CASE 18: A Wife or a Concubine?

D. 25.7.1 pr. (Ulpianus libro secundo ad legem luliam et Papiam)

Quae in concubinatu est, a invito patrono poterit discedere et alteri se aut in matrimonium aut in concubinatum dare? ego quidem probo in concubina adimen­dum ei conubium, si patronum invitum deserat, quippe cum honestius sit patrono libertam concubinam quam matrem familias habere.

D.

In concubinatu potest esse et aliena liberta et ingenua, [et] maxime ea quae obscuro loco nata est vel quaestum corpore fecit. alioquin si honestae vitae et ingenuam mulierem in concubinatum habere maluerit, sine testatione hoc manifestum fa­ciente non conceditur. sed necesse est ei vel uxorem eam habere vel hoc recusantem stuprum cum ea committere.

(Ulpian in the second book on the lex lulia et Papia)

Can a woman who is living in concubinage leave her patron against his will and either marry someone else or be his concubine? I think that in the case of a con­cubine, conubium should be taken away from her if she leaves her patron against his will, since it is obviously more respectable for a patron to have a freedwoman as a concubine than as a wife.

(Marcian in the twelfth book of his Institutes)

A concubine can be another person’s freedwoman, as also a freeborn woman can, especially one who is of low birth or who was a prostitute.However, if a man wishes to have as his concubine a freeborn woman of respectable background, this is not allowed unless a sworn statement makes the situation clear.

1.      Concubines. A concubine (concubina) is, in the commonest usage, a free woman who lives with a man as his long-term sexual partner but does not be­come his wife. Concubinage is a sort of quasi-legal relationship that is not adulterous (that would be a crime) but also does not entitle the concubine to anything; any children follow her status. As this Case indicates, men normally took as concubines women of a lower social class than themselves—often, their ex-slaves. Respectable women were not supposed to enter concubinage. The problem, then, is how to determine whether a given relationship is mar­riage or concubinage. Paul says (D. 25.7.4): “A woman should be considered a concubine on the basis of intent alone.” But how helpful is such a rule in prac­tice? Here are some examples of the jurists wrestling with the problem:

• Modestinus, D. 23.2.24: “Living with a free woman is interpreted as mar­riage, not concubinage, unless she is a prostitute.” Compare Marcellus, D. 23.2.41.1: “I hold that a woman who is the concubine of someone other than her master lacks a matrons respectability.”

color=black face="Book Antiqua">•       Ulpian, D. 24.1.3.1: “Let us see between whom gifts are invalid. If a mar­riage occurs in accord with our customs and laws, a gift will be invalid. But if some (legal) obstacle intrudes to prevent marriage altogether, the gift will be valid. So if a senators daughter marries a freedman in contravention of the decree of the Senate [see Case 10],... the gift will be valid since there is no marriage. But it is not proper that such gifts be affirmed, since then of­fenders are better off (than those who marry in accord with the law).

•       Papinian, D. 39.5.31 pr.: “It is agreed that gifts to a concubine cannot be re­voked; nor, if the two parties afterward marry, does what was before legally valid become invalid. I responded that whether marital honor and affection (maritalis honor et affectio) preceded (the giving of the gift) should be deter­mined by comparing the persons involved and examining the nature of their life together.”

In this last passage, Papinian apparently examines a case in which the issue is whether a relationship with a concubine had “ripened,” so to speak, into a marriage by virtue of the “marital affection” between the couple. How well could that sort of thing ever be determined?

2.      Ulpian’s Logic. Regarding the end of D. 25.7.1 pr., Jane F Gardner (in Women in Roman Law and Society) has argued: “The logic is doubtful. Since the patron is... acquiring more honour for himself by not marrying her, she is penalised for taking advantage of this; if he sacrifices some honour and marries her, she is the loser, if the marriage is unhappy; yet it is unlikely that Ulpian meant that it was more honourable for a freedwoman to be her patrons concubine than his wife.” Do you agree?

3.      Debauchery. Marcian indicates that men must be cautious when living with “respectable” Roman women. In their case, only three alternatives are avail­able: marriage (which law will normally construe as existing; see Modesti- nus's observation above), concubinage (but this must be very carefully estab­lished), or debauchery (stuprum), a criminal sexual relationship.

4.      What Does Paul Mean? Paul, Sent. 2.20.1: “From the moment that someone takes a wife, he cannot have a concubine. Therefore, a concubine is distin­guished from a wife by intent alone (solo dilectu).” Does Paul mean that a woman cannot simultaneously be a wife and a concubine, or that a man can­not simultaneously have both a wife and a concubine? In any case, it appears that Roman men rarely kept both a wife and a concubine (or at least, if they did, they almost never talked openly about it). Is there any reason to believe that such a course would have been, if not illegal, then perhaps at least legally impossible?