1. The Laws of the ancient Persians
2. Religion and Divinity as the Foundations of Law
3. The State and the Sovereign
4. Administration of Justice
5. The Police organization of the Empire
6. The Ecclesiastical Courts and Their Functions
7. The Iranian people and their great classes
8. The Family
9. Adoption of Children
The Laws of the Medes and Persians have acquired universal fame; and the following pages will show how fully deserved that fame was. Iranian history starts in the beginnings of human life on earth, and yet the first Iranian ruling house was a dynasty of lawgivers. Hence Iranian law began to take shape ever since humanity started forming itself society, and indeed that happened far far away in the past when we consider that man has been living on this globe for over ten million years, or probably for much more many ages than that huge period of time.
Although the rulers of the first ancient royal house of Iran have all been distinguished as lawgivers, the first personage to have rendered special service in framing and codifying laws was Prince Uruvakhshaya, the brother of the immortal hero Krsaspa (Garshasp) and the son of King Thrita, the father of medicine. They were the immediate descendants of great Yima, the brilliant antediluvian monarch. This definitely shows that Law started in Iran in the beginnings of human history.
It is apparent that customs and laws would have to be recognised immediately the primitive men formed themselves into social units. Then wise men would appear and give them laws as necessity arose. Hence apparently jurisprudence should have a very ancient history in all annals of humanity, and every civilized nation of antiquity must have had a fair system of laws to guide and govern it.
Some Ancient Codes of Law
So far however the most ancient code of laws is understood by Western scholars to be the code of Hammurabi, an ancient king of Babylonia, who ruled about 2100 B.C. Babylonia, having an ancient culture, was in a fairly advanced state of civilization even at that early date; hence Hammurabi’s Code was only a revised and systematized collection of Babylonia’s old laws. But while some of her laws were sensible measures, the principle of retaliation vitiated the whole system and its imposition of vicarious punishments violated the spirit of pure justice.
The Code of Moses is supposed to have followed; but Sparta in ancient Greece probably had the next system of codified law in known history; for, in B.C. 900, Lycurgus, the king of that country, gave his people a new set of laws. In Greece itself Dracon drew up a sever code of laws at Athens in 621 B.C. Solon who followed however gave that state a more humane system of legislation.
Roman laws are said to have started with Romulus who is supposed to have lived about the year 753 B.C. Numa and Servius Tullius were the next Roman legislators. About 451 B.C. the Decemvirs gave Rome laws which were rather rigorous. The Twelve Tables which the Decemvirs had framed continued as standard Roman law until Emperor Hadrian promulgated the Perpetual Edict which was a fair code prepared by the lawyer Salvius Julian. The emperors who followed him gave new codes or imposed new laws, but the principal fame of having given a final shape to Roman law belongs to Justinian, the contemporary of Xosrow the Great of Persia who was more popularly known as Anoshervan. At Justinian’s command a commission under the lawyer Tribonian brought out those works of law for which the emperor’s memory has been kept fresh up to the present day.
The Ancient Laws of Iran: Their Wide and Varied Scope
It is apparent however that the more ancient civilizations of Iran, China, India and Egyptshould have had earlier systems of law. The laws of the Vendidad among the Iranians and the laws of Manu among the early Indians are well-known. But it is not equally known that the laws of the Vendidad formed only a fragment of the vast jurisprudence of the ancient Iranians. Since the days of Zarathushtra when human knowledge was raised into the sanctity of religion and formulated into twenty-one Nasks or Holy Books, one third of that great knowledge comprised Law, one-third Science, and one-third pure Religion. The Books of Law dealt with Court and Magisterial Law, Law of Accusations, Law for Injuries to Person and Property; Laws pertaining to Theft, Misappropriation and Cruelty to Animals; Laws applying to Soldiers and Military Organisations; Church Law, Family Law and Law of Pedigree and Descent; Law applying to Medical Practice; Law of Business Transactions in relation to Property, Animate and Inanimate; Laws relating to Debt and Interest, the other Mutual Obligations; Laws of Purity, Health and Sanitation, Private and Public; Laws applying to the Cultivation of the Soil and Colonizing Schemes; and finally, the Law of the Heavenly Kingdom and the Divine Government of the Universe.
