On the application of Byzantine law in modern Bessarabia

Ðàçìåùåíî íà http://www.allbest.ru/

On the application of Byzantine law in modern Bessarabia

À.D. Rudokvas, A.A. Novikov

St. Petersburg State University,

St. Petersburg, Russian Federation

The article describ es the application of Byzantine law in the region of B essarabia which formed part of the Russian Empire from the early 19th century until 1917. The empire allowed the local population to apply their local laws for the regulation of their civil law relations. Due to historical reasons, these local laws were identified with the law of the Byzantine Empire which had already disappeared in 1453. The authors of the article provide a general description of the sources of Bessarabian law and then turn to case study research regarding the jurisprudence of courts on the issues of the Law of Succession in Bessarabia. They demonstrate that in interpreting the provisions of the law applicable, Russian lawyers often referred to Roman law as a doctrinal background of Byzantine law. Furthermore, they did not hesitate to identify Roman law with Pandect law. Even though the doctrine of the Law of Pandects had been created in Germany on the basis of Roman law texts, it was far from the content of the original law of the Ancient Roman Empire. The fate of the practical application of Byzantine law in Bessarabia reflects some general problems of the `legal transplants' in the history of law and therefore provides additional materials for the theoretical study of the issues of `legal transfer' in history and nowadays.

Keywords: private law, Byzantine law, Roman law, Bessarabian law, Russian Imperial Law, legal transplants, fideicommissum.

bessarabia law byzantine empire

Introduction

As it normally happens in every Imperial state since Roman times, the peculiarity of private law in Old Russia consisted in the diversity of the legal systems which were applied for the regulation of private law relations in various territories of the Russian Empire. That is why the inhabitants of such territories could live under the rules of civil law which were quite different from the provisions of the Imperial statutory law, as the latter manifested itself in the Statute-book (“Svod Zakonov”) of the Russian Empire¹.

One such region with its own local civil law was the province of Bessarabia, nowadays the Republic of Moldova. In a posthumous 6th edition from 1897 (corrected and amended) of the manual of civil law by the most prominent pre-revolutionary Russian civil law specialist Dmitrii Meyer, one can find a general description of the situation:

After annexation of Bessarabia by Russia under the terms of the Treaty of Bucharest of 1812 Statute-book of the Russian Empire. Accessed November 20, 2020. The Treaty of Bucharest was signed on 28 May 1812 between the Ottoman Empire and the Russian Empire. It ended the Russo-Turkish War of 1806-1812. Under the terms of this treaty, the Ottoman Empire ceded to Russia the region of Bessarabia, situated between the Prut and Dniester Rivers, which previously formed the eastern half of a vassal of the Ottoman Empire -- the Principality of Moldavia. Accessed November 20, 2020. . the statutes previously applied there remained in vigor. These are: the Hexabiblos of Constantine Harmenopoulos Constantine Harmenopoulos (1320 -- ca. 1385) was one of the highest judges in the Byzantine Empire, and is well known by his Hexabiblos (1344-1345). It is a law book in six volumes in which he compiled a wide range of Byzantine legal sources. The Hexabiblos was widely adopted as a source of the law in vigor in the Balkans under the Ottoman Empire (Const. Harmenopuli. Manuale legum, sive, Hexabiblos: cum appendicibis et legibus agrariis. Accessed November 20, 2020.)., the “Law Book” (Summary of laws) of Andronakiy Donic Andronakiy Donic (Andronache Donici (Donitch) (1760-1829) was a famous local lawyer who published his “Law Book” (Summary of the local laws) in 1814 (Summary of the local laws. Accessed November 20, 2020. , the Deed of the Prince Alexander Maurokordat Alexander Maurokordat (Alexandru I Mavrocordat) was a ruler (hospodar, that is `lord') of Moldavia (1782-1785). He issued this deed on 28.12.1785 (Accessed November 20, 2020 item/343408).. The common imperial statutes became only a subsidiary source of law. The repeated attempts of the Russian government to create a special statutory-book of the local laws for Bessarabia did not have any practical result; the local legal sources are still in vigor and the governmental activity revealed itself only in promulgation of a few special statutes to replace some old national statutes in the edition of 1831 and 1854 of the official (Russian) translations of the above-mentioned sources of Bessarabian law. As far as it is concerned that part of Bessarabia, which Russia annexed under the Treaty of Berlin of 1878 The Treaty of Berlin was the final act of the Congress of Berlin (13 June -- 13 July 1878). As a result of this treaty, Austria-Hungary, France, Germany, Italy, Russia, the Ottoman Empire and the United Kingdom revised the Treaty of San Stefano, which had been signed on 3 March the same year. Inter alia, under the terms of the Treaty of Berlin Romania was forced to cede Southern Bessarabia to the Russian Empire (Accessed November 20, 2020.)., its legal situation became just the same as that of the part which had been annexed by Russia previously (Meyer 1897, 23).

