Two principles struggled for recognition in Babylonian family life. One
was the patriarchal, the other the matriarchal. Perhaps they were due to a
duality of race; perhaps they were merely a result of the circumstances
under which the Babylonian lived. At times it would seem as if we must
pronounce the Babylonian family to have been patriarchal in its character;
at other times the wife and mother occupies an independent and even
commanding position. It may be noted that whereas in the old Sumerian
hymns the woman takes precedence of the man, the Semitic translation
invariably reverses the order: the one has “female and male,” the other
“male and female.” Elsewhere in the Semitic world, where the conceptions
of Babylonian culture had not penetrated, the woman was subordinate to the
man, his helpmate and not his equal.
In this respect nothing can be more significant than the changes undergone
by the name and worship of the goddess Istar, when they were carried from
Babylonia to the Semites of the West. In Babylonia she was a goddess of
independent power, who stood on a footing of equality with the gods. But
in Southern Arabia and Moab she became a male divinity, and in the latter
country was even identified with the supreme god Chemosh. In Canaan she
passed into the feminine Ashtoreth, and at last was merged in the crowd of
goddesses who were but the feminine reflections of the male. A goddess
whose attributes did not differ from those of a god was foreign to the
religious ideas of the purely Semitic mind.
It was otherwise in Babylonia. There the goddess was the equal of the god,
while on earth the women claimed rights which placed them almost on a
level with the men. One of the early sovereigns of the country was a
queen, Ellat-Gula, and even in Assyria the bas-reliefs of Assur-bani-pal
represent the queen as sitting and feasting by the side of her husband. A
list of trees brought to Akkad in the reign of Sargon (3800 B.C.) speaks
of them as having been conveyed by the servants of the queen, and if Dr.
Scheil is right in his translation of the Sumerian words, the kings of Ur,
before the days of Abraham, made their daughters high-priestesses of
foreign lands.
Up to the last the Babylonian woman, in her own name, could enter into
partnership with others, could buy and sell, lend and borrow, could appear
as plaintiff and witness in a court of law, could even bequeath her
property as she wished. In a deed, dated in the second year of Nabonidos
(555 B.C.), a father transfers all his property to his daughter, reserving
to himself only the use of it during the rest of his life. In return the
daughter agrees to provide him with the necessaries of life, food and
drink, oil and clothing. A few years later, in the second year of Cyrus, a
woman of the name of Nubtâ, or “Bee,” hired out a slave for five years in
order that he might be taught the art of weaving. She stipulated to give
him one _qa_, or about a quart and a half of food, each day, and to
provide him with clothing while he was learning the trade. It is evident
that Nubtâ owned looms and traded in woven fabrics on her own account.
Nubtâ was the daughter of Ben-Hadad-amara, a Syrian _settled_ in Babylonia
who had been adopted by another Syrian of the name of Ben-Hadad-nathan.
After the latter’s death his widow brought an action before the royal
judges to recover her husband’s property. She stated that after their
marriage she and Ben-Hadad-nathan had traded together, and that a house
had been purchased with a portion of her dowry. This house, the value of
which was as much as 110 manehs, 50 shekels, or £62 10s., had been
assigned to her in perpetuity. The half-brother Aqabi-il (Jacob-el),
however, now claimed everything, including the house. The case was tried
at Babylon before six judges in the ninth year of Nabonidos, and they
decided in favor of the plaintiff.
One of the documents that have come down to us from the age of Abraham
records the gift of a female slave by a husband to his wife. The slave and
her children, it was laid down, were to remain the property of the wife in
case either of divorce or of the husband’s death. The right of the woman
to hold private property of her own, over which the male heirs had no
control, was thus early recognized by the law. In later times it is
referred to in numberless contracts. In the reign of Nebokin-abla, for
instance, in the eleventh century B.C., we find a field bequeathed first
of all to a daughter and then to a sister; in the beginning of the reign
of Nabonidos we hear of a brother and sister, the children of a
naturalized Egyptian, inheriting their father’s property together; and in
the fourth year of Cyrus his son Cambyses sued for the payment of a loan
which he had made to a Babylonian on the security of some house-property,
and which was accordingly refunded by the debtor’s wife. Other deeds
relate to the borrowing of money by a husband and his wife in partnership,
to a wife selling a slave for a maneh of silver on her own account, to a
woman bringing an action before six judges at the beginning of the reign
of Nabonidos to recover the price of a slave she had sold, and to another
woman who two years previously was the witness to the sale of a house.
Further proofs are not needed of the independent position of the woman,
whether married or single, and of her equality with the man in the eyes of
the law.