It will thus be seen that the matter dealt with in the following pages is concerned with only a few portions of the above vast field of Law.
Law thus forms an essential part of the religious system of the Zarathushtra, as full one-third of their sacred literature comprises Law in its various phases and spheres. Indeed Law in a wider sense would coincide with Religion itself, for essentially the domain of Religion covers the universal field of Law. Hence it is that as Science too stands fully on the foundation of Law, Science constitutes the middle third of the Religious system of the Zarathushtrians and forms an essential link between God and Man. This is little to be wondered at when we know that Law abidingness is one of the most meaningful of the names of the Supreme Being in Zarathushtrian Theology.
So Aim of Law would be to promote Religion and Divinity in Mankind which would be furthered by the Spread of Learning and Knowledge among Men
Law having thus been enthroned by the Zarathushtrians on the lofty pedestal of Religion and Divinity, Farrukh-Mart Vahram, the learned compiler of this work, rightly observes that the aim of Law is to further the Mighty Word of the All-Knowing Creator and to defeat Falsehood, and thus to compass in the end the immortal, the illustrious and the most Brilliant and Perfect Sovereignty of the Kingdom of God. This would be possible, he adds, because Law-abidingness is deeply imbedded in the very nature of Humanity, and so the Divine Being has created the world and implanted man in it to live the Live of Righteous Progress; and this instinct of Law-abidingness is to prove useful and valuable in the distant end by means of knowledge and education, and discrimination and enlightenment and learning.
Thus the great Farrukh-Mart and the enlightened men of Iran of his time acknowledged and followed the wise principle that the spirit of Law-abidingness would progress in the world by educating the masses and spreading learning, enlightenment and science among them. Indeed the world would be the better and the happier if it followed this belief and practice of the ancient Iranians.
Knowledge of Terrestrial Experience is bounded by Limits which Religion removes
While real knowledge gives enlightenment and promotes law-abidingness, Farrukh-Mart rightly observes that knowledge that can be obtained by mere planetary experience is bounded by limits, whereas knowledge which is boundless and eternal can be obtained only be the higher guidance of the Divine Impulse. Hence he would maintain that Law should always be subservient to Religion if it is to have an eternally moral basis. Indeed he proceeds to say that there can be no right perceptain of things, no true knowledge about facts, and no recognition of real duty in man if he is devoid of religious sense or knowledge. Right conduct therefore depends on that higher knowledge, for knowledge in all its splendour can be revealed by reflection and meditation on the Holy Word, and research in all fields opened by them. Hence human salvation would depend on temporal as well as spiritual knowledge, and the subjection of Desire to the Good Reason in accordance therewith; and indeed as this last constitutes Law-abidingness, Law can never be independent of Religion. Religious principle therefore should always underlie the basis and the application of Law.
The Iranians were a free people, and although their Sovereign had great prerogatives he could not misuse them with impunity. The Grand Senate in which the Nobles, the Prelates, the Grand Marshals and the Imperial Ministers and Secretaries sat, was always a power which the Great King respected and had constantly to consult. The Magistan, the imperial parliament of the Arsacides, appears to have continued even under the Sassanians in some form, for besides the Grand Senate, the great Popular Assembly figures more than once in the graphic descriptions of events in the Shah Nama which notes that Iran’s Parliament used to assemble in the palace of "Gulshan i Shadagan" or "Paradise of the Blest."
