A history of Russian law : from ancient times to the Council Code (Ulozhenie) of Tsar Aleksei Mikhailovich of 1649

A History of Russian Law

Law in Eastern Europe A series published in cooperation with Leiden University and the Universities of Tartu and Graz

General Editor Joseph Marko

VOLUME 66

The titles published in this series are listed at brill.com/laee

A History of Russian Law From Ancient Times to the Council Code (Ulozhenie) of Tsar Aleksei Mikhailovich of 1649

By

Ferdinand Feldbrugge

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Feldbrugge, F. J. M. (Ferdinand Joseph Maria), 1933- author. Title: A history of Russian law : from ancient times to the Council Code (Ulozhenie) of Tsar Aleksei Mikhailovich of 1649 / by Ferdinand Feldbrugge. Description: Leiden ; Boston : Brill, 2017. | Series: Law in Eastern Europe ; volume 66 | Includes index. Identifiers: LCCN 2017033081 (print) | LCCN 2017035424 (ebook) | ISBN 9789004352148 (E-book) | ISBN 9789004346420 (hardback : alk. paper) Subjects: LCSH: Law--Russia--History. | Russia--History--Aleksei Mikhailovich, 1645-1676. Classification: LCC KLA120 (ebook) | LCC KLA120 .F45 2017 (print) | DDC 349.47--dc23 LC record available at https://lccn.loc.gov/2017033081

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 0075-823X isbn 978-90-04-34642-0 (hardback) isbn 978-90-04-35214-8 (e-book) Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Preface XV List of Abbreviations XVII List of Maps XIX

part 1 The Middle Ages (until 1497) 1 General Introduction 3 The Purpose of This Work 3 Periodization 4 The Definition of Law 10 The Organization of This Work 14 General History and History of Law 16 Medieval Law 19 An Outline of the ‘Constitutional’ History of Russia During the Era of the Independent Principalities 23 State and Law During the Era of the Independent Principalities 38

Section 1 Sources 2 Sources 49 The Concept of Sources 49 Chronicles 52 Kormchie 56 The Merilo Pravednoe 61 The Knigi Zakonnye 63 Archives 64 Foreign Sources for the Prehistory of Russian Law 66 Publication of Texts, Literature, Bibliography 72 3 The Treaties with Byzantium. The Zakon Russkii 85 The Treaties with Byzantium 85 The Treaty of 907 88

vi

Contents

The Treaty of 911 90 The Treaty of 944 93 The Treaty of 971 96 The Zakon Russkii 96 4 The Russkaia Pravda or Russian Law 101 History of the Study of the Russkaia Pravda 101 The Different Versions of the Russkaia Pravda 104 The Division of the Russkaia Pravda into Articles 106 The Short Pravda: Introduction 107 The Short Pravda: The Pravda of Iaroslav 108 The Sources of Iaroslav’s Pravda 113 The Pravda of Iaroslav’s Sons 118 The Final Compilation of the Short Pravda 122 5 The Russkaia Pravda: The Expanded Pravda 124 The Expanded Pravda: Introduction 124 The Codicology of the Expanded Pravda 126 The Composition of the Expanded Pravda 131 The Relationship Between the Short Pravda and the Expanded Pravda 133 The Statute of Vladimir Vsevolodovich Monomakh 135 The Final Compilation of the Expanded Pravda 137 Foreign Sources for the Russkaia Pravda? 139 The Abridged Version of the Russkaia Pravda 142 6 Princely Statutes 144 Introduction 144 The Church Statute of St. Vladimir 145 The Church Statute of Iaroslav the Wise 150 The Statute of Vsevolod on Church Courts and People and on Trade Measures 154 The Testament of Vsevolod Mstislavich (Rukopisanie) 157 The Statute of Sviatoslav Ol’govich of 1137 158 The Smolensk Charters of Rostislav Mstislavich and Bishop Manuil 160 The Church Statute of Lev Danilovich of Galicia of 1301 161 Church-State Relations in 14th and 15th Centuries Texts 161

Contents

vii

7 Treaties 163 General 163 Treaties: Internal Russian Treaties 165 Treaties with Foreign Powers 168 Selected Examples and Special Categories 170 The Treaty of 1229 between Mstislav Davydovich of Smolensk and Riga and the Gothic Coast 170 The Treaty between the ‘Unknown Prince’ of Smolensk and Riga and the Gothic Coast 171 The 1269 Treaty between Novgorod and the Hanseatic League 172 The Novgorod-Tver’ Treaties 173 The Peace Treaty of 1318 between Moscow and Novgorod and Tver’ 175 8

Town and Provincial Charters 177 The Charter of Dvina Land 177 The Court Charter of Pskov 178 The Charter of Novgorod 184 Iaroslav’s Law on Bridges 187 The Charters of Belo Ozero 188 The Metropolitan’s Justice 190

9

The Code (Sudebnik) of Ivan iii of 1497 193 The Homicide Law of Vasilii ii the Blind 193 The Code of Ivan iii: Introduction and Historiography 195 The Numbering of the Articles of the Code 198 The Contents of the Code 199 General Historical Background and Character of the Code 200 The Sources for the Code of 1497 203 Legal Significance of the Code of 1497 205

10

Foreign Laws 209 The Impact of Byzantine Law 209 The Court Law for the People (Zakon Sudnyi liudem) 210 The Skra of Novgorod 217 The Iasa of Chingis-Khan and the Impact of Mongol-Tatar Rule on Russian Law 219 The Legal Environment of Medieval Russian Law 227 Rurikid Marriages as an Indication of Political and Cultural Contacts 233

viii 11

Contents

Non-Legislative (Non-Normative) Legal Sources: Gramoty 234 Introduction 234 Sources and Historiography before 1917 235 Sources and Historiography after 1917 237 Classification of Documents 240 Alphabetical Dictionary of Gramoty 245 Documents and Collections Other Than Gramoty 285 Pistsóvye and razriadnye knigi 287 Novgorod Birch-Bark Documents 288 The Iarlyki of the Tatar Khans 290

Section 2 The Law 12

Setting the Stage: Territory and Tribes in Early Kievan Russia 299 The Physical Stage of Early Russian History 299 The Eastern Slav Tribes in the 10th Century 299 Russia’s Multi-Ethnic Past in Ancient Times 301 The Emergence and First Expansion of the Early Russian State 306 The Dynasty of Rurik 308 The Socio-Economic Nature of Kievan Russia: The Feudalism Debate 311 The Viking Question 317 Tribute and Inter-Tribal Relationships in Early Kievan Russia 323 Territory: A Postscript 327

13

The Prince in Medieval Russia 331 Introduction 331 Relations between Princes: Succession and Treaties – Introductory Observations 336 The Viking Origins of the House of Rurik 338 The Succession History According to the Primary Chronicle – A Brief Survey 339 The General Principles of Princely Succession 343 The Grand Princely Dignity 350 Relations between Princes: Wills and Treaties 356 Princely Rule: Succession, Popular Assent, Mongol-Tatar Validation 363 The Office and Function of the Prince 366 The Prince’s Court and Officials in Kievan Times 367

Contents

ix

14

The Prince’s Government 377 The Prince’s Government 377 The Expansion of Princely Administration in Later Centuries 379 General Taxation 390 The Prince as Judge 395 The Prince as Legislator 397 External Relations: Diplomacy and War 402

15

The Towns 408 Introduction 408 The Origin of Russian Towns 409 Town Government and the Veche in Particular 413 External Relations: Treaties with Princes and Foreign Powers 432 The Urban Population 432 The Legal Framework of the Urban Economy 439

16

Novgorod and Pskov 465 i Velikii Novgorod 465 ii Pskov 521 iii A Note on Viatka-Khlynov 525

17

Western Russia 527 Historical Introduction 527 The Law of the Lithuanian Principality and the Polish-Lithuanian Commonwealth 531

18

Rural Russia 543 Land Tenure and Land Ownership 544 Large-Scale Land Ownership – Feudalism? 545 Princes as Landowners 547 Boyars and Other Landowners 552 Landowning by the Church and Monasteries 560 Peasants 565 Peasant Landowning 577 The Peasant Population in Later Centuries 578 Transactions Concerning Land 583 Local Government 586

19

The Individual and the Family 589 The Legal Status of the Individual 589

x

Contents



Legal Classes 592 The Individual as a Family Member 619

20 The Individual as a Legal Actor 644 Contracts 646 Delicts 648 Ownership 651 21

The Church and Monasteries 654 Church and State 655 The Organization of the Church 659 Church Jurisdiction 663 Other Sources of Church Income 674 Monasteries 676 Landowning by the Church 679

22

Courts and Justice 680 Introduction 680 Secular and Church Courts 684 Procedure in the Russkaia Pravda 687 Procedure in Novgorod and Pskov 689 Evidence 692 Criminal Law 699 Court Fees and Related Payments 710

part 2 Muscovy (until 1649) 23 Introduction 717 The Law of the Principality of Muscovy 718 The Reforms of Ivan iv 723

Section 1 Sources 24 The Code (Sudebnik) of Ivan iv of 1550 729 Introduction and Historiography 729 General Historical Background and Character of the Code 731 The Contents of the Code of 1550 734 In Conclusion 738

Contents

xi

25 The Stoglav 740 Legal Relevance of the Stoglav 740 The Enactment of the Stoglav 742 The Contents of the Stoglav 743 26 The Codes of 1589 and 1606–1607 745 The Code of 1589: Introduction 745 The Contents of the Short and the Expanded Redactions 746 The Relationship between the Two Redactions and the Character and Sources of the Code of 1589 747 The Composite Code of 1606–1607 750 27

The Statute Books of the Prikazy 752 The Statute Books of the Brigandage Department 753 The Statute Book of the Slavery Department 754 The Statute Book of the Department for the City of Moscow 754 The Statute Book of the Department of Roads 755 The Statute Books of the Land Department 755

28 Decisions of the Land Assembly (Zemskii Sobor) 757 The Resolutions of 15 January 1580 and 20 July 1584 758 The Resolution of 9 March 1607 758 The Resolution of 30 June 1611 758 29 The Council Code (Sobornoe Ulozhenie) of Aleksei Mikhailovich of 1649 760 Historical Background 760 Historiography 762 Preparation and Enactment 763 Overview of the Contents 765 Sources 768 The Follow-up: Novellae or Novoukaznye stat’i 770

section 2 The Law 30 The Tsar 775 The Title of Tsar 776 Autocracy and Public Law 777 Succession 779 The Tsar’s Court 787

xii 31

Contents

The Tsar’s Government 789 A Boyar Duma? 789 The Land Assembly (Zemskii Sobor) 797 The Administration 807 Lower Officials 813 Taxation 814 The Army 818

32 Territory and Population 822 The Growth of the Principality of Moscow 822 Muscovy and Western Russia 826 33 Local Government 831 Kormlenie as the Basis of the Traditional System 831 The Reforms of Ivan iv 835 The Abolition of Kormlenie 841 Voevody 842 34 Criminal Law and Procedure 844 Introduction 844 Criminal Law in the Codes of Ivan iii (1497) and Ivan iv (1550) 846 The Guba and Land Charters 849 Criminal Law in the Council Code (Sobornoe Ulozhenie) of 1649 850 Criminal Law and the Church; Offences against Morals 853 Criminal Procedure 854 35 Civil Law: Persons 860 The Legal Status of the Individual: Men and Women 860 Legal Classes 861 The Sovereign and His Family 862 Princes 863 Boyars and Other High Nobles 866 Lesser Nobles: Boyars’ Sons and Dvoriane 868 Clergy and Church People 871 Townspeople in Moscow and Elsewhere 871 Merchants 875 Peasants 878

Contents

xiii

Slavery 887 Foreigners 891 Legal Persons 893 36 Civil Law: Ownership and Obligations 894 Ownership of Land 895 Obligations 916 37

Civil Law: Family Law and Succession 927 Sources 927 The Family 930 Marriage 930 Relations between Spouses 933 Dissolution of Marriage 936 Parents and Children 939 Inheritance and Succession 941

38 Courts and Justice; Civil Procedure 948 Courts in the Period after the Sudebnik of Ivan iii of 1497 948 Courts in the Council Code (Sobornoe Ulozhenie) of Tsar Aleksei of 1649 950 Court Officials 955 Civil Procedure 956 39 The Church, Monasteries, and Church Law 960 Church-State Relations in Muscovy 960 The Organization of the Church 966 Church Legislation 972 Church Jurisdiction 975

Appendix 1 Money and Measurements 983 The Monetary System of Medieval Russia 983 Measurements 986 Appendix 2 Genealogies 987 Rurikids 987 Gediminids 1010 Glossary of Russian Terms 1014 Index of Personal Names 1072 Subject Index 1083

Preface The scope of a work like the present involves that many of the subjects to be discussed are closely connected and turn up at different places in the narrative. The most obvious example is the complex of themes relating to land ownership, serfdom, social classes, the law of succession, etc. One could try to deal with them all together, or examine them all separately by themselves, or find a solution somewhere in the middle. I have preferred the third option, which has resulted in a certain amount of duplication, as well as frequent references to other chapters. As to my sources, I might repeat what I wrote in the Foreword of my collected papers on “Law in Medieval Russia”: “A non-Russian scholar who has to rely mainly on his own library and that of his university, respectable as they may be, is in an unfavourable position in comparison to a Russian colleague who has large and ancient collections at his disposal in Moscow or St.Petersburg”.1 Then a few prolegomena (“read this first”), as most of the questions authors commonly touch upon in prefaces and forewords have been addressed more extensively in the introductory chapters of the two parts of this work. The division itself of the work in two parts is one of these questions. What remains are mostly practical trivia. The Russian language is notoriously tricky where word accent is concerned, in particular in names of persons and places. Such accents have therefore been indicated where it seemed to be useful, for instance when a name or word appeared for the first time. I have been sparing with capitals: “state”, “tsar”, “patriarch”, etc., not “State”, “Tsar”, “Patriarch”. But “church” has been capitalized where the institution itself was concerned, usually the Russian Orthodox Church, not when the use was adjectival (“church property”). The place of publication in bibliographical references in footnotes has been given as it appeared in the publication. Therefore “Moskva” and “Sankt-­ Peterburg” instead of “Moscow” and “St.Petersburg”; also “Kyiv” for books published in Ukrainian. Similarly, the names of Russian rulers have not been ­anglicized: “Mikhail”, “Aleksei”, etc., instead of “Michael”, “Alexis”, etc. Work on this book was started more than 40 years ago, but only during the last ten years have I been able to devote most of my time to it. I cannot thank all the people who helped me in some way, big or small, by name. I should at 1 F. Feldbrugge, Law in Medieval Russia, Leiden/Boston, 2009, xiv (W.B. Simons, ed., Law in Eastern Europe, Volume 59).

xvi

Preface

least mention, in chronological order, the late Serge Levitsky, Wim Timmermans, Ania van der Meer Krok-Paszkowska, Aiste Myckonyte, Ingeborg van der Laan, Kate Elliott and Henriette van den Tooren. My wife, Máire FeldbruggeLawlor (†2015), supported and encouraged me all along and was sorry not to be able to see the book in print.

List of Abbreviations asei

Baranowski Beneshevich ddg

dg sssr

dgve Cherepnin, Arkhivy D’iakonov ep Feldbrugge, lmr Froianov, KRse

Froianov, KRsp Froianov, KRoi Froianov, Nachala Grekov, Kievskaia Rus’ gvnp Iushkov, Istoriia Iushkov, Ocherki Iushkov, Stroi

B.D. Grekov (i), L.V. Cherepnin (ii–iii)(eds.), Akty sotsial’noekonomicheskoi istorii Severo-vostochnoi Rusi kontsa xiv – nachala xvi v., Moskva, 1952 (i), 1958 (ii), 1964 (iii) G. Baranowski, Die Russkaja Pravda – ein mittelalterliches Rechtsdenkmal, Frankfurt a/M., 2005 V.N. Beneshevich, Sbornik pamiatnikov po istorii tserkovnago prava, Petrograd, 1915 Dukhovnye i dogovornye gramoty velikikh i udel’nykh kniazei xiv–xvi vv. (S.V. Bakhrushin, ed., L.V. Cherepnin, man. ed.), Moskva/Leningrad, 1950 Drevneishie gosudarstva na territorii sssr Vols.1978–1983 (V.T. Pashuto, ed.) Vols.1984–1988/1989 (A.V. Novosel’tsev, ed.) Drevneishie gosudarstva Vostochnoi Evropy Vols.1991–1994 (A.V. Novosel’tsev, ed.); Vols.1995→(E.A. Mel’nikova, ed.) L.V. Cherepnin, Russkie feodal’nye arkhivy xiv–xv vekov, Part i, Moskva/Leningrad, 1948, Part ii, Moskva, 1951 M. D’iakonov, Ocherki obshchestvennago i gosudarstvennago stroia Drevnei Rusi, Sankt-Peterburg, 1908 (2nd. ed.) Expanded (Prostrannaia) Russkaia Pravda F. Feldbrugge, Law in Medieval Russia, Leiden/Boston, 2009 I.Ia. Froianov, Kievskaia Rus’. Ocherki sotsialno-ekonomicheskoi istorii, Sankt-Peterburg, 1999 (new ed., orig. Leningrad, 1974) I.Ia. Froianov, Kievskaia Rus’. Ocherki sotsial’no-politicheskoi istorii, Leningrad, 1980 I.Ia. Froianov, Kievskaia Rus’. Ocherki otechestvennoi istoriografii, Leningrad, 1990 I.Ia. Froianov, Nachala Russkoi istorii, Moskva 2001 B.D. Grekov, Kievskaia Rus’, Moskva, 1953 Gramoty Velikogo Novgoroda i Pskova (S.N. Valk, ed.), Moskva/Leningrad S.V. Iushkov, Istoriia gosudarstva i prava sssr, Part i, Moskva, 1950 (3rd ed.) S.V. Iushkov, Ocherki po istorii feodalizma v Kievskoi Rusi, Moskva/Leningrad, 1939 S.V. Iushkov, Obshchestvenno-politicheskii stroi Kievskogo gosudarstva, Moskva, 1949

xviii Kaiser, Laws

List of Abbreviations

D.H. Kaiser (ed. & transl.), The Laws of Rus’ – Tenth to Fifteenth Centuries, Salt Lake City, 1992 Karamzin N.M. Karamzin, Istoriia Gosudarstva Rossiiskago, 4 vols., Sankt-Peterburg, 1842–1844 (reprint Moscow 5th ed., 1988) Kliuchevskii, Kurs V.O. Kliuchevskii, Kurs russkoi istorii, Sankt-Peterburg, 1904– 1910; vols. 1–5 of Sochineniia, 8 vols., Moskva, 1956 Novg. Chr. First Novgorod Chronicle Presniakov, Kn. Pr. A.E. Presniakov, “Kniazhoe pravo v drevnei Rusi. Ocherki po istorii x–xii stoletii”. Zapiski istoriko-filologicheskogo fakul’teta imp. S.Peterburgskago universiteta, Part 90, SanktPeterburg, 1909 Presniakov, Lektsii A.E. Presniakov, Lektsii po russkoi istorii, Part i, Moskva, 1938; Part ii, Moskva, 1939 Prim. Chr./ Chronicle Primary Chronicle (Nachal’naia Letopis’, also “Nestor Chronicle” or “Tale of Bygone Years”) PRoP Pamiatniki rossiiskogo prava v 35 tomakh, Moskva, 2013 → prp Pamiatniki russkogo prava, Vols.1–8, Moskva, 1952–1963 psrl Polnoe Sobranie Russkikh Letopisei Pushkarev, Dictionary S.G. Pushkarev (comp.), Dictionary of Russian Historical Terms from the Eleventh Century to 1917, New Haven/London, 1970 rp Russkaia Pravda rz Rossiiskoe zakonodatel’stvo x–xx vekov, Vols.1–9, Moskva, 1983–1993 Sergeevich, Drevnosti V.I. Sergeevich, Drevnosti russkago prava, i, Sankt-Peterburg, 1909 (3rd ed.); ii, 1908 (3rd ed.); iii 1908 Sergeevich, Lektsii V.I. Sergeevich, Lektsii i izsledovaniia po drevnei istorii russkago prava, Sankt-Peterburg, 1910 (4th ed.) sggd Sobranie Gosudarstvennykh Gramot i Dogovorov sp Short (Kratkaia) Russkaia Pravda Tikhomirov, Issledovanie M.N. Tikhomirov, Issledovanie o Russkoi Pravde, Moskva/ Leningrad, 1941 Tikhomirov, Posobie M.N. Tikhomirov, Posobie dlia izucheniia Russkoi Pravdy, Moskva, 1953 Vernadsky, Laws G.V. Vernadsky, Medieval Russian Laws, New York, 1947 Vlad.-Bud., Obzor M.F. Vladimirskii-Budanov, Obzor istorii russkogo prava, Rostov- na-Donu, 1995 (republication of 7th ed., Kiev, 1915) zarg N.E. Nosov (ed.), Zakonodatel’nye akty russkogo gosudarstva vtoroi poloviny xvi – pervoi poloviny xvii veka. Teksty, Leningrad, 1986; N.E. Nosov, V.M. Paneiakh (eds.), id. Kommentarii, Leningrad, 1987

List of Maps 1 Russia Before the Mongol Conquest (1240) 1012 2 Muscovy and its Neighbours (1497–1649) 1013

part 1 The Middle Ages (until 1497)

∵

chapter 1

General Introduction

The Purpose of This Work

There are no limits to curiosity; the question why anybody would want to know about Russian legal history is therefore pointless. But it is not hard to think of more specific reasons, beyond mere inquisitiveness, for embarking on such an enterprise. These reasons may individually lead to diverging approaches and different methodologies. The history of Russian law may be studied in order to contribute to a better understanding of the social, political or economic history of Russia, or to assist in building a more solid foundation for new Russian legislation, or to highlight the peculiarities of Russian law through the ages in contrast with the legal history of other countries, or to see how a particular branch or particular institutions of Russian law developed over a longer period, or to examine the historical relationship between law and other aspects of Russian culture, or to gain more insight into the phenomenon of law itself, and so on.

Russia or Rus’?

The Russian language has two names to refer to the country: Rossiia and Rus’. The first one causes no problem nowadays; it is the official name of the state, which also bears the name of “Russian Federation”. Art. 1 par. 2 of the Constitution of the Russian Federation declares that the two names are equivalent. “Russia” is the only possible translation of Rossiia. The Russian Federation is the legal continuation of the Russian Soviet Federative Socialist Republic (rsfsr) and, additionally, also the legal successor in most respects of the ussr. The rsfsr was the legal successor of the Russian Empire (with the short interval of the Russian Republic in 1917). The Russian Empire was the continuation of the Tsardom of Muscovy and before that the grand principality of Muscovy. All these states have at least colloquially been referred to as “Russia”. In earlier times Rus’ was used to refer to the predecessor or collective predecessors of Muscovy (“Kievan Rus”), and this implied a territory far larger than that of Muscovy, comprising also, for instance, the present Ukrainian and Belorussian republics. Both Russian and foreign authors use Rus’ as well as

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_002

4

chapter 1

“Russia” when writing about the Russian middle ages. Rus’ was never an official designation of a state and had a more exalted or even poetic ring (Sviataia Rus’, “Holy Russia”, while Sviataia Rossiia would sound bizarre). There is something to be said for using Rus’ in historical writing, to indicate that other territories, apart from present-day Russia, are also envisaged. On the other hand, it obliges the author to decide every time again whether to use Rus’ or “Russia”, because either designation is usually possible. Also, the adjective of both terms is russkii. I have opted for “Russia” therefore, avoiding Rus’, except when there were compelling reasons to do otherwise. I am aware of the political susceptibilities surrounding the question nowadays. Each approach implies a different viewpoint and anticipates a specific audience; a variety of accents will be the result. The historian, the legal practitioner, the comparative lawyer, the legal theorist, each has his or her own interests and requirements. How is one to serve them all? The matter is further complicated by the inherent defect of all history writing: the historian attempts to recreate something that was there once, but is not there anymore; an impossible task, because for complete recreation every feature of the event described should be revived. Selection then becomes unavoidable and this inevitably entails distortion. Not only has one to serve different audiences, but they all can only be served inadequately. In practical terms, there are mitigating factors. The present work is primarily concerned with what could loosely be called medieval law. The distance in time between it and present-day law weakens the connection between the two. Medieval law will seldom be of decisive and concrete relevance for present-day law. More generally, the author believes that he shares most of the significant different interests that have been indicated above and will at least attempt to do them justice. Also, what is of particular relevance to one specialist may still be sufficiently interesting to another. If I had not found the history of medieval Russian law a fascinating topic, for a variety of reasons, I would not have studied it. Periodization History is concerned with the past, but the past is not here, it is gone. It has to be recalled, but which past? A century ago, or two centuries, or even more?

General Introduction

5

It would be possible, provided sufficient sources were available, to describe the legal system of a country at a particular moment. The advantage of such an approach is that the relationships between the different components can be made clear and in that way the fact that the law of a country constitutes a coherent system can be emphasized. The drawback is that the temporal dimension is lacking; one is left to guess what the situation was previously and afterwards. This defect can be avoided by concentrating, not on the entire legal system, but on individual parts of it, on specific legal institutions. Then it is much easier to present a true narrative. The way Russian law dealt with homicide during its earliest phases offers a good example. First there was the blood feud, and then incipient central power attempted to restrict this by introducing various measures at different times which tended to marginalize the initial form of legal self-help. Finally, the state assumed exclusive powers in dealing with homicide. The basic problem of engaging in legal history may therefore be compared to the problem of describing a three-dimensional object, such as a tree, through a two-dimensional medium, such as a piece of paper. One can draw a picture of the roots, the bole, the branches and the leaves, but that does not explain adequately the way a tree functions. Then one needs at least a cross-section of the bole. In modern medicine spatial images are achieved by a very large number of cross-sections. A more or less comprehensive legal history could be produced, in theory, by an accumulation of the histories of all major legal institutions, such as contracts, courts, offences against persons, inheritance law, government, taxation, etc. The obvious defect of such a procedure would be that the systemic aspect of law, the manifold connections between various legal institutions, would receive insufficient attention. The practical solution is usually to cut up the entire time-span to be covered into manageable slices and treat these as stationary objects, as if little or nothing changed during these shorter periods. In other words, periodization. All descriptions suffer from the defect that they involve selection: the past cannot be recalled in toto, so that it would be present again. The narrator has to select certain elements, considered to be the most relevant. Objectivity cannot be achieved. The best possible result is when most knowledgeable observers, over a longer period of time, agree that the narrator has succeeded in presenting a fair, balanced and sufficiently detailed picture. Periodization suffers from the additional defect that it tends to disregard or at least belittle the changes occurring during the period considered, while tending to overestimate the differences between subsequent periods. The danger of falling into this trap may be greater when we are concerned with the

6

chapter 1

more distant past. If we think of Russia in 1975 (the Soviet government is apparently successful in its suppression of dissent), 1985 (Gorbachev embarks on perestroika), 1995 (the ussr has disintegrated and El’tsin’s Russia is a dynamic and chaotic country), 2005 (Russia under Putin is back as a stable and powerful state), the impression received is one of fast and fundamental changes during a short period. The use of a term like “Kievan Rus” may invoke an image of a golden age in which a succession of powerful princes ruled the prosperous and peaceful Russian lands from gold-domed Kiev, until internal discord and external enemies put an end to this state of primeval harmony. Even a cursory glance at the chronicles covering this period will convince the reader that 11th- and 12th-century Russia was frequently rocked by dramatic upheavals and subject to a steady process of social, economic and political transformation. Similar caveats can be made about the other periods in which Russian history is traditionally divided. Still, nobody would deny that a discussion of more than thousand years of Russian history requires the breaking up of a millennium into more manageable sections. The caveat expressed in the foregoing paragraph can be addressed by an appropriate subdivision of these sections into smaller bits, in order to avoid the impression that these sections constituted stable blocks, separated by short periods of rapid change and transition. To a great extent therefore periodization is a matter of free choice for the narrator, there are no objective guidelines for dividing up the material into chronological units, unless of course one is an orthodox Marxist who believes that Marx discovered objective laws of historic development. Specific subjects may dictate or at least suggest a certain form of periodization. This is quite obvious in legal history, where the introduction of new legislation may occasion a sudden change of the legal landscape. There are several­ outstanding examples of this in Russian legal history. For the more recent past one could mention the three so-called decrees on the courts of the early Soviet power, by which the entire pre-revolutionary legal system was completely abolished. Of course, this development coincided with parallel upheavals­in the political and socio-economic spheres, all of them part of the phenomenon known as the October Revolution. More intriguing, from the point of view of periodization, is the enactment of the Code (Sobornoe Ulozhenie) of tsar Aleksei Mikhailovich in 1649. That year was not of exceptional relevance in Russian­history in general and it would not occur to anyone to make it into a cut-off point for political or socio-economic history. For Russian law, however, it turned out to be a decisive year, and retrospectively at that, because when the Russian government embarked on the collection and codification of the

General Introduction

7

entire mass of Russian law in the middle of the 19th century, the Code of tsar Aleksei was taken as the starting-point. All authors who address their efforts to the study of lengthier periods of Russian legal history use the tool of periodization, but surprisingly few consider the problems involved in periodization itself. Among pre-revolutionary authors Vladimirskii-Budanov was a notable exception. He regarded the relationship between public (“state”) and private law as the decisive factor and this led him to distinguish three major periods: the 9th–13th centuries (the “land” or “princes’” period), the 14th–16th centuries (the Moscow and Lithuanian period), and the 17th–19th centuries (the imperial period).1 For Soviet scholars the problem appeared to have been solved. As the leading Soviet legal historian S.V. Iushkov wrote in 1950:2 Only on the basis of the teaching by the founders of Marxism-Leninism concerning the social-economic formations and the economic structures, and by following the direct instructions of Lenin and Stalin could the basic moments of the history of the state and law of the ussr be established. Russia was supposed to have jumped directly from the stateless communalclan phase to feudalism, bypassing the slave-owning state. Only in the course of the second half of the 19th century was feudalism gradually replaced by early forms of capitalism. This necessitated a further subdivision of the more than eight centuries of ‘feudalism’ into smaller periods. As the founders of MarxismLeninism had not clearly expressed themselves on this question, considerable room for debate became available. The first few centuries were usually characterized as “early feudalism”, which was followed by the period of independent principalities and then the rise of the centralized state of Muscovy; the latter was gradually transformed into an absolute monarchy, culminating in the reign of Peter the Great.3 The real constraints for Soviet legal historians were probably less in the Marxist-Leninist straightjacket than in the extremely hierarchical academic climate which made it difficult to defend views which did not agree with those 1 M.F. Vladimirskii-Budanov, Obzor istorii russkogo prava, Rostov-na-Donu, 1995, 33. This edition is a reprint of the 7th and last pre-revolutionary edition of 1915 (Kiev). The first edition appeared in 1886 in Kiev. 2 S.V. Iushkov, Istoriia gosudarstva i prava sssr, chast’ i, Moskva, 1950 (3rd ed.), 11. 3 Ibidem, 12–17.

8

chapter 1

of the professional leaders, of whom academician B.S. Grekov was the undisputed number one. Only during the last years of Soviet power could heterodox opinions be voiced more freely. This was of particular importance for the early Kievan period where the feudalism construct was seriously inadequate. In the post-Soviet era the periodization problem was briefly recognized by Isaev in his university textbook on legal history. He pointed out that it was to be determined by several factors, especially the socio-economic structure of society and the development of the state. He added that the legal historian would be interested primarily in politico-legal forms, facts and phenomena. Without any further argument he then listed five periods, which were more or less the same as those recognized by Soviet legal historians (Ancient Russia, the period of the independent feudal states, the Muscovy state, the absolute monarchy of the Russian empire, the 19th-century transition to a bourgeois monarchy).4 Isaev’s treatment of the matter suggests that the periodization problem, which appears serious from a theoretical point of view, may actually evaporate if looked at pragmatically. Most authors arrive at more or less the same result, regardless of their different points of departure. The main thing to be kept in mind is that developments were usually gradual, so that the defining characteristics of one era can often already be observed in the immediately preceding era and sometimes survive into the next era. But there were also events which represented a serious albeit partial break of legal continuity. One could mention the adoption of Christianity around 988, the sudden Mongol conquest in 1239–1240, or the passing of comprehensive legislation, such as the Code of tsar Aleksei in 1649 (as mentioned above). In all these cases, however, continuity in other areas remained intact. The traditional system is acceptable as a general matrix for chronologically organizing the material; not because it is widely (and usually without further consideration) adopted, but because apparently nobody who has given the matter any thought can come up with something significantly different. The various schemes proposed differ mainly in their further subdivisions. At the beginning one can discern the proto-historical phase which is usually designated as Ancient Russia (Drevniaia Rus’), which was then gradually transformed into early Kievan Russia. No direct legal sources from this earliest period have survived. The reigns of St. Vladimir, when Russia embraced Christianity, and of his son Iaroslav the Wise are generally regarded as the apex of Kievan Russia. They were marked by the Russkaia Pravda (“Russian Law”) and the two church statutes bearing the names of these two princes as the 4 I.A. Isaev, Istoriia gosudarstva i prava Rossii, Moskva, 2006 (3rd ed.), 6–7.

General Introduction

9

principal legal monuments. Under their successors, the Kievan empire lost its ­coherence and was overrun in 1239–1240 by the Mongols. Mongol rule represented an abrupt break in certain aspects of legal developments, but left other aspects intact. The post-Kievan period of Russian legal history, both before and after the arrival of the Mongols, was inevitably characterized by a certain degree of legislative fragmentation; the prominent position of Novgorod was of particular importance. Continuity with Kievan Russia remained strong, however. This so-called period of the independent principalities continued, although under Mongol-Tatar suzerainty, until the princes of Vladimir-Moscow succeeded in the course of the following centuries to push all other princes out of the way. The last independent prince (of Riazan’) was removed in 1520. Long before that time, however, the grand prince of Moscow had become the effective ruler of the country. The most important legal milestone from this period was the Code of Ivan iii, the Great, of Moscow, of 1497. This was the first comprehensive piece of legislation applying to almost the entire territory of Russia since the times of the Russkaia Pravda. The extinction of the ruling branch of the house of Rurik (at the death of tsar Fedor, the son of Ivan iv, the Terrible, in 1596) started the Time of Troubles (Smutnoe Vremia), which was ended by the election of a new tsar Mikhail Romanov in 1620, the scion of a leading boyar family. His grandson Peter initiated a period of fundamental reforms, known ever since as the Petrine era. For almost the entire remainder of the 18th century Russia was ruled by empresses. In the 19th century developments in Russia moved the country closer to Europe. The critical term (which I have tried to avoid) in the preceding paragraph is “gradual”. There is a rough general consensus about the periods indicated, but the most important thing to remember is that the transition from one period into another usually covered several decades or even longer. Returning to the question of the periodization of legal history, the general framework sketched above can be used, but with flexibility. Some legal institutions were completely unaffected by the transition to another period. Other institutions were subject to fundamental transformation, without any obvious link to what was happening simultaneously in general history. The Code of Ivan iii of 1497 will be taken as the major milestone dividing the first period (Kievan and Post-Kievan Russia) and the following one (Muscovy Russia), as it marked very clearly the triumph of the single Russian state over the co-existence of competing principalities. The period of Muscovy Russia­did actually continue until the end of the 17th century when Peter the Great ascended the throne, but, as indicated above, the cut-off point in legal history may more conveniently be placed somewhat earlier, at the adoption of the Council Code (Sobornoe Ulozhenie) of tsar Aleksei in 1649.

10

chapter 1

The Definition of Law

Legal history is the history of law and requires therefore a certain understanding of the concept of law. In the past, legal historians would often start from the law which was around them, the legal system in which they lived and worked. They would then describe the law of another era and possibly another nation according to the way their own legal system was organized: private law as opposed to public law; private law divided up into the law of persons, property, obligations, inheritance and succession, and so on, as if such an order proceeded from a higher authority, or from natural reason, or from some other external source.5 This approach usually (but not necessarily) starts from an understanding of law as something that exists objectively, as part of the natural world, and can therefore be discovered, revealed, by scientific investigation. (Natural world in this sense would embrace not only the physical world – the object of the natural sciences, including the medical sciences –, but also a number of aspects of the human race – anthropology, sociology, linguistics, history, etc.) Before we consider the question whether law belongs in the latter category, we may recognize that the disciplines mentioned all have unclear edges. Should non-verbal communication be included under linguistics? Sociology overlaps with anthropology, as well as with history, and so on. The same goes for law in the generally accepted sense of the term; the legal nature of certain rules may be debatable. Can unenforceable rules be part of law? Law (again, in the generally accepted sense) can of course be the object of scientific analysis, like any other social phenomenon. This is what the legal historian is involved in, studying the law of the past. Legal sociology would be another example, the study of the interaction between law and society. But most lawyers, practitioners as well as academic lawyers, are concerned with 5 This traditional approach is taken by the principal pre-revolutionary Russian textbook authors V.I. Sergeevich and Vladimirskii-Budanov (quoted above), whose works were simply divided into chapters on the history of state law, criminal law, civil law, and procedure. The first edition of Sergeevich’s work Lektsii i izsledovannia po drevnei istorii russkogo prava appeared in 1883 in St.Petersburg, so it seems that Vladimirskii-Budanov followed his lead. The main Soviet textbook on legal history, by Iushkov (quoted above), proceeded along the same lines. The only major work on medieval Russian legal history in recent times, the first three volumes of PRoP, stayed close to Iushkov, in the introductions and comments accompanying the legislative texts; most of these are from the hand of the general editor of the series R.L. Khachaturov.

General Introduction

11

establishing what the law is in a particular case. Can this be considered as a scientific investigation, a search for what really is or exists, for the truth? In the past this question was often answered affirmatively. Even when the highest court of the land had decided otherwise, scholars would argue that the judges had misinterpreted the law, that they had not ‘found’ the law, that the actual, the real law was different. I suppose that few lawyers subscribe to this view any longer, if only because it is quite impractical. But because it is often unclear what the highest court will decide in a particular case in future, lawyers still argue as if the law were something that existed outside the minds of the judges. This way of arguing may help in persuading the courts that the solution put forward by the advocate is the correct one, that this is what the law commands, and that deciding otherwise would be wrong. It is nevertheless based on a metaphor. Nobody contests that scientific proof is the basis of natural sciences. Disciplines such as psychology or linguistics are also involved primarily in proving the existence or absence of certain things. In law, however, the most central ‘facts’, the existence or absence of a right or a duty cannot be proven, at least it has never been done; it can only be argued. It is safer therefore to proceed from the premise that law does not exist objectively, i.e. independently from, and outside human action.6 Law is constructed, different parts at different times. In Kievan times there were legal institutions which we could consider as part of the law of obligations, or of property, or of persons. There certainly was no law of intellectual property. The public/private dichotomy in law, so 6 A religious person might object that the same argument would lead to the denial of the existence of God, if one accepts the view that the existence of God cannot be proven scientifically, i.e. by experiment. The answer to that objection would be, in my view, that the knowledge of the existence of God may also have other foundations which do not contradict rationality. A proper scientist, who is also a believer, will be aware of the requirement that scientific knowledge must be based on scientific evidence. Can the same reasoning be applied to law? Law operates in the social sphere, it regulates human relationships. An individual may have non-scientific knowledge of what the law is in a particular case, but this knowledge is useless, because another person (against whom the rights or duties produced by this law would be exercized) may have entirely different nonscientific knowledge. Religion concerns primarily the individual’s relationship with (an existing or imagined) God and the views which other persons hold on this subject are not directly relevant. A person may engage in religious worship because he holds the not irrational, but scientifically unverifiable belief that God exists. A similar belief that the law is in a certain way, that it grants him a particular right, is an inadequate ground for action; it ultimately has to be tested in the courts.

12

chapter 1

fundamental nowadays and going back to Roman law, had not yet emerged in Kievan Russia. The same argument can be put differently and perhaps more clearly in the following way. People qualified in certain fields may make statements about the results of their investigations: “this solution contains cadmium”; “the Mongols took the city of Kiev in 1240”; “the language of the Linear B texts on Crete is a form of Old Greek”, etc. When other scientists check these results and the way they were arrived at, or conduct other investigations on their own, and all of them reach the same conclusion, we can assume that the statements concerned are true, in other words, reflect objectively existing things (including things that have existed in the past). Until of course somebody comes along and presents evidence which proves that the earlier conclusions were faulty. In law matters are different. If a qualified person (a competent lawyer, for instance) declares: “Mrs. Smith is the owner of this house”, we first want to know for whom this lawyer is speaking; is he or she Mrs. Smith’s lawyer, or the lawyer of the party who contests Mrs. Smith’s ownership, or an outside legal consultant, or is it the court to whom the dispute has been submitted? The authority of the scientist’s statement rests on his arguments, the authority of the lawyer’s statement on the lawyer’s status. If it is the deciding court speaking, then the statement is true, in a legal sense, not because it reflects something that already existed and this existence was revealed by the court, but because from the moment of the court’s decision a new legal situation arises, a new reality is created by the court. In legal terminology one would say that scientific statements are declaratory, they express, or conform to, what is there, while legal statements are constitutive (provided they have been made by somebody with the authority to make them), they themselves create a new (legal) reality. Law is the product of conscious human creation. This is directly obvious where law is the product of legislation (in the wide sense of rule creation by a competent authority) or of judicial decisions which create precedent. But also in the case of customary law there is a moment when an existing practice (which may also be a newly emerging practice) is recognized by the community concerned as legally binding. Precisely because law is the product of conscious human creation it cannot be found through scientific investigation: there is nothing there to be found. So-called scientific legal analysis consists in an imitation of the complex activities of the court in accumulating and weighing various factual data and considerations, along with interpretations of possibly applicable legal rules and constructions. The legal scholar may express his conclusions as a statement: this is the law, but this can only mean: this is what I think the court should decide.

General Introduction

13

In other disciplines, such as linguistics, psychology, history, and of course the natural sciences, there is an underlying reality which the scholar attempts to discover and reveal. It is implicit in the view on law as explained above that law is not, like language or social relationships, a necessary accompaniment of human society. At a certain stage of social development it began to be created. This is then also the point where legal history starts. As I have argued more at length elsewhere,7 one may distinguish three consecutive phases in the emergence of law: – the emergence of dispute settlement by a third party (which in time will involve fixed procedures for such settlement, its acceptance and enforcement, and the recognition of the validity of precedents in dispute settlement); – further elaboration of this complex (specialization and then professionalization of dispute settlement: courts, verbal fixation (oral or in writing) of procedural and substantive rules concerning such settlement, monopolization of rule enunciation by specific persons or agencies); – maturation of a legal system (a central authority for enunciating rules, which then proceeds to create new rules as well, and monopolizes rule enforcement). While law is still in statu nascendi in the first two phases, it is fully present in the third phase, which almost always coincides with the emergence of the state. At the beginning of this section the point was made that legal history, the history of law, requires some understanding of the concept of law itself. We have taken for granted that there exists indeed a general consensus about the meaning of “law” when we speak about the function of law in society, the way lawyers and courts are engaged in determining what the law is, the way law is different as an object of scholarly interest as compared to history, language, the psyche, etc. We have established that law in this generally accepted sense does not exist in the same way as those other objects, that it comes into being only at a particular moment in human history, as the result of conscious human creation. If law does not exist as an objective reality, independent from the human mind, then the question about reaching an understanding of the concept of law has in principle been answered by establishing that a general consensus about the meaning of “law” exists. We can only try to make this consensus as explicit as possible, by determining its scope. 7 In the chapter on “Law’s Beginnings and Early Law” in Law in Medieval Russia, Leiden/Boston, 2009, 1–32, at 4 and 27.

14

chapter 1

The Organization of This Work

An exposé of the present-day law of a particular state, of its legal system in other words, would consist of a discussion of certain general features of such a system and of the major component elements, the amount of detail being dependent of the time and space available. The legislation in force would constitute­the basic source of information, together with, and supplemented by decisions of courts; legal literature might offer additional information. The general outline of such a work can be regarded as pre-determined, its execution would depend on the skills of the author. The reach or scope of legal regulation in a modern state, what is covered by the legal system in other words, is therefore reasonably clear. Generally speaking, modern legal systems tend to expand and to cover areas of human behaviour that were previously unregulated, or more likely regulated by other normative systems, such as ethics, local or group custom, good manners, tradition, religious prescriptions, etc. But modern law can occasionally be seen to withdraw from certain areas; this may be done explicitly, but the usual procedure is that a particular legal rule is generally considered unacceptable or irrelevant and remains unobserved and unenforced. If it is then not replaced by another legal rule, the area it was supposed to cover is left to be regulated by non-legal rules. The progressive expansion of the scope of legal regulation is especially noticeable is one considers longer periods. From the point of view of a modern lawyer medieval law looks more like a sea of lawlessness with islands of legal regulation. The much more modest scope of medieval law can be explained in part by the greater simplicity of medieval society. Even in our own times we have seen the emergence of branches of law, such as computer law, that were not even imagined half a century ago. When we go back a thousand years the gap becomes vast. All sorts of human activities that are part of present-day life did not exist and were unknown then, and consequently the question of their regulation through law did not arise. But that is not the full story. We have argued above that legal regulation is also a matter of choice; a society, and specifically the powers that shape its law, may prefer for various reasons to leave certain questions unregulated by law. One does occasionally notice in medieval society the absence of law in areas where legislation would have been a realistic option. Family law is an obvious example. Tradition and custom resisted the intervention of a legislator. Only after Christianity had taken root, family relations became more juridicized and then the Church claimed and was assigned a central role in family law. This

General Introduction

15

­occurred in the Eastern church as well as in the Western church and this situation lasted for many centuries. Another reason why medieval law can be compared to a collection of islands may simply be the meagre supply of sources. As one goes back in time they become scarcer. This problem, which does not exist in the study of modern law, is very prominent in medieval legal history. It will be investigated in greater detail below, but must already be indicated at this stage, because it is of decisive importance in the organization of this book. Nothing or at least very little can be said about a branch of law when we do not have direct contemporary information at our disposal. To summarize the various considerations which lead to the selection of a particular approach: – we regard law as a specific type of regulation of human relations, characterized by certain procedures and institutions and the involvement of specific persons; – the scope of legal regulation was more limited in the middle ages and ­appeared to cover only certain areas of human relations; – the availability of sources is an independent factor in deciding how to ­approach the description of the law of a specific medieval society. These considerations then lead to the identification of the following areas of law which lend themselves to a coherent description: – Early Kievan Russia: tribal territories centred around a town; inter-tribal relations (the payment of tribute); – the prince as ruler in medieval Russia, including relations between princes; – the town as a legal locus, especially Novgorod and Pskov; – rural Russia: the use of land; local government; – the family: marriage, the status of women and children, inheritance; – the individual: status and capacity; obligations; – the Church, including the function of monasteries; – courts and justice. The idea behind this selection is that each of the areas mentioned represented a nucleus around which a set of interdependent legal rules and institutions coalesced. There are, to be sure, also multiple connections between the different areas. The prince, for instance, generally played a role in the administration of justice and in urban government; the Church was deeply involved

16

chapter 1

in family matters; monasteries in time emerged as important users of land, etc. Although I have been mindful of avoiding excessive repetition, a certain amount of it was deemed acceptable and useful, because a work such as the present is more like a course of lectures than like a legislative text (where repetition is undesirable and even dangerous). The reader should preferably not be sent scurrying around the book to collect bits of information before he can continue his reading. The areas identified appear as loci of law – places where we observe the presence of law, or in practical terms: places illuminated by the available sources. The law of a society different from our own, in this case of medieval Russia, is perceived not primarily through the conceptual instruments of our own time, but, insofar as possible, through the eyes of contemporaries. The method outlined above is not original or revolutionary; it had been adopted already by Sergeevich, who not only wrote a Russian legal history textbook organized along traditional lines (state law, criminal law, civil law, procedure), but also a three-volume work on the “ancient monuments of Russian law” (Drevnosti russkago prava, inspired by older German works on Rechtsaltertümer), which offered sections on territory and population, armed forces, the popular assembly (veche) and the prince, land use, and taxation.8

General History and History of Law

As noted in the section on “Periodization”, legal history has its own specific interests and topics, central among which is “the law” at a specific time and place, and what preceded and followed it. In the section on the “Definition of Law” we have contemplated the peculiarities of the concept of law, resulting in the conclusion that the law cannot be said to exist in the same way as the natural world or immaterial things, such as language. In the last analysis law comes into being, begins to exist, the moment a certain authority pronounces it, provided such a pronouncement is accepted by the audience to whom it is addressed. This peculiar nature of law lies at the root, in my view, of certain differences in attitude and approach between general and legal historians. The lawyer, on the basis of various considerations, decides what the law is or should be. These considerations may concern facts, but also ethical views and social or political 8 V.I. Sergeevich, Drevnosti russkago prava, Sankt-Peterburg, 1890 (i and ii), 1903 (iii) (first edition). In his other major work on legal history, the Lektsii i izsledovaniia po drevnei istorii russkago prava, Sergeevich stuck to the traditional format of state law, criminal law, civil law, and procedure.

General Introduction

17

desirabilities, etc. The effect of the lawyer’s decision depends on his/her status: the legislator decides what the law is going to be, the judge what the law is, other lawyers what they expect the law to be or what they would like it to be. The legal historian, who usually has a legal background, is therefore inclined to establish, to the best of his knowledge, what the law at a certain place in the past was. If the text of a law is available, this will normally be the prime and decisive source. But the occasional obscurity of old texts may necessitate the introduction of other materials. Once the content and meaning of the law (for a certain time and place) have been established, the investigation stops, until new materials or insights prompt a revision of the original view. The general historian will rather be drawn to create a continuous narrative. As the past is no longer in existence, it has to be reconstructed on the basis of an often vast reservoir of information, by selecting relevant items. This makes it usually worthwhile to look at similar attempts by predecessors. Among Russian historians there is a strong tradition of beginning any reasonably ambitious­investigation with an extensive survey of what previous authors have written. A legal historian on the other hand would rather argue, I suspect, in an adversarial manner, as in a law-suit: there are such and such arguments in favour of this view and such and such against. Then only the relevant authors and authorities have to be cited. During the Soviet era, legal history was neglected to the extent that legal scholars generally paid little attention to it. After the so-called Third Decree on the Courts of 20 July 1918, pre-revolutionary law had lost almost all legal relevance and by the same token its place in the legal curriculum.9 A general course on “History of state and law in the ussr” was all that remained, and more than half of that was usually devoted to developments after 1917. The history of Russian law remained a valid research topic for general historians; particularly, the law of the Kievan era and the subsequent period of the Muscovy tsardom enjoyed the lively interest of Soviet historiography. One obvious reason was that sufficient legal sources were available. Secondly, and more hypothetically, one might expect that scholars would often be inclined to turn their attention to more remote times during periods of political repression, such as the Stalin era.

9 At least that was the official position. When the new Soviet state felt the need to draft its own legislation in the principal traditional branches of the law (civil, criminal, procedural law, etc.), it had to use a generation of lawyers schooled in the old system. In this way considerable continuity between the law of Imperial Russia and the new Soviet law was maintained. In specific instances, direct recourse to the old law could not be avoided, e.g. in determining whether a person born before the Revolution was a citizen of the ussr.

18

chapter 1

Nobody would deny that Soviet medievalists have produced an enormous amount of often excellent material. The first generation consisted of historians who had been trained before the Revolution, people like M.N. Pokrovskii or A.E. Presniakov. The next generation began to publish before the Second World War and wrote their major works during the Stalin era. The central figure was B.D. Grekov, and others of equal stature were S.V. Iushkov, L.V. Cherepnin, M.N. Tikhomirov, V.V. Mavrodin and others. One might also include A.A. Zimin,­ although he was somewhat younger. The latter part of the Soviet era was dominated by the pupils of this Stalin generation who, with some notable exceptions, continued to work within the lines staked out by their teachers. Literature on medieval Russian law consists therefore for a very considerable part of works by Soviet historians. There are certain external characteristics which prevail and may irritate the non-Soviet reader: the obligatory references to Marx, Engels, Lenin and Stalin (the latter is no longer mentioned of course after 1957), a particular Soviet rhetorical style (some authors managed to avoid this), and especially the terminology based on Marxist-Leninist ideology. Concerning the last item, it is tolerable when it is merely a question of words. One easily gets used to the term “feudalism” in its very wide Marxist sense. Even in everyday parlance of Western countries “feudal” often means merely “very old-fashioned”. The real difficulty, however, lies in the philosophical basis of Marxist terminology. First of all, Marxist dialectical and historical materialism is regarded as a scientific doctrine and method, producing scientific truth. The truths so discovered are then used as the foundation for historical studies. The mind-set resulting from this procedure has proved to be more durable than actual Marxist ideology. Conceptual realism is still prevalent among Russian historians. By this I mean a philosophical realism, as opposed to nominalism or, to a lesser extent, conceptualism. Such realism holds that general ideas or concepts (universals) exist before, and independently from, their specific manifestations. This results in endless debates about whether a certain thing is a “state”, a “law”, a “town”, “feudal”, while the nominalist would only ask: “Shall I call this thing a state/a law/a town/feudal” and the conceptualist: “Does this thing conform to the concept I have of a state/a law/a town/feudalism”? Conceptual realism is almost ineradicable among lawyers, and as most legal historians started out as lawyers, it is also widespread in legal history. Most common is the approach where a modern legal concept is tacitly accepted as a timeless yardstick. The legal historian then may set out to investigate whether a particular institution (say, mortgage) ‘existed’ in some legal system in the past (say, Kievan Russia). The only modern major Russian study of medieval Russian legal history, written by legal historians, offers a perfect example of

General Introduction

19

the approach criticized above.10 The inherent defects of such an approach are much aggravated by the pervasive Marxist inspiration of the work. It appears that the general editor and several of the other contributors assumed uncritically that the full panoply of Marxist social concepts (“classes”, “class struggle”, “property relations”, “state”, “feudalism”, etc.) represented an unassailable scientific achievement, supplying the foundation for more detailed academic exercises.11 This part of the work, reading often as if it had been written half a century ago, seriously diminishes the overall value of the collection.

Medieval Law

Medieval law has been compared above to a collection of islands, an archipelago. Its character as a social phenomenon is sporadic, it occurs here and there. In certain places the network of social relations thickened and assumed a different form which allows us to speak of legal relationships. The evidence from the earliest law in many cultures suggests that this metamorphosis did not happen all at once, but at different times depending on the nature of the relationship involved.12 The first area to become ‘juridicized’ usually concerned injuries inflicted on a person belonging to a different social group. Before conflicts arising from such injuries were submitted to a legal process of resolution, blood feuds were the most common traditional way of handling them; the costliness and relative ineffectiveness of this procedure gave rise to the search for a more adequate way of conflict resolution. Once the instruments for legal solutions were in place (third party mediation with an appropriate procedure, however rudimentary, accepted by the conflicting parties), the advantage of submitting other conflicts soon became obvious (matters concerning property and property relationships). Family matters often remained outside the legal sphere for a longer time, because families usually already had adequate procedures for dealing with internal difficulties. This sporadic character of early medieval law creates a peculiar methodological problem. When the sources are still scarce, as is usually the case, and also susceptible to varying interpretations, it stands to reason to elucidate an obscure term or text by means of introducing external information. Medieval 10 Volumes i–iii of PRoP, with R.L. Khachaturov as general editor. 11 The introductory chapters of Vol.i, for instance, quote abundantly from Soviet works (without any fundamental criticism) and almost nothing from post-Soviet works (these texts were written by Khachaturov himself). 12 See also F. Feldbrugge (ed.), The Law’s Beginnings, Leiden, 2003.

