Castration Under Roman Law A Study of TH
Castration Under Roman Law A Study of TH
Castration Under Roman Law A Study of TH
Introduction
1
This article is developed on the basis of my Japanese article 紺谷由紀 「ローマ法に
おける去勢―ユスティニアヌス一世の法典編纂事業をめぐって」『史学雑誌』
125-6 (2016), 1-36. Regarding the political roles played by court eunuchs, scholars such as
J.E. Dunlap, R. Guilland and K. Hopkins produced splendid works: Dunlap (1924) 161-324;
Guilland (1943) 197-328; Hopkins (1963) 62-80 (= Hopkins (1978) 178-196). In the twenty-
first century, a new approach from the perspective of gender studies has become dominant,
and the eunuchs have been examined as a ‘third gender’: Kuefler (2001); Ringrose (2003).
2
Guyot (1980) 52-68; Sidéris (2001); Harper (2011) 43-44, 105-106.
This will clarify how in the later Roman Empire eunuchs and castration
were perceived by Roman legislators: emperors, their judicial officers such
as the quaestor of the sacred palace (quaestor sacri palatii), and lawyers.
Despite the frequency of clauses addressing castration in Roman legal doc-
uments (Table 1 and Table 2), previous scholars have not sufficiently
Table 1: Digesta
Source Terminology
Dig. 1.7.2.1 Gaius Institutes, book 1 spado
Dig. 1.7.40.2 Modestinus Distinctions, book 1 spado
Dig. 9.2.27.28 Ulpian Edict, book 18
Dig. 21.1.6 Ulpian Curule Aediles’ spado
Edict, book 1
Dig. 21.1.7 Paul Sabinus, book 11 spado
Dig. 21.1.38.7 Ulpian Curule Aediles’
Edict, book 2
Dig. 23.3.39.1 Ulpian Edict, book 33 spado/castratus
Dig. 24.1.60.1 Hermogenian Epitome of Law,
book 2
Dig. 27.1.15 Modestinus Excuses, book 6 σπάδων
Dig. 28.2.6 Ulpian Sabinus, book 3 spado/castratus
Dig. 28.2.9 Paul Sabinus, book 3
Dig. 37.14.6.2 Paul Lex Aelia Sentia, castratus
book 2
Dig. 39.4.16.7 Marcianus Delatores, book 1 spado
Dig. 40.2.14.1 Marcianus Rules, book 4 spado/castratus
Dig. 48.8.3.4 Marcianus Institutes, book 14
Dig. 48.8.4.2 Ulpian Duties of proconsul,
book 7
Dig. 48.8.5 Paul Duties of proconsul, thlibias
book 2
Dig. 48.8.6 Saturninus Duties of proconsul,
book 1
Dig. 48.8.11 Modestinus Rules, book 6
Dig. 49.16.4 Arrius Menander Military Law, book 1
Dig. 50.16.128 Ulpian Lex Iulia et Papia, spado/thlibias/
book 1 thlasias
CASTRATION UNDER ROMAN LAW307
3
An exception is the study of Dalla (1978), who collected several legal clauses con-
cerning castrated/impotent men, but did not consider the question from the view of legis-
lators. The Codex Theodosianus and Codex Justinianus included details regarding imperial
civil servants who are considered by scholars to have been eunuchs, such as the grand
chamberlain (CTh 6.8 = CJ 12.5.1, 7.8.3, 7.8.16, 11.16.15 = CJ 10.48.12, 11.18.1 etc.).
However, these clauses, except CJ 12.5.4, do not explicitly mention eunuchs.
308 Y. KONTANI
4
Kearley (2010) 377-397; Kaiser (2015) 128-140.
CASTRATION UNDER ROMAN LAW309
removal of the penis was probably rare because of health risks. The sev-
enth-century physician Paul of Aegina mentions two methods of castration
for children: compression and excision of the testes.5 Castration at an early
age can be related to the sale of slaves, but the origin of castrated slaves
or the reason for their castration often remains unclear in literary sources.6
Castration was not only performed on children but also on those who had
already reached puberty.7 Self-castration can have religious motives: a
well-known example in Imperial Rome is the ritual of the priests of Cybele
and Attis.8 According to Christian writers, self-castration could be a radical
form of corporal asceticism9. Men of various ages could also be subjected
to castration, however, as a result of medical procedures or accidents. As
for sexual potency, it is difficult to determine whether castrated men could
have sexual intercourse. It may have been possible, if the penis was not
amputated and if the men were castrated after puberty.
