The Ancient Roman and Talmudic Definition of Natural Eunuchs
 

Presented at a conference on Eunuchs in Antiquity and Beyond held at Cardiff University on July 27, 1999

Natural Eunuchs in Roman Law: "Not Diseased or Defective"

When the Roman jurist Ulpian states in Lex Julia et Papia, Book 1 (Digest 50.16.128), that "Eunuch is a general designation: the term includes those who are eunuchs by nature, moreover the crushed and the pounded, as well as any other kind of eunuch," he places the natural eunuchs first. Mutilated eunuchs are placed into a secondary rank after an extenuating Latin conjunction item, which I have translated as "moreover." Unfortunately, Roman law does not provide a statement of what exactly unites the various types of eunuchs under one general classification. But it does provide more material for understanding the distinction between types of eunuchs.

The law (D 28.2.6) says that someone who cannot easily procreate is nonetheless entitled to institute a posthumous heir, but it gives no concrete examples of such a man. In the same context, it states that the "eunuch" holds this right as well, while "castrated men" expressly do not.

Elsewhere (D 23.3.39.1), Ulpian discusses whether money, given in lieu of a dowry when slaves enter into a marriage-like partnership, is to be counted as an actual dowry after the partners have become free. In this context, Ulpian mentions a special case: "When a woman marries a eunuch," he says, "I think that a distinction must be drawn as to whether he was castrated or not, so that if he has been castrated, you may say that no dowry can exist; but a dowry exists and a claim for the dowry against the one who has not been castrated, because a marriage exists."

The distinction Ulpian is making here is between the noncastrated eunuch who is eligible for marriage, and a castrated eunuch who is not. Note, first, that for Ulpian the term eunuch can imply a castrated or a noncastrated man, and, second, the qualities of the two types of eunuchs are significantly different.

What is a noncastrated eunuch? He could be a man who is missing testicles by some process other than castration, such as the aforementioned crushing or pounding, or by atrophy due to illness, or one who was simply born without testicles. Such a eunuch would be, technically speaking, not castrated. Walter Stevenson has speculated that "the crushing and pressing were procedures somehow not associated with the more drastic castration." Perhaps it is the process of cutting that disqualifies the castrated man for marriage. In fact, in another part of the Digest, Ulpian once again singles out castration as a negative. Ulpian notes (D 48.8.4.2) that Emperor Hadrian made the manufacture of eunuchs, specified as castration, subject to the same penalty as murder.

However, we see that Paulus filled in Ulpian's omission of other types of mutilation when he recalled (D 48.8.5) that those who make thlibias (i.e. who crush the testicles of others) are in the same position as those who do castrations. This suggests that crushing and pounding are like castration before the law.

Is it the destruction of a man's bodily integrity that is at issue? By this logic, the mutilated eunuch would be unable to marry because his bodily integrity and, with that, his dignity has been compromised, while a natural eunuch is born incapacitated and his integrity has not been injured by himself or someone else. As plausible as this last hypothesis might sound in the Roman context, another distinction is actually at work here, as we shall see.

There was a kind of "lemon law" for slaves in the Roman empire -- just as in modern times used car dealers may be prohibited from concealing major flaws in cars, Roman slave dealers were prohibited from concealing serious flaws in slaves that they offered for sale. The purpose of the rulings in Book 21 Title 1 of the Digest was to determine what kinds of flaws would give rise to the rescission of a purchase contract if the seller had not reported them before the sale.

Minor flaws, such as long-ago healed wounds or stuttering speech, were called defects and did not require disclosure. Relevant flaws, such as blindness or tuberculosis, were called diseases. The jurist Sabinus defined disease in this context as "an unnatural physical condition whereby the usefulness of the body is impaired for the purposes for which nature endowed us with bodily health."

Ulpian declares that "if there be any defect or disease which impairs the usefulness and serviceability of the slave, that is a ground for rescission; we must, however, bear in mind that a very minor flaw will not lead to his being held defective or diseased. Thus a slight fever, or an old recurrent fever which can now be ignored, or a trivial wound, will entail no liability if it be not declared; such things can be treated as beneath notice."

Vivian says "that we should still regard as healthy those with minor mental defects," otherwise the health of a slave could be denied "without limit, for instance, because he is frivolous, superstitious, quick-tempered, obstinate or has some other flaw of mind."