20

chapter 1

legal institutions, as argued, grew out of pre-legal arrangements. When we know more about the latter it is often possible to sketch the socio-economic and intellectual background of the few isolated bits of legal information and this may allow us to draw a more complete picture of the legal situation. I would contend that it is almost impossible to present an adequate general picture of a medieval legal system without resorting to the use of some kind of pre-conceived understanding of the society involved. This is the normal way the acquisition of knowledge and insight is achieved. When we are faced with an unknown phenomenon we attempt to interpret it within the framework of the knowledge we already have. Two dangers are obvious. We may pay insufficient attention to, or even disregard, aspects of the new phenomenon which do not fit our interpretative framework. The second danger is more insidious. Even where everything fits the framework, it still remains hypothetical itself. Scholars writing on Kievan Russia and its law inevitably start from some kind of general image of Kievan Russia. If the legal data are scarce, as they are for the era concerned, it is tempting to paint a picture in which too many details are filled in, on the basis of a general image which is unjustifiably detailed. This is what often happened in pre-revolutionary studies and, in a different and very specific way, in Soviet times. For Soviet scholars Marxism-Leninism represented a comprehensive scientific (and obligatory) view of the world, history and society. The general image of Kievan Russia was to a considerable extent incontestably fixed by this ideological approach. A modern Russian historian, P.V. Lukin, has criticized the prevalent approach of earlier Russian and Soviet authors for what he termed its apriorism.13 What he had in mind was more or less the same as what we have tried to indicate above. Lukin then called for a return to the sources. No matter how much one may agree with Lukin’s concern, it still does not take away the dilemma. A certain amount of conjecture is unavoidable if one does not want to stop at the mere reproduction of the statements made by the sources, but instead attempt to fit these into a meaningful context. A peculiar problem of medieval law, and in fact of most non-modern law, lies in the identification of sources. In almost all contemporary legal systems it is prima facie clear where the law is to be found: in official publications of legislative and other normative materials, in publications of court decisions, etc. The relative strength of these various sources of law, their hierarchy, is, 13

In a study on the Old-Russian popular assembly, the veche; see P.V. Lukin, “Veche: sotsial’nyi sostav”, A.A. Gorskii, V.A. Kuchkin (eds.), Drevniaia Rus’. Ocherki politicheskogo i sotsial’nogo stroia, Moskva, 2008, 33–147, at 35–38.

General Introduction

21

generally, also clear. Moreover, the entire volume of the law operative at a certain moment is at least theoretically available; a well-equipped lawyer can be reasonably certain that there are no pertinent legal provisions outside what is at his disposal. These conditions do not apply when we study medieval law. This problem will be discussed more amply in Chapter 2 (on Sources). Customary Law Another problem, inherent to medieval and pre-medieval law, is the matter of custom and customary law. The two constitute a continuum, but large areas of custom lack direct legal relevance (e.g. the way family members interrelate, or the way social events, such as funerals, are organized). Custom can become juridicized and be transformed into customary law when it is solidified into sufficiently clear rules, the enunciation and enforcement of which are entrusted to an external authority (elders, judges, priests, etc.). Once such customary law comes into being, it can itself be transformed, because the enunciating authority often acquires the power to create new solutions.14 Such law creation represents the transition from unwritten customary law to written legislation. The earliest version of the Russkaia Pravda (discussed in Chapter 4) is an example in this category. Our knowledge and understanding of medieval law are based mainly on written sources (see Chapter 2). As these sources are silent about many legal aspects of life, such aspects were presumably covered by customary law. What we know about such law is what can be inferred from the often limited information provided by the written sources. The inevitable conclusion is that the legal aspects of large areas of life in the middle ages remain therefore almost invisible to the legal historian. Before 1917, the question of customary law in the Russian middle ages was treated quite extensively by Sergeevich in his Lektsii.15 After a long theoretical argument, based mainly on 19th century German authors, he also discussed the role of customary law in the different periods, up to the Muscovy state. His observations concerning Russian terminology are still valuable. He pointed out that zakon (nowadays “statute”) and pokon referred to customary law in the early sources, such as the 10th-century treaties with the Greeks. Later on, other terms were used, such as poshlina (e.g. in the Pskov Court Charter) and, less frequently, starina (“what was common in the past”). Vladimirskii-Budanov is 14

This is one of the main themes in F. Feldbrugge (ed.), The Law’s Beginnings, Leiden/Boston, 2003; see especially my concluding chapter “Law’s Beginnings” (255–280), at 277–280. 15 Sergeevich, Lektsii, 5–25.

22

chapter 1

more concise, but has an interesting paragraph on Russian legal proverbs, as a reflection of customary law.16 The attitude of Soviet jurisprudence towards modern customary law was generally negative, although its existence in medieval law could not be denied. Most authors just mentioned it cursorily. M.B. Sverdlov devoted an informed paper to it, in which he attempted to fit customary law in the Kievan era into a Marxist framework.17 In post-Soviet times a notable contribution was made by Iu.G. Alekseev in his monograph on the Code of Ivan iii of 1497.18 Numerous examples demonstrating the existence, as well as the poor visibility of customary law in the middle ages could be given; to present just one: there was a category of persons called polovniki in Northern Russia in the 14th and 15th centuries. They are mentioned frequently in various types of charters19 and they obviously represented an established institution. They were not unlike Western sharecroppers: poor and landless peasants who were provided with a plot of arable land for which they were obliged to turn over half the harvest to the landowner. The only rule about them that could be viewed as regulating their status is a reference in a treaty of 1304–1305 between Novgorod and the grand prince of Tver’, in which the courts of the grand prince were forbidden to judge (Novgorod) slaves and polovniki without the participation of their masters (owners).20 Beyond this incidental rule, there must have been quite a body of rules of customary law regulating the status of such an established category of peasants. A comparable but better-situated category (the izorniki), which apparently existed only in Pskov, received considerable attention in the Court Charter of Pskov (see Chapter 8, on Town and Provincial Charters). See also the sections on dependent peasants in Chapter 18 (on Rural Russia). Only in more recent times does the greater availability of sources allow a more detailed description of customary law.21

16 Vlad.-Bud., Obzor, 108–111 (in the chapter on sources of law and legislation). 17 M.B. Sverdlov, “Pravovoi obychai i zakon v formirovanii sistemy feodal’nogo prava v Kievskoi Rusi”, dg sssr 1987, Moskva, 1989, 19–26. See also K.V. Petrov, “Sootnoshenie obychnogo prava i zakona v russkoi sudebnoi praktike xvi–xvii vv.”, Sovetskoe Gosudarstvo i Pravo, 2007, No.7, 80–83. 18 See especially the chapter “Princely legislation and customary law” in his Sudebnik Ivana iii. Traditsiia i reforma, Sankt-Peterburg, 2001, 77–101. 19 Many examples in the three volumes of asei. 20 gvnp No.7, 16–18. 21 See e.g. V.A. Aleksandrov, Obychnoe pravo krepostnoi derevni Rossii, xviii – nachalo xix v., Moskva, 1984.

General Introduction



23

An Outline of the ‘Constitutional’ History of Russia During the Era of the Independent Principalities

While Chapters 2–11 of this work are concerned with the sources of medieval Russian law, Chapters 12–22 deal with various aspects of the substantive law of the period concerned. An orderly exposition of the substantive law requires an outline of the general historical background. There are many good and adequate general histories, in several languages, dealing with the period of medieval Russia, so we need not engage in unnecessary duplication here. But there is one topic, close to general historiography, which overhangs many more specific discussions of medieval Russian law: what in Russian medievistic discourse is referred to as gosudarstvennost’ (“statehood”). The question of the Russian ‘state’, its origins, its nature, has intrigued generations of Russian historians. For legal historians the question has an additional interest, because nobody would deny that state and law are intimately related concepts. During the Soviet era, the ready answers supplied by Marxism-Leninism precluded a serious debate, but the question retained its importance and was accordingly allowed a prominent place in discussions of medieval Russian law. The Kievan realm which arose in the course of the 9th and 10th centuries under the pagan ancestors of the first Christian ruler, St. Vladimir, was recognized as a state, although there was no consensus concerning its nature in the sense of historical materialism. Some accepted the existence of large-scale landowning at an early stage, which would allow the identification of the Kievan state as feudal. Others noted that there was no serious evidence of such socio-­ economic developments and this would inevitably lead to a view of the Kievan realm as a state based primarily on slave-owning (see also Chapter 12, “Setting the Stage”, the section on the “Feudalism debate”). Non-Marxist scholars are free to neglect Marxist categories and with most of them the question of the state in early Russian history is not primarily about the nature of the Kievan realm but concerns, for instance, the moment one can begin to speak of the existence of a state in Russia. As has been argued above, the answer to such a question depends largely on the particular concept of the state, as subscribed to by an individual scholar.22

22

A wide-ranging modern survey of the question of Old-Russian statehood has been published by the Ukrainian historian N.F. Kotliar, Drevnerusskaia gosudarstvennost’. Nauchnopopuliarnoe izdanie, Sankt-Peterburg, 1998. A Ukrainian version of this work appeared a few years later: M.[!]F. Kotliar, Istoriia davn’orus’koi derzhavnosti. Naukove vydannia, Kyiv, 2002; the differences between the two editions are minuscule, notwithstanding the titles.

24

chapter 1

A more intriguing problem from the point of view of general as well as legal history is probably the question of the Russian state during the so-called period of the independent and/or apanage principalities. While many related topics are more conveniently treated in other sections of this work, this question is best addressed here. In Chapter 13 on the Prince, in the sections dealing with princely succession, the fundamental importance of the ruling house or, in other words, the descent from a common ancestor, has been underlined. Although the Russian dynasty derived its name from its oldest known ancestor, Rurik (Riurik, a name given very occasionally to male descendants), this Viking warlord was eclipsed completely by his great-grandson Vladimir, the first Christian ruler over all Eastern Slavs. Descent from the most glorious and prestigious ruler constituted the essential legitimizing factor for the monopoly to claim a right to rule in Russia during the following centuries. St. Vladimir’s Kievan Rus’ possessed all attributes one might require of a medieval state. What was the fate of this state under his successors? The narrative of the Primary Chronicle, which understandably paid close attention to succession disputes among princes, allows a more detailed analysis of the consequences of the ruling house or common ancestor concept. It resulted, at least initially, in the absence of the substitution and primogeniture principles, which meant that grandsons did not step into the shoes of their fathers (if the latter had predeceased the grandfather), and that the deceased father’s estate was not assigned to his eldest son but divided among his surviving sons. This traditional system of succession was maintained during the first generations after St. Vladimir. He assigned his sons to rule as his lieutenants in the principal cities, and this implied an informal hierarchy among these cities (and the territories belonging to them). The most important places would be allotted to the more senior sons. After Vladimir’s death this system continued to be applied and the death of the Kievan grand prince would entail the surviving princes moving up the ladder one place, the most senior one occupying the Kievan throne. Once the number of Rurikid princes grew large, this system became untenable. Vladimir’s son Iaroslav the Wise could assume the sovereignty over the entire country only in 1035, upon the death of his last surviving brother Mstislav.23 He assigned seats to his sons in the usual way and appointed his eldest son Iziaslav as grand prince of Kiev on his deathbed in 1054. His last will

23

Another modern treatment is by Iu.N. Krivosheev, Russkaia srednevekovaia gosudarstvennost’, Sankt-Peterburg, 2008. He became the samovlastets of the entire Russian land, in the words of the Chronicle.

General Introduction

25

indicated­that the Kievan grand princely dignity continued to constitute the position of supreme rank, as well as of supreme power.24 But the increased powers of other ruling princes found expression in their practice of appointing their own sons as subordinate princes in various regions of their principalities. This was a first modification of the original system. One generation later, in 1097, six leading princes (great-grandsons and other descendants of St. Vladimir) met in Liubech and formally agreed that every one of them would retain his own principality (and leave it to his sons). Sviatopolk Iziaslavich, the grand prince of Kiev at the time, was one of the princes present, but the Chronicle does not mention any special position reserved for him. This decision broke the original unity of the country under the Kievan grand prince and can be regarded as the beginning of the era of the independent principalities. Within these principalities, ruled by princes who would recognize the supreme rank, but not any supreme power of the Kievan grand prince, the old system of appointing sons (or younger brothers) as apanage princes, to rule over specific territories, persevered.25 By “independent principalities” we mean those major units of the old Kievan realm that considered themselves as more or less independent states; the rulers of such principalities would then appoint subordinate princes to rule over what we designate as “apanage principalities”. Russian sources often use udel’nye kniazhestva to refer to both categories. The difference is admittedly gradual; independent principalities all started out as apanage principalities and also an apanage principality could transform itself into an independent principality, given time, luck, and an adroit ruler. It should be stressed that this is only a rough sketch. The actual transition from a more or less unitary state ruled by the grand prince of Kiev to an amalgam of small and mostly independent principalities was a process which moved forward in a haphazard fashion. One of the six Liubech princes, the energetic and competent Vladimir Monomakh, had still observed the old custom when his father, the Kievan grand prince Vsevolod (last surviving son of Iaroslav the Wise) died in 1093, by allowing his more senior first cousin Sviatoslav (the son of Iziaslav) to ascend the Kiev throne. He had to wait until 1113 to succeed in Kiev upon the death of Sviatoslav. In the following twelve years of his reign Monomakh succeeded in restoring much of the ancient power and prestige of the Kievan seat. 24 25

“The throne of Kiev I bequeath to my eldest son, your brother Iziaslav. Heed him as you have heeded me, that he may take my place among you”, in the words of the Chronicle. The last person to be granted an apanage principality was Ivan iv Groznyi’s son Dmitrii, who was granted the principality of Uglich at birth in 1582, see V.V. Boguslavskii, Riurikovichi i Rus’, Moskva, 2009, (s.v. Dmitrii Ivanovich), or in 1584, ibidem, (s.v. Uglich).

26

chapter 1

Nevertheless, the decision of the Liubech assembly was a major step in replacing the ‘musical chairs’-system of assigning seats to princes, as it had operated during the reigns of St. Vladimir and Iaroslav the Wise, by the ‘patrimony’ (otchina) system, in which the right to rule over a certain territory was considered the patrimony of a prince, the core of his estate to be inherited by his sons. In the course of the 12th and 13th centuries the network of independent principalities developed further, as some of them tended to fragment even more. The ultimate consequence of this process would have been the emergence of a vast number of tiny principalities, often not much larger than the estate of the average noble landowner.26 Although this situation did occasionally arise, it was usually prevented by the introduction of primogeniture – leaving­ the entire principality to the eldest son. The increased strengthening of the position of the eldest son is very much noticeable in the succession of wills of the grand princes of Moscow (see the section on princely wills in Chapter 13). Under the old (‘musical chairs’) succession system a prince might be the ruler of a successive string of principalities, moving gradually closer to the throne of Kiev. This implied a certain hierarchy among the available princely seats, the most senior and powerful princes occupying the seats of Chernigov, Novgorod, Smolensk, Pereiaslavl’, and others, ranking just below Kiev itself. It was precisely these principalities which then in the following period appeared as the main components of the political conglomerate into which the Kievan empire was transformed; in other words, the sum of the territories of this dozen of principalities was about equal to the territory of the empire of Iaroslav the Wise. The territories involved were Kiev, Chernigov, Novgorod, Pereiaslavl’, Smolensk, Galicia and Volynia, Turov-Pinsk, Riazan’ and Murom, Rostov-Suzdal’-Vladimir, and Polotsk.27 Before taking a closer look at the political histories of these territories, two preliminary remarks must be made. The first one concerns the sudden break in Russia’s constitutional history and internal organization caused by the Mongol invasion in the years ­1237–1240. We shall return to the effects of Mongol supremacy later on. The second remark concerns the more gradual developments in the West of Russia, 26 27

According to Boguslavskii, op.cit., 375 (s.v. Udel’nye kniazhestva), there were about 120 apanage principalities (udel’nye kniazhestva) in Russia. V.A. Kuchkin, in Formirovanie gosudarstvennoi territorii Severo-Vostochnoi Rusi v x–xiv vv. (Moskva, 1984), discusses the development of the various principalities in North-Eastern Russia which ultimately were united in the grand principality of Moscow or Muscovy: Rostov, Suzdal’, Vladimir, Tver’, Nizhnii Novgorod, and the smaller principalities of Iur’ev, Dmitrov, Galich, Starodub, Uglich, Iaroslavl’, Mologa and Belozero.

General Introduction

27

where the rise of the power of the Lithuanian grand principality (later on in personal union with the kingdom of Poland) affected the fate of the westernmost Russian principalities for several centuries. Pólotsk Among the principalities mentioned, Pólotsk occupied an exceptional place (it occupied roughly the territory of the ancient Slav tribe of the Polotians or Polochane28 and of present-day Belarus). It had been conquered by St. Vladimir­in his pagan days, when he killed the local Viking prince Rognvald and married his daughter Rogneda. Iziaslav, Rogneda’s eldest son by Vladimir, was given Polotsk as his apanage principality, which indicated the high rank enjoyed by the place. But Iziaslav died in 1001, long before his father St. Vladimir. At the death of the latter in 1015, Iziaslav’s surviving son Briachislav (and St. Vladimir’s eldest and most senior grandson), was therefore excluded from the succession, in accordance with dynastic custom. Briachislav nevertheless inherited Polotsk and successfully asserted its independence in 1021 in a short war with his uncle Iaroslav the Wise, the Kievan grand prince. Briachislav’s son Vseslav even attempted to extend his rule beyond the principality of Polotsk, but was captured and imprisoned by his uncles and cousins in 1067 in Kiev. During an uprising of the Kievan town population in 1068 against grand prince Iziaslav, Vseslav was freed and put on the Kievan throne. It lasted only one year and he ended his days as prince of Polotsk in 1101. His long reign (1044–1101) also constituted the apex of Polotsk’s glory as an independent principality. Under Vseslav’s sons and further descendants fragmentation29 set in and by the middle of the 13th century parts of the principality had been annexed by Smolensk and the Livonian Order, and the rest by Lithuania. Polotsk generally played a marginal role among the medieval Russian principalities, partly because of its relative remoteness, but mostly because its dynasty was not considered fully equal to the other ruling dynasties; the Polotsk princes were Rurikids, but did not descend, as all the others did, from Iaroslav the Wise, but from his brother Iziaslav. Also, the Polotsk veche was often of greater importance than whoever happened to be the prince.30 28 29 30

They are also regarded as a division of the much larger tribal complex of the Krivichi. Principalities of Minsk, Vitebsk, Drutsk, Strezhev, Logozhsk, and others. See also A.V. Rukavishnikov, “Nekotorye voprosy istorii polotskoi zemli domongol’skogo perioda”, D.M. Volodikhin (ed.), Russkoe Srednevekov’e. Istochniki. 2000–2001 gody, Moskva, 2002, 40–69; L.V. Alekseev, “Polotskaia zemlia”, L.G. Beskrovnyi (ed.), Drevnerusskie kniazhestva x–xiii vv., Moskva, 1975, 202–239; M.V. Dovnar-Zapol’skii, Ocherk istorii krivichskoi i dregovichskoi zemel’ do kontsa xii stoletiia, Kiev, 1891 (1st ed.), repr. 2nd ed.,

28

chapter 1

In 1772 Polotsk was re-incorporated into the Russian Empire. Very few direct sources for the law of the independent principality of Polotsk have survived.31 For some additional detail, see Chapter 17 on Western Russia. Smolensk The principality of Smolensk derived its name from the old tribal centre of the Krivichi.32 During the first generations after St. Vladimir, Smolensk was ruled by a succession of younger Rurikid princes. The Smolensk sub-dynasty was founded by Rostislav (†1168), a younger son of the Kievan grand prince Mstislav the Great (the successor of Vladimir Monomakh). Rostislav himself acquired the Kievan throne after the death of his older brother Iziaslav in 1154. Smolensk remained in the hands of Rostislav’s descendants for the next century, its rule being passed on in the usual way according to clan seniority. During this period the Smolensk princes played a prominent role in the Russian commonwealth, a number of them also served as grand princes of Kiev. This allowed them to assume the title of grand prince of Smolensk (the first one to do so was Rostislav’s eldest son Roman, in 1169). Grand prince Fedor Chernyi (“the Black”) of Smolensk († 1299) also acquired the principality of Iaroslavl’ by marriage and his descendants constituted a sub-dynasty of the princes of Smolensk until Iaroslavl’ was absorbed by the principality of Moscow during the second half of the 14th century. Smolensk itself had gradually been drawn into the sphere of influence of the Lithuanian grand principality during the same period and was finally incorporated into that state in 1404. Polish-Lithuanian rule lasted until 1654 when Russian troops took Smolensk and rule over Smolensk was ceded to Russia in the Andrusovo peace treaty of 1667. The legislative remains of the era of Smolensk independence are not numerous, but they are of great interest and have been discussed in Chapters 4, on

31

32

Moskva, 2011, and A.Iu.Dvornichenko, Gorodskaia obshchina Verkhnego Podneprov’ia i Podvin’ia v xi–xv vv., Moskva, 2013. There are two charters (from 1263 and c.1265) in A.L. Khoroshkevich (ed.), Polotskie gramoty xiii – nachala xvi vv., Moskva, 1977 (i), 1978 (ii). The following four volumes of this work have not been avaliable to me. References to older publications of Polotsk treaties in S.M. Kashtanov, Iz istorii russkogo srednevekovogo istochnika. Akty x–xvi vv., Moskva, 1996, 65–66. The present province (oblast’) of Smolensk covers most of the old principality. See V.V. Sedov, “Smolenskaia zemlia”, L.G. Beskrovnyi (ed.), Drevnerusskie kniazhestva x–xiii vv., Moskva, 1975, 240–259. See also A.Iu. Dvornichenko, Gorodskaia obshchina Verkhnego Podneprov’ia i Podvin’ia v xi–xv vv., Moskva, 2013 and M.V. Dovnar-Zapol’skii, Ocherk istorii krivichskoi i dregovichskoi zemel’ do kontsa xii stoletiia, Kiev, 1891 (1st ed.), repr. 2nd ed., Moskva, 2011.

General Introduction

29

Princely Statutes (“The Smolensk Charters of Rostislav Mstislavich and bishop Manuil”), and 6, on Treaties (“The 1229 Treaty Between Smolensk and Riga and the Gothic Coast”, also known as the Smolensk Pravda, and “The Treaty Between the ‘Unknown Prince’ of Smolensk and Riga and the Gothic Coast”). Galicia, Volynia See Chapter 17, on Western Russia. Novgorod See Chapter 16, on Novgorod and Pskov. Chernígov The Chernígov principality bordered in the North on the principality of Smolensk, in the West and South-West on the principality of Kiev, in the South on the principality of Pereiaslavl’, and in the East on the principality of Riazan’. It covered the tribal area of the Severiane and the Viatichi, and in the South also some of the tribal area of the Poliane. Chernigov was one of the oldest towns of Kievan Russia and the surrounding principality one of the major components of the early Kievan empire. In the earliest generations after St. Vladimir Chernigov was usually assigned to one of the more senior princes, and several of them, such as Vladimir Monomakh, moved up from Chernigov to Kiev as grand prince.33 The Chernigov sub-dynasty started with Oleg Sviatoslavich († 1115), the son of one of the three sons of Iaroslav the Wise who served as grand princes of Kiev. All through the 12th century the Ol’govichi, as Oleg’s descendants were commonly referred to, were among the major players in the incessant dynastic squabbles within the Rurikid dynasty, and the Chernigov principality was the strongest among the Russian principalities. No less than 10 Chernigov Ol’govichi occupied the Kiev throne during the 12th and 13th centuries. After the ruling Kiev grand prince had been removed by an alliance of other princes in 1169, the ruling Chernigov prince assumed the title of grand prince. The principality of Chernigov, located at the vulnerable south-eastern side of the Russian land, suffered fatally from the Mongol invasion. The town itself was razed by the Mongols in 1239 and prince Mikhail Vsevolodovich was killed in the Mongol headquarters in 1246. His son Roman moved his capital to Briansk and for a time the dynasty continued as grand princes of Briansk, but soon the principality fell apart. The Briansk principality was taken over by the 33

See A.K. Zaitsev, “Chernigovskoe kniazhestvo”, L.G. Beskrovnyi (ed.), Drevnerusskie kniazhestva x–xiii vv., Moskva, 1975, 57–117.

30

chapter 1

Lithuanians in 1356 and only in the beginning of the 16th century most of the former Chernigov territory was repossessed by Ivan iii of Moscow. Within the Chernigov principality the principality of Novgorod-Seversk constituted a separate unit, ruled by its own princes from an Ol’govichi sub-dynasty. No specific monuments of Chernigov law survive. Turov-Pinsk The principality of Turov and Pinsk covered most of the tribal area of the Dregovichi, to the North-West of Kiev, in the southern part of present-day Belarus.­Its princes were descendants of Iziaslav, the eldest surviving son of Iaroslav the Wise. Iziaslav’s eldest son Iaropolk († 1087) was the first person recorded as prince of Turov. The principality continued to be ruled by descendants of Iziaslav’s brother Sviatopolk (grand prince of Kiev, † 1113) until it was split up into separate principalities of Turov and Pinsk (and later on also others)­by the end of the 12th century. In the 13th century it came under the control of the princes of Galicia (Vladimir-Volynsk) and in the beginning of the 14th century the grand principality of Lithuania absorbed it. A branch of the princes of Pinsk survived as Polish-Lithuanian princes. Pereiaslavl’ The Pereiaslavl’ principality was the eastern neighbour of the Kievan principality; its capital was Pereiaslavl’ (Pereiaslavl’-Iuzhnyi, not to be confused with Pereiaslavl’-Zalesskii, founded in 1152 by Iurii Dolgorukii and the capital of an apanage principality of Suzdal’ from 1175 to 1302, when it was absorbed by the principality of Moscow). The old Pereiaslavl’ principality, which constituted the most exposed southeastern bulwark of the Kievan empire against the steppe nomads, was ruled by younger sons of the Kievan grand prince during the first generations after St. Vladimir.34 The seat was much contested, but in the end it remained with the descendants of Iurii Dolgorukii until 1239 when the principality was overrun and destroyed by the Mongols and did not survive. Murom-Riazan’ The region of Murom derived its name from the local Finnish (Mordvinian) population. The same holds probably true for the Riazan’ region, to the south of Murom, where the original dwellers were Mordvinian Erzia and Meshchera

34

See M.P. Kuchera, “Pereiaslavskoe kniazhestvo”, L.G. Beskrovnyi (ed.), Drevnerusskie kniazhestva x–xiii vv., Moskva, 1975, 118–143.

General Introduction

31

tribes. Slavic elements, mostly Viatichi, began to penetrate in the early Kievan period. Murom was already under Russian control by the time of St. Vladimir, because his son St. Gleb is mentioned as apanage prince of Murom. This is one of the few instances of Murom being referred to in the Primary Chronicle. Riazan’ is mentioned only twice, in passing. Together the two regions constituted the easternmost end of the Kievan empire. Originally they seem to have formed part of the Chernigov principality. The ancestor of the Chernigov sub-dynasty was Sviatoslav († 1076), one of the three senior sons of Iaroslav the Wise. Apart from his better-known sons Davyd and Oleg, belonging to the leading caucus of Rurikid princes at their time, there was also a youngest son Iaroslav († 1129), who was prince of Murom (then also including Riazan’) and the ancestor of the princes of Murom and Riazan’. Iaroslav’s sons Sviatoslav and Rostislav became princes or Murom and Riazan’, respectively. Murom and Riazan’, together with Chernigov, constituted the exposed south-eastern border of Russia and bore the brunt of the Mongol onslaught in the middle of the 13th century. Murom did not recover sufficiently and continued as a principality dependent on its more powerful neighbours until it was swallowed up by Moscow in 1392. The principality of Riazan’ fared much better. After a long struggle with Vsevolod “Big Nest”, grand prince of Vladimir, the princes of Riazan’ succeeded in asserting their independence upon the death of the latter in 1212 and adopted the title of grand prince.35 Riazan’ was taken and destroyed by the Mongols in 1239 and it took decades to restore the damage done. With the ascent of the Vladimir-Moscow grand princes, Riazan’ was in a similar situation as Tver’ and Novgorod in that its independence had to rely on adroit management of relations with more powerful neighbours, which for Riazan’ meant Moscow and the Tatars. The high point was the long reign of Oleg Ivanovich (1351–1401). With the waning of Tatar power Riazan’ gradually slipped into the hold of Moscow, although it maintained its formal independence longer than any other Russian principality. The last grand prince of Riazan’, Ivan Ivanovich, was deposed in 1520 and Riazan’ was annexed by Moscow the following year. A number of treaties where Riazan’ was a party is extant, as well as various charters, but otherwise no Riazan’ legislation has survived, although there are indications that such legislation existed. See below, the sub-section on Riazan’  law. 35

On the history of the Riazan’ grand principality, see A.E. Presniakov, Obrazovanie Velikorusskogo gosudarstva, Moskva, 1998 (orig. Petrograd, 1918), Ch. vi, 157–176 (1988 edition).

32

chapter 1

Kiev The Kievan principality was the nucleus around which the Kievan empire was constructed. Its prince was the grand prince par excellence and its territory (the old tribal territory of the Poliane and Drevliane) constituted the home base of the grand prince himself. But as the supremacy of Kiev waned, especially after the princes’ assembly at Liubech in 1097, the Kiev principality slipped into a place of equality with the other major principalities, be it that the reign of the Kiev principality, with the grand princely title attached to it, conferred additional prestige on the incumbent prince.36 The old prominence of Kiev was revived for a while during the reign of Vladimir Monomakh (1112–1125) and his sons Mstislav the Great (1125–1132) and Iaropolk (1132–1139) but after the death of the latter the Kievan throne was occupied in quick succession by competing princes from different branches of the Rurikid dynasty. Kiev’s decline was demonstrated blatantly when an alliance of Russian princes under the leadership of Andrei Bogoliubskii, grand prince of Vladimir, took and sacked the city in 1169. Andrei Bogoliubskii then set up his younger brother Gleb as grand prince in Kiev. In the following decades Kiev recovered to some extent, but after it had been destroyed by the army of the Mongolian khan Baty in 1240 no more grand princes presented themselves to claim the throne of Kiev. The Kievan principality fell apart into smaller principalities and in 1362 it was incorporated into the Lithuanian empire. Rostov-Suzdal’-Vladimir The wedge formed by the rivers Volga and Oka, with Nizhnii Novgorod at the confluence, and populated by Finnish Meria during the pre-Slavic era, was penetrated from the West by Slavic (Slovenians) and Slavicized Finnish tribes in the course of the 9th century. Until the middle of the 12th century the Rostov region was separated from the major principalities of Kiev and Chernigov by the land of the Viatichi, a tribe that resisted Christianization for a long time. In his Testament, Vladimir Monomakh relates how he travelled from Kiev to Rostov as a young prince through the land of the Viatichi, apparently a heroic feat (probably in 1074). Rostov (also called Rostov Velikii – the Great), located north of Moscow in the Upper Volga basin, was one of the oldest Russian cities. The first Rostov prince mentioned in the Chronicle is St. Boris in 1010, son of St. Vladimir. During the first generations after St. Vladimir, rule over the Rostov territory (principality) was passed around in the traditional way among 36

See P.P. Tolochko, “Kievskaia zemlia”, L.G. Beskrovnyi (ed.), Drevnerusskie kniazhestva x­ –xiii vv., Moskva, 1975, 5–56.

General Introduction

33

the younger sons of the Kievan grand prince. In the hierarchy of principalities, Rostov was somewhere in the middle, not as prestigious as Chernigov or Novgorod. Through Iaroslav the Wise’s youngest surviving son, Vsevolod († 1093), it came to the latter’s son Vladimir Monomakh, and then to one of his younger sons, Iurii Dolgorukii. All three of these princes made their way up to the Kievan throne. The Rostov-Suzdal’ area, a backwater in early Kievan times, assigned to younger members of the dynasty, eventually turned out to be the nucleus from which the principality of Vladimir, later on the grand principality of Moscow-Vladimir, grew.37 Iurii Dolgorukii (1091–1157) was a key figure in the history of the principality. His father assigned Rostov to him at an early age and after the death of his father in 1125 he moved his capital to Suzdal’ (the Rostov-Suzdal’ principality as it was called for some time). He actively promoted the building of new towns (including Moscow, in 1147). He also campaigned for many years to acquire territories and influence in Southern Russia (hence his nickname “Long Arm”) and especially the Kievan throne. Twice he was briefly successful in Kiev (in 1149 and 1154), but evicted again. In 1155 he finally took Kiev again to stay there until his death in 1157 (by poison). Iurii Dolgorukii was succeeded by his eldest surviving son Andrei (named Bogoliubskii, after his favourite residence in the village of Bogoliubovo, near Vladimir). Andrei had originally received Vladimir as an apanage principality from his father and upon the death of the latter he was invited by the magnates of the Rostov-Suzdal’ principality to take over the reign, bypassing Iurii Dolgorukii’s direction to leave the principality to his younger sons Mikhail and Vsevolod (the one who became known as “Big Nest”). Unlike his father, Andrei Bogoliubskii directed his ambitions primarily to extending his influence in the northern half of the Kievan realm. He became the most prominent and powerful prince in that region and headed a coalition of princes which evicted the resident prince Roman Mstislavich38 in Kiev in 1169 (as related above in the section on Kiev). A campaign in 1170 to ­subdue

37

38

Cf. the section on “The Colonization of the Suzdal’ Land” in Iu.V. Got’e, Ocherk istorii zemlevladeniia v Rossii, Moskva, 2003 (orig. Sergiev Posad, 1915), 41–44. A history of VladimirSuzdal’­­until the Mongol invasion is Iu.A. Limonov, Vladimiro-Suzdal’skaia Rus’, Leningrad, 1987. He was the son of Mstislav Iziaslavich, at that time the Kievan grand prince. Roman, who was born after 1160, had apparently been stationed in Kiev as his father’s lieutenant, although still a boy. This was common practice at the time. He went on to become prince of Galicia and Volynia and the founder of the local sub-dynasty.

34

chapter 1

Novgorod was less successful (see the historical section in Chapter 16, on Novgorod and Pskov). During his effective but ruthless reign Andrei Bogoliubskii had alienated many powerful parties. He was assassinated in 1174 by members of his own court. He is generally referred to as grand prince of Vladimir. According to some sources he adopted this title when he moved his capital to Vladimir in 1157; another possibility is that the capture of Kiev in 1169, where he had his younger brother Gleb installed as grand prince, was sufficient reason for Andrei not to be satisfied with the ordinary princely epithet. According to other sources only Andrei’s successor and younger brother Vsevolod began to be called grand prince of Vladimir from around 1180. In any case, the momentous geopolitical shift from South to North in Russian medieval history, initiated already under his father Iurii Dolgorukii, was carried through decisively during the reign of Andrei Bogoliubskii in Vladimir. The devastation of the southern plains by the Mongols and then by other nomads, beginning around 1240 and lasting for centuries, only strengthened a development which had set in much earlier. In the struggle between different princely lines for the succession of Andrei Bogoliubskii, a decisive role was played by the veche of Vladimir, which, although originally subordinate to the more senior towns of Rostov and Suzdal’, declared its independence in 1176.39 Andrei Bogoliubskii’s successor40 and younger brother, Vsevolod (1154–1212), was adorned with the nickname “Big Nest” (Bol’shoe Gnezdo) for good reason. There were six surviving sons when he died in 1212, three of whom became the founders of the sub-dynasties of the princes of Rostov, of Vladimir-Moscow, of Suzdal’-Nizhnii Novgorod, of Tver’, and of Starodub. Vsevolod further strengthened the position of the Vladimir grand prince as the dominant force in Northern Russia. His sons received the customary apanage principalities, but friction with his eldest son Konstantin resulted in the latter being assigned the old principality of Rostov (on his father’s death), while Vladimir (including the title of grand prince) was given to the second son Iurii. After the death of Vsevolod Big Nest, Konstantin managed to wrest control of Vladimir from Iurii, but when Konstantin himself died in 1218, Iurii took back the place his father had left him. The sons and further descendants of Konstantin remained in Rostov, adopting for themselves the title of grand prince of Rostov in the beginning of the 39 40

Cf. Limonov, op.cit., 117 ff. In fact, Andrei’s two surviving brothers, Mikhail and Vsevolod, succeeded, but Mikhail died in 1176.

General Introduction

35

14th century. The Rostov princes also followed the custom of making younger sons apanage princes and this led to the emergence of the principalities of Belozero (Belo Ozero) and Iaroslavl’. Towards the end of the 14th century the Rostov princes had to bow to the growing hegemony of the Vladimir-Moscow grand princes. The fragmentation of the principality made an effective stance against Moscow impossible and several Rostov princes sold off their parts to the Moscow grand prince. The last ones to do so were the cousins Vladimir Andreevich and Ivan Ivanovich in 1474. The principalities of Belozero and Iaroslavl’ lost their independence to Moscow and disappeared as such in 1389 and 1463 respectively. The acquisition of the Rostov, Belozero and Iaroslavl’ principalities were not the only examples of one of the major methods of the Moscow princes of enlarging their territory. In many cases such enlargement was effected by the exercise of military force, conquest in other words, or the imminent threat of such actions. But often enough weak and impoverished rulers of smaller territories could be persuaded to sell out to Moscow, usually by being offered estates. Such estates were normally connected with service duties and for the princes concerned an existence as a prince in the service of the Moscow grand prince would often be preferable to hanging on precariously as the ruler of a small principality.41 The rather insignificant principality of Starodub was the apanage of Vsevolod Big Nest’s youngest son Ivan. It remained in the hands of his descendants, but by the time it was incorporated in Muscovy at the beginning of the 15th century it had already for a long time lost its independence. To return to Vsevolod’s other sons: Iurii served as grand prince of Vladimir for twenty years and fell in the battle of Sit’ against the Mongols in 1238. His three sons had already perished in the same catastrophic year. Iurii was succeeded by his brother Iaroslav (1191–1246), from whom the houses of Moscow, Suzdal’ (Nizhnii Novgorod) and Tver’ descended through his sons Aleksandr (Moscow), Andrei (Nizhnii Novgorod-Suzdal’), and Iaroslav (Tver’). Andrei was grand prince of Vladimir from 1249 until 1252 when he had to yield to his older brother Aleksandr Nevskii.42 He then continued to rule as prince of Nizhnii Novgorod (as from 1256) and of Suzdal’ (as from 1259), until his death in 1264. His great-grandson Konstantin transferred his capital from Suzdal’ to Nizhnii Novgorod in 1350 and assumed the title of grand prince. Nizhnii 41 42

See K.A. Aver’ianov, Kupli Ivana Kality, Moskva, 2001. For an account of the complicated fraternal troubles, and that at a time of great crisis, shortly after the establishment of Mongol suzerainty, see J. Fennell, The Crisis of Medieval Russia, London/New York, 1983, 105–108.

36

chapter 1

Novgorod had grown into a flourishing commercial centre in the 14th century. After 1392 it became completely under the control of Moscow, although the princes of Nizhnii Novgorod continued until the middle of the 15th century.43 After 1238, when the capital of the Vladimir grand principality itself had been taken by the Mongols, the khan assumed suzerainty over the entire Russian­commonwealth and succession and appointment of princes were subject to the khan’s approval, by receiving his iarlyk (see the sections on Mongol-­ Tatar­ iarlyki in Chapter 11, on Gramoty, and on the impact of Mongol-Tatar rule in Chapter 10, on Foreign Laws). Iaroslav Vsevolodich, who had succeeded his brother Iurii, fallen in battle against the Mongols in 1238, was the first Vladimir grand prince who ruled under the khan’s auspices. He was poisoned in the Mongol headquarters at Karakorum in 1246. His brother Sviatoslav, prince of Iur’ev, succeeded him according to the traditional rules of seniority, but he was ousted in 1248 by his nephew Mikhail Khorobrit (“the Brave”, a younger brother of Aleksandr Nevskii and the abovementioned Andrei). Mikhail was killed in battle the same year and his brother Andrei then obtained the khan’s iarlyk to rule in Vladimir. Aleksandr Nevskii (1220–1263) owed his soubriquet to his victory over the Swedes in 1240, when he was serving as prince of Novgorod for his father Iaroslav, grand prince of Vladimir. With his brother Andrei he spent two years at the great khan’s headquarters at Karakorum (1247–1249), where Andrei received the patent to rule in Vladimir and Aleksandr the same for Kiev. But when Andrei rose up against the khan in 1252, the Mongols sent an army (probably with the connivance of Aleksandr Nevskii), beating Andrei and forcing him to flee to Sweden. Aleksandr could then occupy the grand princely seat of Vladimir. He died on his return from another visit to the Horde in 1263 and was succeeded by his younger brother Iaroslav, prince of Tver’ and the founder of the sub-­dynasty of Tver’ (to be discussed below). Iaroslav died in 1272 and was succeeded by the youngest brother Vasilii (1241–1276), prince of Kostroma. After Vasilii, who apparently died childless, the throne of Vladimir reverted to the sons of Aleksandr Nevskii, first to Dmitrii (who occupied the seat from 1276 to 1294) and then Andrei (grand prince of Vladimir from 1294–1304, and briefly in 1281). 43

On the history of the grand principality of Nizhnii Novgorod, see Presniakov, op.cit. (Obrazovanie), Ch. vii, 177–192; also V.P. Makarikhin, “Velikoe kniazhestvo Nizhegorodskoe: sistema upravleniia”, A.A. Preobrazhenskii (ed.), Feodalizm v Rossii. Iubileinye chteniia, posviashchennye 80-letiiu so dnia rozhdeniia akademika L’va Vladimirovicha Cherepnina, Tezisy dokladov i soobshchenii, Moskva, 1985, 87–92 and P.V. Chechenkov, Nizhegorodskii krai v kontse xiv – tretei chetverti xvi v.: Vnutrennee ustroistvo i sistema upravleniia, Nizhnii Novgorod, 2004.

General Introduction

37

After the death of this Andrei Aleksandrovich in 1304, the grand princely dignity was acquired by his cousin Mikhail Iaroslavich, already grand prince of Tver’. Moscow Besides Dmitrii and Andrei, both of them grand princes of Vladimir at some time, there was also Aleksandr Nevskii’s youngest son Daniil, prince of Moscow. He died already in 1303 and did not get a chance to become grand prince of Vladimir. But his son Iurii successfully intervened with the khan against his cousin Mikhail of Tver’ and obtained the patent for Vladimir in 1317, while Mikhail was killed on the khan’s orders. Iurii Danilovich met his nemesis in 1322 in the person of Mikhail of Tver’s son Dmitrii Groznye Ochi (“the Fierce-Looking”), who killed him in the khan’s court and received the Vladimir patent. Dmitrii then was executed in 1325 by the Tatars for some other offence. After prolonged intrigues the combined titles of Vladimir and Moscow were then finally conferred in 1332 on Iurii’s younger brother Ivan “Moneybag” (Kalita). The latter is usually considered as the real founder of the line of Muscovy princes. Ivan Kalita is often referred to as grand prince of Vladimir and Moscow. His eldest son and successor Semën Gordyi (“the Proud”, 1341–1353) is known to have used the title of “grand prince of All Russia” on his seal. Ivan Kalita procured the right to collect the annual tribute for the Tatars for the entire country; another important scheme to bolster his position was his successful intervention with the metropolitan to move his residence from Vladimir to Moscow. The Moscow grand princes continued the old practice of conferring apanage principalities on younger sons, but did not allow these to develop into independent territories, forbidding them in particular to engage independently in external relations. There still occurred major and violent upheavals during the 14th and 15th centuries, caused by conflicting ambitions among hostile clans within the Moscow dynasty, but the period of the independent principalities gradually died off once the hegemony of the Moscow grand princes had become unassailable. The last apanage principality was Uglich, created by Ivan iv the Terrible for his youngest son Dmitrii, upon the latter’s birth in 1582. When Dmitrii died in obscure circumstances in 1591 during the reign of Boris Godunov, the principality died with him and the unification of the Muscovy state was also formally completed. Tver’ As explained above, the Tver’ sub-dynasty commenced with Iaroslav († 1271), one of the eight sons of Iaroslav Vsevolodich (1191–1246), grand prince of ­Vladimir; five of these sons were at one time also grand prince of Vladimir

38

chapter 1

(Aleksandr Nevskii, Andrei, Mikhail the Brave, Iaroslav, and Vasilii). The house of Tver’ deserves some attention here because its princes were for two centuries the main competitors of the Moscow princes; also, their rule has left some traces in legal documents.44 Iaroslav’s successor and eldest son Sviatoslav already used the title of grand prince of Tver’; his brother Mikhail (already mentioned above) followed him as grand prince of Tver’ in 1285 and also became grand prince of Vladimir in 1304. Mikhail’s sons Dmitrii Groznye Ochi and Aleksandr both acquired the same combination of titles, but in the end all three lost their lives at the hands of the Tatars, thanks in part to the more successful intriguing of their Moscow cousins. In 1327 the first major uprising against Tatar rule started in Tver’, but it was suppressed by a combined force of Russians under the command of Ivan Kalita of Moscow and of Tatars. No Tver’ prince ever received the Tatar patent to rule in Vladimir after this. The revolt had in part been caused by oppressive taxation and the killing of the Tatar tax-collectors (the baskaki) lighted the flame. This also resulted in the abandonment of direct taxation by the Tatars and the transfer of tax collection duties to the grand prince of Moscow and Vladimir. The fortunes of Tver’ waxed and waned during the following years. When Tver’ was stable and economically strong, and Moscow simultaneously torn by internal disorders, Tver’ would temporarily be the dominant power in Russia. Tver’ also profited from its geographical position, between Novgorod and the Russian heartland, on the important trade route from the Baltic to the Caspian Sea. Still, Tver’s own territory and resources could not match those of Moscow and it had to rely therefore heavily on adroit management of alliances. The major surrounding powers were the Tatars in the East and Lithuania in the West. In the end the progress of Muscovy was unstoppable and Tver’ slipped further behind until its last grand prince Mikhail was deposed in 1486 and Tver’ became part of the Moscow grand principality.

State and Law During the Era of the Independent Principalities

A consideration of the history of law in Kievan Russia and the following period of the independent principalities inevitably raises certain questions concerning our understanding of the role of the state in these eras. Our principal means of getting to know medieval law is through the texts of laws (statutes)

44

On the history of the Tver’ grand principality, see Presniakov, op.cit. (Obrazovanie), Ch. 5, 137–156.

General Introduction

39

and comparable documents (such as private registrations of law). Written laws emanate from agencies which represent the state or some aspect of it (in medieval Russia this might include the Church). During the flowering of Kievan Russia, the period of St. Vladimir, Iaroslav the Wise and their immediate successors, there cannot be much disagreement about the state; it was embodied in the grand prince of Kiev and his entire supporting cast. This state possessed all the attributes one could expect to find in a medieval setting: a clearly defined territory, populated by an ethnically coherent population; a recognizable, permanent and effective government, equipped with adequate military forces; a regular system of foreign relations and of co-existing with neighbours either peacefully or through open warfare; an assemblage of shared concepts on ethics, religion, and social values (including legal ones) that would justify the assumption of a viable common culture, etc. The self-awareness of being what we now would call a nation, of belonging together, of being different from surrounding nations, would be of particular importance. This self-awareness arose in Russia long before it could be observed in Western Europe. The evidence from the chronicles on this point is abundant, eloquent and incontrovertible. Once Kievan Russia began to break up into bigger and smaller parts, the question concerning the state becomes more awkward. Surely, the common concept of the Russian land and the Russian people survived, but where was the state, where had it gone to? For a while, the Kievan grand prince retained his prestige, not as a supreme ruler but at least as the acknowledged chief of the ruling house. The Rurikid house itself, which, as we have argued, was the genuine and exclusively legitimated depositary of the power to rule, did in fact continue to rule, not through a system constructed around the Kievan grand prince as the dynastic leader, but through a multitude of more or less equal dynastic representatives. On the other hand, the original territory was broken up; there were many princes, exercizing governmental functions together with their officials; hostilities between the new territorial units and their princes were the rule rather than the exception. Employing modern concepts, one could say that during the later Kievan era the former Kievan state had been decentralized to such an extent that it almost ceased to exist. But then one would have to ask who had taken over. Novgorod the Great and some of the more prominent principalities behaved like states in many respects. They had relatively well-ordered governmental and judicial systems, they conducted their own foreign policies and concluded treaties with foreign powers. At the other end of the spectrum there were more or less ephemeral principalities, established by more powerful princes for their younger brothers or sons. Often enough such principalities

40

chapter 1

did not last for more than one generation and left few written traces, barring a short mention in the chronicles. If one would like to regard them as states, then at least all evidence is lacking. One may attempt to describe the political conglomerate which existed for several centuries in Russia by using modern concepts such as “loose confederation (of states)”, “association of states”, “commonwealth of states and other political entities”, etc., none of them very satisfactory or revealing. As argued previously, “state”, like most other legal concepts, is a construct produced by human inventiveness. There was no state before somebody thought it up. The state can therefore not be studied as components of the natural world or phenomena such as language can be investigated. The question concerning the state during the period of the independent principalities is therefore futile, because everything depends on the meaning attributed to “the state”. It is far more productive to look at the information at our disposal regarding the relationships between and within the principalities, their actual behaviour, and their relations with the world outside. Politico-legal conglomerates such as existed for several centuries in medieval Russia have occurred elsewhere, mostly in pre-modern societies.45 What was most characteristic for Russia, as has been described in the historical survey above, was the crucial role played by the dynastic element, first of all the undisputed and exclusive right to rule enjoyed by the house of Rurik, or rather of his great-grandson St. Vladimir, and then the peculiar system of assigning the exercise of this right to specific members of the dynasty. This system was not immutable and underwent several modifications as the number of princes increased, resulting finally in its complete erosion and its replacement by a simpler and more stable procedure: rule by a single prince, who appointed his own successor. The question of statehood (gosudarstvennost’) which has fascinated Russian­ historians for centuries, is in the end a matter of words. For legal history, the more interesting question is whether the state-like entities of the era of the independent principalities created their own legal systems. The first part of the answer should be that custom and customary law were still the rule, and that written law only provided some additional clarification. This explains for the greater part the virtual absence of basic written sources for the period following the unitary Kievan empire. Another additional explanation is probably that 45

An interesting and little-known parallel is in early Christian Ireland, which offered many political similarities with medieval Russia, although there was no single dominant dynasty. See D. Edel, “An Emerging Legal System in an Embryonic State. The Case of Early Medieval Ireland”, F. Feldbrugge (ed.), The Law’s Beginnings, Leiden/Boston, 2003, 59–76.

General Introduction

41

the few basic enactments from the Kievan era, especially the Russkaia Pravda and the church statutes, were by and large adequate for satisfying the need for legislation, whenever it arose. In other words, the numerous ‘states’ required little written legislation and what they had inherited from Kiev usually satisfied those needs. Moreover, subsequent developments, viz. the absorption of most principalities by Muscovy, resulted in the disappearance and perhaps intentional destruction of most governmental archives of these principalities. The survival of a small number of relevant texts (esp. the Court Charter of Pskov, the Charter of Novgorod, and a collection of treaties of the grand princes of Tver’) was secured by the fact that these texts were of importance to the Moscow princes, for various reasons. Riazan’ Law If one would start looking for traces of law and legislation of the independent principalities, the most promising candidate (apart from the special case of Novgorod and Pskov) would be Riazan’, because its existence as an independent principality (about three centuries) lasted longer than that of any of the others. The collection of princely treaties in ddg contains nine treaties in which Riazan’ was a party.46 Five of them were between the grand princes of Moscow and Riazan’. The oldest of them, from 1382, already identified the Riazan’ grand prince as the ‘younger brother’, which primarily entailed the obligation to follow the line of the Moscow grand prince in war and peace with the Tatars. Otherwise the Riazan’ prince ruled his principality independently. In the following treaties (of 1402, 1434, 1447 and 1483) there were variations on this theme. The 1447 treaty more or less forbad the Riazan’ prince to conduct foreign relations independently and the 1483 treaty expressed the same instructions in great detail. The obvious background was formed by the attempts of the Riazan’ prince to create a counterweight against Moscow’s preponderance by seeking an alliance with the Lithuanian grand prince and also, to a lesser extent, with the Tatars.­The high point of these attempts were two treaties of 1430 (or somewhat earlier) in which the Riazan’ prince entered the service of the famous Lithuanian grand prince Vitovt at a time when Muscovy’s grand prince was the boy Vasilii ii Vasil’evich (later on Vasilii the Blind), who himself was the grandson of Vitovt, through his mother Sofiia Vitovtovna (1371–1453).47 All these treaties offer glimpses of the domestic law of Riazan’ by referring to 46 ddg, Nos. 10, 19, 25, 26, 33, 47, 76, 84. 47 Treaty ddg No.25 concerned the Riazan’ grand prince Ivan Fedorovich and treaty ddg No.27 the prince of Pronsk, Ivan Vladimirovich, who had served briefly as grand prince

42

chapter 1

all kinds of matters left to the discretion of the Riazan’ prince (such as taxation, court procedure, boyars’ estates, etc.) The most informative treaty is perhaps the last one, of 1496, between grand prince Ivan Vasil’evich and his brother Fedor. Although Riazan’s independence had by that time been reduced to almost zero, the princes kept up appearances. The treaty followed exactly the standard format for treaties between the Moscow grand prince and his brothers or cousins. But along with these public matters, the bulk of the treaty was devoted to the distribution of estates and other assets between the brothers. Apart from these treaties there is a sizeable collection of Riazan’ charters, covering the 14th and 15th centuries.48 About half of them (most of them gift, immunity and judgment charters) concern monasteries, the other half is between lay persons, usually landowners. The variety within this latter category is considerable. The opposite party in most charters is the grand prince of Riazan’,­occasionally his widow or mother, or the prince of Pronsk. Pronsk was an apanage principality of Riazan and it repeatedly changed hands among the different branches of the Riazan’ sub-dynasty. The Riazan’ charter material looks sufficiently extensive to allow at least a sketch of the specificity of the law of the principality during the last two centuries of its existence.49 The entire topic has been disregarded by most historians. There is an 1858 monograph on the history of the Riazan’ principality by D.I. Ilovaiskii, which discussed some of the texts referred to above in some detail.50 His general conclusion can be accepted, that the state of the law in Riazan’ and also, presumably, in other independent principalities, was probably hardly different from that in better known regions, such as Moscow.

48

49

50

of Riazan’ in 1408–1409 and had retained the grand princely title; Pronsk was an apanage principality of Riazan’. Except one, of 1257, of grand prince Oleg Ingvarevich (Krasnyi, “the Handsome”, † 1257), the authenticity of which has been rejected by most commentators; see asei iii No.347 and the study of Kashtanov, quoted below. The collection has been published in asei iii, 339–409 (Nos.309–391) as Part vi (Akty Riazanskie). The only (partial) attempt known to me is S.M. Kashtanov, Iz istorii russkogo srednevekovogo istochnika; akty x–xvi vv., Moskva, 1996, Ch. v (“Osobennosti nachal’nogo protokola i dispozitsii gramot riazanskikh kniazei xiv–xvi vv.”), 96–107. D.I. Ilovaiskii, Istoriia Riazanskogo kniazhestva, Moskva, 1858 (1st ed.), republished in 2008, Moskva; see esp. 137–153.Iu.G. Alekseev devoted the better part of a paper on immunity charters (zhalovannye gramoty) to the Riazan’ charters referred to above; cf. Iu.G. Alekseev, “K voprosu o sudebnom immunitete v kniazheskikh gramotakh xii–xiv vv.”, S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, vyp.8, Moskva, 2004, 10–28, at 13–21.