‘Impotence’, on the other hand, is a more comprehensive term. It can
refer to the absence of sexual power in the sense that someone is unable
to copulate; or to male infertility in the sense of being incapable of repro-
duction. Although possible causes of impotence include castration, other
disabilities could play a role as well: congenital defects to the penis or
testes; or temporary or even chronic inability to obtain an erection as the
result of disease, trauma, or certain types of poisoning.10
5
Tougher (2008), 30; Messis (2014) 40-45. Paul. Aeg. 6.68.
A famous example is Eutherius who was a grand chamberlain of Julian. Born in Arme-
6
nia of free parents, he was kidnapped by hostile tribesmen who gelded him. After he had
been sold to Roman traders, he was brought to Constantine’s palace (Amm. 16.7.5). When
the birthplaces of eunuchs were referenced in the sources, they were generally eastern
regions outside of the Empire, such as Armenia and Abasgi: Tougher (2013) 48-50.
7
Dio Cassius (76.14.4-5) describes the case of Plautianus, who castrated not only boys
or youths but also grown men with wives, in order to make them attendants or teachers
for his daughter. This may be an exception, however.
8
Beard (2012) 323-362.
9
Caner (1997) 396-415.
10
Sidéris (2001) 12-19, 29-30.
11
Maas (1925) 432-476; Guyot (1980) 20-24; Sidéris (2001) 11-12; Messis (2014) 31-40.
310 Y. KONTANI
c astration under Roman law, this section presents a status quaestionis for
the terminology and definitions found in legal sources.
Five terms can be translated as ‘eunuch’: castratus / καστράτος, eunu-
chus / εὐνοῦχος, spado / σπάδων, thlasias / θλαδίας and thlibias /
θλιβίας. The ambiguity of the Latin word spado is challenging, and espe-
cially the distinction between spado and castratus in the Dig. is problem-
atic. Spado, derived from σπάω, was primarily used to refer to castrated
or otherwise genitally mutilated men in non-legal sources;12 castratus,
from castro, invariably designated castrated men. Since in Dig. 1.7.2 and
28.2.6, spadones are “those who cannot father children”, the term also
refers to a type of impotency in legal texts. In certain legal clauses using
both spado and castratus there is a clear distinction: according to Ulpian
in Dig. 23.3.39.1, spado referred to impotency in general and castratus
(a castrated man) was a subordinate category of spado;13 Dig. 28.2.6 and
40.2.14 do not provide enough information to define each word. Scholars
have stated that spado referred to non-castrated impotent men, whereas
castratus referred to castrated men.14 The meaning of spado must be
judged carefully according to the context of each clause because it has
subtle differences in meaning, namely (i) all impotent men (whether cas-
trated or not), (ii) castrated men and (iii) non-castrated impotent men (but
only when used in combination with the word castratus).
Dig. 50.16.128 offers another distinction based on the manner of cas-
tration: thlibias and thlasias, derived from θλίβω and θλάω, arguably
both referred to men whose genitals were damaged by compression rather
than by excision.15
Terminology also differs between the opinions of jurists in the Dig. and
the laws of emperors in the Codex. The word spado only appears in a single
third-century decree in the Codex,16 and is later replaced by eunuchus for a
castrate man. The verb castrare was also replaced with facere eunuchus.
Theophilos, a law professor in Constantinople, wrote a Greek summary
of and commentary on the Inst. in 534 entitled Paraphrasis Institutionum,
in which he explained that the word εὐνοῦχος was a general term meaning
impotence. He put forth three categories: σπάδων, καστράτος and θλιβίας.17
12
Scholten (1995) 55-65.
13
Dig. 23.3.39.1.
14
Dalla (1978) 160-161. Cf. Sidéris (2001) 26.
15
Dalla (1978) 47-49; Messis (2014) 40-45.
16
CJ 5.62.1.
17
Theoph. Inst. 1.11.9.
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Dig. 21.1.6.2 Spadonem morbosum non esse neque vitiosum verius mihi videtur, sed
19
sanum esse, sicuti illum, qui unum testiculum habet, qui etiam generare potest (translation
A. Watson, The Digest of Justinian, 2 vols., Philadelphia 1998). Dig. 49.16.4 also refers
to free citizens, stating that a man born with one testicle or having lost one could lawfully
serve as a soldier.
