PART 5    Ch.XXXIII.26 (I – X)

The Pelasgians or proto – Latins (Arimii)

(The Pelasgians from the northern parts of the Danube and the Black Sea)

 

PART 5

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XXXIII. 26. Leges Bellagines. Lex antiqua Valachorum.

 

I.

We have studied in the previous chapter the age and the geographical extension of the name Blac as far back as the Homeric times.

We have now to talk about an ancient collection of laws of Dacia, known in the 6th century ad under the name Leges Bellagines, a name which indicates under this form the name of the Belacii or Blacii of Dacia.

According to all the historical traditions still preserved, the most ancient laws which had governed human society, had been of Pelasgian origin. But the first beginnings of the history of law and legislation go back especially to the north regions of the lower Danube.

Homer presents the Pelasgian populations from the northern parts of Thrace, the Mysii, Scythii, and Abii, as the most just people on the face of the earth, dichaiotatoi anthropoi (Iliad,XIII.v. 6).

The same moral character is attributed to the barbarian populations from the northern parts by the geographer Strabo, when he tells us that the Greeks who had lived before his times, had judged the ancient Scythians exactly as Homer had presented them; and that, in the ancient times, there was a general belief that the Nomads, who dwelt farther away from the other peoples, were the most just among all (Geogr. I. ViI. 3. 8-9; Pliny, IV. 26. 11; Bessel, De reb. Get. p. 40).

Plato mentions the law of the Scythii, o ton Schithon nomos, which contained dispositions regarding military instruction (Leges, VII. ed. Didot, vol. II. 370). And Clearchus of Solos tells us that the Scythii had been the first to use common laws (fragm. 8 in Fragm. Hist. gr. II. 306). Finally, Herodotus writes that the Getae were the bravest of men, but at the same time the most just among all the inhabitants of Thrace (lib. IV. 93).

 

The oldest codification of laws of ante-Homeric world about which the Greco-Roman traditions speak, had taken place in the northern parts of the lower Danube; a region which, starting with the primitive times of history, appears successively under various geographical names, as: Gaea (Terra) in the legends of the Titans; the country of the Arimii (ein ‘Arimois), the country of the Hyperboreans (en ‘Yperboreois); the country over which had reigned the titan Atlas; the regions beyond the Oceanos potamos (Istru); the extreme parts of the ancient world (ta eschata), Hyperia (the country from beyond), Hesperia, the country of the Cyclops (Kichlopon gaia), Aetheria, the High Mountains (Ourea machra), the Rhipei mountains (ta ‘Ripaia ore); finally, Scythia and Scythia “the mother of iron”, because the populations from the north of the lower Danube had been often considered as only a branch of the great family of the Scythia.

 

In the kingdom of Atlas, who had reigned over the Hyperboreans from the north of Thrace, had exited, as Plato writes (Critias, ed. Didot, II. 259), the oldest laws of divine origin, written with letters on a copper column.

But a large part of the authors of antiquity attributed the redaction of these laws to Hermes (Armis of Dacia, or Armes of Scythia), who had been married with Maia, the daughter of Atlas.

Hermes, according to the traditions of antiquity, had been the secretary of the gods of ancient Olympus, especially the secretary of Saturn, and was considered as the founder of all the social, political and religious institutions, as the teacher and master of all the sciences and arts. It was especially said about Hermes that he had written, by order of the supreme divinity, the laws, which had been destined to lead the governing of all beings alive. The books of Hermes contained a vast series of moral, religious, political and civil precepts; also treated astronomy, cosmography, geography, medicine and all the scientific inventions (Diodorus, lib. I. 16, 43, 6; V. 75. 1; Philonus Byblus, fr. 2).

The domination of the Pelasgian race had extended far in those times, and the laws of the kingdom of Atlas, or the laws of Hermes, emanated in the name of the divinity, had become universal for all the lands inhabited by the Pelasgians.

This code of laws, according to which the ancient world had been governed, is called archaic law, nomos archaios by Hesiodus (fragm. 193); archaic laws, archaioi nomoi by Sophocles (Oed. Col. v. 1382); divine law, nomos theon by Eschyl (Eum. 172); and sacrata jura parentum and jura sacerrima by Ovid (Heroid.9. 159; Met. X. 340).

The ancient laws of Dacia are also mentioned by Aristotle (4th century bc). The Agathyrsii, who dwelt near the river Maris in Transilvania, writes Aristotle (Probl. Sect. XIX. 28), had the custom to sing their laws; and he asks himself with this occasion, if this particular use of the Agathyrsii had been introduced so that the laws could not be forgotten.

This custom of singing in hymns the divine laws, has the characteristics of an archaic religious life.

As Hesiodus writes, the muses, or famous female singers who dwelt on the Olympus, near the Oceanos potamos, sang with pleasant voices in the palace of Jove, and at the feasts of the gods, the deeds of brave men, the battles of the Giants and the laws of all the peoples, melpontai panton nomous (Theog. v. 66).

Once the Pelasgian tribes had migrated towards the western parts of Europe, the divine laws from north of the lower Danube had also passed in the peninsulas of the Apennines and the Pyrenees. Saturn, the brother of Atlas (Diodorus Sic. III. 60), who according to Hesiodus and Diodorus had reigned in the beginning near Oceanos potamos or Istru (Hesiodus, Op. v. 169; Theog. v. 695; Diodorus, lib. III. 56. 60), being ousted from his empire, had crossed into Italy and had introduced there the same laws and institutions which had existed in his ancient country (Virgil, Aen. VIII. 319 seqq; Macrobius, Sat. VII. 17).

We also find traces of this archaic legislation in Hispania. The Turditanii or Turdulii, who had migrated there in remote times from the western regions of Transilvania (see Ch. XXXII. 6), had, as Strabo writes (I. III. 1. 6), a collection of laws written in verse, 6000 years old, as they said. This date, which was based without doubt on an ancient chronology of the Iberian priests, corresponds approximately to the epoch in which had lived Saturn, Atlas and Hermes.

The laws of the Turditanii were in any case traditional, and they could not be different from the sacred laws of Pelasgian antiquity, which Hesiodus names “universal” and “archaic”.

 

The Goth bishop Jornandes, born and reared in Mesia inferior in the 6th century, also mentions the ancient collection of laws of Dacia. But the Goth historian attributes the redaction of this codex of laws to Deceneus (Decianul), who had put the basis of the political and religious institutions of Dacia, and who seems in any case to be identical with Dokius filius Caeli, meaning Saturn (Pliny, lib. VII. 57. 4).

We reproduce here the words of Jornandes (Get. orig. c. 11): “This Deceneus, being a very learned man in the philosophical sciences, introduced to the Getae a moral discipline, in order to tame their barbarian customs; he taught them the fixed laws of the physical world, making them to live in accord with the order of things established by nature, and according to their own laws, which they have in written form until our own days, and call them Leges Bellagines; he taught them to be able to distinguish true from untrue (the logic), and in this way he made them superior to other peoples, in judging matters, urging them at the same time to spend their lives in good deeds; he made them know the secrets of astronomy, explained to them the 12 signs of the zodiac, and in particular, how the planets pass through these signs, how the moon waxes and wanes, the names of the 344 stars and the signs they cross, when do they rise and when do they set; then he chose from the most noble youths the smartest, taught them theology, the rites and ceremonies of venerating certain divinities, and how to perform the religious service in temples; of these he then formed priests, to whom he gave the name pileatii”.

As we see, Jornandes speaks here about the same vast system of human and divine sciences, about the same complex of moral, religious, political and civil laws, from the north of the lower Danube, which the Greek and Roman authors had attributed to Hermes a long time before him.

Finally, we also note that Stephanos Byzanthinos (see Getia) and Eustathius of Thessalonica (Comm. ad Dionys. 304) also mention the matrimonial and fetial laws of the Getae (Nomoi Geton, Nomos Getichos).

 

II.

 

The ancient Greek legislation had been based on this archaic codification of laws from the north of Thrace, which figures in various epochs as laws of the Atlantii or Hyperboreans, of the Scythii, Agathyrsii and Getae.

The first compilation of laws of Hellada was that of the city of Sparta in the Peloponnesus, make by Lycurgus in the 9th century bc.

The Spartans, writes Herodotus (lib. I. 65; Pausanias, lib. III. 2. 4), had been the only ones among all the inhabitants of Greece, who had the worst laws; because of which Lycurgus, a member of the royal family, had decided to introduce in his country a better system of laws. He consulted the oracle of Delphi on this purpose, because in older times any legislation needed the approval of religion. Pythia, or the priestess of Apollo from Delphi, as some of the ancient historians said, communicated to Lycurgus the laws and institutions which were later used by the Spartans right to the times of Herodotus.

The Christian philosopher Clement the Alexandrine writes in this regard that Lycurgus, while visiting often the oracle of Apollo from Delphi, had learned there the laws; Plato, Aristotle and Ephorus mention the same fact (Clement Alex., Stromat. I. 26; Aristotle, Respubl. Fr. 156).

As we know, the oracle of Delphi had been founded by the Hyperboreans (Pausanias, lib. X. 5. 7 seqq), and for a long time this renowned sanctuary of Apollo had been exclusively under the administration and rule of the Hyperborean priests and prophets.

 

The laws of the Athenians, which Solon had compiled in the 7th century bc, were based on the same ancient principles which had inspired the public laws of the Scythii and the Agathyrsii.

While Solon, writes Plutarch (Oeuvres, Tom. I, 1784, p. 280), was occupied with the redaction of his laws, he met in Athens Anacharsis, the famous philosopher of the shepherd Scythii, and one of the 7 wise men of the ancient world. Solon, admiring his wisdom, gave him lodgings in his house for a while, and on this occasion he discussed with him his project of laws.

 

This matter presents a particular interest for the ancient civilization and organization of the countries from north of the lower Danube. We shall examine here the texts which we have, about the country and nationality of Anacharsis, in order to bring more light to this matter.

From the data we have about his life and deeds, Anacharsis appears as one of the most learned men of law in the northern parts of Istru.

Ephorus, who had lived in the 4th century bc, tells us in one of his fragments, regarding his country and nationality, that Anacharsis had been one of the shepherd Scythii (fragm. 78).

According to Homer, the Shepherd Scythii, the Hippomolgii and Galactophagii (Iliad, XIII. 5), were neighbors with the Mysii from the north of Thrace. Also according to Eschyl (Prom. v. 709), the dwellings of the shepherd Scythii were in the regions from north of Thrace, near the Caucasus close to the Istru (Oceanos potamos), in Scythia, called “the mother of iron”, and close to the violent and difficult to cross river, which flows from the high mountains (Atlas, Alutus, Olt).

The shepherd Scythii of Homer and Eschyl formed therefore a population completely different from the nomad Scythii of Herodotus, scattered through the lands at north of the Meotic lake, near the open gates of great Asia, where nobody ploughed, nobody sowed, where were neither villages, nor cities [1].

 

[1. It results in fact, even from the writings of Herodotus (VI. 84; IV. 99. 125), that the dwellings of the shepherd Scythii, against whom Darius, the king of the Persians, had come with war, started near the Danube and the Carpathians.

We also add that the Scythii from near the Euxine Pontos told, as Herodotus writes (IV. 76), that they did not know who Anacharsis was].