General Introduction

43

Mongol-Tatar Rule The picture sketched in the foregoing pages changed fundamentally after the Mongol conquest of Russia in 1237–1241. The impact of Mongol-Tatar rule on Russian law will be discussed separately in Chapter 10, on Foreign laws. At this point something should be added to the consideration of the “state” in medieval Russia as explained in the previous section. For contemporaries, both in Russia and in Western Europe, the Mongol conquest of Russia appeared as a sudden disaster which imposed a foreign and very alien regime for several centuries. Such a view also solved, to some extent, the main problem discussed in the previous section. After the taking of Kiev, still the nominal capital in 1240, almost the entire traditional Russian territory had become part of the Mongol empire. The great khan at Karakorum was the supreme ruler and with the subsequent division of the empire into several “hordes”, the khan of the Qipchaq empire (better, but not quite correctly, known as the Golden Horde) became his successor as the immediate suzerain of Russia. Russian princes ruled their principalities only after having received the khan’s assent, and only as long as it suited the khan. They were his servants, rather than his vassals. This is a crucial difference, especially in view of the Marxist feudalism concept which is still prevalent among many Russian historians. Classical West-European feudalism was, at least ideally, based on a contractual relationship, rooted in a certain balance of power. Such a relationship was at least initially, and in principle, completely absent in Mongoldominated Russia. Mongol-Tatar rule was at its most effective and oppressive during the first decades. Later on, internal leadership struggles and urgent interventions in other parts of the huge empire would often create a more relaxed climate for the Russians. In time the hold of the Tatar khan also weakened, although there were many revivals of military energy on the Tatar side.51 The Tatars had to operate increasingly by combining military and diplomatic means, playing the Russian princes against each other. With the waning of Tatar power and the strengthening of the hegemony of Muscovy, the model of a Tatar state, ruled by the Qipchaq khan who would appoint Russian princes as his regional agents, evaporated and was gradually replaced by the crystallization and consolidation of state power in the hands of the Moscow grand prince. Looking at the period following the invasion of Russia from a Mongol-­ Tatar perspective, a rather different picture emerges. The Mongol empire had 51

After the first major victory of the Russians under the Moscow grand prince Dmitrii Donskoi against the Tatars on the field of Kulikovo in 1380, the Tatar khan Tokhtamysh mounted a punitive expedition in which Moscow itself was taken and sacked in 1382.

44

chapter 1

a­ lready become a multi-ethnic state under the rule of its founder ChingisKhan († 1227). The regime established in Russia was not fundamentally different from the ones prevailing in other parts of the realm, such as Iran, the Near East, or China. Local rulers who submitted to the Chingisid overlords could remain in their seats, provided they carried out the obligations imposed on them, the collection of taxes and participation in the military expansion of Chingisid supremacy. From this point of view, Aleksandr Nevskii, and all Russian princes who followed his example in resigning themselves to the modus vivendi required by the conqueror, had turned themselves into Mongol-Tatar magnates. Such an understanding of the situation also prevailed de facto among the Russian princes. In contemporary Russian sources the khan was generally referred to as the tsar, implying legitimate rule. A clear distinction was made between the (Chingisid) khans and other supreme rulers of the Golden Horde, who had obtained their position by usurpation, such as the emirs Mamai († 1380) or Edigei (1352–1419).52 Only in later centuries, a more hostile view of Tatar rule gained the upper hand, especially under the influence of ecclesiastical chronicle writing, in which infidel domination of Russia was characterized­ as punishment for Russian sins, especially the incessant warfare between Russian­princes before 1240. Such a conception was in perfect agreement with the legitimation of Muscovy hegemony, understood as the restoration of the old order of a unified state as had existed under the first Kievan rulers. Among pre-revolutionary authors, no genuine consensus about the understanding of Tatar rule and its impact on medieval Russia emerged. Although the negative appreciation encapsulated by the designation of the “Tatar yoke” was widely shared, some scholars, like Karamzin, recognized the often decisive role of Tatar domination in shaping many aspects of social and political life in Russia after 1240, while others, like Kliuchevskii, were inclined to minimize the effect of the centuries of foreign suzerainty. In Soviet times, the official view was formulated by Grekov, in a little book published in 1937.53 The idea of the Tatar yoke was accepted, as well as its negative appreciation, but its indirectly positive effect was underlined, in that it had engendered Russian resistance, which resulted in the emergence of a powerful unitary state which in the end was able to eject and subjugate the Tatars.

52 53

See on this question, and generally on the relations between the Moscow grand prince and the Golden Horde, A.A. Gorskii, Moskva i Orda, Moskva, 2001. B.D. Grekov, A. Iakubovskii, Zolotaia Orda, Moskva, 1937.

General Introduction

45

An extensively researched and much more nuanced, but still orthodox Soviet study on the topic was published a few years later by A.N. Nasonov.54 New insights were offered by Iu.V. Seleznev in a study of Russian-Tatar armed conflicts during the 13th–15th centuries.55 Seleznev’s analysis of more than 150 of such conflicts, as recorded in chronicles and other sources, showed that Mongol-Tatar attacks and raids always had a specific objective; subjugation in the first period, and then maintenance and enforcement of the regime imposed. As long as a Russian prince ‘behaved’, things were quiet. Once Tatar power became fragmented among competing warlords, violence and unrest increased. The military relationship between Russians and Tatars became ambiguous. Russian princes, in the domestic conflicts among themselves, often made use of Tatar cavalry. Russian princes and boyars would not seldom function as military commanders over Tatar armies. Still, the dominant view in Russia after so many centuries continues to be that the flowering and greatness achieved under the first Christian rulers in Kiev were lost to a great extent in the following period of the independent principalities, to be restored and further developed under the grand princes of Muscovy. The exercise of effective central leadership, expressed in the existence of a strong unitary state, is implied in this view. Like all conceptualizations in history, this one should also be open to critical examination.

54 55

A.N. Nasonov, Mongoly i Rus’. Istoriia tatarskoi politiki na Rusi, Moskva, 1940 (republished together with Russkaia zemlia, by the same author, in Sankt-Peterburg, 2002). Iu.V. Seleznev, Russko-ordynskie konflikty xiii–xv vekov, Moskva, 2010.

Section 1 Sources

∵

chapter 2

Sources

The Concept of Sources

The historian’s battlecry “Ad fontes !”, “Back to the sources !”, is fully applicable to legal history, and especially to the history of medieval law. Insistent inquisitiveness will inevitably lead the legal historian to the sources, the best, the original, the most reliable sources. Consider one of the most prominent questions in early medieval Russian law, the payment of wergeld for homicide and other personal injuries. How do we know about it? Mainly from the provisions of the Russkaia Pravda. Then the question arises what the rp represents and this leads us into a vast field of scholarship concerning this particular monument. But it is also possible to approach the matter in another, more ‘physical’ way. We will have a copy of some edition of the rp in our hands. Where did the editor of this edition get his text from? Continuing this line of questioning will eventually bring us to thick volumes of manuscript collections, written down many centuries ago in Russian monasteries.1 The oldest copies of the Short Pravda are the so-called First Academic and First Archeographical Copies, both included in 15th-century manuscripts (of the Younger Version of the First Novgorod Chronicle). The oldest copy of the Expanded Pravda is from 1280 (or 1282), the Synodal Copy. It is included, as is the majority of the numerous surviving Expanded Pravda copies, in a collection of texts for the use of monasteries, a so-called Kormchaia or “Guidebook” (the Greek Nomocanon). The oldest texts of the rp at our disposal are therefore copies, and more commonly copies from copies. The oldest surviving original legal text is a gift charter of grand prince Mstislav († 1132), the son of Vladimir Monomakh, jointly with his son Vsevolod, in which they donated the village of Buitsy and appurtenances to the Iur’ev monastery in Novgorod.2 The probable date of this charter is 1130. The oldest surviving original private legal text is a deed from around 1192 through which a certain Varlaam donated land to the monastery

1 In my Law in Medieval Russia (Leiden/Boston, 2009, xv–xvi) I have called such documents “primary sources”: sources on which our knowledge ultimately rests, in other words, sources which cannot be traced back to earlier sources. 2 gvnp No.81, 140–141; prp ii, 102, 110–111 (comments by Zimin).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_003

50

chapter 2

of Spaso-Khutinsk.3 The oldest birch-bark texts with legally relevant content are dated around 1100.4 As suggested in Chapter 1, much of the older writing on the history of law in medieval Russia is like reconstructed mural paintings from ancient times, where the modern restorer has filled in the 90% blank space on the basis of the surviving 10% of the original murals. This process does produce a full picture, or in history, a better story, but the narrator must incessantly be questioned: How do you know this? Nowadays the preferred academic approach is unquestionably to stay close to the sources and profess ignorance whenever the sources or rather their absence indicate this as the safest solution. Philosophically inclined historians have written books about the concept of sources in history. In a study devoted to a very particular branch of history: the history of law of a specific country, there does not appear to be a need to delve deeply into this matter, but it may be enlightening to ponder the question briefly by considering the views of two authors who have given the matter more thought.5 Lowenthal presents a tripartite division of sources for knowing the past: memory, history, and relics. Pushkarev distinguishes between three levels of sources: types (tipy), genera (rody), and kinds (vidy). At the level of types he lists the following: written sources, material sources, oral sources (folklore), ethnographical sources, linguistic data, film/photo and audio documentation. Written sources are considered fundamental and the most important by him and their further subdivision is worked out in detail. The views of authors such as Lowenthal or Pushkarev may be helpful in acquiring a clearer understanding of the sources for medieval legal history. Memory will obviously not be relevant, nor will modern forms of documentation (film/photo/audio). Others cannot be completely excluded, such as linguistic 3 gvnp No.104, 161–162; prp ii, 108, 113 (comments by Zimin, who, following Tikhomirov, suggests a date of 1211). 4 L.V. Cherepnin, Novgorodskie berestianye gramoty kak istoricheskii istochnik, Moskva, 1969, 26. 5 For a detailed and closely argued Leninist view on the problem of historical sources, see L.N.  Pushkarev, Klassifikatsiia russkikh pis’mennykh istochnikov po otechestvennoi istorii, Moskva, 1975. The first sentence may put modern readers off (“Leninist teaching on cognition as a reflection of reality in the judgments, concepts and ideas of man is of the most direct and immediate relevance to the work of the historian and for the formation of history as a science.”, p.7), but at least Pushkarev offers a very full overview over the different kinds of historical sources. A completely different work, also concerned with the ways we try to know the past, is D. Lowenthal, The Past is a Foreign Country, Cambridge, 1985, especially Ch.  5 “How We Know the Past”, 185–262.

Sources

51

data (e.g. the Turkic origin of certain legally relevant terms) or material sources (relics), such as money from the Kievan era. Still, written sources constitute the overwhelming majority of what is relevant to the history of law. In this respect a distinction between direct and indirect sources of law is appropriate. The most direct source of law is a written statute. Next would be court judgments, which create law in a particular case. Then there is the individual act which creates rights and duties, either unilaterally (a will, a grant, etc.) or bilaterally (a contract or a treaty). Finally, a description of the law by an individual may in time acquire a certain status which would allow it also to be considered as a direct source of law. The most important statutes from Kievan times are the Russkaia Pravda in its two main versions (Short and Expanded) and the so-called church statutes of the princes. Court judgments have undoubtedly played a role in the formation of the law, but documentation lacks almost completely. Art. 23 of the Short Pravda laid down that the fine for the killing of the prince’s senior stablemaster (koniukh staryi) was 80 grivna, “as Iziaslav established when the people from Dorogobuzh killed his stablemaster”. This rule returned in the Expanded Pravda (art. 12), without the reference to Iziaslav’s decision. This demonstrates clearly that the decisions of judges contributed to the creation of new legal rules. The treaties between the (still pagan) Russian princes and the Byzantine emperors, as communicated by the Primary Chronicle in apparently verbatim form, contain important information on Russian law at a very early stage. Individual acts (deeds) from the early Kievan era are not available; as mentioned above, the first original text is from around 1192 (or 1211). The oldest Novgorod birch-bark documents date from about a century earlier. Anything which cannot be considered as a direct source of law but still offers information on law can be included among the indirect sources. Prominent among such indirect sources are the chronicles, which often touch upon legal matters in their historical narratives and occasionally contain materials which could be considered as direct sources of law. At the same time, direct sources of law for the Kievan era cannot be circumscribed as precisely as could be done for modern sources. A text found in a collection dating from the 16th or 17th century may purport to be a law, a statute, from the 12th century, but other interpretations of its contents are usually not excluded. For all these reasons the distinction between direct and indirect sources of the law of Kievan Russia cannot be regarded as sharp or absolute. Apart from the distinction between direct and indirect written sources, one could also, to return to an idea put forward above, formulate the concept of a physical (written) source: a document, generally a volume of sheets of

52

chapter 2

­ archment or paper, containing a direct or indirect source. A physical source p may coincide with a direct or indirect source (e.g. the volume consisting of the text of the First Novgorod Chronicle, or a will on a single sheet of paper), but more often a direct legal source is included in a volume containing all kinds of materials, much of it of no legal relevance. This is especially the case with the kormchie, to be discussed below. Physical sources owed their existence usually to a practical purpose. Written texts which had to be consulted from time to time by a wider circle of persons had to be copied, before the invention of printing. Short documents could be kept in a box or chest, but longer texts were more conveniently bound together. Some texts, such as the Bible or a chronicle, would be long enough to take up an entire bound volume. For a shorter text, separate binding would be impractical; such texts were ususally combined with others to make up a usable collection. Such collections could easily be copied when required, the copier (or his principal) being free to add new texts or leave out materials considered irrelevant for the new user. As a result of this procedure, medieval Russian texts (including laws) have usually come down to us in a great variety of ‘convoys’ of other texts. These collections have often been assembled many centuries after the estimated date of origin of an individual text. The different categories surveyed below can sometimes be classed as indirect sources, sometimes as physical ones (the one not excluding the other). Chronicles A considerable number of medieval Russian chronicles have survived; some of them, such as the Primary Chronicle, offer a chronologically drafted account (year by year, hence the often used alternative designation of “annals”) of the history of Russia (which roughly equals today’s European Russia, including also Ukraine and Belorussia), while many others focus on the history of a particular region or principality (e.g. the Novgorod Chronicle). The chronicles were almost always written in monasteries closely connected with, and located in or nearby the capital city of the region concerned. In other words, chronicle writing was usually tied to the ruling local prince and his political interests. For a general understanding of the political and social parameters of medieval Russian society, the chronicles are the principal informant. They show us the world in which medieval Russian law functioned. Additionally, as indicated above, they occasionally also contain direct pertinent information about this law.

Sources

53

Publication of the Russian chronicles has been the responsibility of the Archeographical Commission, founded in 1834. The first volume of the “Full Collection of Russian Chronicles” (Polnoe Sobranie Russkikh Letopisei – psrl) appeared in 1841. The Archeographical Commission and its publications survive until the present day. For chronicle texts, the psrl is considered the basic publication. The literature on Russian chronicles is rich, as most leading Russian medievalists and also philologists and legal historians have concerned themselves with them. The culmination of all older scholarship and the starting-point for all modern studies is the work of A.A. Shakhmatov (1865–1920), in particular his main work “Studies on the Oldest Russian Chronicle Collections” of 1908.6 The Primary Chronicle The most important of the early Russian chronicles is the so-called Primary Chronicle (Nachal’naia Letopis’), also known as the “Tale of Bygone Years” (Povest’ vremennykh let, often just Povest’ in Russian literature) or the Nestor Chronicle, after the monk Nestor of the Crypt Monastery in Kiev to whom the text was often ascribed in the 19th century. The designation “Primary Chronicle”­ is well-established but not quite correct after Shakhmatov’s detailed investigations of the origins of the text. His views are perhaps not universally, but still very widely accepted nowadays.7 According to Shakhmatov, the original Primary Chronicle (now lost) had been composed in the Crypt Monastery around the year 1095; the narrative began with Noah and the Flood and ended in the year 1093. It was not even the first text of its kind in Russia; it was preceded by similar texts of 1039 and 1073 which served as sources for the 1095 text.8 The non-Russian part of the 1095 text rested mostly on the Byzantine chronicle of Georgius Hamartolus and other Byzantine texts. This first Primary Chronicle was then fused with other materials in 1111, possibly by the monk Nestor, to make up a new chronicle. Political developments in Kiev necessitated editorial reviews in 1113 and 6 A.A. Shakhmatov, Razyskaniia o drevneishikh russkikh letopisnykh svodakh, Sankt-­Peterburg, 1908. Of similar importance, posthumously, by the same author: Obozrenie russkikh letopisnykh svodov xiv–xvi vv., Moskva/Leningrad, 1938, of which an improved edition appeared in 2011: Istoriia russkogo letopisaniia, T.ii, Obozrenie letopisnykh svodov xi–xvi vv. (Sankt-Peterburg). 7 Cf. M.N. Tikhomirov, “Chto novogo vnes A.A. Shakhmatov v izuchenie drevnerusskikh letopisei”, M.N. Tikhomirov, Russkoe letopisanie, Moskva, 1979, 12–22. 8 These texts are respectively called “Oldest Kiev Collection” (Drevneishii kievskii svod) and “First Collection of the Kievan Crypt Monastery” (Pervyi kievopecherskii svod) by Shakhmatov.

54

chapter 2

1118.9 The 1113 review is connected with the name of the abbot Silvester of the St. Michael’s­Monastery in Vydubichi near Kiev. This name appears at the end of one of the two main redactions of the Primary Chronicle as we know it, the Laurentian redaction.10 The more prestigious Crypt Monastery retaliated in 1118 by producing its own version, which was the origin of the second main redaction, the Hypatian text.11 The Laurentian and Hypatian redactions were usually at the basis of later general and regional chronicles, the Laurentian redaction was of particular importance for the central Russian chronicles, the Hypatian for those of Western Russia (Galicia-Volynia).12 Until 1116, the narratives of the Laurentian and Hypatian redactions are closely linked. The Laurentian text stops in 1110 (last entry) or 1116 (colophon) and is followed immediately by the Suzdal’ Chronicle (1110–1305). The Hypatian narrative continues to 1117 and is then followed by a Kievan chronicle up

9

10

11

12

The 1111 (Nestorian) redaction attempted to throw a more favourable light on the activities of the then grand prince of Kiev, Sviatopolk Iziaslavich. When he was succeeded after his death in 1113 by his cousin Vladimir Monomakh, the latter prince took the editing of the text away from the Crypt Monastery and entrusted it to the abbot of the St. Michael’s Monastery in Vydubichi. Silvester produced a text more to Vladimir’s liking in 1116 (according to the colophon). The important Kievan Crypt Monastery took the side of Vladimir then and produced its own reworked version of the Primary Chronicle in 1118. For a summary of these developments, see Cross/Sherbowitz-Wetzor, 13–19 (they are among the few scholars who do not accept Shakhmatov’s views), or N.K. Gudzii, Istoriia drevnei russkoi literatury, Moskva, 1953 (5th ed.), 46–52. The Laurentian manuscript derives its name from the monk Lavrentii who made a copy in Suzdal’ in 1377, according to the colophon of the copy. After earlier publications in the 19th century it was published in psrl as Vol.1 Part 1 in 1846 in Sankt-Peterburg (Lavrent’evskaia letopis’. Povest’ vremennykh let); republished in 1926 (Leningrad), 1962 (Moskva) and 1997 (Moskva). A modern Russian translation of the Laurentian manuscript by D.S. Likhachev and O.V. Tvorogov was published in Sankt-Peterburg in 2012: Povest’ vremennykh let. Po Lavrent’evskomu spisku 1377 g. English translation of the Laurentian text by S.H. Cross and O.P. Sherbowitz-Wetzor, The Russian Primary Chronicle. Laurentian Text, Cambridge, ma, 1953. Published as Vol.2 of psrl (Ipat’evskaia letopis’), Sankt-Peterburg, 1843 (republished Sankt-Peterburg, 1908; Leningrad 1923; Moskva, 1962; Moskva, 1998). The Hypatian manuscript was found in the Hypatian monastery in Kostroma and dates from the middle of the 15th century. A third redaction, the Trinity (Troitskaia) text, was lost in the fire of Moscow in 1812. It had been used by early historians such as Karamzin. The text, close to that of the Laurentian copy, has been restored by M.D. Priselkov, Troitskaia letopis’. Rekonstruktsiia teksta, Moskva/Leningrad, 1950.

Sources

55

to 1199 and a third section devoted especially to events in Galicia-Volynia (up to 1292).13 One of the most important political messages of the Primary Chronicle, written by monks who worked in close proximity of the Kievan grand prince, was the glorification of the resident dynasty; this was expressed by a double emphasis: on the exclusive role of Rurik and his descendants as the founders of the Kievan empire, and on the all-overshadowing impact of St. Vladimir as the prince who introduced Christianity. Non-Rurikid rulers and princes were pushed to the background and the undeniable evidence for the earlier and more gradual conversion of Russia was connected with the activities of Vladimir’s grandmother, the princess Olga, who ruled as regent during the minority of Vladimir’s father Sviatoslav. The First Novgorod Chronicle The chronicles of Novgorod are of course of great relevance for the history of that city and its law, but they also contain unique and important information on the law of the entire Kievan realm. Their genesis is hardly less complicated than that of the Primary Chronicle. Russian scholarship traditionally distinguished between five different complexes of manuscripts, of which only the first one, the First Novgorod Chronicle,­is of interest for our purposes, the other four being of later date. Two versions of the First Novgorod Chronicle exist, the Older (Starshii izvod) and the Younger (Mladshii izvod). The Older Version is available in one (parchment) copy only, the Synodal manuscript, completed around 1333, but written by different scribes over a long period (the first part during the second half of the 13th century). New entries were added later in the Younger Version, taking the narrative from 1330 up to the year 1446 (with several gaps), when Novgorod’s independence was crumbling under the growing dominance of the Muscovy state.14 13 14

A Ukrainian translation of the Chronicle of Galicia-Volynia was published in L’viv in 2002 (O.S. Kucheruk, ed.), Halyts’ko-Volyns’ka Derzhava xii–xiv st., kn.1. First published in psrl as Vol.3, Sankt-Peterburg, 1841; then Novgorodskaia letopis’ po Sinodal’nomu Kharateinomu Spisku, Sankt-Peterburg, 2 vols., 1875–1888. The Older and Younger Versions were published together by A.N. Nasonov (gen. ed.) and M.N. Tikhomirov (ed.), Novgorodskaia pervaia letopis’ starshego i mladshego izvodov, Moskva/ Leningrad, 1950. New edition of the Synodal Copy by M.N. Tikhomirov (d.), Novgorodskaia kharateinaia letopis’, Moskva, 1964. A late and almost forgotten copy of the Younger Version was recently published in Russia: Novgorodskaia Pervaia letopis’. Berlinskii spisok, Sankt-Peterburg, 2010.

56

chapter 2

According to Shakhmatov, chronicle writing started very early in Novgorod, already in the 11th century, predating the appearance of the Primary Chronicle. The Synodal manuscript is based therefore both on local predecessors and on other Russian sources, such as the third redaction (of 1118) of the Primary Chronicle. The Synodal manuscript is defective in that it misses the part covering the years before 1016. The missing part was probably a text close to the third redaction of the Primary Chronicle (or the Hypatian redaction). The Younger Version of the First Novgorod Chronicle arose in the middle of the 15th century and is based mainly on the Synodal manuscript, but covers the full period up to 1443 (1441 in the Academy Copy, 1444 in the Berlin Copy). More importantly, several copies, including the two oldest and most authoritative copies (the Academy and the Commission copies), include the text of the Short Version of the Russkaia Pravda under the year 1016. The most striking feature of the Novgorod chronicles is their matter-of-fact style, in contrast to the prominent presence of the narrator in texts such as the Primary Chronicle.

Kormchie

A kormchaia (a “pilot-book” or “steering-book”, from korma – stern, and kormchii­– helmsman) is a collection of church rules and prescriptions for the use of bishops, abbots and other persons exercizing authority on behalf of the Church. In the Christian religion, Holy Scripture (the Bible) is The Book par excellence, but many other written texts are used besides, such as decisions of church councils, writings of church fathers, etc. As a highly organized body, the Church also needed rules. In the Eastern Church, collections of rules had been put together at a very early date already and in time these collections had solidified into fixed bodies of documents, bearing such names as Collectio or Syntagma or Nomocanon. When Russia adopted Christianity, some of these collections came along. In time, Russian kormchie started to include secular legal texts as well, and for that reason, and also because the canon law ­contained

English translation of the Synodal text (with additions up to 1446) by R. Mitchell and N. Forbes, The Chronicle of Novgorod, London, 1914 (reprint 1970); this edition contains introductory texts by the translators, A.A. Shakhmatov and W. Hanak. Text of the Synodal Copy, full facsimile reproduction of the manuscript, German translation and introduction in German and English in J. Dietze, Die Erste Novgoroder Chronik nach ihrer ältesten Redaktion ­(Synodalhandschrift) 1016–1333/1352, München, 1971.

Sources

57

in them influenced Russian law, they are of great relevance to Russian legal history. Byzantine Canon and Secular Law As the Russian kormchie have Byzantine roots, a brief survey of the development of church (canon) and secular law in Byzantium will be useful.15 The first surviving collection of Byzantine canon law is the Collectio L titulorum of John the Scholastic from around 550. The main body consisted of the so-called canons of the apostles and church councils (the corpus canonum), but an appendix (the Collectio Lxxxvii capitolorum) added parts of Justinians Novellae, pertaining to ecclesiastical topics. These materials were then included in a more systematized form16 in the Syntagma canonum (probable author: Eutychius) of around 580 with the addition of the Collectio tripartita, a collection of secular legislation concerning the Church, mostly from the Corpus Iuris, but also embracing later novellae. Several more revisions followed with the addition of some new materials; the so-called Third Redaction (in the terminology of Shchapov), from around 806 or shortly afterwards, added the decisions of the Second Council of Nicea. In 865 the Bulgarian khan Boris was baptized in Constantinople and the conversion of the Bulgarians constituted a major event in the penetration of Christianity in the Slavic world. At that time, the most prominent secular legislative document of the Byzantine empire was the Ecloga, the law code of the emperors Leo and Constantine, variously dated to 726 or 741. Two centuries after the Corpus Iuris Civilis, the Byzantine legal system was summarized in this modestly-sized text of 18 chapters. Most innovations are contained in chapters 2 and 17, devoted respectively to matrimonial and criminal law. These chapters are also by far the longest of the code. A more recent Byzantine law code, the Procheiros nomos or Procheiron, was also of particular relevance for the history of Russian law. It was probably put together during the reign of Leo vi (the Wise; 886–912) and coincided roughly with two other major monuments of Byzantine law, the Epanagoge and the Basilika. The latter two are of minimal importance for Russian law; the 15

This survey is based in part on N. van der Wal, J.H.A. Lokin, Historia iuris graeco-romani delineatio. Les sources du droit byzantin de 300 à 1453, Groningen, 1985, 51–54, 60–62, ­66–70. The basic Russian study is Ia.N. Shchapov, Vizantiiskoe i iuzhnoslavianskoe pravovoe nasledie nu Rusi v xi–xiii vv., Moskva, 1978. I have treated the subject of this section more extensively in my Law in Medieval Russia, Leiden/Boston, 2009, 75–79, 87–92. 16 The Syntagma canonum was split into a systematic survey of 14 titles (the Collectio xiv titulorum) and a full collection of texts as the second part.

58

chapter 2

E­ panagoge never had the force of law and was soon replaced by the Procheiron;­ and the Basilika, on account of its enormous volume, did not lend itself to translation, a necessary condition for having any influence in medieval Slavic cultures. The avowed aim of the Procheiron was to replace the Ecloga and return to the old law of Justinian; it also did away with the strongly pro-Church penchant of the Epanagoge in the provisions affecting Church-state relationships. It was more than double the length of the Ecloga. The Penetration of Byzantine Law into the Slavic World The Christianization of the Slavic world was accompanied by the translation of the most relevant texts into Slavonic, first of all the Bible itself but then also the collections of church rules. These developments have been the subject of scholarly interest for a long time, resulting in the publication of important sources and studies.17 In more recent times it has especially been the extensive work done by Ia.N. Shchapov which has increased our understanding of the process through which Byzantine law penetrated into the early Slavic world. In his study on the “Byzantine and Southern Slav heritage in Russia in the 11th– 13th centuries” Shchapov succeeded in drawing a consistent picture of this process by means of a painstaking analysis of the vast repertoire of kormchie.18 The first Slavonic translation of the Collectio L titulorum of John the Scholastic of 550, was made some time around 862 by Methodius, known together with his younger brother Cyrillus as the apostles of the Slavs (825–885). Little is known about the role, if any, of this translation in the development of medieval Russian law.19 The actual penetration of Byzantine law in the Slavic world is divided into three stages by Shchapov. The first stage revolved around a version of the Greek Syntagma, connected with the conversion of Bulgaria (862). This version was based on the Third Redaction of the Syntagma from around 806. It was provided with some additions and amendments shortly before 912, probably in Constantinople itself. This new collection reached Bulgaria where it was translated.20 Shortly after the conversion of Russia, probably during the 17

Such as V.N. Beneshevich, Drevneslavianskaia kormchaia xiv titulov bez tolkovanii, SanktPeterburg, 1906–1907; A.S. Pavlov, Pervonachal’nyi slaviano-russkii nomokanon, Kazan’, 1869, to mention only two older Russian works. I. Žužek, Kormčaja Kniga. Studies on the Chief Code of Russian Canon Law. Orientalia Christiana Analecta, 168, Roma, 1964, has not been available to me. 18 Shchapov refers to the existence of about 180 kormchie, op. cit., 37. 19 Shchapov, Vizantiiskoe, 36. 20 Shchapov, Vizantiiskoe, 88–100, esp. 96–98. The entire story of the different kormchie reaching Russia is conveniently summarized by Kaiser, The Growth of the Law, 19–23.

Sources

59

reign of Iaroslav the Wise, this Slavonic Kormchaia reached Russia.21 Its oldest ­surviving copy is from the 12th century, the Efrem Copy.22 Its contents concerned almost entirely ecclesiastical matters. The second stage is represented by the emergence of the so-called Serbian redaction of the Kormchaia, connected with the name of Savva, who became the first Serbian archbishop in 1219.23 This kormchaia was based on more upto-date Byzantine materials, particularly the canon law collections with comments by the great 12th-century canonists Zonaras and Aristenes. The secular law section contained among other things the Collectio lxxxvii capitolorum, more recent imperial constitutions and the entire Procheiron text.24 Although the original Serbian redaction did not include any specifically Slavonic materials, it did not have a Byzantine example or counterpart and was apparently assembled in Serbia. A copy of the Serbian redaction of the Kormchaia was sent to Kiev from Bulgaria, at the request of Kirill (Cyril) ii, the last Kievan metropolitan, shortly before 1273.25 A considerable number of copies of the Serbian redaction of this Kormchaia has survived in Russia; the oldest one, the Riazan’ Copy, is from 1284. The arrival of the Serbian Kormchaia text in Russia signified at the same time the beginning of the third stage. At a Russian church council held in Kiev in 1273, it was decided to create a new Russian kormchaia which would better satisfy the needs of the Church at that moment.26 While the Serbian ­redaction constituted the main source for the new text, the earlier version (the Efrem Korm­chaia) was also utilized and many new materials of Russian origin were included as well.27 The new product is therefore known as the Russian redaction. 21 Shchapov, Vizantiiskoe, 101. 22 Kaiser, op. cit., 20, suggests that the 11th century is also a possibility. 23 Shchapov, Vizantiiskoe, Ch.iii (117–155). 24 The penetration of the Procheiron was the subject of a special study by Shchapov: “Prokhiron v vostochnoslavianskoi pis’mennosti”, Vizantiiskii vremennik, Vol.39 (1977), 45–58. 25 Cyril’s successor, the Greek Maxim, moved the see to Vladimir on the Kliazma in 1299. Cyril himself died in 1281, after almost 40 years as metropolitan of the Russian Church. On Cyril, see Ia.N. Shchapov, Gosudarstvo i tserkov’ Drevnei Rusi x–xiii vv., Moskva, 1989, 204–206. 26 The loss of the rich cathedral library of Kiev, which undoubtedly held several kormchaia copies, during the Mongol sack of Kiev in 1240, may have been a central consideration in Cyril’s efforts to bring about a new version of the Russian kormchaia; cf. Shchapov, Vizantiiskoe, 172. 27 A detailed comparison of the contents in Shchapov, Vizantiiskoe, 165–171.

60

chapter 2

The work on this Russian redaction proceeded in two phases. The first phase (between 1273) is represented by a family of mainly South-West Russian copies which can be traced to a Volynian protograph of 1284. In the second phase, following immediately, more Byzantine and non-Byzantine materials were added,­including the Short Redaction of the Court Law for the People (zsl), as well as other amendments and additions.28 Some of the resulting NorthRussian families of kormchie, at a later stage, also came to include different versions of the Expanded Pravda. This occurred first in Novgorod, where as a result of the particular politico-legal situation the bishop’s jurisdiction also began to extend to certain secular cases. It made sense therefore to include the rp as a secular law code in the general ‘pilot-book’ (kormchaia) at the disposal of the bishop. The oldest extant version of the Expanded Pravda is as the last item in the Novgorod Synod Kormchaia of 1282. The idea behind the incessant amendments of all these texts was that a nomocanon or kormchaia was not itself a sacred text, immune to editorial interference, but an ad hoc collection of texts for the use of church dignitaries. Conditions among the newly baptized Slavic peoples, still close to their pagan past and tribal customs, were very different from those prevailing in the Byzantine empire. The main elements of the Syntagma of 806 (the ‘ancestor’ of most Russian kormchie) were the so-called canons of the apostles, the canons of the general church councils and of certain regional councils, the collection of 14 titles (Collectio xiv titulorum) from the old Syntagma canonum, and the three collections of secular law pertaining to church affairs included in the Revised Syntagma of Enantiophanes (from between 612 and 629) and consisting mostly of novellae. The edited Slavonic translation of these texts, which did not itself survive and has been reconstructed on the basis of extant kormchaia copies based on it, is supposed to have consisted of the following three parts:29 (1) An introductory part: (a) Introduction, (b) the Collectio xiv titulorum (a  systematic survey of canonical texts), (c) a list of council rules, rules of church fathers, and imperial constitutions. (2) Main part: (a) the (185) canons of the apostles, (b) the canons of 6 general and 7 regional councils, (c) the writings and rules of the church fathers, (d) a collection of imperial constitutions. (3) Additional part, consisting of various materials, to be grouped into four categories: (a) chronological and historical survey of data and lists, (b) two theological treatises, (c) excerpts from the Procheiron and the Ecloga, 28 Cf. Shchapov, Vizantiiskoe, 163–164. 29 Shchapov, Vizantiiskoe, 47.

Sources

61

concerning­the calculation of degrees of consanguinity, (d) rules of various origin concerning bishops. Of the most important contemporary Byzantine legislation, the Ecloga and the Procheiron, the full texts were not to be found in the original Russian Kormchaia, only rather insignificant excerpts; these laws were included in the Merilo Pravednoe (see below). Nonetheless, the presence of the excerpts as well as the presence of the full texts in the Serbian redaction prove their availability in Russia in the second half of the 13th century.30 Several authors argue for an earlier date, in the 12th century.31 The main difference between this Kormchaia and its Byzantine prototype was in the additional materials, mostly based on other Byzantine texts. The Merilo Pravednoe After the numerous kormchie, the collections known as Merilo Pravednoe (“Just Measure”) must be mentioned. Four almost identical volumes of its first version are known, together with a fifth, offering a number of different texts. The Trinity Copy of the second half of the 14th century is considered the standard text.32 It consists of two main parts. The first one, 69 sheets, presents 63 short religious and/or moralistic texts, mostly of Greek origin, but including also a few texts of Russian origin. The general tenor is to admonish judges how to judge justly. The second part numbers 275 sheets and represents the explicitly legal side of the collection. Its 30 texts are numbered separately. Most of them are of Byzantine origin, such as might be found in the kormchie. Among them are the Russian translations of the complete texts of the Procheiron and the Ecloga.33 The Court Law for the People (zsl) is also included and, as text No.28, 30 31

32 33

Cf. Shchapov, Vizantiiskoe, 155. Ia.N. Shchapov, “Rimskoe pravo na Rusi do xvi v.”, V.L. Ianin (ed.), Feodalizm v Rossii. Sbornik statei i vospominanii, posviashchennyi pamiati akademika L.V. Cherepnina, Moskva, 1989, 211–219, at 215, states that the edited translation of the Ecloga into Russian­ took place in the 10th–11th centuries and refers for further arguments to L.V. Milov, “O drevnerusskom perevode vizantiiskogo kodeksa zakonov viii v. (Eklogi)”, Istoriia sssr, 1976, No.1, 151–153. S.V. Iushkov, “K istorii drevnerusskikh iuridicheskikh istochnikov”, O.I.  Chistiakov (ed.), Serafim Vladimirovich Iushkov. Trudy vydaiushchikhsia iuristov, Moskva, 1989, 28–70, at 69, opts for the 13th century. Published in facsimile with an introduction by M.N. Tikhomirov, Merilo Pravednoe po rukopisi xiv veka, Moskva, 1961. The most important copies of the Russian translation have been published by Ia.N. Shchapov, Vizantiiskaia “Ekloga zakonov”, Sankt-Peterburg, 2011. A translation of the Ecloga­

62

chapter 2

the Expanded Pravda, followed by the text of the Church Statute of Vladimir (No.29). The Expanded Pravda is the so-called Trinity or Troitskii i Copy, generally used in modern collections as being closest to the Expanded Pravda’s protograph. Of the leading Soviet medievalists, especially Tikhomirov and Iushkov have concerned themselves with the Merilo Pravednoe. According to Tikhomirov, the first nucleus of the collection may have been assembled by the Kievan metropolitan Nikifor at the beginning of the 12th century for the Kievan grand prince Vladimir Monomakh.34 Other legal texts, including the Expanded Pravda, were added later and this resulted in the collection of 30 texts which constitute the second part of the Merilo Pravednoe.35 Subsequently this collection was expanded by the addition of a much smaller collection of texts of a religious-educational character, in the manner of an extensive foreword, extolling the virtues of the ‘just judge’. The Merilo Pravednoe had its origin in ecclesiastical circles but was probably also used in secular courts.36 Iu.G. Alekseev has drawn attention to a hitherto neglected aspect of the Merilo Pravednoe and this approach resulted in a significantly different perspective. Alekseev pointed out that the exhortations of the first part of the collection were primarily addressed to the prince as supreme judge and to all other judges (secular as well as ecclesiastical). The Merilo Pravednoe appears then as a kind of comprehensive law collection for the use of all judges, and this of course adds considerably to its importance as a monument of medieval Russian law. Alekseev advanced these views in his study of the Code of 1497, which is regarded by him and many other Russian historians as the first comprehensive Russian law code after the Russkaia Pravda.37 In a more recent and detailed review of the literature and sources concerning the Merilo Pravednoe, K.V. Vershinin tentatively suggested that the metropolitan Kirill himself

into modern Russian was published by E.E. Lipshits, Ekloga. Vizantiiskii zakonodatel’nyi svod viii veka, Moskva, 1963; this translation was taken over (except Title xviii) in PRoP I, 431–452. 34 Tikhomirov, Issledovanie, 88–99, esp. 92–93. 35 Ibid., 91. S.V. Iushkov, Russkaia Pravda. Proiskhozhdenie, istochniki, ee znachenie, Moskva, 1950, 44. Shchapov, Vizantiiskoe, 154–155, added the point that the Serbian redaction of the Kormchaia, reaching Kiev around 1270, was the source for the Slavic Procheiron and Ecloga texts in the Merilo Pravednoe. 36 See also D. Kaiser, The Growth of the Law in Medieval Europe, Princeton, 1980, 23–24 and 26–29 where Kaiser discusses Iushkov’s theories concerning the Merilo Pravednoe. 37 Iu.G. Alekseev, Sudebnik Ivana iii. Traditsiia i reforma, Moskva, 2001, 77–79.

Sources

63

was responsible for the final compilation of the collection, which then is to be dated around the year 1280, a few years before or after.38 A revised version of the Merilo Pravednoe emerged in the 15th century, including a number of new texts and omitting certain old ones. This version is found in kormchie, where it has been included fully in the text of the kormchaia. The Rozenkampf (or Chudov) and Ferapontov recensions of the Expanded Pravda are found in such collections.39 The Knigi Zakonnye A collection known as Knigi Zakonnye (“Law Books”), consisting primarily of the Byzantine Farmer’s Law (Nomos Georgikos),40 has apparently been available in Russia at a comparatively early date.41 A small number of manuscripts is extant, of which the earliest is from the first half of the 15th century.42 The other components of the collection are the “Law on Penalties” (taken from titles 39 and 40 of the Procheiron), the “Law on Divorce” (taken from title 11 of the Procheiron), and the Chapters on Witnesses (from title 27 of the same law with some additions from title 14 of the Ecloga).43 The entire collection is therefore

38

K.V. Vershinin, “K voprosu o proiskhozhdenii Merila Pravednogo”, A.A. Gorskii (ed.), Srednevekovaia Rus’ 11, Moskva, 2014, 147–256. 39 Cf. Tikhomirov, Issledovanie, 107–127. 40 The Farmer’s Law, dating probably from the first decades of the 8th century, contains some older Byzantine (late Roman) law, but mostly reflects contemporary (Greek) customary law. Whether it was officially promulgated or should rather be regarded as a private description is uncertain. Cf. I.P. Medvedev (ed.), Vizantiiskii Zemledel’cheskii Zakon, Leningrad, 1984, 148–150; also: N. van der Wal, J.H.A. Lokin, Historiae iuris graeco-romani delineatio. Les sources du droit byzantin de 300 à 1453, Groningen, 1985, 65, 73–75. 41 The first substantial study on the Knigi Zakonnye was A.S. Pavlov, “Knigi Zakonnye”, soderzhashchie v sebe v drevnerusskom perevode vizantiiskie zakony zemledel’cheskie, ugolovnye, brachnye i sudebnye, Sankt-Peterburg, 1885. A.V. Soloviev in “Der Einfluss des Byzantinischen Rechts auf die Völker Osteuropas”, Zeitschrift der Savigny-Stiftung, Romanische Abteilung, Bd. 76 (1959), 432–479, states that the Knigi Zakonnye reached Russia in the 14th century, without offering any corroboration. Kaiser, Laws, li, believes that the text may already have been in circulation in Russia in the 13th century. 42 Medvedev, op.cit., 190–191, 199. The comments in this work are by E.E. Lipshits. The complete text of the Knigi Zakonnye is at 233–256. 43 Ibid., 191.

64

chapter 2

in substance Byzantine law, with some Russian editorial reworking. The Chapters on Witnesses appear also in other medieval Russian collections.44 Archives The physical sources required for the study of medieval legal history have a long history themselves. Time eventually wipes out everything and the further back one goes in time the scarcer the surviving sources. Legal sources have a better chance of survival if their possessors expect them to be of possible use in the future. Two other general considerations govern the survival of documents in Russian history: destruction, caused by Mongol-Tatar invasions in the 13th century and subsequent years, affected the North-West (Novgorod and Pskov) least of all; ecclesiastical depositaries (monasteries and cathedral registries) were more inclined and better equipped to preserve their documents than secular keepers. Almost all the direct legal sources mentioned above and the collections of which they formed part, as well as the various chronicles, ­kormchie and other collections, have come down to us, at least initially, through church archives. Some of them remained there until the October Revolution, but many others had already ended up in the Russian state archives before that time. A parenthetical caveat could be made at this point. Medieval legal history is one of those topics where study is based on a limited number of surviving sources. The loss of sources is usually not caused by random factors. The factors determining such losses (especially geographical location and the status of the original keeper in the case of the Russian middle ages) should be borne in mind when general conclusions are based on sources, the survival of which was conditioned by these factors. The oldest nucleus of the Russian state archives was the collection of wills and treaties of the (grand) princes of Muscovy, starting with the will of Ivan I Kalita (around 1339).45 These archives grew with the expansion of Muscovy. When the city of Pskov and the grand principality of Tver’ lost their independence at the end of the 15th century, their public archives were at least partially transferred to Moscow; it is unclear what happened to the archives of Novgorod. The fate of these collections has been charted in great detail by 44

45

Cf. Kaiser, Laws, li; and English translation of the Chapters on Witnesses at 116–121. The different texts of the Chapters on Witnesses show that they go back to different translations of the original Greek text. ddg No.1, 7–11.

Sources

65

L.V. Cherepnin.46 The matter is of considerable importance for legal history, because a number of important legal documents (such as the Court Charter of Pskov) have their origin in these collections. Among the church archives, those of the Troitse-Sergiev monastery are the richest. This monastery (the Troitse-Sergieva lavra, about 70 kms north of ­Moscow) was founded around 1350 by Sergius of Radonezh, one of the most eminent personalities in the history of the Russian Orthodox Church. In time, the monastery became the largest landowner in Russia after the ruler himself. Much of the enormous administration produced in the running of the monasterial estates has been preserved and has now ended up in c­ entral archives. Some of it had been published in pre-1917 collections and in 1929 S.B. Veselovskii and A.I. Iakovlev produced a fuller collection Pamiatniki sotsial’no-ekonomicheskoi­ ­istorii Moskovskogo gosudarstva xiv–xvii vv. (Moskva). This collection was ­superseded in 1952 by the first volume of Akty sotsial’no-­ekonomicheskoi istorii Severo-Vostochnoi Rusi kontsa xiv – nachala xvi v. (Moskva), edited by B.D. Grekov. It contained the texts of a dozen late 14th-century charters, more than 600 15th-century charters, and about 30 from the first few years of the 16th century.47 The publication of legal documents from monasterial and other archives has been continued energetically in post-Soviet times. The documents concerned are overwhelmingly of a non-normative nature, in other words, they do not contain laws and similar regulations, but document various transactions (sales, gifts, appointments, etc.). They will be discussed in greater detail in Chapter 11, on Charters (gramoty). After the Revolution, the numerous private archives of landowning families usually ended up in the State Archives. Important surveys have been published by A.V. Antonov and others.48

46

47

48

L.V. Cherepnin, Russkie feodal’nye arkhivy xiv–xv vekov, T.I, Moskva/Leningrad, 1948, T.II,  Moskva,. 1951. See also S.O. Shmidt, Rossiiskoe gosudarstvo v seredine xvi stoletiia. Tsarskii arkhiv i litsevye letopisi vremeni Ivana Groznogo, Moskva, 1984, which is devoted mainly to the formation of the state archives of Muscovy. The cut-off date of 1505/1506 is explained by certain reforms of Vasilii iii. 302 more charters from the same monastery from the following period (1505–1523) were published in A.A. Novosel’skii, L.V. Cherepnin (eds.), Akty Russkogo gosudarstva 1505–1523, Moskva, 1975 (comp. by S.B. Veselovskii). A.V. Antonov (ed.), Chastnye arkhivy russkikh feodalov xv – nachala xvii veka (Russkii Diplomatarii, vyp.8), Moskva, 2002, with an addendum by the same author in S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, No.17, Moskva, 2013, 440–489. Antonov also published four volumes of charters from archives of private landowners (Akty sluzhilykh zemlevladel’tsev

66

chapter 2

One of the major factors affecting the survival of documents in Russia has been the frequency of fires in Moscow, where buildings of wood were common well into the 19th century. Among the many great fires, the one in 1626 stands out for its effect on archives, because it destroyed most of the Kremlin, including the archives of many departments, such as the Pomestnyi Prikaz (the Department of Service Estates), which contained many cadastral registers (pistsovye knigi).49

Foreign Sources for the Prehistory of Russian Law

The period before the appearance of written sources of Russian law may properly be considered the prehistoric period. The most important of the early sources, as will be explained in greater detail below, are the Primary Chronicle (which contains the texts of the 10th-century treaties with Byzantium), the Russkaia Pravda (especially its oldest version, the Pravda of Iaroslav), and the earliest church statutes of the Russian grand princes Vladimir and Iaroslav. These take us back to the end of the 10th and the first part of the 11th century. This is also the time when Christianity was being adopted in Russia, and together with it, writing came to the country. There are several routes allowing the observer to penetrate into the prehistoric period. One is by using external written sources, which in the p ­ resent context primarily means Byzantine sources, but also sources of Eastern (especially Arab and Persian) and West-European origin.50 Then a certain amount of

49

50

xv – nachala xvii veka), Moskva, 1997 (I, together with K.V. Baranov), 1998 (ii), 2002 (iii), 2008 (iv). Among the great fires which destroyed most of Moscow, the following must be mentioned: 1382, by the Tatars under Tokhtamysh; 1571–1572, by the Tatars under Devlet-Girei; 1611, by the Poles; 1812, during the Napoleonic occupation. A detailed overview of foreign sources on early Russian history is provided by E.A. Mel’nikova (ed.), Drevniaia Rus’ v svete zarubezhnykh istochnikov, Moskva, 1999/2000. It contains chapters on classical (Greek and Latin), Byzantine, oriental (Arab and Persian), West-European, and Scandinavian sources, including extensive quotations. A second edition (amended) appeared, under the same tile, in 2013. Full translations into Russian have been published in the series Drevneishie istochniki po istorii narodov sssr (after 1990: Drevneishie istochniki po istorii narodov Vostochnoi Evropy), of which numerous volumes have appeared. Shorter excerpts in English in G. Vernadsky & R. Fischer (eds.) and S. Pushkarev (comp.), A Sourcebook for Russian History From Early Times to 1917, Vol.1, New Haven/London, 1972. As it became clear that the publication of the Drevneishie istochniki series would be a long drawn-out process, a

Sources

67

i­ nformation can be extracted by a process of retrograde e­ xtrapolation from the earliest Russian written sources. Finally, one may resort to the c­ onsideration of a variety of unwritten sources (material culture, general concepts ­supplied by various academic disciplines, etc.). These different approaches have ­enabled scholars to put forward suggestions about what Russian law during the ­period preceding the adoption of Christianity might have looked like. In all this, ­attention must mainly be directed towards the period immediately p ­ receding early Christian Kievan Russia, i.e. the 10th century. But in order to draw a ­balanced picture of the ethnic, socio-economic and political c­ ircumstances of Russia in the 10th century, a brief survey of the foreign sources for the p ­ receding centuries will be helpful, as well as an overview of the historic ­development of the ethnic situation, especially where it reveals southern Russia as a kind of marshalling-yard of a host of nomadic peoples of Indo-­European and UralAltaic origin. The earliest foreign sources are Greek. The first Greek colonies on the coast of the Black Sea were founded around 700 b.c. and two centuries later they were to be found all along the coasts of the Black Sea and the Sea of Azov. Much of the information in classical Greek sources is based therefore on first-hand information.51 The presence of mediterranean civilization continued under the Romans, until it was engulfed in the course of the great migrations of the fourth century a.d. (Völkerwanderung).52 Along with Herodotus (c.490/480c.412 b.c.) and Strabo (68–20 b.c.), the cartographer Ptolemy should be mentioned, who worked around the middle of the 2nd century a.d. His works show

51

52

practical­and intermediate solution was devised through the publication of a less ambitious series, Drevniaia Rus’ v svete zarubezhnykh istochnikov, which aimed at publishing the most important foreign sources on early Russian history (quoted below as Mel’nikova, Istochniki). The series was published under the general editorship of T.N. Dzhakson, I.G. Konovalova & A.V. Podosinov in five volumes in 2009–2010 and consisted of the following: i. Antichnye istochniki, A.V. Podosinov (comp.), Moskva, 2009. ii. Vizantiiskie istochniki, M.V. Bibikov (comp.), Moskva, 2010. iii. Vostochnye istochniki, T.M. Kalinina, I.G. Konovalova & V.Ia. Petrukhin (comps.), Moskva, 2009. iv. Zapadnoevropeiskie istochniki, A.V. Nazarenko (comp.), Moskva, 2010. v. Drevneskandinavskie istochniki, G.V. Glazyrina, T.N. Dzhakson & E.A. Mel’nikova (comps.), Moskva 2009. After Herodotus’ historical works, Strabo’s Geografika, written around the beginning of the Christian era, is of prime importance. Strabo himself was born in Amasya (presentday Turkey), on the Black Sea coast. The Roman poet Ovid († a.d. 17) spent the last nine years of his life in exile in Tomi (Constanţa) on the Black Sea coast in present-day Romania.

68

chapter 2

that the level of knowledge of the classical authors about the Black Sea coast and its immediate hinterland was quite high. After the Roman empire had broken up in 395 a.d. (upon the death of emperor Theodosius the Great) into an eastern and a western part, it was especially the eastern part, surviving for a thousand years as the Byzantine empire, which was most closely involved in developments in southern Russia.53 The early Byzantine historian Procopius of Caesarea (who lived during the first sixty years of the 6th century) reported in his Histories (also known as Books About the Wars) the presence in southern Russia of the Sclaveni and Antae and added a detailed description of their way of life.54 Similar information is given by the emperor Mauricius (deposed and killed in 602) in his handbook Strategikon; he added a long discussion on how to wage war with the Slavs and the Antae. During the following centuries Byzantine sources concerning the area north of the Black Sea became more abundant. In the Life of George of Amastris (dated by some around 840 and by others around 940) a raid of Rós invaders (probably Vikings) is described, “a nation, as everybody knows, most ferocious and coarse”.55 The Russian attack on the city of Constantinople in 860 (as reported in the Primary Chronicle) is mentioned by several Byzantine authors and especially by Photius, who as patriarch at that time played a major role in repelling the attack (the emperor being away on an expedition against the Saracens).56 The way long-distance trade by water in Russia was realized is explained in considerable detail in De administrando imperio, the instruction book written for his successors by the emperor Constantine Porphyrogenitus (905–959). The author distinguished clearly between the Russes (Scandinavians) and the Slavs and offered many names and terms in both their Scandinavian and Russian

53

Ammianus Marcellinus, who died around 395, was the last of the pagan Roman historians; he served as a Roman officer in the eastern part of the empire and his information on places and population is therefore to some extent based on personal observation. 54 Mel’nikova, op.cit., 82, offers a Russian translation; the chapter on Byzantine sources ­(69–168) is by M.V. Bibikov. See also on this topic G.V. Vernadskii, Istoriia Rossii, Drevniaia Rus’, Tver’/Moskva, 1996, 141–142 and 182–183. 55 Greek and Russian texts in V.G. Vasil’evskii, Trudy V.G. Vasil’evskogo, T.3, Petrograd, 1915, at 64. See also Bibikov, op.cit., 90–92. 56 Cf. Bibikov, 93; J.J. Norwich, Byzantium: The Apogee, London, 1991, 66–68. The episode is not only related by Photios himself, but also more extensively in the “Continuation of Theophanes the Confessor” (covering the period of 813–961), where a connection with the baptism of Russia is made, cf. Bibikov, 103–105.

Sources

69

forms.57 He also explained the custom of poliud’e, the winter circuit of the Kievan princes, in order to collect tribute.58 The late Russian prehistory period is also covered by the Byzantine chronicles of these centuries. Theophanes the Confessor (c.758–818) continued the annals of George the Syncellus (Georgios Synkellos) and dealt with the period of 284–813. A continuation of the work by Theophanes the Confessor by anonymous authors covers the period until 961 (Scriptores post Theophanem). Another important source is the chronicle by Georgios Hamartolos (George the Monk), who lived in the 9th century. His Chronicon Syntomon covers the period until 842; it is continued by the work of Georgios Continuatus (also known as George the Logothete), leading up to the year 948. These works served as major sources for the Russian Primary Chronicle; the introductory part of the latter contains a long direct quotation from Hamartolos. The last decades of the 10th century were covered by Leo the Deacon (Leo Diaconus). In Western Europe the level of civilization during the same period was not as elevated as in Byzantium; also, relations with Eastern Europe were not as intense on account of the geographical factor. Sources from Western Europe for the period in question are therefore much scarcer and cover a shorter period. The first mention of Russia is in the Annales Bertiniani, written by Prudentius, the chaplain of Charlemagne’s son and successor, Louis the Pious (814– 840), and the latter’s son and successor, the West-Frankish king Charles the Bald (840–877). These annals report the visit of a diplomatic mission from the Byzantine emperor Theophilus (829–842) to emperor Louis; the mission also included persons belonging to the Rhos, a nation ruled by a prince called the chacanus. After further investigation, Louis established that they were Swedes.59 In 949, Liutprand, a cleric in the service of Berengar, marquess of Ivrea and ruler of most of Italy, visited the Byzantine court and left behind a detailed 57

58

59

See M.Iu. Braichevskii, “«Russkie» nazvaniia porogov u Konstantina Bagrianorodnogo”, P.P. Tolochko (ed.), Zemli Iuzhnoi Rusi v ix–xiv vv. (Istoriia i arkheologiia), Kiev, 1985, 19–30. The Russian term is used and then translated. In the Primary Chronicle, the first mention of poliud’e is for the years 946–947, when princess Olga is mentioned collecting tribute in wintertime. F. Grat, J. Vieillard, P. Clémencet (eds.), Annales Bertiniani: Annales de St.Bertin, Paris, 1964; English translation: J.L. Nelson, The Annals of St-Bertin, Manchester, 1991. Further discussion in Mel’nikova, op.cit., 288–290 (the chapter on West-European sources, pp. 259–407, is by A.V. Nazarenko); Cross/Sherbowitz-Wetzor, 41; S. Franklin, J. Shepard, The Emergence of Rus 750–1200, London/New York, 1996, 29–31.