Ulpian ultimately stipulates that "generally, the rule which we appear to observe is that the expression 'defect and disease' applies only to the body ... All in all, if the defect be one of the mind alone, there will be no rescission, unless the vendor has stated that such defect does not exist when, in fact, it does ... if the defect is wholly physical or a combination of the physical and nonphysical, there is scope for rescission."

Paulus says (D 21.1.5): "Just as there is a distinction between those defects which the Greeks describe as a malignancy, and those they categorize as misfortunes, maladies, or weaknesses, so there is a distinction between such [lesser] defects and that form of disease whereby the usability of a slave is reduced."

So we see, the principle is that a slave is diseased for the purposes of the law if he has a bodily flaw which diminishes his usability, which for a slave means his ability to perform certain functions that may be of value to his owner.

Now we come to the point that interests us today. The law finds that eunuchs did not have an incapacitating bodily flaw.

Ulpian says (D 21.1.6.2): "To me it appears the better view that a eunuch is not diseased or defective, but healthy, just like a man who has one testicle, who is also able to procreate."

Therefore Ulpian is saying that the usefulness, or capability, of a eunuch is not destroyed by his being a eunuch: he is able to procreate. How can this be, we ask today? Eunuchs, as we all know, are made unable to procreate by their emasculation!

Paulus (D 21.1.7) clarifies: "If, on the other hand, someone is a eunuch in such a way that he is missing a necessary part of his body, even internally, then he is diseased."

So the reproductive ability of the unqualified form of eunuch is not destroyed because he is not missing any necessary parts of his body. If it were impossible for a eunuch to produce a child because of a bodily characteristic, even a naturally-occurring one like an anatomical birth defect, then that would clearly constitute a disease under this section. But Ulpian says a eunuch is not diseased, but healthy. Apparently, eunuch status must be an issue of the mind, featuring no disabling anatomical defect and therefore having no legally relevant consequences. By the way, I have never seen this section of the Digest cited in any article or book about eunuchs. I found it by looking up spado in a concordance to the Corpus Juris Civilis.

To recap, the distinction for Ulpian and Paulus is between a eunuch whose capability to procreate is destroyed because he is missing necessary parts of his body, and an anatomically whole eunuch for whom procreation may be psychologically difficult, but is biologically unimpeded.

Returning to Ulpian's other statements about the various types of eunuchs, we recall eunuchs by nature, crushed and pounded eunuchs, and castrated eunuchs. Out of these categories, the crushed, pounded and castrated lack necessary parts of their body and are physically incapable of procreation. There is only one category left for the anatomically whole eunuchs: they are the "natural eunuchs."

In D 50.16.128 natural eunuchs are mentioned first before man-made eunuchs, and in D 21.1.6.2 whole eunuchs are mentioned before anatomically deprived eunuchs. Under Roman law, not only is it very important whether a eunuch is mutilated or anatomically whole, but the natural, whole eunuch is the true eunuch.

Surveying the Roman legal provisions about eunuchs, we see that eunuchs could make wills (Code of Justinian 6.22.5, 12.5.4.2-3) and were required to perform guardianship duties (Code of Justinian 5.62.1). Whole eunuchs who were freemen, unlike mutilated eunuchs, were eligible for marriage and for adopting children (D 23.3.39.1, 28.2.6). In fact, anatomically whole eunuchs had all the rights and duties of ordinary men.

But of course, eunuchs were not just ordinary men. Although they had no legally relevant bodily defects, they were nonetheless characterized in the popular mind by a certain physical incapacity. The popular view of eunuchs as defective explains their appearance in the law on defects in slaves, and it is also conveyed by the wording of other Roman laws, if not by their effects.

Gaius's First Commentary, Section 103 included eunuchs among those who "cannot procreate," even while saying they could adopt and arrogate heirs. In his re-editing of the laws, Justinian retained Gaius's provision regarding "eunuchs" to the word, but added a clause that "castrated men" were to be excluded from these rights.

In First Commentary, Section 196, Gaius stated that a eunuch did not attain puberty like a male. On the other hand, in providing (D 1.7.40.1) that a eunuch might obtain an exclusive heir by arrogation, Modestinus flatly affirmed: "he does not have a bodily defect as an impediment" [nec ei corporale vitium impedimento est].

