5. Court system according to Sudebniki

There were different levels of courts in early modern Russia – local, peasant, provincial, capital, the ruler’s court – but there was no system of appeal. The verdict a litigant got was the verdict the litigant was stuck with. The law’s assumption (and also its demand) was that the judge was a disinterested person who weighed the testimony and, following the rules, rendered a verdict which any reasonable person in the same circumstances would issue. A litigant could sue a judge for malfeasance, but that was another matter –which did not reopen the case. Official malfeasance was a major concern in 1550, and much of the code’s severe punishments (high fines, public flogging, jailing) were reserved for officials who abused their positions. A litigant also could appeal to the sovereign (grand prince until 1547, tsar after that), and the ruler, employing what we might call his ‘Agapetus powers’, could reverse the case. That was not spelled out in the law at all, and if such a reversal occurred, it was an expression of his arbitrariness, not because anyone believed he had divine knowledge of the case. Whether this happened, and, if so, how often, is unknown. The law itself in 1550 became frequently an expression of arbitrariness. Instead of laying down a sanction for an offence, it just said that the culprit would be punished as the tsar decreed, a legal expression of the Agapetus state. The evolution of the rules of evidence is one of the most interesting developments in the Sudebniki. As just mentioned, the society was making a radical transition in this period from one based primarily on oral tradition to one in which written documents could (it is too early to say ‘should’) play a major role (already seen in the Pskov Judicial Charter). The major force propelling this forward was the introduction of the chancelleries (prikazy) in 1550, which themselves kept records and demanded that their agents in the provinces keep them informed with a constant flow of information. By the 1570s–1580s all officials of the Provincial Felony Administration were required to be literate.

Those men were elected by their peers from among the ranks of the middle service class, the provincial cavalrymen. Another form of evidence was divine revelation, such as the casting of lots, the oath, and the judicial duel (pole), the subject of a surprising number of articles. Trial by combat seems to have been almost the premier form of evidence/proof in 1497 and 1550. At some time at the end of the sixteenth century it went out of use. No one knows why, but a good suggestion has been that the introduction of firearms (especially pistols) cast aspersion on notions that whoever was the better shot was the person designated by God as the righteous one. Another factor putting the duel out of business may have been the introduction of the concept of dishonor in the 1550 Sudebnik, which expanded to the point in 1649 that everyone from the lowest slave or peasant to the highest boyar in Muscovy had a dishonor value either stated in the law or based on his governmental compensation entitlement level. Thus instead of having to fight a physical duel, a person who felt he had been dishonored could go to court and the court would determine whether or not this was so. The oath suffered a decline in prestige as presumably the populace began to have increasing doubts that the Russian Orthodox Church was the sole source of truth. Material evidence (the stolen goods, for example) was used, as were varying forms of human evidence. One was witnesses (presumably primarily eyewitnesses; character, rumor or hearsay witnesses were no longer distinguished), another was the judicial confrontation (the plaintiff had to confront the defendant face to face and repeat his charges). The last form of evidence was the investigation (a special subset of which was the ‘general investigation’ (poval’nyi obysk) in which an entire community was interrogated about ‘Who owned the cow with the crooked horn?’; the litigant who got the most ‘votes’ won the case).

Primitive societies had troubles deciding what to do with people between the time an accusation was initiated and a court verdict was rendered. Such societies did not have jails to detain the accused, which many would say is punishing the accused before he is found guilty in any case. An alternative to jail was to let a contract to someone to keep chained to the wall a detainee, who then had to pay a ‘chaining fee’ (pozheleznoe) for the detention as well as somehow pay for his keep (or perhaps have relatives bring him food).

The Sudebnik of 1497 provided an alternative: an accused could post bail or satisdation (poruka) in lieu of being chained to a wall.

6. By 1613 ‘crimes’ and especially punishments differed markedly from what had been the practices in the 1170s. Most of this can be viewed as part of the evolution from the dyadic to the triadic legal process. In the Pravda, ‘crimes’ were torts in which the wronged was supposed to receive composition and compensation. The more modern notion of ‘society’ as the real victim was totally absent. The notion that society was the victim of crime became prevalent in the Sudebniki. Then the question arises: how is the criminal to pay his debt to society? Sitting in prison is one answer, but Muscovy did not have prisons until 1550, and they were not used very much for penal incarceration until decades later. Exile and banishment are other useful social sanctions, but are very expensive in labour-short societies such as was Muscovy. The same holds for capital punishment: who can benefit from a dead man (unless he is so heinous that society can tolerate him under no circumstance)? Corporal punishment proved to be the answer. There were any number of forces pushing Muscovy in the direction of corporal punishment savagery (which peaked in the ‘Felony Statute’ of 1663, combining chapters 21 and 22 of the Ulozhenie of 1649), including more ‘Western’ law such as the West Russian Lithuanian Statutes of 1529, 1566 and 1588, but the major impetus was certainly the domestic requirement of ‘getting tough’ on crime. The Byzantine legal heritage may have played a role in the increasing savagery of Muscovite law, but it is fairly evident that the Mongol hegemony (1237–1480) did not.