70

chapter 2

description (Antapodosis), in which he reported extensively about the Russian (Viking) attack on Constantinople by the Kievan prince Igor in 941.60 Several decades before the conversion of Russia, during the years 960–962, the German cleric Adalbert was sent to Russia as a missionary bishop by the German king Otto I61 and the archbishop of Mainz. The mission is mentioned in several German sources, but although it is of great interest for diplomatic and ecclesiastical history, the reports contains nothing of importance from the point of view of Russian legal history.62 The mission was a failure and Adelbert later on became the first archbishop of Magdeburg. The Arab-Persian sources are more or less contemporary with the WestEuropean ones. Under the khalifate of the Abassid dynasty (since 750) Bagdad had become the capital of the Muslim empire and one of the major commercial centres of the time. The important trading route from Scandinavia to the Middle East traversed Russia. The first description of this route, or rather the various routes available, was given by ibn Khurradadhbih (Ibn Khordadbekh in Russian works), an Iranian geographer (c.820-c.912), born on the coast of the Caspian Sea in present-day Iran.63 The Russians are referred to as ar-Rus in Arabic. Another Persian author, ibn Rusta, offered a more detailed description of the way of life of the ar-Rusii and from this description it is clear that he had the Scandinavian traders in mind.64 The most valuable Muslim source on 60

“Liudprandi episcopi Cremonensis Antapodosis”, J. Becker (ed.), Die Werke Liudprands von Cremona, mgh ss rer. Germ. T.41. Liudprand later on became bishop of Cremona and went to Constantinople again in 968, this time as ambassador of the emperor Otto i. The record of this second mission “Relatio de legatione Constantinopolitana” appears in the same volume. Liudprand’s works were published in Russian translation in Liutprand Kremonskii, Antapodosis; Kniga ob Ottone; Otchet o posol’stve v Konstantinopol’ (I.V. D’iakonov, ed.), Moskva, 2006 Earlier but more succinct mention of West-European-Russian relations in Descriptio civitatum et regionum ad septentrionalem plagam Danubii sive Geographus Bavarus, from the second half of the 9th century, and in the Inquisitio de teloneis Raffelstettensis of 904/906 (mgh leges ii.2, Capitularia regum Francorum). Both texts also in A.V. Nazarenko (ed.), Nemetskie latinoiazychnye istochniki ix–xi vekov: Teksty, perevod, kommentarii (Drevneishie istochniki po istorii Vostochnoi Evropy), Moskva, 1993. See also Mel’nikova, Istochniki, 292–297. 61 Otto i the Great (912–973) was crowned Roman emperor in 962. 62 Further details in Mel’nikova, Istochniki, 303–308. See also Franklin and Shepard, op.cit., 136–137. 63 See Mel’nikova, Istochniki, 204–208; the chapter on Arab-Persian sources (169–258) is by I.G. Konovalova; Franklin and Shepard, 42–43. 64 Ibn Rusta’ s work was written in the years 903–913. See Mel’nikova, Istochniki, 208–210; Franklin and Shepard, 45–46.

Sources

71

early Russian history is ibn Fadlan, who himself visited the Middle Volga area in 921–922 in the capacity of secretary to a diplomatic-missionary delegation, intended to convert the Volga Bulgars to Islam. Ibn Fadlan’s account relates his observations concerning the Russian traders and again it is uncontested that he is referring to Scandinavians.65 Of equal importance are the works of Masudi (d. 956), an Arab scholar who travelled widely around the entire Muslim world. On the southern coast of the Caspian Sea he was able to acquire firsthand information on the activities of Russian merchants.66 Scandinavian sources on early Russian history concern the period after Russia’s­Baptism and are therefore of no direct relevance to the prehistoric era.67 The foreign sources surveyed above produce a general impression of the state of affairs in Russia, especially its southern regions, in the centuries preceding the adoption of Christianity. The overall picture agrees with what can be inferred from the Russian Primary Chronicle where it relates to the more distant past of Russia. A Slavic population had been present for several centuries; their social development was still at the level of relatively small tribes, without marked social differentiation or significant inter-tribal organization. They lived in inaccessible places and were engaged in small-scale agriculture and cattle breeding (Procopius, Mauricius). The first reports about the appearance of Varangians (Vikings) are from the middle of the ninth century (Theophilus Continuatus, Life of George of Amastris, patriarch Photius, the Bertinian Annals) and become more numerous in the 10th century. Foreign authors were of course primarily concerned with the warlike activities of sea-borne Varangian bands, but their trading activities were also noticed (Constantine Porphyrogenitus, Theophanus Confessor, Ibn Khurradadhbih, Ibn Rusta, Masudi). The relationship between the Varangians and the Slavic population is discussed by several authors; the effective military power and mobility of the Varangians and their access to wealth through trade gave them a strong position in their dealings with the sedentary local population, notwithstanding their insignificant numbers (Constantine Porphyrogenitus, Theophilus Confessor). Although explicit references fail, one may infer that the 10th century also saw the merger of the ethnic components (Slavic and Varangian) which would produce Kievan Russia. Similar processes took place in many European countries during the early middle ages, and a Viking element was often involved. 65 Mel’nikova, Istochniki, 213–215; Franklin and Shepard, 43–44. 66 Mel’nikova, Istochniki, 220–221. 67 The authors (G.V. Glazyrina, T.N. Dzhakson and E.A. Mel’nikova) of the chapter on Scandinavian sources in Mel’nikova, Istochniki, 408–563, suggest that a painstaking analysis of the Scandinavian data may yield useful information on the most ancient period.

72

chapter 2

The result in Russia was the complete absorption of the Scandinavian component within a few generations, an indication of the small number of persons involved, although their impact as leaders in the 10th and 11th centuries was considerable. Most of the 10th-century reports concern the frequent Russian raids against prosperous towns along the coast of the Black Sea and especially the attacks against Constantinople (e.g. Liutprand of Cremona, Masudi, Leo the Deacon). Some of the reports mention the early Kievan princes (Oleg, Igor, Sviatoslav) and it is obvious that operations which were considered as vital threats by the Byzantine empire could not have been carried out by armed bands of Vikings, but required full-scale armies which the Varangians alone could never muster.

Publication of Texts, Literature, Bibliography

In a physical sense, the numerous and various sources discussed above reach most of us ultimately in paper form, as books or periodicals (if we can regard electronic storage of texts as a derivative of texts on paper). Original medieval sources have nearly always been lost, and the few that are extant can only be consulted by a small number of experts. In the discussion of the most important sources of medieval Russian law in the following chapters the principal publications of the texts concerned, as well as the main literature about these texts, will be reviewed. This section attempts to offer an overview of what will be explained in greater detail under specific topics. Publication of Texts Before 1917, the most ambitious publication of Old-Russian laws and legal texts was achieved by M.F. Vladimirskii-Budanov (1838–1916), professor of legal history, first in Iaroslavl’, then in Kiev.68 The three volumes of his anthology contained all the important legislative and treaty texts, from the beginning up to the Code of tsar Aleksei Mikhailovich of 1649, as well as a number of the most significant charter texts. A special feature of this work is that it also included a number of texts from the part of Russia which was under the control of the Polish-­Lithuanian monarchs (see Chapter 17, on Western Russia). All texts were accompanied by often lengthy comments by the author.

68

M.F. Vladimirskii-Budanov, Khristomatiia po istorii russkago prava, vol.1, Iaroslavl’, 1872, vol.2, Iaroslavl’, 1873, vol.3, Iaroslavl, 1875; the 5th edition (Kiev, 1899, 1915, 1889) is most widely used and cited.

Sources

73

In Soviet times, a similar but much wider-ranging project was undertaken, first under the general editorship of the leading legal historian of the midSoviet era, S.V. Iushkov (1888–1952); volumes 3–5 and 7 appeared under the general editorship of L.V. Cherepnin (1905–1977), and volumes 6 and 8 under the general editorship of K.A. Sofronenko. The central figure in the actual organization and compilation of volumes 1–5 was A.A. Zimin (1920–1980).69 The first volume started with the 10th-century treaties with Byzantium and included the Russkaia Pravda and the Church Statutes of Vladimir and Iaroslav; the eighth volume contained the most important legislation of Peter the Great, the last item being a decree of 1724 on the building of fortifications along the Ural Mountains. The first three volumes covered the period until 1497 (the Code of Ivan iii). The Pamiatniki russkogo prava included not only actual legislation but also numerous other items of interest for legal history, such as the wills of ruling princes, court judgments and all kinds of other charters, directives of Tatar khans, etc. All documents were accompanied by comments, written by the best experts; the publication was indeed itself a monumental achievement and is still a basic reference tool. The more recent nine-volume “Russian Legislation from the 10th to the 20th Centuries” had a somewhat different focus.70 It limited itself to legislation alone, but extended its reach right up to 1917. The Code of 1497 and some contemporary Muscovy legislation is found in the second volume; on the whole, its coverage of the Russian middle ages was not as wide as that offered by the Pamiatniki. The practice of accompanying comments by leading authors was continued and, because of many new insights and achievements, this represented a genuinely new contribution. The first volumes of a somewhat comparable series began to appear in 2013. The series was named “Monuments of Russian [Rossiiskogo] law in 35 volumes” and was announced as covering the entire period of Russian legal history, down to the dissolution of the ussr (1991). R.L. Khachaturov was the general editor of the series; he was also the author of the main sections on the rp and the treaties with Byzantium in the first volume. The period up to 1649 (the Council Code of tsar Aleksei) was covered by vols.1, 2, and 3 (Parts 1–3).71 The following remarks concern only these volumes. 69 70 71

Pamiatniki russkogo prava, Moskva, 1952 (i), 1953 (ii), 1955 (iii), 1956 (iv), 1959 (v), 1957 (vi), 1963 (vii), 1961 (viii). O.I. Chistiakov (gen. ed.), Rossiiskoe zakonodatel’stvo x–xx vekov, Moskva, 1984 (i), 1985 (ii), 1985 (iii), 1986 (iv), 1987 (v), 1988 (vi), 1989 (vii), 1991 (viii), 1994 (ix). R.A. Khachaturov (general editor), Pamiatniki rossiiskogo prava v tridtsati piati tomakh; T.I, Pamiatniki prava Drevnei Rusi, Moskva, 2013; T.II, Pamiatniki prava udel’noi Rusi,

74

chapter 2

In the second volume Khachaturov co-authored the sections on the Pskov and Novgorod court charters, but otherwise he confined himself to contributing a foreword to the volumes published to date and, presumably, to the overall co-ordination of the series. The team of authors (exclusively lawyers) assembled by him was recruited mostly from peripheral institutions for legal education; contributors from the leading Academy of Sciences institutions and the old universities of Moscow and St.Petersburg were not involved. Khachaturov’s own views and the choice of contributors invited by him decisively affected the general format of the series and thereby its strengths and weaknesses. Although Khachaturov’s footnotes indicated that he was not unfamiliar with recent Russian literature on his subject, the numerous new insights presented by it apparently had little influence on the general concepts which Khachaturov believed to be basic for a proper understanding of the topic. Khachaturov’s way of thinking remained fully Soviet-Marxist, with all the trappings of class struggle, feudalism, and so on. Typically, he devoted an entire chapter to an angry refutation of “Normanism”, which in view of the enormous work done in connection with this question in recent years by Russian­scholars is, to say the least, astonishing. On the other hand, some of the authors and commentators recruited by Khachaturov have contributed in an innovative way by drawing attention to forgotten and under-exposed topics.72 In sum, the new series, notwithstanding its impressive size, is academically inferior to its two predecessors, although it retains considerable practical usefulness. (As an example, the text of the two versions of the Russkaia Pravda is presented only in translation into modern Russian; this is convenient for the uninformed reader, but frustrates serious inquiry, in view of the presence of diverging copies and the uncertainty of many translations.) Of no direct interest for the study of medieval Russian law is the series of publications in the “Russian Legal Heritage” (Russkoe Iuridicheskoe Nasledie) collection in which the most important later legislation is included, beginning with the Code of Aleksei Mikhailovich of 1649; these texts were all taken from the “Complete Collection of Laws” (Polnoe Sobranie Zakonov).73

72 73

­Moskva, 2013; T.III, Pamiatniki prava Moskovskogo gosudarstva i, Moskva, 2013; id., ii and iii, Moskva, 2014. E.g. the chapters on the church statutes and other questions of church law by Iu.V. Ospennikov in PRoP i, 453–507. The volumes are not numbered consecutively, but devoted to the legislation of the reign of a particular ruler (tsar, then emperor or empress) and cover the reigns of tsar A ­ leksei

Sources

75

An English translation of a few of the most important legislative materials from medieval Russia was produced by G. Vernadsky (the Short and Expanded Version of the Russkaia Pravda, the Charter of Dvina Land, and the Court Charters of Pskov and Novgorod).74 A more recent and much fuller collection is available as the first volume on medieval Russia in the series “The Laws of Russia”­(texts translated and edited by D.H. Kaiser).75 A more modest collection of French translations, accompanied by comments, was published by M. Szeftel and A. Eck.76

George vernadsky

George Vernadsky was born in Moscow in 1887, the son of Vladimir Vernadskii, professor of geology at the University of Moscow. He studied history in Moscow from 1905 to 1910, with a break in the restless year 1906, when he spent half a year in Germany. In 1911 he accepted a post at the University of St. Petersburg, as an assistant to the well-known historian S.F. Platonov. After completing his dissertation in 1917, he received an appointment at the Omsk Polytechnic, but never reached his destination on account of the revolutionary unrest in the country. He was stranded in Perm’, where he remained until the bolsheviks took control in January 1918. He was forced to flee (he had been an active member of the Cadet Party) and rejoined his parents in Kiev. He engaged in various activities in the Ukraine (including some work as press chief for general Wrangel), until he was forced to emigrate in October 1920. He then spent several years in Prague as a prominent member of the Russian intellectual community there. In 1927 he emigrated to the United States, where he started to teach Russian history at Yale. For many years he worked on a monumental history of Russia, of which the first volume was published in 1943 and the fifth in 1968. It covered the period up to 1682. Vernadsky died in New Haven in 1983, one of the intellectual giants of the Russian emigration.

74 75 76

Mikhailovich up to emperor Aleksandr i (1812–1825). There are no footnotes or comments, but introductory essays by V.A. Tomsinov. G. Vernadsky (transl. & introduction), Medieval Russian Laws, New York, 1947. D.H. Kaiser (ed. and transl.), The Laws of Rus’ – Tenth to Fifteenth Centuries, Vol.1 of Series i: Medieval Russia, of The Laws of Russia (Ch. Schlacks, gen. ed.), Salt Lake City, 1992. M. Szeftel, A. Eck (eds.), Documents de droit public relatifs à la Russie médiévale, Bruxelles, 1963.

76

chapter 2

General Textbooks The tradition of producing comprehensive treatments of a large field was at its strongest in the latter half of the 19th and the first part of the 20th century. Such works were primarily conceived as university textbooks. In Russia, a few were specifically devoted to legal history, but the ones devoted to general medieval history are usually still of great interest to the legal historian, because (as pointed out in the previous chapter) the fields of general medieval history and of the history of medieval law overlap to a considerable extent. The principal general works from before 1900 will only be discussed here briefly, as they are well-known and publicized through modern reference works. The “Russian History” of V.N. Tatishchev (1686–1750) embraced the period from Slavic pre- and proto-history to 1682, the death of tsar Fedor Alekseevich.77 Apart from its other merits, its really unique feature is that the author made use of chronicles and other documents that were lost in the fire of Moscow­in 1812. The emperor Aleksandr i commissioned N.M. Karamzin (1766–1826) to write a comprehensive history of Russia. The result was the “History of the Russian State”, which appeared in twelve parts in 1816–1829.78 Karamzin, like Tatishchev before him, took the succession of Russian rulers as the skeleton of his work. The very valuable footnotes take up almost half the pages of the work and, additionally, several indices add to the usefulness of the text itself. While the works of Tatishchev and Karamzin contain much that is of interest to the legal historian, their main theme was the political history of Russia.­The “Course of Russian History” of the Moscow history professor V.O. Kliuchevskii (1841–1911) adopted a much wider perspective and paid extensive attention to economic, social, legal and other aspects.79 Many of Kliuchevskii’s views were already controversial in his own time and are generally rejected nowadays, but his daring hypotheses and engaging inquisitiveness make the reading of his history still worthwhile. The five volumes of his Course consist of 86 lectures, reaching up to the reign of emperor Aleksandr ii (†1881), and are equipped with extensive footnotes. 77 78 79

V.N. Tatishchev, Istoriia Rossiiskaia; it was only published posthumously and often, almost continously, republished afterwards. N.M. Karamzin, Istoriia gosudarstva rossiiskago; many editions (I have used the republication of the 1842–1844 Sankt-Peterburg edition, Moskva, 1988). V.O. Kliuchevski, Kurs russkoi istorii, included in his collected works (Sochineniia), several editions (I have used the Moscow 1956–1959 edition in eight volumes, where the Course takes up the first five volumes).

Sources

77

Among the works of legal historians, those of Sergeevich and Vladimirskii-Budanov stand out. V.I. Sergeevich (1832–1910), after a short stint at the university­of Moscow, spent the rest of his life (since 1872) at the university of Saint-Petersburg, where he wrote two major works on medieval Russian legal history. The Lektsii i issledovaniia (“ Lectures and Investigations”), first published in 1883,80 were structured according to the traditional model: an opening chapter on the sources of law, then four chapters on state law, criminal law, civil law, and court procedure. Sergeevich was probably aware of the restrictions imposed by this approach. It produced a map with many blank spaces: topics on which medieval law was silent. Also, for people living in the middle ages, the law was not compartmentalized the way people are accustomed to during the last few centuries. All through the work, the author allowed himself considerable freedom in inserting discussions of topics which somehow broke through the rigid frame he had selected. Most of the chapter on sources was actually devoted to the Russkaia Pravda. The chapter on state law was mostly about the organization of the Muscovy government. The chapter on civil law had nothing on obligations and contracts, but was elaborate on marriage, family, and inheritance law. A long Appendix on the 10th-century treaties with Byzantium followed the five chapters. In the Drevnosti russkago prava (“Antiquities of Russian Law”), first published in 1890, Sergeevich abandoned the traditional method.81 The first sentence of the introduction to the 1890 publication suggested the path he chose. “Only the reading of the real sources themselves [chtenie podlinnykh pamiatnikov] can yield a genuine understanding of the past.” In other words, it is better to be guided by whatever materials we have at our disposal, than by a preconceived format. This induced Sergeevich to select certain themes, suitable for a coherent examination on the basis of available documents and this resulted in chapters on “Territory”, “Population”, “Armed Forces”, “Popular Assembly [Veche]”, “Prince”, “Use of Land” and “Taxation”. The first three chapters were combined in a first volume, the chapters on the Veche and the Prince constituted the second volume, and the last two chapters the third volume. The chapters on Population and Prince each took up more than half of the volume in which they were included and comprised a great variety of topics. The chronological span of the Drevnosti (notwithstanding the name) was wider than that of the Lektsii; they covered in principle the entire history of 80 81

V.I. Sergeevich, Lektsii i Izsledovaniia po drevnei istorii russkago prava, Sankt-Peterburg, 1883, 1888 (2nd ed.), 1890 (3rd ed.), 1903 (4th and standard ed.). V.I. Sergeevich, Drevnosti russkago prava, TT.I, II, Sankt-Peterburg, 1890, 1901 (2nd ed.), 1909 (3rd ed.), T.III, Sankt-Peterburg, 1903.

78

chapter 2

Russian law until the end of the 17th century, although the accent remained very much on earlier periods. The superior quality of Sergeevich’s works, especially the Drevnosti, stand out if they are compared with some more or less contemporaneous publications, such as the textbook written by Sergeevich’s own teacher, the Moscow professor I.D. Beliaev; this was a straightforward collection of classroom lectures, without much intellectual debate and lacking footnotes or references.82 Vladimirskii-Budanov’s anthology has been mentioned above. He was also the author of a highly successful textbook on the history of Russian law.83 In this work, of which the first edition appeared a few years after the first publication of Sergeevich’s Lektsii, the author adopted the same traditional approaches, but combined these with a much stricter periodization. This allowed Vladimirskii-­Budanov to be more flexible in the organization of his different chapters. The work treated the entire period of Russian legal history, from the beginning to the 19th century. It was divided into two main parts, Russian state law and other branches of Russian law (criminal, civil and procedural law). These two parts were each sub-divided into chapters on the consecutive periods, the early period (called the period of the “lands”, zemskii period), the period of Muscovy and the imperial period.84 In his introduction Vladimirskii-­ Budanov stated that Russian legal history was about the history of the law applicable to (ethnic) Russians, and did not cover therefore the law of other nations in the Russian Empire, but did encompass the law of the Polish-Lithuanian state, insofar as it applied to Russians. He did not quite live up to this position and limited himself to brief incidental excursions on this topic. M.A. D’iakonov (1856–1919) taught Russian legal history in the ancient university of Dorpat (Iur’ev, now Tartu), until he was forced to leave his post in the aftermath of the unrest in Russia after the disastrous war against Japan in the years 1905–1906. His main work “Essays on the Public and State Structure of Old Russia” was written for his students and published in a small edition which was immediately sold out. The second edition of 1908 is therefore the 82 83 84

I.D. Beliaev, Lektsii po istorii russkogo zakonodatel’stva, Moskva, 1879, 1888 (2nd ed.), 1888 (3rd ed.), republished in Moscow in 2011. M.F. Vladimirskii-Budanov, Obzor istorii russkago prava, Kiev, 1886 (1st ed.), 1915 (7th and standard ed.). As an example of the author’s flexibility: the chapter on state law in the first period covered a large number of topics; as to criminal law, the author then used the term “criminal law in the period of the Russkaia Pravda” and only discussed that theme; the chapter on civil law has nothing on the first period and is very brief on the third period.

Sources

79

standard text.85 He followed other authors in dividing the material into two major chronological parts, a first period from the beginning to the establishment of Moscow hegemony, and a second period until the Code of tsar Aleksei Mikhailovich of 1649. As the title of his work indicates, the accent is very much on ‘public law’, there is no special treatment of criminal or civil law subjects. On the other hand, the two periods are sub-divided into only three and two very large chapters (sources, state structure, and administration for the first period, and sources and state structure for the second period) and within these large chapters most of the topics discussed in the works of the author’s predecessors pass the review. A.E. Presniakóv (1870–1929) was the most important figure in the transition after the October Revolution. He started lecturing as a privat-dotsent at the University of Sankt-Peterburg in 1907. In 1909 he published a still relevant study on the legal status and legal activities of the prince in Kievan Russia.86 After 1917 his views moved closer to the Marxist-dominated historical consensus, without embracing it completely.87 At the time of his death he had made it to be a corresponding member of the ussr Academy of Sciences. One year later, many of his colleagues with a similar ‘bourgeois’ background were arrested. Presniakov’s lecture notes, dating from 1907–1916, were published posthumously in two volumes, one devoted to Kievan Russia, the other to Western Russia and the Lithuanian-Russian state.88 This second volume made him the first major author who paid due regard to the fact that the greater part of ethnic Russian territory had a history of its own during much of the middle ages. In other aspects as well, Presniakov’s work was outstanding by its erudition, originality and openness to comparative analysis. In both volumes, questions of legal history take up about half the available space (prince, government, veche, the Russkaia Pravda and other legislation). A more eccentric legal historian, who also had a role in the transition to the Soviet period, was N.P. Pavlov-Sil’vanskii (1869–1908). His main work 85 86

87

88

M.A. D’iakonov, Ocherki obshchestvennogo i gosudarstvennogo stroia Drevnei Rusi, SanktPeterburg, 1908 (2nd ed.). A.E. Presniakov, Kniazhoe pravo v drevnei Rusi. Ocherki po istorii x–xii stoletii, published as Part xc in the Zapiski istoriko-filologicheskago fakul’teta Imperatorskago S.-Peterburgskago Universiteta, Sankt-Peterburg, 1909. On Presniakov, see A.Iu. Dvornichenko, “A.E. Presniakov–issledovatel’ Kievskoi Rusi”, A.Iu. Dvornichenko (ed.), Issledovaniia po istorii Srednevekovoi Rusi. K 80-letiiu Iuriia Georgievicha Alekseeva, Moskva/Sankt-Peterburg, 2006, 35–46. A.E. Presniakov, Lektsii po russkoi istorii, T.I: Kievskaia Rus’, Moskva, 1938, T.II: Zapadnaia Rus’ i litovsko-russkoe gosudarstvo, Moskva, 1939.

80

chapter 2

“­ Feudalism in Russia” covered a large number of legal topics for the periods of Kievan Russia and its aftermath (the independent principalities), roughly up to the Mongol invasion.89 Everything was directed at proving that developments in medieval Russia were essentially the same as those in Western Europe and that Kievan Russia was therefore the period of feudalism in Russia. A considerable part of Pavlov-Sil’vanskii’s efforts was spent in refuting his opponents and in explaining West-European medieval institutions which, in his view, were the same as their Russian counterparts. As a guide to Russian legal history of the middle ages, Pavlov-Sil’vanskii is therefore less successful. Although he was a left-wing liberal and certainly not a full-blown Marxist, his views on feudalism were welcomed by the classic Soviet school of Grekov. In the Introductory Chapter it has been pointed out that legal history as an academic discipline assumed a different role during the Soviet era. At least in theory all links with the legal past from before 1917 had been cut off and the history of law appeared therefore more as a branch of general history than as a supporting discipline for general legal studies. Still, much valuable work on Russian legal history has been done during the Soviet era, generally by historians. History of state and law (as was the official designation then) was studied along with history of agriculture, of political thought, of commerce, of serfdom, etc. Among the leading Soviet medievalists, the only person who had originally been trained as a lawyer was S.V. Iushkov (1888–1952). After the Revolution, Iushkov, then a young law professor in Saratov, had wholeheartedly sided with the new regime. Although he wrote on all periods of Russian legal history, his main interest was in medieval law. He produced well-researched and innovative studies on the Russkaia Pravda and other monuments of medieval law, but in this work he had set himself the task of infusing the entire field of legal history with Marxist-Leninist ideology. The Marxist understanding of feudalism was the key concept in this respect. He is therefore rightly considered as the founding father of Soviet legal history. Among his impressive output is the only comprehensive Soviet textbook on the history of state and law of the ussr.90 As this work attempts to cover the legal history, not only of Russia, but of all other Soviet republics as well, it is inevitably somewhat superficial. 89

90

N.P. Pavlov-Sil’vanskii, Feodalizm v Rossii (S.O. Shmidt, ed.), Moskva, 1988. This edition united two original works, Feodalizm v Drevnei Rusi, of 1907, and Feodalizm v udel’noi Rusi, of 1910. S.V. Iushkov, Istoriia gosudarstva i prava sssr, Part i (which dealt with the entire period up to 1918), Moskva, 1940 (1st ed.), 1947 (2nd ed.), 1950 (3rd ed.).

Sources

81

More satisfactory is his volume on the socio-political structure and law of the Kievan state.91 This work dealt with the legal history of Kievan Russia in the 10th-12th centuries and has retained its status as one of the most basic general studies on the topic. In the early years of Soviet power, M.N. Pokrovskii (1868–1932) emerged as the founder of Marxist-Leninist historiography; along with his scholarly activities, political work took much of his time. He was a close collaborator of Lenin. In his major work “Russian History from the Earliest Times on”92 he attempted to present a view of Russia’s history from a principled Marxist point of view; after the 8th edition of the work in 1934, Pokrovskii posthumously fell foul of the new Stalinist orthodoxy. For the legal historian there is little of direct interest in Pokrovskii’ works. This need not be said about Pokrovskii’s successor as the undisputed leader of the Soviet medievalists of the Stalin era, B.D. Grekov (1882–1953). For many years his views were not only dominant, but also obligatory, or at least practically unassailable for his colleagues. But his position rested not only on his political prominence, but on academic excellence as well. Apart from directing huge collaborative projects, such as the three-volume Academy of Sciences edition of the Russkaia Pravda, Grekov wrote on a bewildering variety of subjects in the field of medieval studies with great expertise and clarity, if one closes one’s ears to the outbursts of sycophantic admiration for the genius of Stalin and Lenin. One of his major works, “Kievan Russia”, for many years an almost canonical text in the ussr, also covered many topics concerning the law of the Kievan era.93 Another Soviet medievalist whose works were of great relevance to Russian legal history was L.V. Cherepnin. His two-volume study on the principal medieval archives (especially of the Muscovy grand princes and of the metropolitanate) was in fact a voluminous commentary on almost all important legislative and other legal documents from the Russkaia Pravda to the Code of 1497 of Ivan iii.94 A.A. Zimin has been mentioned above as the central person in the “Monuments of Russian Law” series. Apart from this, most of his impressive oeuvre 91

92 93 94

S.V. Iushkov, Obshchestvenno-politicheskii stroi i pravo Kievskoi Rusi, Moskva, 1949. The less ambitious Ocherki po istorii feodalizma v Kievskoi Rusi, Moskva/Leningrad, 1939, can be regarded as its forerunner. M.N. Pokrovskii, Russkaia istoriia s drevneishikh vremen (in five volumes), Moskva, ­1910–1913. Republished as Russkaia istoriia in three parts, Moskva, 2005. B.D. Grekov, Kievskaia Rus’, Moskva, 1953. English translation published in the ussr: Kiev Rus, Moscow, 1959. L.V. Cherepnin, Russkie feodal’nye arkhivy xiv–xv vekov, T.I, Moskva/Leningrad, 1949, T.ii, Moskva, 1951.

82

chapter 2

is of immediate interest to Russian legal history, such as his monographs on slavery,95 and on monasterial landowning,96 and his posthumously published studies on the formation of the boyar class,97 and on the Russkaia Pravda.98 One of the few, and now mostly forgotten, general legal surveys from the Soviet era was a collective work, edited by V.S. Nersesiants, and dealing with the development of Russian law from the 15th to the first half of the 17th century.99 Most of the chapters were written by S.I. Shtamm. The tradition of producing textbooks intended for students was continued in the post-Soviet era by I.A. Isaev, but such textbooks, purporting to deal with the history of Russian law from the Kievan era up to the present day in a single volume without any footnotes or references, are only of interest in a narrow educational sense.100 Much more valuable from an academic point of view was a series of works on Kievan Russia by I.Ia. Froianov (1936–2012). The first one was devoted to socio-economic aspects and was first published in 1974, as a shortened version of a doctoral thesis.101 It dealt mainly with landownership and the various categories of dependent peasants. The second volume appeared in 1980; the main topics were the prince, the druzhina, and the veche.102 In the third volume, published in 1990, Froianov’s attention was directed primarily at refuting the dominant views of Soviet historians on dependent peasants.103 These three works were combined in a single volume in 2001 under the title “The Beginnings of Russian History”.104 95 96

97 98 99 100 101

102 103 104

A.A. Zimin, Kholopy na Rusi (s drevneishikh vremen do kontsa xv v.), Moskva, 1973. A.A. Zimin, Krupnaia feodal’naia votchina i sotsial’no-politicheskaia bor’ba v Rossii (konets xv–xvi v.), Moskva, 1977, based on materials from the monastery of St. Joseph of Volokolamsk, one of the biggest monasterial landowners in the country. A.A. Zimin, Formirovanie boiarskoi aristokratii v Rossii (vo vtoroi polovine xv – pervoi treti xvi v.), Moskva, 1988. A.A. Zimin, Pravda Russkaia, Moskva, 1999. V.S. Nersesiants, Razvitie russkogo prava v xv – pervoi polovine xvii v., Moskva, 1986. I.A. Isaev, Istoriia gosudarstva i prava Rossii, Moskva, 1998 (3rd ed, Moskva, 2006). I.Ia. Froianov, Kievskaia Rus’. Ocherki sotsial’no-ekonomicheskoi istorii, Leningrad, 1974. A fuller version was published as Kievskaia Rus’. Glavnye cherty sotsial’no-­ekonomicheskogo stroia, Sankt-Peterburg, 1999. I.Ia. Froianov, Kievskaia Rus’. Ocherki sotsial’no-politicheskoi istorii, Leningrad, 1980. I.Ia. Froianov, Kievskaia Rus’. Ocherki otechestvennoi istoriografii, Leningrad, 1990. I.Ia. Froianov, Nachala russkoi istorii. Izbrannoe, Moskva, 2001. This collection contains the 1974 version of the part on socio-economic aspects, the 1980 and 1990 parts of Kievskaia Rus’, and a number of shorter works by Froianov. The magnum opus on Kievan Russia is complemented by two other works of the same author, Rabstvo i dannichestvo u vostochnykh slavian (vi–x vv.), Sankt-Peterburg, 1996 (on slavery in the pre-Kievan era), and

Sources

83

As a young scholar during the late Soviet period, Froianov was controversial, on account of his often heterodox views. Although the intellectual climate had changed considerably since, Froianov succeeded in hanging on to his reputation. Whatever the ultimate validity of his views, his productive scholarship and massive erudition are beyond doubt. More recently V.V. Momotov published an original survey of Russian medieval law, which combined traditional approaches with more modern theoretical perspectives.105 Family, property, contract, and procedural law are discussed in detail, without much regard for diachronical developments, and many other topics have been left aside, but much place has been reserved for a general consideration of the basic characteristics of medieval law. There has been a decent amount of Western scholarship in the field of Russian­legal history, going back to major works in German from the 19th century, but the only recent comprehensive treatment is H. Küpper’s “Introduction to the Legal History of Eastern Europe”, which devotes some 80 pages to the middle ages and the Muscovy period.106 Bibliography As bibliographies are the nightmare of the perfectionist, an attempt is to be abandoned at the beginning. If any useful suggestions materialize, we are satisfied. The Russkaia Pravda is well served, where bibliography is concerned. The Academy of Sciences edition has some 200 titles, while Baranowski, almost 60 years later, has more than 400.107 Several special studies from the Soviet era discuss the question of the bibliography of Kievan Russia and, without presenting lists of titles themselves, offer helpful indications.108

105 106 107 108

­ revniaia Rus’. Opyt issledovaniia istorii sotsial’noi i politicheskoi bor’by, Sankt-­Peterburg, D 1995 (a survey of the political history of Kievan Russia), all three works adorned by the author’s portrait. V.V. Momotov, Formirovanie russkogo srednevekovogo prava v ix–xiv vv., Moskva, 2015 (an earlier and similar edition appeared in Moscow in 2008). H. Küpper, Einführung in die Rechtsgeschichte Osteuropas (Studien des Instituts für Ostrecht München, Bd.54), Frankfurt am Main, 2005 B.D. Grekov (ed.), Pravda Russkaia, ii, Moskva/Leningrad, 1947, 747–753; Baranowski, 741–769. E.g. V.V. Mavrodin (ed.), Sovetskaia istoriografiia Kievskoi Rusi, Leningrad, 1978; V.V. Mavrodin (ed.), Sovetskoe istochnikovedenie Kievskoi Rusi. Istoriograficheskie ocherki, Leningrad, 1979.

84

chapter 2

An excellent source for older materials, covering also non-Russian sources, is M. Szeftel’s contribution to the Bibliographical Introduction to Legal History and Ethnology (edited by J. Gilissen).109 Shchapov produced, at the end of his long and brilliant career, a detailed introduction to the various kinds of reference tools for the history of Russia (specialized encyclopedias, general and special bibliographies, other reference works).110 109 M. Szeftel, Bibliographical Introduction to Legal History and Ethnology (J. Gilissen, ed.), Russia (before 1917), Part D/9, 1966. 110 Ia.N. Shchapov, Spravochnyi instrumentarii istorika Rossii, Moskva, 1907.

chapter 3

The Treaties with Byzantium. The Zakon Russkii

The Treaties with Byzantium

The four treaties between the Kievan grand prince and Byzantium, dating from 907, 911, 944 and 971, are of interest to the legal historian because they offer a glimpse of Russian law in a pre-literate period. What apparently happened is that the treaties were written down in Greek, and that Russian translations were made afterwards.1 These translations, or copies or fragments of them, were used by the author of the Primary Chronicle.2 1 This was first demonstrated by N. Lavrovskii, O vizantiiskom elemente v iazyke dogovorov russkikh s grekami, Sankt-Peterburg, 1853, to whom most subsequent discussions refer. See also Cross/Sherbowitz-Wetzor in the introduction to their translation of the Primary Chronicle (Cambridge, Mass., 1953/1973), 26, who pointed out that the textual and archival history of the four treaties is completely obscure. S.M. Kashtanov, Iz istorii russkogo srednevekovogo istochnika. Akty x–xvi vv., Moskva, 1996, discusses the formal (diplomatic) aspects of the treaties in his Ch. i (“Russko-vizantiiskie dogovory x v.”), 4–57; also, by the same author, “O protsedure zakliucheniia dogovorov mezhdu Vizantiei i Rus’iu v X v.”, V.T. Pashuto (ed.), Feodal’naia Rossiia vo vsemirno-istoricheskom protsesse. Sbornik statei, posviashchennyi L’vu Vladimirovichu Cherepninu, Moskva, 1972, 209–215. On the historiography of the treaties, along with the work of Sakharov quoted below, R.L. Khachaturov in PRoP i, 359–379. 2 The principal editions of the Treaties are: • M. Vladimirskii-Budanov, Khristomatiia po istorii russkago prava, Part 1, Sankt-Peterburg, 1899 (5th ed.), 1–22; this edition contains the treaties of 911, 944, and 971 and a bibliography of older literature; • prp i, 3–72, contains the text of the four treaties, a modern Russian translation, and a bibliography. PRoP i, 406–421, offers the texts of the four treaties and the translation into modern Russian of prp. • Text of the four treaties with English translation in Kaiser, Laws, 2–12. Of the older literature V.I. Sergeevich, “Grecheskoe i russkoe pravo v dogovorakh s grekami X v.”, deserves to be mentioned; first published in the Zhurnal Ministerstva Narodnogo Prosveshcheniia in 1882 and then included as an appendix in Sergeevich, Lektsii, 626–666. Also: A. Dimitriu, “K voprosu o dogovorakh russkikh s grekami”, Vizantiiskii Vremennik, ii (1895), vyp.4, which dealt especially with international law aspects. A similar approach was adopted by M.Iu. Braichevskii in an article in the Soviet Yearbook of International Law 1978, “O pervykh dogovorakh Rusi s grekami”, Sovetskii Ezhegodnik Mezhdunarodnogo Prava 1978, Moskva, 1978, 264–284. The most recent comprehensive treatise is A.N. Sakharov, Diplomatiia Drevnei Rusi ix – pervaia polovina x v., Moskva, 1988, which provides a wealth of information on various

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_004

86

chapter 3

As a general historical source the treaties have caused, rather than solved, problems. In all probability they had been preceded by similar agreements. An indication in this direction is provided by an incident reported in the Annales Bertiniani. When the emperor Louis the Pious was visited in 839 by a delegation of envoys from the Byzantine emperor, they were accompanied by a few persons who called themselves Rhos and claimed to have been sent by their khakan to the Byzantine emperor in order to promote friendly relations (“qui se, id est gentem suam, Rhos vocari dicebant, quod rex illorum, chacanus vocabulo, ad se amicitiae, sicut asserebant, causa direxerat”).3 Of far more importance were the hostilities between Byzantium and invaders from Russia in 860. These events are reported in a distorted fashion in the Chronicle under the year 866, but actually took place in 860. According to abundant reports from Byzantine and European sources, a large naval force of ‘Rosses’ suddenly appeared before Constantinople on 25 June 860; they laid waste to the surrounding countryside, but were unable to enter the city. The reports diverge on the outcome: Did they go home more or less victoriously with rich booty? Were they surprised and driven off by a sudden storm? Or were they soundly beaten by the Greeks? After some time Russian envoys returned to Constantinople to negotiate a peace treaty. This was apparently concluded, but apart from the condition that the Russians would convert to Christianity, the contents are obscure.4 ­ istorical and diplomatic aspects of the treaties. A detailed Western discussion by I. Sorlin, h “Les traités de Byzance avec la Russie au Xe siècle”, Cahiers de monde russe et soviètique, ii (1961), 313–360, 447–475. Also: J. Malingoudi, “Die russisch-byzantinischen Verträge des 10. Jhds. aus rechtshistorischer Sicht. Ein erster Deutungsversuch”, Byzantinoslavica 58 (1997), Part 2, 233–250, and id., “Der rechtshistorische Hintergrund einiger Verordnungen aus den russisch-byzantinischen Verträgen des 10. Jhds.”, Byzantinoslavica 59 (1998), Part 2, 52–64. 3 Mon. Germ. Hist., Scr. i, 434. On the mission of 839, see A.N. Sakharov, op.cit., 36–47, and by the same author: “Russkoe posol’stvo v Vizantiiu 838–839 gg.”, V.T. Pashuto (ed.), Obshchestvo i gosudarstvo feodal’noi Rossii, Moskva, 1975, 247–261. 4 Cf. P.V. Kuzenkov, “Pokhod 860 g. na Konstantinopol’ i pervoe kreshchenie rusi v srednevekovykh pis’mennykh istochnikakh”, dgve 2000, Moskva, 2003, 3–172, who presents most sources together with a Russian translation. S.V. Tsvetkov, Pokhod rusov na Konstantinopol’ v 860 godu i nachalo Rusi, Sankt-Peterburg, 2010, is based on Kuzenkov’s materials and constructs a rather audacious model of early Russian history. See also Sakharov, op.cit., 48–65. The 860 raid was mentioned in sermons of the contemporary patriarch Photius, by Greek historians, such as Theophanes Continuatus and others, and also by Liutprand of Cremona, in his major work Antapodosis (references and Russian translations of the relevant fragments also in the Byzantine and West-European volumes of Drevniaia Rus’ v svete zarubezhnykh istochnikov: Khrestomatiia, T.N. Dzhakson, I.G. Konovalova, A.V. Podosinov (eds.), Moskva, T.ii (Vizantiiskie istochniki), 2010, T.iv (Zapadno-Evropeiskie istochniki), 2010). A Russian

The Treaties with Byzantium

87

The treaty resulting from the well-documented hostilities in 860 was clearly not the only one or the first of its kind. There are confused reports, especially in Greek sources, of other Russian attacks and raids, followed by reconciliation and peace agreements. Several authors have argued that the political bias of the Russian chroniclers, in particular their purpose to strengthen the claims of the Rurikid dynasty, has caused serious distortions in the narrative of the Primary Chronicle covering events in the 9th and 10th centuries. Greek sources mention Askold as the Russian leader in 860. The Chronicle calls him a boyar of Rurik, himself not of princely stock, and permitted by Rurik to try his luck in Kiev after Rurik had assumed the reign in Novgorod in 860. According to Braichevskii, who was following Rybakov in this respect, Askold was in fact the ruler of Kiev in his own right and had accepted baptism after his successful raid in 860; this is more or less confirmed by Greek authors.5 The 860 raid was followed by other hostilities and, so Braichevskii, there were at least two peace treaties, probably in 860 and in 874. These treaties were then presented by the author of the Chronicle as concluded by Oleg and Sviatoslav, and assigned to 907 and 911. Although Braichevskii’s meticulously argued position merits serious consideration because it provides satisfactory solutions to several anomalies in the accepted view, it does not significantly affect the various points of relevance from the perspective of legal history. For this reason the accepted view will generally be followed in the discussion of the four treaties. Whatever view is closer to reality, the four treaties of the 10th century mentioned in the Primary Chronicle were all connected with hostilities against Constantinople. The obscurity surrounding the 10th century Greco-Russian treaties extends not only to their textual history, but also to the nature of the events which occasioned them, the status of the Russian parties, and the legal nature of the surviving texts.6 The existence of the 944 and 971 treaties and the surrounding circumstances are well documented by Byzantine sources; the 944 Treaty also speaks of “renewing the old peace treaty” (obnoviti vet’khii mir) and this would probably refer to the Treaty of 911 (or, less likely, to the Treaty of 907). A similar reference can be found in Byzantine sources. In the run-up to the Treaty of 971 translation of the main works of Liutprand of Cremona appeared under the editorship of I.V. D’iakonov: Liutprand Kremonskii, Antapodosis. Kniga ob Ottone. Otchet o posol’stve v Konstantinopol’, Moskva, 2006. 5 Braichevskii, op.cit., 265–269; see also B.A. Rybakov, Kievskaia Rus’ i russkie kniazhestva ­x ii–xiii vv. Proiskhozhdenie Rusi i stanovlenie ee gosudarstvennosti, Moskva, 2013, 9–10 (and older works by Rybakov). 6 Cf. for instance Iushkov, Stroi, 84–85; Vlad.-Bud., Obzor, 91; D’iakonov, Ocherki, 19–23; Sergeevich, Lektsii, 639–666; Sorlin, op.cit., 353–354.

88

chapter 3

the Greek emperor Johannes Tzimisces reminded the Kievan prince Sviatoslav what happened to the latter’s father Igor, when he, “disrespecting the treaty confirmed by oath”, attacked Constantinople in 944 (which led to the Treaty of 944) and was killed afterwards by the Pechenegs. The “treaty confirmed by oath” is probably the Treaty of 911, or possibly the one from 907, both of which are described as such in the Chronicle text.7 The treaties of 911, 944 and 971 were preceded by the formula Ravno drugago sveshchaniia byvshago pri … (“This is the same as [a true copy of] another treaty which was [concluded] at [the time of] … ”), followed by the names of the Greek emperors involved, or, in the case of the Treaty of 971, the Kievan prince Sviatoslav. This strengthens their character as formal treaties.8 Within a wider historical framework the four treaties with the Greeks should be viewed against the background of long-distance North–South trade along the Russian rivers, the Dnepr in particular. The importance of this trade in the 10th century is illustrated by the attention which the Byzantine emperor ­Constantine vii Porphyrogenitus (913–959) paid to it in his work De Administrando Imperio, composed around 950. The ninth chapter is devoted to a detailed description of the organization and routes of Russian shipping for their annual trips to Constantinople.9

The Treaty of 907

Judged by the Chronicle’s narrative, the 907 attack of the Russes on Constantinople had very much the look of a pirates’ raid, albeit a large-scale one. It was led by Oleg, Rurik’s successor, who had moved his capital to Kiev in 882 by ejecting and killing the Viking chieftains Askold and Dir who had established themselves there somewhat earlier.10 Oleg commanded an apparently large 7

The story is told by Leo the Deacon in his History; Russian text in T.N. Dzhakson, I.G. Konovalova, A.V. Podosinov (eds.), Drevniaia Rus’ v svete zarubezhnykh istochnikov: Khrestomatiia (hereafter: Dzhakson, Drevniaia Rus’), T.ii: Vizantiiskie istochniki, Moskva, 2010, 194. 8 Cf. Sakharov, op.cit., 134–140. 9 Dzhakson, Drevniaia Rus’, 158–168. 10 Whether there ever was a separate person Dir is doubtful. The source is the Primary Chronicle which twice mentions Askold and Dir, together, and this story has been repeated forever in other Russian chronicles. Dir never turns up in other sources, while Askold is mentioned repeatedly by Greek authors. Tatishchev was the first to doubt the historicity of Dir (in a footnote to his chapter on Oleg’s reign, in Ch. 2 of Part ii of his Istoriia Rossiiskaia).

The Treaties with Byzantium

89

force consisting of Varangians (Norsemen), supplemented by various Slavic and Finnish troops. The Chronicle, with not unusual exaggeration speaks of two thousand ships with about forty men on every ship. There is no doubt that Oleg’s raid was successful and that he was able to wrench important concessions from the co-emperors Leo and Alexander. The Greeks agreed to pay a lump sum of tribute (twelve grivny for every Russian warrior, plus separate amounts for various Russian towns) and granted advantageous terms to Russian merchants visiting Constantinople. The latter conditions are included verbatim in the Chronicle text. The matter of the tribute is woven into the general narrative and appears in two different versions. The chronicler, reporting on the 907 Treaty, seems to have attempted, not quite successfully, to integrate two or three versions of the event. The Treaty text of the Chronicle is neither complete nor exact.11 The 907 Treaty contains little or no information on Russian law proper, although it sheds some light on the political organization of Oleg’s realm. Along with the tribute based on the strength of the Russian army, special payments for the principal Russian towns were exacted: “first Kiev, then Chernigov, Pereiaslavl, Polotsk, Rostov, Liubech, and the other towns. In these towns lived great princes subject to Oleg.”12 This information agrees with the Chronicle’s earlier statements concerning the original size and further extension of the territory controlled by Rurik and his successor Oleg.13 The story of Oleg’s conflict with Askold and Dir, who are referred to as boyars, indicates that a sharp distinction was made between princes and other grandees. Most of the princes referred to in the 907 Treaty belonged therefore probably to Oleg’s kinfolk. More on this question can be found in Chapter 12, on the Prince. In the narrative of the 907 events five envoys are mentioned by name, who were sent by Oleg to negotiate the terms of the Treaty; all of them bear Norse names and reappear four years later as members of a larger group of emissaries.14 The parts of the Treaty which are quoted verbatim concern only the rights and duties of Russian merchants visiting Constantinople. In the first part the Russian demands are formulated: 11 Sergeevich, Lektsii, 629; Sorlin, op. cit., 343–350. 12 There is some confusion about Pereiaslavl’; it is mentioned in the 907 and 911 treaties, while it was founded in 992–993 according to the same Chronicle. 13 Chernigov, Pereiaslavl’ and Liubech are all in the Kiev region. Rostov and Polotsk are mentioned under the year 862 as being ruled by princes appointed by Rurik. 14 Cf. Sakharov, op.cit., 160–162; Sorlin, op.cit., 329; Soviet authors occasionally attempted to belittle or deny the Viking identity of the envoys, e.g. V.V. Mavrodin, Obrazovanie drevnerusskogo gosudarstva, Leningrad, 1945, 243.

90

chapter 3

When the Rus’ men come, let them take for their provisions as much as they want, and let those merchants who come take monthly provisions for up to six months: bread, wine, meat, fish and vegetables. And let them set up for themselves baths, as many as they wish. When the Rus’ men go home, let them take from your Emperor for the journey food, anchors, rigging, and sails, as much as they need. kaiser’s translation

After stating that the Greeks accepted these conditions, the Chronicle relates the Greek counterdemands: If Rus’ men come to us for reasons other than trade [bez kupli], then let them not take monthly provisions. Let the Rus’ prince prohibit his emissaries and those Rus’ men who come here from causing damage in our villages and our country. Let those Rus’ men who come here dwell near [the church of] St. Mamas. And when our imperial majesty sends [to them], let them write down their names, and [only] then take their monthly provisions, first [those who come] from Kiev, and then [those] from Chernigov, and Pereiaslavl’. And let them enter the city [only] through one [certain] gate in the company of the Emperor’s official, unarmed, fifty men at a time, and let them trade, as much as necessary, without paying any trade fees on anything at all. kaiser’s translation

The Treaty of 907 also provides some insight into the diplomatic practices and the rudimentary international law of the period. The course of the negotiations is not quite clear, due to the confusion on this point in the text, but the Treaty took shape through different stages and procedural steps. The conclusion of the Treaty was followed by a ratification of sorts: the emperors swore an oath by kissing the cross and Oleg and his men swore by their weapons and their gods Perun and Volos, the cattle-god, “according to Russian custom” (po ruskomu zakonu).

The Treaty of 911

The conclusion of the 907, 944 and 971 treaties is described by the Chronicle as resulting from hostilities between the Kievan prince and Byzantium. The beginning of the 912 entry in the Chronicle stated laconically: “Oleg despatched

The Treaties with Byzantium

91

his men to make peace and draw up a treaty between the Greeks and the ­Russians.” It is this lack of context, combined with the obviously fragmentary character of the known portion of the 907 Treaty, that has given rise to the theory that there was actually only one raid against Constantinople during these years, resulting in a single treaty, fragments of which have been incorpoarted under different years by the chronicler.15 The Treaty of 911, unlike the one from 907, appears to have been textually reproduced in the Chronicle. It closes with an ornate formula, setting out the diplomatic particulars of the Treaty (“vermillion script on parchment in duplicate”), and gives the date: 2 September 6420. This would correspond to 912 a.d., but it is generally accepted that the date was actually one year earlier.16 The emperor Leo, who was the first of the co-emperors concluding the Treaty died before September 912; also, Oleg himself died in the autumn of 912 and the text of the Chronicle strongly suggests that the death of Oleg did not occur shortly after the conclusion of the Treaty. If there can be little doubt that the Chronicle’s text of the Treaty represented a more or less exact translation from the Greek original, it is less certain that it was a complete translation. The text suggests that it was a copy specially made for the Russian side and in that case certain parts had very possibly been left out.17 The preamble mentions fifteen envoys, all of them bearing Norse names, and including the five envoys mentioned in the 907 Treaty. They were sent by “Oleg, Grand Prince of Russia, and by all the illustrious and great princes and great boyars under his sway” (the Hypatian Copy has: “Oleg, Grand Prince of Russia, and all the illustrious boyars under his sway”). The “illustrious and great princes” return at the end of the preamble and in the first substantive provision of the text; the Treaty is said to be concluded “in accordance with the wishes of our great princes and at their command, and on behalf of all the Russians who are under his [presumably: Oleg’s] hand”. The first provision mentions “the subjects of our illustrious princes” and enjoins the Greeks to 15

On the relationship between the 907 and 911 treaties, see: Iushkov, Stroi, 80–84; D’iakonov, Ocherki, 17–19; Sergeevich, Lektsii, 631–632; Vlad.-Bud., Obzor, 89–90; Mavrodin, op.cit., 228; M.D. Priselkov, “Kievskoe gosudarstvo vtoroi poloviny X veka po vizantiiskim istochnikam”, Uchenye Zapiski lgu, otdel istorii, vyp.8, 229–239; Sorlin, op.cit., 336–342; Cross/ Sherbowitz-Wetzor, op.cit., 235 (note 33); a review of the preceding literature on this point in Sakharov, op.cit., 149–155. 16 E.g. Sergeevich, Lektsii, 627; Presniakov, Lektsii i. 70. 17 Sergeevich, Lektsii, 632–638; Presniakov, Lektsii i, 70.