While setting the claim of Bahram V to the throne, in deposing Kobad, in deposing Hormaz, for considering whether Bahram i Chubin could be elected to the throne of the Sassanides, and in the impeachment of Xosrow the Conqueror, the Grand Senate had always assembled to decide the issues. It is not clear whether the great Popular Assembly also had always met simultaneously; but there are incidents which show that that great body was the supreme power in the state. The Grand Senate, for instance, had opposed the accession of Bahram V to the throne, but he had got it by the superior vote of the Popular Assembly which had decided in his favour. Similarly when Kobad had listened to maligners and got executed the great hero Sufrae or Sukhrae who had saved the nation from the White Huns, both the army and the people had risen against him and voted for his dethronement, and that vote was fully carried out.
The Great King’s Responsibility to the State
His Submission to Trial and Judgement
Thus not only was the Great King dependent on the vote of the Grand Senate and the Popular Assembly for confirmation on the throne, but he was likewise responsible to them for good government and liable to be tried and deposed by them if he failed in that supreme function. And while he was made independent of the common law and its courts, he was not free from duties he was bound to fulfil towards the state and towards the people as law-abiding sovereign. Hence it was that when Papak, the Inspector General of the Imperial Forces of Iran under Xosroe the Great, ordered a grand review of the army, even the Great King had to attend it and fulfil his role in that national function alongside his subjects.
What is still more astonishing is that when the Great King granted public audience in the open to all his subjects on the Nowruz and Mihrigan days, the humblest members of the population had the privilege to present to him petitions and complaints which might be against the highest personages in the Empire including the Sovereign himself. Both by law and by disposition he was most solicitous to see that no was obstructed in doing so, and a herald pronounced the direst consequences to any one attempting such obstruction.
If among the petitions and complaints the Great King thus received, a complaint was presented against himself, he immediately get down from the throne on reading it, took the crown from his head and placed it on the empty throne, and turning to the Supreme Spiritual Lord who sat beside him, handed him the complaint on knees and begged him to hold inquiry in the case and pronounce an impartial judgment. If this was pronounced against the Great King he immediately had to make amends to the wronged party before wearing again the crown and resuming the throne.
His Grand Example was a Warning to the High Officials and Magnates of the Empire
This grand example was a warning to all the great personages in power in the Empire to behave justly with those under them, and promptly to rectify their also acts whenever any wrong on their part was brought to their notice. Indeed there are instances of failure in this having been visited with the supreme penalty. The Grand Marshal of the Marches in Azerbaijan had been appointed to rule that province in the days of Xosore the Great. Through the instances of a good old woman who had presented her petition with her own hands to that great monarch, it was found on a careful inquiry that that governor had amassed a huge fortune by a tyrannous and unjust rule. At the instances of the Great King, the Grand Senate sat in judgment on that ruler, and finding him guilty, pronounced on him the capital punishment, which was forthwith executed.
It appears that all laws were enacted by the Imperial Legislature, and promulgated by the Decree of the Great King. While no one was allowed to defy or frustrate the principles of justice, severest penalties were held out to those personages who sat in judgment and violated its sanctify by an intentional miscarriage of justice. This rule prevailed in Iran from the days of the Achaemenian Empire and earlier, and was scrupulously maintained throughout the Sassanian sovereignty.
Not only was the Judge thus warned against an intentional miscarriage of justice, but he was also instructed to maintain with the greatest firmness absolut impartiality in balancing judgment between the parties standing in litigation before him, and not to allow himself to be swayed by the smallest inclination towards any one side. He was thus to cast out all consciousness of self in the judgment seat, and it for strong human reasons and unusual circumstances he felt any prejudice against the accused, he was to pass the case on directly to the higher court, and not handle it himself.
The courts of Justice in the Empire
It appears that courts were dispersed throughout the Empire and in every canton, town and fortified citty, to render justice easy and prompt for the litigants and the wronged persons. Apparently the Supreme Court was that of the Sovereign himself, but he would no doubt decide cases with the help of the Chief Judge, the Lord Advocate and the Primate who was always well-versed in the whole law of the realm. Ordinarily however the Court of the Lord High Chancellor was the Supreme Court in all lay matters, and of the Primate in all disputes connected with Religion. Thus, beside the ordinary courts ecclesiastical courts presided over by the Dastur or Mobad were equally dispersed throughout the Empire, and probably provided a cheaper medium of obtaining justice. In all matters however which were not of a purely religious nature, and in the supreme direction of justice or in the keeping of the records of justice, the Chief Judge of the Empire had the highest authority.