It would seem that she was on a level with him also in the eyes of
religion. There were priestesses in Babylonia as well as priests. The
oracles of Istar at Arbela were worked by inspired prophetesses, who thus
resembled Deborah and Huldah and the other prophetesses of Israel. When
Esar-haddon inquired of the will of heaven, it was from the prophetesses
of Istar that he received encouragement and a promise of victory. From the
earliest period, moreover, there were women who lived like nuns, unmarried
and devoted to the service of the Sun-god. The office was held in high
honor, one of the daughters of King Ammi-Zadok, the fourth successor of
Khammurabi or Amraphel, being a devotee of the god. In the reign of the
same king we find two of these devotees and their nieces letting for a
year nine feddans or acres of ground in the district in which the
“Amorites” of Canaan were settled. This was done “by command of the
high-priest Sar-ilu,” a name in which Mr. Pinches suggests that we should
see that of Israel. The women were to receive a shekel of silver, or three
shillings, “the produce of the field,” by way of rent, while six measures
of corn on every ten feddans were to be set apart for the Sun-god himself.
In the previous reign a house had been let at an annual rent of two
shekels which was the joint property of a devotee of the Sun-god Samas and
her brother. It is clear that consecration to the service of the deity did
not prevent the “nun” from owning and enjoying property.
Like Samas, the Sun-god, Istar was also served by women, who, however, do
not seem to have led the same reputable lives. They were divided into two
classes, one of which was called the “Wailers,” from the lamentations with
which each year they mourned the death of the god Tammuz, the stricken
favorite of Istar. The Chaldean Epic of Gilgames speaks of the “troops” of
them that were gathered together in the city of Erech. Here Istar had her
temple along with her father, Anu, the Sky-god, and here accordingly her
devotees were assembled. Like the goddess they served, it would appear
that they were never married in lawful wedlock. But they nevertheless
formed a corporation, like the corporations of the priests.
Babylonian law and custom prevailed also in Assyria. So far as can be
gathered from the contracts that have come down to us, the Assyrian women
enjoyed almost as many privileges as their sisters in Babylonia. Thus, in
668 B.C., we find a lady, Tsarpî by name, buying the sister of a man whose
slave she was, for reasons unknown to us, and paying half a maneh of
silver (£4 10s.) for the girl. Tsarpî was a “prefectess,” like another
lady who is called “the prefectess of Nineveh,” and who, in 683 B.C.,
purchased seventeen slaves and a garden. It is plain from this that women
could hold civil offices and even act as governors of a city.
In fact, wherever Babylonian culture and law extended, the principles and
practice of it were necessarily in force. The Amorite colonies from Canaan
established in Babylonia for the purposes of trade in the age of Abraham
were naturally subject to the Babylonian laws, and the women among them
possessed all the rights of their Babylonian neighbors. At the very
beginning of the dynasty to which Khammurabi belonged, an Amorite lady, a
certain Kuryatum, brought an action for the recovery of a field which had
been the property of her father, Asalia, and won her suit. Kuryatum and
her brother were themselves subsequently sued by three other “Amorites,”
the children of Izi-idrê, one of whom was a woman, for a field and house,
together with some slaves and palm-trees, of which, it was asserted, they
had wrongfully taken possession. The judges, however, after hearing both
sides, dismissed the case.
It is not strange that the same laws and principles should have held good
in Canaan itself, which was so long a Babylonian province. Sarah, who was
of Babylonian origin, owned a female slave (Gen. xvi. 2, 6, 8, 9), and the
Kennizzite Caleb assigned a field with springs to his daughter Achsah in
the early days of the invasion of Canaan (Josh. xv. 18, 19). A Canaanitish
lady takes part in the Tel-el-Amarna correspondence, and writes to the
Pharaoh on matters of state, while the Mosaic Law allowed the daughter to
inherit the possessions of her father (Numb. xxxvi. 8). This, however, was
only the case where there was no son; after the Israelitish conquest of
Canaan, when the traditions of Babylonian custom had passed away, we hear
no more of brothers and sisters sharing together the inheritance of their
father, or of a wife bequeathing anything which belongs to her of right.
As regards the woman, the law of Israel, after the settlement in Canaan,
was the moral law of the Semitic tribes. We must go back to the age of
Abraham and Sarah to find a Hebrew woman possessed of the same powers as
the Babylonian lady who, in the fifth year of Cambyses, sold a slave for
two manehs and five shekels of silver, her husband and mother guaranteeing
the value of the chattel that was thus sold.
The dowry which the woman brought with her on marriage secured of itself
her independence. It was her absolute property, and she could leave it by
will as she pleased. It protected her from tyrannical conduct on the part
of her husband, as well as from the fear of divorce on insufficient
grounds. If a divorce took place the dowry had to be restored to her in
full, and she then returned to her father’s house or set up an
establishment of her own. Where no dowry had been brought by the bride,
the husband was often required by the marriage contract to pay her a
specified sum of money in case of her divorce. Thus a marriage contract
made in Babylon in the thirteenth year of Nebuchadnezzar stipulates that,
if the husband marries a second wife, the act shall be equivalent to a
divorce of the first wife, who shall accordingly receive not only her
dowry, but a maneh of silver as well. The payment, in fact, was a penalty
on the unfaithfulness of the husband and served as a check upon both
divorce and polygamy.
