Marriage in the Christian Empire

During the fourth and fifth centuries, the Christian rulers of the Roman Em­pire initiated a series of changes in the civil law dealing with marriage. At least in part these changes reflected the impact of Christian beliefs upon public pol­icy.

One result of Christian influence on Roman marriage law was to make big­amy for the first time a crime in the Empire. The classical concept of consensual marriage, which depended upon marital affection and the continuing consent of both parties to remain married to each other, had made it nearly impossible for a Roman to contract a bigamous marriage. Under the Christian emperors, how­ever, divorce became the sole procedure for terminating a marriage between living partners, and the grounds for divorce became more restricted. As a result of these changes, bigamy for the first time became a legal problem.^[360] In addi­tion, Constantinc made it legally impossible for a Roman subject to have both a wife and a concubine simultaneously.^[361] This alteration marked a break with ear­lier practice and illustrates, as does the development of the bigamy problem, the gradual enactment of Christian sexual teachings into public law.

At both ends of the social spectrum, the Christian emperors introduced laws that modified the ways in which people married. For the highest classes, the new legislation further restricted the groups within which marriage was per­mitted, thus narrowing the choice of marriage partner. For the lowest class of the population, however, the enactments of the Christian emperors made mar­riage for the first time legally available: successive laws transformed the infor­mal couplings of slaves (contubernium) into legitimate matrimony, with all its rights and consequences.^[362]

Further, marriage under the Christian emperors became a more formal con­tract than it had been.

Civil law also surrounded marriage with formal, contractual rituals. A dowry agreement became, at least for a time, a legal necessity. Both civil and religious authorities not only encouraged but even required a property agreement as a condition for recognizing a union as a marriage with full legal consequences. At the same time, the marriage market was changing, too. The value of dowries offered by the families of prospective brides was apparently rising, and in con­sequence men tended to marry earlier than they had in previous centuries, while the families of nubile women often postponed their daughters’ marriages until later than had been customary.³⁹

The Christian emperors also revised the rules relating to marriages between close relatives.⁴⁰ The new rules strongly discouraged marriage between kinsfolk. These rules may also have been intended to break down attachment to pagan customs, which had always been closely tied to the household and domestic rituals.

³¹Statuta ecclesiae antiquae c. ιoι, ed. Charles Munier, Bibliotheque de Tlnstitut de droit canonique et de TUniversite de Strasbourg, vol. 5 (Paris: Presses Universitaires de France, i960), p. 100; St. Basil, Homeliae IX in Hexameron ".ζ, in PG 29:160; and see generally Karl Bitzer, Le mariage dans les eglises chretiennes du Ier au XIe siecle. Lex orandi, vol. 45 (Paris: Editions du Cerf, 1970).

³⁸Herlihy, Medieval Households, pp. 13-14.

³⁹Herlihy, Medieval Households, pp. 18-23.

⁴⁰Andre Lemaire, “Origines de la regie, �?Nullum sine dote fiat matrimonium’,” in Melanges Paul Fournier (Paris: Sirey, 1929), pp. 415-24; Wolff, Written and Unwritten Marriages, pp. 91-92; Carlo Castello, “Lo Strumento dotale come prova del matri­monio,” SDHI 4 (1938) 210.

⁴¹Jack Goody, The Development of the Family and Marriage in Europe (Cambridge: reckoning degrees of relationship that persists in many jurisdictions to the present day.^{[363] [364]}

The Role of Sex in Marriage

Patristic writers generally viewed marriage with a degree of suspicion. Mar­riage, according to some, was an “indulgence,” a concession to the moral frailty of those who were incapable of leading a life of perfect continence. Weaker members of the Christian community, those who were unable to re­nounce sex, married so that they could indulge their desires in a safely cir­cumscribed situation. St. Caesarius (ca.

