7. Codifications of the law

The seventeenth century was remarkable for the generation and codification of secular law. Going into the seventeenth century, judges had available to them several codes of law. The Russian Law (Russkaia pravda), dating to Kievan times, was edited in an abbreviated version around 1630, but where and how its norms, that emphasised debt, slaveholding and punishments, were current is unclear. The Law Code (sudebnik) of 1550 of 100 articles, which extended the 1497 Law Code and was later extended by over seventy-three supplementary articles, clearly remained in force. It was primarily an advisory to judges, setting fees for services in an attempt to limit judicial corruption, decreeing punishments for some crimes and setting out procedural rules and standards of evidence. The 1550 sudebnik was followed by a longer (231 articles) edition of 1589 for the north and a compiled sudebnik of 1606–7 that added later decrees on landholding, debts and enserfment and developed the inquisitorial procedure.

It was notable for being divided into thematic chapters, a first step towards more rational codification. In addition, the Lithuanian Statute of 1588 was translated and disseminated in Moscow chancelleries, and Byzantine secular law became influential by the 1620s.

In the seventeenth century the law proliferated. Moscow chancelleries kept books of laws and precedents that guided their work; these were occasionally compiled and then added to; at mid-century they became the basis for relevant portions of the 1649 Ulozhenie. Such ustavnye knigi from the first half of the seventeenth century are known from the Felony, Slavery, Great Palace, Moscow Administrative, Service Land and Postal chancelleries.

Local governors made do with handwritten copies of the sudebniki and of decrees they received from the centre. The 1649 Ulozhenie was the first law code to be issued in print (about 2,500 copies by 1651) and it was distributed to local governors. Another body of law relevant in the seventeenth century comprised charters granting immunities and privileges to various corporate entities, as we have seen.

The 1649 Ulozhenie codified the preceding half-century of law and added some innovations, based on legal sources enumerated above. It was massive – in twenty-five thematic chapters, it included 967 articles. The second half of the century saw feverish legislation, presaging Peter the Great’s legislative blitz of the early eighteenth century. By one count, 1,583 new decrees were issued in the second half of the seventeenth century, reflecting the state’s desire to regulate society and mobilise resources through the law. Many new decrees concerned public order, reflecting European concepts of Polizeistaat.

New compendia appeared in various fields: in 1653 and 1667, tariff and trade regulations; in 1669, a new criminal code; in 1676, 1680 and 1681, codifications on service tenure and hereditary land. General codifications to replace the Ulozhenie were ordered in 1681 and 1695, to no avail. In 1700 Peter the Great created a commission to codify the laws but it too was fruitless. The Ulozhenie remained the standard in most areas of the law until late in the eighteenth century.

The most significant changes in positive law were made in the realm of social legislation. Laws defined social groups and limited access into privileged ranks and egress from dependent ranks. The Ulozhenie’s list of compensation for insult to honour is telling: longer (almost eighty articles) than those of the 1550 and 1589 sudebniki, it included ecclesiastical and lay social ranks from the patriarch and boyars to peasants and slaves (10: 26–99). Its guiding principle – that all people have honour, but higher ranks deserve greater compensation – reflects the law code’s resolute emphasis on social hierarchy.

The military service class cemented its position with the Ulozhenie by the full enserfment of the peasantry, a particularly direct benefit to the provincial gentry, strapped for land and labour. Wealthy landholders (including the Church) were inconvenienced by the Ulozhenie’s new prohibitions on their taking in runaway peasants or purchasing lands in the provinces, but were by no means severely hampered in their social and economic ascendancy.

The Ulozhenie devoted significant attention to the needs and duties of the privileged military elite, Moscow-based and provincial. Chapter 7 of the Ulozhenie concerned itself with their conduct during service, including strict punishment for desertion from service and from battle. Laws prohibiting gentry to sell themselves into slavery were repeated, as was the requirement of mandatory service (it was gradually reduced in the last quarter of the century, only to be reinstated by Peter I). Landed servitors enjoyed economic and legal privileges: preferential access to the grain market in time of shortage, lower tax rates on many commercial transactions, a higher rate of ransom if captured in war.

Major attention was given to landholding in the Ulozhenie (chapters 16 and 17) and legislation of 1676, 1680 and 1681. Norms, generally more theoretical than enforceable, were established for land grants to servitors. Over the course of the century service tenure and hereditary types of land converged in law and practice; there was an active market in the sale, mortgaging and devolution of service-tenure land and purchased hereditary estates. Norms of inheritance recognised this, and widened women’s access to landholding despite legal attempts to limit it. By law widows and minor children and unmarried daughters were granted portions of their deceased husband’s or father’s pomest’e for upkeep but had very limited access to hereditary lands. As Valerie Kivelson has shown, however, families disregarded the law to ensure that widows, sons and daughters were taken care of. Practising partible inheritance, they awarded almost as much land of all types to women for upkeep or dowry as to male kin.

