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CONCUBINAE1
xMy thanks are due to the Social Sciences and Humanities Research Council of Canada for
its generous support and to Ernst Badian, Beryl Rawson and other participants at the colloquium
on 'Women in the Roman empire* held at Vassar College in March 1980 for their generous criticism.
Annotation has been kept as brief as possible. The following abbreviations are used :
Castelli = G. Castelli, 'II concubinato e la legislazione augustea', Scritti giuridici (Milan: Hoepli,
1923), pp. 143-63.
Castello = Carlo Castello, In tema di matrimonio e concubinato nel mondo romano (Milan: Giuffré, 1940).
Corbett = P. E. Corbett, The Roman law of marriage (Oxford: Clarendon Press, 1930).
Meyer = Paul M. Meyer, Der römische Konkubinat (Leipzig: Teubner, 1895; repr. Aalen: Scientia,
1966).
Orestano = R. Orestano, 'Sul matrimonio presunto in diritto romano', Atti del congresso internazionale
di diritto romano e di storia di diritto III (Milan: Giuffré, 1948).
Plassard = J. Plassard, Le concubinat romain sous le haut empire (Paris: Sirey, 1921).
Rawson = Beryl Rawson, 'Roman concubinage and other de facto marriages' {TAPA 104, 1974,
279-305).
Robleda = O. Robleda, El matrimonio en derecho romano. Esencia, requisitos de valides, effectos, dissolubilidad
(Rome: Anal. Gregoriana, 1970).
Volterra = E. Volterra, 'Matrimonio. Diritto romano', Enciclopedia del Diritto (Milan: Giuffré, 1975,
728-80).
Watson = Alan Watson, The Law of Persons in the later Roman Republic (Oxford : Clarendon Press,
1967).
2Later, when many upper-class women were Christian and upper-class men were on the
whole pagan, the former appear sometimes to have lived in concubinage with Christian men who
were their social inferiors. Plassard holds (p. 163) that in most couples in the classical period the
woman was socially superior, but this conclusion is vitiated by his faulty methodology in collecting
and interpreting the epigraphical evidence.
*Amantissimae (CIL VI, 9375, 22293, 24441), 'pro mentis quae dilexit eum' (6873); pussima
21607; pientissima 24953; carae / carissimae (24857, 24953, 25014).
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60 SUSAN TREGGIARI
I. CONGUBINAE- WHAT ?
Watson4 has shown that in the comedies of Plautus the concubina is a kep
who has a recognised arrangement with a certain man. She is clearly disti
from an arnica ('girl friend5). The contrast is particularly clear in Mi
Philocomasium lives with the soldier as his concubina but is also secretly t
of young Pleusicles. A different distinction is drawn by Paulus in the title d
significatone.
In his book Memorialia Massurius (Masurius Sabinus, who worked in the time of Tiberius)
writes that 'paelex' in old writers refers to a woman who lived with a man although she was
not his wife, but that now she is called arnica (which is outspoken but accurate) or given the
rather more honourable name of concubine.5
Although here both amicae and concubinae live with a man, there is a difference in
honour, which can be glossed as follows: concubinae are always amicae, but amicae
are not always concubinae. More important, although concubinatus is not a legal
institution, it is of interest to the lawyers and discussed in the Digest. They leave
ordinary amicae out of account.6 Concubinae are relevant to discussions of marriage
or family property because they can be confused with wives. It is significant that
although Justinian's team decided to make a separate chapter of the Digest on
concubinae, the earlier writers treated them (as far as we know) specifically in relation
to the Augustan laws on marriage.7
In post- Plautine literary sources the content of the word concubina is often vague.
It is used of Caenis, who was to the widower Vespasian 'paene iustae uxoris loco'8
and of Acte, who was maîtresse en titre to Nero while he was married, and of other
individual mistresses in unclear contexts.9 But it is most commonly used (according
to the Thesaurus) of whole harems of women kept by emperors and members of the
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CONCUBINAE 61
viv(i) Alive
C. Vibi Pet. f. Gaius Vibius Balbus
Fab. Balbi son of Petro of the
sibi et concubinae) Fabian tribe, to himself
sive uxsori ei(us) . . . and to his concubine or wife . . .n
10Cf. Cael. apud Quint. Inst. 4. 2. 124 = ORF3 no. 162. 17, Tac. Hist. 1. 72, 3. 40, Pliny Epp.
3. 14. 3. See further below, p. 77.