312 Y. KONTANI
suggests that Ulpian’s spado was not a castrated man. As an impotent but
non-castrated man, a spado with at least one testicle might someday be able
to procreate. In his discussion of the condition of livestock in Dig. 21.1.38.7,
Ulpian states that unlike castrated humans, castrated mules could be consid-
ered healthy, because they could fulfill their roles as pack animals. A spado
was therefore healthy, in contrast to a castrated human. However, Paul said
in 21.1.7 that a spado who “lacks a necessary part of his body”, i.e. a cas-
trated slave, was diseased.20 As Dalla and Sidéris suggested, these clauses
indicate that the castration of slaves was considered an illness or defect, but
that the condition of the non-castrated spado was not.21
To consider the castration of slaves as a defect is at first sight incon-
sistent with the presence of castrated slaves in the Empire and with the
aforementioned clauses stating that castrated slaves were highly valued.
Nevertheless, the nature of the edictum aedilium curulium needs to be
taken into account. Only when a vendor concealed the actual condition
of the merchandise (e.g., slaves or livestock) from a vendee, and sold it
as healthy whereas in reality it had a defect, would he be punished. In
fact, Ulpian explains that the edict did not apply to cases where the defect
was obvious.22 Since not all castrated slaves were regarded as having a
defect, however, Dig. 21.1 is not the only standard that applies. The
castration of slaves had to be reported because some vendees considered
this as an illness or defect of the slave. Since there was some demand for
rare castrated slaves, transactions involving these slaves could take place
freely, and even at a high price, with the consent of the vendee.
This practice continued until the reign of Justinian I, whose legislation
highly valued castrated slaves.23
20
Dig. 21.1.7 ut tam necessaria pars corporis et penitus absit … Gellius mentions that
Labeo ruled that a eunuch could be returned as diseased if the purchaser did not know that
the slave was a eunuch. Gell. NA 6.2.6-7 De eunucho quidem quaesitum est, an contra
edictum aedilium videretur venundatus, si ignorasset emptor eum eunuchum esse. Labeo-
nem respondisse aiunt redhiberi posse quasi morbosum.
21
Dalla (1978) 141-148; Sidéris (2001) 37-39.
22
Dig. 21.1.1.6.
23
CJ 6.43.3.1, 7.7.1.5. Whereas male or female slaves were valued at 10 to 60 solidi,
the value of castrated slaves was 30 to 70 solidi.
CASTRATION UNDER ROMAN LAW313
30
Dig. 48.8.6. Regarding the date of this edict, see Dalla (1978) 84-86; Sidéris (2001)
46-48.
31
Dig. 48.8.4.2. Idem divus Hadrianus rescripsit: ‘Constitutum quidem est, ne spa-
dones fierent, eos autem, qui hoc crimine arguerentur, Corneliae legis poena teneri
eorumque bona merito fisco meo vindicari debere, sed et in servos, qui spadones fecerint,
ultimo supplicio animadvertendum esse: …plane si ipsi, qui hanc iniuriam passi sunt,
proclamaverint, audire eos praeses provinciae debet, qui virilitatem amiserunt: nemo
enim liberum servumve invitum sinentemve castrare debet, neve quis se sponte castrandum
praebere debet. at si quis adversus edictum meum fecerit, medico quidem, qui exciderit,
capitale erit, item ipsi quis se sponte excidendum praebuit’. Dig. 48.8.5 is also an edict of
Hadrian, stipulating that those who created a thlibias were punished in the same way as
those who castrated. Only few literary sources indicate that free citizens were castrated:
Dalla (1978) 71-73. There were some examples of castration for adulterers: Val. Max.
6.1.13; Hor. Sat. 1.2.44-46.
CASTRATION UNDER ROMAN LAW315
37
‘Romans’ probably refers to the freeborn citizens in the empire, as the decree does
not stipulate that castrated slaves became free, despite the provisions ordering this: e.g.
Dig. 40.8.2 (competit libertas); CJ 1.10.1 (libertate donando), 4.56.1 (libertate compe-
tente), 7.6.1.3 (in libertate latina antea morabatur).
38
Buckland (1906) 602-607; Dalla (1978) 100-112; Melluso (2000) 104-111.
