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Concubinage and the Lex Iulia on Adultery' Transactionsof the American Philological Association 121 (1991) 335-375 CONCUBINAGE AND THE LEX IULIA ON ADULTERY' THOMAS A. J.MCGINN VanderbiltUniversity The social and legal statusof Romanconcubinage has longbeen a subjectof debate.2In thispaper, I hope to clarifysome aspects of thisinstitution through an examinationof thelegal texts.The line of approachis an inquiryinto the notionof how liabilityfor sexual offenses was constructedby theadultery law of Augustus,3undertaken through an explorationof the ways in whichthe statutoryregime was applied,and notapplied, to personswho werenot legally married,but who were united in a respectableand recognized relationship. Much of whatfollows is devotedto thestatus of concubinageas a legal institution.But thedualistic frame of analysistraditionally maintained in the scholarship,which attempts to defineconcubinage as eithersocial or legal in 1 I owe a greatdebt of thanksto ProfessorsBruce W. Frierand Susan Treggiari, who read an earlier draftof this article and made many valuable suggestions.I also thank the anonymous referees of this journal and the editor for their contributions,which have resulted in numerous improvements.Research was conducted with the financial assistance of the National Endowment for the Humanitiesand the VanderbiltUniversity Research Council. 2 For bibliography,see the notes below and the appendix at the end of the article.I depend most of all on the work of Rawson and Treggiari.B. Rawson, TAPA 104 (1974) 279-305 finds a heavy concentrationof partnersof freedor slave status and concludes that objective impediments,especially involving status, were often a bar to marriage and so encouraged concubinage as a substitute.I differfrom her in thatI believe withmost scholarsthat an act of the will ratherthan cohabitation(Rawson, 279) createdand maintainedthe marriage bond and thatthe marriageprohibitions of the lex Juliaet Papia did not preclude, but only penalized, unions thatviolated the law. S. Treggiari,PBSR 49 (1981) 59-81 examines the relative status of partnerswithin this type of relationship and takes Rawson's conclusions one step further,showing that the men were generallyof higherstatus than the women (59). Her review of the legal sources suggeststhat Augustus did not exclude ingenuae as possible concubines,and that among the poor, wherethe incentivesof the marriagelaw were not as keenlyfelt, "concubinage may have seemed a normal alternativeto marriage"; moreover, society in general approved concubinage where the male partner was of significantlyhigher status. As for the relationshipof this institutionto the adultery law, she concludes "although concubinage with a freebornwoman probably did not constitutestuprum, there was probably some feeling that a freebornwoman should become a wife, if the man was of comparable social status,so thatthey could producesecond-generation freeborn children." 3 The law referredto the woman potentiallyliable to its penalties as mater familias, whethershe was marriedor not: Paul. D. 48.2.3.3; Pap. D. 48.5.9(8) pr.; Idem D. eod. 11(10) pr. On mater familias, see W. Kunkel,RE 28 (1930) s.h.v. 2183-84; W. Wolodkiewicz, Studi Sanfilippo 3 (Milan 1983) 733-56. Still essential on the adulterylaw are A. Esmein,Melanges d'histoire du droit (Paris 1886) 71-169 and T. Mommsen,Romisches Strafrecht(Leipzig 1899) 688-701. For more of the vast literatureon this subject,see the notes below. This content downloaded from 96.242.68.144 on Sat, 27 Jul 2013 19:25:31 PM All use subject to JSTOR Terms and Conditions 336 ThomasA. J.McGinn nature,must be viewed withskepticism. To inquirewhether concubinage enjoyedfull juridical status overlooks the fact that marriage itself was largelyan institutionof fact,not law. Kaser's descriptionis apt: "Nach wie vor (i.e. the beginningof theclassical period)ist die Ehe ihremWesen nachprimilr kein Rechtsverhaltnis,sondern ein faktischesVerhailtnis des sozialen Lebens, 'verwirklichteLebensgemeinschaft'."4 Even whilepositive law governedaspects of marriageand concubinage, theseinstitutions were largely self-regulating.5 Social conventionwas a broader and strongerinfluence than statute law, or evenjuristic law. Manydetails, such as the marriageceremony, were relegatedentirely to the social sphere. Evidently,widely-held, uncontroversial social normswere often transformed intolaw in straightforwardfashion, as withthe requirements for age and degree ofrelationship.6 Therewere occasions when the legal authoritiesassumed the responsibility of definingwhat was sociallyacceptable, not an easy taskwhere convention clashed withpositive law. Emperorsand juristswere compelledto choose betweencompeting standards of behavior,which ultimately depended on con- flictingpolicies over such issues as