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.
Reasons for choosing concubinatus over marriage varied. If one partner was freeborn and belonged to the 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, 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.
The female partner, "perhaps always" the person of lower social rank in the Classical period, 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 eunuchs. The discrepancy lies in whether the union was legally verifiable as monogamous concubinatus; an ancilla (female slave as part of a household) might be kept as a "bedmate" and referred to as concubina but was not eligible for the privileges of formal concubinage. The equivalent term for a male, 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 as a subject of legal interest and a paelex or extralegal concubine during the Republic is fairly straightforward: the paelex was a woman "installed" by a married man as a sexual rival to his wife,J. N. Adams, "Words for 'Prostitute' in Latin," Rheinisches Museum für Philologie 126:3/4 (1983), p. 355. whereas the concubina was a wife-like companion as well as sexual partner.
According to the 2nd-century antiquarian Aulus Gellius, in early Rome paelex was a disparaging word for a woman in a continuing sexual liaison with a man who had also contracted an archaic form of marriage cum manu, meaning that he held patriarchal power over his wife.Aulus Gellius, Attic Nights 4.3.3, as cited by Bonnie MacLachlan, Women in Ancient Rome: A Sourcebook (Bloomsbury, 2013), p 15. In a much-cited law attributed to the semilegendary Numa Pompilius, second king of Rome (ca. 716–673 BCE), a concubine (paelex, not a concubina) was barred from the cultivation of Juno, the goddess of marriage: "a paelex shall not touch the altar of Juno. If she touches it, she shall sacrifice, with her hair unbound, a ewe lamb to Juno."
The paelex in Latin literature is a woman perceived as a sexual threat by the wife, just as Juno was perpetually aggrieved by her husband Jupiter's "affairs", few if any of which were perpetrated with willing partners. In literary 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.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. 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"Adams, "Words for 'Prostitute'," p. 355, citing Isidore of Seville, Etymologiae 10.288. or "whore".Richlin, The Garden of Priapus, p. 97
Legislative and social background
During the reign of Augustus, the first Roman emperor, certain forms of sexual conduct outside marriage, including some consensual behaviors, were criminalized as stuprum, illicit sexual intercourse, sometimes translated as "criminal debauchery"Bruce W. Frier and Thomas A. J. McGinn, A Casebook on Roman Family Law (Oxford University Press, 2004), pp. 38 and 52. or "sex crime".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. Stuprum encompasses diverse sexual offenses including rapeNephele Papakonstantinou and Anne Stevens, "Raptus and Roman law," Clio 52 (2020), pp. 25–26. 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 abductionPapakonstantinou, "Raptus and Roman law," pp. 25–26. or elopement when the woman had consentedJudith 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. – were generally settled privately among families. Adultery likewise was normally considered a private matter for families to deal with, not a serious criminal offense,Catharine Edwards, The Politics of Immorality in Ancient Rome (Cambridge University Press, 1993), pp. 34–35.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. 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.Susan Dixon, The Roman Family (Johns Hopkins University Press, 1992), p. 79.
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.Jane Gardner, Women in Roman Law and Society pp. 120–121. 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. 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.
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 the Digest. The ad hoc nature of concubinatus is reflected in the varied and at times conflicting legal reasoning on the part of Roman jurists. 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. The jurist Ulpian said that "only those women with whom intercourse is not unlawful can be kept in concubinage without the fear of committing a crime," but if a woman was already a penalty-free sexual partner, concubinatus would not be necessary to avoid a charge of stuprum. The jurist Modestinus defined stuprum as sexual relations with a free woman (libera mulier) outside marriage, unless she was a concubina.
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. 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.
Concubinatus came to define many unions that would be unsuitable marriages according to Roman custom, such as a senator's desire to marry a freedwoman or his cohabitation with a former prostitute. 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. The inequality of concubinatus 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.Katharine P. D. Huemoeller, "Freedom in Marriage? Manumission for Marriage in the Roman World," Journal of Roman Studies 110 (2020), p. 134. A quasi-marital relationship involving a Roman citizen and a foreigner was not considered concubinage but a non-Roman marriage based on international law (matrimonium juris gentium), without legal consequences except those deriving from the ius gentium.
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