This note considers the legal scope of lenocinium in its primary sense, not in the derivative usage introduced by the lex Iulia de adulteriis. I begin with a juristic definition:

(6) Lenocinium facere non minus est quam corpore quaestum exercere. (7) Lenas autem eas dicimus, quae mulieres quaestuarias prostituunt. (8) Lenam accipiemus et eam, quae alterius nomine hoc vitae genus exercet. (9) Si qua cauponam exercens in ea corpora quaestuaria habeat (ut multae adsolent sub praetextu instrumenti cauponii prostitutas mulieres habere), dicendum hanc quoque lenae appellatione contineri. (Ulp. D. 23.2.43.6-9)

Practicing lenocinium is not a lesser wrong than deriving profit from [one's own] body[2]). We call lenae those who prostitute women for money. We also understand her to be a lena who lives this kind of life alterius nomine. If anyone operating an inn derives profit from the bodies there (just as many customarily prostitute women there under the guise of the staff on the inn), it must be said that she, too, is in the category of lena.

The standard English edition of the Digest translates [[section]]8: "By `procuress,' we mean a woman who leads this kind of life on behalf of someone else"[3]). In isolation "on behalf of someone else" seems to be a reasonable translation of alterius nomine, but I would like to suggest that there are difficulties with this understanding of the passage. First, there is a very common formulaic phrase which expresses this meaning--alieno nomine--which we might expect to see instead[4]). Elsewhere, when alterius nomine is used as a rough synonym for this phrase, alterius is always the genitive of alter, contrastable with a specific individual in the passage[5]). Furthermore, it would be perverse to spell out the liability of actual managers (lenae in the usual sense), while leaving that of owners implicit. It might then make more sense to adopt the reverse of the above interpretation and to translate alterius nomine as "under cover of another's name," i.e. we might see the passage as specifying the owner who hides behind a hired manager[6]). However, there are problems with this interpretation. The parallels for such a use of alterius nomine all involve the actual adoption of a false name[7]). But there can be no question here of a woman running the business under a pseudonym. Even if this argument is rejected on the grounds that alterius nomine is not a clearly established formula (like alieno nomine), this particular unique sense does not fit the immediate context well. Quae...hoc vitae genus exercet must surely refer to a person who is intimately involved with the running of the business[8]).

The solution lies in seeing that alterius refers not to a person, but a thing--a genus vitae[9]). We may then translate: "We take to be a lena even her who lives this kind of life under another description." Thus the sentence would make the quite reasonable point that it is the fact of prostitution, rather than its open advertisement, that is at issue. There also then appears a close connection between this sentence and the next. After expressing the general principle, Ulpian gives the specific example of a tavern which doubles as a brothel, and points out that its mistress is subject to the opprobrium due to a lena[10]). Ulpian D. 3.2.4.2-3, the other definition of lenocinium in the Digest, provides an extremely close parallel for this interpretation (the context is restrictions on the right to bring legal actions):

(2) Ait praetor: "qui lenocinium fecerit". Lenocinium facit qui quaestuaria mancipia habuerit: sed et qui in liberis hunc quaestum exercet, in eadem causa est. Sive autem principaliter hoc negotium gerat sive alterius negotiationis accessione[11]) utatur (ut puta si caupo fuit vel stabularius et mancipia talia habuit ministrantia et occasione ministerii quaestum facientia: siue balneator fuerit, uelut in quibusdam prouinciis fit, in balineis ad custodienda uestimenta conducta haben<s> mancipia hoc genus obseruant<i>a in officina), lenocinii poena tenebitur. (3) Pomponius et eum, qui in servitute peculiaria mancipia prostituta habuit, notari post libertatem ait.

Says the praetor: "who has practiced lenocinium." He practices lenocinium who has slaves for profit, although a person who earns this same profit from free persons is in the same position. A person will be liable to the penalty of lenocinium, whether he operates this business primarily or as a side-line to another (as, suppose, if he were a tavern- or stable- keeper and had such slaves producing profit in the course of serving customers or on that pretext: or suppose he were a bath-operator, as is the practice in some provinces, who has slaves hired in his baths to guard [the customers'] clothing, and they offer this type of service in their work-place). Pomponius adds also that the man who, while a slave, had prostituted slaves in his peculium, can be stigmatized after he is freed.

Here alterius negotiationis accessione spells out the same idea we have suggested for alterius nomine, but more explicitly. Ulpian even uses the same example of the inn cum brothel.

This understanding of D. 23.2.43.8 creates an intriguing comparison of this passage with another excerpt of Ulpian (D. 5.3.27.1):

Sed et pensiones, quae ex locationibus praediorum urbanorum perceptae sunt, venient, licet a lupanario perceptae sint: nam et in multorum honestorum virorum praediis lupanaria exercentur.

