the status of the concubina elevated as the extralegal equivalent of a wife within imposed monogamy, usage of paelex 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"[12] or "whore".[13]

Legislative and social background

Fragment from an equestrian statue of Augustus (1st century BCE)

During the reign of

sex crime".[15] Stuprum encompasses diverse sexual offenses including rape[16] and adultery. 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 the infames
, 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" – including

bride abduction[17] or elopement when the woman had consented[18] – were generally settled privately among families. Adultery likewise was normally considered a private matter for families to deal with, not a serious criminal offense,[19][20] though the censors 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 the aediles for judgment.[21]

After 18 BC, the lex 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 of stuprum against a citizen, or with adulterium if either was married to someone else, and consent implicated the woman in the crime too.[22] If the man was unmarried, his female sexual partners were thus limited to slaves, prostitutes, or the infames, persons against whom stuprum could not be committed – "frivolous liaisons" and not the kind of moral uplift the legislation was intended to promote.[23] 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.[23]

The ad hoc nature of concubinatus is reflected in the varied and at times conflicting legal reasoning on the part of Roman jurists.[23] Even legal experts had trouble navigating the hazards of stuprum 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.[24] Although concubinatus was not a legal institution, it raised questions in relation to marriage, and concubines occupied an entire chapter, now fragmentary, in the 6th-century compilation of Roman law known as the Digest.[25]

What legally differentiated concubinage from marriage was affectio 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 jurist Papinian noted.[26] But a person committed to a concubinatus was not allowed to have a spouse at the same time – a man could not have both a legal wife (uxor) and a concubina.[27]

Concubinatus came to define many unions that would be unsuitable marriages according to

ius gentium
.

Testatio

Although not a requirement, a formal concubinatus might benefit from the preparation of a testatio,

Digest is vexed, but the jurist appears to recommend preparing such a document as the best way to ward off charges of stuprum when the concubine was a freeborn woman in good standing.[a] The testatio was one way that concubinatus mirrored marriage as an institution.[35]

Children

Gravestone set up by Gaius Caesius Faustus, the freedman of Gaius Caesius, for himself; his natural son, Gaius Caesius Nothus; his former master's son, Gaius Caesius; Valeria Galla, possibly his concubine, identified as the freedwoman of a Lucius Valerius; and Lucius Cornelius Eleutherus (1st century AD)[36]

Concubinatus differed mainly from lawful marriage in the legal status of heirs. The couple's children were naturales, "natural" children. A filius naturalis (

decurion rank from cohabiting with ancillae and introducing questions of legitimacy into the family's hereditary civic obligations.[39] Retroactive legitimation of children was an encouragement for a man of rank to marry the freeborn concubina with whom he had been living monogamously, when he had no legitimate heirs from a previous marriage.[40]

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 by naturales children from the later union.[41] Marcus Aurelius had a concubina rather than remarrying so that relations with his children would not be complicated by a stepmother.[42] Children are mentioned infrequently in connection with concubinatus, and in her study of the subject Beryl Rawson wondered whether children were perhaps not particularly desired from this relationship.[43]

The male partner

There is no word to specify the male partner in concubinatus.

lex Iulia et Papia of 9 CE set up legal barriers to senators[c] marrying freedwomen; women whose professions made them infamis, such as stage performers; prostitutes; or any woman who had ever been apprehended in the commission of a crime, regardless of conviction.[47] Men who violated the ban by marrying an inappropriate partner were legally considered caelibes, unmarried, and the laws regulating marriage and morality also penalized bachelorhood.[48]

The succession of female partners of the future

Manichee, 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",[50] but when he became engaged to a ten-year-old girl[51] at the instigation of his mother,[52] he dumped the concubina and sent her back to Africa.[53] He does not name his concubina, 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.[54]

Several emperors had an acknowledged and socially accepted concubina after the death of the first wife,[55] including Vespasian,[56] Antoninus Pius,[57][58] and Marcus Aurelius.[59] 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.[55]

This inequality of status in concubinatus may evoke romantic ideals

imperial cult or local government.[63] Male partners were also employed in everyday occupations such as "repairer of carding-combs" or cloak dealer[63] that would make them the ancient equivalent of securely "middle class", neither poor nor wealthy.[64]