But due to the interpretation provided by the Civil Department of Cassation of the Governing Senate of the Russian Empire in its decisions 1895, No. 78 of and 1914, No. 37 Hereinafter, all judicial acts of the Civil Department of Cassation of the Governing Senate of the Russian Empire are referred to as they are available on the electronic resource “Zakon.ru”. Accessed November 20, 2020. , the civil law of Romania should be applied to those territories of Bessarabia which Russia had annexed under the terms of the Treaty of Berlin of 1878. According to the decisions of the same Qvil Department of Cassation of the Governing Senate (1881, No. 14; 1885, No. 59; 1886, No. 25; 1900, No. 72; 1902, No. 9; 1909, No. 35; 1910, No. 74; 1911, No. 78; 1915, No. 49), not only the above-mentioned Hexabiblos should be applied in other parts of Bessarabia but also the additional sources of Roman and Byzantine law, including the Basilics⁸. The Basilics were a collection of laws completed in c. 892 AD by order of the Byzantine Emperor Leo VI the Wise in order to adapt the Corpus Juris Civilis of the Emperor Justinian because the latter had become outdated already.

Under the decision of the Civil Department of Cassation of the Governing Senate of 1909 No. 73 in the case of ambiguous expression in the official Russian translation of the Hexabiblos, the court could take into consideration the original Greek text (Guliaev 1912, 8). In one of its decisions, the Senate explains in such a way the hierarchy of the sources of private law in Bessarabia: “any trial on the civil right should be solved by the law that interpreted and protected the contested right; the local laws are applied in trials of the Bessarabia region and only if they are insufficient the common laws of the Empire are used... The Chamber considering all the circumstances must have determined what questions of law were to be resolved and after that, refer to the local norms. If these laws due to their incompleteness or cancellation could not give a direct decision of occurring legal questions it was necessary to refer to the common laws of the Empire” (Bertgoldt, 1896, 216).

1. Basic Research

1.1 General Issues of the Application of Byzantine Law in Bessarabia

Bessarabia had not been thoroughly studied by Russians until 1917. It was often assimilated to Asia or Georgia even in the documents of the 19^th century. And even some officials of the Ministry of Foreign Affairs hardly knew what region the capital of Bessarabia -- Kishinev -- was attributed to. The Governing Senate of the Russian Empire classified Bessarabia and Moldavia as former Byzantine lands, although the power of the Byzantine Empire never reached the territories to the north of the Danube. On the other hand, many Russian people were interested in Bessarabia since it was connected with the aims of the Russian Empire's foreign policy. Originally Bessarabia was considered to be the first stage for further conquest of the Balkans and advancement to the Bosporus. Due to the ideas of Pan- Slavism that had a great influence in Russia during the 19^th century, Russian writers of this period perceived the population of Bessarabia as a Romanian population which would be an obstacle for Slavic consolidation, or as Slavs who had accepted the Latin language (Kasso 1913, 228-229). On the other hand, the image of a territory of the Russian Empire where Roman law was applied in its original form attracted Russian lawyers and historians.

The period of reforms, which were taking place in Russia in the 1860s-1870s, was characterized by a great interest in foreign legal experience and especially in Roman Law as ratio scripta. The strict application of Roman law in one of the provinces of the Russian Hereinafter, The Basilics are referred to as they are available on the electronic resource “Brill”. Accessed November 20, 2020. Empire stimulated sincere enthusiasm among specialists in the field of jurisprudence as well as a broad public. Many of them were very delighted to see the origins of Roman law in Bessarabian Civil Law and expressed their attitude to these traces of Roman law in Bessarabia in such words: “In all of the country's history, the legislation is fantastic as there is a celebrated Roman law with its solid origins and broad in details merged with rude mix of rules taken from customs based on impetuous sensuality and unbridled impulses of the people, and this legislation often yielded to orders and statements brought not from the people's consciousness, not from pure ideas of justice, but from greed and oppression” (Egunov 1881b, 197-198).

The charm of “a living Roman Law” was represented also in the local Bessarabian press. One of the articles of the issue No. 186 of the “Odessky Vestnik” (Herald of Odessa) referred to the laws of Harmenopoulos and Donic as the etalon in legislation. Even judicial procedures in Bessarabia, that “become frequent not because of passion for barratry but due to the development of a perfect individual in all social strata and a legal possibility to protect it against any unfair oppression”, were idealized. Such idealization of Bessarabian Law was criticized by A. N. Egunov, a member of the codification commission (Egunov 1881a, 145-146). In his opinion, there existed only statutory provisions but not the law of Bessarabia because “any local law is lacking here at all in that sense of the term which we are used to attributing to the notion of Russian, French or Roman law” (Egunov 1881a, 146).

Egunov was so skeptical about the quality of the local law of Bessarabia because he saw that its sources “represent the Hexabiblos of Harmenopoulos, developed in 1345 in the ancient Greek language and badly translated once into New Greek at the end of the last century and then into Russian in 1831. At the same time as if for even greater confusion, an unnecessary and unimportant original of the Hexabiblos in the New Greek language was included into the edited Russian translation, while the text in ancient Greek was used in footnotes, despite the latter variant being the only one which had formal vigor in our trial” (Egunov 1881a, 146).

The abovementioned author knew well the disadvantages of the archaic Hexabiblos, which he described as “the most chaotic mixture of Greek and Byzantine statements, state, civil, criminal, canonic, police, building and other orders that were often controversial, often senseless and sometimes immoral” (Egunov 1881a, 148).

