Definition
In historical legal usage, a person born with the reproductive or genital organs of both sexes, or with organs so ambiguous as to make sex classification uncertain. The term appears primarily in historical legal sources concerned with status classification: determining whether an individual was legally male or female for purposes of inheritance, property rights, capacity to contract, guardianship, and marriage. The governing legal maxim, preserved in Coke and repeated through successive dictionary editions, was: Hermaphroditus tam masculo quam feminae comparatur, secundum praevalentiam sexus incalescentis — an hermaphrodite is to be compared to male or female according to the predominance of the prevailing sex.
The term carries no independent legal definition in modern American or English law and has been superseded in medical, scientific, and legal contexts by "intersex" and related terminology.
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Common Language
Modern common usage (Wiktionary): Having ambiguous sexual organs or characteristics; having both ovaries and testes or both stamens and pistils; combining two opposing qualities.
Historical common usage (Webster's 1913): An individual uniting in itself the two sexes; an animal or plant having the parts of generation of both sexes, as when a flower contains both stamens and pistil. In some cases reproduction may take place without union of distinct individuals.
The legal meaning in historical sources was narrower and more consequential than the biological one. Where the common definition is descriptive and applies equally to animals and plants, the legal definition was a classification problem with direct consequences for rights and legal status. The biological fact of anatomical duality or ambiguity triggered a legal question — which sex predominates? — that then determined which body of law applied to the individual. That determination was not self-executing; it required judicial or medical assessment.
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Common Confusion
Modern researchers may import contemporary clinical or political frameworks onto historical legal sources and misread what those sources were doing. Historical legal dictionaries were not making medical claims about the nature of sex variation; they were providing a legal rule for resolving classification problems that the law could not leave open. The maxim about "predominance" was a decision rule, not a biological theory. Conversely, researchers approaching modern intersex jurisprudence through historical legal dictionaries will find the older terminology clinically obsolete and, in many jurisdictions, legally retired. The two bodies of material address related but distinct questions and should not be read as continuous.
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Why It Matters in Research
This term is a structural pattern 3 entry — historical evolution — and its research value lies almost entirely in what it reveals about how legal systems have historically managed sex as a legal category.
Researchers working in legal history, gender law, or the history of medical jurisprudence should treat historical dictionary entries under this term as evidence of a classification system, not as authoritative medical or legal doctrine. The maxim secundum praevalentiam was derived from Bracton and carried forward through Coke's Institutes into English and American legal dictionaries without substantial modification for several centuries. Its persistence tells us something important: the common law did not recognize a third legal sex and resolved apparent exceptions through a default rule of predominance. This rule is cited in Black's 2nd Ed. with reference to Coke on Littleton (Co. Litt. 8), which is a genuine primary source and can be verified.
The transition from this framework to modern intersex law is not traceable through legal dictionaries alone. Researchers will need to move into medical jurisprudence treatises, administrative law (particularly documents governing birth certificate amendment), and constitutional litigation over sex classification to track how the law's treatment of sex variation actually changed during the twentieth century.
In the Law Mind corpus, this term connects the historical common law of status and capacity to modern debates over legal sex classification. Researchers tracing the history of gender recognition law, the legal definition of sex for statutory purposes, or the jurisprudence of bodily autonomy will find this entry a useful upstream node — but the downstream material requires moving to intersex, sex reassignment, and gender identity entries and the encyclopedia articles associated with them.
A trap in historical sources: Black's 1st Ed. contains a typographical or editorial corruption in its entry ("An animal or human being so malformed as to have the law. A surety, (warrantus.) organs of generation of both sexes"). This text is garbled and should not be quoted as a definition. The 2nd Ed. entry is the reliable historical dictionary source for this term.
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Historical Dictionary Support
Burrill's Law Dictionary and Black's Law Dictionary (2nd Ed.) are in substantial agreement. Both define the term as a person of doubtful or double sex and both reproduce the Latin maxim establishing predominance as the legal test. Burrill uses "doubtful sex" as his organizing phrase; Black's 2nd Ed. offers more clinical specificity ("really or apparently, and in more or less developed form") that reflects late nineteenth-century engagement with medical jurisprudence as a distinct field.
Black's 1st Ed. is too corrupted to be usable as a primary definition source, though its inclusion of the term confirms that the concept was present in American legal vocabulary from the dictionary's earliest edition.
None of the historical sources address what "predominance" means procedurally — who determines it, by what method, or what happens when no predominance can be established. This silence is itself significant for researchers: the common law rule was a directive without an enforcement mechanism, and historical legal dictionaries did not resolve the gap.
The maxim traceable to Co. Litt. 8 is the most durable element across all sources and the appropriate starting point for primary source research into the historical legal treatment of sex ambiguity.
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Jurisdictional Note
No modern Anglo-American jurisdiction uses this term as an operative legal classification. In contemporary law, intersex status, where legally recognized at all, is addressed through administrative regulations governing identity documents, anti-discrimination statutes, and constitutional litigation. Jurisdictional variation in modern intersex law is substantial and cannot be reliably sourced to historical dictionary definitions of hermaphrodite.
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