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 or concubinatus generally prioritize the intentions of the male partner.[5]

Soldiers and concubinae

In the provinces, active-duty soldiers during the Principate were not permitted to marry, but inscriptions indicate that they sometimes had a local concubina. 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.[23] A pair of inscriptions set up by brothers, veterans of the Eighth 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 a concubina.[65]

The concubina

The title of concubine was not necessarily derogatory in ancient Rome, as it was inscribed on tombstones.[41] Almost 200 known inscriptions, mostly from Rome and the Italian peninsula, name women as concubinae; of these, 67 are identified as libertae, freedwomen. Only three are ingenuae, freeborn.[66] 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.[67] 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 the lictor and freedman Marcus Servilius Rufus records three female partners: a wife (uxor), a concubina 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; the concubina already deceased; and the second wife added when he remarried after the death of the first.[68]

A woman in concubinatus 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] [44] These gifts were hers to keep and could not be taken back if the relationship ended.[69] Susan Treggiari described the situation of a woman in concubinatus as "relatively secure".[44] Concerning the difference between a concubine and a wife, the jurist Paulus wrote that "a concubine differs from a wife only in the regard in which she is held", meaning that a concubina was not a social equal, as his wife ideally was.[70]

Later the jurist

betrothal for Roman girls, and fourteen for boys.[72]

One example of an imperial concubina is

Galeria Lysistrata, who was the freedwoman of Faustina, the wife of Antoninus Pius, and succeeded her as the emperor's primary female companion.[58] Lysistrata's relationship is unusually high-profile but fits a common pattern of concubinae who had been freed by women.[73]

Even an informal concubina 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 a concubina and any natural children he had fathered with a female slave, as Roman law tended to discourage breaking up families.

Justinian seems to suggest that if an ancilla 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.[75]

Christian concubinage

An exception to the lower status of women in concubinatus arises with the spread of Christianity. Perhaps because

military, 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 and concubinatus with a Christian male of lower rank.[76] The First Council of Toledo (400 CE) recognized the respectability of concubinatus as a monogamous union by not denying communion to the participants, but men who had both a wife (uxor) and a concubine were excluded.[77]

Concubinus

The

puer delicatus, a well-groomed slave boy who might be so young that from the perspective of 21st-century sexual ethics
the relationship would express pedophilia.

In the only extant and complete wedding song from Roman antiquity, Catullus warns the groom that he will have to give up his concubinus,[e] who himself is about to leave boyhood for adolescence.[79] The imperial biographer Suetonius refers to a concubinus of Galba who remained the emperor's companion as he grew older.[80] Concubinus might also be used disparagingly of a subordinate male kept at the pleasure of a woman of superior status.[81] No concubinus is identified as such in any known inscription.[82]

See also

Notes

  1. ^ Cohabitation with a freeborn prostitute would not be a crime, since sex with a prostitute by definition was not stuprum.
  2. paternal rights under Roman law, and his child might be considered both "natural" and spurius.[37]
  3. ^ When the Augustan legislation was first passed, a marriage with the unsuitable female partner would remain valid, though the status of the male partner was officially degraded. A senatus consultum under Marcus Aurelius and Commodus voided the marriage.[46]
  4. ^ One of the peculiarities of Roman marriage was that spouses could not give each other gifts, so that the finances of upper-class or property-owning couples could be kept separate.[69]
  5. ^ In this instance, the situation of the concubinus mirrors that of the concubina who must be given up when the man contracts a legitimate marriage.

