2. The Novgorod Judicial Charter

The Novgorod Judicial Charter is extant in only one copy, and is incomplete. It is generally assumed that it had some relation to the law of the Republic of Novgorod, but the extant copy was clearly written under Moscow’s dictation after the Republic’s annexation in 1478. Sorting out what were Novgorodian norms prior to 1478 from what was mandated by the Moscow occupation forces seems to be impossible – with one exception: a number of articles dictate that the Muscovites and the Novgorodians were to function together.

The Novgorodian mayor was to try cases together with the governor sent from Moscow, and the Moscow grand prince had the right to hear appeals of any verdict rendered in Novgorod. Moscow’s governor could also hear cases independently.

Many of the Novgorodian provisions were the same as or variations on what existed in Kiev and Pskov. The judicial process was to be orderly, with no intimidation or use of force. Only two friends could accompany a litigant to trial. If there were more than two, the two allowed had to pay a fine. Anyone who assaulted a bailiff delivering a summons automatically lost the case.

Trials had to be expeditious, no longer than a month. Land disputes had to be resolved in two months. In what must have been a Muscovite addition, local officials (a mayor or military commander) were to be fined the ruinous sum of 50 roubles for any delay. The plaintiff had the right to use bailiffs to compel the judge to complete the case on time. In another sign that the Novgorodian legislators were aware of the harm resulting from ‘the law’s delay’ (Shakespeare’s phrase), any litigant who failed to show up on time when a case had been postponed automatically lost the case. Similarly, if a litigant had a representative/attorney to represent him and the representative died, the litigant had to choose another one, appear himself or lose the case.

These provisions allowed only one postponement of a case. The central issue of fees for judicial services was spelled out, including the delivery of summonses. The loser had to pay the court fees promptly. A losing defendant had a month to pay the plaintiff, or the latter could seize his person, presumably to enslave him. If the loser hid, then all Novgorod was to punish him. This is a wonderful statement of the essence of the dyadic process: either the loser does what the court decrees, or the entire community will punish him.

A new principle was introduced in land disputes. First, the plaintiff had to sue on the issue of forcible seizure of the property, and then about the issue of actual ownership. This resembled English common law, which prescribed that suits had to be prosecuted one at a time and that they could not be mixed. One might note here also that Novgorod did not adopt the Pskov four- or five year land possession rule. This was probably for several reasons: Novgorod had far more land than did Pskov, so someone who wanted to farm could easily find land no one else was using. Moreover, Pskovian land was of higher quality and thus more valuable than was the case in the Republic of Novgorod, which overall was more concerned about urban issues than was Pskov.

Another new procedural rule was that a plaintiff had to take an oath on the cross (kiss the cross) before a suit would be heard. Failure to do so by either the plaintiff or the defendant resulted in automatic loss of the case. Oath-taking was not decisive in such cases, but Novgorod had more faith in such evidence than did earlier legislators, which reflects the fact that Christianisation made considerable progress in Russia among the ‘masses’ between 1350 and 1480. Presumably this was also an ‘efficiency’ measure: if a superstitious litigant would not even kiss the cross before the case began, it saved the trouble of hearing the case itself. Representation, by an ‘attorney’ or a relative, was allowed, but the litigant had to kiss the cross first. A son could kiss the cross for his widowed mother, but if he refused, she had to do it at home. In suits over boat ownership, the ‘attorney’ and witnesses had to kiss the cross [1, 371].

Officials also were required to swear that they would be honest in court. Honesty was mentioned in the context of the Moscow agent’s (tiun) court, where itwas mentioned that each litigant had to be attended by a Novgorodian bailiff (pristav) and again the matter of the oath was mentioned, this time for the judges. One may assume that the bailiffs were to assist the litigants in matters such as bringing witnesses to court.

In an ambiguous article, the Novgorod Judicial Charter enumerates what today would be termed ‘felonies’: theft, robbery, battery, arson and homicide, as well as the people who might commit them. The ambiguity lies in whether the accused in these felonies was a slave, or all kinds of other Novgorodians. The issue of slavery – presumably whether or not someone was a slave – was added to the list. Slavery was an extraordinarily prominent institution in Novgorod, and it is surprising that more of the charter is not devoted to that issue. (Perhaps it was in parts that don’t survive.) Cases could be initiated by citizens (part of the dyadic process) by swearing an oath and signing the accusation. Once a complaint had been made, officials were to bring the accused to court. Force (sila) could not be used to bring in the accused, one assumes because the defendant was still only accused but not yet found guilty.

Officials who employed unnecessary force were themselves guilty of a crime. A similar uncertainty is present in article 37, where the issue seems to be felonies committed by slaves, claims against them leading to enslavement by the victim-plaintiffs and relationship to the previous slave-owner. As in most slave systems, the former slave-owner is liable for the conduct of his slave and must compensate the victim for any wrongs committed by his slave. Slave systems varied in the degree to which they recognised the humanity of slaves (as Pskov said, the slave is not an animal), his responsibility for his actions, his ability to be a witness in court and so on, but all systems held the owner ultimately responsible for the actions of his chattel. Novgorodian law did not allow such an accused to sell himself to a fourth person, who had to assume liability for his chattel’s wrongs. Similar ambiguity is inherent in article 38, which seems to say that a slave accused of a crime must kiss the cross or else settle the case without the aid of his owner. One assumes that a slave who opted to defend himself risked becoming the slave of the plaintiff. As many slaves had chosen their owners to whom they sold themselves, the law seems to say that, if the slave wanted to stay with his former master, he had to help him out by mounting a credible defence, or else risk being transferred to an owner he did not know or choose. For a slave who was innocent of the charges, this presented a dilemma – either defend yourself properly, or fall into alien hands [1, 373].

ANNEX ‘A’