The dowry consisted not of money alone, but also of slaves and furniture,
the value of which was stated in the marriage contract. In the contract
just referred to, for instance, part of the dowry consisted of a slave who
was valued at half a maneh. Sometimes the dowry included cattle and sheep.
In the sixth year of Nabonidos we hear of three slaves and “furniture with
which to stock the house,” besides a maneh of silver (£6), being given as
the marriage-portion. In this instance, however, the silver was not
forthcoming on the wedding-day, and in place of it a slave valued at
two-thirds of a maneh was accepted, the remaining third being left for
payment at a subsequent date. Where the dowry could not be paid at once,
security for the payment of it was taken by the bridegroom.
The payment was made, not by the bridegroom, as among the Israelites and
other Semitic peoples, but by the father of the bride. If he were dead, or
if the mother of the bride had been divorced and was in the enjoyment of
her own property, the mother took the place of the father and was expected
to provide the dowry. In such a case she also naturally gave permission
for the marriage, and it was from her accordingly that consent to it had
to be obtained. In one instance, however, in a deed dated in the sixteenth
year of Nabonidos, a sister is given in marriage by her two brothers, who
consequently furnish the dowry, consisting of a piece of ground inherited
from the mother, a slave, clothes, and furniture. It is evident that in
this case both the parents must have been dead.
It was the bridegroom’s duty and interest to see that the dowry was duly
paid. He enjoyed the usufruct of it during his life, and not unfrequently
it was employed not only to furnish the house of the newly married couple,
but also to start them in business. It was with his wife’s dowry that
Ben-Hadad-nathan bought in part the house to which his widow laid claim
after his death, and we read of instances in which the husband and wife
enter into partnership in order to trade with the wife’s money. More
frequently the wife uses her dowry to transact business separately, her
purchases and loans being made in her own name; this is especially the
case if she otherwise has property of her own.(2)
At times the son-in-law found it difficult to get the dowry paid. From a
deed dated in the third year of Cambyses we gather that the dowry, instead
of being delivered “into the hand” of the bridegroom, as ought to have
been done at the time of the marriage, was still unpaid nine years later.
Sometimes, of course, this was due to the inability of the father-in-law
to discharge his debt, through bankruptcy, death, or other causes. Where,
therefore, the money was not immediately forthcoming, security was taken
for its future payment. If payment in full was impossible, owing to
pecuniary losses incurred after the marriage contract had been drawn up,
the bridegroom was entitled to claim a proportionate amount of it on
behalf of his wife. The heirs were called upon to pay what was due if the
father-in-law died between the drawing-up of the contract and the actual
marriage, and when the wife died without children it returned to her
“father’s house.”
If the husband died and his widow married again, she carried her former
dowry with her. In such a case the children of the first marriage
inherited two-thirds of it upon her death, the remaining third going to
the children of the second husband. This was in accordance with a law
which regulated the succession to the property of a father who had married
a second time, the children of the first marriage receiving two-thirds of
it and the remainder being reserved for the children of the second wife.
The law could only be overruled by a will made during the man’s lifetime,
and properly attested by witnesses.
The dowry could not be alienated by the wife without the consent of her
parents, if they were still alive. In the year of Nergal-sharezer’s
accession, for example, a certain Nergal-ballidh and his wife Dhibtâ
wished to sell a slave, who had constituted the dowry of Dhibtâ, for
twenty-five shekels, but the sale was not considered valid until the
consent of both her father and mother had been obtained.
The dowry was not the only property the woman was able to hold. She had
similar power to hold and dispose of whatever else had come to her by
inheritance or gift. The gains she made in business, the proceeds of the
sale of her estates, and the interest upon the capital she lent, all
belonged to herself, and to herself alone. For purposes of succession they
were reckoned along with the dowry as constituting her property during
life. In the thirty-fourth year of Nebuchadnezzar, for instance, a father
stipulates that the creditors of his daughter’s father-in-law should have
no claim either upon her dowry or upon any other part of her possessions.
The power of the married woman over her property was doubtless the result
of the system which provided her with a dowry. The principle of her
absolute control over the latter once admitted, it was extended by the law
to the rest of her estate. She thus took rank by the side of the man, and,
like him, could trade or otherwise deal with her property as she chose.
The dowry, in fact, must have been her original charter of freedom.
But it was so because it was given by her father, and not by the
bridegroom. Where it was the gift of the bridegroom it was but a civilized
form of purchasing the bride. In such a case the husband had a right to
the person and possessions of the wife, inasmuch as he had bought her; as
much right, in fact, as he had to the person and possessions of a slave.
The wife was merely a superior slave.