 

The name of Anacharsis, as transmitted by the Greek authors, does not correspond to the onomastics from north of the lower Danube. We do not have here a single name in any case, but a composed one: Ana Charsis. Under this form, the name Anacharsis belongs to the popular onomastics from north of the lower Danube [2].

 

[2. Ona, in Latin form Annus, Annius, Anius, Ania (C. I. L. v. I. 78), Etr. Annaeus. In the western mountains both forms, Ana and Ona still exist today as family names (Francu, Motii, p. 116). In Moldova we find Ona Ureacli at 1445 (Uric. IX. 137)].

 

Ona and Carsa (n. Carja) are personal and family names very largely spread in the southern parts of Transilvania. In the Tera Fagarasului, Carsa (Gr. Chryses) is the name of an old boyar family, which around 1862 had 7 heads of family. In the boyar family Carsa especially, the name Ona seems to have been retained until the 18th century, as an inheritance from remote times.

In the documents of the freeholder peasants of Campulung, who constitute in fact only an old migration from the Tera Fagarasului, we find in 1792-93 two of them with the same name “Oncea Carsa”, where “Oncea” is a simple diminutive of Ona, as in Roman Ancus from Anus.

 

In regard to the family of Anacharsis, we find with the Greek authors several genealogical data, which present a particular interest for the political history and the history of civilization of Dacia, prior to the conquest by the Romans.

According to the scholiast of Plato (ed. Didot III. p. 333), Anacharsis was the son of Gnoyrou (Gnoyros) – with the meaning of Niuru – a king of the Scythii, understand the shepherd ones.

According to Diogenius Laertius (lib. I. c. 8), who had lived around 190ad, Anacharsis was the son of Gnoyrou (Niuru) and brother with Cathuidos, the king of the Scythii. Suidas though, who had used other historical sources, probably older, tells us that Anacharsis was the son of Gnyrou and brother with Caduias, the king of the Scythii.

As we see, the father of Anacharsis is called Gnoyrou or Gnoyros by the scholiast of Plato and by Diogenius Laertius, but Suida writes Gnyrou (Gnyros), with a small variation in orthography.

The name Niuru, or Niuros with the usual Greek ending, had in any case a barbarian Latin form.

Niro in the Neapolitan dialect, niguru in the Calabrian, and niuru in the Sicilian, means “negru” (TN - black) (Mortillaro, Nuovo Diz. Siciliano-italiano, Palermo, 1876, p. 747).

The father of Anacharsis was therefore named Niuru or Negru, or in other words he was from the family named “Negru”; he was at the same time a king of the Scythii, as Plato’s scholiast says. We are therefore presented with precious documents for the history of the countries from the lower Danube, prior to the times of Trajan.

Negru is the most ancient and legendary family of the Romanian voivodes (TN – lords, sovereigns, Domns, princes, etc) from the Tera Fagarasului. Apart from Negru Voda, about whom the Romanian chronicles tell that he had moved the seat of power from Fagaras to Campulung (1290), the historical documents and traditions talk about other Romanian voivodes too, from the same family and with the same name.

One Negru Voda had reigned around 1232, according to the ancient acts of ownership of the commune Resinari near Sibiu (Hasdeu, etym. Magn. Tom. IV. p. CII). One Negru Voda builds around 1215 the big royal church at Campulung. One Negru Voda had lived around 1185, as told by the genealogy of the family Monea from Vinetia of Fagaras. In the epic songs of the Romanian people is still mentioned a Negru Voda from the epoch when the rich Letin (Telephus, also named Latinus) had ruled over Dobrogea (Tocilescu, Mater. Folk. I. p. 1268).

Another Negru Voda had lived in mythical times. He had built the renowned monastery of Arges by following a pagan custom, which he had then dedicated to the god Mars, as results from the text of a folk rhapsody (Tocilescu, Mater. Folk. I. p. 18. 20. 25).

This ancient family of Romanian voivodes from Tera Fagarasului, still exists today as a boyar family with the name Negrea, in the commune Posorta, and around 1862 comprised 28 heads of family. (The feminine form of co-names, like Bunea, Cornea, Codrea, Lupea, Puia, Mamulea, Negrea, Basaraba, etc, refers to the family, or the trunk to which belonged the respective persons, like the Romans said: ex gente, or ex tribu Cornelia).

On the territory of the same commune, close to the village called Breza, can still be seen today on a high rocky outcrop, the ruins of a fortification dating from obscure times, which the folk call the Fortress of Negru Voda [3]

 

[3. Herodotus writes (IV. 76) that Anacharsis, returning from Greece, had withdrawn es tan cheleumenen ‘Ylaien. An estate called Ileni exists in Tera Fagarasului, nor far from Posorta, the cradle of the family Negru].

 

In regard to the country of Anacharsis, we also find an important historical note with Lucianus (2nd century ad), who calls Anacharsis the son of Dauketes (lib. XXIV, c. 4), meaning of the Dacian, as Strabo and Jornandes had called one of the great civilizing men of ancient Dacia, Deceneus (Dechaineos).

 

We are now presented with an interesting matter of the ancient history of the Romanian language: did the word “niuru” belong to the folk language once spoken in Dacia, or in the 6th century bc it was said in Tera Fagarasului “niuru” instead of “negru”, as the Sicilians say today?

All that we find in this regard is that in a very remote epoch it was said, in Banat as well as in Tera Hategului (TN – the country of Hateg), neru, nera (f), instead of “negru, negra”. Thus, in our ancient folk songs about Iovan Iorgavan, the river Cerna, which flows at Mehadia, is called nera (Alecsandri, Poesii pop. ed. 1866, p. 14), meaning “negra” (TN – black). Another river which springs in the western mountains of Mehadia is still called Nera today. Two Romanian villages of Banat, today vanished, have in the historical documents of 1598 and 1636, the names Ner and Neresci (Pesty, A Szor. Bans. II. p. 376. 377). Finally, Nera had once been also called the river of Cerna, which flows in Transilvania alongside Hunedoara.

But the question is still open, if the data, used by the Greek authors for the biography of Anacharsis, had been borrowed from the Pelasgians who dwelt along the shores of the Mediterranean, and which maybe pronounced niuru instead of “negru”.

The brother of Anacharsis, according to the historical sources used by Suidas, was called Caduias and appears as a king of the Scythii. Caduias had become therefore the successor of his father Gnuru.

In Tera Fagarasului still exists today (in the commune Sercaita) the family called Codaia. We find therefore the families Negru (Niuru), Carsa (Charsis) and Codaia (Caduias) in the same region. If any other family called “Codaia” had existed also in other parts of Transilvania or Romania, we have not found out so far [4].

 

[4. According to Diog. Laertius (I. 101), the brother of Anacharsis was called Cathuidos (var. Caduidas).

We must note that in the same commune of Tera Fagarasului, where we find the family Codaia, also exists, according to the documents we have, the ancient family Candit, which seems to be the same name as Cathuidos].

 

As we see from the data examined so far, both sons of Gnuru (Niuru) had family names, one Carsa, the other Codaia. 

In ancient times, all the barbarian populations of Pelasgian race, but especially the Getae, Thracii and Scythii, had a national law regarding marriage, that the men could have more women or wives at the same time. The children born of these simultaneous marriages with a number of women also had, apart from their proper name, which everybody had, the family name of their mothers (Diodorus Siculus, lib. III. 57; Micali, L’Italia, II. 1826, 92).

It results therefore that king Gnuru from the century 7-6bc, also had, by the custom of the Getae and the Scythii, a number of women; and that the mother of Anacharsis had been from the family called Carsa, while the mother of his brother, from the family Codaia.

From all this data studied so far, the genealogy of Anacharsis appears under the following form:

 

But Herodotus, who had lived 100 years after Anacharsis, also adds some important notes about the family of Anacharsis, which at the same time bring much light to the history of the royal dynasty of the Agathyrsii of Dacia.

As father of Anacharsis, Herodotus mentions Gnuru (Niuru); as grandfather, Lykos (Lupul, TN – the Wolf); as great-grandfather, Spargapithes, the king of the Agathyrsii on the river Maris in Transilvania; as brother; Saulios, king of the Scythii; and as nephew, Idanthyrsus (lib. IV. 76), king of the Scythii, at the time when Darius, the son of Hystaspes, had come with war against the shepherd Scythii.

The name Spargapithes appears only with Herodotus. But from the ethnical point of view it has an Agathyrsic and Getic character. One Spargapithes is king of the Agathyrsii in the 7th century bc, the ancestor of Anacharsis. Another Spargapithes is the king of the Agathyrsii in the 5th century bc (Herodotus, lib. IV. c. 78); finally, a third Spargapizes (here with z instead of th) is the son of Queen Tomyris, who had reigned over the Masagetae in the times of Cyrus (Herodotus, lib. I. 211).

 

The name Spargapithes, as presented by Herodotus, appears completely altered by the Greek pronunciation and orthography, and most of all, by the mania of the Greek authors to Hellenize the names of the Barbarians; so that we can say that we have here only a mode of writing of this name, but in no way its true original form.

In this name, which as we saw belongs to the Agathyrsian population, the letter p of the first and third syllables takes the place of b, as we have numerous examples with the Greek authors, even with Herodotus; and the letter g is only a simple guttural Greek aspiration, resulted because of the letter r of the preceding syllable, as in ‘Orgiempaioi = Arimphaei = Arimbaei, as in Regma instead of Rema, Rogmi instead of Romi, Rogmani instead of Romani. Finally, eithes is a simple nominal Greek suffix, which corresponds to the terminations escus and iscus in the regions of the lower Danube, which we find in various personal, ethnic and topical names, like: Andriscus, Daciscus, Threciscus, Teurisci, Scordisci, Ardescos, Securisca, Transmarisca.

By emending thus the Greek orthography of Herodotus, we shall have the following reconstructed forms of this name: Spargapithes = Sbar(g)abithes = Sbarabithes, where the radical or patronymic form is Sbarab. Finally, by replacing the termination eithes (ithes) with the Greco-Latin suffix ita, or with the termination iscus or escus from the regions of the Carpathians, we get the forms Sbarabita, Sbarabiscus and Sbarabescus.

We have here therefore some more positive data about the pronunciation of this name.

Spargapithes, as results from the data found with Herodotus, is not an individual name, but a family or clan name of the royal dynasty of the country of the Agathyrsii.

 

Now we are presented with the question, do we also find some mention about the name of this royal dynasty with other authors of antiquity?

The Goth historian Jornandes communicates a passage of the lost writing of Dios Chrysostomos ta Geticha, in which this author tells us that all the kings of the Dacians were from the so-called family or clan of the Zarabii (De reb. Get. c. 5). We have here a form very close to the family name of the Agathyrsian kings, Spargapithes (Sbarabita, Sbarabiscus) from the patronymic Sbarab. We must observe though that neither Dios Crysostomos, nor Jornandes, reproduce the name of the Dacian dynasty quite exactly.

In the text of Dios and Jornandes, the name Zarabi appears only as a simple truncated form of Bazarabi, exactly as in the Byzanthine history of Chalcocondylas, Dan, the voivode of the Romanian Country at 1444, was also called “the son of Saraba” (Sarampa), instead of Basaraba (Stritterus, Memoriae pop. II. 918).

