Concubinage

CONCUBINAGE. - In general c. means the state of conjugal cohabitation separated from the true and proper marriage bond. Therefore the concrete application of this generic concept to the different cases of conjugal cohabitation and the ethical-juridical evaluation of c. depends on the different way of conceiving the nature and the essential properties of the marriage bond. The theory of free love, for example, by removing intercourse and conjugal life from every moral and juridical bond, abolishes the very generic concept of c., making of it a legitimate form of conjugal life; likewise a divorce-minded legislation of marriage, while still maintaining the generic concept of c., applies it differently from an indissolubilist legislation. To better understand the Catholic conception and evaluation of c., it is useful to compare it with the Hebrew and Roman ones.

I. CONCUBINAGE AMONG THE HEBREWS

Although the Hebrews "knew the principle of monogamous marriage, as appears from the Genesis account of the creation of man and woman, and although the Mosaic legislation likewise remained monogamous in its spirit, nevertheless, among them, polygamy appears as a normal thing, from Abraham down to the Babylonian captivity. However, in deference to the monogamous principle, only one woman is recognized as the "bride" par excellence, while all the others are called "concubines." The ethical-juridical evaluation of Hebrew concubinage on the part of the Fathers, theologians and Catholic exegetes is not unanimous: there are those who would have it authorized and approved, and those who hold instead that it was simply tolerated by God himself. What remains certain is the fact that in the Old Testament polygamous concubinage does not appear expressly forbidden, as adultery is, nor expressly authorized, as divorce is.

II. CONCUBINAGE AMONG THE ROMANS

Since marriage among the Romans was a rigidly monogamous juridical institution, although dissoluble, conjugal cohabitation was distinguished, for Roman citizens, into legitimate (iustae nuptiae) and illegitimate. To check the spread of illegitimate unions, the emperor Augustus, with the lex Iulia de adulteris, conferred a certain legality, at least of tolerance, upon the conjugal union of Roman citizens with certain persons of inferior condition (freedwomen, slaves, procuresses, actresses, etc.), who were deprived by law of the capacity to contract iustae nuptiae. This kind of conjugal union, a true compromise between the illegitimate union and the iustae nuptiae, was called concubinatus, to which therefore the law did not give the same protection and the same prerogatives as marriage. The monogamous principle nevertheless remained intact, since it was not lawful to keep simultaneously a uxor and a concubina, or to have two concubines. If Roman concubinage was on the one hand an odious thing, inasmuch as, for reasons of civil and class prestige, it refused the character of true marriage and the consequent juridical protection to the conjugal union with certain persons, on the other hand it was a step forward toward the freedom and equality of marriage on the civil and juridical plane, which, however, would be attained only under the influence of Christianity.

III. CONCUBINAGE IN CATHOLIC MORALITY

Catholic morals has always considered as legitimate only the conjugal union based on the marriage contract, a Sacrament in the baptized, one and indissoluble for all, save for the Pauline privilege and the matrimonium ratum non consummatum. Therefore, just as the Church made no distinction, on the ethico-religious plane, between slave and free man, so, on the same plane, it made no distinction between the iustae nuptiae and the concubinatus of Roman law. The Church did indeed provisionally accept the terms iustae nuptiae and concubinatus and their distinction on the civil plane, but gave them an identical meaning and value on the religious plane. In its eyes, the concubine of Roman law was a legitimate spouse, no more and no less than the uxor. Thus it is explained that still in the year 400 the Council of Toledo declares to be in accord with Christian morals both "is qui pro uxore concubinam habet" and he who has an "uxorem", provided that both "unius mulieris, aut uxoris aut concubinae, sit coniunctione contentus". A few centuries later Isidore of Seville, well instructed in Roman law, declares: "Christiano non dicam plurimas, sed nec duas (mulieres) simul habere licitum est, nisi unam tantum, aut uxorem, aut certe loco uxoris, si coniux deest, concubinam". These two texts are reported by the decree of Gratian (part 1, dist. XXXIV, c. 4, 5). From the time when, under the impulse of the Christian idea, the Roman c. was disappearing as a juridical figure distinct from the iustae nuptiae, the term c. came to be employed, and is so to this day, to designate only illegitimate conjugal cohabitation. The only survival of the Roman c. in the civil sphere will be morganatic marriage (v.).

The c. could be defined as: an illegitimate conjugal state, or also, a marital state in fact and not in law. Sporadic and occasional fornication relations with the same person do not yet constitute c.

