1.5. The Procedure for Contracting Marriage. Freedom of Choice on the Part of the Bridegroom and Bride. A Patriarchal Picture

In examining marital relations, attention is first drawn to the age considered as the age of majority for marriage. Among biblical Jews, marriage was contracted ordinarily at a very young age. Early marriage is generally customary in the East, where sexual maturity comes earlier than in Europe. In modern Egypt, marriage is usually contracted before the age of sixteen, most often when the bride is twelve to thirteen years old, and sometimes even ten. The Talmudists prohibited marriage before the age of thirteen for a male and twelve years and one day for a female.

The contracting of marriage consisted in an agreement between the parents of the young people, whereby from the groom was received the so-called morning gift—the mohar. Scholarly opinion is divided regarding the significance of the morning gift. Some see in it simply a sum by which the groom purchases the bride; others, on the contrary, see in it a gift properly given by the groom to the bride. This question is in substance of more archaeological than legal interest; but in view of the fact that one resolution or the other may cast an entirely particular light on the general character of marital relations among the Jewish people, we shall dwell for a moment on this disputed point. Michaelis, on the basis of his opinion about the morning gift as a purchase price that the groom pays the father for his daughter-bride, draws the general conclusion that “wives among the Jews were ordinarily purchased.” In support of his view he cites examples from other peoples and certain biblical facts that give occasion for the supposition of a custom of purchasing wives. Thus he points to the history of Jacob’s fourteen years of labor for his two wives (Gen. 29:15–29), to the history of the courtship of Shechem (Gen. 34:12), to the marriage of the prophet Hosea, and others. In these he sees a firm foundation for his categorically stated view. But, as Saalschütz—the advocate of the opposing view—notes, “all these foundations are not difficult to refute. First, as regards the example of other peoples who had the custom of purchasing wives, it in no way follows from this that the same must have been the case among the Jews. More weighty is the reference to Laban. Laban does indeed as it were sell his daughters, compelling Jacob to work for them. But even this fact in substance cannot serve as a confirmation of Michaelis’s opinion, since nothing indicates that Laban was acting in accordance with customary law; on the contrary, everything attests that he was guided by self-interest, as is indicated, among other things, by the complaint of his daughters: ‘Are we not regarded by him as foreigners?’ said Rachel and Leah; ‘for he has sold us and has also quite devoured our money’ (Gen. 31:15). From these words it is clear that Laban, in selling his daughters, acted toward them as toward strangers, and consequently performed an unusual deed. The history of the courtship of Shechem likewise does not confirm Michaelis’s opinion, since Shechem speaks not of a purchase price but of the customary gifts to the bride and her relatives. Moreover, the case of Shechem is exceptional, since he wished among other things by rich gifts to make amends for the dishonor he had done to Dinah (Gen. 34:2, 7, 11, 12).”

Finally, the reference to the prophet Hosea, who bought himself a wife “for fifteen pieces of silver and a homer of barley and a half-homer of barley,” does not withstand critical examination. This fact would appear to be the clearest possible confirmation of the opinion concerning the purchase of wives, all the more so because even the price is specified. But, Saalschütz observes, first, this concerns a prostitute who had committed adultery against her husband; and second, the sum is paid to her herself, and thereby ceases to be a purchase price in the proper sense. In contrast to the facts examined, there are examples that entirely exclude any idea of the purchase of wives, and consequently, as the same scholar notes, show that for the validity of marriage the transfer of money or other value was not necessary—which is especially important from a legal standpoint. Such are the marriages of Rebekah, of Achsah the daughter of Caleb (Josh. 15:15), of Michal the daughter of Saul (1 Sam. 18:25). Therefore, the “morning gift” (mohar), in Saalschütz’s view, was nothing other than the groom’s gift to the bride, intended to enable the bride to appear at her husband’s house in fine bridal attire. Such was the purpose of the gifts of Eliezer, the servant of Abraham, consisting chiefly of garments and ornaments (Gen. 24:10; 22:53). The character of the mohar as such is indicated, among other things, by the circumstance that it was principally intended for and given to the bride herself—while gifts for the relatives were of secondary importance.

