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 Mylittaby which Istar is apparently meantuntil 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, certainlythe ukhâtu and kharimâtuas 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 dowryNubtâ, had afterward, by a sealed deed, given him with a house and other slaves to her son, Zamama-iddin, and her husband, Nadin-ablaand 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.