References

  1. ^ Corpus Inscriptionum Latinarum IX 2265.
  2. ^ McGinn 1991, pp. 335–375.
  3. ^ Rawson 1974, p. 289.
  4. ^ Treggiari 1981a, p. 53.
  5. ^ a b Treggiari 1981b, p. 59.
  6. ^ Williams 2006, pp. 413–414.
  7. ^ Buckland 1908, pp. 77, 401, 609.
  8. ^ J. N. Adams, "Words for 'Prostitute' in Latin," Rheinisches Museum für Philologie 126:3/4 (1983), p. 355.
  9. ^ Aulus Gellius, Attic Nights 4.3.3, as cited by Bonnie MacLachlan, Women in Ancient Rome: A Sourcebook (Bloomsbury, 2013), p 15.
  10. ^ Lefkowitz 2005, p. 95.
  11. ^ Amy Richlin, Arguments with Silence: Writing the History of Roman Women (University of Michigan Press, 2014), p. 227; Slave Theater in the Roman Republic: Plautus and Popular Comedy (Cambridge University Press, 2017), pp. 276–277, 495; The Garden of Priapus: Sexuality and Aggression in Roman Humor, rev. ed. (Oxford University Press, 1992) p. 97.
  12. ^ Adams, "Words for 'Prostitute'," p. 355, citing Isidore of Seville, Etymologiae 10.288.
  13. ^ Richlin, The Garden of Priapus, p. 97
  14. ^ Bruce W. Frier and Thomas A. J. McGinn, A Casebook on Roman Family Law (Oxford University Press, 2004), pp. 38 and 52.
  15. ^ Amy Richlin,"Not before Homosexuality: The Materiality of the cinaedus and the Roman Law against Love between Men", Journal of the History of Sexuality 3:4 (1993), p. 30.
  16. ^ Nephele Papakonstantinou and Anne Stevens, "Raptus and Roman law," Clio 52 (2020), pp. 25–26.
  17. ^ Papakonstantinou, "Raptus and Roman law," pp. 25–26.
  18. ^ Judith Evans-Grubbs, "Abduction Marriage in Antiquity: A Law of Constantine (CTh IX. 24. I) and Its Social Context," Journal of Roman Studies 79 (1989), pp. 62–65, 73–74, 76.
  19. ^ Catharine Edwards, The Politics of Immorality in Ancient Rome (Cambridge University Press, 1993), pp. 34–35.
  20. ^ Martha Nussbaum, "The Incomplete Feminism of Musonius Rufus, Platonist, Stoic, and Roman," in The Sleep of Reason: Erotic Experience and Sexual Ethics in Ancient Greece and Rome (University of Chicago Press, 2002), p. 305.
  21. ^ Susan Dixon, The Roman Family (Johns Hopkins University Press, 1992), p. 79.
  22. ^ Jane Gardner, Women in Roman Law and Society pp. 120–121.
  23. ^ a b c d McGinn 1991, p. 338.
  24. ^ Treggiari 1981b, p. 71–74.
  25. ^ Treggiari 1981b, p. 60..
  26. Declamationes 247 (Ritter 11.15); Digest 23.2.24 (Modestinus), 24.1.32.13 (Ulpian); 39.5.31 pr. (Papinian
    ).
  27. ^ a b Stocquart 1907, p. 305, citing Cod. 5, 27.
  28. ^ Kiefer 2012, p. 49.
  29. ^ Judith Evans-Grubbs, "'Marriage More Shameful Than Adultery'": Slave-Mistress Relationships, 'Mixed Marriages', and Late Roman Law," Phoenix 47:2 (1993), pp. 127–128.
  30. ^ Katharine P. D. Huemoeller, "Freedom in Marriage? Manumission for Marriage in the Roman World," Journal of Roman Studies 110 (2020), p. 134.
  31. ^ Stocquart 1907, p. 316.
  32. Marcianus
    , Digest 25.7.3 pr.–1, as a vexed passage.
  33. ^ Berger, s.v. testatio, Encyclopedic Dictionary of Roman Law, p. 735.
  34. ^ McGinn 1991, p. 361, especially n. 116.
  35. ^ McGinn 1991, pp. 360–363, 366.
  36. ^ Inscriptiones Italiae X V, 352; Santa Giulia Museum, Brescia, Italy
  37. ^ Buckland, The Roman Law of Slavery, pp. 77 (n. 3), 79; Berger, Encyclopedic Dictionary of Roman Law, s.v. filius iustus (= filius legitimus), p. 473, and spurius, p. 714.