CASTRATION UNDER ROMAN LAW317
39
RE, ‘Gypsus’. If it is a toponym rather than the generic “a gypsum quarry”, its
modern equivalent is unknown.
40
Delmaire (1989) 75-80.
41
Nov. 142. pr. Αἱ παρὰ τῶν πρὸ ἡμῶν βεβασιλευκότων ὁρισθεῖσαι τιμωρίαι κατὰ
τῶν εὐνουχίζειν τολμώντων πᾶσι δῆλαι τυγχάνουσιν. ἐπειδὴ δέ τινες καταφρονοῦντες
τῆς ἑαυτῶν σωτηρίας ἐτόλμησαν ὅλως πρὸ φανεροῦ χρόνου τὸ τοιοῦτον ἀσεβὲς
αμάρτημα διαπράξασθαι, διὰ τοῦτό τινες μὲν ἐξ αὐτῶν ἀξίας δεδώκασι ποινάς, ἕτεροι
δὲ μετὰ τὸ τιμωρηθῆναι καὶ ἐν ἐξορίᾳ ἐπέμφθησαν.
42
ὡς διαφόρως ἀπὸ πολλῶν ὀλίγους περισωθῆναι, καὶ τοσοῦτον ὅτι καί τινες ἐξ
αὐτῶν τῶν περισωθέντων ἐπ’ ὄψεσιν ἡμετέραις κατέθεντο, ὅτι ἀπὸ ἐνενήκοντα μόλις
τρεῖς περιεσώθησαν,…
43
εἰ γὰρ οἱ ἡμέτεροι νόμοι τοὺς ξίφος κατά τινος σύροντας τιμωρίαις ὑποβάλλουσι,
πῶς ἔχωμεν παριδεῖν οὕτως ἀδεῶς γινομένους φόνους, καὶ πρᾶγμα γινόμενον ἐναντίον
τε τοῦ θεοῦ καὶ τῶν ἡμετέρων νόμων;
318 Y. KONTANI
To clarify the relation between Nov. 142 and the previous clauses, it
is necessary to determine to which decree the promulgator refers when
he mentions the penalty imposed by preceding emperors. Obvious can-
didates are the decrees of Constantine I and Leo I, which were promul-
gated closest in time to Nov. 142. Banishment, however, was not included
in the penalties imposed by these two decrees, but it is imposed in the
Lex Cornelia. The focus on death resulting from castration and the com-
parison of castration to murder clearly indicates that the legislator was
referring to the decrees collected in the Dig. and prohibited this practice
for the same reason, i.e. because castration was a type of violation.
Following the preface and the penal provisions, the penalty for castra-
tors’ associates who provided a slave or a location for the castration was
stipulated, as in Dig. 48.8.6 and CJ 4.42.1. Elements of CJ 4.42.2 are
repeated in Nov. 142.2: castrated men should never become slaves; and
those who planned to own or trade them would be punished by the same
penalty as those who castrated. Nov. 142.2 referred to those castrated in
the Empire, however, rather than to ‘Romans’ castrated within and out-
side of the empire. The edict of Justinian thus unexpectedly reflected the
provisions of the earlier clauses, especially those of the Dig. For that
reason, Nov. 142 should be considered as a crystallisation of the relevant
legislation compiled during the Justinian reign and not as a mere repeti-
tion of the decrees of Constantine I or Leo I.
While Nov. 142 shared some prohibitions with the Dig. and the Codex,
the generous gift of freedom to castrated men is new. Although addressed
both to freeborn men and to slaves, Nov. 142.2 begins with the statement
that castrated men should have been freed from ancient times (ἀπὸ
παλαιοτέρων χρόνων). Therefore, the emperor declared that those who
were castrated in the empire after the legislation was passed would
become free and would not be subordinate to anyone else. In spite of the
reference to ‘ancient times’, the provision that all those castrated in the
empire became free is unprecedented. Admittedly, the punishment of
whoever was involved in a transaction dealing with a castrated man
partly reflected CJ 4.42.2 with Leo I’s order that ‘Romans’ who were
castrated within or outside the Empire would not be owned by anyone.
