N. 8
– 2009 – Note & Rassegne
“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often repealed the judgment of his predecessor or of his judge, and the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.[1]
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.[2] These attempts to conserve the dominance
of the old elites were partly successful.[3] 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.[4]
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».[5]
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.[6]
«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.[7]
“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.[8]
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.[9]
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.[10]
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:
1) Hexabyblos
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. [11]
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.[12]
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.[13]
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 [14]
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.[15] 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[16].
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[17].
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.