Other groups – the Church, merchants – benefited from legal change in the seventeenth century. Since the mid-sixteenth century the state had been legislating against donating votchina land to the Church; these laws were repeated in the Ulozhenie, but ignored. Church landholding boomed in the seventeenth century. Church institutions continued to enjoy immunities from the local courts, despite the brief tenure of the Monastery Chancellery. Laws of the seventeenth century extended the privileges of Moscow merchants (gosti) and the other two merchant corporations (gostinnaia and sukonnaia sotni). Of the three groups, only gosti could trade abroad. Otherwise, all enjoyed the right to own hereditary land, to be immune from governors’ courts, to distil and keep spirits and to enjoy various tax breaks and privileges. The tax privileges of the musketeers and cossacks were affirmed in the Ulozhenie as well (chapters 23–4).

The townsmen, like the provincial gentry, received significant attention in the Ulozhenie (chapter 19), resulting from their persistent petitioning to the state in the first half of the century. It provided that townsmen who had fled to join other social groups – musketeers, cossacks, merchant corporations – should be returned to their taxpaying town commune. Laws forbade townsmen to put themselves in dependent status. Most importantly, the Ulozhenie abolished the tax-exempt neighbourhoods of Church and wealthy landlords that had caused unfair competition to urban taxpayers, awarding taxpaying townsmen monopolies on urban trade, manufacturing and landholding. But, on the other hand, townsmen were in effect enserfed by the Ulozhenie – they were registered in their town commune and the statute of limitations to track down runaway townsmen was abolished. They had become a hereditary social class, but, like the peasants, an immobile one.

In the area of trade the seventeenth century saw significant codification, in response to Russian merchants’ petitions against foreign competition and as manifestation of the state’s developing mercantilism. The Ulozhenie of 1649 devoted little attention to foreign trade, but it addressed some domestic trade and taxation issues. It regulated tolls, ferry fees and bridge fees, assuring exemption from them to servitors and foreigners and prohibiting fraudulent tolls (chapter 9); it established a sliding scale of rates to ransom Russian captives in war according to social status (chapter 8); it regulated illicit taverns, production of spirits and sale and use of tobacco (chapter 25).

Soon after the Ulozhenie, trade regulations of 1653 addressed issues of foreign trade. They instituted a single trade tariff for the transit of commercial goods for domestic merchants, and a higher, uniform rate for foreign merchants. These norms were included in the much broader 1667 New Commercial Regulations.

Authored in part by the progressive reformer A. L. Ordin-Nashchokin, the articles also removed trade and the customs service from the jurisdiction of local governors, and further restricted foreigners to trading at the border towns in a limited range of goods and only at certain times of the year. Its protectionist norms remained in force until 1755.

Peasants and slaves suffered most from seventeenth-century social legislation. The Ulozhenie culminated the process of enserfment that began in earnest in the late sixteenth century. By the seventeenth century, laws forbade peasants to move from their landlords; the Ulozhenie capped the process by ending the statute of limitations on the recapture of runaways (chapter 11). Thereafter the state committed significant resources into sending investigators (syshchiki) to chase down fugitive serfs and townsmen. In the second half of the seventeenth century peasants could sue and be a witness in courts; they paid taxes, could be tried for crimes and could hold local elected offices. But gradually, in a process that reached its apex in the eighteenth century, peasants fell into more servile dependency on their lords. Serf owners could judge and corporally punish their peasants for all but criminal offences, they could force their serfs and slaves to pay their debts and, although serfs were legally supposed to be tied to their lands, de facto landlords moved them at will.

Even more dependent on their lords were slaves. Of the many categories of slavery cited in Muscovite sources, in the seventeenth century the most common was limited contract slavery (kabal’noe kholopstvo). In the seventeenth century this was hereditary slavery for the life of the owner. The state’s interest in slavery in the seventeenth century was to reap fees from the registration of slaves and to limit the phenomenon, since slavery deprived the state of labour power and tax revenues. The Ulozhenie devoted its second-longest chapter to slavery (chapter 20). After 1649 the state captured more of the productive power of slaves by including rural slaves in taxation when the household basis was introduced in the late 1670s and by merging household slaves with serfs in 1722.

