The development of the swearers' institution at the romanians from Transylvania

• Author: Iosif Florin Moldovan
• Position: Faculty of Law, Vasile Goldis University, Arad, Romania
• Pages: 63-68

AGORA International Journal of Juridical Sciences, www.juridicalj ournal.univagora.ro

ISSN 1843-570X, E-ISSN 2067-7677

No.1 (2012), pp. 74-79

74

THE DEVELOPMENT OF THE SWEARERS’ INSTITUTION

AT THE ROMANIANS FROM

TRANSYLVANIA

I. F. Moldovan

Iosif Florin Moldovan

Faculty of Law

Vasile Goldis University, Arad, Romania

*Correspondence: Iosif Florin Moldovan, 16 Alecu Russo St., Cluj County, Romania

E-mail: gerulaflorin@yahoo.com

Abstract

With the set I tried to prove Romanian origin, while the existence and functionality

of the institution and its evolution swearers the Romanians in Transylvania. Although this

institution was studied in the past, the study was done in terms of legal structure and not th at

of social relatio ns. Swearers existed in the three Romanian countries, operating in the legal

systems of different periods of time and adapts according to them.

Key words: Swearers, land demarcation swearers, reconcilers, investiga tors.

Introduction

In folk culture, the juridical t raditions are marks that make evident the form of the

Romanian people’s ethnic spirituality. Out of the mystic atmosphere, result of certain

protojuridical activities of our ancestors, the land law was born, within the first ethnic

communities. This is the background in which in the judicial practice of the Romanian

people the swearers’ institution appeared, too. At the beginning, the institution appears

conditioned by the relationship between relatives, be ing the juridical expression of the family

solidarity. During this period, the criminal trials were more frequent, so that the family

solidarity, materialized by the collective oath, was to be found mo re in trials of this kind.

During the Middle Ages, in the transition period from tribal to feudal relation s, the

swearers’ institution, turns into the institution of class solidarity. It began to be used in law

suits having as object the lan d and the property right over it. In this way, the swearers and

the oath, appear in trials with the specification of judicial proof, functioning as institutions

well known by the Romanian people.

Many historians and ju rists refer to the general characteristic features of the

institution, thus showing and trying to prove that it was borrowed from d ifferent peoples.

The oath, beside the ordeals, was thou ght to ensure the truth discovery by the

miraculous intervention of divinity that punished the guilty person a nd defended the unguilty

one. It was thought that the person, who swore false, drew upo n him the divine punishment.

Due to this belief in divine power, the oath took place in a well established

ceremony. Taking oath was a solemn action. He, who swore false, beside the divine

punishment, was also punished by the community leader. The swearers were chosen in

accordance with the type of litigation that had to be judged: from the ruling class or

according to the way the leader of community wanted to dispose its classification. In the

penal one, the claimant was obliged to bring swearers for the oath to be taken. In the civil

one, they were chosen according to the written decision. In the old law, the accused were not