“Alexandru Ioan Cuza” University Iaşi
Faculty ofHistory
The judicial system in Moldavia in the 17th century:
laws, procedures, penalties
Doctoral thesis
-abstract-
Doctoral tutor: Doctoral student:
Prof. Alexandru-Florin Platon, PhD Zaharia Georgiana
Iaşi
2013
1
Contents
Introduction……………………………………………………... / 5Documentary and historiographical reference points ………… / 9
1. The beginnings……………………………………………………… / 10
2. The period of the communist regime ……………………………… / 13
3. The ethnology and history of law …………………………………… / 16
4. New perspectives …………………………………………………… / 18
5. The sources ………………………………………………………… / 21
Conclusions …………………………………….……………………… / 25
I. Deeds……………………………………………………...... / 27
1. “Sfăzi”, beatings and“depărături” ……………….……………….... / 28
2. Theft and robbery …………………………….…………………….. / 30
3. “Committing murder”………………………………………………... / 32
4. Cusses, disobedience and treason ………………….……..……… / 35
5. Other deeds ………………………………………………………….. / 37
6. Deed and sin …………………………………..……………………. / 37
7. Case studies …..……………………………………………………. / 39
7.1. Burlă …..………………………………………………….… / 39
7.2. Isac Stârcea …..………………………………………………. / 41
II. The procedure ………………………………………………... / 44
1. Denunciations, plaints, complaints …………………………………. / 44
2. The research …………………………………………………………. / 46
2.1. The entitled persons …………………………………………… / 46
2.1.1. The boyars and the servants …………………………… / 47
2.1.2. Delegating and collaborating …………….…………… / 52
2.1.3. The plaintiff ……………………………….…………….. / 55
2.1.4. The village …………………………….……………….. / 58
2.1.5. Others …………………………………………………… / 60
2.2. The evidence and the evidence means ………………………… / 61
2.2.1. “The suspicion” ………………………….……………… / 61
2.2.2. The reputation ………………………………………… / 62
2.2.3. Capturing“face to face” ……………………….……… / 62
2.2.4. The research on the scene ……………………………… / 63
a. “The analysis” ………………………….……………… / 64
b. The“technical/medical”findings ……………………… / 64
c. The material means of the evidence …………………… / 65
2.2.5. The writs ………………………..…………………….... / 66
2.2.6. The testimony and the oath ………………………...…… / 67
a. The testimony, the oath, the co-jurors ………………… / 67
b. The perjury and the false witnesses ………………...... / 70
2.2.7. “Strânsoarea” and the tortures....……...... / 71
2.3. The surveillance…………………………………………..…… / 74
3. The end of the research …………………………………………....… / 76
3.1. The restitution and compensation …………………………… / 76
3.2. The agreement between the parties …………………………… / 78
3.3. Gloabe(fees) and deşugubine(fees for murder) ………….… / 80
3.4. Motivations of the research....………………………………… / 82
3.5. Surveillance order ………………………………………...…… / 83
3.6. Appealing to the competent body …………………………… / 84
III. The justice and the law………………………………….....… / 85
1. The justice ………………………………………………….…...…… / 87
2. The norms with legal function ……………………………………… / 87
2.1. The law ……………………………………………………...… / 89
2.2. The prince …………………………………………………..… / 90
2.3. The body of laws...... …………………………………….…… / 92
2.4. “The tradition of the country”and the custom ...……………… / 93
a. The tradition ……………………………………………….. / 93
b. The custom ………………………………………………… / 96
3. The applicability of the body of lawsin the 17th century ………...... / 97
IV. The judgment ……………………………………………….… / 107
1. Who was judging ………………………………………...………….. / 107
2. The place and time of the judgment ……………….....…………….. / 109
3. Obligations of the judges ……………………………….....………… / 112
4. The progress of the judgment …..………………………...…………. / 113
V. The punishment ……………………………………………..… / 116
1. The death penalty …………………………………….…...... ………. / 118
1.1. Beheading…..………………………………………...... …...… / 118
1.2. Hanging ……………………………………………...... …..…. / 119
1.3. Impaling …………………………………………..…...... / 120
1.4. Burning alive ………………………………………………….. / 120
1.5. Other methods ………………………………………………… / 121
1.6. The place of execution and the ritual ………….……………… / 122
1.7. The treatment of the corpse ……………...... ………………… / 123
2. The mine ………………………………………….……....…..……. / 128
3. “The prison” ………………………….....……………..…………… / 132
4. The beating and other punishments ………………………….……… / 139
5. Aggravating circumstances …………………………………….…… / 141
6. Attenuating circumstances ……………………………………….… / 141
VI. Justice, society and mentality …...... ………………………… / 143
1. “Good and old people” …………………………...... …………….. / 143
2. Justiceand punishment: between official regulation and social practice...... … / 149