Old Iran’s Learned Judges and their Duties
In the Roman Empire the judge was not always well versed in law, and hence in such cases individuals who knew law well were appointed there to help the judges. In Old Persia however judges and magistrates had to know law very perfectly themselves. Their various duties and functions described even in this work show it; and indeed they had often to explain law themselves to the parties or their counsels. If a party in a case was represented by the lawyer, the judge or the magistrate, as the case might be, was first to be that he was appointed in proper form. He had them to consider whether he had the power to hear the case, and whether a case required an urgent hearing. Even when he had not that power, he could look into the prima facie of the plaint brought before him and could refuse to pass it on to the proper court if he found it groundless.
In cases properly to be tried by his court the judge or the magistrate had to see to the oath being properly administered to the parties. He had to examine the plaintiff or the complainant as to the statement of the grievance and to note down his replies. If in that preliminary inquiry no ground could be seen for drawing up a case against the defendant or the accused, he had to discharge him honourably.
Even when facts appeared quite obvious against the defendant or the accused, the judge or the magistrate had to make out a definite case and hold proper inquiry. He was to assure himself about the identity of the persons and things produced before him, and the extent, manner and circumstance of the commited act, by direct facts as well as evidence. He was likewise to examine identification as to a person’s name and deposition before making up a charge. He was also impartially to grant the fair request of any of the parties.
In criminal cases, the magistrate had first to examine the inquiry papers submitted to him and then carefully to examine the time of the act, the time of arrest, the time for which one was kept in custody and the time when he was preduced in court, and whether the case was bailable or not. Thus while he would searchingly examine the parties suing justice, he was equally solicitous to see that the police had not transgressed their powers or were not attempting a miscarriage of justice.
Bench of Judges and Assessors
Examination and Preservation of the Judgment Papers
In more serious cases two or more judges sat together and when they were more than two the decision of the majority settled the case. This practice would be usual in all grave trials, but a hint elsewhere given suggests that assessors too helped the judge in certain cases. It is noteworthy that judges and all other presiding offices at courts had to forward the judgment papers to the Board of the Lord High Chancellor.
Contempt of Court: Instances of Contempt
Severe Dealing with Persistent Contempt
Any Contravention of the court’s order would amount to contempt of court, and the aggressive party would be dealt with greater or less severity according to the degree of the heinousness of the act. Thus, for instance, when a person would claim a property which another was holding and would use force to eject him from possession, and the other seek the court’s help, and the court would order the claimant to stop action until it investigated the two parties respective claims, then the claimant would have to obey that order. The court would also command the assertive claimant to deposit in court an amount as security against his asserting the claim before the court’s decision in the matter.
If, notwithstanding the court’s order, the claimant would still assert his claim with attempt to eject the other claimant from his possession, that security deposited by him in court would be confiscated. If he still persisted and made a third attempt, his propriety right in the property would be forfeited, if he really had one, or he would otherwise be punished with due severity by the court.
It is apparent that in all other cases of contravention of court’s commands, the culprit would always be dealt with in a similar exemplary way.
Lawyers and Their Appointment
Their Fees could not be Excessive
Lawyers were regularly employed in ancient Iranian courts. Their appointment was to be formally recognized by the court, and was to be made by clients in a way as to leave no doubt. They were not allowed to argue contrary to their clients’ statements, nor to speak irrelevantly. Clients engaging lawyers could absent themselves from court in cases in which the penalty would not exceed an ordeal or a fine; but in such cases the court’s action was binding on such clients. They were however bound to attend if the opposite party insisted that they should do so. Each party was to appoint his lawyer distinctly, but one lawyer could be appointed by several defendants or accused jointly, and apparently also by several plaintiffs or complainants if they were concerned in an identical case. A lawyer who was appointed after the case had proceeded to some extent, or to replace another, had to take up the case just at the point where it had proceeded. With the appointment of a new lawyer however the client had to take oath a new if the circumstances required it.