In order to stress even more the fact that the Greek authors had altered almost entirely the form of this name, we must mention that on the territory of Dacia we do not find the smallest positive trace about the Zarabii of Dios and the Spargapitii of Herodotus. If these onomastic forms had existed in reality, then at least some branch of this extended family, a locality, a mountain, a ruin of a fortress, finally, some tradition, should have preserved some pale memory of the name of the Zarabii and the Spargapitii.

But there is no echo, either in the family names, or in the topical terminology.

 

In the history of the Romanian people from the lower Danube, the most noble, most ancient and most powerful clan has been that of the Basarabii.

From this trunk, which by the end of the Middle Ages had spread on both sides of the Carpathians in a large number of smaller branches of cnezi (TN – ruler), boyars, freeholder peasants, and nobles, were chosen the ancient Bani of Severin and Craiova (TN – traditional rulers of these two provinces), and the Domns of the Romanian Country.

In chronicles, in biographies and in various other historical works, the reigning family of the Basarabii also appears with the name Basarabesc clan or the Basarabescii (Hasdeu, Etym. Magn. III. 2541, 2555). The Romanian Country, over which ruled the Basarabii, is called in Italian, Serb, and Polish historical sources, Bessarabia and Besserabia, and its inhabitants are Bessarabeni (Sommersberg, Siles. rer. script. II. 82), Bessarabitae (Ulianitzkii, Uricarul, vol. XI.p.39) and Bessarabisci (ibid, vol.XI.p. 41).

 

The name of the Basarabii, as the reigning family in the history of the countries from the lower Danube, goes back many centuries.

Diodorus Siculus mentions a king called Barsaban, who had reigned around 149bc over the northern parts of Thrace (libr. XXX-XL fr. 16). In this passage, the form “Barsaban” corresponds to “Basraban”, the same as Basaraba, the letter r often changing its place in Greek dialects.

We also find an echo of a prehistoric “Bessarabia” in the Italic toponimy: Pliny mentions among the ancient populations of Calabria, the Decianii, Aletinii and Basterbinii (lib. III. 16. 7). We have here without doubt a group of tribes migrated in very obscure times from other geographical regions, and we can very easily guess the names of the Decienii, the Oltenii (or the inhabitants from near the river Olt - Alutus), and the Basarabenii, natives of Besserabia or Bessarabia, as the Romanian Country was named in the last centuries of the Middle Ages by the Italian and Polish sources.

Finally, basing himself on Greek sources, the geographer Ravennas mentions two neighboring peoples, the Bassarinii and the Melanglinii (Cosmogr. Ed. Pinder, p. 174), who had their dwellings in the northern parts of great Scythia. According to the geographical ideas of the ancient authors, the regions of Dacia were situated right under the north pole, called also “polus Geticus”; so the Bassarinii of Ravennas appear, from the point of view of their geography and name, as being the same people as the inhabitants of the north of Thrace, over which the dynasty of the Basarabii reigned. As for the Melanglinii, they are the Melanchlaenii of the Greek authors, people with black clothes, pastoral tribes, scattered in ancient times through various regions of southern Scythia. But the Melanglinii of Ravennas especially – neighbors with the Bassarinii – seem to be identical with the so-called Marginenii, who in the Middle Ages had a duchy of their own (of Omlas), and who have even today the same characteristic black, or dark colored attire (Diaconovich, Encicl. rom. III. 204).

 

We saw from all of the above how ancient is the name of the Basarabii, not only in the political history, but also in the geographical terminology of the countries from the Carpathians and the lower Danube. It results therefore that from the historical point of view, the Spargapitii of Herodotus - kings of the Agathyrses - are identical, as family and as dynasty, with the Barsabanii of Diodorus, with the Zarabii of Dios, and with the Basarabii or Basarabescii of the Middle Ages, who had reigned in Tera Hategului as Cnezi, in Banat and Oltenia as Bani, in the Romanian Country as Voivodes, and in Fagaras and Omlas as Domns and Dukes (Paulus Iovius, Hist. lib. XL. p. 210).

 

Finally, here is another note from the history of the dynasty of the Agathyrsii.

Herodotus mentions two kings of the Agathyrsii, both having the name Spargapithes, which seems to have been a family name, hereditary and historical.

We find the same examples also in the history of the Romanian Basarabii.

On the 1364 inscription from Campulung, Alecsandru Basarab is called “the son of great Basaraba voivode”. Later, the son of Vladislav (III) Basarab is called only “young Basaraba voivode, the son of good Basaraba voivode”. Similarly, Negoe, of the branch of the Danescii, as soon as he becomes Domn in 1512, he starts to sign himself “Basaraba voivode, the son of the most good Basaraba voivode” (Hasdeu, Etym. Magn. III. p. 2546; Archiva ist. I. 1. 142), as if “Basarab” or “Basaraba” were not only a name, but also a sacred title of the Domns of this country.

We have therefore the following genealogic table about the family of Anacharsis, according to the data gathered by Herodotus:

 

[5. In this genealogy, a note written by Apollodorus (III. 10. 1) also has its rightful place. It says that a daughter of the titan Atlas, called Celaeno (Negra), had been the mother of one so-called Lykos (king?), passed into immortal life in the Blessed islands (from the mouths of the Danube).

Negru Voda, the founder of the Romanian Country (TN – as a state), was also from the family of the Basarabii, as results from a document of Matei Basarab from 1636, and from the inscriptions of the monastery of Campulung).

Suidas tells us that Anacharsis could have been a contemporary of Cronos, who had lived between 595 - 525bc. For the life of Anacharsis we have considered though the more certain date of 594bc, when Solon had been elected arhontes, with the mission to compile and redact new laws for the Athenians, during which he had received the visit of Anacharsis. In regard to the chronology of the forefathers of Anacharsis, we took in consideration the rule established by Herodotus (II. 142; VI. 98), and other modern authors, that three generations make 100 years].

 

So, according to Herodotus’ notes, we have a Gnuru (Niuru) or Negru (king of the shepherd Scythii), who had lived around 627bc, and we have a Spargapithes, meaning a Sbarab, Basarab or Basarabescu, as king of the Agathyrsii, or of the western parts of Transilvania, who had reigned around 694bc, in the same times of Numa Pompilius of Rome.

Anacharsis, as the Greek sources tell us, had also composed a work in verse about the laws of the shepherd Scythii. We saw that Aristotle also mentions the laws of the Agathyrsii.

But the redaction of the Scythian or Agathyrsian laws attributed to Anacharsis, was in any case much more ancient. The Turdulii or Turditanii of the Iberian peninsula, who had migrated there in very obscure times from the western parts of Transilvania, also had, as Strabo tells us, a codex of laws written in verse, 6000 years old, according to what they said.

So, we can draw a positive conclusion, that the laws of Solon had been mostly a compilation and imitation of the political and civil laws of the Scythii from the Carpathians and the lower Danube; laws which had divine authority since a very remote antiquity, and which were at the same time ancestral laws for the co-nationals of Strabo, because as Plato writes, the Athenians reduced their origin to Atlantis, the ancient kingdom of Atlas at north of Istru.

 

III.

 

We arrive now at the ancient collection of laws of Dacia, called by Jornandes Leges Bellagines, which still existed in written form around the middle of the 6th century ad.

In the historical documents of Transilvania, Hungary, Poland, the Romanian Country, and Moldova, is often mentioned a particular law of the Romanians from the Carpathians, called:

- In Banat: antiqua et approbata lex districtuum volahicalium universorum (Pesty, Olah keruletek, 82, 1478); jus Wolachie (Pesty, A Szor. Bans. III. 134-5, 1500); lex et approbata consuetudo (Ibid. III. 253. 1548); antiqua consuetuda (Ibid. III. 273. 1555); doctrina nobis a deo data (Ibid. III. 116. 1494).

- In Tera Fagarasului: lex Valachorum (Kolozsvari es Kelemen, Monum. Hung. Juridico-historica, I. 173. 1508); antique lex huius terre (Densusianu, Monumente p. ist. T. Fagarasului, 1885, p. 74); vetus huius terre consuetudo; jus et consuetudo vetus; a videknek regi torvenyek, the ancient laws of the land (Ibid. p. 17. 21. 76. 80).

- In Hungary: antiqua Valachorum lex et consuetudo (Pic, Abstammung d. Rumanen, 142. 1493); mos Valachorum.

In Poland: jus valachicum (Hasdeu, Arch. Ist. II. 117. 1569); jus et consuetudo Valachorum (Pic, Abst. D. Rum. p. 142. 1493).

- In the Romanian Country (TN – Tera Romanesca), in a document from 1591: lege Dumnedeesca (TN – Godly law; Hasdeu, Arch. Ist. III. 147); and in the preface of the Law of Ion Caragea from 1818: “pravilnicesca condica scrisa” (TN – written codex of laws), which Tera Romanesca had “from ancient times”, entirely different from the imperial decrees of the Romans.

- In Moldova: old law (Uricarul, I. 139: the document of Stefan V, the Young)

- In Serbia: “zakoni Vlachovi” the law of the Romanians (Hasdeu, Archiva ist. III. 120: the document of tsar Dusan, 1348), and “starii zakoni”, ancient law (Hasdeu, Archiva ist. III. 143).

 

This law, as results from the official texts of the documents, contained various rules in the domain of public law, regarding: the political, judicial, fiscal and military organization of the Romanian banate, voivodate, provinces, districts, cnezate, communes, and villages (TN - various administrative Romanian territories); rights and obligations of the various classes of society, the priests, voivodes, cnezi, boyars and the military, who were charged with the defense of the forts, the frontiers, of the fords and roads, and also rules regarding the condition of the peasants (neighbors, serfs, laborers) towards the privileged classes. We also find in this law a system of rules in the domain of private law, regarding property and possession, obligations, successions, matrimonial rights and procedure in front of the judiciary. Finally, some rules referred to the penalties which had to be applied to the criminals. This law was especially severe with those who destroyed the crops, and who stole cattle from the pasture, or from herds.

 

Some important fragments of this immemorial legislation called “Lex antiqua Valachorum”, have been preserved in the so-called Statutes and Constitutions of Tera Fagarasului, from the 16th and 17th centuries, which, in their rules and form of redaction, differ from the statutes, constitutions, and particular laws of the other nationalities of Transilvania, Hungary and Poland.

We shall reproduce here several laws from this “Lex antiqua Valachorum” [1], presenting them at the same time in parallel with some fragments from the laws of the XII Roman Tabulae (Leges XII tabularum), as well as with other precepts from the ancient laws of the Pelasgian people:

 

[1. Part of the legal dispositions which follow are taken from The Statutes of Tera Fagarasului (Fogarasvideki Statutumok) from y.1508, and from The Constitutions of the District of Tera Fagarasului (Constitutiones Districtus Terrae Fogaras), compiled in the 16th and 17th centuries and published in Monumenta Hungariae juridico-historica by Dr. Kolozsvari Sandor and Dr. Ovari Kelemen (Tom. I, Budapest, 1885)].

 

 

  1. If the boyar dies without male heirs, his hereditary estates will pass to his con-divisional brothers; in their absence, the succession of the real estate is due to the lord of the land, because, by Romanian law, the estates are not passed on to the female sex.