Egunov pointed out some examples of a completely wrong translation of the original text and made the conclusion that such legislation was “legal lawlessness”. From his point of view, this situation caused the lack of a feeling of lawfulness among the local population, because it provoked its litigious madness. In regard to this, Egunov noted that “we should not forget that a certain population of Bessarabia was liberated from the ancient Turkish and Phanariotes' disgraces just 56 years ago that certainly were not able to cultivate the feeling of truth among people”. He was sure that the enormous number of civil litigations in Bessarabia should not be explained by the devotion of the local population to the lawfulness, but vice versa (Egunov 1881a, 156). The provided quotation should be explained in the sense that the Phanariotes who are mentioned here (in other versions: Phanariots or Phanariote Greeks) were members of prominent Greek families living in Phanar -- the chief Greek quarter of Constantinople where the Ecumenical Patriarchate was located. They were traditionally influential in the Turkish Ottoman Empire. Phanariote Greeks emerged as a class of moneyed Greek merchants of mostly noble Byzantine descent during the second half of the 16^th century. Phanariots occupied important positions in the administration of the Ottoman Empire's Balkan domains including the principalities of Moldavia and Wallachia

However, even skeptically minded Russian lawyers did not wish to deny the local Bessarabian law completely. Taking into account all the circumstances, they came to the conclusion that there were such provisions in it that should be transferred into the Russian Imperial civil legislation (for example, the lack of differences between the property in tail and acquired property) (Egunov 1881a, 157).

In 1812 Bessarabia became the part of the Russian Empire. The Manifesto of 1812 allowed Bessarabia to employ its own laws. It is the Manifesto that provided lawfulness to all the region's laws that were in force prior to 1812, as many Russian scholars suggested (Pergament 1905a, 15). The position was supported by the legal acts examined below.

According to the decree (21 August 1813) “About the organization of the eparchies of Khotyn and Kishinev”, the former Moldavian law was to be used in the field of civil legal relations. At the same time no concrete enactments of this law were mentioned here. “The Charter about the organization of the Province of Bessarabia” of April 29^th, 1818, allowed the usage of the Moldavian language and local laws in regional judicial proceedings. Courts were obliged to use “laws and customs of Moldavia”. Therefore, in the case of an appeal to the highest judicial instance of the Empire, to the Second Department of the Governing Senate of the Russian Empire, it was necessary to present an abstract from the local laws and customs that had provided legal grounds for the decision of the lower court and from those laws and customs that were referred to by the appellant. The 1818 Charter was replaced by the “Institution for administration of the oblast of Bessarabia” of February 29^th, 1828, No. 1834 which supported the application of local laws. But even here a concrete list of those laws that should be applied by the local Bessarabian courts was once again absent (Pergament 1905a, 8).

The Senate's enquiry of 1825 about the local laws applied in Bessarabia resulted in an answer of the Supreme Council on Courts which stated that there were the following sources: “1) The Hexabiblos of Harmenopoulos which is the book containing merely short extracts from common ancient and new legislation of Rome and Tsar'grad (“The city of the Tsar” -- the Russian name for Constantinople. -- The present author's comment) but written in Greek, and the Council can not confirm that the Moldavian translation is correct; 2) the Law Book published by the Moldavian boyarin (a high nobleman. -- The present authors' comment) of the first echelon Donic which also represents abstracts from Roman law while some of its articles are denied by local customs that were supported by orders of the Hospodar (the ruler of the Old Bessarabia. -- The present authors' comment), but even this book appeared to be insufficient in practice; 3) the Statute of the Bessarabian Region's establishment; 4) the Sobornaya Charter (Deed) of the Hospodar Alexander Mavrokordato of 28 of December 1785” (Pergament 1905a, 9).

The Governing Senate consigned the books' translation to the Asian Department of the State Board of Foreign Affairs. The translation was completed in 1828. However, the Russian translation was completed after the New Greek translation of the 18^th century instead of the ancient Greek original. The comparison with the original revealed many differences from the New Greek translation in it. Therefore, the New Greek version and additions were marked by slanting letters in the Russian translation. In the margins of the text there were also definitions taken from the ancient Greek text. The Governing Senate (its Second Department) defined that a court should take into account the strict meaning of marks in the margins (Pergament 1905a, 10)

The process of adapting and acknowledging of the local Bessarabian law was quite chaotic and occasional due to poor knowledge of local law. Therefore, the Harmenopoulos' Hexabiblos was translated from a bad New Greek text instead of the original.

In 1844 the general commission of regional government and chambers gave a request to the Imperial Senate to create a special commission in order to eliminate all the contradictions of local Bessarabian laws and customs. The Senate did not decide the question positively and left the published code of local laws for guidance in the Russian translation without changes -- so that in cases when these laws were insufficient, courts could apply Russian laws as a subsidiary source of law according to Article 1606, part 2, volume X of the Statute Book of the Russian Empire.

The Senate accepted the interpretation of orders from Emperor Alexander I concerning the applicability of local laws in Bessarabia and underlining the necessity of applying these laws. The Governing Senate already named the above-mentioned collections of laws as the codes of local positive laws while the mentioned law books were not called laws previously (Pergament 1905a, 12). Therefore, the Senate admitted the collections to be laws.