Where, however, the dowry was the gift of the bride’s father the
conditions were reversed. The husband received not only a wife, he
received also an estate along with her. He it was upon whom the benefit
was conferred, and he had to accept the conditions offered him, not to
make them. In a commercial state like Babylonia, property represented
personalty, and the personalty of the wife accordingly remained with the
family from which her property was derived, rather than with the husband,
to whom the use of it was lent. Hence the independence of the married
woman in Babylonia and her complete freedom of action as regards her
husband. The property she possessed, the personalty it represented,
belonged to herself alone.
Traces, however, may be detected of an older order of things, which once
existed, at all events, in the Semitic element of the Babylonian
population. The dowry had to be paid to the husband, to be deposited, as
it were, in his “hand.” It was with him that the marriage contract was
made. This must surely go back to an age when the marriage portion was
really given to the bridegroom, and he had the same right over it as was
enjoyed until recently by the husband in England. Moreover, the right of
divorce retained by the husband, like the fact that the bride was given
away by a male relation, points in the same direction. According to an
early Sumerian law, while the repudiation of the wife on the part of the
husband was punishable only with a small fine, for the repudiation of the
husband by the wife the penalty was death. A deed drawn up in the time of
Khammurabi shows that this law was still in force in the age of Abraham.
It lays down that if the wife is unfaithful to her husband she may be
drowned, while the husband can rid himself of his wife by the payment only
of a maneh of silver. Indeed, as late as the time of Nebuchadnezzar, the
old law remained unrepealed, and we find a certain Nebo-akhi-iddin, who
married a singing-woman, stipulating in the marriage contract that if he
should divorce her and marry another he was to pay her six manehs, but if,
on the contrary, she committed adultery, she should be put to death with
“an iron sword.”
In this instance, however, the husband married beneath him, and in view of
the antecedents of the wife the penalty with which she was threatened in
case of unfaithfulness was perhaps necessary. She came to him, moreover,
without either a dowry or family relations who could give her away. She
was thus little better than the concubines whom the Babylonian was allowed
to keep by the side of his lawful wife. But even so, the marriage contract
had to be made out in full legal form, and the penalty to be paid for her
divorce was as much as £54. With this she could have lived comfortably and
probably have had no difficulty in finding another husband.
The concubine was usually a slave who had been bought by the bridegroom.
Occasionally, by agreement with the parents, the wife herself was in much
the same position. Thus Dagil-ili, who married the daughter of a lady
named Khammâ, gave the mother one and a half manehs of silver and a slave
worth half a maneh, and agreed that if he married another wife he would
give her daughter a maneh and send her back to her old home. Here the
husband practically buys his wife, though even so the law obliged him to
divorce her if he married again, and also fined him for doing so. Khammâ
was apparently in financial difficulties, and consequently, instead of
furnishing her daughter with a dowry, received money from the bridegroom.
It was a private arrangement, and utterly opposed to the usual custom. The
parents had, however, the power of selling their children before they came
of age, and where the parents were dead, the same power was possessed—at
any rate in Assyria—by a brother in the case of a sister. Doubtless the
power was restricted by law, but the instances in which we hear of its
being exercised are so rare that we do not know what these restrictions
were.
Nor do we know the reasons which were considered sufficient to justify
divorce. The language of the early laws would seem to imply that
originally it was quite enough to pronounce the words: “Thou art not my
wife,” “Thou art not my husband.” But the loss of the wife’s dowry and the
penalties attached to divorce must have tended to check it on the part of
the husband, except in exceptional circumstances. Perhaps want of children
was held to be a sufficient pretext for it; certainly adultery must have
been so. Another cause of divorce was a legal one: a second marriage
invalidated the first, if the first wife was still alive.
This is a very astonishing fact in a country where polygamy was allowed.
It proves that polygamy was greatly restricted in practice, and that the
tendency of the law was to forbid it altogether. Among the multitudinous
contracts of the second Babylonian empire it is difficult to find any
which show that a man had two legitimate wives living at one and the same
time. The high position of the mother of the family, her independence and
commercial equality with her husband, were all against it. It is only
where the wife is a bought slave that polygamy can flourish.
In early times, it is true, the rich Babylonian indulged in the possession
of more than one wife. Some contracts of the age of Khammurabi, translated
by Mr. Pinches, are particularly instructive in this respect. We hear in
them of a certain Arad-Samas, who first married a lady called Taram-Sagila
and then her adopted sister Iltani. Iltani, it is ordained, shall be under
the orders of her sister, shall prepare her food, carry her chair to the
Temple of Merodach, and obey her in all things. Not a word is said about
the divorce of the first wife; it is taken for granted that she is to
remain at the head of the household, the younger and second wife acting as
her servant. The position of Iltani, in fact, is not very different from
that of a slave, and it is significant that neither wife brought a dowry
with her.
As we have seen in the case of Dagil-ili, the law and custom of later
Babylonia display a complete change of feeling and practice. Marriage with
a second wife came to involve, as a matter of course, divorce from the
first, even where there had been a _mésalliance_ and the first wife had
been without a dowry. The woman had thus gained a second victory; the rule
that bound her in regard to marriage was now applied to the man. The
privilege of marrying two husbands at once had been denied her; usage was
now denying a similar privilege to him. It was only when the first wife
was dead or divorced that a second could be taken; the wife might have a
successor, but not a rival.
