Perrie M. (ed.) The Cambridge History of Russia, Volume 1: From Early Rus’ to 1689
Подождите немного. Документ загружается.
richard hellie
The census of 1678 changed the method of assessment of taxation. Previ-
ously, peasants had been taxed on the basis of the quantity and quality of the
land they tilled. As one might expect, this led to a diminution of agricultural
tillage. So the government decided to tax on the basis of households. The
mean household size had been four. The new provision changed the nature
of the peasant/serf household. Like all economic creatures, the Russians soon
figured out a way to ‘beat’ the tax collector: to crowd as many people into a
house as possible. The smoky hut had limited capacity, but fundamentally soli-
taries disappeared and the three-generational family was created. The same
thing had happened earlier in the Balkans, when the Ottomans had introduced
household taxation a few centuries earlier. Mean household size increased to
ten, as surviving grandparents, their male children and spouses and their chil-
dren all crowded into one hut. Nineteenth-century Slavophiles believed that
the extended family was a primordial Slavic peasant institution, but in fact it
had been created, really unknowingly, by the powerful Muscovite state. Peter
figured out what had happened, and shifted to the system of soul taxation.
Crowding so many people into one hut was undoubtedly deleterious for both
health and social relations, but it saved money (first, on heat, like the stove
ventilating into the room), so that the extended family persisted to 1861,and
in many cases to the end of the tsarist regime. This was done under pressure
from landlords desiring to maximise rents and peasant communes desiring
each household to have maximum disposable income to pay its share of the
collectively assessed taxes. Recall that the soul tax was imposed on all males.
Only working males actually could pay the tax burden, whereas a widow with
five small boys paid nothing, even though five ‘souls’ were entered in the tax
records. Thusthe tax burdenof a community was collectivelyassessed and paid
by the able-bodied males, who were interested in every household’s taxpaying
ability to support the demands of the hypertrophic state.
558
Cambridge Histories Online © Cambridge University Press, 2008
24
Law and society
nancy shields kollmann
Addressing the interconnections of ‘law and society’ in seventeenth-century
Muscovy is challenging, because of the complexity of the judicial system.
Russia was far from the uniformity in law, adjudication and procedure that the
contemporary European Polizeistaat was striving for (and even there the goal
was achieved more in the breach than the norm).
1
In its multiplicity of venues
and legal norms and in the flexibility of the enforcement of those norms,
Russian justice was decidedly medieval.
Thisisnottosaythatthestatewaspassive in the legal arena.Codificationand
centralisation of judicial power were,indeed, key goals of seventeenth-century
rulers. But their ambition exceeded reality. Moscow’s rulers were hindered
by the challenge of administering an empire that was immense, ethnically
diverse and riddled with pockets of immunity. This chapter will explore that
complexity by surveying the multiple venues of legal proceedings in Muscovy,
then by examining judicial practice and finally by surveying changes in the
positive law.
Judicial venues
In principle a centralised bureaucratic structure of chancelleries in Moscow
and regional governors in the provinces provided the judicial system in the
seventeenthcentury. Chancelleriessentgovernors,calledvoevody,to appointed
regions. They exercised administrative, fiscal and judicial authority; they often
oversaw subordinate officials and courts in smaller towns. On paper the system
was hierarchical and empire wide. In practice, however, many groups and
regions fell out of range of the governor’s authority because of explicit or
1 Bruce Lenman and Geoffrey Parker, ‘The State, the Community and the Criminal Law
in Early Modern Europe’, in V. A. C. Gatrell, Bruce Lenman and Geoffrey Parker (eds.),
Crime and the Law. The Social History of Crime in Western Europe since 1500 (London: Europa
Publications, 1980), pp. 11–48.
559
Cambridge Histories Online © Cambridge University Press, 2008
nancy shields kollmann
implicit charters of judicial immunity, religious, ethnic or colonial status, or
personal dependency.
The Russian Orthodox Church was a key beneficiary of judicial immunity.
Collectively the largest landholder in Muscovy in the seventeenth century, the
Church had enjoyed fiscal and judicial privileges since the time of Christianisa-
tion in 988.
2
The most undisputed immunity enjoyed by the Church was the
right to adjudicate cases involving spiritual issues over all Orthodox Christians.