St. Augustine was more positive in his appraisal of the married state than were some Fathers. Marriage, Augustine observed, was not morally wrong; in­deed it even had certain positive values in the Christian scheme of things, for marriage produced children, it promoted mutual fidelity between the spouses, and it brought them together in a bond of love.^[366] Two of these praiseworthy objectives of marriage, Augustine was careful to note, could be attained de­spite, not because of, the sexual element in marriage. Marriage, he wrote, might even be glorified because it made something good out of the evil of sex.^[367] Sexual relations within marriage were a good use of an evil thing. Virginity, to be sure, was better, since that was a good use of a good thing. While marital relations were also good, they constituted a lesser order of good, because they employed the intrinsic wickedness of sex to achieve a morally valuable goal.^[368]

Augustine judged the morality of marital sex in terms of the intentions of the parties. When married persons had sex for the sole purpose of procreation, they committed no sin. If they had sexual relations for mutual pleasure and en­joyment, they sinned—but only slightly. If they had sexual relations in some way calculated to avoid procreation, however, they sinned gravely.^[369] Married couples, he thought, should cease having sex as soon as they had produced a child or two. The sooner they stopped marital relations, the better for their moral health.^[370] They would have been even more virtuous, of course, had they remained virgins; but once married, the less they yielded to sexual desire, the better.

Augustine’s reservations about marital sex were almost certainly related to his own sexual experiences as a youth, experiences that he often reflected upon in his maturity.

Augustine’s treatment of marriage was measured and benign when compared with that of his great and influential contemporary, St. Jerome, whose treat­ment of marital sex was far more hostile and acerbic than Augustine’s. While both Jerome and Augustine thought that sex for pleasure was immoral, even in marriage, Augustine saw values in marriage that would counteract and redeem the intrinsic wickedness of marital sex. Jerome and a few other patristic writers, however, found no redeeming value in marital sex: it was nothing more than a concession to human weakness, a remedy, and a poor one at that, for fornication.^[372]

Since sex was a usual (and, in his view, a regrettable) feature of most mar­riages, Jerome and like-minded writers argued that couples had a moral obliga­tion to limit marital relations to an absolute minimum. Jerome was bitterly critical of married men who loved their wives excessively. This was a “defor­mity,” Jerome believed, and he cited with approval the Stoic writers Seneca and Sextus, who had declared that “A man who loves his wife too much is an adul­terer.” There can be little doubt in this context that Jerome identified love with sexual relations and that what he attacked so fiercely was immoderate indul­gence in sex by married persons. Marital sex, Jerome thought, should be in­dulged in only very infrequently and then with sober calculation, not with hot desire. “Nothing,” he asserted at one point, “is filthier than to have sex with your wife as you might do with another woman.”^[373] In this remarkable state­ment, which was to attract so much attention from so many medieval writers on marriage, Jerome had in mind qualitative as well as quantitative criteria for de­termining when marital sex was “excessive.” He was denouncing not only too frequent marital intercourse, but also coital techniques and postures of which he disapproved.^[374] Up to a point Augustine agreed with Jerome’s strictures against “excessive” marital sex.

Among the Fathers of this era it was common ground that marital sex ought to be limited in frequency and duration. No one should have intercourse while undergoing penance for sins—and, considering that penitents might remain in that state for five or ten years, this was a significant limitation on sexual oppor­tunities for many couples.^[377] Indeed the Synod of Orleans considered that young people should be refused admission to penance because they might be unable to restrain themselves sexually during the prescribed period.^[378] It was permis­sible, however, for those who had already completed penance to marry—or even to take a concubine in place of a wife—and to have marital sex.^[379]

Earlier writers had stated vaguely that married couples should refrain from sexual relations during part of each year, but had failed to specify precisely what they meant. St. Caesarius of Arles elaborated this prohibition concretely. Sexual relations, he asserted, were forbidden throughout Lent and on the vigils of the major feasts of the liturgical year.^[380] Coitus was also prohibited during menstrual periods and pregnancy, as well as on Sundays throughout the year.^[381] The late fifth-century Statuta ecclesiae antiqua added that newly married couples should refrain from intercourse on their wedding night, out of rever­ence for the nuptial blessing that they received during the marriage cere­mony.^{[382] [383] This prescription, like the prohibition on sexual relations during peni­tential periods and festivals, implied that marital sex carried with it ritual pollution. For the same reason, St. Caesarius forbade newly married couples to enter the church during the first thirty days following their wedding.81}

Neither the New Testament nor the patristic writers gave any indication that they counted marriage a sacrament, as they did baptism and the Eucharist. Al­though Augustine sometimes referred to marriage as a sacramentum, his mean­ing in these passages was clearly much different from his application of the term to the eucharistic and baptismal rites.^[384] The belief that marriage was a sacra­ment appeared only much later.

