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INCESTUM Incestus, derived from in and castes, is applied as an adjective to any act that may be regarded as a breach of morality or religion. Hence the substantive incestum in its earliest signification, and before the juristic distinction between incest jure gentium and incest juris civilis had been developed, was, applied to acts which religion, or natural morality which had a religious sanction, distinctly forbade. It was applied therefore to breaches of religious obligation, such as the unchastity of a Vestal, and to sexual relations established between individuals within certain degrees of consanguinity. The latter class of actions was the widest covered by the term incestum, and it is within this class that we get the later distinction between incestum jure gentium, which includes nearly though not quite all such actions as morality forbids, and incestum juris civilis, which includes such actions as were forbidden by positive law. It is thus not an exhaustive classification, for there were relations prohibited by morality (mores), and which therefore did not belong to the Jus Civile, such as relations between those in the same line of kinship (ex transverso, ex latere) which did not fall under the Jus Gentium, since this only forbade connexion between ascendants and descendants (Dig. 23, 2, 68, “jure gentium incestum committit qui ex gradu ascendentium vel descendentium uxorem duxerit;” Dig. 23, 2, 8, [p. 1.1004] “sororem ducere non potest, quia hoc jus moribus non legibus introductum est:” cf. Dig. 45, 1, 35, 1).

The old Roman law did not know of this distinction, and probably took cognisance of incest only as a religious offence. A survival of this view is found in the sacra and piacula which even at a late period followed a condemnation on a charge of incest (Tac. Ann. 12.8): and the case of a distinct breach of religion, such as the unchastity of a Vestal, was always treated in this spirit (Platner, Quaestiones histor. p. 25). The Vestal was tried before the pontifices (Liv. 8.15; Cic. de Leg. 2.9, 22, “incestum pontifices summo supplicio sanciunto” ), and, if found guilty, was led through the forum and buried alive in the campus sceleratus near the Colline gate (Dionys. A. R. 8.89, 9.40; Liv. 8.15, 22.57; Juv. 4.9; Festus, s. v. sceleratus campus), her paramour being scourged to death (Liv. 22.57; Festus, s. v. probrum). It is probable that the violation by Clodius of the women's festival of the Bona Dea was regarded as a case of religious incest. It is never distinctly called incestum; but the combined elements of impiety and unchastity in the act would have made it akin to the Vestal's breach of her vow. In this instance, however, after the report of the religious colleges had been made, the case was tried before a special secular tribunal (Cic. Att. 1.1. 3, 3).