Prior to 1497, capital punishment was reserved for few offences. But the 1550 Sudebnik lengthened the list to include some homicides, arson, horse theft, theft from a church, theft of a slave, treason, brigandage, rebellion, recidivism for lesser felonies.86 The issue of intent did not enter into Muscovite sanctions until the Ulozhenie of 1649. A thief with a criminal reputation and apprehended with stolen goods was put to death if accused by five or six men. Plaintiffs’ claims were exacted from his property. The ‘burden of proof’ for execution in 1550 was expanded to a general inquest of the population. If the inquest recorded that he was a good person, he was to be tried by normal procedures. Regardless, he was to be tortured.

If he confessed, he was to be executed. If he failed to confess, he was to be jailed for life. In 1589 torture was made more precise: 100 blows with the knout (which certainly would have killed an ordinary person). In 1589, if the inquest reported the accused to be a good person, he was to be acquitted immediately.

Other punishments ranged from flogging with the knout (for a first theft, plus a fine), incarceration, to the old-fashioned fine. A most visible element in the criminal sphere was the increasing introduction of the government.

Ordinary subjects could still file complaints, but anything ‘interesting’ was soon taken over and prosecuted by the state. The ‘Agapetus state’ came to believe that it had enhanced responsibilities not only in the political and criminal spheres, but increasingly in all other spheres of life as well. The three factors in any economy are land, labour and capital. By 1613 the government laid claims to nearly complete control over the first two, and probably would have over capital as well had there been much to control. Control over land prior to 1480 was primarily a political exercise, not an economic one. Land was so sparsely populated that control over any particular parcel (except in the few urban areas) was hardly something to be contested. Control over large areas was important because the state and its agents could travel around and find people to tax, occasionally to levy military recruits from, and to be present to offer conflict resolution services to on demand. Monasteries were really the sole exception. They could collect rents only from peasants living on their parcels of lands and estates. This was why it was the monasteries which introduced St George’s Day to control the mobility of their peasant debtors during the chaotic labor situation after the civil war of 1425–53.

But by the 1497 Sudebnik much had changed. On the issue of land, the government of Ivan III discovered after the annexation of Novgorod and the deportation of its landowners that land could be mobilised to enhance its military might. Thus the first ‘service-class revolution’ was initiated by replacing the Novgorodian landowners with Muscovite cavalrymen, who were assigned service landholdings on which lived about thirty peasant households to pay them rent to enable them to render military service. Each landholding (pomest’e) was tenureable only while service was being rendered; after service ceased, the pomeshchik had to surrender his assigned lands to another serviceman. The system was mentioned in the 1497 Sudebnik. As Moscow grew in size, many of the annexed lands were put into the pomest’e system. In 1556, as part of the campaign to raise troops to annexe the lower Volga (south of Kazan’, annexed in 1552), the government got the idea that it could demand service from all land (previously service from the other major form of landholding, landownership – the votchina – had been in some respects optional). The 1556 edict prescribed that one outfitted cavalryman had to be provided from each 100 cheti (1 chet’= 1.39 US acres or half a hectare) of populated land. This forced estate owners into the market to hire military slaves to meet their recruiting quotas and the military muster records are full of lists of these slave cavalrymen. By the 1580s perhaps 80 per cent of the military land fund was pomest’e land and it appeared as though the votchina might die out. This did not happen because every pomeshchik’s aspiration was to become a votchinnik who could pass his estate to his heirs, which became often practice in the second half of the seventeenth century and de jure reality in the eighteenth century. Prior to 1450 East Slavic princes regarded all land in their domains as their personal patrimonial property which they were free to dispose of as they pleased. After 1556, most usable land de facto was land which could be mobilised by the state for military purposes.

Mobilising the land, the hypertrophic state set about controlling all labour.