In the seventeenth century spiritual issues were defined widely, ranging from
blasphemy, heresy and witchcraft to family law, inheritance and divorce. These
cases were tried in bishops’ courts, with the patriarch as appeal.
More problematic was secular jurisdiction over the Church’s dependants.
In the seventeenth century the state claimed a role here, providing in the
Chancellery of the Great Palace a higher instance for trials of Church depen-
dants and clergy (except for the patriarch’s people) in secular cases. In practice,
however, Church people litigated in a dizzying array of venues.
Since at least the fifteenth century Muscovite grand princes regularly
granted charters of judicial, fiscal and/or administrative immunity, or priv-
ileges of appeal directly to the tsar, to monasteries, private individuals, col-
lectives of artisans and the like, reserving to the tsar only criminal law. The
patriarch adjudicated over laymen and clergy in the parishes and monasteries
on his lands under an immunity received in 1625 and affirmed throughout the
century. Metropolitans, archbishops and bishops or the patriarch also granted
immunities to monasteries or communities from their own courts, allowing
monastic hierarchs to judge their dependants or allowing appeal to the tsar,
not the bishop. Immunities could be limited to a certain type of crime or value
of suit; the options weremyriad and almost every imaginable combination can
be encountered. Although the state proclaimed a policy of curtailing immu-
nities in the mid-sixteenth century, they continued to be awarded through the
seventeenth. The result was that almost each ecclesiastical community had a
different relationship with Church and state courts, often preferring high-level
secular courts to Church courts.
In the seventeenth century the state tried to gain jurisdiction over Church
people.TheConciliarLawCodeof 1649 (hereafterUlozhenie)affirmed the patri-
arch’s judicial autonomy (chapter 12), but created a Monastery Chancellery
2 Hieromonach Nikolai Iarushevich, Tserkovnyi sud v Rossii do izdaniia sobornogo ulozheniia
Alekseia Mikhailovicha (1649 g.)...Istoriko-kanonicheskoe issledovanie (Petrograd:
Sinodal’naia tipografiia, 1917); F. Dmitriev, Istoriia sudebnykh instantsii i grazhdanskogo
appelliatsionnogo sudoproizvodstva ot sudebnika do uchrezhdeniia o guberniiakh (Moscow:
Universitetskaia tipografiia, 1859), pp. 93–100, 324–33.
560
Cambridge Histories Online © Cambridge University Press, 2008
Law and society
(chapter 13) for clergy and laymen in all but spiritual suits.
3
This prompted the
1667 Church Council to claim judicial authority over clergy in all affairs, even
in criminal cases, where it established the primacy of Church investigators
in a shared Church–state criminal trial. The Monastery Chancellery lost its
juridical authority and was abolished in 1677, only to be reinstated in 1701 by
Peter the Great.
As landlords, Church institutions exercised legal jurisdiction over their lay
staff and peasants in petty crime. In principle, criminal cases involving Church
dependants were to be judged by the tsar’s courts. Even here, however, some
immunity charters allowed criminal jurisdiction, and many monasteries rou-
tinelyusurped this authority and judged and punished criminal suits in-house.
4
In monasteries the hegumen often delegated the task of adjudication to the
treasurer or cellarer, who presided over court with a council of monastic
brothers; very large monasteries also maintained a network of local judicial
officials. Bishops similarly divided their lands into ‘tenths’ and appointed an
official (desiatinnik) in each area. These local judges were so harsh that bish-
ops often awarded immunities from them to monasteries or parish churches.
5
The patriarch maintained a hierarchy of central and local judicial offices in
his dominions as well. Church courts used Byzantine canon law for spiritual
issues and a combination of Church and secular law for secular jurisdiction.
6
Allinall,neverintheseventeenthcenturydid one singleprinciple governthe
issue of jurisdiction for people associated with the Church. All depended upon
one’s social status, institutional affiliation and its immunity rights, physical
location and type of crime.
A second large incidence of immunity from the tsar’s judicial authority
related to dependant status, that is, serfdom and slavery. The vast majority
of the Muscovite population were peasants and in the seventeenth century a
growing portion of them were transferred (by purchase, by tsar’s grant) to
private landholders. Perhaps 10 per cent of the population were slaves.