But even rents which are derived from the lease of urban properties, will be included [in an estate], although they are derived from prostitution: for brothels are operated even on the properties of many gentlemen.

Here we see that merely owning the property on which prostitution is carried out does not interfere with honestas, and this is apparently without regard to the landlord's knowledge of the use to which his property is put. There is considerable middle ground between the two cases that are explicitly discussed in these passages[12]). Would civic disability attach to someone who did not merely own the land or buildings, but also owned or hired the prostitutes and their pimp or madam[13])? While neither passage actually says so, the answer may well be "no." Consider again the definition of lena at D. 23.2.43.8 and particularly the phrase hoc vitae genus exercet. As was suggested above, the point seems to be an intimate and regular involvement in the traffic in flesh, not participation in the profits. Does D. 3.2.4.2 add further information? On the one hand, phrases like hoc negotium gerat and hunc quaestum exercet suggest that Ulpian is here making exactly the same point as in D. 23.2.43.8: that only direct involvement was at issue. Furthermore, the examples suggest that he is thinking of someone who could at best be described as an inn- or stable-keeper; we are not to imagine an absentee owner who discretely collects the profits. On the other hand, the initial definition lenocinium facit qui quaestuaria mancipia habuerit might seem to include any who derive a profit[14]). These two interpretations may be reconciled in favor of the narrower one by understanding quaestuaria as predicative at D. 3.2.4.2[15]). Thus he qui quaestuaria mancipia habuerit is the person who actually hires the prostitutes out (not their owner); similarly Ulpian can write (D. 43.24.5.11) si tuum servum mercennarium habuero, where it is necessary that the subject of habuero is not the slave's owner, but a different person who uses that slave. D. 23.2.43.6-9 may well represent the limits of the legal stigma of prostitution. It is reasonable to suspect that the wealthy elite could profit from prostitution without the legal disadvantages of lenocinium[16]) so long as they were not directly engaged in the business.

McGinn has tentatively advanced the possibility that the Roman elite may have derived significant economic benefit from the practice of prostitution. He postulates two cases. In one (based on D. 5.3.27.1) the investor profits merely from hiring out the real estate which serves as a brothel. In this case "the status of the upper class owners conferred a measure of propriety upon [their non-respectable profits]"[17]). In the second case (cf. D. 3.2.4.3) a master (or patron) actually employs his slave (or freedman) as pimp with the prostitutes as part of the latter's peculium. This latter possibility seems to be exampled among the local elite of Chersonesus in the late second century A.D.[18]). In at least the first case, the layers of middlemen between the prostitutes and the rich investor "would have served as a kind of insulation of social respectability for the latter"[19]).

How does the juristic material examined above bear on this issue? To answer this we must consider a more general social and ethical context. That is, is there any extra-legal reason for members of the elite not to invest in prostitution? We might start by noting that even the strictest Roman moralizing (e.g. Cic. Off. 1.150-1, Sen. V.B. 23.2) does not seem to care about the ultimate source of income, so long as its immediate accession is by socially acceptable means (e.g. rents, inheritance, participation in a societas)²⁰). Roman ethics appears not to have a strong notion of contagion, and this is because (at least in part) it is not by and large a system of proscriptions but of ranking[21]). For instance Cicero says of the "liberal arts" (medicine, architecture, teaching) eae [artes] sunt iis quorum oridini conveniunt honestae (Off. 1.151). The elite are informally, but quite effectively, discouraged from these professions. Similarly, the civic disabilities that attach to pimps, prostitutes, actors, and gladiators are not meant to eliminate or even discourage those professions.[22] The latter two were, after all, often employed by the state. Proximity to these "lower" occupations does not bring opprobrium; by virtue of contrast it displays moral superiority. This lack of concern for "contagion" can also be illustrated more concretely. Wallace-Hadrill has noted that Pompeiian and (probably) Roman elite housing is closely intermixed with commercial establishments, despite often-expressed elite contempt for commerce[23]). This general pattern seems also to hold for brothels[24]). All this goes to show that the Roman elite felt no apparent need to establish economic or physical distance from "base" occupations. The narrow view taken above of the scope of lenocinium is of a piece with this ethical context. The jurists, by restricting civic disability to those directly involved in prostitution, are merely enforcing the Roman social hierarchy. This scheme both confirms the legal situation posited above and suggests that extra-legal factors (at least social ones) would not have greatly discouraged elite investment in prostitution either. Thus both of McGinn's scenarios are quite likely, since, absent direct participation, there would be little need for an "insulation of social respectability."

Andrew M. Riggsby
Austin/Texas