92

chapter 3

“maintain henceforth and forever the same irrevocable and immutable amity toward our illustrious Russian princes and all those who are under the hand of our serene prince”. The fact that the princes appear separately, along with the Kievan prince, suggests that the envoys, or at least some of them, represented individual princes. Reference to princes in the plural could be understood as relating to Oleg and his successors, or Oleg and his house, but such an interpretation is less plausible because it cannot be applied to all references to the princes. Moreover, a careful reading of the Chronicle indicates that at least until 978 (the year in which Vladimir killed Rogvolod, prince of Polotsk) there were Russian­ or Varangian princes who did not belong to the house of Rurik, although they may have been relatives. Finally, independent representation of a number of princes is made explicit in the preamble of the Treaty of 944. One can accept therefore that the Treaty of 911 was concluded between the Byzantine emperors on the one side and, on the other side, the Kievan grand prince and a group of semi-independent princes and other magnates.18 The Treaty of 911 is much richer in legal detail than its predecessor of 907. It dealt with a number of situations which could arise in Greek-Russian relations. Most of them are in the sphere of criminal law: homicide, assault, theft, robbery and violence. Arts. 14–15 are traditionally understood as dealing with the extradition of fugitive criminals, but the (defective) text probably refers to private actions of a creditor to capture a fugitive debtor.19 Other subjects covered were: torts, evidence, shipwrecks,20 recovery of stolen or escaped slaves, redemption of prisoners and inheritance. In the sphere of strictly public law the most important rule was the one which allowed Russians (Varangians) to enter Greek military service. This rule could be viewed as newly created international law; it was of course quite germane to the Kievan practice of military employment of foreigners and mercenaries. 18 19

20

This is the position taken by most Russian historians, but it is rejected by Sakharov (op.cit., 162–164) who insists upon the centralized character of the Kievan state under Oleg. Cf. K.S. Rodionov, “Byla li v Dogovore 911 g. Kievskoi Rusi s Vizantiei norma o vydache?”, Gosudarstvo i Pravo, 2006, No.3, 75–85, and Kaiser’s circumspect translation in Kaiser, Laws, 7. The Treaty of 911 dealt with various situations arising from Russian ships being wrecked on Greek or foreign coasts. It directed the Greek side to render aid to the Russian crew and cargo. The 944 treaty has a similar but shorter provision. The question of the ius naufragii was also covered in some of the Novgorod treaties with Hanseatic partners (see Chapter 16, on Novgorod). Cf. P.V. Savas’kov, “Normy mezhdunarodnogo morskogo prava v dogovorakh drevnerusskogo gosudarstva zakliuchennykh s Vizantiei v X veke”, Vestnik mgu, seriia pravo, 1973, No.4, 77–83; also R.L. Khachaturov in his comments in PRoP i, 388–389.

The Treaties with Byzantium

93

Some parts of the Treaty reflected Russian law, and are reminiscent of certain later rules in the oldest parts of the Russkaia Pravda (see the section on the Zakon russkii at the end of this chapter). This is made explicit in the provision concerning assault, which reads: If any man strikes another with a sword or assaults him with any other sort of weapon, he shall, according to Russian custom [po zakonu ruskomu], pay five pounds of silver for such a blow or assault. Most of the provisions, however, appear not to have been taken from either Byzantine of Russian law, but to have been designed specifically for situations arising in Russo-Byzantine intercourse. Anyway, the fact that the 10th-­century treaties with the Greeks represent the oldest direct source on Russian law makes it difficult to discern what is Greek, Russian, or a mixture of both. The general impression produced by the Treaty of 911 is that it was directed primarily at dealing with the problems arising from Russian merchants operating on Greek territory.21 There are indeed a few rules concerning the position of Greeks in Russia, but they are all included as the inverse and second part of rules dealing with Russians in Constantinople. Whereas the surviving text of the Treaty of 907 consists of two parts, in one of which the Russians are expressing their demands and in the other the Greeks, the format of the 911 Treaty is that of a Russian address to the Greek emperors.

The Treaty of 944

The Treaty of 944 is included in the Chronicle under the year 945 and it is often referred to as the Treaty of 945, but most historians agree that it was actually concluded in 944; subsequent ratification by the Kievan grand prince Igor may have taken place in 945.22 According to the Chronicle’s narrative, the 944 Treaty was concluded under a threat of a Russian invasion, which followed an earlier and unsuccessful Russian campaign in 941. The 941 campaign and the Russian defeat are well documented through Byzantine chronicles and the reports by Liutprand of

21 Sergeevich, Lektsii, 642–643; Sorlin, op.cit., 354. 22 Sorlin, op.cit., 454–455.

94

chapter 3

Cremona who visited Constantinople in 949.23 What followed is less clear. According to the Chronicle, the Kievan grand prince Igor (usually considered the son of Rurik) collected a new force in 944 in order to attack Constantinople. When things did not look too auspicious for the Russians, some sort of deal was struck, formalized in the 944 Treaty. The general tenor of this Treaty is less advantageous to the Russians that that of the previous pacts. It covered some of the subjects dealt with in the 911 Treaty, but in general it is more closely related to the Treaty of 907.24 The latter outlined briefly the status of Russians who came to Constantinople with or without merchandise. The first provisions of the 944 Treaty dealt with the same subject, in words which are reminiscent of the 907 text, but in a less liberal and generous manner. Like the 907 Treaty, the 944 Treaty consisted of two parts, in one of which the Greeks address the Russians and in the other vice versa. Some of the provisions are also close to the 911 Treaty, e.g. the one concerning assault, punished by a fine of five pounds of silver “according to Russian custom”, irrespective of whether it had been committed by a Russian or a Greek. The Treaty of 944 was concluded between the co-emperors Romanus, Constantine and Stephan on the one side and the grand prince Igor and other princes and boyars on the other. The paramount position of the grand prince received more emphasis than in the previous treaties. In the introductory paragraph, which identified the Russian envoys, Igor’s representative is set apart: We are the envoys and merchants of the Russian nation, Ivar, envoy of Igor, Grand Prince of Russia, and the other envoys [follows a list of 23 representatives and their principals and one single name: Sverki] … and the merchants [follows a list of 25 names]. This text demonstrates Igor’s dominant position, as well as the individual representation of a number of princes and boyars.25 First mentioned among them is Igor’s son Sviatoslav, then his wife Olga, then his nephew Igor. Further down

23 Dzhakson, Drevniaia Rus’, T.iv, 38–40. Also in Liutprand Kremonskii, Antapodosis. Kniga ob Ottone. Otchet o posol’stve v Konstantinopol’, I.V. D’iakonov (ed.), Moskva, 2006, 96–97. 24 Sergeevich, Lektsii, 632–639; Iushkov, Stroi, 83–84. 25 A detailed analysis of the list of envoys and their principals, and the ethnic composition, in A.S.Korolev, Istoriia mezhdukniazheskikh otnoshenii na Rusi v 40-e–70-e gody X veka, Moskva, 2000, 30–49.

The Treaties with Byzantium

95

the list Haakon, another nephew of Igor, is mentioned.26 Among the other principals only two certain Slavic names appear: Vladislav and Predslava. One person, Sverki, is mentioned all by himself; he is presumably a prince or boyar who took part in the mission in person. The 25 merchants all bear Scandinavian names. This need not imply that the mission existed exclusively of Varangians; Russians could have had Scandinavian names and vice versa. (Igor’s son Sviatoslav, was of pure Scandinavian stock.)27 It seems unlikely that it was a coincidence that the number of envoys (plus Sverki) equaled the number of merchants. Each envoy was possibly accompanied by a merchant, acting as a kind of commercial counsellor. This would agree with the fact that the 944 Treaty clearly bears the character of a commercial agreement. The Treaty treats the Russian realm as the sum of a number of separate units. One provision directed that envoys and merchants were to receive their monthly allowances according to a certain ‘pecking order’: “first Kiev, then Chernigov, Pereiaslavl’, Polotsk, Rostov, Liubech and the other towns.28 In these towns lived great princes subject to Oleg.” The Kievan grand prince appeared as the powerful head of a confederation of semi-dependent principalities. The 944 Treaty strongly emphasized his position, but he was most probably still unable to conclude the treaty all by himself.29 The legal content of the 944 Treaty is somewhat less rich than that of the 911 Treaty. It dealt with the trade monopoly granted to merchants authorized by the Kievan prince, the allowances to be paid to Russian envoys and ­merchants in Constantinople, trade restrictions imposed on Russian merchants, runaway slaves, theft, the status of Greek and Russian slaves in the possession of Russians and Greeks respectively, homicide, assault and Russian military aid to the Greek emperor; in addition, Russians were forbidden to punish Greek criminals or harass the inhabitants of Kherson (a Greek settlement on the Crimea).

26 27

28 29

On the sequence of the names, see Presniakov, Lektsii i, 74. Cf. E.A. Mel’nikova, “The Lists of Old Norse Personal Names in the Russian-Byzantine Treaties of the Tenth Century”, Studia Anthroponymica Scandinavica. Tidskrift för nordisk personnamnsforskning, B.22, Uppsala, 2004, 5–27. Cf. J.H. Lind, “The Russo-Byzantine Treaties and the Early Urban Structure of Rus’”, Slavonic and East European Review, 62:3 (1984), 362–370. Cf. Sorlin, op.cit., 457; Cross/Sherbowitz-Wetzor, op.cit., 238; less emphatically, Mavrodin, op.cit., 243.

96

chapter 3

The Treaty of 971

The Treaty of 971 is of little interest for the history of Russian law. It was concluded after an unsuccessful campaign in the Balkans by Sviatoslav, the son of Igor and grand prince of Kiev.30 The course of the campaign, resulting in a peace treaty, is well documented by Byzantine sources.31 The author of the Chronicle made his usual attempt at aggrandizing the military superiority of the Kievan prince but did not succeed in concealing the essential failure of Sviatoslav’s Balkans adventure. The Treaty is quite short and consists mainly of Sviatoslav’s promise to the Greek emperors to preserve peace and render aid. It illustrates the growth of the power of the Kievan prince, who acts for the whole of Russia, “boyars and others”, with one curious exception: the opening line of the Treaty reads: “This is a copy of the treaty concluded by Sviatoslav, Grand Prince of Russia, and Sveinald, with Johannes, surnamed Tzimisces, Greek Emperor …”. Sveinald, as is known from other entries in the Chronicle (in 945, 946, 974 and 975), was the most powerful and wealthy magnate in Kievan Russia; he apparently acted as the Kievan commander-in-chief during Sviatoslav’s youth and even afterwards. Such an official, resembling the Merovingian major domus, reappeared several times under later Kievan princes (see the relevant section in Chapter 12, on the Prince). The Zakon Russkii The Zakon russkii (Russian law, Russian custom) is a term which appears in the tenth century treaties between the Russian princes and Byzantium. In the 911 treaty the Zakon russkii is mentioned once (in art. 5) and in the 944 treaty four times (arts. 3, 6, 9 and 14). Nobody doubts that “Russian law” in this context

30

31

The negotiations which led to the conclusion of the Treaty of 971 are the subject of a lengthy study by S.N. Kisterev, “Russko-grecheskie peregovory 971 g.”, S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, vyp. 13, Moskva, 2009, 3–64. Especially the History of Leo the Deacon, covering the period from the death of emperor Constantine vii Porphyrogenitus (959) until the end of the reign of Johannes Tzimisces (976). Events in the Balkans and the wars with Bulgarians and Russians constitute the main theme. Cf. Dzhakson, Drevniaia Rus’, T.ii, 189–215, esp. 211.

The Treaties with Byzantium

97

r­efers to unwritten customary law,32 although one has to bear in mind that such a concept does not completely exclude the possibility of legislation.33 In his monograph on the rp, A.A. Zimin devoted a special section to the Zakon russkii and proposed to make an attempt “to reconstruct Russian customary law as it existed before the creation of the Old-Russian state”, by using the texts of the treaties together with that of the Oldest Pravda.34 The results were not spectacular, to the extent that the range of topics covered by these texts was limited (homicide and a few other offences against the person, some offences against property) and that the conclusions drawn were already obvious for any attentive reader of the texts. Moreover, Zimin failed to refer to the treaties anymore in his following arguments. Among his principal conclusions were that in Old-Russian society homicide and other kinds of personal injuries were governed by the “eye-for-an-eye” principle (where the victim (if surviving) or his relatives would inflict equal harm on the attacker, or, if the latter could not be reached, on his relatives, while the actual retributory harm could in certain cases be replaced by material compensation), and that property would be inherited in the male line. Another way to penetrate into the prehistory of Russian law, and particularly to shed more light on the possible contents of the Zakon russkii, is (as indicated above) to trace developments back from the earliest available monuments of Russian law; this means in fact the oldest layer of the rp. V.N. Tatishchev, the man with whom Russian historiography started, was the first to rediscover manuscripts of the rp (in 1738).35 The main manuscript formed part of a copy of the First Novgorod Chronicle, where it was inserted after the entry for the year 1016, relating how Iaroslav the Wise after a victory over his 32

Several authors have noted that the term zakon had already been taken over by the Turkic Pechenegs before the middle of the tenth century, as recorded by Constantine Porphyrogenitus­in his De administrando imperio, i.e. well before there was written legislation among the Russians. Cf. A.A. Zimin, Pravda Russkaia, Moskva, 1999, 65; B.D. Grekov, “Russkaia Pravda i ee slavianskoe okruzhenie”, Izvestiia an sssR, ser. ist. i filos. No.2, t.ix, 1952, also included in Grekov, Izbrannye Trudy, t.ii, Moskva, 1958, 576–585 (at 580), and in Grekov, Kievskaia Rus’, Moskva, 1953, 534–546 (at 540). 33 A possible example of unwritten legislation in early Russian law is mentioned by Zimin, who suggests that the directives given by the grand princess Olga in 946 for the management of her estates could have been a source for the rules of princely estate management in arts. 19–27 of the Short Pravda. See A.A. Zimin, Pravda Russkaia, Moskva, 1999, 94. 34 Zimin, op.cit., 65–70, at 65. 35 More on this topic in Chapter 4, on the rp.

98

chapter 3

brother Sviatopolk sent his Novgorod troops home and awarded them a law for ­ adjudicating cases (po chemu im sudit’). According to Tatishchev, the first part of the rp constituted in fact “a law which had been created several centuries before Iaroslav”. This view was taken over by many subsequent authors.36 Essentially, this retrospective approach was adopted by Zimin, who, as explained above, attempted to reconstruct certain elements of the Zakon russkii by a close investigation of the oldest part of the rp. Parallels between the latter and certain ‘Russian’ rules enunciated in the 911 and 944 treaties are obvious and indicate that the oldest part of the rp does indeed reflect to a considerable extent the state of the law as it was during the foregoing century. To return to the main topic of the treaties of 911 and 944, the Rusi mentioned in the texts were, with a few exceptions, Vikings and the Russian custom referred to in the texts was therefore in all likelihood Scandinavian custom. On the other hand, the “Russian law” of the treaties shows many parallels with the earliest written law of Kievan Rus (the rp). Had the early Kievan rulers and their Viking followers already adopted local custom, or was the oldest core of the rp in fact Viking custom? A third possibility is that the customary law systems of the early Slavs and Scandinavians were similar. The latter point had already been made by 19th century Russian authors, although mostly in connection with the oldest layers of the rp.37 Such similarity can be explained in two (not mutually exclusive) ways: convergence (parallel development might be a better term) or genetic connections. If the social substrata in which legal systems are embedded and develop are similar, then their legal systems may easily display many common characteristics. Genetic connections imply a common ancestor. If such connections exist (which I think they do) then the resulting similarity of certain legal institutions can of course be reinforced by a similarity of circumstances.38 This means in concrete terms that the earliest

36 37

38

V.N. Tatishchev, Istoriia Rossiiskaia, T.vii, 277. See also Zimin, op.cit., 11; Ia.N. Shchapov in rz i, 36; Baranowski, 148. M.B. Sverdlov (in “K istorii teksta Kratkoi redaktsii Russkoi Pravdy”, Vspomogatel’nye istoricheskie distsipliny X, Leningrad, 1978, 135–159, at 141) mentions S.V. Vedrov, O denezhnykh­peniakh po Russkoi Pravde sravnitel’no s zakonami salicheskikh frankov, Moskva, 1877, and A.N. Filippov, “Nachal’nye stadii protsessa vindikatsii dvizhimosti po leges barbarorum”, in Sbornik statei po istorii prava, posviashchennyi M.F. VladimirskomuBudanovu, Kiev, 1904. I have argued the significance of a common Indo-European background of early European­ legal systems in more detail in the chapter on “Law’s Beginnings and Early Law” in Law in Medieval Russia, 1–32, at 5–17.

The Treaties with Byzantium

99

known phase of Russian law is most likely not very different from the earliest law of Germanic, Celtic and other Indo-European peoples.39 The tenth century, as we have seen, marked the high point of Varangian influence in Russia; the numerical dominance of the Slavs made the absorption of the Varangians a question of time, notwithstanding the military and political predominance of the latter. The systems of customary law of the two ethnic groups, displaying a considerable degree of similarity (as argued above), were able to merge under such circumstances.40 The first article of the Oldest Pravda offers an illustration of this process, where it provided that the wergeld due for homicide was the same, irrespective of the victim being a Russian (a man from Kiev or Novgorod), a man belonging to the retinue of the prince, or an outsider. In this respect the druzhina aspect is of interest. During the most recent decades several Russian medievalists have drawn attention to the importance of the druzhina in the political and legal culture of early Kievan Russia.41 In this view the Rusi of the treaties with the Greeks were the druzhina members 39

This point is also strengthened by the general similarity between Old-Russian law and the oldest law of other Slavic peoples, such as the Statute of Vinodol of 1288 and the 13th-­century Polish law code. See B.D. Grekov, “Pol’skaia Pravda. Opyt izucheniia obshchestvennogo i politicheskogo stroia Pol’shi xiiiv. po Pol’skoi Pravde (‘Kniga Prava’)”, B.D. Grekov, Izbrannye trudy, I, Moskva, 1957, 267–442 (includes German text and Russian translation) and B.D. Grekov, “Vinodol’skii Statut ob obshchestvennom i politicheskom stroie Vinodola”, B.D. Grekov, Izbrannye trudy, I, Moskva, 1957, 33–110. Russian translation by V.V. Iagich, Zakon Vinodol’skii, Sankt-Peterburg, 1880. 40 Kliuchevskii, i, 219–222, devoted a special section to the Zakon Russkii, acknowledging its originally Scandinavian character, but concluding that the “Russian Law” which constituted the main source of the rp was indeed the result of a merger between Scandinavian and Slavic elements. 41 In particular the group of scholars connected with the yearbook Drevneishie gosudarstva Vostochnoi Evropy (dgve), the successor publication of Drevneishie gosudarstva na territorii sssR, founded in 1978. See especially S.L. Nikol’skii, “O druzhinnom prave v epokhu stanovleniia gosudarstvennosti na Rusi”, A.A. Gorskii (ed.), Srednevekovaia Rus’, vyp.4, Moskva, 2004, 5–48, and further E.G. Mel’nikova, “K tipologii predgosudarstvennykh i rannegosudarstvennykh obrazovanii v Severnoi i Vostochnoi Evrope”, dgve 1992–1993, Moskva, 1995, 16–32; N.F. Kotliar, Drevnerusskaia gosudarstvennost’, Sankt-Peterburg, 1998, 63–70; A.A. Gorskii, Drevnerusskaia druzhina, Moskva, 1989 (not available to me). See also the chapter on the rp in my Law in Medieval Russia, quoted above, at 55–56. Zimin refers in passing (op.cit., 69 n.54) to druzhina law in his discussion of the Zakon russkii. The most recent overview in P.S. Stefanovich, Boiare, otroki, druzhiny: voenno-politicheskaia elita Rusi v x–xi vekakh, Moskva, 2012, 45–262.

100

chapter 3

and the “Russian custom” (Zakon russkii) represented the customary law of the druzhina. There has most likely been mutual influencing of the customary laws of the Slavs and the Scandinavians during this period of unwritten law. More extensively on the druzhina, see Chapter 12, on the Prince, (sub-section on druzhina, in section on the prince’s court and officials). In the Introductory Chapter (in the section on the definition of law) the point has been made that law is not a necessary concomitant of all human societies, but that it makes its appearance at a certain stage of societal development, in a phased process of emergence. The evidence indicated in this chapter suggests that it was precisely the 10th century when Russia was passing through this stage. In the 10th century there was already a fixed body of rules concerning dispute settlement, customary law (the Zakon russkii): the first and, partially, the second phase as described by us. A central authority enunciating existing rules and then creating and enforcing new rules (the third phase) was only beginning to affirm itself (the ‘decrees’, ustavy, of princess Olga in 946; the role of the princes in the treaties with Byzantium). Princely legislation and the activities of regular courts appear in the 11th century. This means that the period considered in this chapter can be identified as the prehistory of Russian law, not only because the sources which could inform us adequately about law are lacking (implying that if we had those sources the borderline between history and prehistory could be moved), but also because law in the sense adopted in this study was not fully present yet during this period.

chapter 4

The Russkaia Pravda or Russian Law By far the most important monument and source of Old-Russian law is the Russkaia Pravda or Pravda Russkaia, the “Russian Law” or Lex Russica. The Russkaia Pravda (rp) is, on the face of it, a legal document of the type of the leges barbarorum which emerged in Western Europe in Merovingian and Carolingian times. The Statute of Iaroslav Vladimirovich, Iaroslav the Wise (Mudryi), the son of St. Vladimir, ruling as grand prince of Kiev from 1019 to 1054, is considered to be the oldest part of the rp. The rp is the starting-point of Russian legal history and the basis on which medieval Russian law evolved. An immense structure of scholarship has arisen around the rp. Not only legal historians, but almost all Russian and Soviet medievalists have participated in this work. After 1917, the scene was dominated by general historians, seconded by linguistic scholars, on account of the virtual disappearance of legal history as an independent discipline in Soviet times.

History of the Study of the Russkaia Pravda

Texts of the rp have survived in numerous manuscripts, most of them in ecclesiastical collections. The rp was frequently included in kormchie (lit. “pilotbooks”), Slavic versions of the Greek Nomokanon, a collection of rules and laws for the use of church officials. The other principal source of rp texts are chronicle manuscripts, themselves also almost exclusively of monastic origin. One should not draw the conclusion that the rp was apparently a canon law document; manuscripts kept in monasteries simply had a much better chance of survival. Modern scholarship of the rp began with its rediscovery in 1738 by the patriarch of Russian historiography, V.N. Tatishchev. Tatishchev found the rp in a manuscript of the First Novgorod Chronicle where it was included in the narrative under the year 1016. He offered his annotated text for publication to the Academy of Sciences, but it was not published until 1786.1 Meanwhile, 1 Tatishchev’s annotated text was published in Prodolzhenie Drevnei Rossiiskoi Vivliofiki, Chast’ I, Sankt-Peterburg, 1786. An extensive account of the historiography of the rp in M.N. Tikho­ mirov, Issledovanie o Russkoi Pravde. Proiskhozhdenie tekstov, Moskva/Leningrad, 1941 (Ch. 2). Also Baranowski, 48–50 (on the 18th century) and 49–157 (on the following period). A brief

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_005

102

chapter 4

A.L. Schloezer (Shletser), a German scholar working in Russia, had published the rp, using a different manuscript.2 Both works were concerned with the so-called Short Version (Kratkaia Pravda) of the rp. The text of the other main version (the Expanded Version, Prostrannaia Pravda) was first published by V. Krestinin in 1788.3 The first study on the rp (apart from Tatishchev’s comments) was an academic address by F. Strube de Piermont, “Discours sur l’origine et les changements­ des loix russiennes”, delivered in St.Petersburg in 1756. This was followed by a number of studies in the 19th century. The most important among these were by I.Ph.G Ewers (1826), E. Tobien (1844), N.V. Kalachov (1846) and P. MrochekDrozdovskii (1881–1886).4 The works of Ewers and Tobien, originally written in German, were accompanied by the first (German) translations of the rp. The great Russian historians of the 19th century, such as Kliuchevskii and Solov’ev, also paid considerable attention to the rp.5 Their efforts at evaluating the place of the rp in early Russian history were preceded by the work of N.M. Karamzin, one of the founders of Russian historiography.6 rp scholarship was greatly enhanced by the work of the next generation of pre-revolutionary Russian historians, especially by those who were active as legal historians. The first work to be mentioned is V.I. Sergeevich’s monograph on the rp of 1904.7 Most of the other leading medievalists of the end of the 19th and the beginning of the 20th century made valuable contributions.8 survey in Vernadsky, Laws, 12–14. It was generally taken for granted that Tatishchev had used the so-called Academic Copy of the First Novgorod Chronicle, but A.V. Maiorov has presented persuasive evidence for the conclusion that the recently rediscovered Berlin Copy, originally part of Tatishchev’s own library, was the basis of his work. A.V. Maiorov (ed.), Novgorodskaia Pervaia letopis’. Berlinskii spisok, Sankt-Peterburg, 2010, 94–97. 2 A.L. Shletser, Pravda Russkaia, Sankt-Peterburg, 1767. 3 Prodolzhenie Drevnei Rossiiskoi Vivliofiki, Chast’ iii, Sankt-Peterburg, 3–47. 4 I.Ph.G. Ewers, Das älteste Recht der Russen in seiner geschichtlichen Entwickelung, Dorpat/ Hamburg, 1826, also in Russian translation: Drevneishee russkoe pravo v istoricheskom ego raskrytii, Sankt-Peterburg, 1835; E.S. Tobien, Sammlung kritisch bearbeiteten Quellen des russischen Rechts, Bd.1. Die Prawda Russkaja und die ältesten Tractate Russlands, Dorpat, 1844; N.V. Kalachov, Predvaritel’nye iuridicheskie svedeniia dlia polnago ob”iasneniia Russkoi Pravdy, Moskva, 1846; P. Mrochek-Drozdovskii, Issledovaniia o Russkoi Pravde, Moskva, 1881–1886. 5 Kliuchevskii, Kurs, i, Lecture xiv. S.M. Solov’ev, Istoriia Rossii s drevneishikh vremen, Part i, Moskva, 1851 (new edition, Moskva, 2001). 6 N.M. Karamzin, Istoriia gosudarstva rossiiskago, 12 Parts in 3 books (Book 4 contains the Index), Sankt-Peterburg, 1842–1844; Chapter 3 of Part 2 is devoted to the rp. 7 V.I. Sergeevich, Russkaia Pravda v chetyrekh redaktsiiakh, Sankt-Peterburg, 1904. 8 Vladimirskii-Budanov, Obzor, 94–96; D’iakonov, Ocherki, 40–52; S.F. Platonov, Lektsii po russkoi istorii, Petrograd, 1917 (10th edition, republished, Petrozavodsk, 1995), 111–112; Presniakov,

The Russkaia Pravda or Russian Law

103

An important work, published in Germany, was L.K. Goetz’ four-volume monograph on the rp.9 During the Soviet era, almost all the great names in the study of the Russian middle ages have been involved in new publications of the rp.10 The results of two centuries of scholarship were collected in an imposing three-volume edition, Pravda Russkaia, published by the ussr Academy of Sciences under the general editorship of B.D. Grekov and with the cooperation of a large number of eminent scholars.11 This edition, in the words of the émigré scholar George Vernadsky, may be regarded as definitive, until important new materials would be discovered. The first volume of this edition (1940) contained the texts of the fifteen principal copies, with the variants as offered by the remaining copies. These texts were preceded by a study by V.P. Liubimov on the classification of the more than 100 copies of the rp. The second part (1947) contained the best texts of the Short and the Expanded Versions of the rp, each provision followed by several older and more recent translations in Modern Russian, German and Polish, and by a systematized collection of quotations from the most important studies on the respective provisions. The third part (1963) contained a facsimile edition of the principal copies. The publication of the texts of the different versions of the rp in the two major Soviet collections of legal history texts (prp and rz) is based on the Acedemy of Sciences edition.12 The most important Soviet monographs on the rp are by Karskii, Iushkov, Tikhomirov, and Zimin.13 9 10

11

12

13

Lektsii, 210–227; N.L. Diuvernua [Duvernois], Istochniki prava i sud v Drevnei Rossii. Opyty po istorii russkogo grazhdanskogo prava, Moskva, 1896 (repr. Sankt-Peterburg, 2001). L.K. Goetz, Das Russische Recht, Stuttgart, 1912–1913. E.g. A.I. Iakovlev and L.V. Cherepnin (eds.), Russkaia Pravda po spiskam Akademicheskomu, Troitskomu i Karamzinskomu, Moskva, 1928; B.D. Grekov (ed.), Russkaia Pravda po spiskam Akademicheskomu, Troitskomu i Karamzinskomu, Moskva/Leningrad, 1934; S.V. Iushkov (ed.), Russkaia Pravda po piati redaktsiiam i semi spiskam, Kiev, 1935. M.N. Tikhomirov’s edition is in his Posobie. B.D. Grekov (ed.), Pravda Russkaia, Part i: Teksty, Moskva/Leningrad, 1940, 505p.; Part ii: Kommentarii, Moskva/Leningrad, 1947, 862p.; Part iii: Faksimil’noe vosproizvedenie tekstov, Moskva, 1963, 471p. prp i, 77–80 (Short Pravda), rz i, 47–49 (Short Pravda); prp i, 81–85 (translation of Short Pravda into modern Russian); prp i, 108–120 (Expanded Pravda), rz i, 64–73 (Expanded Pravda); prp i, 121–137 (translation of Expanded Pravda into modern Russian); prp i, 197–101 (Abridged Pravda). PRoP i only has modern Russian translations, 109–116 (Short Pravda) and 116–138 (Expanded Pravda). rz and PRoP do not have the Abridged Pravda. E.F. Karskii, Russkaia Pravda po drevneishemu spisku, Leningrad, 1930; Grekov’s major work Kievskaia Rus’, Moskva, 1944, and S.V. Iushkov’s monograph Obshchestvenno-politicheskii stroi i pravo kievskogo gosudarstva, Moskva, 1949, are both intimately concerned with the

104

chapter 4

After the 19th-century German translation mentioned above, an English translation of the Short and Expanded Pravda, accompanied by an introductory essay, was published by Vernadsky in 1947.14 A French edition of the two versions, also with an introduction and extensive notes, was published by Szeftel and Eck in 1963.15 In 1992, the first volume of the series The Laws of Russia (general editor Charles Schlacks), offered new English translations of the Short and Expanded Versions, by D.H. Kaiser.16 A major event in the study of the rp was the publication in 2005 of G. Baranowski’s monograph (in German), which to a great extent superseded the second volume of the Academy of Sciences edition of 1947.17 In addition to the older scholarship, covered by the Russian edition, publications from the following six decades were summarized by Baranowski. The literature on the rp is by now very extensive.18 Most works specifically devoted to the rp contain bibliographies, especially the second volume of the Academy of Sciences edition and Baranowski’s work. Shorter but still very useful bibliographies may be found in the works of other authors.19

The Different Versions of the Russkaia Pravda

As more and more copies of the rp became avaliable in the course of the 18th and early 19th century, it became obvious that there were two or three distinct versions of the document. The shortest of these, generally known nowadays legal and political structure of Kievan society and can almost be regarded as studies on the rp. M.N. Tikhomirov’s Issledovanie o Russkoi Pravde, Moskva/Leningrad, 1941, was his most searching investigation into the origins of the rp; his Posobie dlia izucheniia Russkoi Pravdy is more in the nature of a university textbook, but very rich in content. A.A. Zimin’s Pravda Russkaia was published posthumously (Moskva, 1999; Zimin had died in 1980). Its obvious ‘sovietisms’ are richly compensated by Zimin’s colossal scholarship. 14 In Medieval Russian Laws, New York, 1947. 15 M. Szeftel and A. Eck, Documents de droit public relatifs à la Russie médiévale, Bruxelles, 1963. 16 D.H. Kaiser (ed. and transl.), The Laws of Rus’ – Tenth to Fifteenth Centuries, Salt Lake City, 1992 (Volume 1 of Serie i: Medieval Russia, of The Laws of Russia). 17 G. Baranowski, Die Russkaja Pravda – ein mittelalterliches Rechtsdenkmal, Frankfurt am Main, 2005 (Rechtshistorische Reihe 321). 18 My own contribution has been the chapter on “The Russkaia Pravda” in Feldbrugge, lmr, 33–58, a reworked version of “The Earliest Law of Russia and Its Sources”, in F. Feldbrugge (ed.), The Law’s Beginnings, Leiden/Boston, 2003, 93–113. 19 Baranowski, 741–769, and further in Tikhomirov’s Posobie, 30–34; Iushkov, Stroi, 530–531; Zimin, Pravda Russkaia, 391–409.

The Russkaia Pravda or Russian Law

105

as the Short Pravda (Kratkaia Pravda), numbers about 850 words, the longest, known as the Expanded Pravda (Prostrannaia Pravda), is about four times as long; the Abridged Pravda (Sokrashchennaia Pravda), known from only two late (17th-century) copies, is somewhere in the middle and can be left aside for the time being. The two main versions, the Short and the Expanded Pravda, are intimately related. Not only do most copies of both versions designate themselves as Pravda Russkaia, but also almost the entire contents of the Short Pravda reappear, generally in amended form, in the Expanded Pravda. The first part of the first provision, for instance, is identical in both versions (spelling apart).20 Thirteen copies of the Short Pravda are extant; four more are known to have existed, but have been lost. Of these thirteen copies, eleven were made in the 18th and 19th century, at the time of incipient historical scholarship. The two remaining copies are from the middle of the 15th century.21 They are in the possession of respectively the Academy of Sciences and the Archeographical Commission and hence referred to as the First Academic and the First Archeographical Copy. Both texts were included in (different versions of) the so-called Younger Redaction (Mladshii Izvod) of the First Novgorod Chronicle, where they were inserted in the narrative of 1016 (further detail below). The First Academic Copy is considered the better of the two. The great number of copies of the Expanded Pravda (close to one hundred) has raised considerable classification problems. Many earlier authors proposed their own solutions, until V.P. Liubimov put forward an extensively argued classification system in the first volume of the Academy of Sciences edition of the rp.22 Although some criticism concerning points of detail has remained, Liubimov’s system has been generally accepted now.23 More on this in the next chapter. Even a superficial reading of the two main versions of the rp shows that each of them does not constitute a single and coherent legislative document, but consists of the amalgamation of several chronologically different layers. After about one third of the text of the Short Pravda, a preamble is inserted proclaiming that the following provisions were agreed upon at a meeting of 20

The famous and much commented upon rule concerning the right to blood vengeance for the killing of a close relative. 21 The later copies are of negligible importance for the study of the Short Pravda, according to Zimin, Pravda Russkaia, 32. 22 V.P. Liubimov, “Spiski Pravdy Russkoi”, B.D. Grekov (ed.), Pravda Russkaia i, Moskva/ Leningrad­1940, 11–54. 23 Iushkov, Stroi, 152, retained strong objections.

106

chapter 4

Iziaslav, Vsevolod and Sviatoslav (the sons of Iaroslav the Wise). This meeting is usually considered to have taken place in 1072. At the end of the Short Pravda (in the rule concerning the payment for the bloodwite collector, the virnik) there is a reference to Iaroslav himself. The text of the Short Pravda suggests that the first part is the law of Iaroslav, to which a second part was attached later on, the law of the sons of Iaroslav. This suggestion is explicitly justified by the Expanded Pravda which is preceded in most copies by the title: The Law of Iaroslav, son of Vladimir. In other places the Expanded Pravda also demonstrates clearly that it embraces components derived from Iaroslav’s legislative work and from his sons’ contributions. It is safe therefore to assume that the Short Pravda’s main parts are formed by the Pravda of Iaroslav and the Pravda of Iaroslav’s Sons. The chronological structure of the Expanded Pravda is based on that of the Short Pravda, but is far more complicated. Not only have new elements been added, in particular the so-called Statute of Vladimir, the son of Vsevolod (Vladimir Monomakh, the grandson of Iaroslav, who ruled in Kiev from 1113–1125), but the older chronological components have been edited and amended, and then inserted in a seemingly haphazard fashion. As a result, some provisions which have their origin in Iaroslav’s legislation turn up at the end of the Expanded Pravda.

The Division of the Russkaia Pravda into Articles

Originally, the rp was not divided into numbered articles. The early writers of the 18th and 19th century usually proposed their own systems. Tatishchev, in his first edition of the Short Pravda, had broken up the text into 35 provisions. The fact that modern editions are agreed on 43 provisions suggests that the text itself offers certain clues. This is indeed the case. Although in some copies of the rp the text runs on without a break, other copies use the device of occasionally starting a new line; even more helpful is the use of red ink for a first letter or a first word to mark a new beginning. The best indications are the headings which sometimes precede the actual provisions. Such headings, like “About theft”, or “And this on inheritance”, are quite common in the Expanded Pravda; in the Short Pravda they are rare. Also, many provisions start with the words “And if” in various forms (A, A izhe, Ashche, Ozhe, A ozhe, Ache). A division of a legislative text into numbered articles is not only convenient for the user, but also affects the interpretation. The meaning of a rule may be altered if we do not take it by itself, but consider it to be part of a larger complex regulated by a single provision.

The Russkaia Pravda or Russian Law

107

Most scholars nowadays follow the division proposed by the editorial board of the Academy of Sciences edition of the rp; the same is done in this work. This division was already used in the first volume of 1940 and it was explained and defended, where necessary, in the second volume of 1947. It only concerned the Short Pravda and the Expanded Pravda. For the less important Abridged Pravda Zimin has proposed a division in his edition in prp i.24 In using older editions one has to bear in mind that the numbering of rp provisions is usually at variance with modern usage.

The Short Pravda: Introduction

It would be exaggerated to call the Short Pravda a comprehensive legal code. Nevertheless, it purports to deal, not with particular legal issues, but with a wide range of situations which could be subject to legal regulation. As such, the Short Pravda did not have a predecessor. The 10th-century treaties with Byzantium did also cover a number of eventualities, but all of them were connected with a specific situation – the temporary presence of visitors from Russia in the city of Constantinople. The point is therefore that in interpreting the Short Pravda there is not much to fall back on. For general historical background there are the Primary Chronicle and especially the First Novgorod Chronicle. Two closely connected questions are of primary importance in interpreting the Short Pravda and its individual provisions: those concerning its character and its origin. Its character: Where is it located on the line stretching from formal princely legislation to private registration of legal rules and customs? And its origin: When and where did the document now available as the Short Pravda arise? In the foregoing section we have noted that the Short Pravda clearly consists of two chronological components, the Pravda of Iaroslav and the Pravda of Iaroslav’s Sons. The questions concerning character and origin should therefore be answered separately and three times: for these two components and for their final fusion into a single document. The fact that the Short Pravda is not a homogeneous legal document has given rise to the theory that it should be regarded as the amalgamation of two independent versions of the rp, an older one (Iaroslav’s Pravda) and a later version (the Pravda of his sons). This was the view, in particular, of S­ ergeevich, the leading pre-revolutionary legal historian.25 He believed that the two versions­ 24 prp i, 76. 25 Sergeevich, Lektsii, 59–60.

108

chapter 4

were joined by a monastic copier in the middle of the 13th century or somewhat later. Modern scholars generally accept D’iakonov’s refutation of the theory of Sergeevich. D’iakonov pointed out that the two main parts of the Short Pravda did not regulate the same subject matter, as would have followed from Sergeevich’s argument.26 Rather, the Pravda of Iaroslav’s Sons appears as an addition to the Pravda of Iaroslav, regulating questions not covered by the latter. The last two provisions of the Short Pravda are generally regarded as separate minor components;27 they contain the law on the payment for the bloodwite collector (the pokon virnyi, art. 42) and the bridge builders’ statute (the urok mostnikov, art. 43).

The Short Pravda: The Pravda of Iaroslav

As mentioned above, the two basic copies of the Short Pravda (the Academic­ and the Archeographical copies) have come done to us in the text of the First Novgorod Chronicle (in the so-called Younger Redaction).28 This text is quite specific concerning the circumstances surrounding the emergence of the Short Pravda. Its narrative of the events leading up to the year 1016 closely parallels that of the Primary Chronicle and of the Older Redaction of the First Novgorod Chronicle. Before considering these events in more detail, a more general observation concerning the 1015–1019 period is worth making. This was the troublesome and fateful transition period between the the two most celebrated Kievan grand princes: Vladimir, who brought about the conversion of Russia and established himself as the the first undisputed ruler of the Russian nation, and his son Iaroslav, who successfully consolidated the work begun by his father.29 The succession was by no means a foregone conclusion; Vladimir’s realm could very well have been divided among his numerous sons, and Iaroslav was not the most prominent in this fractious band of brothers (see the sections on princely succession in Chapter 13, on the Prince). His half-brother Sviatopolk, 26 D’iakonov, Ocherki, 43; see also Iushkov, Stroi, 177–178. 27 E.g. by Tikhomirov, Posobie, 45; Iushkov, Stroi, 177; Zimin, Pravda Russkaia, 126–132; Baranowski, 332. 28 A.N. Nasonov, M.N. Tikhomirov (eds.), Novgorodskaia Pervaia Letopis’ Starshego i Mladshego Izvoda, Moskva/Leningrad, 1950. 29 A modern study, which also considers the extensive Western materials on the 1015–1019 episode, is S.M. Mikheev, «Sviatopolk” siede v Kievie po ottsi». Usobitsa 1015–1019 godov v drevnerusskikh i skandinavskikh istochnikakh, Moskva, 2009. See also S. Franklin, J. Shepard,­ The Emergence of Rus 750–1200, London/New York, 1996, 188–193.

The Russkaia Pravda or Russian Law

109

born in the same year, was in Kiev when Vladimir died in 1015 and this enabled him to claim the throne. He lost it again the next year (to Iaroslav, see below), but retrieved it in 1018 with the help of his father-in-law, the Polish king Boleslaw. In 1019 Iaroslav was finally able to rout the forces of Sviatopolk and drive the latter into exile. His claim to the Kievan throne was not undisputed and only in 1026 he agreed with his brother Mstislav to share the realm. Upon the death of Mstislav in 1036 Iaroslav became sole ruler, until his death in 1054. To return now to the events of 1016 and their relevance in explaining the origin of the oldest layer of the Russkaia Pravda: Iaroslav, in accordance with the prevailing practice among the descendants of Rurik, had been appointed by his father, St. Vladimir, the grand prince of Kiev, to rule in Novgorod. One of his duties was the payment of a yearly tribute of 2000 grivny to Kiev (for the background­of this tribute, see Chapter 16, on Novgorod). In 1013 or 1014, Iaroslav, with the support of Novgorod, had decided to cease this payment. When his father began to collect his troops in order to enforce his claim, Iaroslav strengthened his own army by recruiting fresh Varangian forces in Scandinavia. These Vikings, faithful to their reputation for violence and unruliness, created much unrest among the Novgorod population, culminating in an uprising in which many Varangians were killed. Iaroslav, in revenge, had a number of prominent Novgorod citizens treacherously assassinated. The same night he heard of the death of his father and how his half-brother Sviatopolk had set himself up as Vladimir’s successor in Kiev.30 Iaroslav was then forced to make peace with his Novgorod subjects. He collected an army of Novgorodians and Varangians and marched against Sviatopolk. In a bloody battle on the banks of the Dnepr, near Liubech, Iaroslav emerged victorious and occupied the throne in Kiev. At the end of this campaign he dismissed his Novgorod troops and “gave them a law code (pravda) and wrote down a statute (ustav), saying to them: «Live according to this charter (gramota), as I have written it for you, and observe it.»” These words are then followed immediately by the text of the Short Pravda. This looks more straightforward than it is. First of all, the story of the Novgorod Chronicle, referring to events in 1016, can of course apply only to the first part of the Short Pravda, the Pravda of Iaroslav, and cannot have any bearing on the second part, the Pravda of Iaroslav’s Sons. As to the actual events of 1015/1016, the narratives of the Primary Chronicle and the two redactions of the First Novgorod Chronicle run parallel down to the battle on the Dnepr. 30

Vladimir died on 15 July 1015 and a considerable length of time apparently elapsed before this news and that of subsequent developments in Kiev reached Iaroslav; the Primary Chronicle puts the crisis in Novgorod still in the year 1015.

110

chapter 4

The Primary­Chronicle simply relates how Iaroslav vanquished the army of his brother and occupied the throne of Kiev. The Older Redaction of the First Novgorod Chronicle adds that Iaroslav rewarded his troops before sending them home, but is silent about the granting of a law code. This has given rise to the hypothesis that the quotation given above and the insertion of the text of the Short Pravda in the Younger Redaction of the First Novgorod Chronicle were the result of the work of Novgorod scribes at some later moment, possibly to stress the Novgorodian character and origin of the Short Pravda.31 One can readily agree that the text of the Short Pravda as included in the Younger Redaction of the First Novgorod Chronicle (under the year 1016) cannot possibly have been the law code Iaroslav is supposed to have given to Novgorod (because the chronicle text also included the Pravda of Iaroslav’s sons). Almost all Russian medievalists since Tatishchev, as well as many Western scholars, have voiced opinions on the origins of the Short Pravda. This is not surprising, in view of the uniqueness of the text as the first and unprecedented expression of the beginning of Russian law. A more or less adequate survey of the relevant historiography would require a book-length study. The major division concerns the question whether the emergence of the first elements of the Short Pravda were specifically connected with Novgorod or not. During the Soviet­era, S.V. Iushkov was the principal advocate of the latter view; he regarded the Short Pravda as a code of law emanating from the Kievan grand prince and applicable to the entire Kievan realm.32 In more recent times I.Ia. Froianov is one of the leading scholars denying a Novgorod origin.33 The majority opinion has been and still is to give credence to the general drift of the story told by the Novgorod Chronicle: Iaroslav did write a law in some way connected with Novgorod’s support in his war against Sviatopolk and this law is at the root of the first part of the Short Pravda. The most elaborate arguments have been put forward by Cherepnin, Tikhomirov, and Zimin.34 It is generally agreed that this law of course did not include the second half of

31

The most probable scenario has been painstakingly reconstructed by Tikhomirov, Issledovanie, 36–40. 32 Iushkov, Stroi, 152–155, 178–183, and also S.V. Iushkov, Russkaia Pravda, Moskva, 1950, 283–292. 33 I.Ia. Froianov, Drevniaia Rus’, Moskva/Sankt-Peterburg, 1995, 97–112. 34 Cherepnin, Arkhivy i, 239–254; Tikhomirov, Issledovanie, 35–40; Zimin, Pravda Russkaia, 89–98. Also M.B. Sverdlov, “K istorii teksta Kratkoi redaktsii Russkoi Pravdy”, Vspomogatel’nye istoricheskie distsipliny x, Leningrad, 1978, 135–158.

The Russkaia Pravda or Russian Law

111

the Short Pravda, the Pravda of Iaroslav’s Sons. Beyond this point opinions are divided. The most detailed and in-depth investigation of the entire problem has been carried out by Tikhomirov; it involved a comparative study of the different Novgorod chronicles and their divergent reports concerning developments in Novgorod and Kiev in the course of the 11th century. To summarize his findings: the first eleven provisions of the Short Pravda may be connected with the events of 1016 and reflect an attempt to contain and regulate the ethnic tensions in Novgorod at that time. The first ten provisions deal with homicide and other forms of physical injury, precisely the kind of behaviour which could upset relations between Novgorodians and Varangians. Art. 11, devoted to the case of a runaway slave hiding with a Varangian, fits into this pattern. The following seven articles (12–18) are concerned with property disputes and the specific Slav-Viking confrontation is lacking. According to Tikhomirov these rules represent regular legislation by Iaroslav and they are tentatively dated by him in 1036. Other authors refrain from making this chronological distinction and regard the entire complex of arts. 1–18 of the Short Pravda (i.e. Iaroslav’s Pravda, also known as the Oldest Pravda – Drevneishaia Pravda) as a single whole.35 The importance of elucidating the circumstances surrounding the origin of the Oldest Pravda is that the connection with the events of 1016 in Novgorod bestows a specific character on it, irrespective of the question whether one regards only the first ten or eleven articles as resulting from these events (as Tikhomirov), or the entire complex of arts. 1–18. The Oldest Pravda, in this view, although appearing in the shape of a law issued by a prince, was essentially the registration of a pact, a kind of peace treaty. Cherepnin has pointed to the general similarity between the Pravda of Iaroslav, the treaties with Byzantium from 911 and 944, and the peace treaty of 1191–1192 between Novgorod and the Hanseatic cities.36 This similarity is easily explained if one bears in mind that these documents were all concerned with situations in which a foreign minority had to live in close and daily contact with an urban community belonging to a different culture and faith.37 The first eleven articles of the Short Pravda correspond most closely to the view that the earliest version of the Pravda of Iaroslav was designed to deal with a specific situation in Novgorod: the necessity to placate the population 35

E.g. Cherepnin and Zimin; D.P. Hammer, “The Character of the Russkaia Pravda”, Slavic Review, 31 (1972), 291–295, considers Tikhomirov’s argument in favour of two chronological layers in Iaroslav’s Pravda convincing, a view the present author shares. 36 gvnp No.28, see also Chapters vii, on treaties, and xvi, on Novgorod. 37 Cherepnin, Arkhivy i, 245–246.

112

chapter 4

of Novgorod without losing the support of the Varangians by providing an adequate framework for settling their mutual feuds and quarrels. The date of this version may be 1016 (or 1017, as the chronicler used the so-called March calendar), if one follows the account of the First Novgorod Chronicle, or 1019, if the Primary Chronicle is followed, where the end of the hostilities and the dismissal of the troops took place a few years later. This question is more or less irrelevant for the legal historian. In the view of Tikhomirov and others who accept the two chronological layers in the Pravda of Iaroslav, one needs a second date, after 1016, for the emergence of the second part of Iaroslav’s Pravda. Tikhomirov himself suggested 1036.38 Following an argument previously developed by Stratonov,39 he pointed to an entry in the Primary Chronicle, the only one after 1019 referring to Iaroslav in connection with Novgorod. It relates how Iaroslav came to Novgorod to set up his son Vladimir as resident prince and Zhidiata as bishop. He then received news that the Pechenegs (Turkic nomads) were laying siege to Kiev. Iaroslav assembled an army of Novgorodians, Varangians and Kievan Russians and attacked the Pechenegs at Kiev. The arguments in favour of 1036 are not at all conclusive, but there is nothing to suggest another year.40 A special twist to the story of the Novgorod origin of the Pravda of Iaroslav has been given by the leading Novgorod historian, V.L. Ianin. Referring to the quotation from the Novgorod Chronicle reproduced above, he asserted that the pravda (code) given to the Novgorodians in 1016 was the Russkaia Pravda (supposedly only the Pravda of Iaroslav), while the ustav (statute) accompanying it probably contained, among other things, the confirmation of Novgorod’s old privileges, conceded already in the ninth century by Rurik when he was invited by Novgorod. Art. 1 of the rp, allowing blood revenge in certain cases and thereby exempting the avengers from princely jurisdiction, represented a special concession to the Novgorod boyars, according to Ianin.41 Apart from the connection between 1016 and the rp, these ideas are highly hypothetical and lack reliable foundations.

38 Tikhomirov, Issledovanie, 54–61. 39 N.A. Stratonov, “K voprosu o sostave i proiskhozhdenii kratkoi redaktsii Russkoi Pravdy”, Izvestiia Obshchestva arkheologii, istorii i etnografii pri Kazanskom universitete, Vol. 40, No. 4, Kazan’, 1920, 385–494, at 387–398. 40 Iushkov, who rejected the entire version of the Novgorodian origin of the Pravda of Iaroslav and the crucial year 1016, suggested some time in the 1030–1040 decade as the most probable date of the Pravda of Iaroslav; Stroi, 183. 41 L.V. Ianin, Ocherki istorii srednevekovogo Novgoroda, Moskva, 2008, 36–37.

The Russkaia Pravda or Russian Law

113

The other major question in respect of the rp concerns its legal character, more specifically: Was it an explicitly legislative document or something else? This question does of course affect not only the Short Pravda but also the Expanded­Pravda (and the Abridged Pravda) and, moreover, has to be answered also for the different components of these documents. Where the Short Pravda is concerned this means: the Oldest Pravda (in the narrow sense of the first eleven provisions, going back to 1016), the second part of the Pravda of Iaroslav (arts. 12–18), the Pravda of Iaroslav’s Sons (arts. 19–41), and the two isolated provisions at the end, the Law on the Bloodwite Collector (pokon virnyi, art. 42) and the Bridge Builders’ Statute (urok mostnikov, art. 43). The legislative character of Iaroslav’s Pravda (whether one regards it as a single document or as a compilation of two complexes) is documented by what is known about the conditions in which it came into being. It is also confirmed by other parts of the rp text, notably most copies of the Expanded Pravda. These are often headed “The Law of Iaroslav Vladimirovich”; furthermore art. 2 of the Expanded Pravda offers an augmented version of the preamble to art. 19 of the Short Pravda, specifically referring to the previous legislation of Iaroslav. The old preamble (which, incidentally, by itself also confirms the legislative character of the Pravda of Iaroslav’s Sons) stated: “The Law established for the Russian land, when … [the sons of Iaroslav and three officials] came together.” In art. 2 of the Expanded Pravda the preamble appeared in this form: “After Iaroslav his sons Iziaslav, Sviatoslav, Vsevolod, and their men [names] met again and abolished blood vengeance, [replacing it] by compensation by money; and everything else as Iaroslav had decided was confirmed by his sons.” That arts. 42 and 43 represent two separate enactments is obvious and needs no further explanation. Finally, if Tikhomirov’s hypothesis of two components of the Pravda of Iaroslav is accepted, one going back to 1016 and another one to 1036, the rather academic question remains whether these two parts were joined together in 1036 (or at some later date) as a consolidated piece of legislation, or whether they remained separate until they were joined with the Pravda of Iaroslav’s Sons when the final redaction of the Short Pravda was put together. We shall return to the question of the character of the Short Pravda as a whole after our discussion of the separate components of it.

The Sources of Iaroslav’s Pravda

An obvious question to be asked first is whether there was any Russian legislation prior to the 1016 statute. Attention is often drawn in this respect to the

114

chapter 4

treaties with the Greeks of 911 and 944, both of which mention the zakon russkii several times (see Chapter 3, which includes a section on the Zakon russkii). The Treaty of 911 relates how the Russians had to confirm the treaty by oath po zakonu i po pokonu iazyka nashego, which is variously translated as “according to the law and regulation of our people” (Kaiser), “According to our own faith and the custom of our nation” (Cross/Sherbowitz-Wetzor). The Treaty of 944 contains several references to zakon, but the most illuminating is the rule concerning theft (art. 8 in Kaiser’s translation), which provided that the penalty was to be po zakonu Grech’skomu i po ustavu, i po zakonu Ruskomu. As the usual meaning of ustav unquestionably is “enacted legislation” or “statute”, zakon should most probably be read as “custom” or “customary law”. This meaning of zakon in Old-Russian is well-known from other sources. The references to the zakon russkii in the treaties with the Greeks can therefore not be adduced in order to prove the existence of written laws preceding Iaroslav’s Pravda.42 One possibility remains and is contained in a short communication in the Chronicle entry for 946. The princess Olga, who ruled as regent for her son Sviatoslav after the death of her husband Igor in 945 at the hand of the Derevlians, subdued the land of Dereva, establishing laws (ustavy) and tribute. The context suggests that these ustavy served the purpose of fixing the subordinate position of the Derevlians and would have consisted of a few general rules. Whether they were put down in writing is quite uncertain and at any rate they could hardly have played a role as a source for the rp. The most probable source for Iaroslav’s Pravda would be Russian customary law; this then would be the zakon russkii to which the Treaties of 911 and 944 refer. There is a general similarity between the most prominent rules of the oldest layer of Iaroslav’s Pravda (the first eleven articles, tentatively dated at 1016–1019) and some of the rules of the 911 and 944 treaties. They all contain rules about blood revenge for homicide and monetary compensation for assault. This may be regarded as a simple codification of Russian customary law. It has often been noticed that a comparison between the treaties, Iaroslav’s Pravda, and more recent layers of the rp demonstrates the gradual disappearance of blood revenge. The Treaty of 944 had granted the right to revenge to the relatives of the victim, Iaroslav’s Pravda limited it to a narrow circle of siblings (fathers, sons, brothers, and nephews), while art. 2 of the Expanded Pravda relates how Iaroslav’s sons forebad blood revenge and replaced it generally by composition.

42

The above reading is from the Hypatian Copy of the Chronicle; the Laurentian Copy has versions which would also allow the reading “according to Russian law and custom”.