Patristic writers assumed, as Roman law did, that consent made marriage. They rejected the notion that consummation was an essential part of marriage. It made no difference whether a couple ever went to bed together; so long as they consented to marry one another, that was what counted.^[385] If consumma­tion was not essential, it might follow that sexual impotence constituted no rea­son for holding a marriage invalid, and Augustine at any rate seems to have sub­scribed to this view.^{[386] [387]}

Christian authorities warned married couples that they should have sex only for proper reasons. Augustine pointed to the Old Testament prophets as ex­amples for married persons of his own generation. The prophets, he claimed, made love to their wives rationally and solely for procreative purposes.⁶⁵ Since marital sex is a favor, not a right,^[388] couples should avoid making love merely for enjoyment or because they felt like it. Only propagation of the species, Augus­tine warned, entitled them to make use of their marital privileges blamelessly.^[389]

But while Augustine and his contemporaries cautioned against intercourse for pleasure, they also reminded their married hearers that they were obliged to give their spouses sex upon demand. The marital debt was a right that either party could claim. The partner from whom it was demanded must accede to the spouse’s request, and doing so was no sin. The other partner might sin in asking payment of the sexual debt for wrongful reasons or at inappropriate times, but the spouse who complied did not share the guilt.^[390] If a couple agreed by mutual consent to cease having sexual relations and one of them later had a change of mind, however, the other party had no obligation to honor a demand for the resumption of marital intercourse. A mutual decision to forego sexual relations cancelled the marital debt, and neither party could thenceforth rescind that decision.

The marital debt created a parity of rights and obligations between the spouses. Each had an equal right to demand that it be paid; each had an equal obligation to comply with the others demands. Equality of the sexes in mar­riage meant equality in the marriage bed, but not outside of it.^[391] Just as each spouse was entitled to sexual service from the other on demand, so each was entitled to require sexual fidelity from the other. Neither had a right to seek sexual fulfillment outside of marriage, even if the other party was, for example, absent or ill and thus sexually unavailable.^[392]

Cessation of marital relations did not break the bond of marriage, just as the beginning of sexual relations was irrelevant to the contracting of marriage.^[393] The evident aim of patristic matrimonial theory was to separate marriage as far as possible from its sexual component, defining it as a contractual union, sepa­rate and distinct from the sexual union of the married persons.

Divorce and Remarriage

Classical Roman law, as we have seen, based the existence of marriage on affectio maritalis. Where marital affection existed between a couple, they were married; when marital affection ceased, the marriage ended. In the post- classical period this concept of marriage underwent a slight but important change. Marriage in postclassical law continued to be contracted by consent, which implied marital affection; but once created, the marriage continued until the relationship ended by death or divorce. Classical Roman marriage, accord­ingly, required continuing consent of the parties, while postclassical marriage needed only initial consent.^[394]

In consequence, divorce became far more central and significant in family law during the postclassical era, and it became more formal and more frequent as well. It was already common prior to the third century, but its frequency seems to have increased markedly after about a.d. 200. St. Jerome mentioned two extreme cases: one involved a man who had had twenty wives, the other the funeral of a woman who was being buried by her twenty-second husband.^[395] While these were no doubt unusual, the incidence of divorce among the upper classes was clearly rather high.

Divorce began to come under closer public control from the time of Con­stantine, and there is little doubt that his reform of the divorce law reflected the policies of his Christian advisers.^[396] Constantines constitution of 331 regu­lated in detail the grounds on which divorce might be authorized. According to this statute a husband could divorce his wife because she had committed adul­tery, had administered poisons, or had procured prostitution. Wives, in turn, could divorce their husbands for murder, poisoning, or grave-robbing. Con­stantine also thought it necessary to specify three grounds that would not be accepted as a basis for divorce: a woman could not secure a divorce simply be­cause her husband was a drunkard, a gambler, or an adulterer.^[397] There was ob­viously a glaring disparity in the treatment of adultery by men and by women. Still, as Noonan has pointed out, the law probably did more to protect women than men, since under earlier rules it had been even easier for a husband to cast off his wife than it was under Constantinian legislation.^[398]