Conclusions ...... …………...... / 155
Bibliography ……………………………………………………… / 161
The purpose of the thesis[1] is a detailed exposition of the Moldavian judicial system in the 17th century, with an emphasis on the less explored aspects in historiography thus far. Hence, I will present some of the deeds considered “criminal” today, the corresponding terminology, as well as its connection with the mindset of the period. This is followed by a detailed presentation of the procedure, with the purpose of showing the way the complaints were made, who had the power of acting one way or another in this sense and what was the evidence for the accusations. I will also show the way in which the delinquents were surveyed and the end of such actions. Before finding out what happened next, I had to present the sources and forms of the law in that period, for a better understanding of the legal thinking of that time, as well as of the type of normsthat guided people in solving issues of this nature.
Afterwards, I will present several aspects of the judgment per se. Though the subject of the princely judgment has been largely presented in certain works, it is still unclear what happened in the territory, outside the judgments made by dignitaries and by the alleged assemblies of the “good and old people”.
Also, few things have been told about the punishment, considering the amount of material on the subject. Hence, I analyzed both various aspects regarding the death penalty and other repressing measures for the wrongdoers. I have also made a (necessary) exposition of the “imprisonment” and mine punishments –generallyneglected.
The last part is different from the rest of the thesis, with an emphasis on the analysis of various issues regarding the society and mentality of the time, with the legal life in the foreground.
It is worth underlining that, thus far, the local people have not been seen as a part of the judicial system, with very few exceptions, though the importance of their role is apparent. I presented elements related to the fact that personal justice was still an important point of reference in that periodfor the way in which justice was done; however, insufficient details are available in this sense.
With few exceptions, the subject was presented (and even researched) from the perspectiveof the prince and of the structures supporting his existence (dignitaries, servants, etc.). Hence, I considered it important to present the things, as much as possible, from the other perspective, too. Furthermore, I aimed to find out the way the juridical life took place in the territory, beyond the theorisations regarding the judicial power of the prince and his seeming ubiquity.
I believe that, in a study of this type, the human factor and its intimate motivations should be privileged. I support this idea because, in the period studied, the judicial realities were marked by far more personal relationships than today; the contacts between the agents were intimate, as many institutional and bureaucratic barriers did not exist.
For a part of the issues presented, I have only provided starting points, with the possibility of further development (such as the differences between villages of free, land-owning peasants and the princely, boyar or monastery villages,etc; the destinations of the fees; issues regarding the torture, the calumny; the rapports between the master and the servant etc).
One of the most important premises of the thesisrefers tothe differences, and not to the similaritieswith nowadays, reason for which I tried to avoid, as much as possible,a modern perspective on the subject. For the same reason, I considered it necessaryto modify the terminology used in the historiographywhen this was possible, considering that the modern terminology is often inadequate for the realities of the 17th century.
Another important aspect was the stress onthe characteristics of the judicial system.To this end, I had to go beyond the type of approachused for some of the previous aspects (such as the judgment). In the past, the tendency was to present mostly the way in which certain legal actions took place theoretically (as concluded from certain descriptive sources, such as the testimonies of foreign travellers), without going further, to find out what happened concretely.