UCIL IX. 5256 (Asculum). Since the woman is not named, she cannot be a current partner
about whose status Vibius has doubts: she must be a potential mate, still in the future.
12C7L XI. 6136 (Forum Sempronii), 6257.
13Plaut. Trin. 689-91. Cf. Watson pp. 2-b.
14See Gordon Williams, Tradition and originality in Roman poetry (Uxiord: Clarendon Press,
1968), 378-87. The main references are Aen. IV. 125-6, 165-71, 316, 338-9.
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62 SUSAN TREGGIARI
It is fitting that gifts bestowed on a concubine cannot be revoked, nor if marriage is subsequently
contracted between the same parties, should a gift which was previously legally valid become
invalid. But, I replied, the question must be carefully weighed whether maritalis honor et affectio
preceded the (sc. apparent) marriage, taking into account the relative standing of the parties
and their union in their way of life: for a contract is not what makes a marriage.18
Behind this discussion lies the fact that it was illegal for a husband and wife
to give each other substantial gifts.19 But there was no such difficulty between a
man and his concubina.20 The question might then arise what the woman's status
1&Deorat. 1. 183,238.
16E.g. D. 34. 9. 16. 1, Pap.
17Z>. 23. 2. 45. 5, Ulp. For others than libertae, unilateral divorce was possible even when the
divorced partner was mad: D. 24. 2. 4, 24. 3. 2. 2, 24. 3. 22. 7, Ulp.). Some held that even a concubina
could not leave her patron (D. 25. 7. 1 pr., Ulp.).
18Cf. G. Longo, 'Affectio maritalis', Ricerche romanistiche (Milan: Giuffré, 1966) 301-21.
19See especially D. 24. 1.
20In D. 24. 1. 58 pr.-l, Scaevola discusses a similar case where a man gives a concubine farms
and slaves and then, after marrying her, exchanges them for others, and the case of a man who
gives rations to the slaves of a concubine who is subsequently his wife. This is a far cry from the
grasping meretrix concubine of the hostile literary tradition which runs from comedy to the changed
world of the Christian period (e.g. Sid. Ap. Epp. 9. 6. 2: *. . . quantum de bonusculis avitis paternis
sumptuositas domesticae Chary bdis abligurisset . . .') and beyond.
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CONCUBINAE 63
The presumption would be that between a senator and a freedwoman the relation-
ship was concubinatus. Since some members of the senatorial order were rash enough
to attempt marriage with freedwomen23 further arguments about Pontius Paulinus'
intentions might need to be brought. This is where the vitae coniunetio might need to
be considered. No doubt this was a delicate business. Did the couple live together?
Did the woman have a fixed allowance, like a kept woman in comedy, or share
everything with the man, like a wife?24 Did he give rations to her slaves (cf. n. 19) ?
Was she the châtelaine ? How was she treated when guests of the man's social class
were invited ? Even in the upper classes, it might not be easy to read such signs and
distinguish a concubine from a wife;25 among the poorer citizens it would be more
difficult still. The transmutation of concubinatus into marriage, which we have seen
happening among the propertied classes, might be a fairly frequent phenomenon
lower down the social scale.26
Mixed up with the affectio and honor maritalis is the social position which the
woman enjoyed vis-à-vis third parties, her dignitas. A libertà who was her patron's
concubine might have almost as much honour as a Roman matron.27 There are a
couple of passages on legacy to a concubine of clothes which had been bought or
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64 SUSAN TREGGIARI
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CONCUBINAE 65
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66 SUSAN TREGGIARI
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CONCUBINA E 67
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68 SUSAN TREGGIARI
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CONCUBINAE 69
Here the wife is probably a colliberta, but the concubine is explicitly the freedwoman
of P. Quinctius. In later inscriptions from Rome itself there are only two instances
where both a wife and a concubine are commemorated.
It is simplest to suppose that Rufus invested in a tomb which was meant first of all
for himself and his current wife Prima. He included in the inscription his previous
concubine, who was dead. Later, Prima died and he married Servilia Apate
(possibly his freedwoman or colliberta) who was added to the list (probably while
alive, so that she could be assured of her place in the family tomb) . I agree on the
order of the three unions with Rawson, but I would date the concubinatus to a time
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70 SUSAN TREGGIARI
The wife and the concubine are both Rosciae. The wife's son is commemorated as
a freedman, so he must have been born a slave, before her manumission. He was
freed by Eros, who may have been his father (Tupae f.' meaning 'my son by Pupa'
as well as Tupa's son'). Pupa would then have been the contubernalis of Eros and,
after she was freed, his legitimate wife. Concubinatus with Strategis would have
followed the wife's death. She might be a freedwoman of Pupa.
