CONSTITUTION XXVI

EUNUCHS CAN ADOPT.

The Same Emperor to Stylianus, Most Illustrious Master of the Offices.

Marriage is the greatest and most excellent gift which has been bestowed by God upon man, for it not only repairs the losses which death inflicts upon nature, and insures the perpetuation of the human race by not permitting it to perish, but also, by means of the procreation of children, it confers inestimable benefits upon life. For what, indeed, is more consoling to man than the enjoyment by which he begets children; and what is more advantageous to the affairs of humanity, especially during our old age, for We see that through the ministry of our children, the annoyance of declining years is diminished.

But as all those who marry are not fortunate enough to have issue, the law has provided that they should owe to its beneficence what was denied them by Nature. Still, this was done in such a general way as to bestow its benefits upon everyone; for in granting certain persons the privilege of obtaining children without the aid of marriage, it has excluded many others from its enjoyment. It would, however, have been proper for everyone to participate in the advantages of laws intended to assuage the grief of parents who have been bereft of their children, and to come to the relief of those whose marriages have not given them any. But this was not the case, and it excludes from this privilege those who have suffered lethal injury, although they should only inspire compassion. It states as a reason for this exclusion that the law should not recognize persons whom Nature does not consider qualified for generation as suitable for this function. Still, the injury to their procreative power should be attributed to man, and not to Nature. Hence, as We do not think that the law should be as cruel as those who have inflicted this outrage upon them, it is hereby decreed that if they should wish to adopt anyone, they shall have the power to do so; but this privilege should only be exercised where its necessity is perfectly clear.

The adoption of children granted by law is above all necessary to eunuchs, and there is the greatest reason for this, and for them to become fathers and enjoy the services of children, as it would be exceedingly inhuman to deprive them of every means of having any, because they are incapacitated from procreation. For as a person who is dumb can only express himself by signs, and he who has not power to speak can only convey his meaning by writing, so those who have no children, because they have been deprived of their generative organs, should not be forbidden to obtain them in some other way.
 
 

CONSTITUTION XXVII.

ALL PERSONS ARE EQUALLY PERMITTED TO ADOPT.

The Same Emperor to the Same Stylianus.

As it is proper for those who exert their industry in the invention of things beneficial to human life to enable all men to enjoy them, instead of restricting their use to certain persons, thereby depriving others of their advantages, it is much more desirable that the benefit of the laws should be shared by everyone; for just as the subjects of a sovereign should profit by all his virtues, so, likewise, We should enjoy the common benefits of the law. But what is the object of this introduction? When I remember that the legislator, with a view to diminish the sorrows of those who have no children by conferring upon them the right of adoption, and in this way enabling them to acquire the appearance of a benefit that Nature refuses, has only bestowed this privilege upon fathers and mothers who have lost their offspring, and, on the other hand, has denied it to eunuchs and to sterile women whom he did not deem worthy, I cannot understand how he could establish rules so unworthy of his consideration. For instead of increasing the misfortune of eunuchs, who cannot become fathers, he should rather have permitted them to indemnify themselves for this privation, just as he permits those who have lost the members required for natural actions (such as the hands, the feet, or any other part of the body) to use every possible means to supply this defect. On the other hand, it is no more reasonable to deny to non-mothers the right of adoption. For why should this privilege be conceded to a mother who has lost her children, and a woman who has none to be excluded from it, to live her entire life without any? For if the chief advantage of having children is that they may support their parents in their old age, it is none the less just to grant them the right of obtaining them.

Adoption affords persons who are poor the means of relieving their misery by means of the assistance which they can expect from their children; and it will be not less advantageous to those who are wealthy. An adopted child devoted to the service of his adoptive mother will take the place of her son, just as she will take the place of his mother; he will manage her property; he will share her burdens, and procure for her a more peaceful and quiet existence.