In the meantime, the process of determining the provisions applicable in a concrete case was not straightforward from a formal legal point of view, and it often caused additional confusions in the local legal practice. For example, although the “Sobornaya Charter (Deed)” of 1785 was in force as a statute from the very beginning, the compilation of Donic was published only in 1814 after the enactment of the manifesto. The significance of the Hexabiblos of Harmenopoulos in the previous times was not also defined by its formal side, since formally the Hexabiblos (till 1830 when it was introduced as positive law in Greece after the declaration of its independence) was of no importance. It had been used only as a practical manual that contained the most important issues from the law of Byzantine. In regard to its practical character, the Hexabiblos superseded all other special collections and codes of laws. Only in those cases when the Hexabiblos was completely adequate to the formally binding ancient Byzantine laws did it have a formal legal character, but in the contrary cases its provisions were not binding (Pergament 1905a, 15-16).

In order to understand the fate of the Hexabiblos in modern times it is necessary to briefly examine the history of this book. In approximately 1345, Constantine Harmenopoulos, a Greek lawyer of the 14^th century who lived during the reign of the Byzantine emperors John VI Kantakouzenos and John V Palaiologos, was a judge in the city of Thessalonica and compiled the so called Procheiron, a manual of law in six books. The number of the books later gave the compilation its generally accepted name of the Hexabiblos (“Six books” in Greek).

It was a private codification where the author aimed to simply expound the law in force. The basis of the Harmenopoulos's compilation was the Proheiron issued by the Byzantine emperor Basil I the Macedonian who reigned from 867 to 886. In addition to, this book, Harmenopoulos used the Basilics in sixty books. Most likely he did not use the Basilics in its original, but rather their “Great Synopsis” (a broad summary) and special collections (a “Small Synopsis” as well) where extracts from the Basilics were placed in alphabetical order (Azarevich, 1876, 300-301). Harmenopoulos also amended the Procheiron with some materials taken from the Eclogae and Epanagogae, the Imperial novels, and the “Peira” by Eustathius the Roman. The fact that while borrowing materials Harmenopoulos used the Synopsis and not the Basilics often resulted in a distortion of the borrowed legal provisions in comparison to the original. In the short editions of Synopsis, the content of the text of Imperial laws sometimes was completely misrepresented. Due to these methods of the author and his way of compiling the positive law, the book of Harmenopoulos was characterized by its vagueness and inaccuracy, and the explanation and adequate interpretation of its content inevitably required use of all the mentioned sources in addition to the scholia (explanatory comments, either original or extracted from preexisting commentaries, which are inserted on the margin of the manuscript of an ancient author, as glosses) and the “Basilics” (Pergament 1905a, 21).

The very process of developing civil legislation in Bessarabia is of great interest and it can reveal how legal transplants from Byzantine law were implemented in the local law.

Moldavian Hospodar Alexander I (ascended the throne in 1401) asked the Byzantine emperor to send him an exemplar of the “Basilics”. Relying on this code Alexander compiled his own code for Moldavia and translated it into the native language. In 1646 the Hospodar Basil Albanus and his Great Logothete (a senior administrative title, equivalent to a minister or secretary of state in the Byzantine Empire, which applied to other states influenced by Byzantine culture) Eustratius established a new code referring to the Basilics. However, the successive Moldavian Hospodars preferred to apply the original Byzantine sources of law compared to these new Moldavian codes. These were the same Basilics, the Novellae of the emperor Justinian that were still in force, and the statutory law promulgated during the reign of other Byzantine emperors, the above-mentioned “Synopsis”, the Paraphrases of the early Byzantine professor of law Theophile (which were really notes of students about his lectures on the Institutiones of Justinian). At the end of the 18^th century, Hospodar Alexander Mourouzis charged his person in attendance Thomas Carras with the task of translating the Hexabiblos into the Moldavian language, since the Greek original and Latin translations were often difficult to understand for judges. The translation was completed in 1804. Such a late translation of Hexabiblos into the Moldavian language and the lack of compositions like the latest Law Book of Donic is explainable by the fact that educated Greek-Phanariotes who ruled in Moldavia considered it to be impossible to translate the provisions of Byzantine law in Moldavian due to the lack of the adequate concepts and terminology in the Moldavian language (Grama 1983, 37). This idea is quite strange because the Moldavian language is of Latin origin, and the Byzantine law was in fact Roman law translated from Latin into Greek.

However, since neither the Hexabiblos which was the recent acquisition in Moldavia nor the Basilics were the local laws, Alexander Mourouzis entrusted Carras again to compile civil and criminal codes in the order of the Institutiones (as they were presented in the Paraphrases of Theophile) relying on the Basilics and other monuments of Byzantine law transferred to Moldavia. Carras died in 1806 having compiled only four parts. Again, the Basilics served as the main source of this draft (Pergament 1905a, 23).