The divorced wife was regarded by the law as a widow, and could therefore
marry again. A deed of divorce, dated in the reign of the father of
Khammurabi, expressly grants her this right. To the remarriage of the
widow there was naturally no bar; but the children by the two marriages
belonged to different families, and were kept carefully distinct. This is
illustrated by a curious deed drawn up at Babylon, in the ninth year of
Nabonidos. A certain Bel-Katsir, who had been adopted by his uncle,
married a widow who already had a son. She bore him no children, however,
and he accordingly asked the permission of his uncle to adopt his
step-son, thereby making him the heir of his uncle’s property. To this the
uncle objected, and it was finally agreed that if Bel-Katsir had no child
he was to adopt his own brother, and so secure the succession of the
estate to a member of his own family. The property of the mother probably
went to her son; but she had the power to leave it as she liked. This may
be gathered from a will, dated in the seventh year of Cyrus, in which a
son leaves property to his father in case of death, which had come to him
from his maternal grandfather and grandmother. The property had been
specially bequeathed to him, doubtless after his mother’s death, the
grandmother passing over the rest of her descendants in his favor.
The marriage ceremony was partly religious, partly civil; no marriage was
legally valid without a contract duly attested and signed. The Babylonians
carried their business habits into all departments of life, and in the
eyes of the law matrimony was a legal contract, the forms of which had to
be duly observed. In the later days of Babylonian history the legal and
civil aspect of the rite seems to have been exclusively considered, but at
an earlier period it required also the sanction of religion; and Mr.
Pinches has published a fragmentary Sumerian text in which the religious
ceremony is described. Those who officiated at it, first placed their
hands and feet against the hands and feet of the bridegroom, then the
bride laid her neck by the side of his, and he was made to say to her:
“Silver and gold shall fill thy lap; thou art my wife; I am thy husband.
Like the fruit of an orchard will I give thee offspring.” Next came the
ceremony of binding the sandals on the feet of the newly wedded pair and
of handing them the latchet wherewith the shoes should be tied, as well as
“a purse of silver and gold.” The purse perhaps symbolized the dowry,
which was given by the father of the bride. In the time of Nebuchadnezzar
the ceremony was restricted to joining together the hands of the bride and
bridegroom.
Contact with the Assyrians and Babylonians in the Exilic period introduced
the Babylonian conception of the legal character of marriage among the
Israelites, and, contrary to the older custom, it became necessary that it
should be attested by a written contract. Thus, Raguel, when he gave his
daughter “to be wife to Tobias,” “called Edna, his wife, and took paper
and did write an instrument of covenants, and sealed it” (Tobit vii. 14).
According to Herodotus, a gigantic system of public prostitution prevailed
in Babylonia. Every unmarried woman was compelled to remain in the sacred
enclosure of Mylitta—by which Istar is apparently meant—until some
stranger had submitted to her embraces, while the sums derived from the
sale of their personal charms by the handsome and good-looking provided
portions for the ugly. Of all this there is not a trace in the mass of
native documents which we now possess. There were the devotees of Istar,
certainly—the _ukhâtu_ and _kharimâtu_—as well as public prostitutes, who
were under the protection of the law; but they formed a class apart, and
had nothing to do with the respectable women of the country. On the
contrary, in the age of Khammurabi it was customary to state in the
marriage contracts that no stain whatever rested on the bride. Thus we
read in one of them: “Ana-Â-uzni is the daughter of Salimat. Salimat has
given her a dowry, and has offered her in marriage to Bel-sunu, the son of
the artisan. Ana-Â-uzni is pure; no one has anything against her.” The
dowry, as we have seen, was paid by the near relations of the wife, and
where there was none, as in the case of the singing-woman married by
Nebo-akhi-iddin, there was no dowry at all. The dowries provided for the
ugly by the prostitution of the rich must be an invention of the Greeks.
Within what degree of relationship marriage was permitted is uncertain. A
man could marry his sister-in-law, as among the Israelites, and, in one
instance, we hear of marriage with a niece. In the time of Cambyses a
brother marries his half-sister by the same father; but this was probably
an imitation of the Persian custom.
The children, as we have seen, whether boys or girls, inherited alike,
subject to the provisions of the parent’s will. The will seems to have
been of Babylonian origin. Testamentary devolution of property went back
to an early period in a country in which the legal relations of trade had
been so fully developed. Trade implied private property and the idea of
individual possession. The estate belonging to a person was his
absolutely, to deal with pretty much as he would. He had the same right to
alienate it as he had to increase it. In a commercial community there
could be no community of goods.
As far back, therefore, as our materials carry us, the unit in the
Babylonian state is the individual rather than the family. It is he with
whom both the law and the government deal, and the legal code of Babylonia
is based upon the doctrine of individual responsibility. Private ownership
is the key-note of Babylonian social life.
