“Modern Byzantine law” in the judicial practice of Bessarabia (1812 -1917)
St. Petersburg State University
The province (oblast) of Bessarabia (from the 1873 – the Bessarabian gubernia), including the regions of the principalities Moldavia and Walachia (situated between Akkerman and the mouth of the river of Prut) became part of the Russian Empire according to the conditions of the peace treaty of the 16 May 1812. The treaty was signed in Bucharest after the victory of Russia in a war with Turkey. Conditions of life and legal consciousness of the population of these regions differed little from their former parent state. Despite of the fact, that Byzantine law was formally the law of the country, nobody knew it. The country really lived according to the local customs and arbitrariness of the corrupted judges, appointed by the princes. The legal procedure was oral and the court judgments were normally verbal. Therefore as the court archives as the legal training were lacking and any control of legality of the legal proceedings was impossible. A new prince often repealed the judgment of his predecessor or of his judge, and the litigation could be renewed.
After joining to Russia the corrupted local elites tried to represent Roman-Byzantine law as a unique real source of law in the country in order to prevent a deep involvement of the Russian officials in their local affairs. They insisted themselves to be the only connoisseurs of this law imposing their help as advisers and collaborators to the new Imperial administration. These attempts to conserve the dominance of the old elites were partly successful.It was hard to make control of the real essence of the local laws, because they were unwritten and the legal proceedings were oral and took place in the local language. Therefore the so-called Bessarabian laws were substituted in the real life by the tyranny of the local elites, who used taking of bribes as the only method to find solution for the legal problems.
The right understanding of the situation came to the Russian administration rather early. Therefore the Emperor’s Decree of 3 August 1825 № 30439 ordered the Senate to require from the litigants and from the court of the first instance the original written files of cases with their Russian translations, and the extracts of those local laws and customs which the court and the appellant had referred to. The legislator thought this order to be a temporary measure right until promulgation a unified «Code of the local civil laws and customs of Bessarabia».
The Decree № 25441 of 21 August 1813 «About the organization of the eparchies of Kishinev and Hotin» ordered to use the former Moldavian civil law, but without specification of the concrete laws regarded as fragments of this law in concreto.
«The Charter about organization of the Province of Bessarabia» of 29 April 1818 permitted to use local laws and Moldavian language in the legal proceedings. The Supreme Council became the Supreme Court, which was to be a court of the last instance. The six courts of the lower territorial and administrative units of Bessarabia - zinut’s – were the courts of the first instances. The second (appellate) instance were the Civil Court of the Province and the Criminal Court of the Province.
“A Provisional Committee for consideration complaints of the decisions of the Supreme Council of Bessarabia for Judiciary” was founded in Imperial capital Saint Petersburg at the 16 March 1822 after the report of the state secretary count Kapodistrij about the state of jurisprudence in Bessarabia. The Second Department of the Governing Senate of the Russian Empire also began to give trial to appellations from Civil Court of the Province of Bessarabia from the 5 August 1825.
The Charter of the 1818 was substituted by «Institution for administration of the province of Bessarabia” of the 29 February 1828 (№ 1834) which confirmed the application of the local laws, but again without their concrete list.
The gradual diffusion of Russian law and unification of the judiciary with that of the Empire had become a main tendency in Bessarabia. The Senates Decree of 11 October 1828 № 2334 enlarged the scope of the Imperial laws of the year 1821 about the order of recovering debts to cover Bessarabia. The Imperial Bank Charter also covered Bessarabia in 1831. Thereafter the General Regulations of the Order of Sale of Immovable Estates entered in vigor at the Bessarabian regions in the 1836. The “Regulations of Making Acts of Immovable Estates’ Sale”, and the “Regulations of Missing in Possession of Immovable Estates and of the Time of Their Redemption” spread in Bessarabia in the 1842. At the 1847 there took place a reform of the local law of tutelage and guardianship to unify it with the Imperial one. After the beginning of the judicial reform in Russia it took place also in Bessarabia, and from the 1869 the province of Bessarabia became part of the Odessa’s Judicial Chamber District.
At the year 1825 the Russian Senate required from the Supreme Council of Bessarabia for Judiciary the information about the law applied in Bessarabia. The latter answered that there were actually applied as sources of Bessarabian law:
of Harmenopoulos – a private
compilation of Roman and Byzantine law, created in
2) The Law Book, written by a Moldavian nobleman (boyarin) Andronakiy Donič in 1814 as a practical reference book for judges. Here one could find not only the compilation of the positive law, but also an information about those Roman and Byzantine statutes, which were canceled by the local customary law and by the orders of the princes of Bessarabia. But the work of Donič was often insufficient to solve actual legal problems.
3) “The Charter about organization of the Province of Bessarabia» of 29 April 1818.