Social legislation in the seventeenth century mobilised productive resources by binding people to a limited number of social ranks. Practice, however, often contradicted this trend. Slavery persisted, despite attempts to keep individuals from selling themselves into it. Peasants fled from serfdom to the frontier and to Siberia; contract servitors on the frontier transgressed the monopolies on landholding, serf ownership or trade guaranteed to other groups. Fanatic in the heartland at tracking down runaway serfs and townsmen and fixing people to social categories because of its great needs for labour and income, in the colonies the state tolerated social and legal diversity. Seventeenth-century legislation did not pursue a single goal of social control or Polizeistaat uniformity, but profited from an expedient diversity.

Nevertheless the state’s ambition to aggrandise its stature through the law is striking in seventeenth-century legislation. The first several chapters of the 1649 Ulozhenie constitute an innovation. Borrowed from the 1588 Lithuanian Statute and motivated most likely by the social unrest of the 1640s, they introduce the concept of l`ese majest´e, focusing on assaults to the state’s dignity, embodied in the Church hierarchs and cathedrals, the tsar and his palaces, and in seals and official documents representing his authority (chapters 1–6).

Criminal law became harsher in comparison with sixteenth-century codes, under the influence of foreign, probably Byzantine, law codes (Ulozhenie chapters 21 and 22; 1669 New Articles). Harsher corporal punishments were introduced – burying alive, nose-splitting, branding and other forms of mutilation.

Torture was prescribed more widely, the death penalty was applied to over sixty crimes (almost twice that number in codes of Peter the Great’s time).

Public floggings and executions were prescribed to deter others but the death penalty was not used as widely as in some West European countries of the time and was not carried out with such ‘spectacle of suffering’. Executions were usually performed by hanging within a day of sentencing. The Church schism in the second half of the century elicited an escalation in corporal punishment.

Secular courts judged schismatics as traitors as well as heretics and inflicted extreme punishments. Similarly punishments for witchcraft and sorcery, as well as for recidivist crime, were harsher than those for less charged criminal acts.

For lesser crimes, the death penalty was often commuted to exile to capture the labour power of criminals. Long-term imprisonment was rarely used as punishment, but towns kept jails for the detention of criminals awaiting trial and people could stay in prison many years paying off fines from court cases (21: 92).

In the seventeenth century various principles affecting responsibility for crime were introduced into Russian laws that were developed more thoroughly in the eighteenth century. Notions of intent, negligence and malice first appeared; the law found defence of self and property to be exonerating, and punished unintentional assault and homicide more leniently than intentional.

Drunkenness was considered a mitigating circumstance (21: 69, 71, 88). In the realm of civil law, unlike criminal, much regularisation but little substantive change occurred. Chapters in the Ulozhenie (14, 15, 18) concerned oath taking settled cases and fees for documents. The Ulozhenie’s longest chapter (10) addressed judicial corruption, courtroom procedure and civil suits. By the end of the century Moscow’s legal heritage was rich and complex, but scattered in a panoply of thematic compendia and individual decrees and precedents.

Society interacted with law in a multitude of ways in seventeenth-century Muscovy. Traditional distributive justice shaped adjudication; the multiplicity of norms and venues undermined judicial consistency. But the trend was nevertheless towards a greater rationalisation. Codification was proceeding, standardised norms of record-keeping were being established; standards of evidence favoured rational proof. Scholars have deemed these trends ‘absolutist’.

So also might one term the concept of ‘the common good’ that appears in the law by the end of the century. The concept that the state uses law to serve the public good came to court circles from Ukraine by the 1680s and inspired many of the projects of military and bureaucratic reform of that decade. Despite its complexity, seventeenth-century law provided Peter the Great with a firm foundation when he launched his bold effort to standardise law and administration on the ‘well-ordered police state’ model in the next century [2].

SOURCES:

1. Isaev I.A. History of state and law of Russia, 3^rd edition / I.A. Isaev. – M.: Jurist, 2004. – 797 p.

2. The Cambridge history of Russia, 3 vols. / edited by Maureen Perrie. – Cambridge, 2006. – Vol. I. – 824 p.

3. Kort M. A Brief history of Russia / Michael Kort. – New York, 2008. – 335 p.

4. Feldbrugge, F. J. M. (Ferdinand Joseph Maria), 1933 – Law in Medieval Russia / By Ferdinand Feldbrugge. – Leiden-Boston, 2009 – 365 p.

5. Encyclopedia of Russian history / James R. Millar, editor in chief. – THOMSON – GALE. – New York, 2004. – 1930 p.

6. Peter B. Brown, ‘Muscovite Government Bureaus’, RH 10 (1983): 269–330.

7. http://ia700408.us.archive.org/23/items/statesmanshandbo00russrich/statesmanshandbo00russrich.pdf