In addition to the Hexabiblos, all the mentioned monuments of Byzantine law were in force in Moldavia. But the Basilics had a greater importance. They were considered to be the basis of the law. “Tsars' books” (as the word Basilics can be translated from Greek) were applied directly, sometimes in the form of Synopsis or abstracts compiled in Moldavia. One of the newest extracts of this kind became the so called Law Book of Donic, that is a “Short Collection of Statutes Derived from the Tsars' Books for the Guidance of Students With the Indications of the Title, Book, Chapter and Paragraph of the Tsars' Laws, first published owing to the permission of His Grace Hospodar (The Ruler of Moldavia. -- The present authors' comment) Voevode (Slavonic title of the commander of an army or a governor of a province. -- The present authors' comment) Skarlato Alexandrovich Callimachus, and to the blessing of the Moldavian Metropolitan (Mr. Veniamin), thanks to the work and zeal of the Moldavian Boyar (Slavonic title of a high noble. -- The present authors' comment) Andronakiy Donic” in Jassy in 1814 Short Collection of Statutes Derived from the Tsars' Books for the Guidance of Students with the Indications of the Title, Book, Chapter and Paragraph of the Tsars' Laws, first published owing to the permission of His Grace Hospodar Voevode Skarlato Alexandrovich Callimachus, and to the blessing of the Moldavian Metropolitan (Mr. Veniamin), thanks to the work and zeal of the Moldavian Boyar Andronakiy Donic. Jassy, 1814 (The only paper version of the document is available. Accessed November 20, 2020.. This Law Book of Donic was a practical extract from the Basilics (Galben 1998, 89).

Andronaky Donic (was born in approximately 1760, died in 1829) was a gentilitial boyar. His uncle Gabriel Callimachus was a Moldavian Metropolitan. Donic received his education in Hospodar's academy of Jassy. He studied humanities and science, church service, foreign languages such as Old Greek, New Greek, Latin, French, German, and Italian. Later he studied Arabian and Turkish. He became acquainted with Roman law apparently after the guidance of Metropolitan Gabriel who sometimes was the head of the supreme judicial board of the country (Divan) and knew Roman-Byzantine law quite well as well as the local customs of Moldavia (Grama 1983, 20-23). There is a strong possibility that while being in different times a great ban (representative of the hospodar), ispravnik (a local police chief) in Tsynut, Harlaw, Dorohoy, Suchava, a great logothete, postel'nik (the supreme boyar rank in charge of the foreign affairs of the Moldavian principality), and then Donic acquired practical juridical knowledge as the head of the state department which oversaw civil jurisdiction over foreigners living in the principality including litigations between them and the nationals of Moldavia (Grama 1983, 22-24).

In exercising jurisdiction Donic often met difficulties in legal proceedings since the local courts used Greek and Roman law as the common law of the country. The baffling complexity of the sources of this law induced Donic to create a private codification of the civil law of Bessarabia. He thoroughly studied the monuments of Roman and Greek law in the original and selected such norms that corresponded with the demands of Moldavia's social and economic development at the beginning of the 19^th century (Grama, 1983, 28).

However, Donic also studied Moldavian hospodars' deeds and the customs of Bessarabia when choosing the necessary elements. Consequently, one should say that Donic made not just a compilation of the Hexabiblos or the Basilics, but rather wrote an original work based on the law existing in Bessarabia at that time. To make his composition more valuable he produced it in the form of a compilation of the most authoritative law in Europe -- Roman law that he knew well as a well-educated individual. But unfortunately, at the end of the day it had happened that the Law Book of Donic did not contribute much in the modernization of the sources of law in Bessarabia.

Before Bessarabia became the part of the Russian Empire the Hexabiblos was merely one of the monuments of Greek and Roman law that was in force in Bessarabia. It is interesting to notice that even though it was applied, it never was admitted becoming the statute. Only in the period of Russian rule did it occupy the key position, replacing the other sources of the good law of the country. However, it was the whole corpus of the mentioned monuments of Byzantine law which formed the basis of the reception of Byzantine law in Bessarabia. Even at the beginning of the 20^th century all these monuments did not lose their legal significance for Moldavia since they were useful for the interpretation of different provisions of the Hexabiblos (Pergament 1905a, 24-25).

At the moment of Bessarabia's annexation to the Russian Empire the Hexabiblos, which was not regarded as a statute but just as a compilation of local laws, was applied jointly with other monuments of the Byzantine legislation, mainly with the Basilics. All these sources should have been applied as they perfectly reflected the true content of the borrowed Byzantine laws. If the courts of Bessarabia found the textual reading of these sources to be unclear, insufficient, and result in controversial conclusions, they were to rely on the common sense of local laws that were in force in the Bessarabian region. And these laws, in instances of doubt, could be interpreted through the prism of their historical origin and in comparison with their sources. Therefore, from the point of view of Russian lawyers, all the compilations of Byzantine laws that had legal force in Bessarabia at the time of its annexation to the Russian Empire were to be applied only if their editions reflected correctly the real sense of Byzantine laws (Pergament 1905a, 31).

1.2 Case Study Research: Byzantine Law of Succession in Bessarabia

A close examination of the decisions of the Civil Department of Cassation of the Governing Senate dealing with the conditional testaments in Bessarabia is of great interest for our topic. A very typical case of this kind is the decision of the Civil Department of Cassation of the Governing Senate 1889 No. 22. The case was presented to the senators by senator and professor S. V. Pachman as the keynote speaker.

