Babylonian and Assyrian Laws, Contracts and Letters Part 16

(M360) Very singular are the cases in which a votary marries. We know from the Code that this sometimes took place; but the votary seems to have been expected, though married, to keep her vow of virginity. In one case we read that a woman first devotes her daughter, _ullili_, then marries her, and declares at the same time that she is vowed, _ellit_, and that no one has any claim on her.(312)

(M361) (M362) In some cases a sister had the power to give her sister in marriage, with the declaration that no one has any claim on her.(313) We may imagine the sisters orphans, without brothers. The name of their father is, however, given; and his sons and daughters are mentioned. It seems to be closely parallel to the case of the marriage of a king's daughter(314) where a sister also gives a sister in marriage. Here Elmeshu, daughter of the king Ammiditana, is given in marriage by Zirtum, also daughter of king Ammiditana, on the order of her brother, Shumum-libs.h.i.+. The bridegroom was Ibku-Anunitum, son of Shamash-limir and Taram-shullim, his wife. The parents paid for their son only four shekels as _ter?atu_, which Shumum-libs.h.i.+ and Zirtum received. If the bridegroom repudiated his bride, he had to pay half a mina. It is not clear what penalty the bride had to pay if she repudiated her husband. This is dated in the reign of Ammiditana; but in which year of his reign does not appear, as the traces of the year-name do not agree with any in the Chronicle. It must then have fallen somewhere between the seventh and the twenty-second years. Hence the father of the princess was alive at the time. Why had he no hand in the marriage? The history of the reign is not very well known. Perhaps he was away from home. His son and successor, Ammizaduga, whom we may imagine to have been the eldest son, does not appear in the case. Perhaps he also was away. But it is remarkable that the king never does directly take part in any contract. That is probably due to his sacred character. The young princess was not treated with overmuch consideration, judging by the smallness of her dowry.

(M363) We have a very singular case in the marriage of two sisters to one man. This has already been translated and commented upon by Meissner,(315) Pinches,(316) and Sayce.(317) It is, however, too important to omit here.

There are two tablets concerned with it.(318) The first is the contract between the husband and his wives. We may render it thus:

Ardi-Shamash took to wife Taram-Saggil and Iltani, daughters of Sin-abushu. If Taram-Saggil and Iltani say to Ardi-Shamash, their husband, "You are not my husband," one shall throw them down from the _AN-ZAG-GAR-KI_; and if Ardi-Shamash shall say to Taram-Saggil and Iltani his wives, "You are not my wives," he shall leave house and furniture. Further, Iltani shall obey the orders of Taram-Saggil, shall carry her chair to the temple of her G.o.d. The provisions of Taram-Saggil shall Iltani prepare, her well-being she shall care for, her seal she shall not appropriate (?).

Then follow ten witnesses, but no date.

The second doc.u.ment seems to be drawn up rather from the point of view of the sisters. We may render it thus:

Iltani, the sister of Taram-Saggil, Ardi-Shamash, son of Shamash-ennam, took to wife, from Uttatum, their father. Iltani shall prepare the provisions of her sister, shall care for her well-being, shall carry her chair to the temple of Marduk. The children which she has borne, or shall bear, shall be their children. [If Taram-Saggil] shall say to Iltani, her sister, "you are not my sister" [the penalty is lost]. [If Iltani shall say to Taram-Saggil her sister], "You are not my sister," one shall brand her, and sell her. If Ardi-Shamash shall say to his wife, "You are not my wife," he shall pay one mina of silver; and if they say to Ardi-Shamash their husband, "You are not our husband," one shall tie them up and throw them into the river.

Here there are eleven witnesses, but again no date.

Meissner deduces from the mention of children that Taram-Saggil was already married. The exact relation between the sisters is not clear. In one case they seem to be daughters of Uttatum, in the other of Sin-abushu.

Or it may be that Iltani alone was daughter of Sin-abushu. If so, perhaps Uttatum had adopted her. Sayce clearly thinks so. But they might be daughters of the same mother by different fathers, one of whom is mentioned in one case, the other in the other. Or they might really be children of Sin-abushu, if their mother afterwards married Uttatum, who was thus their step-father. It is clear that Iltani was to wait on her sister, and, if she repudiated her, was to be treated as a slave. This is exactly parallel to the status of the slave-maid, whom a wife or votary in the Code(319) provided for her husband. Perhaps Taram-Saggil had become a chronic invalid. A comparison of the two texts is interesting in other respects. The penalties differ curiously. If Ardi-Shamash repudiates his wives, in one case, he loses house and furniture; in the other case, he pays one mina. Was one the penalty for repudiating Taram-Saggil, the other for repudiating Iltani? But if they repudiate him, the penalties are different in the two doc.u.ments, unless indeed the _AN-ZAG-GAR-KI_ be an ideogram for the "steep place" from which they were to be thrown into the water.