4) The Deed of the prince Alexander Maurokordat of 28 December 1785. 
The evident lack of the sources of positive law, written in Moldavian language, had its explanation. The Greeks-Fanariots, who were the only connoisseurs of Byzantine law, thought Moldavian to be too primitive and barbarian to find in it adequate terminology and concepts for the correct rendering of the legal notions and institutes.
The Senate ordered to the Asian Department of the Ministry of Foreign Affairs of the Russian Empire to translate the books of Harmenopoulos and of Donič into Russian. The translation was completed in 1828. But instead of working with Ancient (Medieval) Greek text, the Russian interpreters had based their work on the New Greek translation of the XVIII century. Thereafter a comparison of the New Greek version with the Ancient Greek original revealed a multitude of differences between them. Therefore the innovations of the New Greek version were indicated in the Russian translation by italics. The correspondent Ancient Greek original variants also presented here as marginal notes. The Second Department of the Governing Senate decided to apply these marginalia as the actual law.
Speaking about the duty of courts to apply the books of Harmenopoulos and of Donič as the positive law of Bessarabia, the Imperial Senate de facto made an interpretation of the Order’s of the Tzar Alexander I about the application of the local law in Bessarabia, because these Order’s didn’t explain the concrete meaning of the expression “local law of Bessarabia”. In the 1844 the Senate proclaimed that the Statute Book of the Russian Empire had to play only subsidiary role in the province of Bessarabia 
Already being the part of the Russian Empire, Bessarabia was almost unknown to Russians up to the 1917. Even at the middle of the XIX-th century many of them thought it to be situated in Asia, or confused it with Georgia. Therefore it is not strange that the Russian Ministry of Foreign Affairs found it difficult to understand location of the Bessarabian main city Kishinev, and the Department of Cassation of the Governing Senate regarded Bessarabia and Moldavia as former parts of the Byzantine Empire, despite of the fact that the Byzantine border was never being north of Danube. The Russian Empire took Bessarabia as a step to the invasion of Balkans and advancement of Bosporus. Russians sometimes regarded the native population of Bessarabia as an obstacle to the Slavonic unity, sometimes – as the Slavs, who had taken Latin as their own language. On the other hand, the image of the territory in the Russian Empire, where Roman law was actually in vigor had a great attraction for Russian lawyers. Some of them were under the influence of the view of Russia as a successor of the Roman and Byzantine Empires – the “Third Rome”. So, it was politically important to stretch a direct line of continuity from Byzantine to Russian positive law, as the Holy Roman Empire of the Germanic Nation had done in the Middle Ages.
But when the Russian Senate had actually to deal with the law of Bessarabia, it applied German manuals of Pandect law for its interpretation without making differentiation between the pure Roman law of Ancient Rome, “Modern Roman Law” of Germany before the year 1900, Byzantine law of Byzantine, and Byzantine law of Bessarabia, which was an another case. Taking into consideration, that this situation existed up to the catastrophe of the Russian Empire in the 1917, and that the Russian Senate finally permitted in the courts of Bessarabia direct references to the original sources of Byzantine law written in Ancient Greek, a historian of law can see here a delightful picture of a melting pot of different legal cultures, texts, traditions and languages, which is almost forgotten today.
 Šimanovskij M.V. O mestnih zakonah Bessarabii. Vipusk I. Obščie voprosi. [About the local laws of Bessarabia. Issue I. General questions]. Odessa. 1887. P. 8.
 Materiali dlja novejšej istorii Bessarabii. Zapiski Bessarabskogo Statističeskogo Komiteta [Materials for the modern history of Bessarabia. Memoranda of the Statistic Committee of Bessarabia ]. Vol. III. P. 143-144.
 Materiali dlja novejšej istorii Bessarabii. (note 2) Vol. III. P. 126; Šimanovskij (note 1) P. 41-43.
 Pergament O. J. O primenenii mestnih zakonov Armenopula i Doniča [About the application of the local laws of Harmenopulos and Donič ]. Saint Petersburg. 1905. P. 5.
 Grama D.K. Obščestvenno-političeskie i pravovie vozzrenija Andronakija Doniča [Social - political and juridical views of Andronakiy Donič ]. Kishinev. 1983. P. 37.
 Kasso Leo. Rossija na Dunae i obrazovanie Bessarabskoj oblasti [Russia on the Danube and the organization of the province of Bessarabia]. Мoscow. 1913. P. 228-229.
 Šimanovskij (note 1) P. 2; Egunov A. N. Pismo moe k redaktoru “Odesskogo Vestnika” ot 28 augusta 1868 goda [My letter to the editor of “Odessa Bulletin” of 28 August 1868] // Mestnie graždanskie zakoni Bessarabii [Local civil laws of Bessarabia]. Saint Petersburg. 1881. P. 145 ff.