All this had the purpose of providing new informationon the so-called judicial system[2]of the historical period in question, and mostly of presenting an – at least – slightly different vision compared to those exposed thus far. My intention was not to make a simple enumeration, but to outline certain structures, phenomena, along with their determining factorsand, not least, with certain people.
For the 17th century in Moldavia,one may talk about the dependence of a great part of the law elements on both the morals and the mentality or on other aspects related to the communities of that period. The fact reflects, among others,in the visible expressions ofthe justice[3], from the terminologyto the character of the punishments.
For instance, the cohesion of the communitiesled to the creation of a certain type of justice. They had an essential rolein the control of the morals and of delinquency, implicitly. From this perspective, the relevant aspects are the direct involvement of the local people in the identification, capturing and sometimes even punishment of the wrongdoers, as well as the importance of reputation in a period when there were limited possibilities of investigating a cause.
The same union between individualsexplains the use ofshame as a prevention instrument or even as part of the punishment per se.The prince’s threats, which appear in documentsregarding the “great shame” or “the reveal to the village”, represent its materialisation. It was closely related to reputation and “honour” (mostly with the meaning of rank), and their “staining”had important social consequenceson the targeted individuals; their entire existence could be affected, even beyond death[4].
Coming back to the close connection betweenmoralsandjustice, it is worth noting that the first had an important religious content. Hence, the language that one could label “juridical” was mostly ethical and religious in that period,comprising the use of words such as: malice, error, sin, injustice, etc. The same feature is shown by the analysis of the deeds considered serious – a mixture of sins and infractions –,an aspect due to the religious foundations of the morals in that time. The ecclesiastical canons were part of the mixture of norms circulating in that period (either written or oral).
In the words of Paolo Grossi, “the choice [of the Church – author’s note] for law is a choice for the temporal and for the social”[5]. In other words, the status of the Churchand the diffusion of its preceptswere also ensured with help from the judicial power it had acquired.The Church delegates the right of judgmentfor certain types of causes and it also obtains immunities within a rather clearly outlined autonomy, which turns this institution into a real power, capable of imposingits own system of normson an entire society. The close collaborationbetween the political and the ecclesiastical power is visible in many aspectsof the juridical life of the period; some of the most important signs are the close normative relation between them and the financial power of the latter.Both the ecclesiastical and the monastery or bishopric courts were oftena kind of local seigneuries, with administrative and jurisdictional rights.
The prince granted these rightsin order for those establishments to find sources of revenues. The motivation seems to have been similar for all the other courts. There were also motivations related to prestige, especially for the most important such courts (the princely council, the metropolitan or bishopric courtsand some dignitary functions).
The personal relationshipbetween the boyars and the people on their territoriesor those under the “jurisdiction” of their dignitary functionconferred certain characteristics to the pâră (denunciation, in modern terms). Naturally, it was less official, considering the different form of the “institutional” order in that epoch. The boyar was familiarized with the people – another reason for which the legal issues were treated differently –,which leads to the impression that settlements and agreements were the only endfor these causes, seen this way by the foreigners;the personal knowledge of the judge could be taken in as evidence in “court”.The organizational type is due to the content of the basic notion ofpâră. The lack of an intermediary proceduresimilar to the current denunciationled to doing a single action (thus using just one term) comprising both the warn that an infraction had been committed and the indictment per se.
The involvement in various causes could determinethe mobilisation of the entire family or group, and the relationships between members changed dramatically at times. Such an example is represented by disinheritances orby various conflictsthat could develop while solving an issue;the land-related conflictsbenefit from a richer illustrationin the sources preserved. The loss of such assets altered both the material and the social status of those persons. The change was caused by the deeds committed, by the payments for others (undiscovered or absent) or following accusations made to get revenge or out of grudgeetc.