7
The
right to own peasants and slaves was limited to the Church, the traditional
cavalry army (Moscow ranks and provincial gentry) and Moscow merchants
3 Richard Hellie (trans. and ed.), The Muscovite Law Code (Ulozhenie) of 1649, pt. 1: Text and
Translation (Irvine, Calif.: Charles Schlacks, 1988).
4 A. P. Dobroklonskii, ‘Solotchinskii monastyr’, ego slugi i krest’ianev XVII veke’, ChOIDR,
1888,no.144,kn.1, ch. 5.
5 For discussion of bishops’ authority, see Georg B. Michels, ‘Ruling without Mercy:
Seventeenth-Century Russian Bishops and their Officials’, Kritika 4 (2003): 515–42.
6 George G. Weickhardt, ‘Pre-Petrine Law and Western Law: The Influence of Roman and
Canon Law’, HUS 19 (1995): 756–83.
7 Richard Hellie, Slavery in Russia, 1450–1725 (Chicago and London: University of Chicago
Press, 1982), pp. 679–89.
561
Cambridge Histories Online © Cambridge University Press, 2008
nancy shields kollmann
(gosti), who also had exclusive rights to ownership of hereditary (votchina)
and service tenure (pomest’e) land. Landlords traditionally enjoyed jurisdiction
over dependant peasants and slaves in petty disputes and the culmination
of enserfment in the 1649 Ulozhenie simply intensified their coercive control.
Landlords relied on village communal institutions for basic law and order,
overseen by their bailiffs; in the largest estates a bailiff would hold court in a
formal venue.
8
Largeareasofthe RussianEmpire,however, did notknow serfdom. Serfdom
was limited to the most fertile agrarian lands – the centre, the north-west and
the expanding southern borderlands. In the north and Siberia the challenges
of distance, low yields and labour scarcity made it impossible to keep peasants
fixedto landandlandlord.Inareaswithout serfdom,peasantsenjoyedlocal self-
governance, subordinate to the governor’s administration. Similarly enjoying
more judicial autonomy than serfs were groups who stood midway between
peasants and the privileged military elite, the so-called ‘contract servitors’.
These included military or quasi-military units such as engineers, artillery,
cossacks, musketeers, postal riders. In addition to their military functions,
they farmed (land was often granted communally to the group, rather than to
individuals) and/or produced and sold goods. They could not own populated
land or dependent labour. As we shall see below, jurisdiction over them was
complex.
In addition to Church and landlord jurisdiction, much of the population of
seventeenth-century Russia was exempt from the central administration in all
but criminal cases because of ethnic, religious and colonial status. Muscovy’s
colonial policy was laissez-faire in the seventeenth century, tolerating diversity
in law, judicial institutions and elites.
The acquisition of the key trade depot of Kazan’ in 1552 served as a spring-
board for Russian expansion into the middle Volga and steppe.
9
Expansion
into the steppe was in full swing by the seventeenth century, with fortified
lines and frontier outposts staffed by Russians and elites of the Tatar, Mari,
Mordva and other native peoples. Such border troops were granted pomest’e
as cavalrymen or were enlisted into contract servitor ranks. In the 1650sand
1660s the state also transferred to the southern frontier servitors from recently
conquered Smolensk and Polotsk, often also transferring peasants from the
8 See the extensive correspondence of boyar B. I. Morozov with his bailiffs in A. I. Iakovlev
(ed.), Akty khoziaistva boiarina B. I. Morozova, 2 vols. (Moscow and Leningrad: AN SSSR,
1940–5).
9 Although dated, this Stalinist-era collective work has good coverage of middle Volga
and Siberia: Ocherki istorii SSSR. Period feodalizma. XVII vek (Moscow: AN SSSR, 1955),
pp. 787–869.
562
Cambridge Histories Online © Cambridge University Press, 2008
Law and society
centre to populate their lands. All these military servitors and non-enserfed
peasants were subject to the governor’s authority. But indigenous communi-
ties were permitted to use their own administrative and judicial institutions
and Islamic or customary law. Natives were subject to the governor only in
criminal cases.
Siberia presented an equally complex task of governance when Russia sub-
dued the west Siberian khanate in the late sixteenth century. By the mid-
seventeenth, Russians had settled in thin lines along the southern steppe fron-
tier and had established trade depots along the Ob, Enisei and other rivers
to their mouths in the Arctic. The Russian population in Siberia was small,
estimated by the end of the century at 25,000, including around 11,000 military
servitors, about 2,500 urban dwellers (posadskie) and the rest peasants.
