CASE 8: The Ability to Procreate
D. 23.3.39.1 (Ulpianus libro trigesimo tertio ad edictum)
Si spadoni mulier nupserit, distinguendum arbitror, castratus fuerit necne, ut in castrato dicas dotem non esse: in eo qui castratus non est, quia est matrimonium, et dos et dotis actio est.
(Ulpian in the thirty-third book on the Edict)
If a woman marries a eunuch (spado), I think a distinction should be drawn as to whether or not he was castrated. In the case of a castrated man, you should hold that there is no dowry; (but) in the case of someone who was not castrated, since there is a marriage, there is both a dowry and an action for the dowry.
1. Eunuchs. In Case 6, Gaius describes eunuchs (spadones) as those “who cannot undergo puberty”; the age of majority for such men is set at the normal age of male puberty, probably meaning that they could marry at age fourteen. A eunuch lacks testicles either naturally or because of castration (Ulpian, D. 21.1.6.2, 50.16.128). What is odd about the present Case is the distinction Ulpian draws between eunuchs who had been castrated and those who had not been. As Ulpian holds, a castrated male lacks the capacity to marry, and so a dowry is impossible since there can be no valid marriage (see Part B.2 below); but a male who is otherwise physically unable to sire children can both marry and receive a dowry from his wife. What is the point of this distinction? In Case 184, Ulpian uses the same distinction in ruling that a castrated male cannot institute a posthumous child as an heir, although otherwise infertile males can; see also Justinian, Inst.
1.11.9, cited in the Discussion of Case 150 on adoption. Does this suggest that Ulpian's primary objection was moral? Does Ulpian presume that the eunuch's castration was deliberate, not accidental? And if deliberate, who bears the blame? What if, for instance, a slave was castrated by his owner and subsequently freed; why should the freedman have no right to marry?2. Procreation. In the Roman world, as in many other past and present societies, a strong tradition linked marriage to the procreation of children; for instance, it was commonly said (as in Case 16) that marriages were concluded “in order to beget children” (liberorum procreandorum causa); and this tradition was considerably reinforced by imperial legislation devised to encourage childbirth (see Case 12). Nonetheless, as this Case shows, inability to beget children was not in itself necessarily a bar to marriage. The elderly can also enter valid marriages even though they are no longer able to procreate (Case 12). See also Case 184.
3. Marriage and Procreation. Does the legal capacity of the impotent or infertile to marry undermine the rationale behind allowing men and women to marry as soon as they reach puberty (see Case 7)?
4. Same-Sex Marriage. No classical legal source expressly prohibits marriage between two persons of the same sex, but neither does any source indicate that same-sex marriage could be legitimate. Modestinus (D. 23.2.1), quoted more fully in the introduction to this chapter, describes marriage as “the union of a male and a female.” Does this description rule out same-sex marriage by definition? Are Roman policies linking marriage and procreation enough to make same-sex marriage impossible?