But the whole of this social life was fenced about by a written law. No
title was valid for which a written document could not be produced, drawn
up and attested in legal forms. The extensive commercial transactions of
the Babylonians made this necessary, and the commercial spirit dominated
Babylonian society. The scribe and the lawyer were needed at almost every
juncture of life.
The invention of the will or documentary testament, followed naturally.
The same legal powers that were required to protect a man’s property
during his lifetime were even more urgently required when he was dead. The
will was at first the title which gave the heir his father’s estate.
Gradually it developed, until at last it came to be an instrument by means
of which the testator retained control over his property even after his
death. As an example of the form which it usually assumed, we may take one
which was drawn up in the seventh year of the reign of Cyrus as King of
Babylon (532 B.C.):
Nebo-baladan, the son of Samas-palassar, the son of the priest of
the Sun-god, has, of his own free-will, sealed all his estate,
which he had inherited from Nebo-balasu-iqbi, the son of Nur-Ea,
the son of the priest of the Sun-god, the father of his mother,
and from Kabtâ, the mother of Assat-Belit, his grandmother,
consisting of a piece of land, a house and the slaves or serfs
attached to it, in accordance with the will (_literally_ tablet)
which his maternal grandfather, Nebo-balasu-iqbi, and his maternal
grandmother, Kabtâ, had sealed and bequeathed to Nebo-baladan, the
son of their daughter, and has bequeathed them for ever to
Samas-palassar, the son of Samas-ina-esi-edher, the son of the
priest of the Sun-god. As long as Nebo-baladan lives the piece of
ground, the house, the slaves, and all the rest of his property
shall continue in his own possession, according to the terms of
this his will. Whoever shall attempt to change them, may Anu, Bel,
and Ae curse him; may Nebo, the divine scribe of Ê-Saggil, cut off
his days! This will has been sealed in the presence of Sula, son
of Bania, son of Epes-ilu; of Bel-iddin, son of Bel-natsir, son of
the priest of Gula; of Nebo-sum-yukin, son of Sula, son of Sigua;
of Nebo-natsir, son of Ziria, son of Sumâti; … of Nebo-sum-lisir,
son of Nebo-sum-iskun, son of the wine-merchant (?), and the
scribe Samas-zir-yusabsi, son of Zariqu-iddin, son of the
architect. (Written at) Babylon, the 19th day of Sebat (February),
the seventh year of Cyrus, king of Babylon and the world.
In this case it is a son who makes over his property to his father should
he be the first to die. The will shows that the son was absolute master of
his own possessions even during his father’s lifetime, and could bequeath
it as he chose.
A remarkable instance of the application of the principles underlying
testamentary devolution is to be found in the case of Ninip-Sum-iskun, the
son of a land-surveyor who handed over his property to his daughter
Dhabtu, while he was still alive, stipulating only for the usufruct of it.
The text begins by saying that the testator called to his daughter: “Bring
me writing materials, for I am ill. My brother has deserted me; my son has
offended me. To you therefore I turn. Have pity on me, and while I live
support me with food, oil, and clothes. The income from my surveying
business, in which I have two-thirds of a share with my brother, do I hand
over to you.” After this preamble the deed is drawn up in due form,
attested, dated, and sealed. The whole of the testator’s property is
assigned to his daughter “for ever,” “the usufruct of his income” only
being reserved to himself “as long as he shall live.” He undertakes
accordingly not to “sell” it, not to give it to another, not to pawn it or
alienate a portion of it. By way of doubly securing that the deed shall
take effect, the gods are invoked as well as the law.(3)
Another case in which a kind of will seems to have been made which should
take effect during the lifetime of the testator, is a document drawn up by
order of the Assyrian King Sennacherib. We may gather from it that
Esar-haddon, though not his eldest, was his favorite son, a fact which may
explain his subsequent assassination by two of his other sons, who took
advantage of their brother’s absence in Armenia at the head of the army,
to murder their father and usurp the throne. In the document in question
Sennacherib makes a written statement of his desire to leave to
Esar-haddon certain personal effects, which are enumerated by name. “Gold
rings, quantities of ivory, gold cups, dishes, and necklaces, all these
valuable objects in plenty, as well as three sorts of precious stones, one
and one-half maneh and two and one-half shekels in weight, I bequeath to
Esar-haddon, my son, who bears the surname of Assur-etil-kin-pal, to be
deposited in the house of Amuk.” It will be noticed that this document is
not attested by witnesses. Such attestation was dispensed with in the case
of the monarch; his own name was sufficient to create a title. Whether it
would have been the same in Babylonia, where the king was not equally
autocratic and the commercial spirit was stronger than in Assyria, may be
questioned. At all events, when Gigitu, the daughter of the Babylonian
King Nergal-sharezer, was married to one of his officials, the contract
was made out in the usual form, and the names of several witnesses were
attached to it, while the deeds relating to the trading transactions of
Belshazzar when heir-apparent to the throne differ in nothing from those
required from the ordinary citizen.