Lawyers could not charge their clients excessively and even in prolonged cases of property dispute their fees were not to exceed 22 to 30 per cent of the property’s value, although they would be much less in ordinary cases, and only 12 per cent when the property was very small. If a lawyer charged so excessively as 75 per cent of the value of the property in dispute, he incurred a penalty which might be anything up to 18000 Dirhams according to the gravity of the offence.
The police were a well-organized and efficient force in the ancient Persian Empire. In every place of importance a force existed under a competent officer. In the cities each ward was under a Superintendent of Police, known as Kuipan. he was responsible for the good behaviour of the people in his ward, and was expected to trace the criminal promptly whenever any crime occured in it. He was expected to command implicit obedience in his subordinates.
The police officer was required to know the court procedure for the prosecution of the cases and for advancing accusations and was expected to carry out the court’s orders promptly. He had to be prompt in recognizing things necessary for proving a guilt, and was expected to be able to show how a stolen thing came to be with the thief. He was expected to be very careful in the charges he might advance against the accused and about his exact identity.
The Judge or Magistrate, as the case might be, was bound to examine with care circumstances associated with the accusation of a person by the police, such as the time of the act, the time of arrest, the time for which one was kept in custody, and the time when was produced in court, so that if anything unusual or wrong appeared the police might be asked to account for it, and an innocent person might be promptly and honorably discharged if the accusations were found groundless.
Thus while crime was suppressed assiduously, no slackness was shown in seeing that an innocent man did not appear in the dock.
The Gaol Organization
Duties of Gaolers
The gaol organization also was very regular and ordered. The gaoler had to keep proper record of each prisoner’s identity, his name and his offence, and was to acquaint himself with these properly and personally. He had to produce and identity the prisoner whenever required to do so. He was held responsible for the proper custody of prisoners given in his charge and if any grave offender escaped through his negligence he incurred the capital punishment which however was foregone if he caught him again by his own effort.
We have already seen that the Church administered the Law in certain matters. The head of the Church was the Mobadan Mobad or the Grand Master of Divinity. Under him were various Church orders: the Mobadan, the Ratan, the Drivishan, the Dasturan and the Aerpatan, or the Masters of the Divinity, the Spiritual Lords, the Holy Adepts, the Episcopal Dignitaries and the Holy Masters respectively, who each constitued a controlling and executive body. Each body was concerened with the affairs of its own order as well as the general duties of the Church and works of public weal. The Spiritual Lords especially guarded Church interests and Church property.
The Church courts tried all crimes against the Church, and also generally dealt with disputes which were purely civil and had no penal aspect, as well as with cases relating to Church and Temple Property, Marriage, including the Sutur kind, Dowry, Divorce, Adoption, Inheritance and Testamentary matters, the applying of Ordeals, etc., and often with cases in which the interest of Slaves was involved. Apparently the ecclesiastical court’s jurisdiction would extend only to the religious or purely social aspects of these subjects, for, their worldly circumstances would be dealt with by the ordinary courts only.
The ecclesiatical courts were to be conducted in the same legal form as ordinary courts were. The lawyer’s role was generally performed by a Dastur, though ordinary lawyers and attorneys too were allowed to represent or defend cases coming before them.
The Supreme Ecclesiastical Courts were also Courts of Appeal
The courts of the Mobadan were also empowdered in some cases to hear appeals against of Judges which they could set aside or revise, though in their legal functions they were subordinate to the Chief Judge, and had to forward their judgment papers to the Board of the Lord. High Chancellor as all ecclesiastical and lay courts had to do.
