Concubinage in Decretist Doctrine

Concubinage and its corollary, bastardy, remained common throι ghout twelfth­century Europe, and decretist opinion about both matters was divided. Con­cubinage was practiced at all levels of society—poor couples lived together informally because they lacked incentives or means to formalize their relation­ships, while men of wealth often kept women of inferior social status as con­cubines, feeling that it was less scandalous and more convenient to retain at­tractive young women as companions than to marry them.

The author of the Summa Parisiensis seems to have been the earliest de­cretist to try to solve the concubinage problem by distinguishing between con­cubinage with marital affection and concubinage without it. A relationship without marital affection counted merely as an episode of fornication, no matter how long it endured or how many children it produced.¹⁷⁹ But if the relation­ship between a man and his mistress was permanent and if the two were bound together by marital affection, the situation was different. The Summa Parisien- sis invoked the Salic Law as a basis for holding that such a relationship ought to be considered a marriage.¹⁸⁰

Other writers, including Sicard of Cremona and Huguccio, adopted this dis-

'⁷⁷John of Salisbury, Epist. 87, ed. Millor, Butler, and Brooke 1:135-36, comments on the prevalence of concubinage among the Welsh and the toleration of the practice by the clergy.

¹⁷⁸Paucapalea, Summa to D. 34, ed. Schulte, pp. 27-28; Rolandus, Summa to C. 32 q. 4 c. 4, ed. Thaner, p. 171; Summa “Elegantius,” 2.36, ed Fransen and Kuttner, 1:58-59; Plbchl, Eherecht, pp. 49-50.

¹⁷⁹SP to D. 34 d.p.c. 6, ed. McLaughlin, p. 33; Cardinalis, gloss to C. 27 q. 2 c. 17, v. nuptiale, in B.L. Stowe 378, fol. 167ra: “Id est nuptialis affectus; non enim de carnali copula potest intelligi, cum de quadam concubina loquitur. C.” quoted also by Huguc- cio, Summa to the same passage, ed. Roman p. 766, and Weigand, “Glossen des Car­dinalis,” p. 77.

¹⁸⁰SP to D. 34 c. 4, as well as D. 33 pr., c. 1, and d.p.c. 6, C. 32 q. 2 c. 11, ed. McLaughlin, pp. 32-33, 242; Freisen, Geschichte, p. 70. Esmein, Mariage 2:114-15, argues that development of a more subtle analysis of concubinage was linked to the re­vival of knowledge of Roman law on the subject. Although this may be true, the de- cretists rarely cited Roman authorities on the matter and certainly their doctrine dif­fered in many respects from that of the classical jurists.

tinction and identified concubinage with informal, clandestine marriage.¹⁸¹ Ac­cording to this view, concubinage with marital affection was not fornication and hence not a canonical offense, nor should the concubine be classed for legal or social purposes with harlots and other women of degraded status.¹⁸² A con­cubine, said Huguccio, was nothing more or less than a de facto wife.¹⁸³ The usual and doubtless realistic assumption of many decretists was that servant girls routinely became involved in sexual relationships with their masters and other men of the households in which they served, but these relationships con­stituted fornication, not concubinage.¹⁸⁴

¹⁸¹Rufinus, Summa to D.

¹⁸²Rufinus, Summa to D. 33 d.p.c. 1, ed. Singer, p. 77, followed verbatim by Joannes Faventinus in B.L. MS Add. 18,369, fol. 13va; SP to D. 33 pr., ed. McLaughlin, p. 32.

'⁸³Huguccio, Summa to D. 28 c. 2 in Pembroke 72, fol. 138va, and Vat. lat. 2280, fol. 29vb: “Decernimus, uerbo uxores de facto aut concubinas, sed nonne et ille uxores sunt concubine? Sic, sed ducuntur de facto et tenentur sub nomine uxorum.” Sicard drew a more elaborate, threefold distinction between a concubine taken with marital affection, who ranked as a wife and with whom a union was legitimate, if not public; a concubine by mere usage, or in other words without marital affection, who ranked as a prostitute; and a concubine with whom a man maintained an exclusive sexual relationship.

¹⁸⁴SP to D. 33 c. 2 v. concubinam, ed. McLaughlin, p. 32; Rufinus, Summa to D. 34

The identification of long-term and exclusive sexual relationships with de facto marriage rested on the principle that the law ought to presume that co­habitation implied marriage, rather than an extra-marital relationship.^{[1189] [1190] The decretists refused, however, to tolerate polygyny and accordingly held that the law could not allow a man to keep both a wife and a concubine at the same time.[1191]}

Once the decretists had identified stable and exclusive sexual relationships with marriage, other consequences followed. Concubinage of this type, for one thing, created a legal affinity that foreclosed marriage to other members of the partners kindred.^[1192] Likewise a concubinage relationship itself could be broken up because of affinity contracted by a previous relationship between the con­cubine and a real or fictive relative of her lover, as a case debated in the Ques­tiones Stuttgardienses pointed out.^[1193]

Although decretists by the 1160s regularly identified long-term concubinage with marital affection as informal marriage, they were inconsistent in dealing with the legal status of the children of these unions.