The dispute which finally formed the basis of the Senate's decision occurred on Ivan Sturdza's testament which is quoted in the papers of the Senate's decision. Here the testator wrote: “the manor Novoselitsa and the country estate of Marshintsy I leave by will to my nephew, Alexander Sturdza, on the condition to possess the estate left by will as a fideicommissum so that he can neither burden this estate with debts nor sell it or alienate it by any other way and the estate could be transferred without any detriment to Alexander Sturdza's children after his death. His children are called the second heirs who can enter into possession of the inheritance property after their father's death. This restriction of my nephew's rights to the estate is due to the squandering of his own estate by him in a short time and by my natural desire to protect my grandsons from the consequences of such wastefulness in the future. The possibility of the establishment of the fideicommissum is provided by the local Bessarabian laws of Donic and Harmenopoulos. Under them a testator can appoint as an heir, as the heirs for this heir, as the heirs for these heirs” (Decision of the Civil Department of Cassation of the Governing Senate of the Russian Empire. 1889. No. 22).

When the legal dispute over this will reached the Governing Senate of the Russian Empire, the latter found that unlike the common Imperial statutes, the Hexabiblos of Harmenopoulos allows for the sub-designation of an heir in a will. The Law Book of Donic also stated, regarding this subject, that a testator could indicate another heir to inherit after the indicated heir, and other heirs to inherit after him. In respect to the fideicommissum, which the lower courts considered to be in contradiction with the substitution, the Senate pointed out that: “in the Bessarabian laws that are compiled under an evident influence of the Roman law's origins, both concepts had a basis... The Hexabiblos stated that an heir is called an heir or a fideicommissary, for example: `I designate George to be my heir under the condition of possessing my property not forever, but to manage and protect it for my son, Fyodor. In this case, Fyodor is called a fideicommissary and receives two thirds of the inheritance and George is called an heir and gets the remaining third of the inheritance. The fideicommissum is described as the designation of the heir according to which the latter one (a fiduciary) is obliged to transfer the inheritance to another individual (a fidecommissary) reserving for himself just a certain part of the inheritance. As a result, there is no substitution at this point in the sense of a successive transfer of inheritance to another heir in the case of the previous heir's death (substitutio pupillaris), since according to the legal scholarship a fideicommissum has an independent significance. But it does not mean that according to Bessarabian laws the condition of fideicommissum was incompatible with the substitution” (Decision of the Civil Department of Cassation of the Governing Senate of the Russian Empire. 1889. No. 22).

The Law Book of Donic states that “a person has the right to leave by will his property to one heir and to obligate him to protect it or its part for a designated heir (that part is called a fideicommissum by the law) and declare his intention and will clearly. After that a person who receives a fideicommissum cannot alienate anything from the inheritance entrusted for storage of it for another person because if he alienates anything, he is disinherited of the property left to him by will as well as in such a case if somebody designates the heir for any estate and demands him not to sell it, but to retain it for this heir's descendants” (Decision of the Civil Department of Cassation of the Governing Senate of the Russian Empire. 1889. No. 22).

“The law evidently means the substitution. That is why the Chamber's opinion The Chamber was a lower court. Book IV, t. 51, law 7. -- Hereinafter, such parts of the Corpus Juris Civilis as Institutiones, Codex and Digesta are referred to as they are available at the electronic resource “The Latin Library”. Accessed November 20, 2020. that the substitution is incompatible with the fideicommissum should be considered incorrect. Its limitations are also present in the Donic's law stating that “an heir cannot alienate” the property that should be transferred to a fidecommissary in the future. The definition “alienation”, used in the law as well as in the testament cannot be explained only in the sense of alienation of the right of ownership to the given property, for it includes any disposition that ascertain restrictions on this right to the estate. While interpreting restrictions imposed on the heir's right to dispose of the inherited property, the Senate directly refers to Justinian's Law, presented in the Code¹¹. There it is stated that if a law or a testator prohibits the alienation, one should take into account not only the alienation of property but also the establishment of servitude or mortgaging and perpetual lease (emphyteusis). Sometimes the phrase “burden with debts” was added to the word “alienation” in laws and often in testaments compiled in Greek as, for example, in the “Digests” (book 31, T. de leg. 188, non vendi neque foenerari)" (Decision of the Civil Department of Cassation of the Governing Senate of the Russian Empire. 1889. No. 22).

One can conclude from the quotations provided above that the Senate's argumentation on the subject had been totally based on the `legal transplants' from Roman law. But from the Roman times and up to today, legal concepts such as conditio, dies and modus are often confused and misunderstood by testators and judges. In this regard, the opinion of the Russian practicing lawyers and judges was a reminiscent of the conflicting reasoning included in the “Digests” of Justinian. In the Book 35 of the “Digests”, especially devoted to conditional testaments, we find the description of the condicio, dies and modus as a mixture of concepts. Therefore, the very well-balanced taxonomy of Roman law, which was highly appreciated and glorified by the Russian lawyers was unusual for the Romans themselves since systematization was a fruit of the late epochs, that is of the Pandect law doctrine.