The Great King or the King of Kings presided over and guided the destiny of the Iranian nation. Under him were (1) the "Shahrdaran" or the Satraps who ruled over the greater provinces of the Empire as the Viceroys, (2) the "Veispuhran" or the hereditary Nobles, (3) the "Vozurgan" or the High Dignitaries and the Grandees of the Empire and (4) the "Azatan" or the Citizens and Freemen forming the general mass of the population. Interspersed with these were a sprinkling of Slaves, but the Great King was forbidden to keep slaves in his employment. And there were the Army and the Church, in which were represented some or other of these great classes. Thus the class of Grandees was constituted by such individuals as the "Mobadan Mobad" or the Primate of the Empire, the "Vuzorg Framatar" or the Prime Minister, the "Airan Sepahpat" or the Commander-in-Chief of the Armies, the "Dapiran Mahest" or the Imperial Secretary of State, the "Vastrioshpat" or the head of the Landed Magnates, the "Hutokhshpat" or the Head of the Trade Guilds, etc.
Thus the population of the Empire would be divided into the Clergy, the Government Servants, the Soldiers, the Office Bearers and Attendants, the Peasant, the Tradesmen, the Artisans, etc. And it is apparent that each class would have special laws applying to the members of their order besidethe general codes. Hence there would be ecclesiastical codes, civil sevice codes, army codes, etc., several of which are distinctly referred to in the summaries of the legal nasks which are given in the Eighth Book of the Dinkart. And, as we have seen above, all these also would be added to, from time to time, by new enactments by the Imperial Legislature and the Decrees of the Great King, which would be notified to the nation by means of the Imperial Gazette.
It will therefore be seen that, notwithstanding the fair volume of law presented in the following pages, it represents only a very small portion of the grand jurisprudence of the ancient Iranians. It mainly deals with social matters, property dealings, and administration of justice, and ecclesiastical courts and administration only.
The Joint Family
The Father and the Mother and the Son of the Family
In old Iran the joint family system prevailed in the general mass of the population. Each family group lived under the domestic government of two elders, one the senior male and one the senior female. These were called the Lord and Lady of the House respectively. These usually would be the father and the mother of the family, or the eldest surviving couple. But if one of these died the eldest son of the family or his wife living together in the joint family, took his or her place. And that method was followed further as the need arose. It appears that although the joint family system thus prevailed, a son of the family could demand his lawful share in the family and establish a separate home of his own. But such son could not succeed the Lord of the House in the family government. It would thus appear that that duty fell on the next eldest son who lived in the joint family as an integral member. The prospective Lord of the Family was known as the Son of the Family and apparently assisted the Lord of the Family in the family government, and would also be assisting the Lady of the House whenever the need arose for doing so. If the Son of the Family happened to be a minor when the Lord of the House died, a Guardian, distinct from the Lady of the House was to be appointed over him safeguard his interests.
The Respective Dominions of the Lord and the Lady of the House
The government of the Joint Family was fairly divided between the Lord and the Lady of the House. The Lord of the House held general control of the joint family property, whereas the Lady of the House had full and free control of internal domestic government of the household in which the Lord of the House could not interface. for instance it was her special privilege to look after the daughters of the family and to have them settled in marriage. She would also thus be looking after the interests of the Sutur woman married in the family and her children, and administer their property. All minors in the family were kept in her care, excepting those whose interests conflicted with her own, and then a distinct guardian was to be appointed over these.
Special Privileges of the Lady of the House
The Guardian of the Family
After the death of the Lord of the House the Lady of the House acquired special privileges. She would be the Guardian of the Family if the Son of the Family was yet a minor, and would share equally with him in family inheritance. She was also entitled to inherit what was not otherwise assigned away, or did not belong to others by distinct right.