The Italian examples are three.
An ingenuus has a freeborn wife but a probably slave concubine. But all three are
given portrait heads on the tomb, the two women flanking the man.
A sevir, whose parents' shared nomen raises the suspicion of servile origin for them if
not for him, is coupled with two women of citizen status, whose relative social
standing escapes us. As in the previous example, the concubine is named second,
but this may be for reasons of chronological or social precedence. In the next
example, chronology may decide.
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CONCUBINAE 71
With this scanty harvest of information from the inscriptions, we can now turn
briefly to the jurists. Here we are dealing with extracts selected in the sixth century
from the writings of lawyers during the period from the Augustan marriage legislation
(18 b.c. and a.d. 9) down to Modestinus in the early third century. Most of the
jurists concerned come from the end of the period and though they were trying to
explain the Augustan laws, these laws had been developed and modified by later
emperors and interpreted by other jurists. The opinions given by Ulpian, for
example, are sometimes controversial and need not be taken to represent a generally-
accepted doctrine of current practice in his own day or earlier : but it is they and
not the counter-arguments of other lawyers which have been made canonical by
the sixth-century editors, who included them in the Digest
I shall attempt here simply to list the sort of women whom the lawyers regard
as eligible concubinae. Even such an apparently elementary task is impeded by
frequent uncertainty whether the texts we have have been edited - cut, altered or
supplemented - by Tribonian's team, working two centuries after the Roman law
on marriage had been given a new direction by the first Christian emperor and in
a period when Christian and ascetic doctrine had for centuries and with some
success attacked the freedom of male sexual mores and the practice of concubinatus.
In the exceedingly brief Digest title on concubines (25. 7), an extract from
Ulpian (commenting on the Lex Julia et Papia) refers to the possibility of having as
a concubine one's own freedwoman or a woman condemned for adultery and to
the impropriety of a woman who was previously her patron's concubine becoming
the concubine of his son or grandson or of a man having as concubine a girl under
the age of twelve.53 More generally, he states that he agrees with Atilicinus (mid-first
century a.d.) that the only women who could be kept as concubinae without fear of
accusation were those against whom a man could not commit stuprum (fornication).54
Paulus55 adds that a provincial administrator could keep a woman of the province
as concubine (though not as wife, we are told elsewhere).56 Marcianus says that a
concubine could also be someone else's freedwoman or a freeborn woman or -
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72 SUSAN TREGGIARI
D. 25. 7. 3 pr.-l libro duodecimo institutionum: In concubinatu potest esse et aliena libertà 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 earn habere vel hoc recusantem stuprum
cum ea commitere: Nec adulterium per concubinatum ab ipso committitur. nam quia con-
cubinatus per leges nomen assumpsit, extra legis poenam est, ut et Marcellus libro septimo
digestorum scripsit.63
If the whole of the first sentence is accepted as Marcianus5 own,64 then we have a
clear statement that both someone else's freedwoman (sc. as well as the male
67D. 25. 7. 3.
68D. 20. 1. 8, Ulp., 42. 5. 38, Paul.; Plaut. Epid. 66; CJ 7. 15. 3. 2. Gf. Watson pp. 6-7.
«D.25. 7. 1 pr.
80D. 24. 2. 10 Mod., 24. 2. 11, 38. 11. 1. 1, Ulp.
61Z>. 23. 2. 41. 1.
62Z>. 38. 1. 46, Valens; 48. 5. 14 pr., Ulp.
63A vexed passage. Recent commentators include Castello 166, 189; S. Solazzi, 'II concubinato
con r "Obscuro loco nata"' (SDHI 14 (1948) 269-77); Orestano; G. Longo, 'Presunzione di
matrimonio' (Studi Paoli (Florence, 1956) 485-8; Robleda p. 89.
64'Et maxime ea' or the whole phrase 'et maxime . . . fecit' have been suspected.
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CONCUBINAE 73
65Pp. 135-8.
66Cf. Cic. 2 Verr. 5. 167: Homines ten
loco; Livy 26. 6. 13: loco obscuro tenui
^Alioquin . . . committere. The grammar
that at least sine . . . /adente is postcla
stuprum could be brought with the pas
thing on the lines of this sentence exis
68But concubinatus was hardly, as Cas
«»Adulterium and stuprum are often
must be meant here, since married w
which would have to mean 'by him' (?
rather expect 'ipsum': 'nor is fornicat
concubinage with a particular woman
70Some moderns also emend liberam to
p. 131, Orestano p. 52.
