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p633 Incestum

Article by George Long, M.A., Fellow of Trinity College
on p633 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

INCESTUM or INCESTUS. Incestum is non castum, and signifies generally all immoral and irreligious acts. In a narrower sense it denotes the unchastity of a Vestal, and sexual intercourse of persons within certain degrees of consanguinity. If a man married a woman whom it was forbidden for him to marry by positive morality (moribus), he was said to commit incestum (Dig. 23 tit. 2 s39). Such a marriage was in fact no marriage, for the necessary connubium between the parties was wanting. Accordingly, incestum is the sexual connection of a male and a female, whether under the form of marriage or not, if such persons cannot marry by reason of consanguinity.

There was no connubium between persons related by blood in the direct line, as parents and children. If such persons contracted a marriage it was Nefariae et Incestae nuptiae. There was no connubium between persons who stood in the relation of parent and child by adoption, not even after the adopted child was emancipated. There were also restrictions as to connubium between collateral kinsfolk (ex transverso gradu cognationis): there was no connubium between brothers and sisters, either of the whole or of the half blood; nor between children of the blood and children by adoption, so long as the adoption continued, or so long as the children of the blood remained in the power of the father. There was connubium between an uncle and his brother's daughter, after the emperor Claudius had set the example by marrying Agrippina; but there was none between an uncle and a sister's daughter. There was no connubium between a man and his amita or matertera [Cognati]; nor between a man and his socrus, nurus, privigna or noverca. In all such cases when there was no connubium, the children had a mother, but no legal father.

Incest between persons in the direct line was punishable in both parties; in other cases only in the man. The punishment was Relegatio, as in the case of adultery. Concubinage between near kinsfolk was put on the same footing as marriage (Dig. 23 tit. 2 s56). In the case of adulterium and stuprum between persons who had no connubium, there was a double offence: the man was punished with deportatio, and the woman was subject to the penalties of the Lex Julia (Dig. 48 tit. 18 s5). Among slaves there was no incestum, but after they became free their marriages were regulated according to the analogy of connubium among free persons. It was incestum to have knowledge of a vestal virgin, and both parties were punished with death.

That which was stuprum, was considered incestum when the connection was between parties who had no connubium. Incestum, therefore, was stuprum, aggravated by the circumstance of real or legal consanguinity, and, in some cases, affinity. It was not the form of marriage between such persons that constituted the incestum; for the nuptiae were incestae, and therefore no marriage, and the incestuous act was the sexual connection of the parties. Sometimes incestum is said to be contra fas, that is, an act in violation of religion. The rules as to Incestum were founded partly on the Jus Gentium and partly on the Jus Civile; but the distinction did not exist in the early periods, and the rules as to Incestum were only such as were recognized by the Jus Gentium. Though the rules as to Incestum were afterwards more exactly determined by the Jus Civile, there does not seem to have been any complete lex on the matter. The Lex Julia de adulteriis only treated Incestum incidentally, or so far as it was also adultery: but the jurists connected all the imperial legislation on this matter and their own interpretation with the Lex Julia. (Rein, Das Criminalrecht der Römer, p869, &c.)

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