Whatever came to the family after its sons had got their inheritance and its daughters had been married and provided their dowry and inheritance, was to go only to the Lady of the House and a posthumous child of the Lord of the Family if one were born after his decease, though a distinct guardian would be appointed over that child in that case. She was also privileged to take over whatever was assigned to the joint family or to the personal family of the Lord of the House in preference to the Son of the Family, and when she would be administering the family estate as the executrix, she alone would be under the responsibility to be sued for a liability of the House even when there were other members in the house.
Both the Lady of the House and the Guardian were administered oaths for the proper discharge of their duties, though sometimes the Lady of the House also became its Guardian, as is said above. When however they were distinct they had to manage the affairs of the house in full harmony, as when engaging an attorney at law for some affair of the house. When however the Son of the Family came of age they were to hand over the control of the general family government to him as he would be the rightful Lord of the House then. The latter was then entitled to dispute any act of theirs which was due to mistake or misunderstanding. As Lady of the House however she and the Son of the Family who would be the new Lord of the House would jointly manage the family affairs, according to their distinct spheres of control in the joint family.
The Authorities of the Lord and the Lady of the House were Cognizable in Law
It is apparent that to enable them to exercise their authority with efficacy, law had given them privileges cognizable in all law-courts. Details of all these privileges are not available, but they may be inferred from the position they held in an authoritative way. It should not however be inferred that either of them could be tyrannous to any of those who fell under their control by the natural conditions of old Iranian life. Instances of checks on any such tendency if it ever manifested itself, occur numerously in the following pages.
Both in regard to the Lord and Lady of the House and other married couples in the joint family group, the privileges and duties assigned to fathers and mothers, equally applied to them all, subject to the superior jurisdiction of the former as determined by the family law of the ancient Iranians. And thatwise too the privileges and duties assigned to mothers in the old Iranian household, again show the honoured, responsible and high position of woman in old Iranian society.
The Duties and Privileges of the Husband and the Father
An Iranian was habitually as well as by intuition a loving husband and affectionate father. Still law had also ordained that he would not deal otherwise with his wife and children. He was the natural guardian of his wife till she lived, of his son till he came of age, and of his daughter till she married. And this duty he discharged intuitively as well as under command of law in a way as to give an air of sanctity, peace, beauty and cheer to the Iranian household.
Both parents and children had mutual responsibilities and privileges. The father was bound to use his property first on the needs of his family: and so he could not give it away as gift or in charity if that deprived his wife and children of proper maintenance, and even if he should do so with the wife’s sanction law would intervence and prevence him from doing any such thing, so that even if such gift was already made and given away, it was to be withdrawn under the compulsion of law. So again, a father who criminally neglected maintenance and guardianship of his child had to make good the expense to any one else who fulfilled that duty towards it.
If however the father was in want and the wife and children had some property of their own the father was privileged to take a legitimate portion of it for his own use. It is apparent however that this would not be permitted to the extent which would deprive them of their own means of livelihood; whereas when he could avail of such privilege without causing inconvenience to others he had to return in principal what he had thus taken, when he found the means to do so.
Disinherison of Children not permitted to the Iranian Father
The father was obliged to assign his property to his only child and was required to place it under an executor when that was necessary, and if the child was guilty of misbehaviour he was required to put it in trust for such which trust the child was not allowed to challenge afterwards. It would seem that this interpretation of the text here is more probable than that of taking this as a case of disinherison, which the Roman law had prescribed for undutiful children. Still when the father was an integral part of the joint family and the joint family property was enough to maintain his wife and children, he could dispose of a personal property of his, such as was acquired by gift, in any way he chose.
Father, as his child’s guardian, had the right to decline to allow it a gift by another; but when he allowed it, he had to preserve it intact till the child came of age and took it over.
Children of the Family
The Son and His Duties
In the father’s household the son had certain duties to fulfil. He had to administer the father’s estate even during his lifetime if asked to do so. And when he was made the residuary legatee, he was bound to administer the father’s estate after his death. When he was the eldest son he had to manage the property set apart for the benefit of one’s soul. The eldest son had also to undertake the guardianship of the Fire Temple founded by his father. A dutiful son was also expect to under take meeting deficiency in father’s debt if he was able to do so, though that was not compulsory on him. Above all, the son who took over the parental property was bounded to undertake guardianship of minor brothers and sisters.