sexualhonor, suitable partners, the relative worthof differenttypes of relationship,and thetransmission of statusfrom one generationto thenext. Withconcubinage, as withmarriage, ethical norms were transformed into positiverules, but the process was less predictableand moreproblematic. This pointis easilyderived from the writings of thejurists, where a steadyreference to thebedrock of policyon whichthe rules rested can be observed.One cannot speakdirectly of "choosing"a convention,but in thisarea choicesaimed at the regulationof conventionhad to be made.The elaborationof a legal regimefor concubinage,like thatfor marriage, is themore readily distinguished from its societal contextby the resultof such hard choices. Ethical rules,as legal principles,have a differentcontent and a differentapplication than purely social norms.7Most important,neither marriage nor concubinage was a creatureborn exclusivelyof thesocial or thelegal sphere. Kaser's description,then, holds true for concubinage, at leastthe serious, stabletype of relationshipthat the jurists take in hand.8As withmarriage, they 4 M. Kaser,Das rbmischePrivatrecht 12 (Munich 1971) 310 (hereafterKaser, RP 12). ContrastJ. G. Fuchs,Fs. Gerwig (Basel 1960) 31-54 (at 35), who describes marriageas utterlyremoved from the legal sphere,being governedentirely by the mos maiorum. See also R. Villers,ANRW 2.14 (Berlin 1982) 285-301. 5 This point is obvious for concubinage; for marriage,see M. T. Raepsaet- Charlier,L'Egalite' 8 (Brussels 1982) 452-77, esp. 462-65. 6 For these,see P. E. Corbett,The Roman Law of Marriage (Oxford 1930) 47- 51. 7 A good illustrationis found in the legal conceptionof boni mores: see T. Mayer-Maly,Fg. Kaser (Vienna 1986) 151-67. 8 Thus marriageand concubinagewere supposed to be mutuallyexclusive: Ulp. D. 24.2.11.2; PS 2.20.1; cf. Pap. D. 45.1.121.1; ConstantinusC. 5.26.1 (a. 326); lustinianusC. 7.15.3.2 (a. 531). (This principle was once judged to be post-classical: E. Volterra,ACIB 1 [Pavia 1934] 34-165 [at 134]). Treggiari (above, note 2) 61 shows that keeping multiple concubinae was widely disparaged, citing Cael. apud Quint.IO 4.2.124; Tac. Hist. 1.72.3, 3.40.1. The This content downloaded from 96.242.68.144 on Sat, 27 Jul 2013 19:25:31 PM All use subject to JSTOR Terms and Conditions Concubinageand the Lex Iulia on Adultery 337 largelyfilled in the legal contours of this institution, forexample, by establish- inganalogous requirements concerning age and degree of relationship.9 But the mostdifficult question they faced was this: in whatcircumstances, and in par- ticularwith what sorts of women, could concubinage be realizedwithout risk of a criminalcharge being raised under the lex Iulia de adulteriiscoercendis? The answersgiven varied a gooddeal, from personal conviction or in responseto policiesdictated by specific emperors. Sometimes the context in whichthe reply is found,be ita recordof a courtdecision, a commentary onthe lexJulia et Papia, advice on how to avoid liability for stuprum (these categories arenot mutually exclusive), seems to affect its content. An important influence mustbe soughtin contemporaryupper-class practice, which tolerated, even encouraged,concubinage when a manwith children by a formerwife (given the highrates of mortality and divorce, such situations would have been common) wishedto have as a companiona woman of lower status without jeopardizing thearrangements forinheritance that were already in place.'0 So wefind several emperorswho perhaps served as examples,"and members of thesenatorial juristswere uninterestedin simpleamicae: Treggiari,60. In special circumstances slave concubinesare mentioned,as when theyare exemptedfrom a generalpledge or sale of debtor's goods: Ulp. D. 20.1.8; PS 5.6.16; Paul. D. 42.5.38 pr. (= PS 1. 13a. I g). 9 See Ulp. D. 23.2.56; Idem D. 25.7.1.3-4; discussion in J. Plassard, L e concubinatromain sous le haut empire(Paris 1921) 40-45. 10 On this importantpoint, see B. Kubler,SZ 17 (1896) 357-65 (at 360-61); R. Saller, Slavery and Abolition8 (1987) 65-87 (at 71-76). l Of interestare Vespasian (Suet. Vesp. 3 ["paene iustae uxoris loco"], 21, Dom. 12.3; Dio 65.14.1-5; CIL 6.12037) withCaenis, a freedwomanof Antonia, motherof the emperorClaudius (PIR2 A 888); AntoninusPius (HA Pius 8.9; CIL 6.8972) withGaleria Lysistrate,a freedwomanof his deceased wife; and Marcus Aurelius (HA Marcus 29.10) withthe daughterof his deceased wife's procurator, name unknownand statusuncertain (see note 79 below). That the concubinesteps into the shoes of a departedwife is reportedexplicitly for Vespasian and Marcus, to be inferredfor Pius fromthe death of Faustina early in his reign. For the childrenfrom a preexistingmarriage, see Suet. Vesp. 3; HA Pius 1.7, Marcus 29.10. Childrenare rarelyattested for concubinage: Treggiari (above,
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