So, what defined the natural eunuch, if he was anatomically intact?

For that, we must consider ancient notions of how reproduction occurred. Ancient doctors had no knowledge of sperm cells and egg cells. The cause of conception was thought to be a dynamic heat found in males, which can transform already existing, nongenerative fluids into a formed, generative state, much like egg whites gel and whiten in soft-boiled eggs. When implanted in the womb, this seed would be nourished and grow into a baby. According to a long-standing tradition dating at least from Aristotle, women's fluids were non-generative because, it was thought, their bodies were too cold and moist to give form to semen (Generation of Animals 1.20, 4.1). This was why women could not produce children without males. To produce a child, semen first had to be poached, as it were, by the heat of the male's orgasm.

Eunuchs were considered like women, that is, cold; therefore their fluid would normally be watery and sterile too (Generation of Animals 2.7). Applying Aristotle's reasoning that the concoction of semen by heat makes it generative, I surmise that eunuchs were deemed unable to procreate insofar as they did not feel the heat of passion during procreative acts with women. It is only if a eunuch can penetrate and reach passionate orgasm with a woman, not an easy thing for him to accomplish, that he can also implant concocted semen into her and procreate like a male -- but then he would also cease to be considered a eunuch, having in this way proven his manhood!

If a second century eunuch could simply be a homosexual who was impotent with women, by the ninth century, the meaning of eunuch had shifted and narrowed. Byzantine emperor Leo VI no longer had to distinguish between types of eunuchs. For example, without noting that he was changing prior l aw, Leo absolutely prohibited eunuchs from marriage (only castrated men had been prohibited by the ancients, not eunuchs in general) (Constitution 98). On the other hand, in spite of the fact that eunuchs were allowed to adopt in all earlier laws, Leo presented his law permitting eunuchs to adopt as a change (Constitutions 26, 27). And it was a change, because by "eunuchs" he meant only mutilated men. He felt that the ancients were wrong to prohibit adoption by men who have suffered "lethal acts." According to Leo, the ancients "stated as a reason for this exclusion that the law should not recognize persons whom Nature does not consider qualified for g eneration as suitable for this function." But Leo corrected the ancients' by then anachronistic view: for it was not Nature but human beings who had injured them, and "We do not think that the law should be as cruel to them as those who have inflicted this outrage on them," ...so "that if they should wish to adopt someone, they shall have to power to do so." The emperor made these provisions about eunuchs without ever mentioning the distinction between types of eunuchs, which was crucial and indispensable to the earlier Roman legislators. This in spite of the fact that the gospel of Matthew also mentions eunuchs who are born so from their mother's womb (mentions them first, I might add) in distinction to man-made and voluntary eunuchs (Matthew 19:12).

Kathryn Ringrose (see my list of recommended articles and books) and others have mentioned the change in meaning of eunuch between the third and twelfth centuries. Now we know what the change consisted of. Before, eunuchs were primarily anatomically whole men, while later only anatomically deprived men were eunuchs.

Under Christianity, that lack of sexual drive towards women that once made natural eunuchs stand out could no longer be the basis for distinguishing types of men. A man who lacked sexual desire for women had options: he could become a celibate priest, or he could remain celibate within marriage if he wanted. In fact it was often admired for couples to refrain from sexual indulgence, although one would hope that the bride had been made aware beforehand of her husband's lack of interest in her. I have often thought that the ideal Christian marriage would be between a gay man and a lesbian: they would truly have sex only for procreation. [Since writing this I have posted an essay that pinpoints the transformation in the meaning of "eunuch" more precisely to the fourth century, as an outcome of conflicts over church doctrine, in which eunuchs were said to play a role, and the establishment of one party to the conflict as the official imperial church.]

Those natural eunuchs who gave into their own sexual desires were branded as Sodomites. In fact, Justinian's New Constitution 141, in exhorting the men of the empire to abandon male-on-male homosexual practices, notes that some men will more obstinately continue in their ungodly habits, and it cautions that the full force of the law will be brought against them.

In the western Christian Visigothic Code of the late seventh century, the eunuch category disappears, and active and passive partners in "male" homosexual acts were subject to castration (Lex Iudicorum 3.5.5-6). So in eastern and western Christianity, natural eunuchs became total celibates, and if they did give into their lusts, they kept it "in the closet," or risked being killed or becoming man-made eunuchs.