Peasants fled to Siberia from the Russian north, the heartland, the middle
Volga area and southern frontier. They farmed their own land and a portion
of the tsar’s grain fields (which provided military grain supplies). Enserfment
did not develop to any great extent, although the Church did own some
peasants (by the end of the century about 1,500 peasant households belonged
to Siberian monasteries). Russian peasants in Siberia governed themselves in
local communes (on the model of the north discussed below) and were subject
to the local governor in criminal affairs. Because of the sparsenessof settlement
and distance from Moscow, governors in Siberia were given longer terms (two
to three years) and broader authority than governors in the centre. They were
renowned for corruption, ruling like satraps far from Moscow’s controlling
hand.
10
Siberian governors also oversaw a far-flung, sparsely settled population
of ethnic groups, who were taxed primarily in precious furs. In economy
these peoples ranged from settled forest exploitation and hunting to pastoral
nomadism of horses and cattle in the steppe to reindeer pastoralism in the Arc-
tic to hunting ocean mammals. Their communities were tiny, their languages
numbered in the hundreds, most Paleo-Asiatic, unrelated one to the other.
Siberian governors prosecuted natives for major crimes and made Russian
courts available to Siberian natives as they wished, often making concessions
to native customs, even in criminal cases. For petty crimes, governors allowed
native communities to govern themselves with native elites, laws and councils.
The situation was equally complex in Russia’s relations with the Bashkirs
south of the Urals in the seventeenth century. The area was diverse in economy
10 V. A. Aleksandrov and N. N. Pokrovskii, Vlast’ i obshchestvo. Sibir’ v XVII v. (Novosibirsk:
Nauka, 1991), and George V. Lantzeff, Siberia in the Seventeenth Century (Berkeley: Uni-
versity of California Press, 1943).
563
Cambridge Histories Online © Cambridge University Press, 2008
nancy shields kollmann
and ethnic groups. The more northern area was primarily agricultural, while
Bashkirs settled to the south in the steppe practised pastoral nomadism. The
judicial landscape was highly complex. Newly arrived Russians, Tatar peasants
and military men, Chuvash, Udmurts, forcibly transferred Polotsk noblemen,
all settled in the northern agricultural area, each with different social and
political statuses. Some, like the Russian cavalrymen and Polotsk noblemen,
received pomest’e with serfs. Service Tatars were equated with contract servi-
tors and farmed land that they rented from native Bashkirs. Russian peasants
fell into serfdom to military men or the Church, or settled state lands. Bashkir
peasants, meanwhile, maintained their traditional customs, institutions and
elites.
When Moscow acquired significant lands in left-bank Ukraine and Belarus’
in the Khmel’nyts’kyi uprising and the subsequent Russo-Polish wars (ended
by peace treaties of 1667, 1687), it faced an administrative challenge far different
from that posed by the sparsely settled farming, forest and steppe communities
east of Moscow. The Ukrainian and Belarusian lands, previously part of the
parliamentary noble democracy of the Commonwealth of Poland and Lithua-
nia, were densely and diversely populated. The cossack state, or hetmanate,
governed most of the left bank from 1648 into the last third of the eighteenth
century. Muscovy placed governors in key centres such as Kiev, Chernigov
and Pereiaslav and administered Ukraine through the Little Russian Chan-
cellery, or Malorossiiskii prikaz (to 1722). But through treaties renegotiated
with each new hetman Moscow allowed the cossack administration to remain
essentially unchanged. The hetmanate was divided into approximately six-
teen regimental units, run by cossack colonels, who served as head appellate
judges for the regional courts in their area. In adjudication they used diverse
law codes – decrees of hetmans and tsars, Lithuanian Statutes of 1566 and 1588
and customary law. The result was so complex that the cossack administration
commissioned a codification of laws in 1728. The new code – submitted to
the Russian Senate in 1743 but not approved – was nevertheless used in the
Ukrainian lands in the second half of the eighteenth century.
11
Pockets of judicial practice outside the hetmanate still existed in Ukraine.
