Bulletin of the Transilvania University of Braşov Series VII: Social Sciences • Law • Vol. 8 (57) No. 2 - 2015

THE EVOLUTION OF WRITTEN LAW UNTIL THE PHANARIOT RULING. ASPECTS REGARDING LAW IN THE PHANARIOT AGE

C. MURZEA1 R. MATEFI 1

Abstract: This paper aims to analyze the evolution of the written law until the Phanariot rulings, also poring over some general issues regarding law in the Phanariot age. A very important role in the development of the feudal society was played by the appearance of the books of law which were written both in an ecclesiastic manner and in a laic manner. The written law was meant to provide increased authority to central power as opposed to unwritten law.

Key words: written law, rules, Phanariot period, reforms, evolution.

1. The Evolution of Written Law in the namely legal custom, which allowed for Romanian Country and the possibility of local leaders, the great feudalists, to have different regulations, The centralization of the feudal state was which would affect the very functioning achieved by the initiatives of the lords and existence of the feudal state, supported by the Orthodox Church. One threatened by these discrepancies and the factor which contributed to the overall political division. development of the feudal society was the The appearance of the religious books of appearance of the books of law which were law would also provide an increase of the written both in an ecclesiastic manner and lord’s power along with the authority of in a laic manner, which would legalize and the Christian orthodox cult, as they were regulate the feudal reports which existed elaborated on the order of the lord or the on an economical, social and political high clergy. In regard to the content, these manner. These would represent true works legislative monuments contain specific of art, as they would regulate religious regulations of civil law, criminal or matters as well as customary laic matters, procedural law, profoundly affected by which reflected Christian spirituality in religion, as it was a time when the connection with the practical aspects of religious ideology was the main form of material life. manifestation for doctrine in the feudal Written law provided increased authority state. to central power, which was represented by The Orthodox Church in the Romanian a lord, as opposed to unwritten law, country, much like all the churches of the

