Chapter II. The Family
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.