The Russkaia Pravda or Russian Law

115

One may accept, in accordance with the leading opinion of Russian legal historians, that the customary law rules in Iaroslav’s Pravda would have reflected the customary law of Novgorod. But this is hardly a helpful statement, as next to nothing is known about the customary law of Kiev or Chernigov or Smolensk and other ancient Russian towns, and their possible differences with the law of Novgorod. This is rightly pointed out by Iushkov, who, as mentioned before, rejects the Novgorod origin of Iaroslav’s Pravda and holds that it was not a charter granted to Novgorod, but a general law for the whole country, enacted in Kiev at some time during Iaroslav’s reign.43 Several Russian authors44 have pointed to the “Court Law for the People” (Zakon Sudnyi liudem, zsl; see the section on this topic in Chapter 10, on Foreign­ Laws) as a likely source for at least a few provisions of Iaroslav’s Pravda, notably art. 12 (riding another person’s horse, without his permission) and art. 18 (damaging another person’s arms or clothing). However, the references made to specific provisions of the zsl are all to either the Expanded or the Concordance versions, both of which came into being long after the Pravda of Iaroslav appeared. The Short Version of the zsl, which goes back to the 9th century, is supposed to have reached Russia before the 13th century, but it does not contain any provisions paralleling the Pravda of Iaroslav. The Expanded and Concordance versions of the zsl were most probably compiled in R ­ ussia some time after 1300 and they borrowed from the rp, not the other way around.45 Along with customary law, Iaroslav’s Pravda undoubtedly also contained elements of new legislation, amending the traditional system. Certain provisions clearly represent a departure from previous practice. The best example is art. 14, which in the laconic way typical of the Short Pravda quotes both the old custom and the new rule superseding it. If somebody recognizes [his property], he is not to take it back and ought not to say to him [who possesses his property]: ‘This property is mine’; instead he ought to say: ‘come to a confrontment [to disclose] where you 43 Iushkov, Stroi, 181. 44 Cf. N.V. Kalachov, Predvaritel’nyia iuridicheskiia svedeniia dlia polnago ob”iasneniia Russkoi Pravdy, Sankt-Peterburg, 1880 (first ed. 1846), 166; D’iakonov, Ocherki, 49; Tikhomirov, Issledovanie, 58–59. 45 For a more detailed argument in this question see my chapter on “Roman Law in Medieval Russia” in Feldbrugge, lmr, 59–128, at 79–80 and 116–118. Tikhomirov reversed his position twenty years later (i.e. zsl was in fact the borrower, not the lender) in his study on the zsl; M.N. Tikhomirov, Zakon Sudnyi liudem Prostrannoi i Svodnoi redaktsii, Moskva, 1961, 21.

116

chapter 4

obtained [the property]’; if he [who is asked to appear] does not come, then [he is to provide] a guarantor within five days. Leaving aside the substance of the rule for the time being, the point here is that the old custom of self-help is explicitly forbidden and replaced by a more legalized procedure. The same principle, less clearly expressed, seems to be at the basis of the immediately following articles 15 and 16. The legislative incursion of the prince fits into the view of discerning two chronological layers in the Pravda of Iaroslav, with the more recent layer revealing an increasing assertion of central power and interference with the traditional order. But even in the first and older part of Iaroslav’s Pravda (arts. 1–11) the hand of the prince is visible. The very fact that customary law is more or less officially recorded emphasizes the prince’s legislative role. More specifically, there are good reasons to assume that art. 1, dealing with homicide, was in fact designed to restrict the right to revenge to a narrower circle than previously.46 Then there is the question of possible Scandinavian influences in the Pravda of Iaroslav. The effect of irrational factors in the debate around this theme through the ages has been discussed in the section on “The Viking Question” (in Chapter 12, “Setting the Stage: Territory and Tribes in Early Kievan Russia”). The presence of a significant Scandinavian element among the Russian population during the 10th and 11th centuries is undeniable and explicitly recognized in arts. 11 and 12 of the Short Pravda (and the corresponding provisions of the Expanded Pravda). But did this also result in Scandinavian influences on early Russian law? Several pre-revolutionary Russian authors have argued in favour of this position.47 Karamzin, for instance, simply stated that the early Russians had received their laws from the Varangians.48 Such a sweeping statement would not be accepted by anybody nowadays, but the negative attitude prevailing during the Soviet era, which rejected anything that would diminish the 46

47

48

See my “Wergeld, Bloodwite, and the Emergence of Criminal Law (Article 1 of the Short Redaction of the Russkaia Pravda)”, H. Küpper (ed.), Von Kontinuitäten und Brüchen: Ostrecht im Wandel der Zeiten. Festschrift für Friedrich-Christian Schroeder zum 75. Geburtstag, Frankfurt am Main, 2011, 3–21. A critical overview in S.V. Iushkov, Russkaia Pravda, Moskva, 1950, 352–371, who mentioned the ‘Normanist’ authors Strube de Piermont (already in 1756), Karamzin, Shchepkin, Karskii and Presniakov. The latter author paid special attention to the payment scale of the Pravda of Iaroslav and very similar scales in Germanic law; A.E. Presniakov, Kniazhoe pravo. Ocherki po istorii x–xii stoletii (Zapiski istoriko-filologicheskogo fakul’teta imp. Sankt-Peterburgskogo Universiteta, XC), Sankt-Peterburg, 1909, 255–267. Karamzin, T.II, Ch. iii, col.26.

The Russkaia Pravda or Russian Law

117

autochthonous­character of Kievan institutions, exaggerated in the opposite direction. Modern authors have stressed the importance of the druzhina in the political and legal culture of Kievan Russia.49 In their view, the “Russes” of the treaties with Byzantium were the druzhina members and the “Russian custom” (Zakon russkii) was actually the customary law of the druzhina. If these considerations are combined with the acceptance of the theory of the origin of the Oldest Pravda in connection with the events in 1016 in Novgorod, then the conclusion that the Oldest Pravda reflected predominantly Viking customary law becomes plausible, because the druzhina of the earliest Rurikid princes consisted mainly­of Scandinavians.50 On the other hand, if Russian customary law preceding the rp would turn out to be quite similar to Scandinavian (Germanic) law of the same period, it would be impossble to establish whether the earliest phase of the rp reflected Germanic or Slavic law. There are indeed reasons to assume that this was the case and this would make the question of Scandinavian influences on the Pravda­of Iaroslav moot.51 The presumable similarity with Scandinavian law, and Germanic law generally, involves a few other specific questions. First, not enough is known about contemporary Scandinavian law, because the earliest written law books appeared only after the conversion of Scandinavia. Further research in this field, involving also material from a pre-Christian era, may yield new insights.52 Secondly, the connections with (South-)Germanic law have been the subject of several studies before 1917, but attention has usually been focused on the earliest and most important of the so-called leges barbarorum, the Salic law,53 and on two complexes of rules in particular: arts. 10 (pushing or shoving somebody) and 14–15 (“confrontment”, svod and izvod) of the Short Pravda and arts. 33 (De viae lacina) and 39 (De vestigio minando) of the Lex Salica (arts. 31 and 37 of the Pactus Legis Salicae). The similarities, however, are not very specific and, moreover, there is a gap of five centuries between the two laws.54 49

50 51 52 53 54

A.A. Gorskii, Drevnerusskaia druzhina, Moskva, 1989 (not available to me); E.A. Mel’nikov, “K tipologii predgosudarstvennykh i rannegosudarstvennykh obrazovanii v Severnoi i Vostochnoi Evrope”, dgve 1992–1993, Moskva, 1995, 16–32; N.F. Kotliar, Drevnerusskaia gosudarstvennost’, Sankt-Peterburg, 1998, 63–70. Such a view had already been advanced a century ago by E.N. Shchepkin, Variazhskaia vira, Odessa 1915, 153. See also my “The Russkaia Pravda” in Feldbrugge, lmr, 33–58, at 53–57. Cf. K. von Amira, Grundriss des germanischen Rechts, Strassburg, 1913 (3rd ed), 78–84. E.g. M. Levashov, Ugolovnoe pravo Russkoi Pravdy sravnitel’no s Salicheskoi Pravdoi, Odessa, 1911. Art. 33 (De intertiare) of the Lex Ribuaria is a bit closer to art. 14 of the Short Pravda.

118

chapter 4

The 9th-century Lex Saxonum might be a better candidate for comparison, but only its first dozen or so provisions, which probably reflect traditional Saxon law (the remainder consisting of Carolingian innovations and impositions) and are remarkably close to the first ten articles of the Short Pravda. Their greater proximity to the oldest parts of the rp in time and substance is also matched by a possible geographical proximity. According to certain researchers, the founder of the dynasty, Rurik, was a native of Jutland, a region contiguous with the territory of the Saxons in Germany (see the section on “The Dynasty of Rurik” in Chapter 13).55 My own view, expressed more extensively in other publications, is that the oldest layer of the rp is representative of a cultural and political stage of development in which state and law (as we know them) came into being, and, secondly, that this stage can be observed among many peoples with Indo-­ European roots at a point where the common origins of socio-legal institutions were still noticeable.56

The Pravda of Iaroslav’s Sons

The second and largest part of the Short Pravda is known as the Pravda of Iaroslav’s Sons (Pravda Iaroslavichei) because it begins (after art. 18) with the words: “The law established for the Russian land, when Iziaslav, Vsevolod, Sviatoslav, Kosniachko Pereneg, Mikyfor the Kievan, and Chudin Mikula met together”.57 Iziaslav, Vsevolod and Sviatoslav had succeeded their father I­aroslav in 1054,

55 56

57

More detail in my above-mentioned study on the rp in Feldbrugge, lmr, 33–58, at 53–57. In addition to the works quoted in this chapter, see also F. Feldbrugge (ed.), The Law’s Beginnings, Leiden, 2003, “Law’s Beginnings. Some Concluding Observations”, 255– 280, at 258–268. Reviewing the rp in the context of contemporary Slavic legislations, Z.M. Chernilovskii explicitly widened the perspective to the Indo-European dimension in Z.M. Chernilovskii, “Russkaia Pravda v svete drugikh slavianskikh sudebnikov”, G.V. Shvekov (ed.), Drevniaia Rus’: Problemy prava i pravovoi ideologii, Moskva, 1984, 3–35. I follow the most frequently accepted reading of the enumeration as referring to three officials accompanying the three princes. The princes are not in order of seniority (Iziaslav, 1025–78; Vsevolod, 1030–93; Sviatoslav, 1027–76); Kosniachko is mentioned in the Chronicle in 1068 as Iziaslav’s general and Chudin Mikula is probably attached to Sviatoslav (his son Ivanko Chudinovich turns up in art. 53 of the Expanded Pravda as the ‘man’ of Oleg, the son of Sviatoslav). In this reading each prince is accompanied by his own boyar. Other readings of the list result in four or five names, by regarding Kosniachko and Pereneg, or Chudin and Mikula as separate persons. Full references in Baranowski, 248.

The Russkaia Pravda or Russian Law

119

together with their brothers Igor and Viacheslav, who died in 1060 and 1056 respectively. More light on this brief preamble is shed by the Expanded Pravda, in which, as explained, almost all the material of the Short Pravda has been inserted, but often in amended form. The preamble encountered in the middle of the Short Pravda returns in modified version at the beginning of the Expanded Pravda, as art. 2. After [the reign/death of] Iaroslav his sons met again: Iziaslav, Vsevolod and Sviatoslav and their men Kosniachko Pereneg and Nikifor, and abolished revenge killing, but [replaced it] by monetary compensation; and everything else was established by his sons as Iaroslav had ordered it. This provision is preceded by art. 1, itself an amended version of art. 1 of the Short Pravda (allowing certain relatives to kill a murderer in revenge, or accept a fixed compensation). From the point of view of modern legislation art. 1 of the Expanded Pravda does not make sense where it allows revenge killing, to have it abolished in art. 2. But as a kind of historical footnote to art. 2 it does make sense. We return to it at the end of the discussion of the Pravda of Iaroslav’s Sons. The most important question concerning the Pravda of Iaroslav’s Sons is whether all that follows after the heading preceding art. 19 should be regarded as the law established at the meeting of the princes. As mentioned in the introductory section to the Short Pravda, at least the last two provisions of the Short Pravda appear to be separate enactments (art. 42, the law on the payment of vira, and art. 43, the bridge builders’ statute). Many commentators are of the opinion that the entire complex of arts. 19–41 cannot be regarded as a single whole. Arts. 19–28 represent a complex which is homogeneous in substance and format, setting fines for the killing of the prince’s servants.58 For the killing of the highest officials (the ognishchanin, “steward”, and the pod”ezdnoi, the collector of taxes and fines) a fine of 80 grivna was set, double the amount due for the killing of a freeman. But while the latter amount was to be paid as compensation to the victim’s next of kin (wergeld), the sanctions of arts. 19ff. were genuine fines, named vira (bloodwite) in the text, and payable to the prince.

58

This position had already been taken by several pre-revolutionary authors (e.g. Presniakov, Lektsii, i, 215) and was most extensively defended by Tikhomirov in Soviet times; Issledovanie, 63ff. Arts. 31–33 might arguably be added to the domanial law complex.

120

chapter 4

Among the otherwise uniformly worded provisions, art. 23 stands out. It concerns the “senior stable master” (koniukh staryi) and the standard formula is followed by the words: “as Iziaslav established concerning his stable master, who was killed by the people of Dorogobuzh”. The fact that the fine in this case was set at 80 grivna suggests that the official concerned would otherwise not have been protected by the maximum bloodwite set for the highest officials. More generally, the addition to the standard formula is noteworthy as the ­earliest example of an individual judicial decision being transformed into a general rule. The second part of the Pravda of Iaroslav’s Sons (arts. 29–41) does not possess the internal unity of the first; this prompts the question whether it was enacted as a single piece of legislation or consisted of a collection of incidental laws. The latter position is favoured by several prominent scholars.59 The second part is no longer, like the first, directed at securing the personnel and property of the prince, but addresses the entire population (arts. 31–33 might perhaps be added to the complex of arts. 19–28). Arts. 42–43, as stated before, stand by themselves. They both enjoy their own separate headings: “And this is the law on the payment of vira” (A se pokon virnyi, art. 41) and art. 43 (A se urok mostnikov, “And this is the bridge builders’ statute”).60 In the case of the pokon virnyi, its character as a separate statute is emphasized by its last sentence: “And this is the law of Iaroslav”, which would of course mean that it was merely added on by Iaroslav’s sons at a certain moment.61 Most authors regard the bridge builders’ statute also as originating during the reign of Iaroslav.62 The question of the character of the Pravda of Iaroslav’s Sons in its original form (presumably arts. 19–28) is closely interwoven with the question of the date and circumstances of its origin. It must have been agreed upon (enacted may be too explicit a term) at some time within the period the three brothers­ 59 60

61

62

Such as Iushkov, Stroi, 184; Tikhomirov, Issledovanie, 168. “Statute” is the most common meaning of urok in Old-Russian. The basic meaning is “what has been [authoritatively] expressed”, and on this basis urok mostnikov is also translated as the bridge builders’ rate, tariff, share, etc. Cf. Sergeevich, Lektsii, 61; Iushkov, Stroi, 85; Zimin, Pravda Russkaia, 132. Tikhomirov rejected this idea, with the argument that attribution of statutes to a prince with a legislative reputation was a common practice; according to him, the pokon virnyi was a Novgorod enactment which was added to the Short Pravda during the last editorial phase of its compilation, Issledovanie, 70–74. The fact that art. 41 prescribes in detail the rations to be allotted during Lent speaks for a comparatively late origin, as noted by Tikhomirov, because the observation of Lent had hardly taken root during the reign of Iaroslav. E.g. Iushkov, Stroi, 185.

The Russkaia Pravda or Russian Law

121

were reigning together, i.e. between 1060 (the death of the fourth surviving son of Iaroslav, Igor) and 1076 (the death of Sviatoslav). It is usually connected with the meeting of the three brothers in Vyshgorod in 1072, an event reported at length in the Chronicle.63 The meeting ostensibly took place to celebrate the solemn interment of the saints Boris and Gleb (killed in 1015), the brothers’ uncles, but “after the liturgy was sung, the brothers dined together, each with his boyars and with great affection”, and that would have been the time to transact some business. It remains an open question what the agenda of this meeting consisted of. Was it the entire Pravda of Iaroslav’s Sons (arts. 19–43 of the Short Pravda) that was agreed upon? Or were the last two provisions (the pokon virnyi and the urok mostnikov) added on at a later date? Or did the princes’ consensus only involve the rules concerning the protection of princely officials and property (arts. 19–28 and possibly also 32–33)? And there is also the question of the abolition of blood feuds, mentioned as the central topic of the meeting in the Expanded Pravda version (art. 2) of the preamble of the Pravda of Iaroslav’s Sons in the Short Pravda. Art. 2 of the Expanded Pravda relates how the brothers met “again” (paki), and this has given rise to the assumption that there were actually two different meetings.64 A definitive answer to these questions is difficult to give; many interpretation have been proposed, usually based on connections with specific episodes or events related by the chronicles. Tikhomirov’s monograph from 1941 remains an important milestone, followed by Zimin’s posthumously published study on the rp.65 63

Cf. Tikhomirov, Issledovanie, 64–66; Iushkov, Stroi, 184, and Russkaia Pravda, Moskva, 1950, 303. The window is actually smaller than the 1060–72 period; the 1060–65 period was reasonably quiet (according to the Chronicle), but in 1065 Vseslav started his campaign against the three brothers, which resulted after various defeats in his victory in 1068 when the dissatisfied population of Kiev threw out the brothers and installed Vseslav as their prince. The next year the brothers succeeded in unseating Vseslav, re-instating Iziaslav as prince of Kiev. If the Pravda of Iaroslav’s Sons is viewed as a measure to address popular unrest, 1072 would look like an acceptable date. Shchapov, on the other hand, viewed the 1072 assembly as a predominantly religiously motivated event and opted for a moment soon after Iaroslav’s death, possibly still in 1054; cf. Ia.N. Shchapov, “K istorii Pravdy Iaroslavichei”, A.A. Preobrazhenskii (ed.), Problemy sotsial’no-ekonomicheskoi istorii feodal’noi Rossii, Moskva, 1984, 256–261. 64 E.g. Sergeevich, Lektsii, 62, 93. 65 Zimin, Pravda Russkaia, 122–124, regarded the Pravda of Iaroslav’s Sons as a surviving fragment of a more extensive regulation concerning the prince’s domain, put together during the last years of Iaroslav’s reign (before 1054). Several other viewpoints exist; see Baranowski, 149–151.

122

chapter 4

The Final Compilation of the Short Pravda

If there is considerable uncertainty about the date of the Pravda of Iaroslav’s Sons (1072 still remaining the most likely answer), the questions surrounding the final compilation of the entire Short Pravda are even more difficult to answer. When and why have the various components of the Short Pravda, which as we have seen originated at different times and possibly in different places, been combined into a single document, and what was the nature of this document? The simplest answer was given (in 1949) by Iushkov, who asserted that the Short Pravda was an officially compiled consolidated code consisting of Iaroslav’s Pravda, the Pravda of Iaroslav’s Sons, and some new legislation issued at a somewhat later date. It was promulgated, so he held, by the grand prince of Kiev soon after the enactment of the Pravda of Iaroslav’s Sons, i.e. in the 1060’s or 1070’s.66 According to Tikhomirov, the compilation of the Short Pravda was undertaken in a Novgorod monastery, probably during the reign of Vsevolod Mstislavich­as prince of Novgorod (this was a grandson of Vladimir Monomakh and a great-grandson of Vsevolod Iaroslavich, who was regarded as the Short Pravda’s legislator by Iushkov). This prince (see Chapter 16, on Novgorod) ruled in Novgorod from 1117 till 1136 and it was at that time (according to ­Tikhomirov) that the pokon virnyi and the urok mostnikov (being essentially local Novgorod ordinances) were added. The final editor made an attempt to produce a more or less consistent text and for this purpose amended some of the texts at his disposal. Still, the Short Pravda as known to us should not be seen as a purely private compilation but rather as a work done at the instigation of prince Vsevolod, whose activities as a legislator are well-known.67 Zimin, who, as mentioned above, advocated an early origin of the Pravda of Iaroslav’s Sons, still during the reign of their father, was inclined to regard 1052 as the year the entire Short Pravda was compiled, although this position has not attracted any followers.68 Other dates have been suggested by other scholars, but until a more persuasive argument for a specific year can be made

66 Iushkov, Stroi, 188. During that period one of the three brothers Iziaslav, Sviatoslav or Vsevolod served as Kievan grand prince, as well as a more distant nephew Vseslav of Polotsk. In his monograph on the rp (Russkaia Pravda, Moskva, 1950, 312–318) Iushkov opted for a somewhat later date, the reign of Vsevolod (1078–1093). 67 Tikhomirov, Issledovanie, 74–78. 68 Zimin, Pravda Russkaia, 148–150.

The Russkaia Pravda or Russian Law

123

one has to be satisfied with a tentative date around the end of the 11th century or within the first decades of the 12th century.69 Opinions are also divided on the character of the Short Pravda. The views of Iushkov and Tikhomirov have been mentioned.70 Much depends on what position one takes concerning the date and circumstances of the compilation of the final text. Another approach would be to forget about such data and consider instead the text of the Short Pravda as an integral document. In that case it is hard to escape the feeling that the Short Pravda is a fairly heterogeneous collection of texts of different origin. This would speak more in favour of it being an unofficial compilation, whether or not instigated or sponsored by some official authority. Baranowski, after reviewing the various theories, seems to come to a similar conclusion when he writes: “That is why the Short Pravda is not a codification, not a code of law, but a legal collection, a law book, a judges’ manual.”71 69 70 71

For a survey of various theories, see Baranowski, 150–152. Iushkov’s position rests in part on ideological arguments: the Kievan state was not primitive, therefore it must have had proper legislation. Baranowksi, 152.

chapter 5

The Russkaia Pravda: The Expanded Pravda

The Expanded Pravda: Introduction

The study of the Short Pravda, as we have seen, needed to concern itself with only two copies (the First Academic Copy and the First Archeographical Copy) and these copies are very similar. With the Expanded Pravda the situation is quite different. Close to one hundred copies are known and the differences between some of them are considerable. This makes it far more difficult to say about a particular text: “This is the Expanded Version of the Russkaia Pravda.” There are always a number of credible competitors for such a label. Ever since the beginning of the study of the Expanded Pravda scholars have attempted to introduce order into the mass of available copies. The first step is to put aside more recent copies, identical or very similar to an older copy, and concentrate work on the latter. Then there are two main approaches to classification: according to contents, or according to the physical context of the copy, the ‘convoy’ of documents among which it was discovered. The contents approach speaks for itself: copies which contain certain rules or expressions, or a sequence of rules, which set them apart from other copies, may be considered as forming a family, and such families may further be subdivided into more specific categories. In the ‘convoy’ approach one does not look primarily at the copies of the Expanded Pravda themselves, but rather at the texts which are accompanying them. About three quarters of the Expanded Pravda copies were found in kormchie, collections of ecclesiastical texts, fashioned after the Greek Nomocanon, and in use in monasteries. The kormchie followed a general pattern, but as they were copied and recopied for centuries, considerable variations in contents and arrangement arose. The remainder of the Expanded Pravda copies were found in various other collections, also of monastic origin, especially in the Merilo Pravednoe (“Just Measure”), the Sofia Chronicle, and a special Legal Collection. The two principal authors who have addressed the problem of classifying the Expanded Pravda copies, Liubimov and Iushkov, notwithstanding their numerous disagreements on questions of detail, both employed the two approaches outlined above with remarkably similar results.1 Liubimov’s classification covered 86 copies of the Expanded Pravda; four other copies were 1 Tikhomirov, Issledovanie, 80, explains why he adopted the same approach.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_006

The Russkaia Pravda: The Expanded Pravda

125

available to him but had been left out for various reasons; three more copies were known to have existed but had been lost. Several new copies of the Expanded­Pravda have turned up after Liubimov drew up his system, but they can be accommodated in it without serious difficulties. Liubimov divided his 86 copies into three groups, and these groups into families. The division was based not only on the similarity of the texts within a certain group or family, but also on the ‘convoy’ Liubimov’s three groups were designated by him according to the principal copies within each category: the Synodal-Trinity group (69 copies), the Pushkin group (6 copies), and the Karamzin group (11 copies). The Synodal-Trinity group was sub-divided into eight families or types (vidy), the Pushkin group into two, and the Karamzin group into three. Iushkov divided all rp copies into six ‘redactions’. His first redaction is the Short Pravda, while the sixth redaction is the Abridged Pravda. Iushkov’s second redaction is Liubimov’s Synodal-Trinity group (without the Abridged Pravda), the third redaction is Liubimov’s Karamzin group (but without the Fourth Trinity Copy), the Pushkin Copy and the Fourth Trinity Copy constitute Iushkov’s fourth redaction, and the remaining copies of Liubimov’s Pushkin group form the fifth redaction.2 Thus, the only substantial difference between Liubimov and Iushkov was the attribution of the Fourth Trinity Copy. There are other important differences between the views of the two scholars, but these do not concern the classification of the Expanded Pravda, but the relationships between the component parts of the Expanded Pravda, as well as the character of the Abridged Pravda. These matters will be discussed below. In the perspective of the legal historian an analysis of the numerous copies of the Expanded Pravda serves primarily the purpose of establishing the best text, in other words, the texts from which later copies were taken and the time and circumstances of their origin.3 Iushkov observed in this connection: 2 S.V. Iushkov, Russkaia Pravda, Moskva, 1950, 9–27. The classification terminology used by the different authors is not uniform. Liubimov distinguished three main “groups” (gruppy), divided into “types” (vidy), each type embracing a number of “copies” (spiski); in a few cases he inserted a “section” (zveno) between a gruppa and its vidy. Tikhomirov followed Liubimov in principle, but also has izvod and tip for “type” (vid); Iushkov has “redaction” (redaktsiia) as the overall category, divided into izvody (subdivided into vidy), or directly into vidy (subdivided into spiski), or even directly into spiski. Zimin stayed close to Liubimov. Ia.N. Shchapov (in Kniazheskie ustavy i tserkov’ v Drevnei Rusi, Moskva, 1972, 9) has proposed a terminolgy in which the terms redaktsiia, izvod, vid, gruppa, arkhetip and protograf are exactly defined. 3 For this reason it is unnecessary to discuss the earlier attempts at classification of Expanded Pravda copies by authors such as Kalachov, Tobien or Sergeevich; their views have been

126

chapter 5

“As the differences between the [various] copies had their origin, in principle, in the mistakes of the copyists or in their efforts to give meaning to an earlier text, it stands to reason that the study of these types cannot yield any significant information on the history of the text of the Russkaia Pravda.”4 Zimin retorted that “The distinguishing of separate types of the Expanded Pravda within the Synodal-Trinity group allows [us] to follow the history of the text of it, the context within which it operated, the changes in the understanding of legal norms, the time and place of the emergence of its archetype and many other important questions.”5 With Zimin’s warning in mind, we intend to look first briefly at the three main groups of Expanded Pravda copies. The following sections will then discuss the component parts of the Expanded Pravda and the question of the origin and sources of the final compilation of the Expanded Pravda. A section on the Abridged Pravda will close this chapter, more or less as an appendix, because the dominant view is that the Abridged Pravda is a document of later date, based on certain copies of the Expanded Pravda.

The Codicology of the Expanded Pravda

The background to the impressive scholarship structure erected around the mass of copies of the Expanded Pravda was the medieval practice of copying. This resulted inevitably in the introduction of conscious and unconscious changes in a copied text. Unconscious changes or mistakes (“a slip of the pen”) can only be expected and conscious changes could be made when the copyist was of the opinion that the text he was writing out was for some reason to be preferred to the text he was copying (because it was incomprehensible to him, or because he thought he was correcting an earlier copyist’s mistake, or because a new text would be more acceptable to the master for whom he was working, etc.). In this way the copying process, continued over centuries, would produce entire families and family trees of copies, leaving it to the historian to figure out what the usually long lost original document could have looked like. summarized and taken into account by Liubimov and Iushkov, and also by Tikhomirov who published his study on the rp one year after the Academy of Sciences edition (containing Liubimov’s study). 4 Iushkov, op.cit., 17–18. 5 Zimin, op.cit. 152–153. The same idea is given great emphasis by D.H. Kaiser, The Growth of the Law in Medieval Russia, Princeton, 1980, 29–37.

The Russkaia Pravda: The Expanded Pravda

127

Synodal-Trinity Group The most important group of Expanded Pravda copies is the Synodal-Trinity group embracing more than three quarters of all extant Expanded Pravda copies (75, against 6 copies in the Pushkin group and 13 in the Karamzin group).6 The Synodal Copy (S) is the oldest one available, from a kormchaia dated 1282 by the copyist himself.7 Next in age are the First Trinity (T) and Pushkin (mp) copies, dating from the middle of the 14th century. The Pushkin Copy (eponymous for the Pushkin group) has several additional provisions, as compared with the Synodal-Trinity group. The First Trinity Copy is generally considered to be the best of all the Expanded Pravda copies; a number of obvious omissions and copying errors can be corrected by consulting copies from other groups. It is invariably used in collections as the standard text.8 Within the Synodal-Trinity group, the five copies which form the Trinity family have been found in manuscripts of the Merilo Pravednoe (“Just Measure”), one of the major collections of legal texts (see the special section on the Merilo Pravednoe in Chapter 2, on Sources). The copies of the seven other families of the Synodal-Trinity group have all been found in kormchaia collections (see also the section on kormchie in Chapter 2). It is to be noted that the kormchie in which most copies of the Synodal-Trinity group are found are not uniform. The Synodal Copy (S) is the last item of the Novgorod Synod Kormchaia of 1282 (followed by two short texts added later on). In Liubimov’s classification it represents a family all by itself. The 19 texts of the Expanded Pravda of the Novgorod-Sofia family are from a few closely related kormchie. The other families of the Synodal-Trinity group are also internally connected by being included in particular families of kormchie. The 19 texts of the Rozenkampf family are from collections which combine the kormchaia with the Merilo Pravednoe. The eighth family within Liubimov’s Synodal-Trinity group is the Tolstoi family, consisting of only two copies, the so-called Fourth Tolstoi Copy (tbiv) and the First Obolenskii Copy (ao). These copies contain an abridged form (about 1100 words) of the Expanded Pravda. This version is known therefore as the Abridged Pravda (Sokrashchennaia Pravda), sometimes regarded as a third 6 According to Zimin, op.cit., 153, written in 1980. 7 All rp copies (both Short and Expanded Pravda) were assigned a cipher by Liubimov, consisting of one or two letters, indicating the origin or location of the text, and a Roman numeral (ii, iii, etc.) for other texts with the same letter(s). So, for instance, smv referred to a fifth copy of the rp from the Solovetskii monastery. 8 For instance by prp, rz and PRoP, and in the translations of Vernadsky, Szeftel/Eck, Kaiser and Baranowski.

128

chapter 5

and separate version of the rp (we shall return to this question later on). tbiv and ao also form part of a kormchaia text. In the search for the protograph9 of the Synodal-Trinity group one only has to consider the two oldest families within this group, the Synodal (represented by a single copy, S) and Trinity families, the latter represented by its oldest copy (First Trinity, T). The Synodal Copy is conveniently dated by its scribe (1282) and the First Trinity Copy (as well as the other four copies of its family) appeared in the second part of the Merilo Pravednoe (the so-called Collection of Thirty Chapters). Tikhomirov put the inclusion of the rp in this Collection around the end of the 13th century.10 This would make the emergence of the Trinity family more or less contemporary with the creation of the Synodal Copy. A common protograph would precede them. Pushkin Group The copies of the Pushkin group have all been found in manuscripts of a collection of legal materials which included the Court Law for the People (see the relevant section in Chapter 10, on Foreign Laws). The Pushkin Copy (mp), dating from the second half of the 14th century,11 has a convoy which differs from the other five copies of the Pushkin group, and it is therefore regarded as a separate family. The convoy consists of the rp (the Expanded Pravda, provided with an introduction, the “Word of Basil”, an admonition ascribed to St. Basilius the Great and addressed to judges) and the Court Law for the People, followed by a selection from the laws of Moses, the 1229 Treaty between Smolensk and Riga, and Iaroslav’s Law on Bridges.12 The other five copies form the Archeographical family, named after its oldest member, the Second Archeographical Copy (aii). The convoys differ among the five copies. The main difference with the Pushkin Copy is that the legal collection of which the copies of the Archeographical family form part is itself an appendix to various larger collections, kormchie, or, in the case of the Second Archeographical Copy (aii), the text of the First Novgorod Chronicle (Younger Version). This text ends with the text of the Short Pravda (Archeographical Copy, A). At the end of the rp text of the Archeographical family a few short rules are added, the “Russian articles from the Court Law for the People” (russkie stat’i). 9 A discussion of this term at the end of this section. 10 Tikhomirov, Issledovanie, 95. 11 See Zimin, op.cit., 173–175. 12 This is not the same as the urok mostnikov, the bridge builders’ statute of art. 43 of the Short Pravda and art. 97 of the Expanded Pravda; see the section on Iaroslav’s Law on Bridges in Chapter 8, on Town Charters.

The Russkaia Pravda: The Expanded Pravda

129

There are several rp provisions in the copies of the Pushkin group which are missing in the copies of the Synodal-Trinity group. The most important of these is the last article, “On the spear”, very similar to art. 18 of the Short Pravda. One of the characteristics of the entire Pushkin group is that the transition between the rp and the Court Law for the People tends to be blurred. In the Pushkin Copy itself the text of the Court Law follows the rp on the same line of the manuscript, without even the red initial frequently used in the same text. Opinions on the origin of the Pushkin group are divided. Zimin has argued that the protograph of the Pushkin (and Karamzin) groups originated in the first half of the 13th century, because the legal collection of which the Pushkin Copy (mp) forms part arose before 1274.13 This implies, obviously, that a protograph of the Pushkin Copy must have been available at that time. Tikhomirov favoured a date in the second half of the 13th century.14 What can be said with reasonable certainty is that the Pushkin group of copies were all part of a collection of legal texts, originating in Novgorod and serving most probably as a guide for judges, especially in ecclesiastical courts. The rp, unlike the Court Law for the People, contained few rules which would be of great relevance to the latter courts and this may explain the amalgamation of the two statutes in one document. Moreover, the preface to the rp (the admonition of Basil the Great to judges), a characteristic feature of the Pushkin group, strongly suggests that the collection was primarily destined as a judicial guide. Karamzin Group The copies of the Karamzin group are also in a convoy with the Court Law for the People and Iaroslav’s Law on Bridges; some of the copies are included in a collection of legal materials, others appear in manuscripts of the so-called First Sofia Chronicle. Only the oldest copy of the Karamzin group (the Fourth Trinity Copy (tiv) from the beginning of the 15th century) contains the “Word” of St. Basil the Great.15 The Karamzin group occupies an intermediate position between the Synodal-Trinity and Pushkin groups, both of which are older. The original copy of the Karamzin group is therefore believed by some to be based 13 Zimin, op.cit., 174–175. 14 Tikhomirov, Issledovanie, 166. 15 tiv occupies a special place within the Karamzin group. Liubimov regarded it as a separate family, along with the other two families of the Karamzin group, Obolensko-­ Karamzinskii (3 copies) and Muzeiskii (9 copies). Its convoy is distinctly different and there are also textual differences in comparison with the other two families. Tikhomirov (Issledovanie, 169) and Iushkov (Russkaia Pravda, 110–120) disagreed with Liubimov’s ­assigning tiv to the Karamzin family.

130

chapter 5

on a comparative reading of copies of the other two groups.16 Liubimov’s classification is followed by almost all later commentators, notably M.N. Tikhomirov and A.A. Zimin.17 The Karamzin group of copies is generally closer to the Pushkin group than to the Synodal-Trinity group. Its main substantive differences with the Pushkin group copies are the incorporation of Iaroslav’s Law on Bridges (see Chapters 8, on Provincial Charters, and 16, on Novgorod) in the text of the rp18 and the insertion of a lengthy fragment, the stat’i o rezakh (rules on percentages and accretions).19 The Karamzin group arose at a comparatively late moment (early 15th century, according to Tikhomirov, middle 14th century, according to Iushkov), on the basis of texts close to the Pushkin group, but corrected with the aid of texts belonging to the Synodal-Trinity group.20 The Protograph of the Expanded Pravda A careful analysis of the entire complex of manuscripts of the Expanded Pravda, embracing both their individual contents and the convoys in which they are encountered, will lead to the construction of family trees or stemmata, which involve the postulation of common ancestors. Russian scholarship generally uses the term ‘protograph’ (protograf) to refer to such ancestors. Protograf is normally used to designate the text which has served as the common source 16

More on the relationship of the Karamzin group with the other two groups in Tikhomirov’s chapter on the Karamzin group, Issledovanie, 166–181. 17 Tikhomirov, Issledovanie, 80; A.A. Zimin, Pravda Russkaia, Moskva, 1999, 153–190 (this work was published 19 years after Zimin’s death). 18 In the Pushkin group, Iaroslav’s Law on Bridges appears together with a number of other fragments in the convoy of which the Expanded Pravda also forms part, but it is not incorporated into the rp text. 19 The stat’i o rezakh offer elaborate and very improbable calculations about the increase of livestock and crops over a specific number of years, and their relative money values. It is said, for instance, that three pigs will produce in twelve years 73.728 pigs, to a total value of 36.864 grivna (i.e. half a grivna a pig). According to Iushkov, the stat’i o rezakh should be regarded as the result of an accident, a scribe filling an empty sheet with his sums (Russkaia Pravda, 129–134). Tikhomirov believed that at least some part of it reflected an account of a specific village (Issledovanie, 178–180). Both authors agree that the fragment is an insertion of later date, which has no connection with the original text of the rp, and was retained in the Karamzin group copies only because it followed immediately on the rp rules on percentages, so that the stat’i o rezakh appeared superficially to be an elaboration of provisions which were unquestionably part of the rp. 20 Tikhomirov, Issledovanie, 174; with some reserve, Zimin, Pravda Russkaia, 188; Iushkov, Russkaia Pravda, 137.

The Russkaia Pravda: The Expanded Pravda

131

for several other texts, in genealogical terms: the nearest common ancestor. To take the important Trinity family as an example: Tikhomirov and Zimin agreed that the oldest of the five copies, the First Trinity Copy (T), stood by itself and that the four others21 had a common source (or protograph), but they differed about the exact relationship between T and MA.22 The entire family was connected by a ‘higher’ protograph, the source of all five copies. Zimin reconstructed stemmata for all the families and groups of the Expanded Pravda, leading to a pyramid of protographs culminating eventually in the archetype of the Expanded Pravda. Adopting somewhat different approaches, other authors reached more or less the same point. The entire exercise is actually simpler than it may seem, because almost everyone agreed that the First Trinity Copy offered the most reliable starting-point. Corrections may then be made by introducing better readings from other old and trustworthy copies. In this way not only Zimin, but also Tikhomirov and Iushkov have presented hypothetical archetypes or protographs of the Expanded Pravda.23 From the point of view of legal history, the differences are insignificant; all three remain very close to the First Trinity Copy. Almost all editions and translations use this text, with a few obvious mistakes corrected.24

The Composition of the Expanded Pravda

Before attempting to identify the component parts/chronological layers of the Expanded Pravda, the question whether there is adequate reason to speak of the Expanded Pravda as a single legal document must be addressed. This question is prompted by the impression raised by most copies that the Expanded Pravda consists in fact of two separate parts, the first one bearing the title “The Law of Iaroslav Vladimirovich” (e.g. in the First Trinity Copy) or “The Law of Prince Iaroslav” (e.g. in the Pushkin Copy), and the second one “The Statute 21

The Moscow Academy Copy (ma), the Second and Third Synodal Copy (sii and siii), and the Third Kirillo-Belozersk Copy (biii). 22 Zimin, Pravda Russkaia, 154–156; Tikhomirov, Issledovanie, 98–99. 23 Zimin, Pravda Russkaia, 363–380; Tikhomirov, Issledovanie, 233–254; Iushkov, Russkaia Pravda, 205–222. 24 One of the most obvious examples is art. 18 where the rule directing a defendant, accused of homicide, to bring seven character witnesses is softened for Varangians and other foreigners; according to the texts of the Pushkin and Karamzin groups such defendants only have to bring two witnesses: “if [the accused] is a Varangian or some other [foreigner], then two [will suffice]” (paky li variag” ili in” kto, to dva, Pushkin Copy); the copies of the Synodal-Trinity group have paki li variag” ili kto in”, togda, which is meaningless.

132

chapter 5

of Vladimir Vsevolodovich” (e.g. in the First Trinity Copy) or “The Statute of Prince Vladimir” (e.g. in the Pushkin Copy). The Statute of Vladimir starts at art. 53. The identity of the two princes is not in doubt. The first article of the Expanded Pravda is roughly identical to the first article of the Short Pravda; moreover, the second article of the Expanded Pravda relates how after Iaroslav’s death his sons Iziaslav, Sviatoslav and Vsevolod came together in a conference. Iaroslav was the Kievan grand prince Iaroslav the Wise, son of St. Vladimir, who ruled from 1019 to 1054 and with whom the first part of the Short Pravda is connected. Vladimir Vsevolodovich was the Kievan grand prince better known as Vladimir Monomakh, who succeeded his cousin Sviatopolk in 1113. Art. 53 of the Expanded Pravda refers to this succession (“After Sviatopolk, Vladimir Vsevolodovich convened his druzhina in Berestovo …”). In some copies the name is given as “Grand Prince Vladimir Vsevolodovich Monomakh”. His mother was a Byzantine princess of the Monomachoi imperial house. In many of the Expanded Pravda manuscripts the two headings have been written in large red lettering and in one copy the two parts have changed ­places.25 All this has given rise to the view that the Expanded Pravda was a simple combination of two separate documents. This view was quite current in the 19th century and was defended later on strongly by Iushkov.26 According to Iushkov, the first part of the Expanded Pravda (“The Law of Iaroslav”) was enacted around 1100, on the basis of the Short Pravda (which had become obsolete in several respects) and with the incorporation of various enactments from the period following the Short Pravda and possibly also of rules arising from judicial decisions. The socio-economic background to this new legislation was the process of increasing feudalization, to which the provisions of the Short Pravda did not sufficiently address themselves. The second part of the Expanded Pravda, the Statute of Vladimir Monomakh, was prompted (always according to Iushkov) by the social unrest and the uprisings which immediately preceded Vladimir’s accession to the throne of Kiev and which are well documented in the chronicles. Most authors consider Iushkov’s position on this question untenable.27 There are indeed many arguments against it. Epifanov pointed out that it would be hard to understand how fundamental socio-economic changes could occur within a period of twenty years, to warrant comprehensive new 25 The Second Godunov Copy (gii), cf. Grekov, Pravda Russkaia i, 146. 26 Iushkov, Russkaia Pravda, 169–185. 27 Tikhomirov, Posobie, 23–24; P.P. Epifanov, “K voprosu o proiskhozhdenii Russkoi Pravdy”, Voprosy Istorii, 1953, No.3, 93–104; Zimin, Pravda Russkaia, 222; Ia.N. Shchapov, rz i, 40–41.

The Russkaia Pravda: The Expanded Pravda

133

legislation (Iushkov accepts 1072 as the date of the original Pravda of Iaroslav’s Sons). Furthermore, the social awareness which Iushkov discerns in the Statute of Monomakh is noticeable only in its first 10–12 provisions; the bulk of the second part of the Expanded Pravda is devoted to a variety of matters. F­ inally, the editorial process of the Expanded Pravda proves convincingly that it is to be regarded as a coherent whole. Notwithstanding the two headings, the original Short Pravda has been worked into the text of the Expanded Pravda in a way that is inconsistent with Iushkov’s theory. Almost all provisions of the Short Pravda (both Iaroslav’s and his sons’ Pravda) reappear in edited form in the Expanded Pravda, without repetition and scattered over both parts of the text. This shows that the Expanded Pravda was put together at a particular time on the basis of several texts of which the Short Pravda was one.

The Relationship Between the Short Pravda and the Expanded Pravda

The most efficient way to identify the various components of the Expanded Pravda is to elucidate first its relationship with the Short Pravda. The existence of a close relationship is immediately evident: the common name, the similarity of the first articles of both texts, the connection with Iaroslav the Wise, and especially the occurrence of a large number of parallel provisions. Some 19th-century authors held that the Expanded Pravda antedated the Short Pravda, but there has been complete agreement for a long time now that this could not be the case.28 The fact that the Statute of Vladimir Monomakh, whatever its exact extent may be, is clearly an integral part of the Expanded Pravda speaks out conclusively against the latter being older than the Short Pravda. Also, many provisions of the Expanded Pravda reflect a more developed economic and social climate than the one projected by the Short Pravda. If there has been any borrowing between the two, it must have been from the Short Pravda to the Expanded Pravda and not vice versa. A comparison of the two texts shows that almost the entire Short Pravda has been incorporated into the Expanded Pravda, although not in a single block, and always with an amended text. Art. 18 of the Short Pravda (damaging 28

One of the last authors to argue in favour of a greater age of the Expanded Pravda was A.I. Sobolevskii, “Dve redaktsii Russkoi Pravdy”, Sbornik statei v chest’ grafini P.S. Uvarovoi, Moskva, 1916, 17–23. E.F. Karskii, Russkaia Pravda po drevneishemu spisku, Leningrad, 1930, 9, still admitted the plausibility of this argument, but none of the later writers have followed in this respect.

134

chapter 5

somebody’s weaponry or clothes) is absent in the texts of the Synodal-­Trinity group, but has been included at the end of the copies of the Pushkin and Karamzin groups among the so-called “Russian articles” (russkie stat’i). Art. 29 of the Short Pravda (abduction of a slave or slave woman) is also absent in the Expanded Pravda, although the case is covered in a different manner by art. 114 of the latter statute (dealing with the procedure to be followed if one discovers one’s slave in another town). This provision is part of the block of provisions “On slavery” (arts. 110–121) and inclusion of the isolated provision of art. 29 of the Short Pravda may have been considered superfluous to the compilers of the Expanded Pravda. Although the Expanded Pravda, as noted above, has the appearance of consisting of two parts, the Law of Iaroslav and the Statute of Vladimir Monomakh, the first part can in no way be regarded as an edited version of the Pravda of Iaroslav (as the first part of the Short Pravda) or the entire Short Pravda. The Expanded Pravda is unmistakably the product of an editorial process in which one has tried to unite several texts, including the Short Pravda, into a coherent whole. The first article of the Short Pravda (the old rule concerning homicide, revenge and composition) has presumably been taken over in the first article of the Expanded Pravda (with amendments) to emphasize continuity since Iaroslav. The following article in the Expanded Pravda is based on the preamble to the Pravda of Iaroslav’s Sons, and in fact cancels art. 1 (abolition of vengeance). Then a few new provisions (arts. 3–10) deal with the payment of bloodwite (fine) and arts. 11–17 parallel arts. 22–27 of the Short Pravda (fines for killing the prince’s people). More rules on homicide and bloodwite follow (arts. 18–22) and then there is a series of provisions on various kinds of bodily harm (23–31); these rules parallel arts. 2–9 of the Short Pravda. Arts. 10–14 of the Short Pravda reappear (with amendments) in arts. 31–35 of the Expanded Pravda and a few more (arts. 16, 35, 31, 40, 28 and 15) are connected with arts. 38, 40, 41, 42, 43, 45 and 47 of the Expanded Pravda. The second part of the Expanded Pravda, the Statute of Vladimir Vsevolodovich (Monomakh), begins at art. 53 and most of the immediately following provisions (arts. 54–64) are usually interpreted as addressing socio-economic unrest in early 12th-century­ Kiev. This part is followed by a considerable number of provisions dealing mostly with various infractions against property. In this part old Short Pravda provisions resurface (arts. 17, 8, 34, 37, 33, 35, 36–37 and 39) as arts. 65, 67, 72, 78, 79, 81 and 82. Most curious is art. 67 (“On beards”), reproducing art. 8 of the Short Pravda, where pulling out somebody’s beard was considered a grievous offence, deserving a 12 grivna wergeld. Editorial intervention is also very noticeable in the changing terminology. The iabetnik and ognishchanin as princely officials have disappeared, but are

The Russkaia Pravda: The Expanded Pravda

135

probably covered by kniazh’ muzh’ (the prince’s man); the Vikings (Variagi and Kolbiagi) of the Short Pravda (arts. 1 and 11) have apparently been absorbed in the Slavic population and are not mentioned anymore in the corresponding provisions of the Expanded Pravda (arts. 1 and 32). The killing of the prince’s stable master still entailed an 80 grivna fine in the Expanded Pravda, but the interesting aside in the Short Pravda was dropped (“as Iziaslav established when the people of Dorogobuzh killed his stable master”). The last provision of the Short Pravda, the bridge builders’ statute, is also the last Short Pravda provision taken over in the Expanded Pravda (art. 97). The manner in which the Short Pravda has been worked into the Expanded Pravda does not only illustrate the editorial process, but also helps to identify other components of the latter text.

The Statute of Vladimir Vsevolodovich Monomakh

The heading “The Statute of Vladimir Vsevolodich” is followed by a preamble similar to the one preceding the Pravda of Iaroslav’s Sons in the Short Pravda. After [the death of] Sviatopolk, Vladimir Vsevolodich, having called together his druzhina at Berestovo: Ratibor, tysiatskii of Kiev, Prokopii, tysiatskii of Belgorod, Stanislav, tysiatskii of Pereiaslavl’, Nazhir, Miroslav, and Ivanko Chudinovich, Oleg’s man, and they established … As explained above, no one holds any longer that the entire following text of the Expanded Pravda is the law issued at the conference at Berestovo; the question is rather where the actual Statute of Monomakh ends. The answer can be given by combining the indications provided by the rp text itself with external information, in particular from the chronicles. The background of the beginning of Vladimir Monomakh’s reign, as related by the chronicles, is as follows. Vladimir was the son of Vsevolod, the youngest of the three Iaroslavichi brothers mentioned in the preamble to the Pravda of Iaroslav’s Sons. Vsevolod had been grand prince of Kiev after the death of his elder brothers, according to the succession customs of the Rurikid dynasty. During the last years of his reign his son Vladimir had taken over much of the power of his ailing father. But when Vsevolod died in 1093, Vladimir, who was nominally prince of Chernigov, stepped down in favour of his senior cousin Sviatopolk (son of Iziaslav, elder brother of Vsevolod), and took up his duties in Chernigov. He actively supported his cousin in the tumultuous years that followed. When Sviatopolk died in 1113, riots broke out in Kiev where the houses of powerful officials and wealthy

136

chapter 5

burghers were sacked. The Hypatian Chronicle also mentions Jews as victims of the popular fury. Prominent citizens begged Vladimir to come to Kiev and take the reins. His previous involvement and his successful military and civil record made him the obvious successor, although two other cousins, Davyd and Oleg (sons of Sviatoslav, the brother of Iziaslav and Vsevolod), could have claimed senior status. According to Tikhomirov, the conference in Berestovo probably took place in the same year (1113), as Vladimir’s cousin Oleg died in 1115 and Ivanko Chudinovich was present in Berestovo as Oleg’s representative. Moreover, the obvious socio-economic background of the popular uprising in Kiev made it urgent to introduce reforms right away.29 That widespread indebtedness and the resulting usury were an important factor is demonstrated in the rules on usury which follow immediately in the same sentence after the passage on the conference of Berestovo. A maximum rate of 50% interest was established and this interest could only be collected twice; if it was collected a third time, the debtor was freed from paying back the principal. The following two provisions (arts. 54–55) also concerned indebtedness. A new block of provisions on the “indentured labourer” (zakup) started with art. 56. It embraced arts. 56–62 and 64.30 Most authors have regarded the law on the zakup as part of the original Statute of Monomakh. It is about the only source on the institution of the zakup (see Chapter 18, on Rural Russia). The first part of the Expanded Pravda, entitled “The Law of Iaroslav”, was based mainly on the Short Pravda, in amended form and with a number of additions. Together with the original Statute of Monomakh it accounted for less than half of the entire Expanded Pravda. What then made up the remaining part of the Expanded Pravda? It contained three recognizable blocks of provisions plus quite a number of isolated rules. The first of these blocks concerned the legal consequences of various unlawful actions against persons or property. They included a number of provisions based in part on older rules in the Short Pravda. The first one is art. 65 (a slave striking somebody, see art. 17 of the Short Pravda) and then arts. 67–73, and 75–84. Arts. 85–87 are connected with the foregoing, but deal with procedural matters, evidence in particular. Arts. 88 and 89 complete the series with two new general rules: the killing of a woman is treated as the killing of a man, but the 29 Tikhomirov, Issledovanie, 208–210. Zimin, in his chapter on the reforms of Monomakh (Pravda Russkaia, 217–254), generally concurs with Tikhomirov. 30 Art. 66, on evidence of witnesses, also mentions the zakup; in suits over small sums the evidence of a zakup may be accepted.

The Russkaia Pravda: The Expanded Pravda

137

fine (bloodwite) is halved (art. 88); the killing of a male or female slave entailed a fine of 12 grivna (to the prince) and compensation to the owner (art. 89). A new series of rules devoted to inheritance law begins at art. 90 and ends at art. 108, but there are several insertions on other subjects (arts. 96–97, wages for builders; art. 107, court fees). The last block (arts. 110–121) concerns slavery. These rules also build on the few provisions on slavery in the Short Pravda and reflect the gradual development of this institution in the 11th century whereby the status of a slave became more similar to the status of a dependent peasant and vice versa.31

The Final Compilation of the Expanded Pravda

The various components of the Expanded Pravda must have been collected at some time into a single document. When was this achieved and what was the status of this document? The simplest answer was given by Iushkov. The first part of the Expanded­ Pravda, the “Law of Iaroslav”, constituted in his view a heavily updated and amended version of the Short Pravda, enacted by a Kievan grand prince around the end of the 11th or the beginning of the 12th century.32 The second part of the Expanded Pravda, under the heading of “The Statute of Volodimir Vsevolodich”, represented a law code established by Vladimir Monomakh shortly after the uprising of 1113.33 When these two parts were joined together appeared to be a matter of little importance and Iushkov did not bother to deal with it. For most authors, however, the starting position was that the Short Pravda, the Statute of Vladimir Monomakh, and several other enactments were collected and subjected to an editorial process resulting in the original text of the Expanded Pravda. The traces of such editorial activity are indeed undeniable. The chronological limits of this process are the accession of Vladimir Monomakh to the Kievan throne in 1113 and the appearance of the Synodal Copy of the Expanded Pravda in 1280. There are good reasons to assume that this copy was already significantly different from the original text and this would speak for a much earlier date than 1280. This argument is greatly reinforced by the presence of the so-called Smolensk Pravda, the treaty of 1229 between 31 32

See Zimin’s chapter on slavery in Pravda Russkaia, 255–275. That would mean Monomakh’s father Vsevolod, or the latter’s successor and nephew, ­Sviatopolk. Iushkov, Russkaia Pravda, 326–327. 33 Iushkov, Russkaia Pravda, 335.

138

chapter 5

Smolensk and Riga (see Chapter 7, on Treaties). There are quite a number of provisions in the Smolensk text which are strongly reminiscent of provisions in the Short as well as the Expanded Pravda.34 This of course would indicate an earlier date for the Expanded Pravda. Tikhomirov has proposed the period immediately following the upheavals in Novgorod in 1209, the beginning of the reign of prince Mstislav Mstislavich “the Fortunate” (Udatnyi) in Novgorod, in tune with his (Tikhomirov’s) view that the Expanded Pravda was compiled in Novgorod.35 The latter view is shared by few others36 as there are much better arguments to connect the Expanded Pravda with Kiev, then still the undisputed capital, than with Novgorod. Vernadsky has suggested the period of 1160–1168, during which Rostislav of Smolensk served as grand prince in Kiev.37 In his survey of the literature on this problem, Baranowski pointed out that after Vladimir Monomakh and his son Mstislav the Great († 1132) no Kievan grand prince would probably have had the power and authority to achieve the legislative consolidation represented by the Expanded Pravda.38 This of course begs the question concerning the character of the Expanded Pravda; was it real legislation, or a private recording of relevant legal texts, or something in-between? Zimin has defended an early origin of the Expanded Pravda. He regarded Vladimir Monomakh as the central figure in a complex of legislative measures to address the socio-economic crisis of 1113. This complex embraced mainly the actual Statute of Monomakh (the rules on interest payments and on the zakupy) and the laws on succession and slavery. All this material was reworked together with the existing law based on the Short Pravda but considerably enlarged and amended and combined with several other legislative fragments into a more or less coherent whole shortly after the 1113 conference in Berestovo.39 The matter of the official status of the Expanded Pravda is less relevant than it might seem. The prince himself and his closest advisors would certainly have taken all important decisions on substance. The elaboration and actual 34 Cf. Zimin’s comments to the text of the Treaty in prp ii, 75–85. 35 Tikhomirov, Issledovanie, 229. This prince was the son of Mstislav Rostislavich “the Brave”, of the Smolensk sub-dynasty, who also ruled in Novgorod from 1178–1179. 36 Such as L.V. Cherepnin in “Obshchestvenno-politicheskie otnosheniia v Drevnei Rusi i Russkaia Pravda”, A.P. Novosel’tsev (ed.), Drevnerusskoe gosudarstvo i ego mezhdunarodnoe znachenie, Moskva, 1963, 128–278 (not available to me). 37 Vernadsky, Laws, 17. 38 Baranowski, 154. 39 Zimin, Pravda Russkaia, 217–254, esp. 253–254.