Also, in CJ 12.5.4, Leo I had already prescribed that all slave chamber-
lains, including eunuchs, were rendered free and free-born (ad libertatis
ingenuitatisque) when they were given to the imperial chamber. These
restorations of free status to castrated Romans and of privileges to the
court eunuchs were, however, strikingly different from Justinian I’s
CASTRATION UNDER ROMAN LAW319
slavery during Justinian I’s reign, Melluso indicates that slaves only
tended to be used in domestic service in cities.47 Justinian I’s decrees
concerning slaves paradoxically equally suggest the decline of slavery.
For example, Inst. stated that all persons were born free according to
natural law and that slavery was considered against the laws of ‘nature’.48
Moreover, Justinian I’s edicts, which frequently stated that he longed for
the freedom of his subjects, ordered that the servitude of free citizens
should be prevented and slaves should be manumitted in various condi-
tions.49 It is true that slaves still existed after his reign, even in the Byz-
antine Empire, and slaves clearly did not lose all importance. The com-
pilation and new promulgation of legislation during Justinian I’s reign,
however, suggest improvements in the legal status of slaves as compared
to the early Empire. Such tendencies may well have influenced the provi-
sions that established the generous granting of free status for castrated
slaves.
In conclusion, legislators punished those who performed castrations
because they regarded castration as murder or injurious assault and also
feared that free citizens could become slaves after castration. The pro-
hibition was indeed perhaps partially aimed at restricting the violence
of slave masters, as these were punished when they castrated slaves.
Clauses regarding the castration of freeborn men, however, urge for
caution.
These decrees certainly did not support hostile attitudes toward or
hatred against castrated men, nor did they aim at expelling them from
the empire. On the contrary, decrees such as Nov. 142 permit slaves to
become free on the moment of castration. Legislators thus held two
different positions regarding castration and castrated men: (1) the prac-
tice of castration was severely punished because of risk of causing
injury or death; (2) castrated men were not punished, because they were
considered victims. How can this prohibition then be reconciled with
recruiting eunuchs? There were after all still castrated men in the
empire, even after the prohibitory decrees, and emperors continued to
receive them into the imperial court, even if they were castrated within
the Empire.
47
Harper (2011) 505-506; Melluso (2000) 296-298.
48
Inst. 1.2.2.
49
Melluso (2000) 230, 287-291, 296-298. CJ 6.27.5.1d, 7.7.2.2, 7.15.1.3; Nov. 22.8,
54, 78.4.1, 89.9.
CASTRATION UNDER ROMAN LAW321
50
Dalla (1978) 267; Guyot (1980) 66-67; Gardner (1998a) 154-155; Gardner (1998b)
145; Gardner (2011) 424.
51
Borkowski & du Plessis (2005) 92-93, 97-112.
52
Although the notion of Roman citizenship became more ambiguous in late antiquity,
especially after the Constitutio Antoniana, it still seems to have had some impact: Garnsey
(2004) 133-155. Concerning the problem of barbarian citizenship, see Mathisen (2012)
744-763.
53
Nathan (2000) 31-33.
54
Gardner (1998a) 155.
322 Y. KONTANI
patrons. The Lex Papia also stipulated that, according to the amount of
property and the number of children, their patrons succeeded to a certain
share of their property. Therefore, ex-slaves were certainly restricted in
executing a will, but they were permitted to become a pater familias.
Could castrated or impotent men enjoy their legal rights in terms of
gender and maturity? Due to their genital mutilation, contemporaries often
described castrated men as belonging to a ‘third gender’ or as being ‘nei-
ther male nor female’ and thus emphasising their ‘unmanliness’.55 In legal
texts, however, lawyers did not doubt the gender of a eunuch as male,
although Dig. 1.5.10 discussed the androgyne. Therefore, it is likely that
without referring to their reproductive ability, castrated and impotent men
were considered male because their sex was fixed when they were born.56
Regarding maturity, it was necessary to reach puberty to enjoy legal rights.
Classical lawyers argued over the criteria to establish this, some consider-
ing the development of the reproductive organs as sufficient and others
emphasising reaching a particular age (14 for males, 12 for females).57 If
the former criterion was adopted, castrated and impotent men faced the risk
of not being considered as having reached puberty because of their impo-
tency. However, Paulus’s Sententiae stated the spadones reached puberty
at the age of 18, thus indicating that age was also permitted as a criterion
for maturity.58 Moreover, the fact that Justinian officially abolished screen-
ing the appearance of boys and girls to judge their sexual maturity indicates
that all castrated and impotent men could be judged as having reached
puberty only when they reached a certain age.59 Therefore, if they had
Roman citizenship and reached a specific age, even castrated and impotent
men could enjoy legal rights.