Also, the testament becomes conditional if the testator has acquired offspring after making a will. The Senate in the decision of the Civil Department of Cassation of 1905 No. 66 defined that in case of birth of a testator's child after a testament is made; when he or she is granted only a payment (legatum) under this testament, the validation of the testament is to be admitted under the laws of Harmenopoulos and Donic that are in force in Bessarabia.

It is provided under the laws of Harmenopoulos Book XXXI, t. de leg. 188, p. 14. it is provided that if a son is not mentioned in a testament, the latter can not be validated; items 2-3 of the same provision say that a testament is valid if a son is born after a testament has been validated. The provision 5 IX. 162, 173 of the Hexabiblos requires that testators should not exclude their sons, daughters, grandchildren and great-grandsons and great-granddaughters from a testament or should not leave them a part of the inheritance less than that which is assigned to them by law. According to the provision 35 § 26 of the Law Book of Donic, if a testator conceals his or her heirs or unreasonably deprive them of a legitimate portion of inheritance, or if a legal heir is born after a testament was made, the provision 36, 4 i. 1 of this Law Book commands parents to mention their children as their heirs in a testament, and the provision i. 2 orders parents to mention their heirs by their names granting them some property, and also to mention a nasciturus. But a legatum is not identical with a testamentary succession, “heirs by operation of law are obliged to pay testator's debts and a legatarius is not” (Bertgoldt, 1910, 51).

In Bessarabia, a substitution (prohibited by the Russian Imperial law) was regarded as a condition. Therefore, a peculiarity of the law of Bessarabia in comparison with the Russian Imperial law consisted in the permission of substitution. The Senate supported the application of this rule in its decisions, stating that the local laws of Bessarabia permit a substitution that is the establishment of some successive or consecutive transfer of estate from one heir to another chosen beforehand and indicated by a testator. This substitution was “a remnant of Roman law” which went through certain stages of historical development and was borrowed in various ways by legislations of different countries” (Shimanovskii 1888, 127-128).

It merits attention that in light of the legislations of that time, the Bessarabian concept of substitution was similar only to a resemble institution of the Prussian legislation which had implemented all kinds of Roman substitution. But it differed from the Austrian one in that it did not admit parent and quasi -- parent substitution. It was also different from the approach to substitution in France where in spite of some rare exceptions Articles 1048-1051 of the Code Civil. Accessed November 20, 2020., substitution was prohibited Articles 896-798 of the Code Civil. and from Italy where a direct substitution was allowed while a fideicommissary substitution was prohibited Article 899 Codice Civile del 1865. Accessed November 20, 2020.. The example of substitution shows how Roman law was the law in force in its local (Bessarabian) and Greek variants in Bessarabia until the collapse of the Russian Empire. The existence of such an archaic legislation and recognition of its legal force by the Russian Imperial state bodies distinguished Russia from most of the European states of the time.

The very question of substitution in the Russian Imperial law is not also so transparent. Some Russian pre-revolutionary civil law specialists found only the trace of substitution in the establishment of estates in tail (Sbitnev 1861, 250). At the same time, others denied this opinion thinking that the Russian Imperial legislation allowed for substitution (Grinevich 1867-1868, 23). The third group supposed that substitution and fideicommissum, even if they were admitted by law, had changed their form deriving from Roman law and therefore there was no need to introduce these institutions into the Russian legislation (Shimanovskii 1888, 130).

In representing the experience of hereditary relations in Bessarabia and pointing out the institutions based on Roman law, Russian civil law specialist M. V. Shimanovsky posed the following question in regard to Russian law: “Should we return to the period when our legislation reflected the people's ideas or should we move forward by the way of artificially created legal relations of the Russian “Statute Book”, that regulates the aristocracy's relations and cannot be applied in the people's milieu; or should we establish something that really can live and be sanctioned as the origin worked out by our people's lives and other peoples' history as a result of life and action of a well-developed legislation” (Shimanovskii, 1888, 142-143). In such expressions, Russian lawyers underlined, in the manner of Savigny, the necessity of appellation to folk law, but viewed Roman law as the etalon to adhere to.

However, there were lawyers who rejected this opinion in regard to the practice of substitution in Bessarabia. The prominent civil law professor O. Ya. Pergament challenged the common opinion about the existence of substitution by the laws of Bessarabia. Revealing the lack of “any differences of principle between the well-known decree on Lopukhina's case and the local law”, he concluded that: “our jurisprudence of courts on the question is a total misunderstanding” (Pergament 1905b, 34). He personally believed that the erroneous interpretation of Roman law was the main source of these practical misunderstandings in the courts. He stated that in such practically orientated discussion one should define the period of Roman law that is referred to as an argument by those Russian lawyers who were seeking for a substitution in Bessarabian law. In order to reveal the content of Roman law they also referred inter alia to the German manuals of Puchta and Baron, and to the books of other Pandectists maintaining their opinion. However, the Roman law represented by Pandectists could not be the source of reception for Harmenopoulos' Laws of Byzantine which were the subject of reception in Bessarabia and had been developed originally on the bases of Justinian's codification. The development of Roman law in the West until the Pandectists had no impact on Bessarabia. Therefore, references to Baron should be acknowledged as incorrect. Nevertheless, when Russian lawyers referred to Roman law in dogmatic and practical disputes, they implied mainly the opinions of Julius Baron and another famous representative of the Pandect law doctrine -- Rudolf Sohm (Pergament 1905b, 35-36).

