Definition
Concubinage has three distinct meanings in legal sources, and context determines which applies.
1. Cohabitation without lawful marriage. The primary modern legal meaning: a man and woman living together in a conjugal relationship without the sanction of a legally recognized marriage. The arrangement is consensual and ongoing but lacks the formalities and legal status of matrimony. This meaning is operative in criminal and domestic relations law.
2. An informal or inferior marriage. In Roman law and some civil law jurisdictions, concubinage denoted a recognized form of quasi-marital union — not equivalent to full marriage (justum matrimonium) but nonetheless a defined legal status with its own rules governing property, inheritance, and the status of children. This is the meaning carried by the Latin term CONCUBINATUS, to which historical dictionaries uniformly cross-reference.
3. A pleading defense in dower actions. In English common law practice, concubinage functioned as a specific exception or plea interposed against a woman seeking dower rights. The defendant would allege that the claimant was not the lawful wife of the deceased but his concubine, and therefore had no enforceable dower interest in his lands. This procedural meaning is largely historical but appears in older equity and probate records.
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Common Language
Modern common usage (Wiktionary): The state of cohabiting or living together as man and woman while not married; the state of being or keeping a concubine.
Historical common usage (Webster's 1913): The cohabiting of a man and a woman who are not legally married; the state of being a concubine. Also, a plea in which it is alleged that the woman suing for dower was not lawfully married to the man in whose lands she seeks to be endowed, but that she was his concubine.
The gap between common and legal meaning is structural, not definitional. The common understanding captures meaning (1) adequately. What ordinary usage entirely misses is meaning (2) — that concubinage in Roman and civil law contexts was a legally regulated status, not merely the absence of marriage — and meaning (3), the technical pleading function in dower proceedings. A researcher encountering the term in a 19th-century probate record may find the common definition actively misleading.
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Common Confusion
Concubinage is frequently conflated with simple fornication or adultery in both historical and modern sources. The distinction matters: fornication and adultery describe discrete sexual acts or their habitual commission; concubinage describes a status — an ongoing cohabitational arrangement. In jurisdictions that criminalized concubinage by statute (as several American states did in the 19th century), the offense was the sustained relationship, not the individual act. The Kansas and Missouri cases cited in Black's 2nd edition turn on this status-based framing.
Concubinage should also be distinguished from common-law marriage. Common-law marriage, where recognized, produces full marital rights and obligations. Concubinage, even in jurisdictions that treated it as a quasi-formal arrangement, did not. The dower-plea meaning of concubinage exists precisely because courts needed a mechanism to distinguish between the two when a woman asserted marital claims.
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Recognized Forms
/SUBTYPES
Roman concubinage (concubinatus): A formal, recognized status in Roman law for a stable union between persons who could not or did not contract full marriage. Governed by specific rules in the Digest and Code (Dig. 32.49.4; 7.1.1; Code 5.27.12, as cited in Bouvier). Children of such unions (liberi naturales) had limited but defined inheritance rights.
Statutory concubinage: Several American states criminalized concubinage by statute in the 19th century, typically as a race-specific measure targeting interracial cohabitation or as a morals-based offense. These statutes defined concubinage as the crime, not merely the condition, and are the context for the case law cited in Black's 2nd edition.
Concubinage as dower plea: The procedural device in English common law by which a defendant denied a widow's dower claim by asserting she was a concubine rather than a lawful wife. Referenced in Rapalje & Lawrence to Britton, c. 107.
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Why It Matters in Research
The term is a research trap across multiple dimensions.
Chronological instability. Concubinage shifts meaning radically depending on period. In Roman law materials, it is a legally structured status with defined consequences. In medieval English sources, it is both a moral category and a procedural plea. In 19th-century American materials, it is frequently a criminal offense defined by statute. Researchers must anchor the term to its source period before drawing any inference.
The dower-plea context disappears after the 19th century. Researchers working in colonial or early American probate and equity records may encounter concubinage pleas without any modern analog to guide interpretation. The Webster's 1913 definition, unusually, captures this procedural meaning — a reminder that general dictionaries can sometimes preserve legal usages that later legal dictionaries have dropped.
Statutory criminalization produces a corpus of American case law clustered in the 1870s–1920s. Many of these statutes were race-targeted, and the case law reflects that context. The Michigan reference in Rapalje & Lawrence (23 Mich. 118) signals that American jurisdictions were actively litigating the scope of concubinage statutes by the 1870s. Researchers using 19th-century criminal records should anticipate this statutory layer.
Civil law jurisdictions diverge sharply from common law. In French, Spanish, and Louisiana-influenced materials, concubinage retains traces of its Roman civil law meaning and may appear in inheritance and succession disputes in ways that would be entirely foreign to a common-law-trained researcher.
The Anderson's Dictionary entry in the source materials appears to be a misfiled entry for "conclusive" — a useful reminder that historical dictionary digitization errors occur and that cross-checking across shelf sources is essential.
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Historical Dictionary Support
The six source dictionaries show strong agreement on the definitional core — cohabitation without lawful marriage — but differ in their emphasis and completeness.
Black's (both editions) and Bouvier present concubinage in three distinct layers: the Roman quasi-marital meaning, the general cohabitation meaning, and the dower plea. Rapalje & Lawrence follows this structure but adds the statutory criminal dimension with its Michigan citation, making it the most practically useful source for 19th-century American legal research.
Burrill offers the most succinct formulation — "the cohabitation of a man with a woman to whom he is not united by marriage" — and is clearest that concubinage describes a woman "taken to cohabit in the manner and under the character of a wife, but without being authorized thereto by a legal marriage." This framing, emphasizing the wife-like character of the arrangement, has implications for how courts assessed dower claims and property disputes: the very quasi-marital nature of the relationship created the legal ambiguity that the dower plea was designed to resolve.
What the historical dictionaries collectively underemphasize is the Roman law's treatment of concubinage as a positive legal status rather than merely an absence of marriage. Bouvier cites the Digest and Code, but does not unpack the consequences — the limited but real inheritance rights of natural children, the rules governing gifts between concubines, the constraints on who could enter the status. Researchers working in civil law or mixed-jurisdiction materials will need to consult civilian treatises rather than relying on the common law dictionaries alone.
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Jurisdictional Note
American common law jurisdictions largely absorbed the English dower-plea meaning and, in the 19th century, layered criminal statutes on top of it. Louisiana and other civil law states carry a distinct tradition in which concubinage has quasi-formal status dimensions derived from French and Roman sources. Where concubinage statutes were enacted, their scope and definitions varied significantly by state, and many were repealed or fell into desuetude during the 20th century.
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Encyclopedia Cross-Reference
See Law Mind Encyclopedia — Marriage, Informal and Irregular (for the boundary between concubinage and legally recognized unions across jurisdictions and periods); Dower Rights (for the procedural plea context and its use in probate and equity proceedings); Roman Family Law (for concubinatus as a formally structured civil law status).
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