1 Law Department, Transilvania University of Braşov. 228 Bulletin of the Transilvania University of Braşov • Series VII • Vol. 8 (57) No. 2 - 2015 same religion from south-east Europe, was Negosianus book of law [5]. Between 1560 under the authority of the High Patriarch of and 1562, the deacon Coresi printed the both from an ecumenical Book of the Holy Apostles at Saint Nicolas point of view and an institutional one. The Church in Brasov, based on the teaching of Byzantine influence would manifest in Vasile the Great. In Moldavia, Eustatie regard to the content and the form of the draws up the Chosen book of law in 1632 religious books of law and also the laic by translating certain books of law from books of law, as they contained similar Greek which were written a century provisions with those of the Byzantine before. Empire in regard to organizing society On the order of Matei Basarab, in 1640 from a political, economical, social and the Govora book of law is drawn up and religious point of view. printed [3]. Along with canon law, it had We can state that, through these rules regarding the division of inheritance, interferences, a law system was designed, the respect adopted and natural children one with common regulation in all must have for their natural or adoptive Romanian countries which were at the parents, cases in which marriage was not same stage of development and had similar allowed, sexual crimes and so on [5]. tendencies to evolve given they all The Govora book of law would be belonged to the same religious cult. The published in two identical editions, one for Byzantine influence comes from the the Romanian Country and one for Slavic, as the first books of law were Transylvania [1], which certifies the written in Slavic. Mid 16th century, given unified development of the three that these books of laws „were to be Romanian countries as well as the fact that applied to a people who did not know the the laws were addressed to the same Slavic language” the religious books of people. law would be written in Romanian [1]. By following the main provisions of The Byzantine influence over the first these books of law, we can see that it books of law is exemplified by the contained specific provisions of church translation of the work called „The Matei law or the history and organizing of the Vlastares’Nomo Canon” which was first church, as they regulate the legal drawn up in 1335 several times, in 1452 in conditions of people in regard to divorce, Targoviste by the writer Dragomir, in 1974 marriage or civil in-laws, regulations of by Ghervasie from Neamt, in 1495 by the contracts or criminal law provisions of writer Damian [5]. antisocial deeds seen as sins, as well as the Another copy of this manuscript was regime of punishments. made in 1636 in Bistriţa (Monastery from The material law provisions as well as ) on the order of Matei Basarab’s procedure law provisions, which were wife [5]. Other books of law in Slavic are influenced by the Byzantine society, would the 1557 one from Neamţ, the 1581 one represent the indirect and mediate way by from Putna, the 1698 one of Bistrita which Roman law influenced the legal (Moldavia), the Chosen book of law of regulation in the Romanian countries. 1632, the Galati book of law (17th The legal regulations are not listed in century), Nicon Cernogoretul’s books of categories or branches of law, they are law (a summary of Byzantine religious listed randomly along with the religious law). During the 16th century, the first ones; when analyzing this, we can see that books of law are written in Romanian – they were meant to conserve the feudal The Good Book of Law and Codex structures, by strengthening the position of C. MURZEA et al.: The Evolution of Written Law until the Phanariot Ruling. … 229 church in society and the ruling social legitimated by the ruling, as well as the class which had a privileged position. privileges of the great nobles. The most important regulations The institution of patrimony is described regarding written law were drafted mid in detail, discussing the legal regime of 17th century, namely the Romanian Book private property, goods, life interest, as of Teaching (1646) and The Amendment well as issues of obligations, contracts and of Law (1652), and were true codes of laic legal liability which resulted from and legal content. committing illicit deeds – bad faith, guilt. Based on a short analysis, we can see In regard to succession, it had rules that the provisions of these two regulations regarding capacity, categories of heirs, the are nearly identical in content and form, content of the legate and replacement of which proves the unified development of heirs. The criminal regulations would the Romanian courtiers as well as the accentuate social inequality both in regard tendency to consolidate and centralize the to sanctioning certain antisocial deeds, feudal state, an action of the rulers of those called „guilt” (crimes) and in regard to the times. regime of punishments (the punishment In 1646, by the order of the lord of was called argument). The book described Moldavia, Vasile Lupu, the Romanian a series of institutions of criminal law such book for teaching from the emperor’s book as – attempt, relapse, committing several of law was drawn up by Eustatie, who crimes as well as circumstances which stated, in the preface of the book, that he remove the criminal character of the deed used both „Greek and Latin paragraphs” as (minority of the perpetrator, self defense, well as the work of Italian writer Prosper order from the superior and so on). Farinaccius, named "Prexis et theoricae The character of these regulations is criminalis" [5]. He also shows in the obvious from the way it protects and preface, that the main formal sources of values subjective rights. Thus, the law, namely law and custom, were studied. extrajudicial way was used by the feudal He divides the branches of law into "ius nobles as well as the common way, the humanum", "ius divinum" and "ius judicial one. Also, the fact that some naturalae". people belonged to a certain social class There is a new principle which appears, sometimes eased the punishment or phrased in a rather stylized manner, absolved the people or sometimes it namely that of the legality, when it is aggravated it. stated that – „Feudal law should be known The second written law, the Great Book and respected by all the inhabitants of the or the Amendment of Law was edited and country" [6]. printed in Targoviste on the order of Matei The book of law discusses several law Basarab in 1652 by Daniil Panoneanul. institutions both of material, civil and This law had the same content as the criminal nature, as well as those of Romanian Book of teaching, as both works procedural nature, which proves an were based on the same sources which evolution in the procedure of creating were to be translated. The second book laws. In the economy of this law, an contains, in the final part, some important space is granted to property, the appreciations regarding areas of general regime of people, as well as criminal interest such as – medicine, grammar, provisions, which would protect the philosophy or economical issues. regulated values of the feudal state, 230 Bulletin of the Transilvania University of Braşov • Series VII • Vol. 8 (57) No. 2 - 2015