71For excepta cf. TLL I. B., Cic. Red. in
but classical. Admittedly, the conjunct
postclassical law. Cf. Castelli p. 145.
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74 SUSAN TREGGIARI
Digest 23. 2. 24 libro primo regularum: In liberae mulieris consuetudine non concubinatus sed
nuptiae intellegendae sunt, si non corpore quaestum fecit.
In intercourse with a free woman, marriage not concubinage is to be understood, unless she has
been a prostitute.74
This brings us back to the ambiguity in Roman custom between marriage and
concubinage. The excerpt comes from a major chapter on marriage, but its context
within the chapter is a hotchpotch, which does not help us to see the exact implica-
tions here. Was any 'living-in' arrangement legally marriage, unless the woman was
an ex-prostitute? Or were outsiders to assume it to be marriage unless the woman
had been a prostitute and unless the couple acknowledged it to be concubinage?75
The latter explanation seems the more probable. Intellegendae sunt is not the same as
sunt. The full text of Modestinus might have been more enlightening than this
snippet.
On balance it is likely that concubinage with a freeborn citizen woman was
permissible from Augustus' time until probably as late as Modestinus. Why would
Augustus, anxious as he was to increase the birthrate of legitimate children, have
allowed it ? There are three main reasons : one is that concubinatus was entrenched in
Roman mores and impossible to prohibit effectively. I doubt if it would have occurred
to Augustus to attempt to limit the liberty of his fellow-citizens, especially upper-
class men, in such a way. Instead, he fixed rewards for married men and fathers and
corresponding disabilities for bachelors and the childless. Secondly, Augustus was
also interested in safeguarding the social and racial purity of the senatorial class,
for instance by prohibiting marriage with ex-slaves, and in protecting the moral
purity of all freeborn citizens by maintaining the penalties established in the
Republic for marriage with members of professions branded as 'infamous'.76 So the
prohibition of legal marriage between various types of individual, by Augustus and
subsequent emperors, made concubinage a necessary alternative. Thirdly, the
maintenance of (to put it crudely) a class-system. Just as it was more honourable
72For a recent statement of the view that Augustus made concubinatus with an ingenua stuprum,
that morals were looser in Modestinus' time and loosened still further in the sixth century see
P. Csillag, The Aueustan laws on family relations (Budapest: Akad. Kiado, 1976) p. 252, n. 539.
73V. Arangio-Ruiz {Aegyptus 5 (1924) 107) is prepared to accept the Modestinus text as classical
and to hold that he and Ulpian (D. 25. 7. 1. 1) give two parts of the same equation, 'dicendo
Modestino che si ha stupro ogni volta che ci si congiunga non matrimonialmente con donna libera
che non sia la concubina, e ribadendo Ulpiano che non si possa avere a concubina se non quella
donna libera con cui non si commette stupro'.
™Bas. XVIII. 4. 13 (ed. Heimbach III, p. 169), quoted by Orestano pp. 51-2, talks of a pre-
sumption of marriage if the woman is free and not a prostitute. Orestano gives a list of the moderns
who hold that the compilers expanded the scope of this passage by substituting liberae for ineenuae.
75Cf. Volterra 743-4.
76Ulp. Reg. 13, 1-2.
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CONCUBINAE 75
D. 34. 9. 16. 1, Pap. libro octavo responsorum: Quoniam stuprum in ea contrahi non placuit,
quae se non patroni concubinam esse patitur . . .
Since it has been decided that fornication is not committed against a woman who allows herself
to be the concubine of a man other than her patron . . .
Such a woman contrasts with the freedwoman who is concubine of her patron and
therefore a quasi-matrona, subject to the adultery law. It appears that a woman
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76 SUSAN TREGGIARI
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CONCUBINAE 77
The Sententiae Pauli state succinctly 'Eo tempore quo quis uxorem habet,
habere non potest'. 'A man cannot have a concubine at a time when he h
If concubinatus is rightly taken as extra-legal in classical law, then i
whether there was an explicit ruling against a man having both wife an
but nee antiqua iura . . . concedunt is probably still true of the Principa
discussing the freedwoman who had unilaterally divorced her patron
91None attested in the Rome inscriptions, one from Cisalpina. Cocceius Cassian
had a freeborn woman, Rufina, as a concubine, according to a decision by the emp
and Caracalla (D. 34. 9. 16. 1, Pap.