The Russkaia Pravda: The Expanded Pravda

139

drafting­of the text could only have been done by persons with the required skills, in those days priests and monks. Once a final text was approved it would be ­copied out for use by judges. The continuing copying process, in the conditions of an ever more fragmented realm and changing economic circumstances, would result in a gradual diversification. The large number of Expanded Pravda copies demonstrates that there was a lasting demand for it. Public and private features are inextricably present in the history of the text.

Foreign Sources for the Russkaia Pravda?

The more general problem of the possible impact of foreign legal cultures and systems on medieval Russian law will be discussed in Chapter 10, on Foreign Laws. As the rp is undoubtedly the first significant item of Russian legislation, the question concerning its sources, and in particular foreign sources, is legitimate and has indeed been raised frequently by its commentators. (The 10th-century treaties with Byzantium most probably contain Russian as well as Byzantine elements, but this is not directly a matter of reception of foreign law.) The two most obvious candidates are Byzantine (Greek) and Scandinavian law. The latter could have been an active factor in an early period, when a Scandinavian (Viking) identity was still discernible as a separate element, in other words, at the time the Oldest Pravda (the Pravda of Iaroslav) emerged. This topic has been discussed accordingly in Chapter 4, on the Short Pravda. The Byzantine factor merits a somewhat more extensive discussion, because it was more permanent, on account of the continued presence and involvement of Greek clergy in the affairs of medieval Russia. As Byzantine law was based largely on Roman law, the question of the influence of Roman law looms in the background.40 When examining the issue of the impact of foreign law in a medieval setting, one encounters specific methodological obstacles. There is usually little or no ‘surrounding’ information, such as travaux préparatoires or contemporary commentaries; this means that a judgment must be based largely on similarity or, more precisely, on a calculation of the probability that the drafter of a particular rule, which displays a certain similarity with an earlier rule from another legal system, could have chosen his words without being aware of the

40

This section is based mainly on my paper “Roman Law in Medieval Russia”, in Feldbrugge, lmr, 59–128. For more extensive references, see this work.

140

chapter 5

other rule. Such a calculation has to take into account any available data affecting the probability. Direct influence of Roman law in the formative phase of the rp can in no specific instance be demonstrated or even made probable, although it has been suggested by a few authors.41 Such influence would also be extremely unlikely, considering the conditions of early Christian Russia. The vehicle of its contacts with the world of Christendom was the presence of a small number of Greek clergy in Kiev, Novgorod and a few other major centres. Some of them would have had a knowledge of Byzantine canon law, but at that time almost nobody in Constantinople was able to read Roman law sources in Latin, and, moreover, the physical availability of such texts in Constantinople was very restricted. Byzantine secular law, although based mainly on Roman law, was embodied in various Greek compendia, such as the Ecloga and the Procheiron. So the chances of anybody having access to Roman law texts in 11th- and 12th-century Kiev or Novgorod were actually nil. Also, the areas of secular law of which a Greek monk in Russia would have had some knowledge would primarily concern topics where traditional Roman attitudes had been replaced by Christian views and where the Roman law content had accordingly been much reduced or where it had completely disappeared (matrimonial law and parts of criminal law). There is, to my knowledge, only a single instance of possible Roman law influence in the rp and it illustrates the situation sketched above. Art. 46 of the Expanded Pravda concerns theft committed by slaves. The provision has no predecessor in the Short Pravda and has probably been drafted during the last decades of the 11th century. It provides, among other things, that the master of the slave must pay the owner the double value of the stolen property. This was a common sanction in Roman law, taken over in Byzantine law and unknown in Russian law. After art. 46 it disappeared again in Russian law. My hypothesis is that a Greek clergyman in the prince’s court, who would have been familiar, even without much general legal knowledge, with the double-value compensation in Byzantine law, put forward the idea when art. 46 was drafted. Whether Byzantine law would have influenced the rp can be examined in the same way: What are the chances of such influences, on the basis of what we know about the circumstances surrounding the genesis of the rp; and: Can 41

In particular by N.A. Maksimeiko, Ocherki obshchestvennogo i gosudarstvennogo stroia Drevnei Rusi, Sankt-Peterburg, 1908 (2nd ed.) and more recently by E.V. Salogubova, “Vliianie rimskogo prava na rossiiskoe grazhdanskoe zakonodatel’stvo”, Vestnik Moskovskogo Universiteta, seriia ii, Pravo, 1997, No.2, 29–37 and id., “Elementy rimskogo prava v rossiiskom proizvodstve x–xvii vv.”, Ius Antiquum-Drevnee Pravo, 1999, No.4, 173–179.

The Russkaia Pravda: The Expanded Pravda

141

the effect of such influences be demonstrated or at least made probable in any individual case? An answer to the first question depends heavily on the time factor, in other words, what Byzantine legal sources were available in the formative phases of the different components of the rp? The answer is complicated by the lack of agreement concerning the time frame of the rp and the uncertainty about the appearance of various Byzantine texts in Russia. The earliest text to have reached Russia may have been the Short Version of the Court Law for the People, usually considered to have arrived before the 13th century. The collection known as Knigi Zakonnye (“Law Books”) is very tentatively dated in the 12th century and its main component was a Russian translation of the Nomos Georgikos (“Farmer’s Law”). A Slavonic translation of the Procheiron was at least available in 1273 (the arrival of the Serbian kormchaia in Kiev), but one might very tentatively consider the appearance of translations of the Ecloga and the Procheiron at some time in the 12th century. Such translations were included in the Merilo Pravednoe and the composition of its earliest version is sometimes dated as far back as the 12th century.42 All in all one could contemplate the possibility of some Byzantine legal texts being available during the later formative phase of the Expanded Pravda, but nothing more than that. With this in mind one may look at the specific examples given by Russian authors who consider Byzantine law as a source of the rp.43 Without refuting the various claims one by one, a few general points should be made.44 First, most claims fail already on the basis of chronology: the alleged Byzantine source was not available at the time a particular provision of the rp was drafted. Second, most parallel provisions are too general to make a genetic link at all probable. Third, the authors concerned all come forward with different proposals, not shared by other commentators, and this suggests that these proposals are hazardous. With regard to Kalachov and Sergeevich one might add that the general state of knowledge about the subject has improved very considerably since they wrote their treatises. In sum, it is fair to say that at the present state

42 43

44

For more detail and references, see my paper on “Roman Law in Medieval Russia”. Notably N. Kalachov, in Predvaritel’nyia iuridicheskiia svedeniia dlia polnago ob”iasneniia Russkoi Pravdy, Sankt-Peterburg, 1880 (2nd ed.), Sergeevich, in Lektsii, and E.E. Lipshits in her commentary to the Russian edition of the Nomos Georgikos, I.P. Medvedev (ed.), Vizantiiskii Zemledel’cheskii Zakon, Leningrad, 1984. The full argument and necessary references in my paper on “Roman Law in Medieval Russia”.

142

chapter 5

of knowledge the influence of Byzantine law on the rp in its various stages is completely undocumented and therefore, for the time being, unlikely.

The Abridged Version of the Russkaia Pravda

The more than 100 extant copies of the rp can easily be divided, as we have seen, into two main versions: the Short Pravda (available in a dozen or so copies) and the Expanded Pravda (available in a large number of copies), itself subdivided into many groups, families, etc. Two copies remain however, the Fourth Tolstoi Copy (tbiv) and the First Obolenskii Copy (ao), which cannot be assigned to either the Short or the Expanded Pravda; both copies are dated around the middle or the second half of the 17th century and are to be found in kormchie. They have been known since the 19th century as the Abridged Pravda (Sokrashchennaia Pravda). The Abridged Pravda is somewhat longer than the Short Pravda and about one third the length of the Expanded Pravda. It numbers fifty articles in the prp i edition.45 On the whole it remains closer to the text of the Expanded Pravda than the Short Pravda does. In the latter, almost all provisions have their counterpart in the Expanded Pravda, but the wording has usually been changed considerably and the original sequence of the provisions of the Short Pravda is completely lost in the Expanded Pravda. The Abridged Pravda, with the exception of one provision (art. 2), follows the sequence of the Expanded Pravda. Some provisions are identical to their counterpart in the Expanded Pravda and otherwise the changes are usually of secondary importance. Whereas most Short Pravda provisions find their parallel provisions in the first part of the Expanded Pravda, about half the parallel provisions of the Abridged Pravda are found after art. 80 of the Expanded Pravda, i.e. in its last third part. There are only thirteen provisions in the Expanded Pravda which have parallels in both the Short and the Abridged Pravda. Investigating which parts of the Expanded Pravda reappear or disappear in the Abridged Pravda sheds some light on the character of the latter text. In the first part of the Expanded Pravda (arts. 1–52, the part preceding the Statute of Monomakh) there are only 18 parallels with provisions of the Abridged Pravda. There are only two parallels in the actual Statute of Monomakh (arts. 54–55). Then arts. 69–73 of the Expanded Pravda (concerning the theft of beavers and the damaging of various boundary marks) have been summarized in art. 21 of the Abridged Pravda. But after art. 80 of the Expanded Pravda the parallels 45

prp i, 197–205.

The Russkaia Pravda: The Expanded Pravda

143

with the Abridged Pravda are numerous, with a very obvious gap at arts. 101– 109 of the Expanded Pravda (mostly inheritance law), absent in the Abridged Pravda.46 The almost unanimous opinion concerning the Abridged Pravda has been, since the 19th century, that it represents a drastically abridged edition of the Expanded Pravda, made at a comparatively late date.47 The editor shortened the by then often obscure text and adapted it according to the understanding and the terminology of his time. Provisions which seemed irrelevant to him were omitted and this would explain the small number of parallels between the more ancient Short Pravda and the Abridged Pravda. It has been established that the Abridged Pravda was based on the Third Tsarskii Copy (TsIII) of the first half of the 17th century. The only significant heterodox view on the Abridged Pravda was expressed by Tikhomirov, who presented an ingenious but far-fetched hypothesis in his main work on the rp.48 He believed that there were ancient elements in the Abridged Pravda, absent in the Expanded Pravda. A text similar to the Short Pravda existed perhaps as early as the 11th century in Novgorod. This text was used around 1400, perhaps in the remote new eparchy of Perm’, as the raw material for an abbreviated text, which then served as the protograph of the two 17th century copies of the Abridged Pravda. Later on Tikhomirov took back much of this theory.49 As to the background of the Abridged Pravda, Zimin and other authors have connected its origin with various codification attempts at the end of the 16th and the beginning of the 17th century.50 Its importance is therefore mainly in illustrating the direction of legal thought at that time. It does not throw new light on the law of the Kievan era. 46 See the Table of parallel provisions of the three versions of the rp in prp i, 22225. 47 See Zimin’s chapter on the Abridged Pravda in his Pravda Russkaia, 335–354. 48 Tikhomirov, Issledovanie, 183–197. 49 Tikhomirov, Posobie, 24. 50 Zimin, Pravda Russkaia, 353–354.

chapter 6

Princely Statutes Introduction Among the legislative sources of medieval Russian law, the Russkaia Pravda, in its two main versions, undoubtedly dominates the stage as the oldest, most fundamental and most comprehensive document. Nothing of the same stature was realized until the Code (Sudebnik) of Ivan iii of 1497. The Court Charter of Pskov was comparable in scope, but, as its name indicated, its applicability was limited to the territory of Pskov. There was nevertheless a considerable amount of other legislation in the intervening period. For the sake of convenience this material has been divided here into three categories, princely statutes, treaties, and local or provincial statutes. The so-called Church Statute of St. Vladimir has been followed by a series of other statutes, concerned mainly with the relations between the prince and the Church, but dealing with a variety of other matters as well. They are treated in this chapter under the heading of “princely statutes”. In the more recent literature on this topic the works of Ia.N. Shchapov (1928–2011) figure most prominently.1 Treaties have been included among legislative materials because in the setting of the Russian middle ages the dividing-line between treaties and laws was by no means as sharp as nowadays. The treaties between ruling Russian princes dealt primarily with matters which we would designate as public or constitutional law, or even the internal law of the ruling family. Treaties with foreign powers often dealt with questions of civil and criminal law in situations where nationals of both sides lived in close contact. The third category comprises legislative material of various nature, but of limited spatial applicability: laws applying only in a specific principality. The Court Charter of Pskov is the leading example.

1 Especially: Kniazheskie ustavy i tserkov’ v Drevnei Rusi xi–xv vv., Moskva, 1972; Drevnerusskie kniazheskie ustavy xi–xv vv., Moskva, 1976; Vizantiiskoe i iuzhnoslavianskoe pravovoe nasledie na Rusi v xi–xiii vv., Moskva, 1978; Gosudarstvo i tserkov’ Drevnei Rusi x–xiii vv., Moskva, 1989; Vizantiiskaia «Ekloga Zakonov» v russkoi pis’mennoi traditsii, Sankt-Peterburg, 2011.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_007

Princely Statutes



145

The Church Statute of St. Vladimir

The document commonly known as the Statute of the Holy Prince Vladimir is a short text, drawn up in the name of Vladimir Sviatoslavich, the first Christian prince of Kiev. It defines certain basic elements of the legal position of the Russian­Church. It is available in more than two hundred copies, dating from the 14th to the 19th century.2 Most of them are included in different kormchie, but also in various other collections of legal and ecclesiastical texts. Chapter 21, on the Church and Monasteries, analyzes in more detail the fundamental importance of the Statute of St. Vladimir in shaping the relationship between Church and state in Russia, a relationship which to some extent has survived to the present day. It comprises a relatively prominent position for the Church in public affairs, balanced by considerable subservience to the state. The means by which the Statute secured the position of the Church was the granting of tithes, of jurisdiction in certain cases and the definition of “church people” as a special legal category. As the Statute was copied and referred to continuously and remained the basis for similar legislation in the separate principalities arising in later centuries, it never became completely forgotten like the Russkaia Pravda. A considerable number of copies was already available to legal scholarship in the 19th century. The most frequently debated question at that time was the authenticity of the Statute. Karamzin, pointing to a number of inconsistencies in the text, had considered it a forgery fabricated in the 13th century.3 This view remained dominant for a long time, although it was already rejected by metropolitan Evgenii in 1825 in his history of the Kievan Church.4 The question of the authenticity is inevitably bound up with the other main subject of scholarly examination: a correct classification of the enormous number of copies. As the latter question was gradually being solved, it became clear that there was indeed a nucleus in the Statute which could be traced to the very early 2 The older publications by Beneshevich and Iushkov are quoted below, as is Shchapov’s comprehensive 1976 edition of almost all available copies. Text of some of the most important copies in prp i, 236–256 (comments by Zimin) and in rz i, 133–162 (comments by Shchapov and N.A. Semiderkin). The rz text was also taken over in PRoP i, 461–462, with comments by Iu.V. Ospennikov, 462–468. Text of the Synodal Copy and English translation in Kaiser, Laws, 42–44. French translation of the Synodal Copy in M. Szeftel and A. Eck, Documents de droit public relatifs à la Russie médiévale, Bruxelles, 1963, 229–245. The Statute of Vladimir was already known to Herberstein in the 16th century, who quoted liberally from it. Older translations (into Latin, German and Italian) are mentioned by Shchapov. 3 Karamzin, T.I, note 506. 4 Evgenii [Bolkhovitinov], Opisanie Kievo-Sofiiskogo sobora i Kievskoi ierarkhii, Kiev, 1825, 7.

146

chapter 6

times of St. Vladimir. Through the ages new elements had been added to this nucleus and this would explain the apparent inconsistencies in the texts that had come down to modern times. Important moments in the study of the Statute were the publication in 1915 of the then available copies by V.N. Beneshevich5 and the appearance of S.V. Iushkov’s study in 1925 in which a classification of six redactions was proposed.6 Then in 1972 and 1976 Ia.N. Shchapov published his two volumes on the statutes of the Old-Russian princes.7 Almost half of the first work is devoted to the Statute of Vladimir and the second volume offers the full text of 18 major copies plus an additional 203 copies as variants in the footnotes. Shchapov distinguished between seven different redactions of the Statute, of which the Oleninskaia, dating from the end of the 12th or the beginning of the 13th century, is considered closest to the original text.8 Shchapov’s works have since been regarded as the basic publications on the subject. Most of the following, unless indicated otherwise, is based on Shchapov’s 1972 study. A major difference between the Statute of Vladimir and the rp is in the diachronic aspect, to put it briefly but cryptically. Although all commentators accept that there was once upon a time an original text of the Statute, this text was subjected to drastic editorial intervention through the ages, resulting in a multitude of quite divergent texts. The position of the Church at a particular time and in a particular region (principality) was thus reflected in the text of a particular copy. The rp had a far more stable content; the Short Pravda was absorbed and replaced by the Expanded Pravda after a century or so and the Expanded Pravda remained operative all over Russia with only modest divergencies among its many copies, until it was superseded by other legislation after a considerable period. Both Shchapov and Iushkov agree that the origin of the Statute is to be found in the events immediately following the conversion of Russia in 988. In 989 Vladimir is reported as building a church dedicated to the Bogoroditsa 5 V.N. Beneshevich, Sbornik pamiatnikov po istorii tserkovnago prava i, Petrograd, 1915, 59–77. In this publication the articles of the text are not numbered. Later publications follow the numbering given in Pamiatniki drevne-russkogo kanonicheskogo prava, Ch. ii, vyp.1, Russkaia istoricheskaia biblioteka, xxxvi, Petrograd, 1920. 6 S.V. Iushkov, Issledovaniia po istorii russkogo prava, vyp.1. Ustav kniaz’ia Vladimira, ­Novouzensk, 1925. Other authors have “Saratov, 1926”, as place and date. The work was included in O.I. Chistiakov (ed.), Serafim Vladimirovich Iushkov. Trudy vydaiushchikhsia iuristov, Moskva, 1989, 71–335. 7 Ia.N. Shchapov, Kniazheskie ustavy i tserkov’ v Drevnei Rusi xi–xiv vv., Moskva, 1972; id., Drevnerusskie kniazheskie ustavy, xi–xv vv., Moskva, 1976. 8 Shchapov, in rz i, 138. The oldest copy extant is the Synodal Copy of the 14th century.

Princely Statutes

147

(the Mother of God, the Russian version of Greek Theotokos). The church was completed a few years later (994–996). The Chronicle then added that Vladimir, after praying in the church, said: “I bestow upon this church of the Holy Mother of God a tithe of my estates and my towns”, “and he wrote out and deposited a solemn vow in the church, saying: If anyone violates this, let him be accursed.” Some time later, but before 1011 (the death of Vladimir’s wife, the Byzantine princess Anna), the material provision of the Church was extended from a single church’s tithe to a generous grant of fee-generating jurisdiction for the Church.9 Iushkov believed that it was primarily the princess Anna and the Greek clergy accompanying her who were responsible for this extension.10 The Byzantine Church was a wealthy landowner and did not need the tithe. The young Russian Church had to be built up from the ground and did not own land yet. The concept of the payment of one tenth of some or all assets to a religious institution went back to the Old Testament, had been taken over by the Christian Church, and taken root in the Western Church before Charlemagne.11 The tithe as an instrument for generating Church income was therefore undoubtedly known to the Greek clergy, even if the Byzantine Church made little use of it. The jurisdictional grant served a double purpose. It generated income for the Church and it represented an effective instrument for inculcating the new Christian value system among a pagan nation. Most of the behaviour referred to the Church’s jurisdiction was outside the purview of traditional law and would have been handled in the pagan past through negotiation among families. As a third purpose one might designate the mutual advantages accruing from this co-operative enterprise between state and Church. The new religion and the Church embodying it represented a powerful factor of national integration for a dynasty that was only starting to build up its position. The advantages for the Church were obvious, at least in the short run, when its subordination to the state did not seem particularly oppressive. The combination of the tithe granting and the transfer of jurisdiction formed the nucleus of the Statute of Vladimir as it took shape in the early part of the 11th century.12 Although the original beneficiary of the tithe was the church of the Bogoroditsa in Kiev, it was soon extended to the Church in general. This is obliquely reflected, according to Shchapov, in art. 3, where the reference to the “miracle-working Mother of God and the miracle-working Saviour” as 9 Shchapov, Kniazheskie ustavy, 127. 10 Iushkov, Stroi, 202. 11 Its universal applicability in the Western Church was expressed in canon law in the Decretum Gratiani, Book iii, Title 30. 12 Shchapov, Kniazheskie ustavy, 122.

148

chapter 6

beneficiaries probably referred to the churches of the same name erected in Vladimir in 1158–1160 and 1164 respectively.13 The listing of church people, who were transferred en bloc to the jurisdiction of the Church, was probably added somewhat later. The Statutory Charter of prince Rostislav Mstislavich of Smolensk of 1136 (see the section below) is one of the earliest and most important statutes drafted along the lines of the Statute of Vladimir. The Smolensk Charter spelled out the various sources of Church income in great detail; they comprised both tithes and various court fees; the list of church people found in all copies of the Statute of Vladimir is absent. It is therefore assumed that this list represents an addition made after 1136, but still early enough to be included in the protograph at the basis of all of its extant copies.14 Shchapov has proposed 1158 as the year in which this protograph arose, during the reign of Andrei Bogoliubskii as grand prince of Vladimir.15 Both Iushkov and Shchapov have attempted to reconstruct a protograph of the Statute. One has to bear in mind that, as pointed out above, such a protograph would have enjoyed only a short period of relevance, after which it became replaced by an ever-growing number of variant versions. Shchapov’s text runs as follows: [1.] In the name of the Father and the Son and the Holy Spirit. [2.] Lo i, prince Vasilii, called Volodimer, son of Sviatoslav, grandson of Igor [and] of the blessed Olga have received holy baptism from the Greek emperor and the patriarch Photius [and] conducted the first metropolitan to Kiev, who baptized the entire Russian land. [3.] And in years past I founded the church of the Holy Mother of God and gave it a tithe from the entire Russian land, from [the revenues of] my principality [and] from every court [case] the tenth pence, from trade [fees] the tenth week, from my houses for every year a tenth of all the herds and of all the grain, to the miracle-working Mother of God and the miracle-working Saviour. [4.] And then I looked in the Greek Nomocanon and found in it that it does not befit the prince, nor his boyars, nor his judges, to judge these disputes and cases. [5.] And after consulting with my princess Anna and with my children, I gave [these cases] to the Holy Mother of God and to the metropolitan and all the bishops. 13 14 15

Id., 130–131. Id., 124. Id., 133.

Princely Statutes

149

[6.] And therefore neither my children, nor my grandchildren, nor my lineage are to interfere with church people and all [their] court cases. [7.] And in all towns and in villages and in settlements where there are Christians I have given [to the Church][the following cases]: divorces, fornication, adultery, rape, disputes between husband and wife over an inheritance, or if they are [too closely] related or in a spiritual relationship [godparents or – children], divination, contumely, potionmaking, heresy, biting [in a fight between men], if a son or a daughter beats the father or mother, or if brothers have a dispute over an inheritance. The metropolitan’s church people are: the abbot, the priest, the priest’s wife, the priest’s children, the monk, the nun, the woman who bakes the Eucharist bread, the slave freed by testament. The article numbers have been added by Shchapov; the list of church people (added later on, as explained above) has been left without a number. Iushkov first reconstructed the hypothetical text of Vladimir’s charter, mentioned in the Chronicle in 994–996, which served as the basis for the original Statute. The text is similar to arts. 5, 4, 6, and the first line of art. 7 (as above) and also contains a threat against violators. His version of the protograph of the Statute runs parallel with arts. 3, 5, 4, 6, 7 and the list of church people; the threat against violators is inserted in art. 7.16 The tithe and the jurisdiction of the Church, as well as the recognition of a special category of “church people”, remained the basic components of the Statute in its numerous later versions. The original short version has been best preserved in the Oleninskaia redaction, while most of the six other redactions offer longer texts in which especially the topic of Church jurisdiction has been dealt with more elaborately. The basic importance of the Statute of Vladimir is in laying the foundation for the relationship between Church and state in Russia as it was to survive for many centuries. Additionally, its many versions with regional connections provide some insight into the differences between the legal systems of the principalities of medieval Russia, a subject which is otherwise very poorly documented.17

16 17

Texts reproduced in prp i, 235–236, taken from Iushkov’s 1925/1926 Issledovaniia, 134–135 and 118. Shchapov, in rz i, 138, notes that the seven redactions identified by him are each connected with a particular region.

150

chapter 6

The Church Statute of Iaroslav the Wise

The text known as the Statute of Iaroslav consists of a catalogue of offences and misdemeanours to be dealt with by ecclesiastical courts, and of the penalties to be imposed.18 Its introductory provision refers to grand prince Iaroslav, the son of Vladimir, as its author, together with the metropolitan Ilarion, and nobody has ever doubted that the Statute is therefore to be ascribed (but not necessarily attributed) to the second Christian grand prince of Kiev, Iaroslav the Wise, who ruled from 1019 to 1054. There are two main versions, the Short and the Expanded Redaction.19 Compared to the Statute of Vladimir, the Statute of Iaroslav remained somewhat neglected for a long time. The fact that Karamzin regarded it as a 14th century fabrication may have contributed to this lack of attention.20 Only Kliuchevskii devoted an entire lecture to it, regarding it as a contemporary and pendant of the rp.21 In Soviet times, the principal authors to concern themselves with the Statute of Iaroslav were Iushkov and Zimin, and then Shchapov. Iushkov believed that only the introductory provision of art. 1 (more or less repeating the grant of jurisdiction made in arts. 4–5 of the Statute of Vladimir) could be attributed to Iaroslav and that the bulk of the Statute was of later date, perhaps the middle of the 12th century.22 Zimin was more circumspect and regarded the question of the time of origin of the Statute of Iaroslav as yet unsolved.23 Shchapov’s twin volumes, already mentioned above in connection with the Statute of Vladimir, have filled this void, at least for some time to come.24 18

Standard edition now is Ia.N. Shchapov, Drevnerusskie kniazheskie ustavy xi–xv vv., Moskva, 1976, 85–139. Also: prp i, 257–285 (Short and Expanded Redaction copies); rz i, 163–208 (Short and Expanded Redaction copies); the Expanded Redaction text of rz was taken over in PRoP i, 468–471, with comments by Iu.V. Ospennikov, 471–480. Kaiser, Laws, 45–50 (Archeographic Copy, which combines the two redactions; with English translation); V.N. Beneshevich, Sbornik pamiatnikov po istorii tserkovnago prava i, Petrograd, 1915, 78–89 (Short and Expanded Redaction and two abbreviated copies). 19 The other four redactions (according to Shchapov’s classification) are of secondary interest here. The Rumiantsev and Tarnovskii redactions represent a combination of the Short and Expanded redactions; the Svitka Iaroslavlia and Ustiug redactions are short excerpts; cf. Ia.N. Shchapov, Drevnerusskie kniazheskie ustavy xi–xv vv., Moskva, 1976, 127–139. 20 Karamzin, ii, 38. 21 Kliuchevskii, Kurs i, 252–265 (Lecture xv). 22 Iushkov, Stroi, 214. 23 prp i, 257. 24 Ia.N. Shchapov, Kniazheskie ustavy i tserkov’ v Drevnei Rusi xi–xiv vv., Moskva, 1972; id., Drevnerusskie kniazheskie ustavy xi–xv vv., Moskva, 1976.

Princely Statutes

151

The 1976 volume offered five full texts of copies of the Expanded Redaction, and four of the Short Redaction, plus a great many other copies as variants. In the 1972 study a large chapter was devoted to the Statute of Iaroslav. In his shorter introduction to the Statute in the rz publication, Shchapov himself noted that his views on the topic had been widely accepted, in Russia as well as abroad.25 Most copies of the Statute have been found in different kormchie (more than half of them) or as part of other collections. The earliest copies date from the second quarter of the 15th century.26 Shchapov distinguished between six different redactions, the Expanded and Short Redaction being the first two. As the other four are derived from the first two, they can be left aside here. A careful analysis of the oldest and most reliable copies of the Expanded and Short Redaction led Shchapov to the conclusion that there was no direct genetic connection between the two and that both were based on a common older source. The Short Redaction arose as a result of the redrafting and modernization of parts of the original text, presumably in Moscow around the middle of the 14th century. The main tenor of the adaptation of the Short Redaction was an expansion of princely jurisdiction at the expense of ecclesiastical jurisdiction.27 The Expanded Redaction, on the other hand, was the result of adding new provisions. Otherwise it remained closer to the original text of the Statute. One of the most conspicuous additions concerned the regulation of divorce. Most of the additions and the emergence itself of the Expanded Redaction can be dated around 1200.28 Shchapov’s analysis of the two main redactions and their relationship allowed him to attempt a reconstruction of the original text. This was arrived at by retaining the provisions, identical in both redactions, discarding the new provisions of the Expanded Redaction, and undoing the innovations of the Short Redaction.29 Of special importance in this respect was the monetary system of the Statute, a question on which Kliuchevskii had already made some observations.30 Changes in the value and denomination of the currency, documented by other sources, were of much assistance in sorting out the numerous copies of the Statute.31 Shchapov’s reconstruction of the archetype of the 25 rz i, 166. 26 Shchapov, Kniazheskie ustavy, 200–232 (discussion of the different copies). 27 Shchapov, Kniazheskie ustavy, 233–235, 243. 28 Id., 234, 243, 257. 29 Id., 279; the reconstruction of the archetype is on 293–296. 30 Kliuchevskii, Kurs i, 257–258. 31 Shchapov, Kniazheskie ustavy, 257–279 (discussion of the monetary system of the Statute).

152

chapter 6

Statute of Iaroslav produced a text which, notwithstanding its hypothetical character, is sufficiently convincing on acccount of its internal consistency. Between the preamble (art. 1) and the stern appeal to all and sundry to observe the Statute (art. 42) there are forty separate provisions, of which the majority deals with infractions in the area of marriage, sexual relations, and the family. All of these apply to the entire population. A second, smaller group is formed by provisions regarding various other infractions, such as minor insults and fights. These provisions are equally of universal application. The third group consists of offences committed by persons specifically subject to the jurisdiction of the Church, such as members of the clergy, nuns, church servants. These provisions presumably have been added at a somewhat later date.32 The Statute of Iaroslav, taken as a whole, and in its original form, elaborates the grant of exclusive jurisdiction to the Church by the Kievan prince, made already in more general terms by Iaroslav’s father St. Vladimir. From this perspective, the Statute represented the natural complement to the rp, particularly the Expanded Pravda. The latter addressed itself to the protection of the interests of the prince, his servants and his property, and of public order in general. Where the interests of the prince were not heavily involved and, at the same time, the Church claimed a strong interest, jurisdiction was ceded to the latter.33 The Statute of Iaroslav may simultaneously be viewed as a companion or sequel to the Statute of Vladimir, which was legally incomplete, as it lacked sanctions. This was corrected by the Statute of Iaroslav. The penalties which it prescribed had the form of fixed fines, to be paid to the bishop (or the metropolitan in some of the texts). In a number of more serious cases the formula a kniaz’ kaznit’ (“and the prince shall punish”) was added. Such cases (e.g. rape or forcible abduction of a woman) could be regarded as being relevant in both jurisdictional spheres, secular and ecclesiastical.34 The formula indicates how the two spheres were closely intertwined. While the Old-Russian Church functioned almost as a department of the state, Church and state were roughly equal and separate partners in Byzantium. This, in Shchapov’s view, is the key to a proper understanding of the Statute of Iaroslav.35 The replacement of church penances (epitimia) of Byzantine canon law by fines and monetary sanctions in Russia should also be seen in this light. It was 32 33 34 35

Id., 288–289. Art. 41 (in Shchapov’s archetype, art. 57 in the Archeographical Copy, in ­Kaiser’s translation). Id., 291. A similar point had already been made by Kliuchevskii, Kurs i, 252. Id., 197–198. Id., 301.

Princely Statutes

153

not so much sins that were being punished, but violations of public order. Also, in Russia it was the bishop, closely tied to the prince’s administration, who imposed and received fines, and not the priest who would normally be the first-line administrator of church penalties.36 The transfer of jurisdiction to the bishop in the Statute of Vladimir concerned not only what we would regard as criminal cases, but civil matters as well, particularly divorce and inheritance disputes. The original Statute of Iaroslav was basically a specialized criminal code, although divorce was included in later versions.37 The infractions listed in the Statute of Vladimir were taken over and much expanded, with the exception of certain pagan practices (divination, potion-making), although other pagan survivals were included.38 The expansion concerned primarily offences against Christian sexual mores, where the Statute of Iaroslav went to great lengths in penalizing sexual relations of all kinds, not only various types of rape and incest, but also between godparents, with two sisters, with one woman by two brothers, with a nun, or by nuns and priests, or with animals, etc. Some of these had also been covered by provisions of Title 17 of the Ecloga, but the extreme casuistry of the Statute of Iaroslav is lacking in the Ecloga and has to be ascribed to the ingenuity of the drafters and, presumably, to surviving pagan habits of the Russian population. But the major difference with Byzantine law, as already indicated above, was in the sanctions. The corporal punishments and mutilations of Byzantine law were without exception replaced by fines, although the formula “and the prince will punish” in the most serious cases would allow something more drastic. The Statute of Iaroslav was an innovative legislative act in two ways. Compared to the rp, which still contained an important element of pre-Christian Russian law, the Statute of Iaroslav took its inspiration from Byzantine law, and specifically from its predominantly non-Roman, Christian components. But the ferocious Byzantine penalties imposed by the state were transformed into financial sanctions and transferred to Church jurisdiction. This represented a clear departure from Byzantine practice and in this connection Shchapov has made the intriguing suggestion that the actual drafting could have coincided 36 37

38

Ibidem. Art. 18 of Shchapov’s archetype (art. 19 in the Archeographical Copy) dealt with divorce, but rather as an offence: the man who divorced (actually repudiated) his wife must pay a fine to the bishop, the rate depending on whether there had been a church wedding or not. Art. 32 (Shchapov’s archetype, art. 36 of the Archeographical Copy), cutting the cheese as a pagan marriage ritual.

154

chapter 6

with the metropolitanate of Ilarion, who is mentioned by name in the Statute as co-author. Ilarion was the first Russian metropolitan of Kiev and he was appointed, not by the patriarch in Constantinople, like his three predecessors, but by Iaroslav in 1051, “after he had assembled the bishops”.39 In a later work Shchapov withdrew the suggestion on the grounds that the Statute of Iaroslav was actually of a later date (12th–13th centuries).40 Whereas the Statute of Vladimir established the general pattern of legal relations between Church and state in Russia, the Statute of Iaroslav was a much more detailed code of mainly criminal law. This meant that it was more exposed to obsolescence than its predecessor. In the centuries following its enactment, some of the most obvious anachronisms were corrected, as the process of copying and recopying went on, and this explains the significant variety among the many copies extant. Finally, it suffered the same fate as the Russkaia Pravda, the companion of which it was in some ways, and fell into oblivion.41

The Statute of Vsevolod on Church Courts and People and on Trade Measures

The “Statute of the Grand Prince Vsevolod on church courts and on people and on trade measures” is known from a small number of copies, the earliest of which dates from the middle of the 15th century.42 The discrepancies among the various copies are insignificant, the main feature of the most divergent Solovetsk Copy being the addition of a provision at the end of the statute.

39 Shchapov, Kniazheskie ustavy, 304. 40 Ia.N. Shchapov, Gosudarstvo i tserkov’ Drevnei Rusi x–xiii vv., Moskva, 1989, 193. 41 Shchapov, Kniazheskie ustavy, 315. 42 A.A. Zimin, prp ii, 160–161. Text of the Statute on 162–165, followed by Zimin’s comments on 166–172. Older editions: M.F. Vladimirskii-Budanov, Khristomatiia po istorii russkogo prava i, 238–248; V.N. Beneshevich, Sbornik pamiatnikov po istorii tserkovnago prava i, 91–95; S.V. Iushkov, “Ustav kn. Vsevoloda”, Iubileinyi zbirnyk na poshany akad. D.I. Bahaliia, Kiev, 405–427; republished in Russian in O.I. Chistiakov (ed.), S.V. Iushkov. Trudy vydaiushchikhsia iuristov, Moskva, 1989, 345–369, at 352–357. Newer editions: rz i, 249–261, at 250–253 (comments by Ia.N. Shchapov); the same text taken over by PRoP i, 480–482, with comments by Iu.V. Ospennikov, 482–488; Ia.N. Shchapov, Drevnerusskie kniazheskie ustavy xi–xv vv., Moskva, 1976, 153–158; Kaiser, Laws, 59–64 (includes English translation). French translation with notes and comments in M. Szeftel, M. Eck, Documents de droit public relatifs à la Russie médiévale, Bruxelles, 1963, 267–280.

Princely Statutes

155

The principal substantive provisions of the Statute concern the granting of certain revenues to the Church, the definition of Church jurisdiction, in terms of persons as well as subject matter, the granting of the supervision over weights and measures to the Church and the succession rights of illegitimate children. The inconsistencies in the text as it has been transmitted are obvious. There are a number of repetitions and some of the provisions are contradictory. It is generally agreed that the Statute as represented by the extant copies has never been enacted as such and has been assembled from various sources. Beyond this point opinions diverge. The first point of controversy is the identity of prince Vsevolod, a decisive element in dating the Statute. The numerous references in the text to Novgorod, its bishop, and the organization of urban government indicate that the prince concerned was not the grand prince of Kiev, but a prince of Novgorod. According to one of the current views it was Vsevolod Mstislavich, eldest son of Mstislav the Great and a grandson of Vladimir Monomakh, who resided in Novgorod from 1117–1136 (see Chapter 16 for more details). This identification can be supported by reference to another statute which can be ascribed with reasonable certainty to the same prince, the so-called testament (Rukopisanie) of Vsevolod Mstislavich (see below), which offers certain parallels with the Church Statute of Vsevolod.43 On the basis of this identification Iushkov has argued that there was an original charter of prince Vsevolod, consisting mainly of a grant of revenues to the Novgorod Church, to be dated more or less precisely in 1135/1136. This charter, together with the provision concerning weights and measures (which may or may not have been part of the original charter), would subsequently have been fused with the Church Statute of St. Vladimir. The elaboration of the text of the Church Statute of Vsevolod as we know it could then have been effected at some time around the end of the 13th century.44 Iushkov’s views were rejected by Shchapov in his work on the Old-Russian princely statutes. Shchapov concluded that the so-called Statute of Vsevolod was concocted in Novgorod around the end of the 13th century on the basis of the Statute of Vladimir and various local Novgorod ordinances. The assemblage served the political aims of Novgorod and was a posteriori connected with a prominent local prince. The prince the Novgorod authors had in mind, according to Shchapov, was Vsevolod Iur’evich, installed as prince in Novgorod in 1222, when he was 10 years old. Then there were other additions made to 43 Iushkov, op.cit.; id., Stroi, 216–221. 44 Ibidem.

156

chapter 6

the Statute in the course of the 14th and 15th centuries.45 In the end, though, Iushkov and Shchapov concur in regarding the extant text of the Statute as a text originating around the end of the 13th century. This is now a fairly generally shared view.46 Zimin, in his introduction to the prp publication of the Statute of Vsevolod, had also expressed his doubts about the existence of a 12th century charter of a prince Vsevolod. An analysis of the text did not allow, in his view, a date earlier than the end of the 14th century for the charter in its entirety.47 Zimin emphasized the Novgorod character of the document and regarded it as reflecting the power struggle between the archbishop and the wealthy urban classes in the 14th century. Another identification was proposed by Ianin in an ingenious argument based on the baptismal name of Vsevolod, rendered ИГΘШЬ in most texts. The deciphering of this cryptogram (not unusual in documents of the period) yielded “Peter” and it turned out that only one Novgorod prince named Vsevolod had the baptismal name of Peter, Vsevolod, son of Mstislav Romanovich Khrabryi (“the Brave”), prince of Smolensk. This Vsevolod ruled in Novgorod in 1219–1221.48 B.N. Floria made a connection between prince Vsevolod and the birich (herald, town crier) Miroshka, mentioned in art. 4 of the Statute. Considering that this person must have belonged to the highest circle of Novgorod officials, it seems justified to assume that he was the same as Miroshka Nezdinich who served as posadnik from 1189 until 1203. During the period of 1174–1212 the princes of Novgorod were appointees of Vsevolod “Big Nest”, grand prince of Vladimir. Floria pointed out that this prince repeatedly interfered personally in the affairs of Novgorod. Floria’s interpretation would also justify the reference to “grand prince Vsevolod” in the preamble. The co-operation between Vsevolod and Miroshka (and others) resulting in new legislation must have

45 Shchapov, Kniazheskie ustavy, 165–177. This Vsevolod was a grandson of Vsevolod iii “Big Nest” (Bol’shoe Gnezdo). 46 See L.A. Bassalygo, “Novgorodskie tysiatskie. Chast’ i”, Novgorodskii istoricheskii sbornik No.11 (21), 33–37, at 46–47; V.L. Ianin, Novgorodskie posadniki, Moskva, 2003, 129; B.N. Floria, “K izucheniiu tserkovnogo ustava Vsevoloda”, V.A. Kuchkin (ed.), Rossiia v srednie veka i novoe vremia. Sbornik statei k 70-letiiu chl.-korr. ran L.V. Milova, Moskva, 1999, 83–96, at 91. 47 prp ii, 161; also in A.A. Zimin, “Ustavnaia gramota kniazia Vsevoloda Mstislavicha”, in Akademiku B.D. Grekovu ko dniu 70-tiletiia, Moskva, 1952, 121–131. 48 V.L. Ianin, Novgorodskie posadniki, Moskva, 2003 (2nd ed.), 129–135. Shchapov, ibidem, 168, did not completely reject Ianin’s theory, but seemed to question its credibility.

Princely Statutes

157

occurred while Miroshka was still the birich, i.e. between 1174 and 1189. Other details allowed Floria to narrow down the year hypothetically to 1182.49 The first part of the Statute of Vsevolod (arts. 1–13) generally followed the Statute of Vladimir. Then arts. 14–16 transferred the supervision over weights and measures to the bishop, referring to a Byzantine charter of patriarch Photius. Arts. 17–23 returned to the subject of Church jurisdiction over church people and art. 24 concerned the succession rights of children of a third or fourth marriage. Art. 25 is a general mandate to the bishop, accompanied by the instruction to consult the Nomocanon. In the Solovetsk Copy a new art. 25 has been inserted after art. 24, devoted to the succession rights of children. Until the controversies surrounding the origin of the Statute of Vsevolod have been dissolved, it is difficult to formulate a final evaluation of the text, although a few points stand out. The major part of the contents are based on the Statute of Vladimir. Other parts reflect various legal innovations in Novgorod, such as the supervision over weights and measures.50 Notwithstanding these uncertainties, the Statute is of considerable relevance because it deals with several underexposed topics. The list of church people, based on the Statute of Vladimir, refers to the izgoi, a category of persons already mentioned in the Short Pravda (see Chapter 19).

The Testament of Vsevolod Mstislavich (Rukopisanie)

The Archeographical Redaction of this text bears the title “And this is the Testament of Prince Vsevolod”; hence, to distinguish it from the Statute of Vsevolod (often provided with the patronymic “Mstislavich”), the usual designation is “The Testament [Rukopisanie: “handwriting”] of Vsevolod Mstislavich”. In the other (Trinity) redaction this heading is absent. The latter redaction is represented by a single copy, the Archeographical Redaction by seventeen copies.51 The Testament basically represents a charter for the merchant guild of St. John 49 Floria, op.cit., 83–96. 50 Cf. Shchapov, Kniazheskie ustavy, 170, who points out that the later princely statutes concerning the relationships between the prince and the bishop were usually based on the Statute of Vladimir and elaborated and/or amended some of the latter’s provisions, adding occasionally also entirely new items. 51 Shchapov, Drevnerusskie kniazheskie ustavy, 158–165; prp ii, 174–185 (Trinity Copy; other copies as variants); M.F. Vladimirskii-Budanov, Khristomatiia po istorii russkago prava i, Kiev, 1899 (5th ed.), 249–254; rz i, 262–292 (both redactions); V.N. Beneshevich, Sbornik pamiatnikov tserkovnago prava i, Petrograd, 1915 (Archeograph. Red.; Trinity Copy as variants), 95–97.

158

chapter 6

the Baptist, the Ivanskoe kupechestvo, attached to the church of the same name na Opokakh in Novgorod. This guild of St. John was not only endowed with the supervision over the important wax trade, but also involved in the general government of Novgorod (see Chapter 16), and in commercial jurisdiction, exempt from the ordinary town courts. A superficial inspection would suggest 1135/1136 as the date of the charter;52 the prince is also clearly identified: Vsevolod Mstislavich, with the baptismal name of Gabriel. This is the same prince (grandson of Vladimir Monomakh) who is regarded by some as the author of the Statute of Vsevolod (see above). There are, however, too many anachronisms in the text for this version to be accepted. Zimin has suggested a date between 1359 and 1410 for the final drafting of the present text.53 Other authors have stressed that there was a 12th century nucleus, admitting that amendments and additions were introduced later on.54 It would seem that in the end the chronological structure of the Testament is not unlike that of the Statute of Vsevolod. The merchant guild of St. John the Baptist had undoubtedly emerged gradually; the provisions of the Testament recorded an existing situation. It would also be pointless to ask the question about the relative age of the two documents. They both developed over time and in conjunction. The Statute refers several times to the Ivanskoe kupechestvo (arts. 4–6, 15) but these references are not contemporary with the final text of the Testament and reflect somewhat different arrangements.

The Statute of Sviatoslav Ol’govich of 1137

This Statute presents fewer problems than other church statutes but also adds less to our knowledge, all on account of its brevity. Only two older copies are extant (Synodal Copy of the 14th century and the Egorovskii Copy of the end of the 15th century).55 It granted a tithe from various sources of the 52 The posadnik Miroslav was elected in 1135 and died the next year; prince Vsevolod Mstislavich was deposed in 1136. Also, the church of St. John the Baptist na Opokakh was built in 1127–1130 according to the Novgorod Chronicle. 53 prp ii, 178, 180. 54 Cf. M.N. Tikhomirov, Drevnerusskie goroda, Sankt-Peterburg, 2008 (orig. Moskva, 1956), 99–108; Iushkov, Stroi, 221, and more recently B.N. Floria, “O polozhenii «Ivanskogo kupechestva» v Novgorode domongol’skogo vremeni”, Novgorodskii istoricheskii sbornik 12(22), Sankt-Peterburg, 2011, 34.36. 55 Publication by Shchapov in Drevnerusskie kniazheskie ustavy, 147–148 (Synodal Copy with Egorovskii variants); prp ii, 116–123; rz i, 224–232; M.F. Vladimirskii-Budanov, Khristomatiia po istorii russkogo prava i, Kiev, 1899 (5th ed.), 255–256; V.N. Beneshevich, Sbornik pamianikov tserkovnago prava i, Petrograd, 1915, 99–100; Kaiser, Laws, 57–58

Princely Statutes

159

prince’s income to the bishop of Novgorod. The revenues subject to this tithe were summed up in great detail and the Statute accordingly is of considerable importance for understanding the territorial extension of the Novgorod bishopric. The date of the Statute and the identity of its author have been clearly indicated in the text: 1137 and Sviatoslav Ol’govich, prince of Novgorod. The circumstances of Sviatoslav’s accession to the principality of Novgorod are set out in the First Novgorod Chronicle. They were part of a chain of critical events which determined the constitutional character of Novgorod (see Chapter 16). The Novgorod citizenry had arrested and deposed their prince Vsevolod Mstislavich in 1136 (the same prince whose name is connected with the statutes discussed above). They then invited Sviatoslav Ol’govich, prince of Chernigov, to rule in Novgorod, who arrived on 19 July at three o’clock in the afternoon. His rule lasted until 17 April 1138, when he himself was deposed. In this connection the question arose whether the precise listing of the bishop’s income in the Statute reflected an increase in the prince’s power and a concomitant restriction of the bishop’s position, or rather the opposite. The former­ view had been advocated by Grekov,56 while Shchapov tended to see the Statute as a manifestation of the growing power of the bishop.57 The question appears in a different light in the perspective outlined by Ianin, who pointed to the peculiar financial position of Sviatoslav Ol’govich. Some time before (either in 1112 or 1127) the Kievan grand prince (at that time Vladimir Monomakh or his son Mstislav the Great) had set aside a part of Smolensk territory for the upkeep of the Novgorod princes of his house. When Sviatoslav Ol’govich, not belonging to the Monomakh clan, came to Novgorod, he was denied the enjoyment of this legacy and Novgorod therefore had to provide him with an estate which would produce sufficient income. The lands concerned were located in the northern and north-eastern parts of Novgorod’s territory. The Statute of 1137 described these lands and allotted their tithes in the usual way to the bishop.58 (with English translation); French translation in M. Szeftel, A. Eck, Documents de droit public relatifs à la Russie médiévale, Bruxelles, 1963, 281–284. The most recent longer study on the Statute of Sviatoslav Ol’govich is Shchapov’s section in Kniazheskie ustavy, 150–165. See also V.L. Ianin, “Gramota kniazia Sviatoslav Ol’govicha 1137 g.”, V.T. Pashuto (ed.), Feodal’naia Rossiia vo vsemirno-istoricheskom protsesse. Sbornik statei, posviashchennyi L’vu Vladimirovichu Cherepninu, Moskva, 1972, 243–251. 56 Grekov, Kievskaia Rus’, 244–245. 57 Shchapov, Kniazheskie ustavy, 165. 58 Cf. V.L. Ianin, Novgorod i Litva. Pogranichnye stituatsii xiii–xv vekov, Moskva, 1998, which is devoted to the entire problem of the border situation in the south-western corner of the Novgorod territory; also: id., Novgorodskie posadniki, Moskva, 2008 (2nd ed.), 139; id., Ocherki srednevekovogo Novgoroda, Moskva, 2008, 57.

160

chapter 6

The Smolensk Charters of Rostislav Mstislavich and Bishop Manuil

In 1837 a Russian scholar, S.V. Solov’ev, bought a small bundle of documents in Sweden, which later on became known as the Smolensk charters of prince Rostislav. They were published several times in the course of the 19th and 20th centuries.59 Shchapov’s study of them and their publication by him have now produced a clear and detailed picture.60 In early Kievan times, Smolensk had been passed from one prince to another, according to the customs of the Rurikid dynasty. A more or less permanent sub-dynasty was founded by Rostislav Mstislavich († 1168), a grandson of Vladimir Monomakh, who occupied the grand princely throne (of Kiev) like his father and grandfather from 1154 until his death in 1168, after he had ruled in Smolensk from 1127 to 1154. The economic and political power of Smolensk had increased significantly during Rostislav’s reign and the establishment of a bishopric in 1136 was one of the prime indicators of this. The Smolensk charters were connected with this development. The most important of the four documents involved is the charter of Rostislav in which the new bishop and his bishopric were granted the necessary income, mostly from tithes, but from a few other sources of income as well. All the districts of the principality are mentioned with the amount of the tithe to be withheld for the bishop; the tithe is imposed on the tribute to be levied in the district. This charter was drafted in 1134 and then issued in 1136.61 Following again the pattern of the Statute of Vladimir, the donation of tithe was supplemented by a grant of jurisdiction. The list of cases is significantly narrower than the list of the Statute of Vladimir or the catalogue in the Statute of Iaroslav; in particular, as noted before, the list of church people is lacking. Rostislav’s charter is accompanied by a much shorter confirmation charter issued by bishop Manuil in the same year. The other texts making up the collection concern the gift of a hill (fortress?)62 by Rostislav to the bishop (dated 59 Vladimirskii-Budanov, op.cit., 257–265; Beneshevich, op.cit., 102–107; prp ii, 37–53; rz i, 212–223. 60 Shchapov, Kniazheskie ustavy, 136–150; id., Drevnerusskie kniazheskie ustavy, 140–146. prp ii, 37–53 (comments by A.A. Zimin); rz i, 212–223 (comments by Ia.N. Shchapov); PRoP ii, 86–91 (comments byA.A. Dorskaia). 61 Cf. Shchapov, Kniazheskie ustavy, 136–137. 62 Not in PRoP i. The charter mentions the donation of a kholm, which could be just a hill, but according to Shchapov (Kniazheskie ustavy, 140–143) the gift concerned a hill upon which Vladimir Monomakh had already built a church, which was subsequently destroyed. See also L.V. Alekseev, Smolenskaia Zemlia v ix–xiii vv., Moskva, 1980, 23–24.

Princely Statutes

161

1150) and an anonymous list of taxes to be levied from different provincial towns (end of 12th–beginning of 13th centuries). The wealth of detail in the charter of Rostislav is of considerable interest for understanding the administrative structure, social class system, and judicial organization of the Smolensk principality. Both Rostislav’s charter and the bishop’s confirmation charter contain a warning against the possible reunification of the bishopric with the eparchy of Pereiaslavl’; these warnings were perhaps inserted at a later date, when there was an acute threat of a merger of the two eparchies.63

The Church Statute of Lev Danilovich of Galicia of 1301

The Statute of Lev Danilovich, prince of Galicia, demonstrates the lasting influence of the Statute of Vladimir on the management of Church-state relations during the period of the independent principalities.64 There are two redactions (Metrika and L’vov) with small differences.65 The Statute follows the pattern of the Vladimir Statute, granting tithes to the Dormition cathedral of Krylos, near Galich, defining Church jurisdiction and listing church people. Lev Danilovich, the son of king Daniil of Galicia, was one of the most important and powerful princes in Russia in the first period after the Mongol Conquest (see Chapter 17, on Western Russia).

Church-State Relations in 14th and 15th Centuries Texts

The continuing validity in the 14th and 15th centuries of the principles of Church-state relations, as first laid down in the Statute of St. Vladimir, is documented by texts from various parts of Russia, including those that had become part of the Lithuanian-Polish state.

63 Shchapov, Kniazheskie ustavy, 139–140; Iushkov, Stroi, 223. 64 Publications: Shchapov, Drevnerusskie kniazheskie ustavy, 166–173 (both redactions, Ukrainian, Polish and Latin versions); M.M. Peshchak, Hramoty xiv st., Kyiv, 1974, 12–14 (L’vov Copy of L’vov Redaction). A charter from 1581 of the Polish king Stephan Batory addressed to the bishop of Lutsk confirmed the 1301 Statute (the text of the latter is included in the charter text), cf. Shchapov, op.cit., 193–196. 65 Four of the Metrika copies are in Ukrainian, one in Polish translation; three of the L’vov copies are in Ukrainian, one in Latin translation.