Besides possessing the power of making a will, the head of the family was
able to increase it by adoption. The practice of adoption was of long
standing in Babylonia. The right to become King of Babylon and so to claim
legitimate rule over the civilized world was conferred through adoption by
the god Bel-Merodach. The claimant to sovereignty “took the hand of Bel,”
as it was termed, and thereby became the adopted son of the god. Until
this ceremony was performed, however much he might be a sovereign _de
facto_, he was not so _de jure_. The legal title to rule could be given by
Bel, and by Bel alone. As the Pharaohs of Egypt were sons of Ra the
Sun-god, so it was necessary that the kings of Babylon should be the sons
of the Babylonian Sun-god Merodach. Sonship alone made them legitimate.
This theory of adoption by a god must have been derived from a practice
that was already well known. And the power of adopting children was
exercised by the Babylonians up to the last. It has been suggested that it
was due to ancestor-worship, and the desire to prevent the customary
offerings from being discontinued through the extinction of the family.
But for this there is no evidence. Indeed, it is questionable whether
there was any worship of ancestors in Babylonia except in the case of the
royal family. And even here it had its origin in the deification of the
kings during their lifetime.
The prevalence of adoption in Babylonia had a much less recondite cause.
It was one of the results of the recognition of private property and the
principle of individual ownership. The head of the family naturally did
not wish his estate to pass out of it and be transferred to a stranger.
Wherever monogamy is the general rule, the feeling of family relationship
is strong, and such was the case among the Babylonians. The feeling shows
itself in the fact that when inherited land is sold we find other members
of the family signing their assent by their presence at the sale. The
father or mother, accordingly, who adopted a child did so with the
intention of making him their heir, and so keeping the estate they had
inherited or acquired in the hands of their own kin.
That this is the true explanation of the Babylonian practice of adoption
is clear from the case mentioned above in which Bel-Katsir was prevented
from adopting his step-son, because his uncle and adoptive father, whose
property would then have passed to the latter, objected to his doing so.
It was entirely a question of inheritance. Bel-Katsir had been adopted in
order that he might be his uncle’s heir, and consequently the uncle had
the right of deciding to whom his estate should ultimately go. He
preferred that it should be the brother of Bel-Katsir, and the brother
accordingly it was settled to be.
The fact that women could adopt, also points in the same direction. The
woman was the equal of the man as regards the possession and management of
property, and like the man, therefore, she could determine who should
inherit it.
A slave could be adopted as well as a free man. It was one of the ways in
which a slave obtained his freedom, and contracts for the sale of slaves
generally guarantee that they have not been adopted into the family of a
citizen. A curious suit that was brought before a special court at Babylon
in the tenth year of Nabonidos illustrates the advantage that was
sometimes taken of the fact. The action was brought against a slave who
bears the Israelitish name of Barachiel, and may, therefore, have been a
Jew, and it was tried, not only before the ordinary judges, but before
special commissioners and “elders” as well. The following is a translation
of the judgment which was delivered and preserved in the record office:
“Barachiel is the slave of Gagâ, the daughter of … , redeemable with money
only. In the thirty-fifth year of Nebuchadnezzar, King of Babylon (570
B.C.), he was given to Akhi-nuri, son of Nebo-nadin-akhi, as security for
a debt of twenty-eight shekels. Now he claims that he is the adopted son
of Bel-rimanni, who has joined the hands of Samas-mudam-miq, the son of
Nebo-nadin-akhi, and Qudasu, the daughter of Akhi-nuri, in matrimony. The
case was pleaded before the commissioners, the elders, and the judges of
Nabonidos, King of Babylon, and the arguments were heard on both sides.
They read the deeds relating to the servile condition of Barachiel, who
from the thirty-fifth year of Nebuchadnezzar, King of Babylon, to the
seventh year of Nabonidos, King of Babylon, had been sold for money, had
been given as security for a debt, and had been handed over to Nubtâ, the
daughter of Gagâ, as her dowry—Nubtâ, had afterward, by a sealed deed,
given him with a house and other slaves to her son, Zamama-iddin, and her
husband, Nadin-abla—and they said to Barachiel: You have brought an action
and called yourself an adopted son. Prove to us your adoption. Barachiel
thereupon confessed: Twice did I run away from the house of my master and
for many days was not seen. Then I was afraid and pretended to be an
adopted son. My adoption is non-existent; I was the slave of Gagâ,
redeemable with money. Nubtâ, her daughter, made a present of me, and by a
sealed deed transferred me to her son, Zamama-iddin, and her husband,
Nadin-abla. After the death of Gagâ and Nubtâ, I was sold by sealed
contract to Itti-Merodach-baladhu, the son of Nebo-akhi-iddin, the son of
Egibi. I will go and [perform each of my duties. The commissioners,] the
elders, and the judges heard his evidence and restored him to his servile
condition, and [confirmed] his possession by Samas-mudammiq [the son of
Nebo-nadin-akhi] and Qudasu, the daughter of Akhi-nuri, who had given him
as a dowry (to his daughter).” Then follow the names of the judges and
secretary, and the date and place where the judgment was delivered, two of
the judges further affixing their seals to the document, as well as a
certain Kiribtu who calls himself “the shield-bearer,” but who was
probably one of the commissioners sent to investigate the case.