Therefore, annulling the laws which deny the right of adoption to eunuchs and to women who have not now, nor ever have had children, We grant it it equally to both, not only on account of the benefits resulting therefrom, but also because it contributes to the preservation of virginity. For as many women prefer virginity to marriage, and nevertheless frequently have a desire for children, they should not be tempted to sacrifice their virginity, when they can see that they can obtain them without having recourse to marriage. Nor is it true that a woman should not be permitted to adopt a child for the reason that she cannot have it under her control; for if this should be admitted, the privilege must be refused not only to those who have never had issue, but also to such as have been mothers. The law provides in a general way that a women cannot have children under her control; but this rule has reference to those children who leave their mother because they prefer to live alone, and is not applicable to such as freely acknowledge her power, and consider it their duty always to obey her. Hence the law does not prohibit this obedience which is a species of voluntary servitude, although it is a rare occurrence, and a woman is not deprived of parental authority, except where her commands are not obeyed. If this is the case, why is it that many mothers, who are widows, keep their children with them, retain them under their control for their entire lives, die in their arms, and when dying, give them their blessing, and leave them their property?

We also decree for the general welfare of Our subjects that hereafter they shall not only be permitted to adopt by authority of the Emperor (as was provided by the ancient laws), but also by that of any official who is entrusted with the government of the district.
 
 
 

CONSTITUTION LX.

IN WHAT WAY PERSONS WHO CASTRATE OTHERS SHOULD BE PUNISHED.

The Same Emperor to the Same Stylianus.

Man is deprived of the faculty of procreation, which was conferred upon him by God, with the same audacity as if the act was not subject to divine retribution, when, indeed, it should be severely punished; and although the ancient legislators were careful to suitably provide for this offence by law, and desired that the State should be free from its commission, I do not know why their statutes were not obeyed; and, just as if some benefit could be obtained from this mutilation of nature, men were constantly deprived of their generative organs, and transformed into entirely different beings than when they came from the hands of their Creator.

Therefore, We, not desiring to allow a crime of this kind to go unpunished, do hereby prescribe a penalty by which We intend, if possible, to suppress the boldness of those who deform their fellow creatures, without even alleging the excuse of religious custom.

The laws of former legislators prescribed the penalty of retaliation, and provided that persons who mutilated others in this way should themselves be placed in the same condition, a provision which seems to Me not to be inequitable, although it is, indeed, far from decorous; and it does not seem proper for anyone who ventures to attempt to change the work of God to be punished by imitating what he has done, and mutilating him in the same way. Still, as I have just stated, such a penalty is not inappropriate, so far as the crime itself is concerned. A different punishment was established for those who were audacious enough to commit this wicked act, for their property was confiscated, they were banished for life, and when the person who sustained the injury was a slave, he obtained his freedom. These were the ancient laws on this subject. We, however, deciding with reference to this same matter, do hereby forbid the Lex Talionis to be enforced against such as are guilty of the crime of castration; and We wish them to be liable to the other penalties prescribed for this offence, although it is Our intention to be indulgent to them. Hence We decree that if anyone summons a practitioner of this detestable calling, he shall, in the first place, if he is in the Imperial service, have his name stricken from the list of those employed therein, and then, after having paid a fine of ten pounds of gold into the Treasury, he shall be exiled for ten years. The one, however, who actually commits the crime, shall be scourged with rods, stripped of all his property, and banished for the same time. When the person upon whom the injury was inflicted is of servile condition, be shall be free for the rest of his life; but if he is a freeman, he shall be considered to have voluntarily submitted to the operation, and shall be responsible for what he has suffered. Moreover, if he who was castrated was compelled to undergo the mutilation for the benefit of his health, as is often the case, he shall not be held to have done anything reprehensible either in Our eyes or in those of the law; for, under such circumstances, the object is not to cause a deformity of nature, but is an attempt to correct it.
 
 

CONSTITUTION XCVIII.

CONCERNING THE PENALTY TO BE INFLICTED UPON EUNUCHS IF THEY SHOULD MARRY.

The Same Emperor to the Same Stylianus.