Landlords operated their own manorial courts with authority over civil and
minor criminal affairs; so also did the Church, which was the largest single
proprietor of land. The Ukrainian Orthodox Church (led by the Metropolitan
of Kiev) maintained ecclesiastical courts for clerics, using Church law, and also
11 A. I. Pashuk, Sud i sudnichestvo na Livoberezhnii Ukraini v XVII–XVIII st. (L’viv, 1967),
chs. 2–3.
564
Cambridge Histories Online © Cambridge University Press, 2008
Law and society
forgeneral issues of marriage, divorceand morality. Uniate Churchinstitutions
were almost unknown in this part of the Commonwealth.
Outside the hetmanate Muscovy ruled more directly through governors
in Sloboda Ukraine and Zaporozhia. In the sixteenth and seventeenth cen-
turies municipal self-government through German law was granted to major
towns in Ukraine and Belarus’. About twelve towns in the hetmanate enjoyed
such privileges, while smaller towns were privately governed by landlords or
ruled by cossack administration. Magdeburg law was maintained for at least
a century after Muscovy took over, finally falling into disuse in favour of the
hetmanate’s law codes by the end of the eighteenth century. After Moscow
acquired the Smolensk and upper Oka areas in Belarus’, it revoked municipal
privileges and transferred the areas to governor control. But tsars affirmed the
landholdings and privileges granted to Smolensk noblemen by Polish kings;
special rights for the Smolensk nobility were revoked only in 1761.
So, large areas and groups stood beyond the tsar’s courts. The judicial arena
that was covered by the tsar’s centralised system reflected his claims to power.
A principal area was criminal law – murder, robbery, theft with material evi-
dence, treason, heresy, arson. The tsar also claimed authority over immoveable
property, dispensing land in service or hereditary tenure. Accordingly, great
attention in seventeenth-century law codes was devoted to the issues of owner-
ship and inheritance of land. By the same token, to support the landed cavalry
and to produce steady revenues for state expansion, the state concerned itself
extensively with social legislation. Not only did it enforce enserfment but it
also regulated slavery and limited the mobility of the urban populace. These
key areas – criminal, property and social law – were adjudicated by the tsar’s
governors.
As judge the governor in the seventeenth century tried civil cases.
12
Gov-
ernors with large jurisdictions who were accompanied by a state secretary
(d’iak) appointed by Moscow could judge cases beyond 20 roubles in value
and also land and slave disputes. Governors of smaller towns, without a state
secretary, were limited to cases up to 20 roubles in value, after which their
corresponding chancellery took over (Ulozhenie chapter 13: article 3).
13
In the-
ory criminal cases were done by locally elected criminal officers – the guba
elders and swornmen. But by the mid-seventeenth century the guba system
12 Twoclassic surveysoflocal governmentand the guba administrationare:Boris Chicherin,
Oblastnye uchrezhdeniia Rossiiv XVII veke (Moscow:Tipografiia Aleksandra Semena, 1856);
and Hans-Joachim Torke, Die staatsbedingte Gesellschaft im moskauer Reich. Zar und Zemlja
in der altrussischen Herschaftsverfassung, 1613–1689 (Leiden: E. J. Brill, 1974).
13 Hereafter references to chapters and articles in the Ulozhenie will be provided in the text,
and abbreviated, e.g. ‘13:3’.
565
Cambridge Histories Online © Cambridge University Press, 2008
nancy shields kollmann
was falling under the authority of governors. Guba officers might develop a
case and turn it over to the governor to judge, or resolve it jointly with him.
Whole areas of the realm did not have guba institutions, and often did not
want them. V. N. Glaz’ev shows that in the seventeenth century communities
often refused to support both a governor and a guba apparatus, since it was too
expensive.
14
The legal system embraced by the system of governors was uniform across
the state in law and procedure, but not in judicial venue. Leaving aside the
many areas of immunity discussed above, legal jurisdiction was complex even
within the tsar’s system. F. Dmitriev argued that the Ulozhenie of 1649 had
simplified legal jurisdiction from sixteenth-century complexity to three prin-
ciples – jurisdiction by residence, by social status or by type of crime.
15
His
simplification is deceptive: the resulting system still provided multiple court
systems and judicial personnel, resulting in frequent transfer of venue and
quarrels between centre and periphery over jurisdiction.
