1.7. Concubinage, Its Origin and Significance. The Position of Concubines in the Family. The Attitude of Mosaic Legislation Toward Concubinage

Concubinage, which appeared in the most ancient times, among the Jews was prompted by the desire to have offspring—a desire that did not allow concubinage to sink to the level of crude polygamy. Therefore the whole phenomenon must be viewed from the perspective of this pious desire, by virtue of which even a slave girl could obtain important significance in a household, especially where the wife was barren. Such was the true source of the concubinage of Nahor, Abraham, and Jacob. Concubines (pilegesch), as secondary wives, naturally could not be equal to the lawful wife in legal standing. We see that in the household of Abraham the principal mistress and head of the house is Sarah, while the concubine Hagar plays a subordinate role; and when the latter, “seeing that she had conceived, began to despise her mistress,” Abraham, in response to the complaint—or rather, the reproach—from Sarah, said to her: “Your slave woman is in your power; do to her as you please. And Sarah dealt harshly with her, so that she fled from her” (Gen. 15:4–6). The rabbis find the legal distinction between a wife and a concubine in the fact that the latter at divorce had no right to a “bill of divorce” (libellus divortii) and could be dismissed from the house and from cohabitation with the husband without any formalities. Regarding children, there was also a difference in rights between the wives and concubines; thus, for example, the children of concubines did not receive an inheritance from their father, but only gifts (Gen. 25:6), although this distinction did not apply in all respects, since these children were nonetheless not considered strangers, formed a supplementary family, and their names appear in the patriarchal genealogies alongside the names of children from lawful wives (Gen. 22:24; 1 Chron. 1:32).

The Mosaic legislation recognized the ancient right of concubinage sanctioned by custom, and only subjected it to more precise legal definitions. According to this legislation, concubines could be: 1) a Hebrew girl sold by her father, 2) a pagan captive taken in war, and 3) a purchased slave woman of foreign origin. Precise definitions, however, the law provides only for the first two categories of concubines—the Hebrew girl and the captive woman; regarding a purchased foreign slave woman it provides no definitions at all, although she could without doubt be a concubine. The substance of the regulations concerning the first two categories of concubines is as follows: if anyone sells his daughter into slavery to another, and this other neither betrothes her to himself nor gives her to his son, or if the latter does marry her but takes another wife besides her and begins to neglect her, then she has the right to go free without the return of the sum received by her father for her sale (Exod. 21:7–11). If anyone sees among the captives a woman beautiful in appearance, and desires her and wishes to take her as his wife, and goes in to her and she becomes his wife, but afterwards he is not pleased with her, then he shall let her go where she wants, but he shall not sell her for silver or treat her as a slave, because he has humiliated her (Deut. 21:10–14). In these regulations the legal position of concubines under Mosaic law is defined. The law treats with such affection and solicitude these unfortunate women of this category, placed in a dependent position—one through a sale forced upon her father by poverty, and the other through captivity—that it does not even call them concubines in the proper sense (pilegesch), but, in order to elevate them in the eyes of their husbands, calls them wives (ischah), and protects them from neglect and from being sold into slavery. Nevertheless, these women are not lawful wives, not wives in the proper sense, although in their legal position they differ from them only slightly. All the distinction in their legal position is expressed in the absence for them of the “morning gift” at marriage and the “bill of divorce” at divorce—these legal expressions for the full lawfulness and validity of marriage. There is no hint of their existence here, and indeed they are excluded by the very form of contracting these marital relations, since in the first case the wife is purchased, and in the second she is taken captive—conditions that leave no place for a morning gift, which serves as an expression of the woman’s free consent to marriage. Divorce from these wives is likewise not surrounded with legal formalities, but consists simply in the husband “releasing” the wife. The distinction of a concubine from a full wife is expressed, among other things, in criminal relations. While for adultery with a full wife or a free betrothed woman, death is prescribed for both criminals, for adultery with a betrothed slave girl (concubine), a simple punishment is prescribed. “If a man has sexual relations with a woman who is a slave, betrothed to a husband, but who has not been freed or given her freedom, a punishment shall be given; but they shall not be put to death, because she was not free” (Lev. 19:20). All the examined definitions concerning the law of concubinage provide, as Saalschütz says, the form of an unstable, informally and without gifts contracted marital union with women or girls who in some manner found themselves in a dependent position. This union was also more easily dissolved, and the very violation of it was more leniently punished. The legislator, in recognizing such a marital union as a concession to the customary law sanctioned by antiquity, strove through the examined definitions to eliminate the principal evil that afflicted the marital relations of ancient peoples—namely, the development of polygamy and the humiliating position of women connected with it. The first he achieved by depriving the marital union with concubines of legal formalities, making the very union as it were invalid; and the second—by elevating the legal position of concubines to near equality with a full wife.