(M364) Marriages are not infrequent which impose conditions upon the husband and wife with relation to outside parties. Thus a mother gives her daughter in marriage to a man, on condition that she shall continue to support her mother as long as she lives. In this case, if the husband put away his wife, he was to pay one mina of silver; while, if she hated her husband, she was to be thrown from a pillar, _dimtu_.(320) This pillar may be the real meaning of the _AN-ZAG-GAR-KI_, which looks very like an attempt to express _zigguratu_, a tower, in an ideographic way. A very similar case is where a lady takes a girl to be wife to her son but stipulates that the wife shall treat her as mistress. If she shall say to her mother-in-law, "Thou art not my mistress," she shall be branded and sold. As long as the mother lives, they two together shall support her.(321) One may suspect that such maternal power, as is here shown over the children, arises from their having been adopted by their mother in order to provide for her in her old age. This was often done. The children may have been slaves before adoption. In the second case, the mother leaves her son all she has, or may acquire.

XI. Divorce And Desertion

(M365) Divorce is regulated by the Code. The Sumerian laws seem to regard the marriage-tie as dissoluble on the part of the man by an act of simple repudiation, accompanied by a _solatium_, fixed at half a mina. The wife, however, was punished by death for repudiating her husband.(322) The Code limits the facility of divorce for the man and renders it possible for the woman to obtain.

(M366) Divorce of either a wife or concubine involved her being given a maintenance. The divorced wife had the custody of her children, if any.

They were not disinherited by the divorce. The divorced woman retained the marriage-portion which she had brought to the home. She had a share with her children in the divorced husband's property at his death. If he married again, the children of both marriages shared equally. She was also free to marry again, but apparently not until her children had come into their share of the late husband's property, therefore not during his life.(323)

(M367) Divorce was permitted on the ground of childlessness. The husband gave back to his wife all her marriage-portion. Also he had to give the bride-price which he had paid to her parents during his courts.h.i.+p, and which they had returned to him, as a rule, on marriage.(324) If this bride-price had not been given, then he paid her a fixed sum of money; one mina, if he was a patrician, a third, if he was only a plebeian.(325) A slave does not seem to have had the liberty of divorce.

(M368) The wife might take a dislike to her husband and set her face to leave him and deny him conjugal rights. This was probably equivalent to desertion. Then a judicial inquiry was required. If his ill treatment or neglect was made clear and she was blameless, a divorce was granted. She took her marriage-portion and went back to her family. But as this was of her own seeking, she received no alimony.(326) It is a.s.sumed that it was an unhappy marriage from the first and that there were no children.

If it were proved that she was a bad wife, she was treated as an adulteress and drowned.(327) On the other hand, even if she were a bad wife, the husband might repudiate her simply without paying any price for divorce. In this case there was no suspicion of her infidelity. Or the husband might degrade her to the position of a slave.(328) There is no mention in these cases of a return to her father's house.

Chronic illness on the part of a wife was not a ground for divorce. The husband had to maintain her. He might, however, take a second wife.(329) If she did not care to remain in his house in such conditions, she could leave him, take her marriage-portion and return to her family.(330)

(M369) We have already seen that the Code regulates the questions arising out of divorce.(331) The examples at this period are but few. In one case a man put away his wife and she received her price of divorce. It is expressly stated that she may marry another man and her former husband will not complain.(332) This doc.u.ment is, however, little more than an agreement to abide by the terms of the divorce.

In another case a marriage-contract names the penalty a man shall pay for divorcing his wife.(333) In all these cases the word for divorce, _ezebu_, is literally "to put away." But a man divorced his wife by the simple process of saying, "You are not my wife." He then paid her a fine, returned her marriage-portion and so on, as laid down in the Code.(334) It was far harder for a woman to secure a divorce from her husband. She could do so, however, but only as the result of a lawsuit.(335) As a rule, the marriage-contracts mention death as her punishment, if she repudiates her husband. The death by drowning is usually named. This was in accordance with Law V. of the Sumerian Code.

We may regard repudiation of husband and wife, one by the other, and desertion as leading to divorce; and therefore these may be appropriately considered next.

(M370) Desertion of a wife by her husband might be involuntary. The Code deals with the case of a man captured by the enemy. If the wife were left at home well provided for, she was bound to be true to her absent husband.

If she entered another man's house, she was condemned to death as an adulteress.(336) But if she was not provided for, she might enter another man's house without blame.(337) There she might bear children. But, if so, she yet had to go back to her original husband on his return. The children she had borne in his absence were to be counted to their real father.(338) That the law provides for such cases points to the existence of frequent wars, in which fortune was not always on the side of Babylonia.

(M371) But the husband might desert his wife voluntarily. Then, if she was left unprovided for, the wife might enter another man's house. The errant husband, when he returned, could not reclaim his wife.(339)

We have a legal decision in a case(340) where a man had deserted his wife for twenty years and "left her to her fate, did not love her." During this time a daughter, whether real or adoptive we are not told, took care of her mother. To her the mother left property, among other things, a slave.

The mother being dead, the truant husband returned and claimed the slave from the daughter. He was nonsuited.

Among the provocations which gave the wife cause for divorce was the "going out" of the husband, probably a euphemism for adultery on his part.

Belittling his wife was another ground for her complaint. What this means is not quite clear, but we may regard it as persistent neglect.