Constantine’s enactments imposed no restriction on remarriage following di­vorce, and there is no evidence to indicate that remarriage was much discour­aged by extralegal pressures. Remarriage appears to have been the usual sequel to divorce, at least for men, and Constantine and his advisers un­questionably knew this.^{[399] [400] A later generation of influential Christian writers, no­tably St. Augustine and St. Jerome, argued that marriage ought to be indissolu­ble and that the laws should support this view, 's}

The earliest clear formulation of a Christian doctrine of marital indissolu­bility appeared in Augustine, who held that the New Testament references to divorce (Matt. 5:32 and 1 Cor. 7:10-11) authorized separation, but not termi­nation of marriage. Those who remarried following such a separation were adulterers.^[401] Augustine’s opposition to remarriage following divorce was predi­cated on his belief that people marry largely because of sex: his objections to remarriage, therefore, centered on the sexual opportunities that remarriage furnished.

Despite Augustine’s arguments and similar ones voiced by Jerome, however, neither Church councils nor the Christian emperors made any move to prohibit divorce and remarriage during the fourth century. The Council of Arles (314), even before Constantine’s divorce constitution, certainly discouraged remar­riage following divorce on grounds of adultery, but stopped short of forbidding it.^[402] Not until 407, nearly a century later, did the Council of Carthage rule that a divorced Christian might not remarry; the text of the canon, however, fails to make it clear whether this was a permanent prohibition, or whether it was lim­ited to the lifetime of the first spouse.^[403]

Public law was slower still to limit divorce and remarriage. The divorce law of the Emperor Honorius (395-423) in 421 technically liberalized the Con- Stantinian constitution by allowing divorce without stated grounds. But since Honorius s law also penalized those who obtained such divorces by subjecting them to deportation, confiscation of property, and prohibition of remarriage, the clear intent of the law was to discourage baseless actions. The person who obtained a divorce because of demonstrated flaws and shortcomings in his spouse, however, could remarry after a statutory waiting period.^[404]

In 439 the eastern Emperor Theodosius II (408—450) genuinely liberalized divorce and returned matters to the situation that had prevailed prior to Con­stantine: he allowed divorce by mutual consent without penalties and with the provision that divorced persons might, if they wished, remarry immediately.^[405] The legal situation changed once more a decade later, when another divorce law OfTheodosius II required that divorce actions demonstrate grounds. The law of 449 considerably broadened the basis on which divorce might be granted, notably by making adultery by either husband or wife a sufficient cause of ac­tion. If either party committed homicide, that was also sufficient reason for di­vorce, as were the traditional offenses of grave-robbing and poisoning.

The new legislation of Theodosius II added some novel justifications for di­vorce, including the charge that either party had plotted against the govern­ment or engaged in kidnapping. In addition, physical maltreatment of one spouse by. the other was for the first time included among the accepted grounds for divorce.^[406] The divorce law of 449 enunciated still another new principle: namely, that marriage could only be ended by divorce or death of one party, and this law for the first time required a formal public act for the termination of marriage.^[407] Three years later, in 452, the western emperor Valentinian III (425-454) reinstated the old Constantinian constitution of 331 for his portion of the Empire. Since this radically restricted divorce rights once more, it seems plausible that, as others have suggested, Pope Leo I (440-461) may have in­spired this action.^[408]

These fluctuations in Roman divorce law raise the question of how successful even the most stringent of these enactments may have been in curtailing the frequency of divorce, or of remarriage following divorce. The law of Honorius, for example, contained punitive provisions that sought to discourage ground­less divorces, but there was little in his constitution to prevent remarriage by anyone determined to do so, and there is no evidence that the Roman govern­ment actually attempted to carry out the deportation penalties or the prohibi­tion of remarriage. Machinery for judicial enforcement was not built into the divorce act, and there is little reason to believe that vigorous efforts were made to carry out the sanctions. In short, even the most stringent of the anti-divorce measures seems to have been largely a dead letter.^[409]

Roman divorce in practice continued to be mainly a private matter, despite this spate of legislative activity. Substantial numbers of Christians continued to regard marriage as dissoluble and to act on that belief.^[410] Sixth-century Church councils still distinguished between de facto separations, following which Church authorities were not supposed to allow remarriage, and discidium, or both separation and divorce of the parties by ecclesiastical authority. Following discidium, Christians often remarried.^[411] Prohibitions of remarriage following divorce only gradually became effective in the West. Opposition to remarriage after divorce centered on the sexual opportunities that remarriage afforded and must be seen as part of a general effort by Church authorities to restrict sexual activity as far as possible.^[412]