 

- Tab. V: Si intestato moritur cuius suus heres nec (escit), agnatus proximus familiam habeto. Si agnatus nec escit, gentilis familiam nancitor.

- Lex Romana Utinensis: Ille homo qui sic moritur, qui testamentum non faciat sua ereditas… si filii non sunt, ad suos propincos qui de patre sunt (debet pervenire) … nam ipsa hereditas ad feminas venire non potest. De legitima patroni hereditate.

- Statuta Distr. Fogaras (173): Quando Boyaronem mori contigerit et heredes non habuerit…si…masculo caruerit: et filiam habuerit…fraters diuisionales…puellam (cum quarta parte puellari) contentant et hereditates …ad se redimant. Casu vero quod fratribus diuisionalibus deficeret…Dominus terrestris…puellam de talibus hereditatibus excludere valeat… Quia in lege Valachorum hereditates sexum femineum non concernunt.

The same order of succession was observed for the Romanian nobility in Banat and Maramures (Cf. Pesty, A Szor. Bansag. III. IV; Mihalyi, Dipl. Maram. p. 257. 1421).

 

  1. About the right of peasants to acorn, in the woods of the landlords and the boyars.

 

- Pliny, lib. XVI. 6: Cautum est praeterea, lege XII tabularum, ut glandem in alienum fundum procidentem liceret colligere.

- Statuta Distr. Fogaras (p. 175): dum glandines fertiles erunt …nec domini Terrestres, nec Boyarones a colonis exigere waleant quiequam.

 

     3. Judicial punishments for those who destroy the vallum of the city and the graves.

 

- Tab. X: Ne forum sepulcri bustumque usucapiatur (Cicero, Leg. II. 24).

- Cicero, De Leg. II. 9: Deorum Manium jura sacra sunto. Hos leto datos, divos habento.

- Herodotus, IV. 127: Idanthyrsus, the king of the shepherd Scythii, towards Darius, the king of the Persians: “If you wished to engage a fight with us as soon as possible, then you should know that we have graves of our forebears; see to find them, and if you did, try to destroy them, and then you shall see if we fought with you for the graves, or not”.

- Const. T. Fogaras (p. 321): Contra Valli circa Oppidum jacentis et Sepulcri diruptores poena declaratur.

 

  1. About he who illegally occupies the house or courtyard of another from villages, or from estates.

 

- Tab. VII: Hortus – Haeredium -  Tugurium

- Statuta Distr. Fogaras (171): Qui domum vel curiam vel hortum in aliqua villa, vel terries, agris, siue eeiusdem …absque Juris ordint potentialiter occupauerint etc.

 

  1. About the limitation of neighboring lands.

 

- Virgil. Aen. XII. 897: Saxum antiquum ingensLimes agro positus, litem ut discerneret arvis (cf. Homer, Iliad, XXI. 405).

- Constit. T. Fogaras (p. 323): quicumque …runcatas Terras habent, cum vicinis et commetaneis suis in bona harmonia signent, magnis et praestantibus lapidibus.

 

  1. Boundary controversies between neighboring estates are regulated by arbiters.

 

In the controversies “de finibus regundis”, the laws of the XII tabulae ruled that three arbiters should judge.

Cicero, De leg. I. 21: Controversia nata est de finibus: in qua…tres arbitri fines regemus. In actione finium regundorum, illud observandum esse, quod ad exemplum quodammodo eius legis scriptum est.

Pesty, Krasso varm. Tort. III. 25. 1347: Ita ereccionem ipsarum metarum ordinassent…quod partes adducent communiter quatuor probos viros…Quiquidem….iusticiam inter ipsas partes observant, vadant et videant illas veras et rectas metas erectas exantiquo.

Pesty, A Szor. Bansag. III. 145, 1503: Banus Zewriniensis…utrasque partes amonuimus, ut certos probos nobiles viros ad id sufficientes iuxta ritum Volahie eligant et adoptent, etc.

 

  1. About he who insults somebody before the tribunal.

 

- Tab. VIII: Si injuriam faxit alteri viginti quinque aeris poenae sunto.

- Statuta Distr. Fogaras (p. 174): In sede Judiciaria alter alteri verba dehonestatoria dixerit, tunc ille conuincatur in floreno uno.

 

  1. About the boyars who avoid paying contributions, harming their peasants in the process.

 

- Tab. VIII: Patronus si clienti fraudem fecerit sacer esto.

- Constit. T. Fogaras (p. 326): …quicunque…inter Boerones in dolo deprehensi fuerint (quod in miserae Plebis maximam ruinam contributionem subterfugiant) eorum domos…occupare possint illi qui pro talibus fraudulenti(i)s tributum deposuerint.

 

  1. When someone’s cattle, big or small, make damage on someone else’s land.

 

- Dig. I. IX. 1. 1: Si quadrupes pauperiem fecisse dicatur, action ex lege duodecim tabularum descendit.

- Constit. T. Fogaras (p. 317): Si pecora de die aliqua Loca invaserint interdicta, nec adeo notabilem damnum intulerint, singulum Pecus redimatur.

 

  1. About those who graze their cattle on the sown fields or orchards of others, or steal hay, oats and other food from the fields.

 

- Pliny, H. N. lib. XVIII. 3. 4: Frugem quidem aratro quaesitam furtim noctu pavisse, ac secuisse, puberi XII tabulis capitale erat: suspensumque Cereri necari jubebant, gravius quam in homicidio convictum: impubem Praetoris arbitratu verberari, noxiamque duplione decerni.

- Constit. T. Fogaras (p. 317): Si quis potentiose…sua pecora in vetita aliorum Loca videlicet segetes, partum, impelleret, … in tali casu ipse et pecora ejus capiantur et se redimat fl. 12. insuper damnum juxta aestimationem solvat.

- Constit. T. Fogaras (p. 320): …qui Herbam, Avenam, ac cuiuscunque generic, et speciei frumentum ex campis….invehunt….ac qui suspicioni obnoxiantur, (Portarii) eos significant.

 

  1. About the thief who breaks into houses, or enters through the window.

 

- Tab. VIII: Si nox furtum factum sit si im occisit iure caesus esto (Cf. Macrob. Saturn. I. 4).

- Statuta Distr. Fogaras, (p. 175): Qui domos aliorum foderint, wel de fenestra intrauerint, capite priuentur.

 

     12. About the thief who turns against  those who try to catch him.

 

- Cicero pro M. Tullio, fragm. 10: Atque ille legem mihi de XII tabulis recitavit, quae permittit ut furem noctu liceat occidere, et luci si se telo defendat.

- Cicero pro Milone, c. 3: Quod…duodecim tabulae nocturnum furem, quoquo modo: diurnum autem, si se telo defenderit, interfici impune voluerunt.

- Constit. T. Fogaras (p. 318): Si quis vero insurgeret, et se capi, aut pecora sua ex loco vetito impelli non sineret, eotum contumax in fl. 24. convincatur.

- The guiding of the law (ed. 1652), c. 247: He who shall kill the thief, when finding him stealing his food (crops), he shall not be reprimanded….if found that the thief had attacked the owner of the crops.

 

  1. Punishment by death for those who steal sheep, pigs or other cattle, big or small.

 

-  Gaius, Comment. III. 189: Poena manifesti furti ex lege XII tabularum capitalis erat.

- Justinus lib. II. 2: Nullum scelus apud eos (Scythas) furto gravius: quippe sine tecto munimentoque pecora et armenta inter syluas habentibus, quid salvum esset, si furari liceret?

- Statuta Distr. Fogaras (p. 174): Ex parte furum observetur antiquis modis, ita videlicet, quod si vnum ouem vel porcum, sive alias pecudes et pecora furauerit duodecies tamen soluat, et sic caput suum redimat a patibulo, sicuti hucusque consuetum fuit in talibus.

- A document from y. 1509: Quod agiles Mussatt et Komsa… coram nobis (Capitaneo T. Fogaras)….sunt confessi in hunc modum, quomodo….fratrem ipsorum carnalem Man vocatum in quoddam furticinium, pro quo de jure suspendi debebat, incidisse etc.

 

  1. About those who put fire to other’s houses, hay, oats or straw.

 

- Gaius, I. IV. ad legem XII. tabularum: Qui aedes acervumve frumenti iuxta domum positum combusserit, vinctus, verberatus igni necari iubetur (Dig. I. XLVII. 9. 9).

- Constit. T. Fogaras (p. 322): In Protocollo de praecautione eorundem (incendiorum) nonnulli inserti habeantur articuli…1. Nemo versus Plateam in ordine Domorum, Faenum, aut Avenam, stramen….collocet.

- Statuta Distr. Fogaras (173): Incediary…Ignis Incendio conburantur.

 

  1. About wounding.

 

- Tab. VIII: Si membrum rupsit, ni cum eo pacit talio esto (Festus).

- Gaius. Comm. III. 223: Propter os vero fractum aut collisum trecentorum assium poena (ex lege XII tab.) erat.

- Statuta Distr. Fogaras (p. 171): Prius erat consuetudo, quod pro effusione sanguinis florenos 13 pro birsagio exigebant.

- Constit. Distr. T. Fogaras (p. 316. 330): …si ….rusticum Nobilis incruentaverit (mulctetur) fl. 3.

 

         16. About those who shall kill others with weapon, poison or spells.

 

- Si quis hominem liberum dolo sciens morti duit paricidas esto (Leges regiae).

- Tab. VIII: Qui malum Carmen incantasset – Malum venenum.

- Statutum Comitatus Hunyadiensis, y. 1773 (p. 494): Quicunque e praedestinata malitia …aliquem quocunque telo, pharmaco, aut arte magica occiderit….capitis amputatione punietur.

 

  1. About those who use spells for removing the manna from the sown fields of another.

 

- Tab. VIII: Qui fruges excantassit – Neve alienam segetm pellexeris.

- Teodorescu, Poesii pop. (p. 384): Spell for undoing the spells: “spell with the taking of manna of cows and ewes… spell with the taking of the manna of wheat and maize and all the sown crops….lighted moon, come and take the spell from my land, from my garden, etc”.

As we see, the belief in the taking away with spells of the manna of sown crops, had also existed with the Romanian people; so the ancient Romanian law had to include a penal disposition in this regard, as it was also included in the XII tabula and in Lex Baiuvariorum, tit. XII: si quis messes alterius initiaverit maleficis artibus, etc.

 

  1. About traitors and those who rise against authority.

 

- Lex duodecim tabularum iubet, eum qui hostem concitaverit, quive civem hosti tradiderit, capite puniri (Dig. I. XLVIII. 4. 3).

- Cicero pro M. Tullio, fragm. 10: recitavit….legem antiquam de legibus sacratis, quae jubeat impune occidi eum, qui tribunum plebes pulsaverit.

- Statuta Distr. Fogaras (p. 170): Proditores, infidels Castri, capite priventur.

- Ibid. (p. 175): Qui…contra Castellanos vel Officiales et homines eorum insurgere auderent ex tunc capite priventur.

 

  1. About deserters at time of war.

 

- Livy. I. XXIV. 20: et recepti perfugae trecenti septuaginta; quos cum Romam misisset consul, virgis in comitio caesi omnes, ac de saxo dejecti.

