Numbers from the archives
Four numbers from the documents and studies cited: oath-helpers, retrial, redemption and the Vrancea freeholders' trial.
In brief
Six rules and one trial, told briefly, each with its source.
In cases judged by the prince, in Moldavia and Wallachia, the claimant usually got a deadline to bring 12 boyars who would swear alongside him. If they failed to come or to swear, he lost. The other side could demand a retrial, «law over law», usually with 24 oath-helpers. The court sat with the Gospel on the table.
A retrial usually required double the number of oath-helpers, so in practice it was within reach of boyars and monasteries. The prince could refuse it: in 1575, in a case between the noblewoman Anca and several families of Lipov, he pronounced a curse «so that law over law shall not be».
When two estates disputed a boundary, the princely council sent surveyors to the spot, and they asked people from the surrounding villages where the line ran. In the spring of 1772 the abbot of Voroneț feared that locals would lie in favour of a landowner, and asked the metropolitan for a letter of curse against anyone who swore falsely. The letter was issued on 3 April 1772.
Anyone selling kin land to an outsider had to offer it first to relatives, co-holders and neighbours, who usually had 30 days to take it at the offered price. If the sale went ahead without them, they could redeem the land from the buyer for the price he had paid. The redemption period settled at 10 years. The right, called protimisis, left the law in 1840 in Wallachia and in 1865 in Moldavia.
If a murdered man was found on a village's land, the village had to find the killer, try him before the «good and old men», and hand him to the state. If it did not, the village paid: compensation to the victim's family and a fine to the state. This was the dușegubină. A killer who was caught risked death, and the compensation came on top of the penalty.
In January 1801 Prince Constantin Ipsilanti granted the whole district of Vrancea to Treasurer Iordache Ruset. The Vrancea freeholders went to court in 1803. The Divan of Iași recognised their right on 1 March 1813, and a charter of December 1814 confirmed the decision.
Six rules
Oath-helpers, surveyors, curse, protimisis, dușegubină and the sheep sâmbră: what the sources say about each.
When there was no deed, or the evidence was unclear, the court gave one party the right to swear together with a number of trusted men. Their oath was the proof.
Source: I. F. Moldovan, «Jurătorii la români», Studia UBB Iurisprudentia 2/2012, pp. 198–219
In a boundary dispute the princely council appointed surveyors (hotarnici), who inspected the ground and asked people in the area where the line of the estate ran.
Source: A. Popa, «O carte de blestem de la 1772», Analele Bucovinei XXI/1, 2014, pp. 261–262; Moldovan 2012
The metropolitan could issue a letter of curse against anyone who lied under oath or tampered with a boundary. It was requested where the party feared false testimony.
Source: Popa 2014 (National Archives, Suceava branch, Documents collection, fund 35, bundle IV, doc. 93, f. 1); Moldovan 2012, note 73
The right of protimisis gave priority in a purchase to those in a lasting relation with the seller: relatives, co-holders, neighbours. It existed among free peasants in village communities and among boyars.
Source: V. Georgescu, O. Sachelarie, V. Stoicescu, «Protimisis», in Instituții feudale din Țările Române, pp. 390–392, as cited in Dreptul de preempțiune (Hamangiu); M. Bolca, thesis summary, Cluj, 2010; Câmpulung local-history overview, dragusanul.ro
Dușegubină was triggered when a murdered man was found on a village's boundary or on a villager's land. The village's duty was to find the killer and hand him to the state.
Source: Dicționar juridic (DEX), «Duşegubina», legeaz.net
A sâmbră is an agreement, a protocol for the main business of sheep farming. At the start of spring, the sheep owners of an area decide together where to put the folds, who will be head shepherd and who will guard the flocks.
Source: C. Cicau, «Sâmbra oilor, una dintre cele mai vechi tradiții locale», Adevărul, 27 Apr 2014
Imagined cases
Four invented cases built on the documented rules above. Names, places and events are imaginary; the rules applied come from the sources.
Timeline
From the oath-helper trials of 1493 to the communities nationalised after 1948, with the source of each row.
| Year | What happened | Source |
|---|---|---|
| 1493–1511 | Tismana monastery's case over the Bahna settlement: one trial with 12 oath-helpers, another with 24, then in 1511 again with 12. | Moldovan 2012, note 72, citing DIR |
| 1562 | Tismana's case against Roșca and the sons of Răsipă: after trials with 12 and 24 oath-helpers, Prince Petru rules for the monastery. | Moldovan 2012, pp. 207–208; DRH B, vol. V, doc. 239 |
| 1575 | In a case of 1575, a prince bars a retrial («law over law») with a curse. | Moldovan 2012, note 73; DIR 16th c., B, vol. IV, p. 198 |
| 1741–1742 | Constantin Mavrocordat renews village liability for dușegubină in both principalities. | Dicționar juridic (DEX), «Duşegubina» |
| 1752 | Matei Ghica abolishes dușegubină as «an evil and ugly custom». | Dicționar juridic (DEX), «Duşegubina» |
| 1780 | The Pravilniceasca condică, drawn up in 1775, takes effect in Wallachia. It stayed in force until 1 September 1818, when the Caragea Code replaced it. | Pravilniceasca condică, Wikipedia (ro) |
| 1801–1814 | Grant of Vrancea (January 1801), confirmed in 1803. The Divan of Iași issues its decision on 1 March 1813, and the charter of December 1814 confirms it. | Chirilă 2021; Gaiță and Gaiță 2009, p. 79 |
| 1840 and 1865 | Protimisis leaves the law: in 1840 in Wallachia and in 1865 in Moldavia. | Dreptul de preempțiune (Hamangiu), citing Georgescu et al. |
| 1864 | Civil Code, art. 728: no one can be obliged to remain in joint ownership. A co-heir can always demand partition, and an agreement to suspend it can only run five years, renewable. | Civil Code of 1864, art. 728 |
| 1910 | The Forest Code obliges the Vrancea communities to give themselves an official form. Stahl showed the legislator had not understood the joint property of village communities. | Roșculeț 2011, pp. 148–149; Adevărul Focșani |
| After 1948 | The communities are nationalised and their assets pass to the state. Their activity resumed after 1990. | Adevărul, «De ce au fost considerate obștile sătești…» |
The Ostrom comparison
Elinor Ostrom, a Nobel laureate in economics, described eight conditions under which communities manage their own forests and pastures. Three have a partial parallel in the Vrancea trial.