Prostitutes are not concubines in themselves; rather, so-called kept women or lovers are. The c. is simple, if it occurs between two persons free from special obligations with regard to marriage; it is compound, if the sexual relations between the two persons are already unlawful for other reasons (adulterous, sacrilegious, incestuous c., etc.). It can moreover be occult or public. The moral malice of the simple c. is substantially identical to that of fornication (v. FORNICAZIONE), with the addition of an aggravating circumstance, that is, the continuity and the more or less voluntary persistence in the occasion of sin. The concubinarian rehabilitates himself in the eyes of God and thus becomes capable of sacramental absolution when he repents of his past faults and has the serious and effective will to break the concubinarian relationship. Sign and effect of such a will is normally the actual breaking of the concubinarian relationship, and therefore moralists are agreed in requiring it before proceeding to the absolution of the concubinarian, especially if it is a public c., in which case the actual breaking is a dutiful reparation of scandal. However, grave and special circumstances can render morally or physically impossible the actual breaking of the concubinarian cohabitation. In these cases absolution is possible, provided that the purpose of avoiding every sexual commerce is guaranteed; and the best guarantee lies in the actual execution of such a purpose. Therefore moralists require the postponement of absolution even of the occult concubinarian, who is necessitated to remain in his state and on the other hand is decided not to sin further. It is the task of casuistry to study whether and how far the actual breaking of the concubinarian cohabitation is morally or physically impossible. Alexander VII condemned on 24 Sept. 1665 the following assertion, advanced by the casuistry of that century: "Non est obbligandus concubinarius ad eiciendam concubinam, si haec nimis utilis esset ad oblectamentum concubinarii, vulgo regalo, dum deficiente illa, nimis aegre ageret vitam et aliae epulae taedio magno concubinarum afficerent et alia famula nimis difficile inveniretur" (Denz-U, 1141). If the breaking of the concubinarian cohabitation means true hunger and misery, or grave dishonor, or if the breaking is impeded by superior forces, the occasion may be considered necessary and one may proceed to absolution, provided always that there be no scandal, that there be repentance and a serious purpose not to sin. The dying concubinarian can regularize his situation with an in extremis marriage, if it is possible; in any case repentance and the purpose (possibly manifested before witnesses, if he is a public concubinarian) of breaking the c., should he return to health, suffice for absolution. The removal of the concubinarian partner in these cases can be impossible, especially if it is an occult c.; and if it is a public c., the voluntary request for religious consolations in the final hour can already serve as reparation of the scandal given. To the dying and unconscious concubinarian it is always lawful to impart absolution at least conditionally.

Against the plague of c. and its various forms the Church has always opposed severe juridical measures, varying according to times and customs. Those in force are found in the CIC (cann. 2357-59).

The most radical attack on Catholic moral doctrine on c. is represented in our times by the theory of free love, in the name of which is invoked not only divorce, but also the legalization of so-called prenuptial relations, also called "companionate marriage" or "trial marriage". In short, it would be desired to introduce, alongside true marriage and as a preparation for it, a new figure of conjugal union, founded exclusively on the free and spontaneous "friendly" consent of the two parties; in other words, the legalization of c. is desired. Pius XI stigmatized as "nefarious aberrations" this theory and this practice in the encyclical Casti connubii of 31 Dec. 1930 (cf. AAS, 22 [1930], pp. 558-59).

Gaetano Corti

IV. CONCUBINAGE IN CANON AND ITALIAN CIVIL LAW

Although certain passages of the canonical sources (v., e.g., c. 2, 3, D. XXXIV; c. 5, C. XXXII, q. 2) may lend themselves to an equivocal interpretation, it is certain that the Church condemned c. from the earliest times as an evident violation of the sixth precept of the Decalogue and as a grave offense against the sacrament of Matrimony: it suffices to recall what St. Ambrose wrote on the matter (De patriarchis), St. Jerome (Contra Iovinianum), St. Augustine (De bono coniugali), and the doctrine set forth by St. Thomas in the Sum. Theol. (Suppl., q. LXV, artt. 3-5).

The c. of clerics was very soon considered a true and proper crime, and consequently punished, according to the circumstances, with deprivation of office and benefice (c. 16, D. LXXXI), with deposition (c. 20, D. LXXXI) and with excommunication (c. 3, X, de cohabitatione clericarum et mulierum, III, 2; c. 55, X, de sententia ex-communicationis, V, 39). Not so the c. of the laity; which, despite an open deploration by the Council of Basel (sess. XX, 1), was forbidden for the first time under threat of canonical penalties by the constitution Supernae dispositionis of Leo X (1514). Finally, the Council of Trent, regulating the entire matter, decreed that laymen, tam soluti quam uxorati, guilty of keeping a concubine and deaf to the repeated admonitions of the Ordinary, should be struck with a sentence of excommunication (sess. XXIV, de ref., c. 8); and it laid down particular norms for proceedings against clerics who incurred the same offense or who, in any case, entertained relations, at home or outside, with women de quibus possit haberi suspicio (sess. XXV, de ref., c. 14; see also CELIBACY).

1. C. as an ecclesiastical crime

The current CIC includes c. among crimes against good morals and, conforming to tradition, considers it differently according to the quality of the active subject.