For the same reason, the right to remarry following the death of a husband or wife was also the subject of controversy. The Manichaeans had insisted that twice-married persons should be excluded from communion as adulterers. In reaction against Manichaeanism, the first Council of Nicaea (325) affirmed as a matter of doctrine that second marriages were permitted.^[413] Yet many fourth­century Christians of unquestioned orthodoxy began to see widowhood as an opportunity for sexual continence; accordingly, they viewed remarriage as; a re­nunciation of a chance to gain spiritual merit. St. Augustine, for example, main­tained that second marriages ought to be discouraged. Again, as with his op­position to remarriage of divorced persons, Augustine s teachings about second marriages of widows and widowers focused upon the sexual opportunities that remarriage would afford. In his treatise on widowhood, Augustine counseled his readers that after they had lost the carnal delights of marriage they ought to replace those bodily pleasures with spiritual ones and renounce any thought of marrying again.^[414]

St. John Chrysostom (ca. 344-407) also dedicated a short treatise to the problem of second marriages and, like Augustine, he strongly opposed them, not because they were wrong in themselves, but rather because they repre­sented a concession to fleshly lust and a taste for sexual pleasure. For this rea­son Chrysostom strongly advised good Christians to abstain from remarriage; they should dedicate themselves after the deaths of their spouses to a life of penance and religious devotion. The implication was clear: those who had ex­perienced the sensual delights of marital sex should now make amends for their past indulgence in the joys of the flesh by a life of mortification.^{[415] [416] Conciliar enactments of the mid-fourth century reflected the views of Chrysostom and Augustine. The Council of Laodicea (ca. 360), for instance, cautioned that while second marriages were not forbidden, widows and widowers should not rush into them but should spend their time in prayer and fasting. If after a period of spiritual discipline they still felt inclined to remarry, the council grudgingly conceded that they might nevertheless be allowed to receive communion.91}

But while ordinary Christians could remarry as a concession to the weakness of the flesh, those who aspired to receive holy orders were held to a higher standard. Opposition to the ordination of the twice-marricd found its scriptural basis in St. Pauls admonition (1 Tim. 3:2) that a bishop should be the husband of one wife, an ambiguous dictum that was widely interpreted to mean that remarried widowers should be excluded from holy orders. During the fourth century this Pauline prohibition was broadened to exclude from orders men who had married a widow or a divorced woman, on the theory that marriage to a previously married woman was tantamount to a second marriage for the man. This kind of constructive digamy was further extended by the Council of Gerona in the early sixth century to include cases in which a man had sexual relations with a woman other than his first wife, either in a second marriage or in some other relationship.^[417]

Opposition to the ordination of twice-married men, although ostensibly based upon a scriptural injunction, seems in fact to have been predicated upon a belief that remarriage, or marriage to a sexually experienced woman, showed a lack of moral fiber, an unseemly proclivity to seek after sexual pleasure, and hence unfitness for the sacred functions of the Christian clergy.

Christian Concubinage

Given the stern views of so many Christian authorities about sexual irregu­larities, one might have expected that the Church, once it gained power and authority, would abolish the long standing Roman practice of concubinage. In actuality, the reactions of the Fathers and the Christian Emperors to con­cubinage were more complex than that.

The Fathers of the fourth and fifth centuries disagreed about the moral status of concubinage. One view held that concubinage was an alternative form of marriage, created because civil law prohibited marriages between persons of certain social classes; hence Christians should accept these de facto unions and assimilate them to formal marriage by recognizing concubinage as a variant form of marriage. The other viewpoint held that concubinage was morally wrong, since it involved a continuing sexual relationship that was not sanctified by matrimony. Those who adopted this stance argued that a Christian man who lived with a concubine should marry her, if that was legally possible. If the law would not allow the man to marry his concubine, then the Church must de­mand that he dismiss her, do penance for his sexual transgressions, and marry someone else with whom he could contract a legal union. The problem that concubinage caused for Christian teachers and the ambiguity of their responses to it is revealed by the fact that some writers adopted both views in different contexts.^[418]