Real cases
Three cases from published documents and studies and one local-history overview, each with its source.
The case: In January 1801 Prince Constantin Ipsilanti granted Treasurer Iordache Ruset, nicknamed Rosnovanul, the whole district of Vrancea, on the ground that it had remained, «from time out of mind, rightful princely estate, granted to no one». According to Chirilă, the villages had been given in the 14th and 15th centuries to warriors, and their descendants became the Vrancea freeholders. Alexandru Moruzzi confirmed Ipsilanti's charter in 1803. In the summer of 1803 the Vrancea villagers, urged on by the priest Șerban Bălan of Năruja, began the «Great Trial».
What happened: On 1 March 1813 the Divan of Iași, under Scarlat Calimah, issued a decision recognising the Vrancea villagers' case. A charter of December 1814 confirmed it: «all the estates of the Vrancea district were from ancient times rightful inheritances of the freeholders, not princely estates». On 10 August 1813 the Great Assembly at Vidra had chosen agents and raised 10,000 lei for the cost of the trial.
«By the power of the ancient law of the land and of the pravile, We decide that the said freeholders shall hold their estates within the Vrancea district in all their boundaries.»Charter of December 1814, quoted by T.-T. Chirilă, Ziarul de Vrancea, 10 Jan 2021 (shortened; translated from the Romanian)
Source: T.-T. Chirilă, Ziarul de Vrancea, 2021, who cites National Archives, Bucharest, CCXL/15 for the arrangement between Ipsilanti and Ruset; Gaiță and Gaiță, Analele Buzăului I, 2009, p. 79
The case: On 9 January 1562 Prince Petru tried a case between Tismana monastery and Roșca, together with the sons of Răsipă, over the villages of Bahna, Ploștina, Leurda, Cireșelul, Turcinești and Grozești. The prince found that the same case had been tried under earlier princes: once the monks had won by swearing with 12 boyars, then the other side took «law over law» with 24 oath-helpers but failed to bring them by the deadline and lost.
What happened: At another trial, with 12 oath-helpers, the monks in turn asked for «law over law» with 24 and won again. Prince Petru ruled for the monastery without a new trial and confirmed its villages.
Source: DRH, B, Wallachia, vol. V, Bucharest, 1983, doc. 239, pp. 260–262; Moldovan 2012
The case: In the spring of 1772 Abbot Macarie of Voroneț monastery complained that the steward Vasile Balș, owner of the Stupea estate, had encroached on the boundary of the monastery's Drăgoiești estate. The princely council sent surveyors. The abbot feared that residents who knew the old boundary would not tell the truth, and asked Metropolitan Gavril for a letter of curse.
What happened: The metropolitan issued the letter on 3 April 1772. The document does not say how the survey ended.
«If they do not confess the truth in the fear of God […] let such persons be cursed by the Lord God and His Most Pure Mother, by the glorious 12 apostles and by the 318 holy fathers of the Council of Nicaea.»Letter of curse, 3 April 1772, ed. A. Popa 2014 (spelling modernised; translated from the Romanian)
Source: National Archives, Suceava branch, Documents collection, fund 35, bundle IV, doc. 93, f. 1; ed. A. Popa, Analele Bucovinei XXI/1, 2014, pp. 261–262
The case: Dimitrie Cantemir called Câmpulung the «republic of Câmpulung». The community had its own court, the council of 12 elders, which judged by the Wallachian law. Its privileges were reconfirmed on 16 January 1708 by Mihai Racoviță and then in 1737, 1747 and 1767. The villagers had boundary suits with monasteries: with Voroneț on 11 January 1723 over the Stulpicani pastures, with Homor on 21 May 1737 and with Putna on 2 June 1742.
What happened: The overview does not say how the boundary suits ended. For pre-emption it keeps a case of 30 May 1790: Solomon Floce won the Valea Seacă case because Gheorghe Dodul's estate had been redeemed by «the nearest kin», Ion son of Istrate Floce.
«The nearest kin»Document of 30 May 1790, quoted in the dragusanul.ro overview (translated)
Source: Local-history overview, dragusanul.ro (the passages used here carry no archive references; the documents were not checked here)
What is sure, what is not
Five claims, each with its evidence and counter-hypothesis.
The limits of custom
Three limits the sources show: the cost of proof, the force of a written deed and the law that replaced custom.
A retrial usually required double the number of oath-helpers. The practice was within reach of boyars and monasteries, and a village of peasants could not easily use it.
The charter of January 1801 gave the whole Vrancea district to a boyar. The villagers needed ten years of litigation, from 1803 to 1813, to win the decision, and another charter, in December 1814, to have their estates confirmed.
Dușegubină was abolished in 1752, protimisis in 1840 and 1865, and the 1910 Forest Code did not understand the communities' joint property, according to Stahl. After 1948 the communities were nationalised.