- Ibid. I. XXX. C. 43: De perfugis gravius, quam de fugitivis, consultum; nominis latini qui errant, securi percussi, Romani in crucem sublati (Cf. Dionys. VII. 40).

- Schard, Script. Rer. Germ. Ed. 1574. p. 1276: Haec est Valachorum consuetudo, ut cos omnes qui ex pugna evadentes domum revertuntur suppliciis gravioribus, quam si in bello cecidissent afficiant.

 

     20. In Tera Fagarasului, the punishment by beheading could be given only by the supreme court of that land.

 

- Tab. IX: De capite civis nisi per maximum comitiatum…ne ferunto (Cic. Leg. III. 4. 9).

- Constit. T. Fogaras (p. 328): Quod in hoc Districtu Terrae Fogaras non aliud Forum sit, quod Jus Gladii haberet (quam Fogarasiensis Sedes Superior, quae etiam sedes Capitaneatus appellari solet).

 

  1. The ancient law forbids fainting in church over the body of the deceased.

 

- Tab. X: Mulieres….neve lessum funeris ergo habento.

- Statutum Arbensis civ. (XIV century). I. IV. 12: quod mulieres non possint pro aliquo mortuo boccare: nisi illo die quo morietur….Insuper nullus homo audeat se projicere supra aliquem mortuum in ecclesia (Bibl. Acad. Of Agram. Ms. Nr. II. d.4).

 

  1. Exile, as judiciary punishment, for those who had committed certain thefts, or had devastated the estates of others, with foreign armed men.

 

- The exile, under the form “aquae et ignis interdiction”, had existed with the Romans even before the XII tabula (Cf. Dionys. Hal. II. 53).

- A sentence of the tribunal of Fagaras from y.1500: quod cum…in oppido Fogaras iudicium facere consedissemus…. In nostrum iudicium extitit inducta, quod filius quondam Juga de Beriwoy nomine Man per furticinium suum amisisset…. Boieronatum suum … idem fuisset in exilium positus….vt mos predecessorum fuit, etc.

- In Maramures, the sentence for sending someone into exile was pronounced in the general assembly of the entire nobility and the top men of the land.

- Mihalyi, Dipl. Maram. p. 363. 1453: Nos….Comes….et universi nobiles Comitatus Maramarosiensis…. nobiles viros Michaelem et Georgium Ficze dictos….ratione et pretextu….quorundam latronum alienorum….et depopulacionis possessionis nobilis Petri Gerhes….cum universis proceribus prescripti Comitatus…. (in) exilium duximus ponendos….ipsos….exules captivare et possessiones eorum depopulare commiseramus.

 

  1. Judicial punishments for drunken women.

 

- Lactantius, Div. Inst. Lib. I: Clodius…refert, Fauni hanc uxorem (Fatuam Faunam) fuisse: quae quia contra morem….clam vini ollam ebiberat, et ebria facta erat; virgis myrteis a viro usque ad mortem caesa.

- Pliny, lib. XIV. 14. 2: Non licebat id (vinum) feminis Romae bibere….Egnatii Mecenii uxorem, quod vinum bibisset e dolio, interfectam fusti a marito.

- Constit. T. Fogaras (p. 333): Faemina ebria inventa prima vice fl. 1, secundo vero in Cippum inclusa verberibus afficiatur.

 

  1. The ancient law forbids marriage between boyars and peasants.

 

- Tab. XI: Ne patribus cum plebe connubium sit.

- The ancient traditional (unwritten) laws of the Brahmans of India also included the rule that a woman from another tribe could not be taken in marriage (Diodorus. II.41; Strabo, XV.1.49).

- In Tera Fagarasului, marriages between boyars and peasants were forbidden.

- In the Romanian Country, marriages between freeholder peasants and statute laborers are not allowed (Hasdeu, Columna, IX. 178).

 

  1. According to the ancient Romanian law, the simultaneous marriage with two or more women was allowed.

 

The supreme purpose of marriage in archaic times, from the point of view of legislation, had been multiplication of the nation and preservation of the state.

- Saturn (Munteanul), the most ancient king of the inhabitants from near Atlas mountain and Oceanos potamos (Istru), had 45 children with a number of women (Diod. III. 57).

- Priam, the last king of Troy, tells Achilles that he had 50 children, 19 of them with only one woman, and the others with the women servants (Homer, Iliad, XXIV. 495).

- The kings of the Scythii had several women (Herodotus, IV. 78).

- The Thracii and Getae had an ancient custom, that each man had to have 2-12 and even more women (Strabo, VII. 3. 4; Herodotus, V. 5).

This custom had once been almost general with all the populations of Pelasgian race.

- Tacitus (Germ. 18) writes: nam (Germani) prope soli barbarorum singulis uxoribus contenti sunt, exceptis admodum paucis, qui….ob nobilitatem plurimis nuptiis ambiuntur.

- The same customs also existed in fact in the Roman army recruited from the provinces, as results from the privileges given to the veterans, by which they were conferred jus connubii with only one woman: dedit et connubium cum uxoribus, dum taxat singuli singulas; or: dum taxat singulis et primis uxoribus (C. I. L. vol. III).

- In some parts of Transilvania, still existed until the 16th century the custom of having more women. From 1543 onwards though, the legislation of Transilvania begins to take severe measures against these customs.

- Mon. Hung. Jur. Hist. I. 513: Ex communi tocius Vniversitatis Saxonum congregatione: Conclusum est, quod….Valachi uxores legitimas habentes, et alias superinde ducentes capitis poena plecti debent.

- Statutum comm. Hunyad. Y. 1773 (p. 494): Quicunque (Valachus) Crimine…Bigamiae, aut Polygamiae semet contaminaverit, ac polluerit, gladio ferietur.

- The decision of the Diet of Transilvania y. 1554: (In terra Fogaras) viri duas uxores habentes….solita poena puniantur (Densusianu, Doc. Priv. ist. Rom. II. 5. 168).

- Verancus Exp. Solimani (ap. Ilarianu, Tesauru, III. 160): Licet enim eis (Valachis) omnibus communiter et duas et tres uxores habere, nobilibus ac potioribus etiam plures; vaivodis vero quot volunt, liberum est; ….illarum quoque liberi, nihil obstante quod concubinarum speciem prae se ferant….pro legitimis habentur, successionesque dominationis sortiuntur.

- Anon. Belae reg. not. C. 11: Menumorout (dux Byhoriensis)…plurimas habebat amicas.

- Mircea the Great, Domn of the Romanian Country, also had children from a number of women (Engel, Geschichte d. Walachey, p. 162).

 

  1. The ancient Romanian law allowed the unbinding of a legitimate marriage, through repudiation.

 

- Plutarch, Romul. C. 22: an ordnance of Romulus allowed the man to separate from the woman even without a legitimate cause, with the condition that half of his wealth be adjudicated to the woman, and the other half to the goddess Ceres.

- In Greece, the man could repudiate the woman anytime, with the condition to return all the things brought by her, or to pay her a monthly amount of money (Pauly, Real-Encycl. II, 1842).

- The XII tabula also allowed repudiation, with the condition to return to the woman the things brought by her (Cic. Phil. II. 28: suas res sibi habere jussit ex duodecim tabulis. Claves ademit; exegit).

- Statuta Distr. Fogaras (p. 172): Boyarones siue rustici valachi uxoribus proprys matrimonialiter Juncti, si maritus wel uxor verum matrimonium non obseruaret; Extunc talis pars non obseruans, portionem suam in hereditatibus, quam in rebus amittat, portio vero pars (partis) obseruantis una cum hereditatibus suis sola (salva)remaneat.

- Statuta Distr. Fogaras (p. 172): Boyarones more et lege ipsorum uxores a se abycere vellent et cum easdem amplius manere nollent, pars separans, castellano….soluat pro birsagio florenum unum. Rusticus Valachus similiter, uxorem abycere voluit….boyaroni suo….soluat asporas nouem.

- Gratianus De I. Heraclide Despota. Ed. 1759, p. 21: Matrimonia viri (Valachi) vel minimis de causis saepe solvunt remisso uxori nuncio pensisque fisco duodecim denariis.

- Wrancus. De situ Transsylvaniae, Moldaviae, etc (ap. Ilarianu, Tesauru, III. p. 179): matrimonia….dato repudii libello, et pecunia quadam admodum modica, in signum dissolutae desponsationis uxori reddita, dirimere nullum nefas est.

 

  1. According to the ancient Romanian law, the marriages of foreigners with Romanian women, on Romanian territory, were prohibited. Such an illegal marriage could not confer the foreigner and his children, either political, or civil rights, on Romanian soil.

 

- Seneca, De Benef. IV. 35: Promisi tibi filiam in matrimonium; postea peregrinus apparuisti; non est mini cum externo connubium. Eadem res me defendit, quae vetat (Cf. Livy, lib. XLIII. 3).

- Revista noua, An. III. 302 - The document (hrisov) of Ion Stefan Michai Racovita, from y. 1764:

As the foreigners who come here in this country….also get married, taking women of this land and daughters of boyars, and with all sorts of wiles enter the ranks of the boyars with high jobs…. custom which badly has taken root in the land of the country, I, my Highness, decide, that from now onwards, no foreigner shall marry here in the land of the country, and take daughter of local, and the locals too, should not dare give their daughter or other relatives after foreigners, no matter who they were, because whoever from now onwards shall disobey my order and this decision of my Highness, should know that the married men shall be chased off the land of this country together with the woman, and all their wealth shall be taken over by the Reigning power, etc.

 

  1. According to the ancient Romanian law, foreigners were unable to buy and own real estate on the territory of Romanian districts or countries.

 

- Tab. III: Adversus hostem aeterna auctoritas.

- Cicero, De off. I. 12: Hostis enim apud majores nostros is dicebatur, quem nunc peregrinum dicimus. Indicant duodecim Tabluae: “ut status dies cum hoste”, itemque: “adversus hostem aeterna auctoritas”.

So, the foreigner (hostis), according to the XII tabula, had neither the public, nor the civil rights of the Roman citizen. In particular, he had no right to buy, own and sell legally (jus comercii). As opposed to the foreigner, the right of ownership and possession of the Roman citizen, and the Roman state, was never proscribed.

- Pesty, A Szoreny varmegyei olah keruletek. p. 73-74, y. 1457: Nos Ladislaus Dei gr. Hungarie….Rex….omnia et singula eorundem Valachorum et Keniziorum priuilegia….perpetuo valitura, roboramus….Et….decreuimus a modo in posterum in prefatis octo districtibus (Valachorum) nullo unquam tempore alicuio extraneo possessions et villas donare.

- Ibid. III. 300. 1561: Nicolaus pobora in universitatis dominorum nobilium Comitatus Zewriniensis (nomine) asserens: habere ipsam universitatem nobilium efficacia priuilegia, ne videlicet maiestas Regia cuipiam in Comitatu ipso Zewriniensi Bona non habenti Bona conferre possit.

This ruling of the Romanian law is archaic. A Roman inscription from 201ad mentions the antique laws of the inhabitants of Tyra (White citadel, Ak-herman), according to which only the representatives of the municipality of Tyra, and not the emperor, could confer to a foreigner the rights of citizen in that locality.