In practice, the Church during the first two centuries of its existence had encouraged its members to marry according to the prescriptions of civil law, but had not frowned upon legally tolerated concubinage. The Church did, however, disapprove of concubinage between male slaves and free woman or free men with slave women; here, too, the attitudes of churchmen reflected the provi­sions of Roman law.^[419] Pope Calixtus I (217-222) had attempted to revise the Roman Church’s policy on concubinage by permitting the faithful to enter into relationships that civil law did not allow. Calixtuss decision was the subject of strident controversy and ultimately failed to prevail. A century later under Constantine, the Roman government strengthened its opposition to irregular concubinage, and the Church cooperated with this imperial attempt to pre­serve the class structure.^[420]

From the time of Constantine the right of Christian Romans to keep con­cubines grew progressively restricted. Constantine himself in 326 forbade mar­ried men to take concubines, and at the end of the fourth century the first Council of Toledo adopted spiritual penalties to reinforce the civil prohibition.^[421] Meanwhile opposition to concubinage among leading Christian writers became considerably sharper. St. Augustine once more became the spokesman for those who opposed concubinage as an unwholesome practice.

Augustine’s personal experience again almost certainly shaped his views on concubinage. When he was about sixteen Augustine had taken a concubine with whom he lived for about fifteen years and by whom he had a son. Looking back upon this experience in maturity, Augustine described the relationship simply in terms of sexual passion; he says nothing to indicate that there was any deeper emotional bond between him and his mistress than a keen desire for sexual gratification.^[422] Augustine eventually broke off this relationship in order to take a wife, and his former concubine returned to her home in Africa, leaving her child in Augustines care. During the next two years the arrangements for his projected marriage became increasingly complicated, and the venture be­came more and more remote. Augustine then procured another concubine, with whom he lived until the time of his conversion to Christianity.^[423] After his conversion, Augustine renounced sex altogether and abandoned his second concubine. Although he continued to experience strong sexual desires and vivid sexual fantasies, Augustine thereafter lived a life of strict continence.^[424]

Augustine’s sermons, letters, and other writings refer repeatedly to con­cubinage and do so in ways that clearly reflect his personal history. He con­demned concubinage as nothing more than legalized fornication and made it clear that he considered such relationships grounded solely on sexual craving.^[425] Augustine seems not to have felt much affection for either of his concubines. He discarded them when it suited his purposes, and he expressed neither com­passion for his abandoned consorts nor concern for their welfare. The mature Augustine’s disgust with the sexual life that he renounced at the time of his con­version surfaced in a passage of his commentary on the book of Genesis, where he questioned whether there was a real difference between a wife and a con­cubine—either one, after all, was simply a source of sexual temptation for a man.^[426] The same attitude, equating female companionship with nothing more than sexual opportunity, appeared again in a letter that he wrote to a newly bereaved widower named Cornelius. Augustine warned his correspondent in contemptuous terms to beware of the wiles that Cornelius’s slave girls were sure to employ in their efforts to distract him from grief at his wife’s death.^[427] Augustine’s treatment of concubinage conveys the distinct impression that he regarded women fundamentally as little more than troublesome, though entic­ing, purveyors of sexual gratification for men.

Although Augustine discussed the institution of concubinage at greater length than most other Church Fathers, their treatments of the subject touched on many of the same themes. Jerome saw no difference between a concubine and a harlot: a concubine, he wrote to his friend and disciple Eustochium, was nothing but a one-man whore; he added that he greatly feared that the women companions of the clergy fitted that description all too neatly.Likewise, Jerome was disposed to treat the wives of pagan converts to Christianity as con­cubines, unless the new convert regularized his domestic situation by a proper Christian marriage.^{[428] [429]}

Indeed, Jerome saw little difference between a wife, a concubine, and a harlot under any circumstances. Living with a woman, regardless of the legal formalities, was for him a suspect business; having sex with her imperiled a man’s chances of salvation.^{[430] [431] Jerome thought it best to have as little traffic with women as possible and certainly no sexual relationship, even in marriage. If a man was so craven and weak-willed that he yielded to sexual desire, then as Jerome suggested to one correspondent, he might do better to keep his sweet­heart as a concubine rather than marry her. After all, he declared ironically, your union with a wife may prevent you from receiving holy orders when you finally come to your senses, whereas a dalliance with a concubine will not.100 Jerome agreed with St. Ambrose that relations with a concubine constituted adultery, whereas sex with a wife merely demonstrated a lack of moral fortitude.[432]}