The Dig. discussed the legal rights of castrated and impotent men with
respect to marriage and adoption. Rather than considering their status
(freeborn / freedmen / slaves), lawyers distinguished between spado and
castratus. Apparently they treated castrated men as belonging to the same
category as impotent men.60
55
For the beardlessness or high-toned voice of those who were castrated, especially
before puberty: Tougher (2008) 32-35.
56
Dalla (1978) 207-212; Gardner (1998a) 145-148; Gardner (1998b) 141-143.
57
Gai. Inst. 1.196.
58
Paulus Sent. 3.4a.1.
59
CJ 5.60.3; Inst. 1.22.
60
The edict of Septimius Severus also did not permit the exemption of a spado from
becoming a tutor, meaning that impotent and castrated men could take charge of tutelage
(Dig. 27.1.15; CJ 5.62.1). Dalla (1978) 191-199. Strictly speaking, this is not a right, however.
CASTRATION UNDER ROMAN LAW323
Dig. 23.3.39.
61
Dig. 40.2.14.1.
62
63
Dalla (1978) 271-272; Gardner (1998b) 144-145.
64
Dig. 50.16.128. Spadonum generalis appellatio est: quo nomine tam hi, qui natura
spadones sunt, item thlibiae thlasiae, sed et si quod aliud genus spadonum est, continentur.
“The name of eunuch is a general one; under it come those who are eunuchs by nature,
those who are made eunuchs, and any other kind of eunuchs”.
65
Dalla (1978) 255-263; Gardner (1998b) 140.
66
Dig. 1.7.2.1. Illud utriusque adoptionis commune est, quod et hi qui generare non
possunt, quales sunt spadones, adoptare possunt.
67
Dig. 1.7.40.2. Spado adrogando suum heredem sibi adsciscere potest nec ei corpo-
rale vitium impedimento est.
324 Y. KONTANI
68
Dalla (1978) 171-176; Gardner (1998a) 148-155; Gardner (1998b) 139-144, also
discussing the interpretation of Dig. 28.2.6 about the postumus heir of a spado and a
castratus.
69
Gardner (1998a) 148-155; Gardner (1998b) 139-144.
70
One exception is the provision about the institution of children born after the death
of the testator (postumi) as heirs. Ulpian introduced the discussion of jurists about whether
someone who cannot easily father children can make a postumus heir. Dig. 28.2.6. He
mentioned that a castratus cannot institute a postumus as heir. The case of a spado is more
problematic. According to Ulpian, both Labeo and Cassius wrote that an impotent person
(spado) is capable to do so, because neither age nor sterility is an impediment. On the
other hand, Paul mentioned in Dig. 28.2.9 that a previous will was broken if a person
instituted as heirs postumi whom his age or ill-health might have made it impossible to
have. In any case, these provisions indicate that spadones and castrati could execute their
will if they instituted the right person as an heir.
71
In terms of non-castrated, impotent men, Diocletian and Maximian accepted the
demand of Rodonus, promulgating that even though the evidence of virility had not yet
appeared, his cousin made a legally valid will after he passed his fourteenth year.
CJ. 6.22.4.
72
CJ 12.5.4.2-3. Sed testamenta quidem ad similitudinem aliorum, qui ingenuitatis
infulis decorantur, pro sua liceat eis condere voluntate: intestatorum vero nemo dubitet
facultates utpote sine legitimis successoribus defunctorum fisci viribus vindicari. Haec
omnia tunc diligenti observatione volumus custodiri, cum sponte suaque voluntate quis
dederit eunuchum sacri cubiculi ministeriis adhaesurum.
CASTRATION UNDER ROMAN LAW325
73
Dalla (1978) 265-272 bases this opinion on the descriptions of the Historia Augusta
(Alex. Sev. 23.4-8) where Alexander reduced eunuchs to a limited number and removed
them from all duties in the palace except for the care of women’s baths. Gardner (1998b)
145-146 rejects this.
74
Inst. 1.11.9. sed et illud utriusque adoptionis commune est, quod et hi, qui generare
non possunt, quales sunt spadones, adoptare possunt, castrati autem non possunt.