2. The Evolution of Written Law in law. Regulation of the class privileges of Transylvania these written provisions is proved especially in regard to succession, as it The process of creating laws in stated that the lands of slave peasants who Transylvania was affected by the had no successors belonged to the legitimate tendency of Romanians to keep Hungarian king and, later on, to the noble and enlarge their autonomy and to force owners [1]. „the law of the land” as their own legal At the same time, we acknowledge the system and the policy of centralizing the active resistance of the Romanian people, state promoted by the Hungarians, who who, according to their own rules, seek to wished to enforce their system of law, enforce their system of law, based on the which was in complete disagreement with regulations of the old Romanian law, the interests of local nobles, represented by called „the law of the land”, seen mainly in the „three nations” acknowledged as such Fagaras country. until principality was established. In the When the autonomy of the Country of voivodship of Transylvania, the documents Fagaras was threatened, through coming from the Hungarian crown would „universitas saxorum”, the Romanian play a secondary role in the law system of fought in the 1503 and 1508 rebellions Transylvania. and, in 1508, obtained the codification, in The effort to organize law reflects the Latin, of the old customs as regulated in tendency to centralize the state, as „the statute of Fagaras Country”. promoted by Hungarian regality. In this This law was similar to the regulations in context, the 1517 collection of laws drawn the Romanian Country, considering the up by Stefan Verboczi, on the initiative of traditional liaisons which existed between Gladiola the third, tried to codify the the two, as the same institutions were written and unwritten legal regulations. regulated in regard to property, family or When the new political regime was succession. Similar regulations between established leading to the ruling of the the three Romanian countries are seen in Austrians, the Leopold Code of 1691 regard to collective liability, an old stated the provisions of the Verboczi institution of the territorial village, as well Tripartite which regulated the privileges of as the common use of certain portions of the three nations and the four cults grassland or forest. „acknowledged in Transylvania”. There are similar regulations in criminal The status of these privileged nations matters, both in regard to criminal deeds was to be defined by the document called and the punishments which must be „Unio trium natiorum” passed in Capalna applied. The existence of common in September 1437, which excluded the regulations between the three countries majority Romanian population from the proves that legal custom which was the political life of the voivodship, by basis of these regulations was unique and considering them a nation which was the Romanian people, even though, given merely tolerated. State political power was the historic hardships, had to live in exercised by the Hungarian nobles, the different countries, they had a unified German and the Szekler ones [4], as evolution provided by common order and Verboczi’s code regulated slaves, by the orthodox belief. The autonomy of pointing out the autonomy of the Transylvania, as stated by the 1504 voivodship by making a clear distinction Sighisoara Code, emphasized that the laws between Hungarian law and Transylvanian C. MURZEA et al.: The Evolution of Written Law until the Phanariot Ruling. … 231 passed by Hungary would no longer cause regime. During this age of over a hundred effect within the autonomous principality. years, 40 lords were named in the The great number of laws would Romanian country and 36 in Moldavia, determine the Transylvania Assembly to thus considering the interests of the codify it in the book called "Approbatae ottoman ruling, as when a new lord was Constitutiones" between 1540 and 1563 named, a significant tax called mucarer and "Compilatae Constitutiones" between would be paid. Annually, the small 1653 and 1669. Thus, a unique document mucarer also had to be paid to the ottoman was created, called" Approbatae ruling. Compilatae Constitutiones", an act which However, these frequent changes had a would prove the autonomous status of the positive side, as for example Constantin Transylvania principality. By this legal Mavrocordat, by ruling six times in regulation the policy of local nobles Muntenia and four times in Moldavia, interested in maintaining the class created the necessary background for a privileges of the feudal order were unified evolution of these countries, a reaffirmed. unified political and legal evolution in The work of codifying the written and order for these countries to unify on a unwritten regulations would also be political level. achieved in regard to city population, who The relations between the Ottoman drew up the paper called „The status of Empire and the two Romanian participates village municipality” (1583), a paper with were regulated by several documents, civil law provisions (obligations), criminal passed by the sultans – the documents of and procedure regulations. 1774 regulating the peace treaty of Kuciuk-Kainargi, the 1783 one or the 3. Law in the Phanariot Age 1791 and 1792 ones, documents which did not acknowledge the old right of the By establishing the Phanariot ruling, the Romanian Countries to choose their own ottoman domination became more severe lords [2] . on a political level, which led to a Through these treaties, several financial restriction of Moldavia and the Romanian obligations were regulated, obligations of Country’s autonomy. the Romanian Countries to the Ottoman The Phanariot ruling, named as such, Empire. The provisions of the Kuciuk- after the Fanar neighborhood in Kainargi peace treaty referred to the Constantinople, a neighborhood where a necessity of opening the first consulates in large Greek community lived, from which Iasi and . Thus, the Russian the future rulers of Moldavia and the consulate appeared in 1782, followed by Romanian Country would be named, those of Austria (1783), Prussia (1785), would begin with the reign of Nicolae France (1798) as well as (1803). Mavrocordat, the son of Alexandru The presence of the consulates led to the Mavrocordat (1711 in Moldavia and 1716 creation of a legal regime which favored in the Romanian Country). foreigners who lived in the country, a The Phanariot age ended in 1821 with the regime which was annulled during the 19th revolution led by Tudor Vladimirescu. century as a result of the efforts made by During this time, the ottoman ruling the Romanian diplomacy. manifested by the frequent naming of the The situation of the Romanian countries rulers from Istanbul, thus naming as rulers was aggravated by the strenuous evolution the people who were loyal to the ottoman of the relations between the great powers 232 Bulletin of the Transilvania University of Braşov • Series VII • Vol. 8 (57) No. 2 - 2015 in this area, thus, between 1711 and 1812 are, from the past and until now, free in six wars occurred between Turkey, Russia every way..."[2]. and Austria who, by acting in an alliance The Phanariot ruling was a time of or separately, caused territorial loss to the economical regress, which increased the Romanian Countries; among these, Hotin privileges and the fortunes of the great was transformed in a Turkish province in nobles and burdened the people with 1713, Bucovina was given to Austria in excessive taxes. 1775, the territory between the rivers Prut Given all these, the Phanariot age led to and Nistru was lost to Russia in 1812 and new reform which, in the spirit of the Oltenia was temporarily annexed to enlightened tyranny, attempted to settle Austria between 1718 and 1839 [2]. any social and political tensions by The negotiations of the great powers, at preserving, as much as it was possible, the different peace treaties, made possible the structure of the feudal society. presentation of some memoirs from the Also, another stage was that when steps Romanian front ranks who required the were made towards the unification of the enforcement of the country’s law regarding Principalities, the successive reforms made autonomy and the appointment of the in one country or the other, initiatives in rulers as well as the ideas which supported culture, by pointing out spiritual unity and the national party program, aiming to unite by being aware of the fact that Romanians Moldavia with the Romanian Country speak the same language, have the same under the ruling of a single Romanian habits and are a part of the same people. prince (see the Focsani treaty of 1772). The most eloquent document which 4. Constantin Mavrocordat’s Reforms valorizes the desire of national emancipation of the Romanians from the Constantin Mavrocordat inherited from Participates is represented by the 1807 his father Nicholas Mavrocordatos the memoir addressed to Napoleon I, the inclination toward culture and acquired emperor of France, requesting the skills in the arts of diplomacy. unification of the two Romanian countries He tried to give a new orientation to the and their independence from any foreign overall development of the Principalities power. implementing through the reforms that Thus, the program of the national party were to promulgate the thesis and began to form; its objectives would be principles defining the political rationalism accomplished later, namely the unification and enlightened despotism. of Principalities in 1859 and state His reforms had the gift to strengthen the independence - 1877 – 1879. political and legal scaffolding which Even if the Romanian countries’ supported the feudal state, which was in a independence was severely weakened by process of profound change as a result of the phanariot regime, the political – penetration of the new mode of judicial status of the Principalities was production’s ideas, the capitalist one. acknowledged by the , The principles that define Constantin who, by the Book of Law (kanuname), Mavrocordat 's political reform would be passed by the sultan in 1792, synthesized in the 13 articles of his acknowledged that the imperial Constitution of 7th February 1740 administration had no power over the published in "Mercure de France" in the internal ruling of he country, by saying that issue of July 1742 . – „The Romanian Country and Moldavia C. MURZEA et al.: The Evolution of Written Law until the Phanariot Ruling. … 233