At the beginning of the fifth century, some moralists began to urge that con­cubinage should be eliminated from Christian society and sought to remove the legal protections that the institution enjoyed. Concubinage, as they saw it, amounted to a prolonged and continuous act of fornication. The first Council of Toledo, at the turn of the century, was a critical episode in the campaign to strip concubines of the cloak of legal toleration. Yet, at Toledo the anti-concubinage forces lost. The council finally adopted a canon that forbade married men to keep concubines—Constantine had outlawed it long before—under pain of ex­communication. Unmarried men who kept a concubine (but only one at a time) in place of a wife, however, were not denied the right to receive communion. The council’s language indicates that while the Fathers disapproved of con­cubinage and preferred that Christians marry, not cohabit, they did not regard the matter as a sufficiently grave moral offense to justify exclusion from the Eucharist.^[433]

Caesarius of Arles and a few others asserted that, despite the civil laws toler­ance of concubinage, canon law forbade the practice. But after the Council of Toledo, it was difficult to maintain that the Church’s disapproval of concubinage was more than a counsel of perfection, and many Christians certainly under­stood matters that way.^[434] Even Caesarius acknowledged that concubinage was common among Christians—so common, indeed, that he conceded it would be impractical to excommunicate all those who practiced it.^[435] Pope Leo I agreed with Caesarius. While he deplored the practice of concubinage, Leo felt that the custom was too strong to be overcome. Concubinage simply had to be toler­ated, and the best that the Church could do was to prevent men from keeping more than one concubine at a time. Marriage was certainly preferable to con­cubinage, Leo continued, and Christian men would do well to abandon their concubines and to marry legitimate wives instead. That would be moral im­provement. But those who elected to remain with their concubines need not be punished for making that choice.^[436]

Meanwhile, imperial law under the Christian emperors made some modest improvements in the rights and legal status of concubines. This in turn helped to make concubinage more nearly similar to marriage, since it mitigated the legal disadvantages that concubines had suffered.

One critical area in which the concubine’s situation improved markedly dur­ing the fourth and fifth centuries concerned the financial provisions made for her. As dowry was a critical element in differentiating a concubine from a wife, Roman courts were concerned to distinguish the conveyance of dowry property from the “loans” and “gifts” that men gave to their concubines. The distinction had serious implications for the rights of children, inheritance, and related matters. The great difficulty in making clear distinctions in this area under­scored the seriousness of the problem.^[437]

Neither a concubine nor her children, according to early Roman law, had any right to share in her lovers estate. But the Council of Gangra during Con­stantine’s reign required Christian parents to provide support for all their chil­dren, legitimate or not, and civil law in the fourth century began to extend lim­ited inheritance rights to illegitimates as well.^[438] Valentinian in 371 ruled that a concubine and her children might receive up to one-quarter of the estate of the children’s father.^[439] This policy was temporarily reversed in 397 by the emperors Arcadius and Honorius, who cut concubines and their children out of the estate altogether, but in 405 the rule of 371 was reinstated.^[440] Further changes in the early fifth century allowed the concubine and her children to receive a small portion of the estate; just how much they might inherit depended upon whether or not the father left any legitimate children.

Legitimation of the natural children borne by a concubine remained barred by law until the end of the fifth century.^[441] From the time of Constantine, how­ever, the law began to take greater notice of natural children, although the notice that it took was not always very protective. The aim of much fourth­century legislation concerning illegitimacy was to separate the illegitimate child from the family and to exclude him or her from succession to either the mother’s or the father’s estate.^[442] The children of concubines, or “natural” chil­dren, fared somewhat better in this legislation than did mere bastards (that is, the children of casual liaisons). The status of natural children improved notably when the Emperor Zeno in 477 granted them legitimate status if their parents married each other after the child’s birth.^[443] Theodosius II and Valentinian III further liberalized the legitimation rules so that formal acknowledgment of pa­ternity either by the child’s father or paternal grandfather bestowed legitimate status, together with inheritance rights.^[444]