Natural Eunuchs in the Talmud: Never Fit, But Possibly Curable

Like the Roman law, the Talmud also distinguished with clear legal consequences between natural and man-made eunuchs. In Yebamoth, Chapter 8 (folio 79b), Rabbi Joshua posed a question about a contradiction he had encountered in the law.

According to the Bible (Deuteronomy 25:5-10), when a man dies childless, it is his brother's responsibility to marry the widow and engender a child in his brother's name. Any man who refuses to give his deceased brother a child in this way is disgraced and must submit to a humiliating public ceremony called "chalitsah" in which the widow removes one of his shoes and spits in his face. From then on the reluctant brother's family is known as "the house of him who had his shoe loosed" [beit chalu' hanna'al].

The legal problem puzzling Rabbi Joshua was this: "I have heard that a eunuch submits to chalitsah and that chalitsah is arranged for his wife, and also that a eunuch does not submit to chalitsah and that no chalitsah is arranged for his wife, and I am unable to explain this." The text continues with two conflicting explanations by the Tannaim.

Rabbi Akibah said: "I will explain it: A man-made eunuch submits to chalitsah and chalitsah is also arranged for his wife, because there was a time when he was in a state of fitness. A eunuch-by-nature neither submits to chalitsah nor is chalitsah arranged for his wife, since there never was a time when he was fit."

The opposing view was given by Rabbi Eliezer, who said: "Not so, but a eunuch-by-nature submits to chalitsah and chalitsah is also arranged for his wife, because he may be cured. A man-made eunuch neither submits to chalitsah nor is chalitsah arranged for his wife, since he cannot be cured."

The text goes on: "Rabbi Joshua ben Bathyra testified concerning Ben Megosath, who was a man-made eunuch living in Jerusalem, that his wife was allowed to be married by the levir, thus confirming the opinion of Rabbi Akibah. The eunuch neither submits to chalitsah nor contracts the levirate marriage ..."

In the Talmud, as in Roman law, the distinction between natural eunuchs and man-made eunuchs was substantive, although it is not easy to determine whether the natural or the man-made eunuch was in a better position. Both types of eunuchs seemed to be exempted from the requirement to perform the levirate marriage or submit to chalitsah, so there was no advantage here for the natural eunuch. If anything, the man-made eunuch seemed entitled to greater privileges than the natural eunuch, since the man-made eunuch was entitled have a child engendered in his name by his brother if he died childless. It is likely that the natural eunuch should not have married in the first place, as he was never in a state of fitness. [On later review, given that the unqualified "eunuch" is said to be exempt from levirate marriage, while the man-made eunuch is not exempt, it appears to me even more strongly that the unqualified "eunuch" is the eunuch-by-nature.] But what is most interesting is that Rabbi Eliezer believed the natural eunuch might be cured. Here I would merely note past controversies in the United States about alleged cures for homosexuality.

There is a potential ambiguity in the use of the English phrase "by nature" in this context. "By nature" can mean two different things: "by constitution or essence," or "because of the actions of nature or random fate." In the Talmud, the term contrasted against the man-made eunuch [saris adam] is literally "eunuch of the sun" [saris chammah], with the implication being that the "eunuch of the sun" has been that way since the sun first shone upon him. That is the interpretation given by the Soncino edition of Yebamoth.

For the Amoraim rabbis who composed the Gemara, or commentative, sections of Yebamoth, the identification of a "eunuch of the sun" presented a problem. It is interesting that in their musings as to possible means of identifying a "eunuch of the sun," none of the rabbis suggested looking for defects in the reproductive organs. Instead, they looked for absence of pubic hair at the age of twenty (expressly one of the signs of puberty in Roman law), absence of froth in urine, watery semen, urine which does not ferment, absence of steam from the body after a winter bath, and finally a voice which is so abnormal that one cannot distinguish whether it is that of a man or a woman. Many of these characteristics, if not all, seem to reflect an Aristotelian coolness in the eunuch's body.

This interesting hypothesis is complicated by what the rabbis said was the cause of natural eunuchism, namely that during pregnancy the natural eunuch's mother drank strong beer and baked bread at noon. In other words, it was an excess of heat during gestation that caused the eunuchism. Perhaps this also explains the term "eunuch of the sun." Maybe the eunuch is like a burned-out light bulb, which never gets hot again. In any case, if the "eunuch of the sun" were a eunuch in our modern sense of the term, perhaps because of an anatomical birth defect, it would not be necessary to resort to such obscure tests in order to identify him.
 