The documents were aimed at the Wishing to modernize the society, new reforms implemented by 1740 regarding legal regulations on the organization of the the regulation of the financial system and management of cities were introduced. the priestly class status and the in The measures in the social area which general. were stipulated in the 1740 Establishment, According to him, the status of nobleman strengthened the position of the boyars to was given by the condition of fulfilling a the detriment of exploited peasants who royal service and not by the ownership of were denied the right to move from one certain buildings or land, which announced estate to another, as well as by the new the introduction of a modern principle in regulations which made it possible to qualification the status of an official in the increase their employment benefits, state. A ranking of the class was however ultimately all those led to the produced by the same institution, raising of bejănie (fleeing abroad). depending on the importance of the jobs As a result of this natural phenomenon, held by such distinguished boyars called " between 1741-1746 the number of veliţi " occupying important governor taxpayers in the Romanian Country halved positions and “mazilii "which had a lower [1], which prompted a new trend in law rank as compared to the former. regarding the legal condition of the Being an advocate of strengthening the peasantry by abolishing "rumânia" in the power of large landowners in the state, Romanian Country in 1746 and "serfdom" Constantin Mavrocordat exempted from in Moldova in 1749. taxes the category of veliţi boyars, while By two consecutive charters from March the mazili category was liable for only part 1 and August 5, 1746 the rumânia, of the taxes levied on. The clergy would meaning the dependence of peasants, was benefit of tax relief but its jurisdiction right disbanded. Through the first act, the would be limited thus attempting to runaway peasants that returned on the secularize the society’s organization. estate where they wanted to settle, were In the fiscal area the reform was the ensured the release from rumânia. introduction of the single tax called civic For to the new nobleman they were customs that basically achieved a required to perform a number of days of unification of taxes owed. Its amount rose work. to 10 lei annually payable in four quarters, Given the scale of the phenomenon and but due to the increased demands of Turks ambiguous formulations concerning the it reached six or twelve quarters. deadlines required by the first charter, The administrative reform was to change namely the date on which runaway the chief magistrate and head masters of peasants could return , on August 5 it was the counties with two stewards. In this area issued a new decree which provided free modern principles that came to abolish the release of all Rumanians. However, if the old feudal practices were introduced, like owners did not want to freely release introducing a system of remuneration of peasants, they could redeem their freedom the rulers with salaries obtained from the by paying 10 thalers [7]. country's treasury. In 1749 through a similar reform vicinia However the rulings pronounced by was also abolished in Moldova with the officers were recorded in special books difference that there was no talk about with the aim of curbing the arbitrariness paying any money in exchange for the and abuses. release of the peasants. 234 Bulletin of the Transilvania University of Braşov • Series VII • Vol. 8 (57) No. 2 - 2015