^Concubinae are rare in inscriptions from the Latin West outside Italy (CIL Vil
[Africa]).
ö3Suet. Nero 50. Tacitus more correctly calls her paelex (A 13. 46, in Poppaea's
where she is described as libertà (A 13. 12, 14. 2; Suet. Nero 28. 1). Claudius' mistre
and Cleopatra are paelices (Tac. A. II. 29-30). Paelex is the correct word for the love
man, often used with the wife's name in the genitive.
**CJ 7. 15. 3. 2. Cf. pr. (a.D. 531).
»62. 20. 1.
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78 SUSAN TREGGIARI
APPENDIX A-ROME"
CIL vi
I. MAN AND WOMAN FREED
A. Probable Colliberti or Patronus - Libertà
1. 9443: P. Clodius P. 1. Metrodorus glutinarius = Clodia P. 1 Philargyris.
B. Patronus = Libertà
2. 38623: *M\ Matrinius M\ 1. Alexa = Bassa 1. {columbarium)
3. 35879: *C. Munatius C. 1. Phileros = Munatia G. 1. Apicula (Apicula 1.)
C. Others
4. 6873 : Q,. Fabius Maximi 1 . Ipitus = Sempronia L. 1 . Apate*
5. 21821 : Gn. Licinius Cn. 1. Philomusus = Mevia T. et Q,. et O. 1. Clara
6. 7976: L. Lurius L. et D. 1. Favitus = Arria D. 1. Hospita
7. 7214: C. Marius O. 1. Isochrysus = Avillia M. 1. Sotis (columbarium)
8. 22293: *G. Matius C. 1. Logus = Pompeia O. 1. Siges
9. 23210: *D. Occius D. 1. Eros = Roscia D. 1. Strategis
10. 24441: *Cn. Pompeius Gn. 1. Bithus = Galpurnia Gn. 1. Optata
11. 36282: *M. Sabidius M. 1. Salvius = Varia D. 1. Oppidana
12. 9645: P. Saenius P. O. 1. Arsaces menestrator ab Hercul. Primig. = PetroniaO. 1.
Fausta
13. 1906 = 32292: *M. Servilius M. 1. Rufus lictor = Marcia O. 1. Felix
14. 33579: - L. 1. Glyco = - Sex. 1. Ghila
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CONCUBINAE 79
APPENDIX B- ITALY
CIL
I. MAN AND WOMAN FREED
A. Colliberti
1. X. 6114 *A. Plautius Theodori 1. Apella magister Augustalis = Plautia A. 1.
Rufa conlibert. (Formiae)
2. XI. 6234 *M. Lartidius M. 1. Hilarus sexvir = Lartidia Philema conliberta
(Fanum Fortunae)
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80 SUSAN TREGGIARI
C. Others
6. V. 2853 *P. Caecilius P. 1. Liccaeus ///Illvir = /ama G. 1. Fausta (Patavium)
7. IX. 1194 *G. Ennius C. 1. Hilarus August. Beneventi = Appuleia C. 1. Prima
(Aeclanum)
8. IX. 2245 *M. A/>puleius Dialogus sevir August. = Licinia D. 1. Methe (also to
his patron, M. Appuleius Faustus sevir Aug.) (Telesia)
9. IX. 3444 *C. Aponius G. 1. An*- paenularius = T- P. 1. Galla (Peltuinum)
10. IX. 4823 C. Maclonius C. 1. Teres = Septicia O. T. 1. Flora* (Forum Novum)
11. IX. 5231 T. Avi- T. 1. Piai- = Pontia O. 1. Callista (Asculum)
12. X. 4908 *N. Papius N. 1. Menothemis sexvir = - M. 1. Irene (Venafrum)
13. X. 5089 *G. Longidius G. L. 1. Philodamus = Gentia L. 1. Ge (Atina)
14. XL 849 *L. Attius L. 1. Salvius Apol. = Annaea O. 1. Statia (also to his patron
L. Attius L. 1. Dio) (Mutina)
15. XIV. 3727 C. Arrius C. 1. Dasius = Alfedia L. 1. Lucris (Tibur)
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CONCUBINAE 81
G. Others
4. V. 936 *L. Titius L. f. Vot. veteranus Leg. VIII Aug. stipendiorum XXV
mensor frumenti = Titia Fuscae 1. + Vitalis f., Ing(e)nua f. (Aquileia)
5. IX. 5137 Sex. Pompeius Sex. f. Laenas trib(u) Sab. = Vetiedia Q.. lib. Donata
(Campii)
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