The law does not specify the extent to which a maiden is independent in her choice of a husband. Under general ancient law, a daughter was ordinarily not independent in the choice of a husband and depended entirely in this matter on her parents. Under Hebrew customary law it was not so. Parental authority here too was strong, but not unlimited. The history of the courtship of Rebekah presents an interesting picture of genuine patriarchal simplicity. The bride’s parents, despite the rich gifts to them from the matchmaker, and the obvious advantage in general of giving their daughter to a wealthy man, did not venture to dispose of their daughter’s fate by their own authority, but considered it necessary to ask the maiden’s own consent. “They said: Let us call the maiden and ask her. And they called Rebekah and said to her: Will you go with this man? She said: I will go” (Gen. 24:57–58). Such respect for the freedom of the daughter’s person is all the more remarkable because under ancient customary law parental authority had great significance also when the groom was choosing a bride. Thus, Hagar chooses a wife for Ishmael, Isaac guides Jacob in his choice, and Judah chooses a wife for his son Er (Gen. 21:21; 38:1; 38:6), although evidently the consent of the grooms themselves is also assumed here.

The actual act of contracting marriage likewise has no definitions provided for it in the law. As far as one can judge from the facts of customary law, it had no precise definition in that body of law either. And it is remarkable that throughout the entire Old Testament literature there is not even a word to denote the act of contracting marriage like our term “wedding ceremony”—and this last term does not appear even once in the Russian translation of the Old Testament. The word “nuptials” does appear once (the word chatunnah is so translated in the book Song of Songs 3:11), but it relates more to the marriage act itself than to the form of its contracting. The contracting of a marital union bears the stamp of truly patriarchal simplicity, free of all formalities. Here is the charming picture, breathing the freshness of patriarchal simplicity (Gen. 24), of the contracting of the marriage of Isaac and Rebekah. Dispatched by Abraham, his servant set off for a distant land to seek a wife for Isaac. By chance he encounters “a maiden who was very attractive in appearance, a virgin whom no man had known.” He involuntarily turned his attention to her, asked her for water to drink, and when she proved so helpful that she not only gave him water herself but took care to draw water also for his camels, he could not after that let her out of his sight: physical beauty and moral goodness bound him to her. He at once gave her a gold ring weighing a half shekel, and two bracelets for her hands, ten shekels of gold in weight. Having inquired whose daughter she was and whether there was room for lodging, and having received in reply from the astonished and gift-pleased good girl that “they had plenty of straw and feed, and room to lodge,” he went to her father’s house and at once directly stated his desire. The maiden’s parents, seeing the seriousness of the servant’s errand, and likewise the wealth of his master, who spared nothing for his beloved son, agreed to the marriage; they asked Rebekah whether she consented, and when she expressed her full consent—the marriage act was concluded. The parents and relatives of the maiden received gifts; they wished to keep Rebekah with them “for at least ten days,” but since the servant could not delay, they bade farewell to their daughter and “blessed her and said to her, Our sister, may you become the mother of thousands of ten thousands, and may your offspring possess the gate of those who hate them!” After this, Rebekah set off with the servant and several maidservants on the journey. When our travelers were drawing near their destination, Isaac had happened to go out into the field “to meditate.” Rebekah, seeing him and learning who he was, was confused, “took her veil and covered herself.” Having heard from the servant all the circumstances in which he had chosen the maiden he had brought for him, Isaac “brought her into the tent of Sarah his mother and took Rebekah, and she became his wife, and he loved her. So Isaac was comforted after his mother’s death” (Gen. 24). The picture presented serves as the typical expression of the procedure for contracting marriages in patriarchal times. Judging by this picture, the whole procedure of the marriage consisted in the man choosing a woman, both of them receiving a blessing from the parents, and thereafter becoming spouses. In later times the marriage act became somewhat more complex. A written agreement or contract came to be used in contracting marriage, as was the case at the marriage of Tobias to Sarah (Tob. 7:11–13). But both before and after, the Jewish marriage retained its distinctive character—namely, the character of a civil act. Throughout the entire Old Testament literature there is no indication that marriage required, for its validity, religious sanctification performed by members of the sacred hierarchy. Hebrew customary law regarded the ancient blessing given to the first humans—“Be fruitful and multiply and fill the earth” (Gen. 1:28)—as sufficient consecration for all subsequent marriages, and therefore concerned itself only with the civil aspect of this act. The Talmudists preserved the very formula of marriage contracts (preserved among Jews to this day), and it represents a civil-legal act in the proper sense of the word: here are set forth the civil obligations between the parties, bearing a purely practical, businesslike character—that the husband is obligated to honor his wife, to care for her support, to provide her with food and clothing “according to the custom of Jewish husbands who honor, maintain, feed, and clothe their wives as is proper,” and so forth. “In confirmation whereof,” it is added in the contract, “we have concluded this present act on such and such a day, month, and year.” Marriage is ordinarily concluded with feasting, but since these feasts are of course without legal interest, we shall not dwell on their examination, but shall proceed to examine the legal relations of spouses in family life.