Guilty of c. — and, as such, subject to the penalty of exclusion from legitimate ecclesiastical acts until he has given signs of sincere repentance (can. 2357 § 2) — is the layman who habitually maintains sinful relations with a woman to whom he is not united in marriage. It is not necessary, for the offense to exist, that the couple cohabit more uxorio; and it is entirely immaterial whether the concubine is in the same house as the guilty party or elsewhere. An indispensable condition of punishability is, however, that the act be public within the meaning of can. 2197 n. 1, that is, that it be committed in circumstances such as to determine a serious danger of scandal among the faithful.

The moment of consummation occurs as soon as the sexual relationship between the man and the woman has assumed that character of habituality and continuity which is required by the very notion of c. The psychological element consists in dolus, that is, in the consciousness and will to maintain an illicit relationship contrary to the law. Since it is a permanent offense (whose consummation is prolonged in time until the unlawful state brought about by the agent ceases) and a bilateral one (which by its nature requires the concurrence of two persons), it follows: 1) that the period useful for prescription runs from the moment when the illicit relationship is effectively severed (cf. can. 1705 § 2); 2) that the concubine incurs the same penalties established for the man (cf. cann. 2209 § 2, 2231). Nothing prevents, finally, that, when the guilty party is married, the offense of c. should materially concur with that of adultery (v.).

The juridical structure of c. remains unaltered if the active subject is a minor cleric: with the sole difference that upon the latter, besides exclusion from legitimate ecclesiastical acts, other penalties may be inflicted at the discretion of the Ordinary, proportionate to the gravity of the fault and extending as far as reduction to the lay state (can. 2358).

Notably different is the discipline of the code with regard to clerics ordained in sacris. Can. 133, while imposing upon them not to cohabit and not to keep company with women who by their young age or for other reasons may give rise to suspicion (v. COHABITATION), prescribes verbatim, in § 4: Contumaces praesumuntur concubinarii. By virtue of this presumption (which does not admit of contrary proof), a man ordained in sacris, whether secular or religious, is punishable on the ground of c. not only when, as a result of his action, all the conditions required by law for the existence of c. properly so called have been verified, but also when, despite the invitations addressed to him by the Ordinary, he persists in keeping near him or in frequenting a merely suspect woman.

The c. of priests may therefore be split into two distinct criminal figures: the first (actual c.), similar in all respects to that examined above; the second (presumed c.), consisting in the fact of maintaining, in contempt of superior orders, a compromising conduct. Presumed c., unlike actual c., prescinds both from the publicity of the act and from the effective existence of sexual relations between the accomplices, and is concretely realized, in substance, in the violation of a particular obligation inherent in the quality of priest.

Against clerics in sacris guilty of c., can. 2359 § 1 provides for suspension a divinis and deprivation of the fruits of office, benefice and dignity. These penalties may be inflicted only following a special procedure of an administrative character, regulated by cann. 2176-81.

This procedure is initiated by means of an invitation of the Ordinary, addressed to the cleric in the form of a penal precept, to abandon the woman in question or to abstain from frequenting her (can. 2176). After that, three hypotheses may occur: a) that the cleric complies with the precept; b) that the cleric does not obey and does not exculpate himself; c) that the cleric does not obey, but presents his justifications.

In the first case, the presumption sanctioned by can. 133 n. 4 loses its efficacy, and no punishment of any kind may take place. In the second case, the Ordinary, once he has ascertained that the cleric has had the time and the means to obey, suspends him a divinis. Moreover, if it is a parish priest, he deprives him of the parish; and if it is a beneficiary without care of souls, after two months have passed in vain, he deprives him of half the fruits of the benefice, reserving the right to deprive him, after another three months, also of the remaining fruits and, after three months more, of the benefice itself

(can. 2177). In the third case, if the Ordinary, having heard the opinion of two synodal examiners (can. 2178), considers that the justifications adduced are unfounded, he promptly communicates this to the interested party and with a formal precept fixes a brief term for him to obey (can. 2179). The consequences of eventual disobedience to this new injunction are different, according to whether it is a removable parish priest or a parish priest or other irremovable beneficiary: the removable parish priest is forthwith struck with suspension a divinis and deprived of the parish; while the parish priest or other irremovable beneficiary, who avails himself of the faculty expressly recognized to him of presenting other defensive arguments, cannot be punished according to cann. 2177 and 2359 § 1 except following a further and definitive precept of the Ordinary (cann. 2180 and 2181).

2. C. in civil legislation

For Italian law the notion of c. is much less broad than for canon law, referring exclusively to the adulterous relationship of the husband. According to art. 560 of the Italian Penal Code, the husband who keeps a concubine in the conjugal home or notoriously elsewhere, is punished, on the complaint of the wife, with imprisonment for up to two years. The concubine is subject to the same penalty.

Ferruccio Liuzzi