XII. Rights Of Widows

(M372) The Code makes clear what was the position of the widow. She had a right to stay on in her husband's house until she died,(341) but was not compelled to do so.(342) If she remained, she was the head of the family.

To her the young sons looked to furnish them with means to court a wife, and the daughters for a marriage-portion. She acted in these matters with the consent and a.s.sistance of her grown-up children. But she might elect to leave the home and remarry.

(M373) As long as she remained in her husband's home she enjoyed to the full whatever she had brought there as a marriage-portion, whatever her husband had settled upon her, and also received a share from her husband's goods at his death. The widow's share was the same as a child's. But she had no power to alienate any of these possessions. The Code expressly declares that they were her children's after her.(343) The children had no power to turn her out. If they desired her to leave, the matter came before the law-courts, and her private wishes were consulted. If she wished to remain, she might do so, and the judge bound over the children to allow her to do so.(344)

(M374) A very clear example of the permanence of the Code regulations on this subject meets us in the fifth year of Cambyses.(345) Ummu-tabat, daughter of Nabu-bel-usur, wife of Shamash-uballi?, son of Bel-ebarra, a Shamash priest, who was dead, whose sons were Shamash-e?ir, Nidittum, and Ardi-?ar, swore to Bel-uballi?, priest of Sippara, saying, "I will not remarry, I will live with my sons, I will bring up my sons to manhood, until they are numbered with the people." On the day that Ummu-?abat remarries, according to her bond, the property [of her late husband] which is in the possession of Bel-uballi?, the priest of Sippara, [she shall forfeit]. The tablet is defective here, but on the edge of the tablet we see that the care of her sons was given her. To remarry is expressed here by the words, "going into the _bit zikari_."

(M375) A widow could remarry at her discretion. She no longer had to be given in marriage. She was free to marry the man of her choice.(346) She might take with her her marriage-portion to her new home, but she had to leave behind any settlement which her former husband had given her, or any share of his goods that had come to her at his death. Her family were not called upon to find any fresh marriage-portion for her. But she was not completely mistress of even her marriage-settlement. If she had children of the former marriage, they and any children of her second marriage shared her marriage-portion equally. Only she had the enjoyment of it for life.(347) If there were no children of the second marriage, those of the first took all she left.(348)

(M376) We have a.s.sumed that when her husband died her children were old enough to care for themselves. If they were not, she had no power to enter upon a second marriage and desert her first family. She was not free to marry at all without consent of the law-court.(349) But there is no evidence that this could be withheld, if proper conditions were observed.

The first husband's property was inventoried and consent for the second marriage being granted, she and her new husband were bound by deed to preserve the whole estate of the late husband for his children. With that proviso, the newly married pair entered into full use of the deceased's property and were bound to educate the children until grown up. They had no inducement to neglect them, as in any case none of the deceased's property could ever be theirs. If the children died, it would all revert to the family of the deceased. The newly married pair had no further interest in it than the enjoyment of it until the children could manage for themselves. They could not alienate any of it. The sale of even a utensil was not possible.(350)

XIII. Obligations And Rights Of Children

(M377) It is customary to say that the father had absolute power over his children, but it is better to state only what is known with certainty regarding the extent of his power. The father could treat his child, or even his wife, equally with a slave, as a chattel to be pledged for his debts.(351) We may therefore conclude that he could sell his child. An actual example cannot be cited from early times, but they are very common later.

The son was not capable of entering into an independent contract with an outside person.(352) We may a.s.sume that this means simply while yet living in his father's house. The father had rights over what his son earned. A man could also hire out his child and take the wages.(353)

(M378) The father had the right to prefer one son above the rest. He could endow him with house, field, and garden. But this must be done in his lifetime and by written deed. This gift did not in any way affect the son's claim to inherit equally with his brethren on the father's death, when he took a full share over and above what he had by gift.(354)

(M379) The father had full power to dispose of his daughters in marriage.

But he was expected to furnish them with a marriage-portion. This was not obligatory, being probably a matter of negotiation with the parents of the bridegroom. In later times the obligation evidently became irksome and oppressive, and Law E was pa.s.sed to relieve the strain. A father was bound to do his best to fulfil his promise to dower his daughter, but no more. A father could not hinder his daughter from becoming a votary.(355) If he approved her choice, he might give her a portion, as if for marriage,(356) but he was not compelled to do so. A father could give his daughter to be a concubine.(357)

The father's consent was also needed to his son's marriage.(358) He had to provide the youth with a bride-price, and secure a wife for him.(359)

(M380) It is not easy to determine when children ceased to be under the paternal power. Betrothed daughters remained in their father's house; so did married sons sometimes. Whether the birth of a child, making the young man himself a father, freed him as head of a family, or whether it was entering a house of his own, we cannot yet say.

(M381) The Sumerian laws are very severe upon a child's repudiation of a father. That degraded him to the status of a slave. He might also be branded. Obviously he was disinherited. The repudiation is expressed in the words, "You are not my father," but it may be intended to cover all unfilial conduct. The Code is more explicit. If a son struck his father, his hands were cut off.(360)