After a slave had been adopted, it was in the power of the adoptive father
to cancel the act of adoption and reduce him to his former state of
servitude if he had not performed his part of the contract and the parties
who had witnessed it were willing that it should be cancelled. We learn
this from a deed that was drawn up in the thirteenth year of Nabonidos.
Here we read:
“Iqisa-abla, the son of Kudurru, the son of Nur-Sin, sealed a deed by
which he adopted his servant, Rimanni-Bel, usually called Rimut, in return
for his receiving food and clothing from Rimanni-Bel. But Rimanni-Bel,
usually called Rimut, has violated the contract ever since the deed by
which he was adopted was sealed, and has given neither food, oil, nor
clothing, whereas Ê-Saggil-ramat, the daughter of Ziria, the son of Nabâ,
the wife of Nadin-Merodach, the son of Iqisa-abla, the son of Nur-Sin, has
taken her father-in-law, has housed him, and has been kind to him and has
provided him with food, oil, and clothing. Iqisa-abla, the son of Kudurru,
the son of Nur-Sin, has, therefore, of his own free will, cancelled the
deed of adoption, and by a sealed deed has given Rimanni-Bel to wait upon
Ê-Saggil-ramat and Nubtâ, the daughter of Ê-Saggil-ramat and
Nadin-Merodach, the grandson of Nur-Sin; Ê-Saggil-ramat and Nubtâ, her
daughter, shall he obey. After the death of Ê-Saggil-ramat he shall wait
on Nubtâ, her daughter. Whoever shall change these words and shall destroy
the deed which Iqisa-abla has drawn up and given to Ê-Saggil-ramat and
Nubtâ, her daughter, may Merodach and the goddess Zarpanit denounce
judgment upon him!” Then come the names of four witnesses and the clerk,
the date and place of writing, and the statement that the deed was
indented in the presence of Bissâ, the daughter of Iqisa-abla.
It is clear that the testator had little or no property of his own, and
that he was too old, or otherwise incapacitated, to earn anything for
himself. It is also clear that the adopted slave, who is described by the
milder term _gallu_, or “servant,” had acquired some wealth, and that this
was the motive for his adoption. He, however, deserted and neglected his
adopted father after his freedom had been secured to him, and thereby
failed to carry out his part of the contract. Iqisa-abla accordingly had
the legal right to break it also on his side.
One of the effects of the system of adoption was to give the privileges of
Babylonian citizenship to a good many foreigners. The foreign origin of
Barachiel, as evidenced by his name, was no obstacle to his claim to be a
citizen, and the numerous contracts in which it is certified of a foreign
slave that he has never been adopted prove the fact conclusively. A
commercial community cannot afford to be exclusive on the ground of race
and nationality.
Such, then, was the family system in the Babylonia of the historical
period. Polygamy was rare, and the married woman possessed full rights
over her property and could employ or bequeath it as she chose. The dowry
she brought from her father or other near relation made her practically
independent of her husband. Sons and daughters alike were able to inherit,
and the possessor of property had the power of making a will. The law
seems to have placed but few restrictions upon the way in which he could
bestow his wealth. A family could be increased or prevented from dying out
by means of adoption, and new blood could thus be introduced into it.
The rights and duties of the individual were fully recognized; it was with
him alone that the law had to deal. Nevertheless, a few traces survived of
that doctrine of the solidarity of the family which had preceded the
development of individual ownership and freedom of action. The bride was
given in marriage by her parents, or, failing these, by her nearest male
relations, and when an estate was sold which had long been in the
possession of a certain family, it was customary for the rest of the
family to signify their consent by attending the sale. We may gather,
however, that the sale was not invalidated if the consent was not
obtained. In the older days of Babylonian history, moreover, it was usual
for the property of a deceased citizen to be divided among his heirs
without the intervention of a will. It went in the first instance to his
widow, and was then divided equally among his children, whether body heirs
or adopted ones, the eldest son alone receiving an additional share in
return for administering the estate. But disputes frequently arose over
the division, and the members of the family went to law with one another.
In such cases it became the custom to place the whole of the property in
the hands of the priests of the city-temple, who thus corresponded to the
English Court of Chancery, and made the division as they judged best. The
results, however, were not always satisfactory, and it was doubtless in
order to avoid both the litigation and the necessity of appointing
executors who were not members of the family, that the will came to play
so important a part in the succession to property. In bequeathing his
possessions the head of the family was expected to observe the usual rule
of division, but it ceased to be obligatory to do so.