Residence was the principal determinant of judicial venue. Different chan-
celleriesadministereddiscreteregionsof thecountry, andsentoutgovernorsto
their delegated parts of the realm. The Military Service Chancellery (Razriad)
administered the southern frontier; the Kazan’ Palace and Siberia Chancellery
oversaw those areas. A handful of territorial chancelleries called chetverti (Nov-
gorod, Ustiug, Kostroma and Galich) oversaw the north-west and northern
areas to the Urals. The chancellery that oversaw the governor provided the
higher instance for local cases. A significant exception was the city of Moscow,
whichdid not have a governor. There the Moscow Administrative Chancellery
enforced law and order for the taxpaying populace of the town.
A governor’s administration varied according to the region he governed.
Siberia, the middle Volga and the southern frontier were sparsely populated,
had a high percentage of servitors of a contract service type, and relatively
few taxpaying peasants to pay the costs of elected administration such as the
guba system. The governor therefore ruled rather autonomously. But in the
north – the lands stretching from the Novgorodian hinterland, to the Dvina
watershed, eastward to the Urals and north to the White and Arctic Seas
– peasant communities balanced meagre farming with forest exploitation,
fishing, hunting, modest artisan work and trade and they organised them-
selves into self-governing communes at the regional (volost’) and village lev-
els here. Those belonging to the large monasteries so dominant in the north
14 V. N. Glaz’ev, Vlast’ i obshchestvo na iuge Rossii v XVII veke: Protivodeistvie ugolovnoi prestup-
nosti (Voronezh: Voronezhskii gosudarstvennyi universitet, 2001).
15 Dmitriev, Istoriia sudebnykh instantsii,p.348.
566
Cambridge Histories Online © Cambridge University Press, 2008
Law and society
(Solovetskii,Kirillo-Belozerskii monasteries) weredependant on them, butthe
majority of the population was not enserfed, subject only to the tsars. For petty
crimes, such as minor theft, brawls, land disputes, disagreements between
neighbours, drunkenness, these communities handled their own affairs, with
limited oversight by the governor. In criminal affairs they were overseen by
governors and sometimes by guba institutions, although these were weakly
developed in the north.
16
Following Dmitriev’s second principle – social status – many corporate
groups were subordinate in fiscal, administrative and judicial matters to one
of the chancelleries in Moscow, bypassing the jurisdiction of the local gov-
ernor. The Foreign Affairs Chancellery had jurisdiction over most foreigners
visiting Moscow as well as the Don cossacks, while the Foreign Military Chan-
cellery had jurisdiction over European soldiers in Russian service. The Postal
Chancellery had jurisdiction over post riders, the Stonework for stone and
brick-workers on the southern frontier, the Armoury for factory workers,
the Musketeer for musketeers and cossacks serving in towns, the Engineers’
Chancellery for artillerymen. Privileged Moscow merchants were granted
jurisdiction by the Chancellery of the Great Treasury, while the Moscow and
Vladimir Judicial Chancelleries judged the higher ranks of landed servitors in
civil issues. The Chancellery of the Great Palace was court of appeal for the
tsar’s (dvortsovye) properties, for non-enserfed communes, and in principle for
Church people. When a plaintiff presented a case, he followed the rule that
the venue was determined by the defendant’s jurisdiction.
Finally, Dmitriev’s third principle – type of crime – also determined juris-
diction. As we have seen, the Church claimed jurisdiction over spiritual issues.
The Felony Chancellery had authority over the criminal law through the guba
system. The Slavery Chancellery handled disputes about slave ownership,
while the Service Land Chancellery handled probably the greatest volume of
litigation in the seventeenth century, over land.
Allin all,theMuscovitestatewasriddledwithpocketsof judicial autonomies
within the overarching law asserted by the centre. These pockets included eth-
nic, religious and political communities in non-Russian colonial areas; courts
of private landlords and the Church; ecclesiastical courts for religious and
moral issues. The law interacted with ‘society’ in myriad venues and laws
depending upon one’s social status, religion, ethnicity and crime.
16 A classic study of government in the north: M. M. Bogoslovskii, Zemskoe samoupravlenie
na russkom severe v XVII veke,inChOIDR 1910,no.232,kn.1, pp. i–viii, 321 pp. and 105 pp.
of addenda; and 1912,no.214, 2, pp. i–iv, 311 pp.
567
Cambridge Histories Online © Cambridge University Press, 2008