A Third Gender

Discussions of natural eunuchs are not only found in Roman and Jewish law, but also in Greek and Latin literature.

Aristotle warned that some boys indulging in receptive anal intercourse would grow to like it and might become impubescent from birth and nonprocreative due to an imperfection of the reproductive organs (History of Animals 7.1.5-6).

Pliny the Elder assigned eunuchs and hermaphrodites to the "third gender called half-male," saying this category also included men whose testicles were destroyed, either by injury or by natural causes (Natural History 11.49). Thus Pliny distinguished between eunuchs and men whose testicles were destroyed even while categorizing them together, along with hermaphrodites, as third-gendered half-males.

In Physiognomy 2.3, Adamantios said that: "The characteristics of natural eunuchs are worse than those of other men. So most of them are savage, deceitful evildoers, each one more so than the last. Of the cut eunuchs, though, some characteristics change over at the same time as the cut, but most of their congenital nature remains."

Notice that Adamantios described natural eunuchs in distinctly psychological terms, having certain personality characteristics. These characteristics were not observable for the most part in cut eunuchs, who retained most of their congenital nature, i.e. as males. I translate this passage differently than Kathryn Ringrose did in her essay. She did not make a distinction here between natural and cut eunuchs, but I was led by Ernst Maass in his 1925 essay "Eunouchos und Verwandtes," who saw the "same distinction" in Adamantios as in Ulpian's statement about natural and man-made eunuchs.

Notice too Adamantios's viciously disdainful attitude toward natural eunuchs. Is it not reminiscent of negative attitudes toward passive homosexuals as noted frequently in modern scholarship about homosexuality in the classical world?

In the same vein, see the statement given by Lucian's character Diocles in The Eunuch, that a eunuch is "worse off than a castrated priest of Cybele [bakêlos], for the latter had at least known manhood once, but the eunuch had been "cut off" from the very first and was an ambiguous sort of creature like a crow, which cannot be reckoned with either doves or ravens" (Eunuch 8). Likewise, Diocles's explanation that "a eunuch is neither male nor female, but something composite, hybrid, and monstrous, alien to human nature" (Eunuch 6).

In Lucian's dialogue, a self-proclaimed eunuch is competing against Diocles, who is a male, in a public contest for an endowed chair in philosophy, and the male has argued that no eunuch should hold such a position of dignity and honor. The eunuch argues in rebuttal that even women can be philosophers, so a eunuch certainly can be (Eunuch 7). Nonetheless, the dispute continues. Toward the end of the dialogue, when a bystander claims to know that this eunuch is not really a eunuch, but merely assumed this identity falsely to escape a prior adultery charge, Lucian exploits the tension existing in his time between the definitions of mutilated and anatomically whole eunuchs.

Lucian several times indicates that impotence, specifically with women, is a defining feature of certain eunuchs. It is true that half of the spectators wanted to lift the supposed eunuch's cloak and inspect him, "as they do with slaves purchased with silver" (Eunuch 12). This corresponds to the man-made eunuch. But others had the "even more ridiculous" idea to fetch some women from a brothel and put him in a room with them and order him to have sex with them. The oldest and most trustworthy judge should stand by to observe whether he was able to perform. This corresponds to the anatomically whole eunuch, who is impotent because he does not feel the heat of passion for women. The tests are never performed, but the reputed eunuch, who now wants to be thought of as a male in order to secure the academic position, sets to having sex with as many women as he can to prove he is not a eunuch. And the narrator of the story prays at the end that his own young son will have the genital skills required to be a philosopher (Eunuch 13).
 

Unwilling, But Not Unable

Approximately contemporaneous with Adamantios, Lucian, the Roman legislators and Rabbis Akibah and Eliezer, the Christian theologian Clement of Alexandria provided a complementary perspective about the born eunuch, by way of quoting the Basilidian Christians with respect to the gospel verse about eunuchs (Stromata 3.1.1):
 

Some men by birth have a nature to turn away from women, and those who are subject to this natural constitution do well not to marry. These, they say, are the eunuchs by birth.