The Daughter’s Privileges
Similarly, the daughters had claims both on their parents, and on their brothers and sisters also even as they had to fulfil duties towards them. In the parental home the daughter had the same right as the son till she married, even when she happened to be an adopted child. And when sons and daughters had to be assigned things out of kinship, they had to be given them simultaneously.
Once a father had made a gift to his daughter it could not be withdrawn afterwards. But is she simply held a possessory right in the parental home, that was to be passed on to the father on her getting married. And though her claim on father for maintenance and guardianship ceased on her marriage, his guardianship over her was restored on her becoming a widow, and if she had no means of maintenance as should be provided by her deceased husband’s estate or household, it is apparent that she would depend on her parents for it.
The parents directly, or the heads of their joint family, had to make provision for the marriage of every daughter who was actually born or whose birth was expected in it. And when there was no other means of providing a dowry for her, it might be got from a gift made by her father to the mother, if such happened to be the case.
The Daughter could not be Married Against Her Will
As we shall see below, the marriage system of the ancient Iranians had five modes, which made some difference in the married girl’s status as wife and mother, as well as in her rights in her parental family. As to in which mode of marriage the father would give his daughter, was left to his choice. Still it was expected of parents that they should not marry their daughter in a mode which would give her a lower status than another which they could afford to marry her in.
It was a wise rule among the ancient Iranians that a daughter could not be compelled to marry against her will, though she was allowed to marry against her parents’ will if she chose to do so. She could refuse to marry a husband chosen for her by her father. If she was married in minority in a status which she disapproved on coming of age, her marriage could not be dissolved, but her father’s guardianship over her was to be transferred to another person till she was reconciled to him.
Daughters Living in the Parental Home
As a rule a married daughter had of course to go and live with her husband. But there are instances of grown up daughters living in the parental home, and some of these might be married or widowed daughters, living in the parental home owing to peculiar circumstances. A daughter thus living in a parental home could be the executrix of his estate, and a last-born daughter staying with her parents would be entitled to get their undisposed of property on their decease.
A daughter had to discharge a parental debt in proportion to her share in the parental estate, but if she paid it off all by herself, the other legatees would be compelled by law to repay her their shares in the dept.
Another instance of the concern of the ancient Iranians to see that no father neglected his natural duties towards his child or palmed them off on another individual, is to be seen in the law which forbade a father to give his only minor child in adoption to some person. The father could however appoint a guardian over his minor child, apparently to safeguard its interests in case of his decease; but he could withdraw such guardianship whenever he found proper reason for doing so.
When however a minor child was not the father’s only child he could give it in adoption, though law required that he should himself continue as the child’s guardian till it came of age, but if he died in the meantime the adoptive father was allowed to be its guardian.
It would appear that children were given in adoption out of no monetary interest in such transaction, because it seems that instead of taking anything from the adoptive father in return, the real father rather assigned the child some gift which the law required to be returned to him if the child died in minority.
Fathers having Children of their Own also could adopt Other Children
It should also be noted that children were adopted not always because the adoptive persons had none of their own, for, people having legitimate living children were also allowed to adopt children. This probably happened owing to people’s desire to admit into their family more intelligent, more desirable or more useful persons. Adoption could be complete or partial only according as the real father gave away all, or reserved some, of his parental rights in the child. But when it was complete and the adopted person had also given consent to the adoption, the adopted person had equal interest in the adoptive father’s property as his real children had. This law applied equally to adopted sons and daughters. It is also said that the adopted child assumed a new name in the adoptive family.
Legal Formalities of Adoption
It may be noted in this connection that an adoption was to be signed, sealed and confirmed before an Episcopal Dignitary according to law. It might however also be registered or left unregistered, and that would make some difference in the adopted child’s status and privileges.