This began with St George’s Day limitations for monastery debtors in the 1450s. That demonstrated what could be done, and in the 1497 Sudebnik it was applied to all peasants. As discussed in considerably greater detail in Chapter 12, in 1592 all peasants were forbidden to move at all. It had the power to control the legal status of the peasantry, the state decided that it could alter the status of the slaves.

Slaves were the subject of a remarkable number of articles in 1497, far more than any other sector of society. Except for emancipations, such dramatic state interventions in the institution of slavery are rare in human history. Full slavery was melded into limited service contract slavery, and then in the 1590s the nature of the ‘limitation’ changed from an antichresis of one year that defaulted to hereditary full slavery upon inability after a year to repay a loan to slavery for the life of the owner, followed by compulsory emancipation upon his death. In 1550 the government decreed that able-bodied townsmen had to live in the juridical towns, not on monastery urban property. In the 1590s the government decided that it had the right to control the mobility of townsmen (paralleling the control over peasant mobility), which culminated in the 1649 Ulozhenie’s prohibition against townsmen’s leaving their place of urban residence. This is a perfect example of how the ‘Agapetus monarchy’ developed the maximalist state which found few areas of Russian life where it could not intervene. Comparatively, what is interesting is the use of law in this evolution. In America, for example, law is often seen as a very conservative institution that is the codification of a reality that sometimes has already passed.

In early modern Russia, on the other hand, law became the statement of social programmes that the state was hoping to enact; and it usually could enforce most of what it had enacted. In this respect Muscovy was the perfect ancestor of the Soviet Union, a radical political organisation with a programme of social change it was constantly attempting to enact. The result was the first service-class revolution.

A few more words need to be said about landed property. The conditional service landholdings (pomest’ia) have been mentioned. Hereditary estates (votchiny) were of various kinds: princely, boyaral, monastery, clan, granted and purchased. Each had its own rules for sale and the possibility of redemption. Monastery estates in practice were inalienable, but most votchiny could be given away, willed by testament, sold, exchanged and mortgaged.

In reality, landed property was rarely mobilised in the economy because service landholdings were state property reserved for military service and private hereditary estates could be redeemed for up to forty years after sale at the price the seller had received for it. Thus it made no sense for any private person to buy land, and as a result it is impossible to find agricultural land prices in Muscovy.

By the end of the fifteenth century the land in Muscovy was beginning to fill up, and contests over landownership became more frequent. In the interests of efficiency seen throughout this chapter, the 1497 Sudebnik imposed statutes of limitations on the filing of suits over landownership between monasteries, members of the service class, and peasants (three years) and between the sovereign, monasteries and servicemen (six years). Here one can see the ancestor of the five-year statute of limitations on the filing of suits for the recovery of fugitive serfs of 1592. There were no statutes of limitations on the filing of suits for moveable property, including slaves.

The rules of inheritance were spelled out in the Sudebniki. An oral or written will had precedence. In its absence, a son inherited. Next was a daughter, then other members of the clan. Failing that, property escheated to the prince.

As observed by D. P. Makovskii some decades ago, prior to Ivan’s oprichnina (1565–72) Muscovy was developing into a commercial society. This is evident in the law, where numerous articles deal with loans. Of particular interest is the provision permitting borrowing with the payment of interest.

New legislation on branding horses may or may not reflect an increasing commoditization of horses.

By 1613 Russian law had changed considerably from the law of the late Middle Ages, but elements of continuity must also be stressed. First and foremost was the fact that law remained a major revenue-raising device for officialdom.

Law remained a device for cleaning up social messes, be they felonies or civil disputes. The major distinction between the earlier era and the pre-Romanov decades was that the distinction between felonies – in which the state took an increasing interest – and civil disputes, about which the state ordinarily could not care less, was heightened by changes in the essence of society that required a change in the legal process from a dyadic one to a triadic one as well as changes in the nature of the state power, from a relatively benign and weak organism with few pretensions, to an increasingly assertive autocracy that recognised few limitations on its authority. This was facilitated by increasing literacy both in the capital and in the provinces among the handfuls of people who mattered and who were essential for keeping the records required for keeping track of slave ownership, land allocation and possession, military service and compensation, foreign relations and accusations of domestic treason, post roads, and what happened at trial. Law still had the function of determining inheritance and preserving male superiority and regime dominance, but almost to an astonishing extent it became the government’s mouthpiece for directing social change towards a rigidly stratified, almost-caste society. Law became a major instrument in preserving what the legislators wanted to keep from the past while simultaneously serving as a major instrument in assisting change in desired directions.