Certain rapports and juridical customsalter after the intervention of the non-native factor. More and more Greek boyarsappear and they bring along new customs, often contradicting the local traditions. The fact that some of them were not willing to maintain the old customs determinedthe (probably partial) reversalof a predetermined order; one of the consequences was the fact that many injustices were committed in “court”.
In this context,the issue of the priorities of the people invested with administrative and judicial powers rises. Which came first: the desire or need to catch and punish the wrongdoers or the wish to get more revenues?I believe that the two did not exclude each other, regardless of the form of the sanction (body punishment or fee), because the payment for the dignitary and for his servants was ensured either way.
There have been discussions on the existence – even a century prior –of two parallel administrative regimes:the ones of the State and the local, unofficial one. It was explained by the fact that the State structurescould not interferewith certain pre-existing interests in those areas[6]. That solidarity – voluntary or imposed several centuries before – conserved its power and it was visible in some kind of a juridical isolation (also encouraged by the autonomy). The conclusion is that the last had always been present, to a greater or lesser extent, partially indifferent to the centralizing policies of the princes,as not even the princes had in mind to monopolize all the aspectsconcerning the juridical life of the communities[7]. Furthermore, this parallel regime was favoured by the personal character of the institutionsor by factors such as the geographic one. An equally important aspect seems to have beenthe strong spirit of preserving the tradition, expressed in all fields of life, including in keeping the order and seeking justice.
The form of juridical order in 17th century-Moldavia was funded on the pluralism of its sources. Tradition was the one that guidedthe entire social and juridical life, and other types of norms were destined to complete it when needed or when punctual issues had to be solved (such as the princely documents issued in specific situations and required by momentary necessities).
The so-called judicial systemfunctioned by different rules than those of today, as both form and origins, which rose from the very type of society within which it operated. These major differences make it difficult to understand without an overall view on the epoch and on the mentalities. This is why it was impossible to set a clearer delimitation than the one presented in the part of the juridical life analyzed.For instance, though my purpose was to study and to presentthe issues related to the “criminal” aspect, a division between criminal and civil causes would have been inexact and in disagreement with the reality. They could be classified, at the most, by the courtsto which they belonged, but even this aspect was hardly determined (or respected) during those times. The centralization occurredonly to the extent and in the fields that would have stirred the interest of the prince or of the Church; the high boyars also thought of their own advantages.
Despite certain assertions and the way in which the matter has been presented thus far, the deeds which triggered denunciations were often investigated, though this aspect is not much stated in the sources[8]. Furthermore, regardless of the taxation level of those times, physical punishments were still applied, including death penalty. One should not forget that both the prince and the servants (of all ranks)were still men of their times, regardless of their more or less ardent desire to get richer.
The issues solved today institutionally for the most part were dealt with by the direct contact of the interested parties in the 17th century – including via recoveries and private revenges.As for the investigation methods – though empirical to a great extent –,it is worth underlining that the testimony and the oath were not the only ones used, as shown throughout the thesis.
Inevitably, the juridical order did not have a constant expression throughout the century,as it was closely connectedwith the power and with the duration of the reign of those whocame one after another on the Moldavian throne in the period studied. The more stable reigns, such as that ofBasil Lupu, brought a certain balance of the juridical life. The opposite happened during shorter reigns, as it was known that, often, the energies of the princes focused not on the effective administration of the country, but on recuperating the money invested in the throne and on getting richer.
For instance,the princes stopped believing it was beneficial to apply only physical punishments and they preferred to give the possibility of paying fees for certain deeds. From this perspective, the priorities changedunder the circumstances of the new political situation: the prince now ruled over a rather homogeneous territory, without the centrifugal dangers of the beginnings. Hence, the initial significance and importance of the harshest punishments was partially lost (except for those for treason or similarly serious deeds). Now the prince transformed his right – the punitive power – into a source of income, which was important to support any reign (all the more in the new tax-full system determined by the modified relation with the Porte).