Bessarabian laws stated that an heir could be a real one or in case he was not really an heir, the estate should be transferred to another one who is deemed a substitute. The transfer can be simple when, for instance, a person does not inherit by will, and another person is called an heir; and the transfer can be double when, for example, a person is an heir but dies in the time of his childhood resulting in another person becoming the heir. An heir is called just an heir or a fidecommissary, and so he is named as a delegate. For example, a testator says: “George will be my heir, but he can not inherit my property forever for he is obliged to manage and retain it for (a lawful heir) my son Fyodor. In this case Fyodor is called a fidecommissary and receives two thirds of the inheritance and George is called an heir and receives the remaining one third. Second heirs are allowed to be appointed from any title, for example to appoint a slave as a necessary heir or other slaves as heirs of the first slave so that one person could inherit another person or many people could inherit one person or one could inherit many people.... If a person who selects an heir for his estate thinks that this heir can refuse inheritance or die and/or he is not able to make up his own testament due to his mental state, a testator can designate another heir. He can designate one heir and the second heir to the first one, and the third heir to the second one. A person also has the right to leave by will the inheritance to an heir and obligate him to keep it or part of it for an established heir (this part is named a fideicommissum) and declare his own will clearly; a receiver of a fideicommissum is not allowed to alienate any part of a inheritance which should be kept for another person” (Grossman 1904, 217-218).

If an heir does not inherit, a substitution is named the substitutio in primum or in vulgarem casum. The double substitution is necessary if a testator defines the second heir for the case when the first one does not accept the inheritance or dies before he attains a lawful age. It is the substitutio duplex or in utrum casum. In this case substitutio vulgaris and substitutio pupillaris are linked. The substitution is “double” when there are two cases stipulated: an heir does not accept the inheritance and an heir dies before a lawful age. A lawful representative disposes property of an infant. The juridical basis to designate the second heir is the assumption that the first heir (institute) does not inherit (or he is not a proper heir). But it is not possible to indicate the heir for willful sons (persona sui juris) under Roman law.

O.Ya. Pergament underlined that according to the statements of Roman law agnati proximi were heirs sometimes even against their will. Later the praetor started to grant sui heredes the right to be released from the inheritance by the declaration of will. Since sui heredes are not necessarii, a dominus could be left without heirs after his death since he was not able to impose the inheritance upon other heirs. The difficult problem was resolved in such way where a testator could designate a slave as his heir, because a slave was not able to refuse. Prof. Pergament thought that his reflections on the subject should define the point of the substitution in spite of the contrary meaning of the text of the Hexabiblos.

Pergament believed there was no successive passing of inheritance to the second heir after the first one, because the Roman legal principle semel heres -- semper heres was still in force. However, Pergaments interpretation of slaves' inheritance to their owner is the most contentious and strained. He makes a historical excursus into Roman law in order to refute the substitution. It is rather significant that he refers to the history of inheritance law in Roman law to solve the dogmatic question contemporary to him. But the Senate approved the local Bessarabian practice of making testaments and did not follow the contrary doctrinal conclusions of the professors of civil law and Roman law.

The law of Bessarabia provided a fideicommissum and was somehow different from its Roman prototype because the heir was able to inherit one third (not a quarter) of the inheritance. The inheritance's part was not transferred to the heir directly. However, a previous holder of that portion of the inheritance was not appointed an heir. In this case it was not a substitution but a specific way of legacy's conveyance that developed on a peculiar ground of Roman legal relations in order to have the possibility to appoint an heir under the conditions (under dies a quo, dies ad quem, under resolutive condition) that were eliminated if the heir was designated formally. The universal fideicommissum finally established a freer form of an indirect designation of the heir in all cases of universal succession.

The fact of the impossibility to make a will is quite significant. Therefore, in the Constitute of 528 Justinian decreed that in terms of inheritance, the legal status of the mentally ill person should be equal to that of minors. So, the substitution quasi pupillaris was formed and was also named the substitution exemplaria (sometimes Iustinianea) according to the Constitution's words “ad exemplum pupillaris substitutionis” Here we can notice merely the right of the ascending line's heirs being representatives to make a will and appoint other heirs for their infant children and those mentally unstable. We should stress that the words: “a testator can designate an heir to his first heir and the third heir to the second one” were interpreted vice versa by referring to Roman law.

The issue was treated by the provision of the Donic's Law Book (l.43) that addresses the designation of an heir to an unstable individual. It had been allowed only by the emperor's permission until the Constitution of 528 came into force. The Donic's second source was the fragment of Institutiones. 2.16. According to Pergament, Donic could not make extracts of laws that the mentioned sources did not contain and, therefore he was not able to form the provision about the determination of the further hereditary succession. The phrase “a testator can designate an heir to his first heir and the third heir to the second one” speaks about the right to establish several degrees of hereditary designation, as Harmenopoulos (the basis of Donic's work) underlines (Pergament 1905b, 39-43).