The Basilidians included those who are unfortunately castrated under eunuchs by compulsion, in opposition to eunuchs by birth.

In another context (Pedagogue 3.4.26), Clement himself warned Christian householders against entrusting their wives to eunuchs, because "even these are panders: they will neglect their duties and serve pleasure without suspicion, because of the common belief that they are not able to enjoy love. But the true eunuch is not the one not able, but the one not desiring to make love." Note that as a Christian who despised all manner of effeminacy in men, Clement was not even considering homosexual sex here. When Clement said true eunuchs did not desire to make love, he obviously had in mind sex with women.

In the late fourth century, Gregory of Nazianzos advises natural eunuchs not to be proud of their abstinence, because a natural virtue is not praiseworthy like one gained by an exertion of will (Oration 37.16-17). After all, what praise is due to fire for burning, to snow for being cold, or to rain for falling down? "Since your abstention is not laudable," Gregory says, "I ask something else of eunuchs. Do not commit prostitution in divine matters. Having yoked yourself to Christ, do not dishonor Christ." He is addressing the ancient, persistent and widespread practice of sacred prostitution and sexual dramatization by homosexuals dating back at least to the Ishtar cults of archaic Babylon.
 

Conclusion

To sum up, there is an important and, in modern times, lamentably neglected distinction in the early centuries of our era between natural and artificial eunuchs which is crucial to understanding laws in a range of cultural contexts. I have tried to show, using the Roman law, that when the term eunuch was used in isolation, it normally meant natural eunuchs, while castrated eunuchs were a divergent subgroup.

Much more evidence could be brought forth to negate the false assumption that eunuch status implied castration, and to demonstrate that a lack of sexual drive with women as well as a certain effeminacy of body and disposition, and even a lust for homosexual sex, were stereotypical characteristics of eunuchs. Conversely, no evidence exists, indeed none can exist, to say that most eunuchs were mutilated.

In very early references to castration, such as the Iliad or Deuteronomy 23:1, the word eunuch is not used, and where eunuchs are mentioned, cutting is not, such as in the Code of Hammurabi (§§ 187, 192-193), the Middle Assyrian Laws (§ 20), the Kama Sutra (2.9, 6.1), the Laws of Manu (9.201-203), and throughout the Bible (45 Old Testament verses, 2 New Testament chapters).

In one of the earliest Greek uses of the word eunuch, Hippocrates describes a northern people who suffer from a high incidence of impotence not related to genital deformation as "the most eunuchoid of all nations" (Airs, Waters, Places 22).

Although Xenophon compares eunuchs to castrated animals, he still goes no further than to say that eunuchs are deprived of the respective desire [steriskomenoi tautns tns epithumias] (Cyropaedia 7.58-65).

In the earliest clear application of the word eunuch to refer to castrated men, by Herodotus, that author always uses another more concrete word to specify castrated males, namely ektomias (Histories 3.48-49, 3.92), while not relying on the general designation eunouchos alone to convey his meaning (Histories 6.32, 8.105).

This word ektomias survives even as late as Dio Cassius specifically to designate castrati in Greek as opposed to mere eunuchs (Roman History 67.2.3).

Several testimonies to eunuchs' surprising procreative ability exist throughout premodern history around the Mediterranean, in Mesopotamia, and in India. And even in China, where my limited access to source material has not turned up any eunuch fathers, some eunuchs felt their condition could be cured by ingesting certain gory substances.

Of course, some kind of interruption of procreative power is one of the defining characteristics of eunuchs. What I am saying is that the interruption of procreative power which is characteristic of eunuchs is equivalent to that which is characteristic of exclusively "homosexual" men. Namely, their impotence with women is sufficient to define the group, but it is not an absolute impotence. They have no drive toward procreative sex, but they are sometimes capable of doing it under exceptional circumstances.

I realize that I am making a very controversial assertion, and that I have an uphill battle in promoting it. I hope that I have at least succeeded in challenging an unquestioned, comfortable assumption, namely that, after the long and enduring suppression of psychological gender nonconformity by the medieval Christian Church, we can trust the dictionary to tell us what a eunuch was in the ancient Mediterranean world. It is only because of the vociferous gay liberation movement of this century that it has become possible for gay men to be constructed as a natural group, and thus to be identified with another analogous group last constructed as natural over a thousand years ago.