- C. I. L. vol. III. nr. 781: Epistula imp. Severi et Caracallae ad Heraclitum: quod attinet ad ipsos Tyranos quique ab iis secundum leges eorum in numerum civium adsumpti sunt, ex pristino more nihil mutare volumus.

- Uricariul, I. 139: In 1525, the old people of the town of Vaslui ask Stefan Voda the Young to judge their cause by ancient law, in order to take from the hands of the Armenians, Jews and Greeks the house land, the grassland and the land for beekeeping, because, according to ancient law, foreigners had no right to buy farmland, house land, grassland, apiary land. And the Domn decides: “but land, nobody, no foreigner, even if he were Greek, is allowed to own, or to pay for, in our Moldovan land”.

 

  1. According to ancient Romanian law, Saturday was the day set apart for audiences before the tribunal.

 

- Lex Alamannorum, tit. XXXVI: 1. Conventus autem secundum consuetudinem antiquam fiat in omai centena coram Comite… et coram Centenario. 2. Ipsum placitum fiat de sabbato in sabbatum.

- Constit. Distr. T. Fogaras (p. 304): Juxta antiquum et in praesens usque retentum modum ac consuetudinem terminus Celebrationis Sedis Judiciariae praefixus est dies Sabbathi.

 

Even before the introduction of Christianity, the Roman people had a calendar cycle of 7 days, about which some authors make no mention though. The seventh day in this cycle was called sabbatum. In this regard, Suidas writes: “Saturday was the seventh day of the seven day cycle, venerated by the Romans”. The philosopher Seneca, born in Hispania in 3ad, also mentions (Epist. 95) that the Romans had an ancient custom of lighting candles on Saturday. According to Ovid (R. Am. 219) though, the Saturdays were venerated by the peregrinii, a general name which referred to all the foreigners, not only to the Hebrews.

An ancient city with the name Sabata is situated on the territory of Etruria, near a beautiful lake close to Rome (Strabo, v. 2. 9). Livy (XXVI. 33) mentions on the territory of Campania a group of inhabitants, called Sabatinii.

It is without any doubt that, with the populations of Pelasgian race, the name of the day of the week, called “Saturday”, predates Christianity, and therefore is not Biblical.

The Sabinii and the Umbrii venerated an ancient national divinity, under the name Sabus (Dionys. II. 49; Sil. Ital. VII. 424). The same Sabus, called Sabinus by Virgil (Aen. VII. 178), also appears as an ancestor of king Latinus.

In Thrace, as Macrobius tells us (Sat. I. 18), Liber pater or Bacchus was venerated as a divinity of the sun under the name Sebazius, Sabazius, Sabadius (a word composed of Saba/s/ and dius, Saba the god). This Sabadius or Sabazius of the Thracii, or in other words of the Getae populations, appears as the same divinity as Sabus of the Umbrii, Sabinii and Latinii. To this solar divinity seems to have been consecrated, by the ancient Pelasgian peoples, the seventh day of the week, sabbatum, Romanian sambeta (TN – today sambata).

In Venetian dialect, Sambeta is called Sabo even today (Boerio, Diz. d. dial. venez. 1861, p. 590), meaning the day consecrated to Sabus. In the province of Neapoli is heard even today the expression characteristic for this day: nun c’e sabetto senza sole, “there is no Saturday without sun” (Andreoli, Voc. napol.-ital. p. 578).

In Transilvania, we also find some important traces of the cult of the divinity Sabus. One of the most ancient and famous monasteries of Terra Fagarasului is that from Sambeta, a locality whose name derives without doubt from an ancient sanctuary of the divinity once venerated there.

In the medieval dialects of Gallia (France), Saturday was called sambba-di (Littre, Dict. v. Samedi), a term in which the ancient divinity Sabus appears under the name Sambba.

In Transilvania could still be heard around the beginning of the 19th century the word Sambea and Sfantul (St.) Sambean, as a stressing formula, or that of taking an oath (Lexicon valach-lat. Budae, 1825, see Simbe).

The nine nymphs (muses) who accompanied Sabazius in his travels (Diod. IV. 4. 1) are called in Romanian folk incantations “nine white sambe” (Schmidt, Das Jahr u. s. Tage, p. 15). All of this is evident proof the Saba-zius of the Thraco-Getae was identical with Sabus and with Sambea, from which derives the name of the day Sambeta (Saturday).

The ancient custom to hold court on the day of Saturday is also preserved in Lex Alamannorum.

Finally, the same rule had once existed in the upper parts of Italy. In the province of Bologna is heard even today the expression: “mancar un sabet a on” (someone missing his Saturday), with the meaning of “non aver tuto il suo giudizio”, not having received full justice (Berti, Voc. Bologn.-ital. II. 275).

From this ruling of the ancient law results therefore that Sabus or Saba-zius had been a principal divinity of the Pelasgian tribes from north of the lower Danube.

Until today, the personal and family names Savu, Savul and Saulea are very widely spread in Tera Fagarasului and in the district of Muscel in Romania. Around 1679 we find a Sava Basarab (Hasdeu, Etym. Magn. III. 2543).

The brother of Anacharsis (594bc) is called by Herodotus Saulios (Saulea).

The Christian saint Sava (Sabas), drowned in the river Buzeu, had also been a native of Dacia (Acta Sanct. Hung. I. p. 199).

 

IV.

 

As we see, this ancient legislation of the Romanian people, called “Lex antiqua Valachorum”, “antiqua et approbata lex districtuum volahicalium universorum”, “Jus Volahie” and “Jus valahicum”, which contained rulings in all the branches of the public and private rights, goes back to a very remote age.

Without doubt, this traditional constitution of the Romanian people is in essence the same as the so-called Leges Bellagines from the 6th century, mentioned by Jornandes [1].

 

[1. The Statutes of Tera Fagarasului (Fogarasvideki Statutumok) of 1508 appear to have been, in regard to the particularities of the language, as only a simple Latin translation of an older Romanian text.

As for the second manuscript, with the name Constitutiones Districtus Terrae Fogaras, this contained mostly simple extracts from an older codex of articles and edicts (Protocollares articuli et edicta. Tit. XIX. Art. 9), which was kept at the Captaincy of Tera Fagarasului.

Some rulings of these Constitutions bear the dates of 1635 and 1690; but others mention the Dux or Duce of Fagaras (Tit. XIX, art. 4) and the vajvodales homines, a sort of judging representatives of the voivode; their name seems to have been preserved from ancient times, because the Captain of T. Fagarasului, who later occupied the position of the former Voivode, had the right to punish these commissars; they were therefore his assistants (quos vajvodales homines Dominus Capitaneus, legaliter puniat. Tit. VII, art. 2).

It results therefore that part of the articles of these Constitutions had had the power of law also in the times when Fagaras was a Duchy or Voivodate].

 

Here the word Bellagines has an ethnic meaning though (analogous examples are: Lex Salica, Lex Burgundiorum, Lex Alamannorum, etc). It is an expression identical with Bellacenae or Bellacorum, meaning the Laws of the Belacii, as some barbarian tribes of the Pelasgian family were still called in the Roman epoch.

The geographical term Blacena appears at the lower Danube even 200 years before the times of Jornandes.

In the acts of the council of Sardica (Sofia) in 343ad, we find apart from other bishops of Aurelian Dacia, one Athenodorus a Dacia de Blacena (Migne, Patrologiae cursus. Ser. lat. T. LVI. p. 54; Binius Severinus, Concilia generalia. Lutetiae. 1636. I. 523-524). Here “Blacena” can be the name of the city of residence of the bishop Athenodorus, but it can also be the name of his see. In any case, ”Blacena” is a topographical name from the lower Danube, which indicates that this city, or region, had been inhabited by Blaceni even before the times of Jornandes.

In the 3rd century bc the Greek term Blacennomion, derived from Blaconnomos, a traditional law by which the Blachii settled in the lower parts of the Nile governed themselves, had the same meaning as the name Leges bellagines and Lex Valachorum [2].

 

[2. This is a word, the ending of which appears as an irregular adjective formed from nomos, law. The fiscal tax in Alexandria was based on “o ton Blachon nomos”, like the fiscal taxes of the Romanians of Transilvania, Hungary, Poland and Serbia were similarly based on Lex antiqua Valachorum. (Henr. Stephanus, Thesaurus I.; Pic, Abst. d. Rum. 142. 1493; Hasdeu, Coloniile romane din Galitia, p. 43)].

 

V.

 

In regard to the history of ancient Pelasgian legislation, a particular interest is presented by the great similarity between Lex antiqua Valachorum and the fragments which have been preserved from the XII Tabula of the Roman Decemvirii.

Both legislations are based on the same juridical principles. They refer to the same archaic times, the same constitution of the society, finally to the same type of life and the same needs.

The historian Paulus Jovius, born around the end of the 15th century, had some knowledge about this ancient codex of laws of the Romanians, because he showed surprise at the antique character of these laws, which he believed to have been in reality only ancient Roman laws (Hist. libr. XL, ed. Basiliae, 1567, tom. II. p. 310).

 

About the XII tabulae of the Decemvirii it was generally believed that they had been borrowed from Greece, particularly from the laws of the Athenians (Livy, I. III. 31; 33).

Polybius though, born around 204bc, tells us something completely different: that the ancient constitution and administration of Athens did not resemble, either in form or in essence, the institutions of Rome. The people of Athens, says he, had always been like a ship without a captain (lib. VI. 43-51). Dionysius of Halikarnassus also writes that the laws of the XII tabulae were much better than the laws of the Greeks (lib. XI. 44).

Tacit writes on his turn, that the Decemvirii, charged to present a project of laws for the Romans, had picked from all over the place, where they could find something good (Ann. III. 27; Krueger, Histoire des sources du droit romain, Paris, 1894, p. 17).

Finally, we also find with Servius an important historical note, that the Faliscii of Etruria had been called “just” people, because the Romans had sent to them the Decemvirii, who had copied there many legal dispositions and had also taken some supplements to those XII tabulae (Aen. VII. 695).

The Faliscii, writes Strabo, had a particular idiom, the best herds and flocks, and very good pastures (Geogr. Lib. V. 2. 9). Probably these Faliscii, a mostly pastoral people, who also had a traditional renown of “just” men (particular epithet of the Getae), must have been only a group of Blaci or Vlasci, migrated from the regions of the Carpathians and the lower Istru.

 

It is a positive fact though, that the XII tabulae of Rome did not contain anything original; they were only a simple compilation work of the ancient laws and rulings of the Pelasgian tribes which, according to general belief, also had the authority of “sacred” laws.

The populations of Pelasgian race always had a particular veneration for their ancient, or ancestral, institutions (vetus mos).

 

Romulus, writes Dionysius of Halikarnassus, after placing the first foundations of Rome, after fortifying it with moats and walls, had convoked to the assembly the citizens of the new city, and, informing them that the peace and happiness of each state depended on the form of its government, had asked them to express their opinion: did they wish to be ruled by one, or by few, or did they wish to involve the entire people in the preserving of the laws; and they had answered: we do not need to be governed by new methods, but we want to be governed in the way in which our forefathers had already found that it was best, and this way, which we have from them, we shall not change, nor shall we stray from their rules, which we believe had been established with great wisdom (lib. II. 3-4).