To constitute the incest which arose from marriage within the prohibited degrees of relationship, dolus was necessary; and thus ignorance of the fact was always excused. Ignorance of the law was a valid plea in exceptional cases; it was an excuse for the woman when the incest was juris civilis, and also for men under age, probably under the same condition (Dig. 48, 5, 38, 2, 4 and 7; Savigny, System, iii. p. 391). The prohibited degrees of relationship might exist either between ascendants and descendants, or collaterally (ex latere). To the former class belong those who bore to one another the relation of parents to children ( “quae parentum liberorumve locum inter se obtinent,” Gaius, 1.58 ;Just. Inst. 1.10, 1); that is, the relation of actual parents to children by cognatio, the relation of step-parents and children and the relation of parents and children in law by affinitas, or the relation of parents and children by adoptio. The relations of affinitas were apparently no bar to marriage in Cicero's time (Cic. Clu. 5, 11); they were perhaps first made such by the Lex Julia (Schulin, Geschichte des röm. Rechts, p. 205), and were subsequently interpreted in the most extended sense (Dig. 23, 2, 14, 4). The relationships of ascent and descent created by adoption were considered to continue even after the adoption had been dissolved by manumission (Just. Inst. 1.10,1; Gaius, 1.59: cf. Dig. 23, 2, 14). The other class of prohibited degrees included those who were collaterally related either by nature or by adoption; the connexion, however, between an adoptive brother and sister ended with the dissolution of the adoption; they might therefore marry when emancipated, and a consequence of this was that, if a man wished to adopt his son-in-law, he had first to emancipate his daughter, and if to adopt his daughter-in-law to emancipate his son (Just. Inst. 1.10, 2; Gaius, 1.61; Dig. 23, 2, 17, 1). Marriage between brothers and sisters in law was incestum juris civilis, but the principle was subject to modification, as in the temporary permission of marriage with a deceased brother's wife (Cod. 5, 5, 9). Marriage relations between uncle and niece, aunt and nephew, were prohibited until the time of Claudius; through his marriage with Agrippina the law was modified (Suet. Cl. 26; Tac. Ann. 13.5 and 7), so that, while marriage with a brother's daughter was permitted, that with a sister's daughter was not: but finally both kinds of marriage were again prohibited by Constantine (Cod. Theod. 3.12, 1). This did not extend to adoption: “avunculus nemo fit per adoptionem” (Dig. 23, 2, 12, 4), and a man might marry his adoptive sister's daughter (Just. Inst. 1.10, 3). Marriage between cousins was allowed originally (Cic. Clu. 5, 11; Plut. Qu. Rom. 6), but afterwards forbidden (Cod. Theod. 3.10). A change of status did not affect existing relationships; and as the dissolution of adoption did not dissolve most of the degrees of relationship, so in the case of slaves manumission did not dissolve the connexions, both in the degrees of cognatio and of affinitas, which prohibited marriage (Dig. 23, 2, 14, 2).

In early times at Rome there was no legislation on the subject of incestum; nor even when the later distinctions had originated was there any direct legislation on the subject; the Lex Julia de adulteriis only treated incest in so far as it was also adulterium: but the jurists attached all the imperial edicts and their interpretation to this Lex Julia, and so brought incestum under the heads of adulterium and stuprum (Rein, Criminalrecht, p. 873). The ordinances on the subject then attached firstly to incestuous marriage, in which case the marriage was void and the children illegitimate (Just. Inst. 1.10, 2; Gaius, 1.64): the man was punished by relegatio (Paul. 2, 19, 5), and the punishment was levius when the marriage was concluded palam, and therefore presumably “bonâ fide” (Dig. 48, 5, 39, 5), gravius when it was concluded clam (Dig. 23, 2, 68);--secondly to incestuous adultery--that is, adultery with a married woman within the bounds of relationship: the punishment was deportatio in insulam for the man, relegatio for the woman (Paul. 2, 26, 15, 38);--and thirdly incestuous stuprum, or incest when the related woman was unmarried, which was punished in the case of the man by deportatio (Dig. 48, 18, 5).

As there was no separate legislation on the subject of incestum, so there was no separate process for the trial of the crime, except in the case of incest regarded from a purely religious point of view. We find that the ordinary cases were originally made the subject of a judicium populi (Plut. Qu. Rom. 6), and the old penalty of being thrown from the Tarpeian rock (Quint. 8.8) reappears under the Empire (Tac. Ann. 6.19). We hear of trials for incest during the Empire taking place before the senate (Tac. Ann. 6.49), and, as connected with the Lex Julia de adulteriis, it would have been made the subject of an ordinary judicium publicum. The torture of slaves, for the purpose of eliciting evidence against their masters, was permitted in these cases (Cic. in Mil. 22, 59; Dig. 48, 18, 5), and we read of an accused Vestal being required [p. 1.1005] “familiam in potestate habere” (Liv. viii 15), which means that she was prevented from manumitting her slaves and so escaping the evidence which might be wrung from them by torture.

(Rein, Criminalrecht der Römer, pp. 869 ff.; Privatrecht der Römer, pp. 404 ff.; Walter, Geschichte des römischen Rechts, pp. 830 ff.; Schulin, Geschichte des römischen Rechts, pp. 176, 204 ff.; Madvig, Verfassung und Verwaltung des römischen Staates, p. 830.)


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