326 Y. KONTANI
75
Theoph. Inst. 1.11.9. Ἐζητήθη εἰ ἄρα εὐνοῦχος δύναται υἱοθετεῖν. καὶ λέγομεν
ὅτι ὁ μὲν καστράτος καὶ ὁ θλιβίας οὐ λαμβάνουσιν εἰς θέσιν οὐδε αὐτεξούσιον παρὰ
βασιλέως, οὐδε ὑπεξούσιον παρὰ ἄρχοντος. οἷς γὰρ ἡ φύσις ἠρνήσατο τὸ παιδοποιεῖν,
τούτοις καὶ ὁ νόμος κατὰ πόδα βαδίζων τῆς φύσεως· ἀνέλπιστα γὰρ αὐτοῖς τὰ τῆς
παιδοποιΐας. ὁ δὲ σπάδων ἐπειδὴ τοῦτον ἐλπὶς εἰκὸς τοῦ πάθους ἀπαλλαγέντα
δύνασθαι παιδοποιεῖν, εἰς θέσιν λήψεται καὶ ὑπεξούσιον καὶ αὐτεξούσιον (translation
J.H.A. Lokin [et al.] (eds.) & A.F. Murison (transl.), Theophili antecessoris Paraphrasis
Institutionum, Groningen (2010), 90).
76
Dalla (1978) 163-170; Sidéris (2001) 35.
CASTRATION UNDER ROMAN LAW327
77
Sidéris (2001) 31-34.
78
Borkowski & du Plessis (2005) 128-130.
79
Nov. 22.6.
328 Y. KONTANI
Conclusion
This article has attempted to clarify the views of legislators toward cas-
tration and castrated men. Legal clauses from the first through the sixth
80
CJ 7.5.1, 7.6; Inst.1.5.3; Nov. 78. Melluso (2001) 78-85, 124-127, 292.
81
Borkowski & du Plessis (2005) 106-107, Melluso (2000) 127-133, 295.
82
CJ 6.4.3; Inst. 3.7; Nov. 117.
CASTRATION UNDER ROMAN LAW329
century were relevant considering two aspects: legal status and the
changes that occurred during the sixth-century codification.
Firstly, new legislation for eunuchs seems to have been influenced by
the improvements in the legal status of slaves and freedmen during the
codification by Justinian I. Eunuchs should therefore be studied as an
integral part of Roman society as it developed in the later period. The
traditional theory is that eunuchs were nearly all slave servants of foreign
origin, and as such isolated in the empire. But rather than studying them
in isolation, the castrated men’s relationships with other categories of
people should be considered, to more deeply understand eunuchs and, in
turn, the later Roman Empire.
The second point concerns the various views on castration or castrated
men when laws regarding the matter were established, e.g. their status,
the aim of castration or its definition. According to the legal sources,
castration could also be performed on freeborn men, although it was
intimately connected to slaves. Genital mutilation, whether voluntary or
involuntary, was treated as murder or injurious assault and as a crime that
made free citizens into slaves. For slaves, castration could be an element
that added value or a defect, or, in exceptional circumstances, a medical
treatment. Castrated men were defined as those who suffered from impo-
tence through genital injury. In addition, especially during the reign of
Justinian I, their irrecoverable loss of reproductive capacity became the
focus of attention, stressing the fact that they would never have their own
children. Castrated men, either freeborn or ex-slaves, were therefore
deprived from certain legal rights. Previous scholars have emphasised the
role of castrated men as court eunuchs, against which contemporary liter-
ary sources show considerable prejudice. The legal documents considered
in this study did not connect castrated men with this group and their
negative image. In contrast, these sources suggested that emperors
accepted their existence in the Empire, even though castration was pro-
hibited under Roman law.
In this way, legal sources probably reflected the diversity of eunuchs
who were present in later Roman society. Certainly, court eunuchs devel-
oped remarkably during that time: their presence in higher positions of
authority in the imperial administration may even have had some influ-
ence over imperial legislation. It seems to have been their physical status
rather than their social roles, however, that was truly important in defin-
ing castrated men: castrated men were treated as equal to impotent men
and castration was presumed to be caused by illness. Castration was a
330 Y. KONTANI
phenomenon that was not restricted to the imperial court only, but
extended broadly across imperial society. Although the laws do not accu-
rately reflect the contemporary situation, they are valuable sources to
examine eunuchs within the larger context of society.
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