INCESTUM
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.)
[
A.H.G]