In the kingdom of Atlas, in the southern parts of Dacia, the most ancient laws dating from prehistoric times, had been engraved on a yellow copper column (Plato, Critias, Ed. Didot, vol. II. p. 259).

Dionysius tells us that the laws of the Decemvirii, only 10 tabulae in the beginning, edited, received by the senate, and voted by the people, had been also engraved on copper columns, exposed in the Forum and made public knowledge in this way (lib. X. 57).

Finally, we also find another juridical custom with the Romans, borrowed without doubt from Dacia. The Agathyrsii from the river Maris (Mures), had the custom, as Aristotle writes, to sing their laws (Probl. Sect. XIX. 28), either because they considered them sacred, or, as Aristotle supposes, so that the laws won’t be forgotten.

We see that the same mode of veneration of the laws of the XII tabulae had been introduced at Rome. The Roman youths, writes Cicero, learnt, up until his own times, to sing the laws of the XII tabulae: discebamus enim pueri XII (tabulas), ut Carmen necessarium (Leg. II. 23).

This custom had been certainly borrowed from the Agathyrsii, the only people in ancient times who sung their laws.

 

VI.

 

Part of the sacred laws of the Romans predating the XII tabulae, was formed, as Dionysius tells us, by the fetialia laws (jura fetialia), which contained the sacred rulings: how to ask satisfaction from enemies, how to declare wars, and how to contract peace treaties.

The Romans had borrowed these laws in the times of Numa, or of Ancus Marcius, from other Pelasgian peoples; but towards the end of the republic it was not known precisely from which peoples. The ancient traditions mentioned only two peoples, the Faliscii (Aequicoli) and the inhabitants of Ardea, from whom these laws were believed to have been copied (lib. II. 72).

Regarding this, Dionysius writes: The Faliscii and Fescenii still preserve to this day some few traces of their Pelasgian origin.

In their cities had existed for a long time many archaic institutions; so that, when these cities needed to make war with others, or to repel beyond their boundaries the aggressions of others, they sent at the head of their armies some unarmed fetiali priests (lib. I. 21; Livy, lib. I. 32).

These fetialii had to ensure that the Roman people would not start an unjust war against another federate people, and in the case of another people violating international treaties, they were sent by the Roman people as legates, to ask, by direct speech, reparation for the unjust deed.

Only in the case that these demands were left unsatisfied, the Roman people could consequently declare war.

The mode in which the fetialii accomplished their mission was the following:

One, two, three, or four fetiali, clothed in ceremonial attire, and having with them the sacred insignia, went to the city of those who had injured the Roman people. Upon reaching the boundary of the enemy, one of the fetiali, placing on his head a woolen veil, started to shout: “Listen Jove, listen you, boundaries, listen you (here the name of the enemy city and people was spoken), listen you Justice, I am the public envoy of the Roman people and come to you with a just mission, and you must believe my words”; he then presented his demands, invoked again Jove and the other gods as witness. After he finished, the fetial walked on towards the city of the enemy people, and again repeated the same oaths and declarations, to the first citizen, or peasant, he met on his way on the enemy territory; upon reaching the city gate, he again invoked the gods and repeated the same claims to the gatekeeper, or whoever he met there; and finally, he went to the forum of the foreign city and once there, he told the magistrates the cause of his coming, always repeating the same oaths, claims and curses.

 

If his demands were met, the fetial withdrew as a friend from a friendly people, and if the enemy people asked for time to deliberate, he then conceded them 30, at the most 33 days, and finally, if even this interval passed without any result, the fetial again invoked the gods on high, and the gods underneath, as witness of the injustice suffered by the Roman people, returned to Rome and reported to the senate that all that was prescribed by the sacred laws had been done, and if the senate wanted now to declare war, the gods permitted it.

 

If, following these sacred formalities, the senate decided to declare war, then a fetial was sent to solemnly announce to the enemy that the Roman people declares war. The fetial took with him an iron shod hasta (lance), or a bloodied hasta, singed in fire, went to the boundary of the enemy, and there he said the following words: “Because the people and the city (the name of the enemy) had worked against the Roman people, the Roman people had decided to make war against the people and the city (the name of the enemy), and the senate of the Roman people had approved to make war on the people and the city (the name); because of which, I and the Roman people declare and make war on the people and the city (names); and after he said these words, he threw the bloodied lance on the boundary of the enemies (Dionys. Hal. lib. II. 72; Livy, lib. I. 32).

 

These formalities done, the Romans called the war bellum justum et pium; just, because it was founded, legitimate, and pium because it was declared by following the sacred formulae, prescribed by religion.

 

VII.

 

The historical origin of the fetialia laws seems to have been in the eastern parts of Europe, and particularly in the countries near the lower Danube.

We find traces of this institution with the Getae, but in a much more religious form, therefore more archaic. According to Stephanos Byzanthinos, the law of the Getae was that the legates sent to the enemy had to walk strumming the citherae (see Getia; Theopompus, fr. 244).

In the countries near Oceanos (potamos) and the Riphei mountains, or in other words from the lower Danube and the Carpathians, the citherae were instruments for religious music. With the citherae were accompanied the religious hymns sung by the Hyperboreans in honor of Apollo (Diodorus Siculus, lib. II. 47).

 

We find another mention of the fetialii of the Getae with Jornandes (De reb. Get. c. 10).

“According to what Dios writes”, says the Goth historian, “Filip (the king of Macedonia, father of Alexander the Great) being tight with money, gathered the army and went to loot the city Udisitana of Mesia, which was in the neighborhood of the city Thamiris near the Danube, and which in those times was under the rule of the Getae. But, while Filip with his troupes neared the city which he intended to loot, they noticed suddenly that some priests of the Getae, from the class of those called “pii” (pious), opened the gates of the citadel and came forward, clothed in white attire and strumming the citherae. In their prayers, which they sung aloud, these priests invoked their ancestral gods, to come to their help, and to repel the enemy. The Macedonians, seeing the priests meeting them so trustfully, were astonished, and we can say, that these armed people of Filip were stopped in their tracks by weaponless men. The army of Filip, which by now was in a position of attack, broke its ranks, gave up looting the city, and not only it withdrew, but returned to the Getae the prisoners taken outside of the walls of the citadel. Then the Macedonians signed a peace treaty with the Getae and returned home [1].

 

[1. In Rome, the fetialii formed a certain religious corporation. The fetial sent to ask satisfaction from the enemy is called nuncius publicus by Livy (I. 32). Cicero calls them oratores fetiales (Leg. II. 9).

Regarding the form of the name, the Romans wrote more feciales, than fetiales; the Greeks though wrote only with t, phitialoi, phetialoi, phetialeis.

The ancients were not completely clear about the origin of the name fecialis or fetialis.

Festus chooses the word facere, because the fetialii had the right to make peace and war. Varro tries to derive the name of the fetialii from fides, belief, and foedus, international treaty (L. L. lib. V. 86). These are simple arbitrary etymologies though, taken from the similarity of the word “fetialis” with other Latin words.

 

In Transilvania, the carer and guardian of the church is even today called fet, Lat. aedituus (TN – young boy). The “fet” has to be a honorable person; he is the guardian of the sacred vases, of the priestly ornaments, and he helps the priest in the altar with that which is needed for the divine service. The “fet” also serves as the envoy of the priest to his parishioners, and takes the church circulars to the priests of neighboring villages; he is in everything a minister of the religious cult.

 

In Moldova and in some parts of Transilvania, the “fet” is called “tircovnic”. This word means in ancient Slav language ecclesiae defensor, clericus; in Bulgarian it means homo pius; and in Polish it means orthodox and orthodox priest (Cihac, Dict. d’etym. daco-romane, II. 435).

Another name which we find in Transilvania is that of “fii ai bisericei” (TN – sons of the church). These are the curators or administrators of the church wealth.

 

Finally, in Transilvania are also called “fete bisericesti” (TN – faces of the church) the persons who have a religious character, like the priests, bishops and deacons. In a larger sense, this name is also applied to the singers, the “fetii” and the “fiii” of the church.

 

With the Getae, as Jornandes tells us (De reb. Get. c. 10), the class of the priests who carried out the functions of fetiali, were called “pii” (TN – pious). The Romans called bellum pium the war declared after the carrying out of the formalities prescribed by the fetial laws (Varro, De vita pop. rom. II. 13; Cicero, De off. I. 11).

Here the term “pium” has without doubt a historical connection not with “bellum”, as the Romans believed, but with the ancient institution of the priests called “pii”. As we see, there is an intimate connection between the church institutions which we find in Dacia, and the institution of the Roman fetialii. The origin of the word seems to be the term “fet” though, as results from the etymology proposed by Varro, under the form of “foedus” (L. L. v. 86)].

 

Finally, Aurelius Victor (4th century), who had access to some older sources, attributes the founding of the institution of the fetialii to one so-called Rhesus (De vir. illustr. 5).

According to Homer Rhesus, the son of ‘Ioneus, had been a rich king in Trojan times. He had reigned over the Thracii of the most extreme parts of the peninsula (eschatoi allon), or over the regions from north of the lower Danube, often called in the epic poems ta eschata. Rhesus had taken part in the Trojan War, as an ally of Priam, having with him a war chariot, worked in gold and silver, and huge weapons of gold and silver, which, as Homer says, were more suited to the gods, than to the men (Iliad, X. 441).

The legates sent in antiquity to ask satisfaction from the enemy, or to conclude an international treaty, carried as ensign of their mission a caduceus, a rod with two serpents on one end, as symbol of agreement, of peace and prosperity (Cicero, De orat. I. 46; Varro, Vita p. r. I. II; Livy, l. I. 20, LXXXI. 38). The ensigns, Pliny tells us, had been especially in use with the barbarian populations, understand those of Pelasgian race (l. XXIX. 12. 2).

The caduceus appears in Pelasgian antiquity as a particular attribute of Hermes, or Armis of Dacia, and figures as national emblem on the ante-Roman coins of Dacia, under various mystical forms. The caduceus in the shape of a simple or double staff is also figured on the shield of one of the two kings of Dacia, who kneel in front of Trajan. Finally, the caduceus, in a very archaic form, as a simple rod, with two twisted serpents on one end, also appears as traditional attribute of the Domns of the Romanian Country in the 17th century.

 

[2. Romanian religious carols still mention today the traditional staff of the ancient kings of these countries.

 The silver staff had been given by old Craciun (Saturnus senex) to Ion (Hermes, Armis, Ion, Ianus), as symbol of power over the sky and the earth (Cestionariu ist. II. Sipeni hamlet, Covurlui district).

 

And Craciun the old, from his mouth he spoke:

- I might be greater, and from older times,

On the black earth;

Ione, Ione, since you have been born,

On the black earth,

I have gone away, and have given you,

Staff of silver, folds of vestment,

To master the sky, the sky and the earth].

 

 

According to the fetial laws of the Romans, even if these laws had been borrowed from the Faliscii, or from the inhabitants of Ardea of Italy, or maybe straight from the eastern parts of Europe, from Ardia or Ardel of the Carpathians, the last formality of the solemn declaration of war was carried out by throwing a bloodied lance on the boundary of the enemy.

