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The Laws of the Ancient Persians

Contents:

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

5) The Police organization of the Empire

Grave Duties of Police Officers

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.

6) The Ecclesiastical Courts and Their Functions

The Zarathushtrian Church and its High Dignitaries

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.

7) The Iranian people and their great classes

Their Respective Occupations, and the Laws Governing Them

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.

8) The Family

Honured position of the Father and the Mother of the Family

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.

Her Marriage

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.

9) Adoption of Children

There was to be No Monetary Motive behind giving Children in Adoption

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

Partial Adoptions

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.

Abstracted from : The Laws of the Ancient Persians, S. J. Bulsara, Bombay, 1937

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