  38. ^ Berger, s.v. filius iustus (= filius legitimus), p. 473, and spurius, p. 714, in Encyclopedic Dictionary of Roman Law (American Philological Society, 1953, 1991).
  39. ^ Buckland 1908, p. 77.
  40. ^ Judith Evans-Grubbs, "'Marriage More Shameful Than Adultery'": Slave-Mistress Relationships, 'Mixed Marriages', and Late Roman Law," Phoenix 47:2 (1993), p. 149.
  41. ^ a b Kiefer 2012, p. 50.
  42. ^ Dixon 1992, p. 93.
  43. ^ Rawson 1974, p. 291 n. 44.
  44. ^ a b c d Treggiari 1991, p. 52.
  45. ^ Sandon 2020, p. 153 n. 5.
  46. ^ McGinn 1991, pp. 345–346, 349 n. 63.
  47. ^ McGinn 1991, pp. 337 n. 11, 341 n. 28.
  48. ^ McGinn 1991, p. 341 n. 28.
  49. ^ McGinn 1991, p. 338, citing in n. 15 Augustine, Confessions 4.2.
  50. ^ Noonan 1986, pp. 125–126.
  51. ^ Treggiari 1981b, p. 69.
  52. ^ Noonan 1986, p. 125.
  53. ^ Treggiari 1981b, pp. 68–69, citing Confessions 4.2 and 6.12–15.
  54. ^ Judith Evans-Grubbs, "Late Roman Marriage and Family Relationships," in A Companion to Late Antiquity (Blackwell, 2012), pp. 215–216, citing Augustine, De bono coniugali ("A Good Marriage") 5.
  55. ^ a b McGinn 1991, p. 337 n. 11.
  56. ^ McGinn 1991, p. 337 n. 11, citing Suetonius, Vespasianus 3.21, Domitianus 12.3; Cassius Dio 6514.1–5; CIL VI 12037.
  57. ^ Sandon 2020, p. 153 n. 9.
  58. ^ a b McGinn 1991, p. 337 n. 11, citing Historia Augusta, "Pius" 8.9; CIL VI 8972.
  59. ^ McGinn 1991, p. 337 n. 11, citing Historia Augusta, "Marcus" 29.19.
  60. ^ Annelise Freisenbruch, Caesars' Wives: Sex, Power, and Politics in the Roman Empire (Simon & Schuster, 2010), p. 142, of Vepasian and Caenis.
  61. ^ Katharine P. D. Huemoeller, "Freedom in Marriage? Manumission for Marriage in the Roman World," Journal of Roman Studies 110 (2020), p. 134, comparing concubinage to the situation of a freedwoman whose manumission had been conditional on marrying her former master.
  62. ^ Sandon 2020, p. 154.
  63. ^ a b Treggiari 1981b, p. 68.
  64. ^ Sandon 2020, pp. 152, 161 (especially n. 36), 177.
  65. ^ Treggiari 1981b, p. 68, citing CIL V 937.
  66. ^ Sandon 2020, p. 153.
  67. ^ Sandon 2020, pp. 179–180 et passim.
  68. ^ Treggiari 1981b, pp. 69–70, citing CIL VI 1906.
  69. ^ a b Treggiari 1991, p. 56.
  70. ^ Lefkowitz 2005, p. 115.
  71. ^ a b Lefkowitz 2005, p. 110.
  72. ^ Rawson 1974, p. 282.
  73. ^ Treggiari 1981b, p. 71.
  74. Digest
    20.1.6–8.
  75. ^ Buckland 1908, pp. 401, 609.
  76. ^ Treggiari 1981b, p. 59 n. 2.
  77. ^ Martha Ellen Stortz, "'Where or When Was Your Servant Innocent?': Augustine on Childhood," in The Child in Christian Thought (Eerdmans, 2001), p 81 n. 12.
  78. ^ Gergő Gellérfi, "Nubit amicus: Same-Sex Weddings in Imperial Rome," Graeco-Latina Brunensia 25:1 (2020), pp. 89-100, especially pp. 98–99.
  79. ^ Arthur J. Pomeroy, "Trimalchio as Deliciae," Phoenix 46:1 (1992), p. 48 n. 14.
  80. ^ David Wardle, "Suetonius and Galba’s Taste in Men: A Note," Latomus 74:4 (2015), pp. 1007, 1011.
  81. Perseus Project Ann.13.21
    ).
  82. ^ Rawson 1974, p. 283 n. 13.

Bibliography

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  • Finkenauer, Thomas (2023). "Filii Naturales: : Social Fate or Legal Privilege?". The Position of Roman Slaves. De Gruyter: 25–66.
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    JSTOR 2936094
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Further reading