Under these reforms the dependent issued during the period covered by our peasants form the Principalities became study. free men and would be called clăcaşi in the future, as they conclude the pacts with the References landowners, according to land records. These reforms have facilitated the 1. Cernea, V., Molcuţ, E.: Istoria statului penetration of capitalist relations in şi dreptului românesc (The history of agriculture and also abolished the feudal the Romanian state and law). relations in which peasants exercised a Bucharest. Şansa SRL Publishing right of use of agricultural land, leading to House and Press, 1994. the consolidation of absolute ownership 2. Giurăscu, C.C., Giurăscu, D.: Istoria and division of the divided property. românilor din cele mai vechi impuri According to new regulations the great până astăzi (The Romanians history feudal property was released by the right to from ancient times until today). use of the peasants [1]. Bucharest. Albatros Publishig House, Through these reforms Constantin 1975. Mavrocordat actually reinforced the 3. Mihăilă, G.: Literatura română veche position of nobility and introduced new (Old Romanian literature). Bucharest. forms of exploitation of the peasantry, Albatros Publishig House, 1971. while also achieving a consolidation of the 4. Pascu, S.: Istoria Transilvaniei (The central power. history of Transylvania). Cluj Napoca. Lumina Publishing House, 1980. 5. Conclusions 5. ***Istoria dreptului românesc (History or Romanian Law). Bucharest. This paper, divided into three sections - Universul Juridic Publishing House, The evolution of written law in the Volume II, part I., 2010. Romanian country and Moldavia, The 6. *** Cartea românească de învăţătură evolution of written law in Transylvania, (The Romanian book of teaching) Law in the Phanariot age, Constantin 1946. Bucharest. Critic Publishing Mavrocordat’s reforms - highlights the House, 1961. benefits of the written regulations in 7. *** Tratat de istoria statului şi dreptului relation to the unwritten law, containing an românesc, Vol.II (Treaty of Romanian evolution of the main written regulations state and law history). Bucharest. Academia Publishing House, 1984.