 

In Transilvania, the bloodied sword, as martial symbol, had also played an important role until the last years of the medieval establishment (1848). In these parts of ancient Dacia, every time it was necessary to inform the inhabitants that war had been declared, a straight sword with two edges, or a bloodied spear was taken from county to county, from district to district and from city to city, as a sign of the official proclamation, that all the citizens and peasants fit for battle had to take without delay their weapons and go to their places of assembly (Szabo, Szekely Okleveltar, I. p. 197; Olahus, Hungaria, l. I. 3. 2).

It seems though that the throwing of the sword, or of the bloodied spear, on the boundaries of the enemy, had once been in use also in the countries from the Carpathians.

In this regard we have a trace, found in an old song from Moldova, which ends with the words: “You must shout as much as you could: Jump Stefane to the boundaries, the sword has entered in the country!” (Alecsandri, Poesii pop. Ed. 1866, p. 170).

So, the two solemn ensigns used by the Roman fetialii to accomplish their mission were: the caduceus (staff or shepherd’s crook), the attribute of Armis or Hermes, as symbol of peace, and the hasta or lance (sword), the war attributes of Mars Gradivus (Geticis qui praesidet arvis) [3].

 

[3. According to Gellius (X. 27. 3), the Romans had sent to the Carthaginians the hasta and the caduceus, to choose one.

In later times, the Roman fetialii threw the bloodied lance from a small height close to the so-called “ager hostilis” (Ovid. Fast. vI. 201), and the same does in 178ad the emperor Marcus Antoninus, when he goes to war against the Scythii (Dios, l. LXXI. 33). But in the beginning the bloodied lance was certainly thrown from a hillock, near the boundary of the enemy].

 

Both these symbols are figured on the shields of the two kings of Dacia, who sue for peace from Trajan, and both also appear in the 17th century as traditional ensigns of the sovereign power of the Domns of the Romanian Country (Tera Romanesca).

 

VIII.

 

The Latin language of the most ancient Roman laws is characterized particularly by some words and grammatical forms which belong especially to the Romanic branch of the eastern parts of Europe. We find in the XII tabulae the forms: occisit instead of “occiderit”, legassit instead of “legaverit”, excantassit instead of “excantaverit”, rupsit instead of “ruperit”, escit and escunt instead of “erit” and “erunt’, faxit instead of “fecerit”, occentaverit, “has made songs”, a term of extra Italic form, which the Decemvirii had found necessary to explain even in the text of the XII tabulae, with the words: sive Carmen condiderit.

One of the rulings of the XII tabulae contained the words: Mulieres….neve lessum funeris ergo habento. Regarding this ruling of the laws of the Decemvirii, Cicero writes: the ancient interpreters, S. Elius and L. Acillius, said that they do not understand well the word lessum, and they supposed that it means some sort of funeral vestments (vestimenti aliquod genus funebris); and L. Elius (the third interpreter) reckoned that lessum means a sort of lugubrious lamentation (lugubrem ejulationem), and “I believe” writes Cicero, “that this is the true meaning, because the laws of Solon forbade the lamentations at funerals” (De leg. II. 23).

We have here therefore just simple suppositions about the true meaning of the word “lessum” (always used by Roman authors only in the accusative). And it is to be remarked that Cicero speaks here about the ancient interpreters of the XII tabulae, although since the promulgation of those laws until his times no more than three and a half centuries had passed, in which interval we cannot admit that the Roman language had changed so much, that the ancient interpreters themselves could not understand some rulings of these laws.

The word “lessum” had to exist therefore directly in the original text of the laws, copied by the Decemvirii, and also the word occentaverit in its popular form, which the Decemvirii had to explain as “sive Carmen condiderit”.

In fact the word “lessum” of the XII tabulae, which the ancient commentators, and not even Cicero could understand, still exists today almost in the same form, in the language of the Romanian people from the Carpathians. Here though, this word means neither funeral vestments, nor lamentation, but simply “lesin” (deliquium, defaillance, TN – fainting), as this meaning also results from another ruling of the laws of the Vlachii from Arbe island: that nobody should throw themselves, or faint in church over the body of the deceased. (From an etymological point of view, lessum is of the same origin as letum or lethum “death”, from the Greek lethe).

 

IX.

 

The same ancient codification dating from Pelasgian times, called in Dacia Leges Bellagines, in Egypt o Blachon nomos, in the Middle Ages Lex antiqua Valachorum and jus Volachie, appears in the western parts of Europe as an immemorial traditional law, called by Roman authors vetus lex romana (Nonius, p. 531), leges romanae (Juvenal, Sat.XIV.100), sometimes vetus mos (Cicero, De republ. I.V.1) and Romanus mos (Servius, Aen.III.222).

In Gallia, the same traditional law, political, social and religious, has the character of a consecrated national custom, and is called, immediately after the great invasion of the barbarians, vetustissima paganorum consuetudo, consuetudo antiqua (Lex Alamannorum -  Baluzius, Capitularia. I. 66), consuetudo prisca (in the laws of the Longobardii – Muratori, XX. II. P. 1. 256), antiquum jus (Chlotarius, r. Constitutio generalis a. 560, Baluzius, Capitularia. I.7), leges antiquae (Du Cange, Gloss. Med. et inf. lat), and in a vague way, lex romana and leges romanae (Chlotarius, Constit. Gen. a 560; Lex Ripuariorum, tit. 58. 61, Baluzium, Cap.I.9.42.46).

 

So, in the ancient Preface of the Capitularia of Dagobert from 630ad, it is told that the barbarian laws, called Lex ripuaria, Lex Alamannorum and Lex Baiuvariorum, had been mostly compiled in the times of king Theodoric (5th century) and his successors, from “legibus antiquis”, keeping at the same time in mind also the “vetustissima paganorum consuetudo”.

These laws and particular customs of the provinces occupied during the great invasion of the barbarians, are not the laws of the Roman empire, from which they differed in principles and forms of procedure, but are the ancient national laws of the autochthonous populations of those provinces, laws which had subsisted during the time of Roman domination, alongside the official laws. In the popular language of the provinces they were often called “lex Romana”, not because they belonged to Roman legislation, but because they had been the ancient laws of the Arimic, or Arimanic populations, scattered since very obscure times from the east of Europe to the shores of the western Ocean.

The Decemvirii had also compiled their laws from the same source of archaic legislation

So, Cathulph, in a letter addressed to Charlemagne says that Lex romana had been the first law of the entire world (Du Cange, Gloss. Med. et inf. lat. see Lex Romana), and in the Supplements of the Capitularia it is also said that the Roman law had been the mother of all the laws of humankind (Baluzius, Capitularia,  I. 1677. p. 1226).

 

X.

 

To the family of these “Roman” laws, mentioned by the laws of the barbarians from the 6th and 7th centuries ad, also belongs an ancient codex of laws of the Middle Ages, known today under the name Lex Romana Utinensis (Canciani, Barbarorum leges antiquae. Tom. IV. 469-540; Walter, Corpus jur. Germ. antique. Tom. III; Schupfer, La legge romana udinese).

In the beginning, says Haenel (ap. Schupfer, 67), this law had not been written in Latin language, but in a barbarian Roman language from the western parts.

We find the following words, as a sample of the language in which this law had been redacted in the beginning: tima and tema instead of “timor” (Romanian tema); furor instead of “fur” (TN – thief), which corresponds to a Romanian form of furol = furul; atta and atto with the meaning of mos (TN – old man), a word which is used even today by the Romancii of Tyrol, and was used in a remote antiquity under the form attis, with the meaning of “mos” by the shepherds, or Placii from the Olympus mountain of Bythinia (Arrianus Nicom. Fragm. 30 in Fragm. Hist. gr. III. 592; Diodorus, III. 58). We also find in this law favelant, with the meaning of “vorbesc” (TN - speak), a word which belongs in particular to the Volsc dialect (Festus: Obsce et volsce fabulantur, nam latine nesciunt).

In this law, called “Roman”, but which does not contain anything Italic, all the prepositions are used with the accusative, for ex. “a culpam”, “cum suum”, “de tertium digitum”, “pro mortuum”, “sine voluntatem”. The preposition de serves to indicate the genitive and the preposition a the dative: “sine consensu de suos patrianos”, “per negligentiam de suos tutores”, “a curialem hominem non licet”, “a principem dicendum est”.

In regard to the customs and institutions of the country for which this law had been first written, it is to be noted that we find here an own class of soldiers with the name “milites”, and “personae altae”, with a particular judicial forum; they could be accused and judged only in the presence of the Sovereign (Schupfer, L. R. U. p. 54), exactly like the Romanian nobles of Banat (Pesty, A Szor. Bansag. III. 197-199. 1531).

In the judging of the trials according to this law, a very important role was played by the so-called good men (boni homines), who functioned as assessors of the judges, as witnesses, and as people of good faith (Schupfer, L. R. U. p. 85. I. 6. 2). We find exactly the same institution of the “good men”, acting as arbiters and witnesses, in the ancient Romanian law, called in the documents of the Middle Ages “jus Volachie” (Hasdeu, Arch. ist. III. 146; I. 1. 66. 1490; Cuvinte din betrani, I.26.1577; I. 72. 1596; Pesty, Krasso varmegye tort. II.25.1347; Olah keruletek, p.60). 

 

The first exemplar of this “Roman” law has been discovered in the archive of the cathedral of Udine, but it had belonged in the beginning to the cathedral of Aquilea. Bethmann believes that the origin of this law must be searched in Istria (Hegel, Storia della costituzione dei municipii italiani, 1861, p. 421), because the law contains some judicial rulings which correspond to the state of things presented by Istria in the course of the Middle Ages.

The inhabitants of Istria had formed in the beginning, as we saw, only a migration from the lower Danube, as indicated in fact also by their name. On another hand, also the idiom in which this law had been written in the beginning has some characteristic particularities of the language spoken at the Carpathians and on the shores of the Black Sea. Even the fundamental principles of this law are based on “lex antiqua Valachorum”.

 

The first political, civil, religious and military laws, belong therefore to the Pelasgian family from north of the lower Danube. These laws had been written in the national language of this people.

Hermes, Lactantius tells us, had truly written many books regarding the knowledge of divine things, in which he affirmed that there is only one God above all, whom he called like us “deum” and “patrem” (Div. Instit. l. I. 8).

In this ancient language of the Pelasgians had also been written the sacred laws of the Athenians, in which the words chapro and porcho had still been preserved, until the times of Varro (L. L. V. 97) [1].

 

[1. Such words, which belong, by their form, to the ancient Romanic languages of the eastern parts of Europe, appear also in the laws of the Ripuarii, Alamannii, Baiuvarii and the Salic Francii.

The word barones (sing. baro) with the meaning of primores, optimates, homines Regis (Baluzius, Capit. II. 692. 774), which cannot be explained by the western institutions, corresponds in form and meaning to the Romanian boiariu (boyaro, boyarones)].

 

We therefore conclude:

The ancient laws of the Greeks and the Romans, as well as the so-called barbarian laws from the western parts of Europe, were based in essence on the same archaic legislation, modified in the course of centuries, in different countries, by the needs of the particular social and political life, but always preserving the common name of “lex antiqua” and “lex Romana”.

But especially the ancient codex of political, civil and religious laws of Dacia, called “leges Bellagines”, appears to be, from the few data still preserved, and from the principles it contained, the most ancient and the least altered type of this ante-Roman legislation.

 

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