The object of the laws is the establishment and maintenance of good government, as well as at times to offer assistance to Nature when it suffers injury. Therefore, it now becomes advisable for a law to be enacted on the subject as to whether eunuchs can marry. But before We discuss this point, a careful examination should be made, and it be ascertained whether an union of this kind can properly be called a marriage; and also whether the various matrimonial ceremonies (that is to say the prayers, the communion, the carnal pleasure, and the other matters which form part of the matrimonial condition) should take place in this instance. The priest, in imitation of the Creator, pronounces the sacred words of benediction when he unites persons of different sexes for the purpose of perpetuating the human race. The pleasure and joy of the human heart is manifested in the nuptial embraces, and are increased with the hope of offspring. The parents of those who are married looking forward to grandchildren, and the newly made husband and wife entertaining the hope of successors, are overwhelmed with the greatest delight. Under these circumstances, however, nothing of the kind occurs, for how can they experience any satisfaction, and what sacrifice can render their union permanent? For as it is devoid of all pleasure and is not capable of consecration, communion or benediction, how can the name of marriage be applicable to it? Why should it not be considered a crime, and therefore punishable by law? Thus it may succinctly be stated that such a condition can not, even in the first place, be designated as a matrimonial one, and further discussion renders its indignity still more apparent. When the Creator of all things united the male and female, He did so for the purpose of increasing the numbers of the human race. Moreover, the object of Nature -- which as His slave, observes the precepts promulgated by Him as far as it is able to do so -- is that persons are married in order to have offspring, and as far as God permits this to be done, it makes use of His agency for that purpose. If, then, the marriage of eunuchs accomplishes the ends of the Author of Nature and of Nature itself, what We have thought should be prohibited ought not to be forbidden; but if, on the contrary, and this is certain, it offers no means of accomplishing the will of God (and is not acknowledged by Nature), why should We not absolutely prohibit it?

If some contentious person should state that if eunuchs are excluded from marriage on account of their impotence, a large number of other persons should also be excluded for the reason that all those who marry are not capable of generation, We would immediately reply that whenever the latter have no children, they did not marry in order to be childless; but, on the other hand, there is no doubt that they were impelled by the desire of having progeny, and their hopes have not been realized. But the same thing cannot be said with reference to eunuchs, who, being well aware of their incapacity, marry with the certainty of not being able to have issue, hence are, to a certain extent, plotting against Nature. And, indeed, in cases of this kind, both husband and wife are worthy of aversion; the wife, for having selected a man who is impotent when she could have obtained one who was virile, if she wished to be married; and the husband, for the reason that his weakness rendered the blessing of God of no effect.

Moreover, where anyone devastates and leaves uncultivated a tract of land on which another could reap a harvest, should We not entertain a feeling of detestation for such a malevolent person, and should We not suppress an abuse of this kind if it can be done? For why should We permit him to keep land unproductive, and render it of no use, when, with proper tillage, it would prove fertile, just as if he had committed nothing improper? And why, indeed, should anyone object? But it may be remarked that St. Paul thought that it is wiser to marry than to burn; and hence, taking into consideration the tortures endured under such circumstances, marriage should not be forbidden. You, however, who praise St. Paul, listen to the words he utters. When he speaks or marriage in the place referred to, he has in mind sexual intercourse with a wife. If, then, union with a woman is worthy of the blessing to which persons who enter the matrimonial condition are entitled, call it marriage; but if it does not deserve even the slightest benediction (for how can an act contrary to the law of God and which thwarts the Intention of Nature be blessed or consecrated?), who do you invoke the authority of St. Paul for the purpose of supporting an unfruitful and extraordinary marriage of this description?

So far as those who deprive themselves of the power of procreation are concerned, for the purpose (which God condemns, and is a species of rebellion against him) of being no longer able to show themselves to be men, but hereafter not to be susceptible of sensual pleasure and to become faithful guardians upon whom no suspicion can fall (which, indeed, the sound of their voices seems to disclose), why should not this arouse indignation against them not only because it is unnatural, but also for the reason that they are hostile to persons who desire to render them useful, as it seemed to them, even though it was maliciously done; and, finally, because in their new and strange sex they did not accomplish the object of the one to which they formerly belonged, nor of the latter which they themselves adopted?

Hence We decree that, if an eunuch is convicted of contracting a marriage, he will be liable to the penalty prescribed for rape, and any priest who dares to perform a ceremony of this kind by a profane sacrifice shall be divested of his sacerdotal dignity.