162

chapter 6

A charter of the Volynian prince Liubart (son of the Lithuanian grand prince Gedimin) of 1321 granted several villages, described in detail, to the bishop of Lutsk (a Volynian bishopric established in the 13th century), together with jurisdiction, as well as jurisdiction over church people. In the second half of the charter some of the rules of the Statute of Vladimir were included in rephrased form.66 A charter of the Moscow grand prince Vasilii Dmitrievich of 1402, issued in consultation with metropolitan Kiprian, confirmed that the old regulations of Vladimir and Iaroslav on Church jurisdiction remained in force.67 It was reconfirmed in 1419.68 The financial and jurisdictional immunities of the Church were spelled out in considerable detail by the same prince in a model charter, kept in the archive of the metropolitanate, of 1404.69 In 1499 the Lithuanian grand prince Aleksander confirmed in a charter addressed to bishop (and elected metropolitan) Joseph of Smolensk that the jurisdiction of the Church, as laid down in the Statute of Iaroslav, remained in force.70 A similar confirmation, in almost identical terms, was issued by the same prince to the bishop of Lutsk in 1502.71 66 Shchapov, Drevnekniazheskie ustavy, 173–176. A later Lithuanian grand prince, Alexander, confirmed and repeated the 1321 charter in 1498: Shchapov, ibidem, 185–186. 67 Shchapov, Drevnerusskie kniazheskie ustavy, 182–184; Kaiser, Laws, 64. 68 Shchapov, ibidem, 184–185. Kaiser, Laws, 65. 69 Shchapov, ibidem, 176–179; prp iii, 421–423; asei iii, 18–20. 70 Shchapov, ibidem, 187–191. 71 Shchapov, ibidem, 191–193.

chapter 7

Treaties General1 Information about the earliest known treaties concluded by the ancestors of the medieval Russians is understandably vague and obscure, but comparative studies and circumstantial evidence remove all doubt about the ancient roots of the institution of treaty-making. One of the earliest instances has been discussed in Chapter 3 (on the Treaties with Byzantium), the Russian (or rather Viking) raid on Constantinople in 860, dimly reflected in the Primary Chronicle, but well known from Byzantine and Western sources. It was followed in the 10th century by a series of treaties between Kiev and Byzantium, the texts of which have been included in the Chronicle. Because of their exceptional importance for the early history of Russian law, they have been discussed in a special chapter. Although several centuries separate the treaties with Byzantium and the earliest foreign treaties of the following period (the treaties with Baltic partners), certain traditional elements of Russian law, as reflected in the 11th century in the Russkaia Pravda, can be identified in both groups of treaties.2 The Greeks were not the only foreign parties the early (pagan) Kievan realm had to deal with. The Slavic tribes were relative newcomers in the territory of present-day European Russia and they were in permanent contact with other ethnic entities, Finnish forest-dwellers in the North and North-East and a variety of mainly Turkic steppe nomads in the South and South-East. To maintain or restore peaceful relationships with these neighbours, treaties must have been concluded from time to time, although very little is known about them. One rare example is provided by Tatishchev’s entry for the year 1006 (6514), ­devoted entirely to a commercial treaty between St. Vladimir and the Bulgars. 1 I have discussed the subject matter of this chapter at greater length in “The Treaties of ­Medieval Russia – a Survey”, in R. Clark, F. Feldbrugge, S. Pomorski (eds.), International and National Law in Russia and Eastern Europe; Essays in Honor of George Ginsburgs; Law in Eastern Europe, No.49, The Hague/London/Boston, 2001, 157–205, republished with some editorial amendments, in Feldbrugge, lmr, 181–232. 2 This aspects was elaborated by M.B. Sverdlov in “Sistema russkogo prava kak osnova mezhdunarodnykh dogovorov Rusi x – pervoi treti xiii v.”, A.N. Sakharov (ed.), Ot Drevnei Rusi k novoi Rossii. Iubileinyi sbornik posviashchennyi chlenu-korrespondentu ran Ia.N. Shchapovu, Moskva, 2005, 109–122.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_008

164

chapter 7

The Bulgars were allowed to trade in the towns along the Volga and the Oka with the local merchants; they were not allowed to trade outside the towns and with other persons. The Bulgars were provided with the appropriate sealed documents (pechati); Russian merchants received such documents from the local governors (namestniki), which allowed them to take their wares to the Bulgars.3 As the earliest Russian treaties between various Kievan princes and Byzantium have already been discussed separately, the following sections will offer an overview of the treaties of the next period.4 The Kievan empire (if it could ever have been regarded as such) broke up within a few generations after its apogee under the illuminator of Russia, St. Vladimir, and his son Iaroslav the Wise and was replaced by an amalgam of principalities ruled by the numerous descendants of the Rurikid dynasty. This udel’nyi period, the era of the apanage principalities (udely), gradually dissolved, as the princes of Moscow managed to impose their supremacy on the other Russian princes. The last nominally independent Russian state, the principality of Riazan’, was absorbed into ­Muscovy in 1521. The dynastic principles at the basis of the fragmentation of the Kievan empire, in particular the institution of family seniority or starshinstvo, were discussed in Chapter 13 (on the Prince). Within the context of this section it is sufficient to point out that the division of lands and the governance thereof was effected between the adult male members of the Rurikid house, more precisely the descendants of Iaroslav the Wise († 1054), with the exception of the relatively unimportant princes of Polotsk, who traced their descent to Iaroslav’s brother Iziaslav († 1001). The original principle of generational seniority (younger brothers succeeding ahead of the sons of the deceased) was gradually superseded by the principle of a father being succeeded by his sons, and subsequently the principle of primogeniture also became established (the ­eldest son excluding the younger sons). The operation of these principles caused, first, an increasing fragmentation of the Kievan heritage, and then the condensation of political power in a small group of major principalities (grand principalities): Vladimir (later ­Moscow), Chernigov,5 Smolensk,6 Tver’, and Riazan’. In Novgorod, the prince 3 V. Tatishchev, Istoriia Rossiiskaia, T.2, Moskva, 2003, 64. The verisimilitude of the treaty is very much in doubt; cf. S.M. Kashtanov, Iz istorii russkogo srednevekovogo istochnika. Akty x–xvi vv., Moskva, 1996, 58. 4 The standard text for the foreign policy of medieval Russia, which provides the political background for the treaties discussed in this chapter, is V.T. Pashuto, Vneshniaia politika D ­ revnei Rusi, Moskva, 1986. 5 The (grand) principality of Chernigov gradually broke up after the Mongol invasions. 6 By the end of the 14th century Smolensk had become dependent on the grand duchy of Lithuania, into which it was fully absorbed in 1404.

Treaties

165

was ­marginalized at an early date already, resulting in the development of a semi-­republican form of government. A similar situation arose in Pskov, originally a dependent city (‘suburb’, prigorod) of Novgorod. The legal relationships between the Russian principalities were shaped during this period by treaties between ruling princes, and, occasionally, city-states (especially Novgorod and Pskov). The matter became more complicated after 1240, when the entire complex of post-Kievan Russian ‘states’ was forced to recognize the suzerainty of the Mongol (Tatar) khan. From a modern point of view one would have to say that the sovereignty of the individual principalities was limited, and this would of course affect their treaty-making powers. The Mongols directly controlled the lands to the East and South of medieval Russia (present-day Ukraine). In the West the most powerful direct neighbour was the grand prince of Lithuania who was also, since 1386, in a personal union, king of Poland. The situation, moreover, was unstable and subject to change in two respects. One was that the domination of the Tataro-Mongols was not a factor of constant strength, it varied greatly over time. In the long run the Tatars lost out and were eventually subdued themselves by Russia. Secondly, relationships between the Russian ‘states’ of the udel’nyi period were permanently in flux and, as already indicated several times, the end result was the complete triumph of Moscow over all the others. Russian treaties from this period can therefore be divided into two major groups: internal Russian treaties, i.e. treaties between Russian princes themselves (including the city-states of Novgorod and Pskov), and treaties with genuine foreign powers, which are more like traditional international law treaties. A secondary division can be made on the basis of content. In that respect the most important categories would be general treaties, which were aimed at creating a comprehensive framework for the relations between the two treaty partners, treaties concerning peace or an armistice, treaties regulating commercial relations and treaties concerning taxation, although fiscal questions turned up in most other treaties as well.

Treaties: Internal Russian Treaties

The surviving corpus of internal Russian treaties from the middle ages consists overwhelmingly of treaties in which either Moscow or Novgorod was a party; there is also a small number of treaties between Moscow and Novgorod; the number of treaties concluded between other Russian princes is even smaller.7 7 For detailed lists, see my article on medieval Russian treaties, cited above.

166

chapter 7

The survival of these treaties has largely been determined by their inclusion in the archives of the Moscow grand prince, which in turn became the nucleus of the Russian state archives.8 This explains why non-Moscow treaties appear to be underrepresented. The practice of concluding family treaties among the members of the ruling house undoubtedly went very far back in Russia. The Short Version of the Russkaia Pravda contains a reference (in the preamble to the second part, the so-called Pravda of Iaroslav’s sons) to an agreement (traditionally dated 1072) between three sons of Iaroslav the Wise, together with four (or three or six) magnates.9 The Primary Chronicle and other chronicles offer numerous examples of princes concluding agreements among themselves. The internal Russian treaties of the Moscow grand prince generally reflected Moscow’s long-term strategy of imposing its supremacy on other Russian principalities. This sub-group may further be divided into treaties between the Moscow grand prince and his immediate male relatives (brothers, cousins, nephews), and treaties between the same prince and his more distant Rurikid relatives. The dynastic principles governing succession in Kievan Russia and their subsequent development during the udel’nyi period were discussed in Chapter 13. At this point it will be sufficient to say that the treaties between the Moscow grand prince and his close relatives served primarily the gradual introduction of primogeniture in the Moscow principality and, by the same token, the prevention of fragmentation of the state. These treaties were therefore inherently treaties between unequal parties. The Moscow prince was the ‘elder brother’, the traditional term in medieval Russian treaty practice to signal a position of superior status, but in this case the prince was in fact the elder brother (or his most senior descendant).10 The second group of Moscow treaties concerned relations between the ­Moscow prince and the grand princes of Tver’ or Riazan’, who were more 8 9 10

The basic source in this respect is Cherepnin, Arkhivy i, quoted above. “The law established for the Russian land, when Iziaslav, Vsevolod, Sviatoslav, Kosniachko, Pereneg, Mikyfor the Kievan and Chudin Mikula came together”. See my “The Elder Brother in Russia. Seniority in Russian Politico-Legal Discourse”, G. Brunner [and others] (eds.), Sowjetsystem und Ostrecht; Festschrift für Boris Meissner zum 70. Geburtstag, Berlin, 1985, 211–226; republished with some editorial amendments in Feldbrugge, lmr, 167–180. Of the more than 40 published treaties between the Moscow grand prince and his younger brothers and cousins, more than half was with the princes of Serpukhov-Borovsk (Dmitrii Donskoi’s first cousin Vladimir the Brave, and his descendants) and the princes of Mozhaisk-Verei-Belozero (descendants of Andrei, younger son of Dmitrii Donskoi).

Treaties

167

d­ istantly related and had better grounds for claiming equality, at least in terms of diplomacy. These treaties tended to cover a wider range of topics and their wording respected the equality of the parties, at least as long as this would more or less reflect the political reality. As the strength of the Moscow grand prince increased, the princes of formerly independent principalities were in the end all forced to bow to the power of Moscow. This was generally expressed by recognizing the Moscow prince as the ‘elder brother’, prior to full absorption of their principalities into the state of Muscovy. Two general observations made by Sergeevich a century ago are worth repeating: there are no treaties between ascendants (fathers, grandfathers) and descendants (sons, grandsons), because the paramount position of the ascendant was apparently unquestioned. Secondly, some treaty provisions were innovative, while others merely confirmed customary arrangements.11 Evidently, the ascent of the Moscow grand prince was brought about, in legal terms, by a continuous amendment of the traditional system of princely relationships. See also the section on relations between princes in Chapter 13. The peculiarities of the archival history of medieval Russia have, as noted before, allowed the survival of only a very modest number of treaties between other princes, apart from the Moscow grand princes. They were typically concerned with unsuccessful attempts at making common cause against the Moscow­ threat.12 The internal Russian treaty record of Novgorod reflected its geopolitical situation. gvnp offers 15 treaties (or draft treaties) with the grand prince of Tver’, 7 with the Moscow grand prince, and one triangular treaty with the two of them. The principality of Tver’ was located between the territories of Novgorod and Moscow and constituted the most serious contender for the hegemonial position in Russia, along with Vladimir-Moscow, during the 13th and 14th centuries. The published treaties between Novgorod and Tver’ start in 1264 while the last one is from 1446–1447. The Novgorod-Moscow series starts later (in 1318–1319) and ends in 1471 with the ultimate subjugation of Novgorod. The large body of treaties between Novgorod and Tver’ covered many aspects of their relationships and is of great importance on account of the wealth of detail it provides on all kinds of legal subjects.13 (See the special section below.) 11 Sergeevich, Drevnosti russkogo prava ii, 3rd. ed., Sankt-Peterburg, 1908, 150–162. 12 Treaties between princes of Galich and Suzdal’ (ddg, No.40, 119–121, from 1445), between princes of Mozhaisk and Serpukhov-Borovsk (ddg, No.62, 199–201, from 1461), and between two princes of Riazan’ (ddg, No.84, 332–341, from 1496). 13 See also the section on Novgorod-Tver’ treaties in my chapter on treaties in Feldbrugge, lmr, at 202–204.

168

chapter 7

Treaties with Foreign Powers

The majority of Russian treaties with foreign powers from the period of the independent principalities involved Novgorod (also called Novgorod the Great, to distinguish it from the then relatively unimportant city of Nizhnii Novgorod). This was a natural consequence of Novgorod’s location on the western edge of European Russia. Novgorod’s prominent position among the Russian principalities rested primarily upon its extensive trade with its western neighbours and Novgorod was the first major Russian power that Westerners were likely to come into contact with. Apart from a few treaties with the kings of Poland (and/or grand princes of Lithuania) and of Norway and Sweden, the bulk of Novgorod’s foreign treaties­ was with its immediate neighbours in the Baltic area. Most of these treaties were with the Hanseatic League, usually represented by its dominant city ­Lübeck, but also with the entire League, with smaller groups of towns, or with the Baltic Hanseatic towns only. Then there was a smaller number of treaties with the Livonian Order, founded in 1204 by the bishop of Riga, and absorbed into the German or Teutonic Order in 1237, and in a few cases with Baltic bishops (of Riga, Dorpat, Oesel and Kurland).14 The all-encompassing background of the Hanseatic treaties was commerce. The League had early on achieved a virtual monopoly in the trade between Western Europe and Russia and most of the Novgorod treaties were meant to regulate the relationships between the parties and in particular the Hanseatic presence in Novgorod in the guise of the Nemetskii dvor, the German Court, the colony of merchants from numerous towns of the Holy Roman Empire (comprising a far greater territory than the present Germany). Relationships would often break down and hostilities would result, ending invariably in the conclusion of a peace treaty. The text of the oldest treaty, from the end of the 12th century, shows clearly that other similar treaties must have preceded it. The general format of the Hanseatic treaties with Novgorod was as follows. First, a confirmation of the staryi mir, the previous treaty relations and the traditional pattern of the consensual relationship; then the text usually referred to the ways Novgorod could be reached by the German merchants (winter and summer approaches, hiring of pilots, etc.), followed by procedural rules about the solving of disputes, rules of evidence, etc.; finally, rules about breaches of the peace by the visitors or Novgorod citizens, affecting each other. The latter rules did in some ways echo 14

As a curiosity one might add the treaty between Novgorod and the German merchant community in Novgorod (the “German Court”) of 1439 (gvnp, No.68, 113–114).

Treaties

169

the provisions of the Russkaia Pravda concerning compensation for homicide, injuries, etc. Altogether, the Hanseatic treaties of Novgorod offer a fairly detailed picture of the legal dimensions of the city’s commercial role (see also the section on foreign trade and foreign merchants in Chapter 16). Next to the Hanseatic League, the main foreign treaty partner, not only of Novgorod, but also of other Russian principalities, was the grand duke of Lithuania (since 1386 the grand duchy of Lithuania and the kingdom of ­Poland formed a personal union). Relations with Lithuania were occasionally hostile on account of Lithuania’s often expansionist foreign policy, but with the rise of Moscow’s power Lithuania also emerged as the only effective counterweight to Moscow, from the perspective of Novgorod and other ­Russian principalities, and this factor became more dominant in the treaties of the later period. Along with Novgorod, other West-Russian powers participated in diplomatic traffic with the West: there is a small number of treaties between Smolensk, Polotsk and Pskov on one side and Poland, Lithuania, Riga and the German ­Order on the other. The number of genuine foreign treaties of Central and Eastern Russian principalities is quite small; all of them are with the grand prince of Lithuania (king of Poland) and on the Russian side the princes of Moscow, Tver’, Riazan’, Novosil’ and Odoev, and Pronsk appear. Of course this did not mean that the Russian princes did not engage in relations with their eastern and southern neighbours, but simply that no written documents, if there ever were any, have survived. The absence of treaties between Russian princes and their eastern neighbours, the Mongol-Tatar rulers, is easily explained. After the utter defeat of the various Russian principalities in the years 1238–1240, the khan considered himself the supreme ruler of Russia and the Russian princes his servants. It would not make sense to conclude agreements with them. He would communicate his wishes through unilateral instructions, usually in the form of a iarlyk (discussed separately in Chapter 11). Contacts with the South-East, the area of the Caucasus, were more s­ poradic. Iurii, a son of Andrei Bogoliubskii, grand prince of Vladimir, married the ­famous Georgian queen Tamara around 117715 and this is only one indication of relations that must have existed between Russian and Caucasian rulers. The connection was cut off effectively by the Mongol invasion.

15

Cf. N. de Baumgarten, Généalogies et mariages occidentaux des rurikides russes du Xe au XIIIe siècle; Orientalia Christiana, Vol. ix-1, No.35, Roma, 1927, Table vi, No.22; M. Surguladze, Bagrationt’a samep’o saxli, Tbilisi, 1995, 48.

170

chapter 7

Selected Examples and Special Categories

The dichotomy dividing normative (legislative) and non-normative (non-­ legislative) sources, lying at the basis of the organization of the first part of this work, is often not fully applicable in medieval legal conditions. Some treaties represented a public law version of a contract, others were similar to a statutory document. The latter documents have a much greater value as sources of law. Several categories of treaties are therefore discussed separately in the most appropriate places in this work. This would apply to the treaties among Russian princes, a topic intimately connected with the institution of the prince in the Russian middle ages. In Chapter 16 (on Novgorod) the considerable number of treaties between Novgorod and the Hanseatic League has been examined as the principal source for defining the legal status of foreign merchants in Novgorod. The treaties between pre-Christian Russian princes and the Byzantine ­emperors are of such fundamental importance that a special Chapter (3) is devoted to them. In the following part of this chapter a few individual treaties of more than average significance for the overall picture of Russian law in the middle ages will be looked at in somewhat more detail; another section will deal with the remarkable body of treaties between Novgorod and the princes of Tver’, which is of much greater importance than its narrow geographical focus might suggest.

The Treaty of 1229 between Mstislav Davydovich of Smolensk and Riga and the Gothic Coast

The preamble to this treaty relates how prince Mstislav Davydovich of Smolensk sent his envoys to Riga in the year that bishop Albrecht died. This allows the exact dating of this text between the death of Albrecht (Albert, Adalbert), the first bishop of Riga, in January 1229 and the appointment of his successor in April of the same year. The treaty, to be exact, is between the Smolensk prince and the Hanseatic merchants of Riga and Visby (Gotskii bereg, the Gothic Coast, as it is commonly called in the Russian documents of the period).16 16

Original publication in K.E. Napierski (ed.), Russko-Livonskie akty, Sankt-Peterburg, 1868, Appendix i, 420–445; prp ii, 54–71, with comments by A.A. Zimin, 75–87; R.I. Avanesov (ed.), Smolenskie gramoty xiii–xiv vv., Moskva, 1963, 18–62. See also L.V. Alekseev, Smolenskaia zemlia v ix–xiii vv., Moskva, 1980, 27–29.

Treaties

171

There are two groups of extant texts of the treaty, significantly different from each other because they are based on different Old-Russian translations of Latin and German texts. The original Russian text of the treaty has been lost, as well as the German and Latin texts. The first three provisions of the treaty are devoted to homicide and other personal injuries and echo in many respects corresponding provisions of the Expanded Version of the Russkaia Pravda, which should not be surprising­ in view of the treaty’s early date. Most of the remaining provisions concern the relationships between Russian and Hanseatic merchants; the standard format is a more or less detailed description of the rights and duties of a Smolensk merchant (or a German merchant) in a particular situation in Riga (or Smolensk) and then a short formula to the effect that the same will apply to a ­German merchant (or Smolensk merchant) in Smolensk (or Riga). The treaty is often referred to as the Smolenskaia Pravda, as the text after the long preamble starts with the words: “Here starts the Pravda” (A se pochinok Pravde, and in other manuscripts Zde pochinaetsia Pravda). The rp was undoubtedly still alive in Smolensk during the first half of the 13th century although socio-economic developments had had an effect. The reason for drawing up the treaty was the need to regulate the application of Smolensk law in situations where non-Russians were involved and this offered an opportunity to make the law more up-to-date. The Smolensk Pravda therefore also covers topics on which the rp was silent.

The Treaty between the ‘Unknown Prince’ of Smolensk and Riga and the Gothic Coast

This treaty is closely related to the one discussed above; it should perhaps be named a draft treaty, because the Smolensk Pravda of 1229 was the operative text during the reign of the Smolensk prince Gleb Rostislavich (1270–1277).17 Older authors have advocated a date around 1223–1225, but a later date is favoured by modern scholars; V.A. Kuchkin suggested 1233–1240, A.A. Zimin a date after 1239 and before 1270.18 If one follows Kuchkin the prince would be Sviatoslav Mstislavich; if Zimin, then the latter’s brother Vsevolod Mstislavich.19

17 18 19

Cf. Zimin, prp ii, 55. V.A. Kuchkin, “O drevneishikh smolenskikh gramotakh”, Istoriia sssr, 1966, No.3, at 104; A.A. Zimin, prp ii, 55. Kuchkin, 106; Zimin, 87.

172

chapter 7

The original Russian text has been preserved;20 its first words are: “My agreement with the Germans is as follows” (A riad moi s Nem’tsi takoi). There is no preamble as in the Smolensk Pravda; the relationship between the two texts remains unclear. To some extent the texts regulate the same subject matter; all the ‘commercial law’ provisions of the second treaty can be traced to the Smolensk Pravda, which is more elaborate. Also, its language is generally more obscure, which may be caused by the fact that its different versions are medieval Russian translations from the Latin or the German. Some of the provisions of the two documents offer close parallels (e.g. the provisions concerning the homicide of a freeman, art. 1 of the Smolensk Pravda and art. 2 of the other treaty, both of them reminiscent of the corresponding rules of the rp). Unlike the Smolensk Pravda, which is predominantly a commercial and procedural law text, the other treaty devotes far more attention to personal injuries and is in this respect closer to the rp. The legislative technique is similar to that of the Smolensk Pravda; many provisions end with the words: “and the same applies to a German in Smolensk” (Takozhe i Nem’chitsiu Smolen’ske). One might surmise provisionally that the treaty text was a reformulation of the legal relations between Smolensk and the Hanseatic towns, in which earlier texts were used. As is often the case with the treaties of medieval Russia, they were renewed after being interrupted by war, violence or other difficulties, and the occasional surviving texts do then sometimes refer to the “old treaties”. L.V. Alekseev, following Kuchkin, mentions the years 1110, 1112 and 1223–1225 as possible dates of earlier treaties between the same parties.21

The 1269 Treaty between Novgorod and the Hanseatic League

The commonly used text of this treaty is the one published as No.31 in gvnp, where it is entitled “Draft treaty between Novgorod and Lübeck and the Gothic Coast on trade and courts”.22 Its main interest for legal history is that is offers the fullest picture of treaty relations between Novgorod and the Hanseatic League and, among other things, fills in the background to the Skra of Novgorod (the internal law of the Hanseatic colony in Novgorod; see the relevant section in Chapter 10, on Foreign Laws). Some of the treaty provisions were reproduced 20

Original publication in Napierski, op.cit., Appendix ii, 451–453; prp ii, 72–75, comments by Zimin, 85–87. 21 Alekseev, op.cit., 26. 22 gvnp No.31, 58–61 (modern Russian and Middle Low German text).

Treaties

173

almost without change in several versions of the Skra. Additionally, the treaty has a complicated diplomatic history. It was discovered in Lübeck in 1761 in three copies, one in Latin and two virtually identical ones in Middle Low German. There were considerable differences between the Latin and Low German texts. One of the latter was sent to Russia, where it was translated into Russian already in the 19th century.23 ­Soviet scholars were inclined to regard the available Low German text as a draft treaty, which had perhaps been signed, but not officially ratified.24 ­Recent studies have demonstrated that the Latin text25 represents a draft which the Hanseatic envoys had taken to Novgorod; on the basis of this draft a more precise final treaty text was produced in Russian, which then was translated into Middle Low German and taken back to Lübeck after ratification.26 The original Russian text has not survived; the text included in various modern collections is (as mentioned above) a modern Russian translation of the Middle Low ­German text (itself a translation from 13th century Russian).

The Novgorod-Tver’ Treaties27

The first provision of the first published treaty between Novgorod and Tver’ (grand prince Iaroslav Iaroslavich) of 1264 invited Iaroslav to confirm the treaty 23 The gvnp translation was made in the 1930’s by E.A. Rydzevskaia. 24 The diplomatic aspects of the 1269 treaty have recently been revisited by D.G Khrustalev and L.D. Bondar’: “Proekt torgovogo soglasheniia Novgoroda s Liubekom i Gotlandom 1268/1269 gg. (Latinskaia gramota)”, Novgorodskii istoricheskii sbornik 12 (22), Sankt-­ Peterburg, 2011, 453–480. This paper bases itself to a considerable extent on E. Skvairs [Squires], “Neues zur Text-, Handschriften- und Sprachgeschichte der niederdeutschen Jaroslav-Urkunde von 1269”, «Was liegt dort hinterm Horizont?». Zu Forschungsaspekten in der (nieder)deutschen Philologie. Festschrift zum 60. Geburtstag von Prof. Irmtraud Rösler (Rostocker Beiträge zur Sprachwissenschaft. Heft 12), Rostock, 2002 (not available to me). 25 The Latin text is reproduced, with extensive comments, by Khrustalev and Bondar’, op.cit., 461–480. 26 Khrustalev and Bondar’ follow Skvairs in considering the ratification as having indeed taken place. 27 Cherepnin’s chapter on the Novgorod documents from the Tver’ archives in his Arkhivy is still a fundamental source for this subject; Cherepnin, Arkhivy i, 254–266 (treaties of Iaroslav Iaroslavich), 266–299 (treaties of Mikhail Iaroslavich), 299–306 (the 1327 treaty of Aleksandr Mikhailovich), 306–317 (treaties of Mikhail Aleksandrovich), 317–333 (treaties of Boris Aleksandrovich).

174

chapter 7

by oath, as his father Iaroslav had done.28 This indicates that the 1264 treaty had been preceded by similar agreements. The basic provision of the treaty contained the obligation of the prince “to hold Novgorod according to custom”, a formula which returned with minor variations in all subsequent similar treaties, both with the princes of Tver’ and those of Moscow.29 The 1264 treaty is the first known example of a treaty providing a general framework for the functioning of the Novgorod prince (see also the section on relations with the prince in Chapter 16). It was followed by a long series of similar treaties, in which the mutual rights and obligations were extended or curtailed, depending on various factors and especially on the balance of power between the two sides.30 When peaceful co-existence between Novgorod and its prince broke down, the ensuing hostilities eventually had to end in peace negotiations and a number of peace treaties between Novgorod and the prince of Tver’ have been preserved.31 The peace treaties laid down what specifically was to be done to 28 29

30 31



The father was one of the sons of Vsevolod ‘Big Nest’, and the ancestor of both the ­Moscow and the Tver’ princes. The principal publication of these treaties has been in gvnp. This publication (of 1949) did not offer any substantive commentary to the texts, a defect that was amended by V.L. Ianin with the publication of his Novgorodskie akty xii–xv vv. Khronologicheskii kommentarii, Moskva, 1990. In many cases Ianin has proposed a new dating for the treaties, which I have followed here. Treaties of 1264 (gvnp, No.1, 9–10; sggd i, No.2, 2–3; prp ii, 135–136; see also Ianin, Akty, 142–146; Kaiser, Laws, 67–68); 1264 (gvnp, No.2, 10–11; sggd i, No.1, 1; prp ii, 137–138; see also Ianin, Akty, 142–146); 1268 (gvnp, No.3, 11–13; sggd i, No.3, 3–4; prp ii, 138–141; see also Ianin, Akty, 142–146); 1305–1307 (gvnp, No.6, 15–16; sggd i, No 9, 11–12; see also Ianin, Akty, 152–155; Kaiser, Laws, 69–71); 1305–1307 (gvnp, No.7, 16–18; sggd i, No.10, 13; see also Ianin, Akty, 152–155); 1307 (gvnp, No.9/10, 19–22; sggd i, Nos.6/7, 6–8; see also Ianin, Akty, 152–155); 1327 (gvnp, No.14, 26–28; sggd i, No.15, 19–20; see also Ianin, Akty, 161–163; Kaiser, Laws, 72–74); 1371 (gvnp, No.15, 28–30; sggd i, No.8, 9–10; see also Ianin, Akty, 165–171; Kaiser, Laws, 75–78); 1446 (gvnp, No.20, 36–38; sggd i, No.18, 232–24; see also Ianin, Akty, 1179–1180). 1317, peace of Torzhok (gvnp, No.11, 22–24; sggd i, No.12, 15; see also Ianin, Akty, 155–161); 1317 (gvnp, No.12, 24; sggd i, No.16, 21; see also Ianin, Akty, 155–161); 1318 (gvnp, No.13, 25–26; sggd i, No.14, 17–18; V.A. Kuchkin, Dogovornye gramoty moskovskikh kniazei xiv veka; vneshnepoliticheskie dogovory, Moskva, 2003, 336–337; see also Ianin, Akty, 161); 1376 (gvnp, No.18, 33–34; sggd i, No.17, 21–22; see also Ianin, Akty, 165–171).

Treaties

175

restore peaceful relations, such as the return of seized property, payment of reparations, etc. Additionally, the peace treaties often contained more general conditions which figured already in the general treaties; the two types therefore overlapped to some extent. Of the peace treaties, the one from 1318 was the most remarkable.

The Peace Treaty of 1318 between Moscow and Novgorod and Tver’

This treaty was concluded in February 1318 between Iurii Danilovich,32 grand prince of Moscow, together with Novgorod (represented by its posadnik and tysiatskii), on one side, and grand prince Mikhail Iaroslavich33 of Tver’ on the other.34 It is available in its original parchment form, albeit heavily damaged. There has been much debate about its contents, on account of its numerous defects, but even more because of a seeming contradiction between the contents and the surrounding circumstances. The main conflict had been between Novgorod and Tver’. The princes of Tver’, who had on and off been in possession of the grand princely dignity of Vladimir and as such had been much involved in Novgorod politics (by controlling the appointment of the nominal prince in Novgorod), had lost favour with khan Uzbek, who had transferred it to the Moscow princes. Tver’s dealings with Novgorod had often led to open hostilities, ending with a new peace treaty, the conditions of which depended mainly on who had come out the stronger party.35 In a new conflict in 1317, the prince of Moscow had joined Novgorod, but prince Mikhail of Tver’ had succeeded in beating his opponents separately. One would expect therefore a treaty which was favourable to Tver’. The present text, as reconstructed, seemed to place most of the burdens on the prince of Tver’.

32

Iurii († 1325) was an older brother of Ivan Kalita, the ancestor of the Moscow dynasty; he had received the khan’s approbation to occupy the position of grand prince of Vladimir in 1317. 33 Mikhail Iaroslavich of Tver’ had enjoyed the khan’s patent for the Vladimir grand princely position from 1304 to 1317. 34 New edition on the basis of reconstructed text in Kuchkin, Dogovornye gramoty, 336–337. An earlier reconstruction by Cherepnin, Arkhivy i, 291–293. Older versions in gvnp, No.13, 25–26, and in sggd i, No.14, 17–18. The first Chapter (10–67) of Kuchkin’s work is devoted to the 1318 treaty. 35 See gvnp, No.11, 22–24 (sggd i, No.12, 15).

176

chapter 7

A painstaking analysis by V.A. Kuchkin36 has shown that the apparent concessions by Tver’ were actually minimal or even non-existent, and that the absence of conditions which would have been significantly advantageous to Tver’ is to be explained by the presence of Kavgadii, the personal representative of the khan, who at that time was ill-disposed towards Mikhail of Tver’.37 The treaty’s interest lies especially in its illumination of the relations between the princes, with the khan in the background, the beginnings of the emergence of the Moscow sub-dynasty, and of course its antiquity. From a legal point of view, its contents are not spectacular. The boundaries between various disputed territories were spelled out once again; villages and other properties unlawfully appropriated were to be returned, etc. Three former peace treaties with Novgorod were renounced, but as Kuchkin has argued, the onerous financial conditions they had imposed on Novgorod had been satisfied, and their renunciation did therefore not affect Tver’s interests. 36 Kuchkin, Dogovornye gramoty, 57–67. 37 Such a suggestion had already been made by Cherepnin, Arkhivy i, 293–296. Mikhail was  sum­moned to the court of the khan soon afterwards, where he was executed in ­November 1318.

chapter 8

Town and Provincial Charters

The Charter of Dvina Land

The granting of the Charter of Dvina Land by the Moscow grand prince Vasilii Dmitrievich was connected with specific historical events.1 Dvina Land, covering vast and sparsely populated forest land in the North of Russia, was ruled of old by the city of Novgorod. It was rich in resources and as its importance at the crossroads of several northern trade routes grew, its inhabitants became more and more dissatisfied with their semi-colonial status. The First Novgorod Chronicle relates how, with the active encouragement of Vasilii Dmitrievich, the boyars and people of the Dvina rose up against Novgorod in 1397.2 The uprising was crushed in the next year by the army of Novgorod. The Charter must therefore have been granted in 1397 (or 1398). The Charter, usually subdivided by editors into 16 articles, is essentially a short law on local government, criminal justice and taxation. It was granted unilaterally by the Moscow prince, but an obvious effort was made to create a benign impression.3 In the preamble, for instance, the prince announced that he would either send his lieutenant to govern the province, or that he might appoint a lieutenant from among the Dvina boyars. The Dvina men had simply changed their allegiance. From having been the subjects of Novgorod, they became the subjects of the Moscow grand prince. The prince limited his own powers in the Charter, which implied that he could revoke this self-limitation later on. The most important exception granted to the population of Dvina Land was that the ordinary judicial officer of the prince, the pristav, was not allowed to enter the province, and that the provincial lieutenant (the namestnik),­ would take care of everything. The concept of a princely lieutenant, on the other hand, was indicative of the centralizing aspirations of Moscow. Formerly, 1 Text in prp iii, 162–164, with notes and comments by A.A. Zimin and A.G. Poliak, ibidem, 185–197; rz ii, 180–182, with notes and comments by B.V. Vilenskii, ibidem, 183–186; asei iii, 21–22 (No.7); gvnp, 144–146 (No.88). The gvnp text also in PRoP ii, 98–100, with comments by Iu.V. Ospennikov, 100–107. It was also included in the many editions of M.F. VladimirskiiBudanov’s Khristomatiia po istorii russkago prava, i. English translation in Vernadsky, Laws, 57–60; also Kaiser, Laws, 111–113. 2 Novg. Chr., 1397 and 1398. 3 This is pointed out by Vlad.-Bud., Obzor, 226.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_009

178

chapter 8

Dvina Land had enjoyed a fair measure of self-government under locally appointed or elected mayors (posadniki) and other officials. These, presumably, had a free hand, as long as they carried out the instructions from Novgorod.4 The legal contents of the Charter also illustrate the new tendency towards centralization. According to Zimin and Poliak, the Charter combined Novgorod and Moscow elements. Among the latter, traces of the Russkaia Pravda can be identified, such as the vira in art. 1 and the rules on confrontment (svod) in art. 5.5 Notwithstanding its ephemeral nature as a legally and politically relevant document, the Dvina Charter is of great significance as the earliest known example of centralizing general legislation of the Moscow grand princes. In this respect it is of much greater importance than its limited geographical applicability would lead us to expect.

The Court Charter of Pskov6

Introduction The Court Charter of Pskov (Pskovskaia Sudnaia Gramota) is undoubtedly the most important piece of legislation in the period between the Russkaia Pravda and the Code of 1497 of Ivan iii. It is the only surviving comprehensive code of law from the period of the independent principalities, after the breakup of Kievan Russia. It also represents a direct and major link between the rp as the main legal monument from Kievan Russia and the Code of 1497 as the first milestone in the legal history of a newly unified Russian state. The Charter of Pskov survived by mere chance. Only one complete copy is known. A smaller fragment (the Synodal Copy) was found and published by Karamzin in 1812. The full text of what is known now as the Charter of Pskov (the Vorontsov Copy) was discovered and published by N.N. Murzakevich in 1847. It is quite a long document, traditionally divided into 120 articles.7 4 5 6 7

As suggested by Zimin and Poliak, 187. Zimin and Poliak, 185, 187, 191; Vilenskii, 183–184; Vernadsky, Laws, 57. On Pskov generally, see Chapter 16, on Novgorod and Pskov. N.N. Murzakevich, Pskovskaia Sudnaia gramota, sostavlennaia na veche v 1467 g. Izdana po spisku, khraniashchemusia v biblioteke kn. M.S. Vorontsova, Odessa, 1847; 2nd ed. Pskovskaia Sudnaia gramota, Odessa, 1868. The division of the Charter into 120 articles goes back to Murzakevich, who also gave the Charter its current Russian name. The Charter refers to itself as gramota or pravda. Iu.G. Alekseev has proposed a different division, based on ­paleographic considerations, in which some articles have been split up and others merged; Iu.G. ­Alekseev, Pskovskaia Sudnaia gramota i ee vremia, Leningrad, 1980, 6–10. Text and comments

Town and Provincial Charters

179

Soon after its publication the Charter of Pskov was the subject of a number of studies by Russian legal and general historians, such as Kalachov, Ustrialov, and Engel’man.8 Later on in the 19th century Mrochek-Drozdovskii wrote about it and Vladimirskii-Budanov included it in the first volume of his wellknown anthology.9 Several authors have suggested that the available texts had themselves been copied from defective copies and represented in fact extracts from a longer original text.10 After 1917 the Charter of Pskov retained the interest of Soviet scholars. M.K. Rozhkova and I.D. Martysevich each devoted a special study to it,11 and a number of articles appeared before as well as after the Second World War.12 In 1980 Iu.G. Alekseev’s monograph on the Charter summarized the achievements of many years of scholarship and this work was followed in 1997 (on the occasion of the assumed sixth centenary of the Charter) by a new study of the same author.13 The language and terminology of the Charter of Pskov are unusually difficult and obscure in places and this explains why even Russian scholars occasionally found it necessary to offer a modern Russian translation. Martysevich

8

9

10

11 12

13

(by A.A. Zimin) in prp i, 282–383 and rz i, 321–389 (introduction by Iu.G. Alekseev, comments by T.E. Novitskaia, V.M. Kleandrova and H.A. Semiderkin). Text, translation into modern Russian, and comments by R.L. Khachaturov and Iu.V. Ospennikov, in PRoP ii, 18–64. N. Kalachov, “Pskovskaia sudnaia gramota”, Moskvitianin, No.2, Moskva, 1848, 165–178; F. Ustrialov, Issledovanie pskovskoi sudnoi gramoty 1467 g., Sankt-Peterburg, 1855; I. Engel’man, Sistematicheskoe izlozhenie grazhdanskikh zakonov, soderzhashchikhsia v pskovskoi sudnoi gramoty, Sankt-Peterburg, 1855. P.M. Mrochek-Drozdovskii, “Glavneishie pamiatniki russkogo prava epokhi mestnykh zakonov”, Iuridicheskii vestnik, T.16, No.5–6, 1884. M.F. Vladimirskii-Budanov, Khristomatiia po istorii russkago prava i, Kiev, 1899, 145–199. B.B. Kafengauz, “O proiskhozhdenii i sostave pskovskoi sudnoi gramoty”, Istoricheskie Zapiski, Vol.18 (1946), 295–326, at 296ff.; L.V. Cherepnin, Russkie feodal’nye arkhivy xiv– xxv vv., i, Moskva/Leningrad, 1948, 425; A.A. Zimin in prp ii, 285. M.K. Rozhkova, K voprosu o proiskhozhdenii i sostave pskovskoi sudnoi gramoty, Leningrad/Moskva, 1927; I.D. Martysevich, Pskovskaia sudnaia gramota, Moskva, 1951. Especially worth mentioning are B.B. Kafengauz, op. cit, and L.V. Cherepnin, who devoted Ch. 7 of Russkie feodal’nye arkhivy xiv–xv vekov, Ch. i, Moskva/Leningrad, 1948 (408–447), to the Charter of Pskov. This chapter is a slightly revised version of his article “K voprosu o sostave pskovskoi sudnoi gramoty”, Istoricheskie Zapiski, Vol.16 (1945), 203–231. Iu. G. Alekseev, Pskovskaia Sudnaia gramota. Tekst. Kommentarii, Issledovanie, Pskov, 1997 (this work has not been available to me). A recent survey of the historiography of the Charter by R.L. Khachaturov and Iu.V. Ospennikov in PRoP ii, 7–18.

180

chapter 8

republished a translation in his 1948 monograph, made and published earlier by Cherepnin and Iakovlev, and the annotated edition of the Pskov Charter in the second volume of the Monuments of Russian Law (prp) was accompanied by another translation.14 English translations have been produced by Vernadsky and Kaiser.15 The Enactment of the Charter of Pskov The available text (the Synodal Copy) of the Charter of Pskov is provided with a Preamble which states: This charter has been copied [vypisana] from the charter of the grand prince Aleksandr and the charter of prince Konstantin and all the records of Pskov’s ancient customs, with the blessing of its fathers, the priests of the five cathedral churches and the priest-monks and the deacons and the priests and all of God’s clergy by the whole of Pskov at the veche in the year 6905. Although this dating appears perfectly clear (6905 = a.d. 1396/1397), it is contradicted by the mention of the five cathedral churches (sobory). In 1397 there were only two cathedral districts in Pskov; the fifth sobor was founded in 1462 and a sixth in 1471. This would point to an enactment date between 1462 and 1471. Moreover, only one Pskov prince by the name of Constantine is known, a brother of the Moscow grand prince Vasilii Dmitrievich, who ruled in Pskov in the beginning of the 15th century.16 The identity of the grand prince Aleksandr, which is of immediate relevance in dating at least parts of the Charter, is much disputed.17 The main pretenders are Aleksandr Iaroslavich ‘Nevskii’ (1220–1263), who became grand prince 14

L.V. Cherepnin and A.I. Iakovlev, “Pskovskaia sudnaia gramota”, Istoricheskie Zapiski, Vol. 6 (1940), 235–299; prp ii, 302–324 (by A.A. Zimin). The Cherepnin-Iakovlev translation was taken over in the PRoP edition, mentioned above, 18–64. Another translation, by I.I. Polosin, in Uchenye Zapiski Moskovskogo gosudarstvennogo pedagogicheskogo instituta,­ t. lxv (1952), vyp.3. 15 Vernadsky, Laws, 61–82; Kaiser, Laws, 87–105. 16 The youngest son of Dmitrii Donskoi, he was born in 1389 and is mentioned in the Novg. Chr. in 1407 (18 years old) as prince of Pskov; the next year his brother grand prince Vasilii made him prince of Novgorod. The grand prince Aleksandr is identified by Alekseev as Aleksandr Nevskii, who was grand prince of Vladimir-Suzdal’ from 1252 until his death in 1263; Alekseev (1980), 17. 17 Aleksandr Nevskii is supported by Kalachov, Engel’man, Rozhkova and Kafengauz, Aleksandr Tverskoi by Murzakevich, Ustrialov, Nikitskii, D’iakonov, Martysevich, Iakovlev,

Town and Provincial Charters

181

of Vladimir-Suzdal’ in 1252, and Aleksandr Mikhailovich (1301–1339), who was grand prince of Tver’ and of Vladimir (1325–1327) and prince of Pskov from 1327–1330 and from 1332–1337.18 Aleksandr Nevskii never ruled in Pskov, but was regarded as Pskov’s liberator for having driven out the Germans in 1242. The main argument against Aleksandr of Tver’ appears to be that he lost the title of grand prince by accepting the princely dignity in Pskov.19 The arguments against Aleksandr Nevskii are (1) that at his time Pskov was still a borough (prigorod) of Novgorod, which would make it unlikely that a special charter would have been granted to Pskov,20 and (2) that the Moscow grand prince Ivan iii refused in 1474 (according to the Chronicle of Pskov) to confirm the charters presented to him by the ambassadors of Pskov because they had not been issued by the grand princes themselves; it would be difficult to accept, according to modern authors, that Ivan iii would deny the grand princely title to his direct paternal ancestor (in the 7th generation).21 For these reasons I am inclined to accept the stronger claim in favour of Aleksandr of Tver’. The prevailing view among modern commentators is that a first redaction of the Charter was completed in 1397 and that after several intermediate efforts at legislation the final redaction arose during the period 1462–1471.22 The wording of the Preamble suggests that the following text was the work of a private copyist and that the Preamble was originally not part of the Charter itself.23 A puzzling point in the Preamble is the relationship between the first few words (that the text was copied from various sources) and the final words (about the solemn acceptance procedure). The final words indicate that the Charter of Pskov, unlike other important monuments of medieval Russian law, constituted a single piece of legislation which was officially adopted at a certain moment. This moment was preceded by other relevant stages, such as the assumed adoption of earlier versions of the Charter, or parts thereof, the collection and editorial preparation of particular texts, including the copying of them, etc. The first words of the Preamble seem to point to some preparatory stage, the final ones to the official adoption of the last version, or at least the only available version.

18 19 20 21 22 23

Iushkov and Zimin. Iu.G. Alekseev, the most important modern authority on the Charter, regarded Aleksandr Nevskii as the more likely choice in 1980 (17) and 1984 (rz i, 344). According to A. Nikitskii, Ocherk vnutrennoi istorii Pskova, Sankt-Peterburg, 1873, 108. Alekseev (1980), 17. D’iakonov, 56; Martysevich, 36. Martysevich, 36; Zimin (in prp ii, 328). Alekseev (1980), 11; Alekseev (in rz i, 328–331); Zimin (in prp ii, 283–285). Cf. Kafengauz, 323–326; Cherepnin, Arkhivy i, 416–417.

182

chapter 8

In order to shed more light on the question of the final adoption of the Charter it will be necessary to look more closely at its sources and constituent components. The Sources for the Charter of Pskov The questionable reliability of the Preamble concerns not only the time of origin of the Charter of Pskov, but also its sources. The Preamble refers to two charters, of the princes Aleksandr and Konstantin, and to the ancient customs (poshliny) of Pskov. As nothing definite is known about any of these, the only way to proceed is by analyzing the text in order to establish its chronological structure. This procedure may lead to the identification of particular clusters of provisions which display a certain amount of internal consistency. Additionally, other provisions may serve as warning signals that there is a break in the structure of the text; this is for instance the case where the text repeats a previous provision, as happens occasionally, and particularly at art. 108. The latter provision has the appearance of a rule which concludes the entire text (“And if a rule is missing from this charter, the mayors will refer the matter to the Lord Pskov at the veche, in order that such a rule may be written.”)24 Accordingly, most commentators agree that the following provisions (arts. 109–120) constitute a separate block within the Charter. Some of them added that this final section is probably the most ancient part of the Charter.25 In many other instances there are considerable discrepancies between the various commentators in dividing up the Charter in coherent clusters. Some then go even further and attempt to ascribe a particular cluster to a specific source, such as the charters of the two princes mentioned in the Preamble. All that can be said with a reasonable degree of confidence is that the Charter of Pskov has been compiled on the basis of several earlier and shorter statutes. The principal subjects of these statutes were the law of procedure, inheritance, commercial law, criminal law, evidence, debts, the legal position of certain classes of peasants, and the rights and duties of certain officials. Moreover, these statutes occasionally overlapped, which explains a certain amount of duplication in the Charter. The compilation of the Charter proceeded in various stages of intermediate legislation; Iu.G. Alekseev believes that the first post was reached in 1397 with a Collection (Svod) which included the charter of prince Aleksandr (it is immaterial whether this was Nevskii or the prince of Tver’) 24 25

Lord Pskov (Gospodin Pskov) was the title used by the independent city-state of Pskov, following the example of Lord Novgorod. E.g. Kafengauz, 309; Cherepnin, Arkhivy i, 440. Zimin regards the question as unsolved, prp ii, 375–376.

Town and Provincial Charters

183

and a record of customary law; a second redaction of the Charter could have coincided with the rule of prince Konstantin in the beginning of the 15th century.26 The final version that has come down to us is unquestionably connected with the political developments after 1460, the gradual crumbling of Pskov’s independence vis-à-vis the rise of Moscow, and emerged in a process in which the various components were combined and edited, but not to such a degree that they became totally submerged in a uniform and systematized text.27 Fragments of the component parts remained recognizable. The question concerning sources and components can also be taken a step further: Where did the various components come from? Alekseev assumes that the overwhelming majority of the provisions found their origin in customary law,28 but that the persons who participated in the compilation of the text did also have some notion of the legal collections which were current at that time in Russia, such as the Merilo Pravednoe and the kormchie.29 The former contained, among other things, the complete texts of the Procheiron, the Ecloga, and the Court Law for the People (Zakon Sudnyi liudem). E.K. Piotrovskaia has argued recently that the Knigi Zakonnye should also be included in this category and that there are in particular a number of parallel provisions in the Byzantine Nomos Georgikos (Farmer’s Law).30 The similarities between the rp and the Pskov Charter have been noted by several scholars.31 They appear not so much as direct borrowings but rather, in the words of Cherepnin, in the similarity of terminology and in common legal institutions. Cherepnin advances the hypothesis that the Expanded Pravda was used as a model and a source in the course of the editorial process which 26

Various authors connect at least art. 107 with this second redaction, where it speaks of peniazi (penezi, from Middle-German penningen), a coinage introduced in Pskov in 1409 and abolished in 1420; cf. Zimin, prp i, 374; Alekseev, rz i, 331. 27 For various theories about the course of events which led to the final codification of the Charter of Pskov, see Nikitskii, 250; Cherepnin and Iakovlev, 255; P. Mrochek-Drozdovskii, “Pamiatniki russkogo prava vremeni mestnykh zakonov”, Uchenye Zapiski Imp. Mosk. Univ., Iur. Fak., No.20 (1902), 2. 28 A view which had already been expressed by Vlad.-Bud., Obzor, 120. 29 Alekseev, rz i, 331. 30 E.K. Piotrovskaia, “Pskovskaia sudnaia gramota i kompiliatsiia «Knigi Zakonnye»”, A.P. Pavlov (ed.), Rossiiskoe gosudarstvo v xiv–xvii vv. Sbornik statei, posviashchennyi 75-letiiu so dnia rozhdeniia Iu.G. Alekseeva, Sankt-Peterburg, 2002, 167–172. Piotrovskaia singles out twelve provisions (42–44, 51, 63, 75–76, 84–87) of the Pskov Charter; the similarities with the parallel provisions from the Knigi Zakonnye are in my view too general to be persuasive. 31 Cherepnin, Arkhivy i, 430–431; Zimin, prp ii, 283.

184

chapter 8

produced the Pskov Charter. A less ambitious view would be that the Charter of Pskov was shaped in a legal culture in which the concepts and terminology of the rp were still of central importance. This would explain the more limited but still discernible connections noted by Cherepnin between the Charter and certain treaties of Pskov with neighbouring princes, such as the treaty of 1440 with the Lithuanian grand prince Kazimir.32 Alekseev noted that many rules contained in the rp (that would be the Expanded Pravda) are absent in the Pskov Charter and concluded that with regard to such topics (e.g. various forms of homicide and personal injuries, protection of the prince’s property and his officials) the rp would have continued to represent the law in force.33 Art. 103 refers explicitly to “Pskov custom” (pskovskaia poshlina). The customs (poshliny) are mentioned in the Preamble, but again it is difficult to indicate their precise location in the Charter. Cherepnin lists a number of provisions in the first half of the Charter, which together constitute about one quarter of the entire text, and which he regards as a reflection of commercial customs prevailing in Pskov.34 According to Cherepnin, the Charter of Pskov was re-edited in Moscow during the years 1484–1486 (when Pskov had already lost its independence), as part of a larger codification programme which culminated in the enactment of the Code of 1497 of Ivan iii.35 In his opinion, the presently available single copy of the Charter was based on this Moscow revision. The Charter of Pskov is generally regarded as one of the principal sources of the Code of 1497 and its reworking in a direction desired by the Moscow government would then be part of the preparation for the latter Code. There are also numerous parallels between the Pskov Charter and the First Lithuanian Statute of 1529, explained by S.V. Vasil’ev in a special study as the reflection of a common legal tradition, going back to the era of the rp.36

The Charter of Novgorod

Although the law of medieval Novgorod is reasonably well documented, ­compared to the law of other Russian provinces, its main legislative text, the Charter of Novgorod, is easily overshadowed by the much longer and wider 32 Cherepnin, Arkhivy i, 432. The treaty text in gvnp, No.335, 321–322. 33 Alekseev, rz i, 324. 34 Cherepnin, Arkhivy i, 443. 35 Cherepnin, Arkhivy i, 432. 36 S.V. Vasil’ev, Pskovskaia Sudnaia gramota i I Litovskii Statut. Opyt sravnitel’nogo issledovaniia terminologii zakonodatel’nykh pamiatnikov, Moskva, 2011.

Town and Provincial Charters

185

ranging Charter of Pskov. The Charter of Novgorod (Novgorodskaia sudnaia gramota) is less than one third the length of the Pskov text and deals only with matters of court procedure; questions of substantive civil or criminal law are touched upon only tangentially. Moreover, the text is incomplete and breaks off at art. 42 (according to the traditional division into articles, based on Vladimirskii-Budanov’s edition of the text).37 The Charter of Novgorod has come down to us in a single copy only, as part of the same collection of documents which contains the Charter of Dvina Land and several of the principal treaties between Novgorod and Moscow.38 The literature on the Charter of Novgorod, in accordance with its more modest contents, is not as rich as that on the Charter of Pskov. There are a few 19th century studies,39 which are mostly out of date now, the main pre-­ revolutionary textbooks devoted only a few lines to it,40 and the main study from the Soviet period is by L.V. Cherepnin in his major work on medieval ­Russian archives.41 As always, the time and circumstances of the emergence of the Charter are of crucial importance in determining its general tenor. In this respect the ­Charter’s preamble is of particular interest. After reporting to the lords the grand princes, Grand Prince Ivan Vasil’evich of All Russia, and his son Grand Prince Ivan Ivanovich of All Russia, and with the blessing of the archbishop-elect of Novgorod the Great and of Pskov, the priest-monk Feofil, it has been decided by the mayors of Novgorod, and the commanders [tysiatskie] of Novgorod, and the boyars, and the burghers [zhit’i liudi], and the merchants, and the common people [chernye liudi], all five boroughs, and all Lord Novgorod the Great at the assembly [veche] in Iaroslav’s Court:

37

M.F. Vladimirskii-Budanov, Khristomatiia po istorii russkago prava i, Kiev, 1899, 200–217; also in prp ii, 210–242 (text, translation into modern Russian, notes and comments by A.A. Zimin); rz i, 300–320 (text, and comments by V.M. Kleandrova). The rz text, with comments by R.L. Khachaturov and Iu.V. Ospennikov, in PRoP ii, 75–85. English translation by Vernadsky, Laws, 83–92, and Kaiser, Laws, 79–85. 38 This collection was put together during the 1470’s in Moscow, during the reign of Ivan iii, and consisted of copies of originals which have now been lost. Cf. Cherepnin, Arkhivy i, 224–226. 39 Mentioned by Cherepnin, Arkhivy i, 373. 40 Vlad.-Bud., Obzor, 97; Sergeevich, Lektsii, 38–39. 41 Cherepnin, Arkhivy i, 373–396. An almost identical version of this chapter had appeared a year earlier in Istoricheskie Zapiski, Vol.21 (1947), 222–253 (“Sostav i proiskhozhdenie Novgorodskoi Sudnoi Gramoty”).

186

chapter 8

The preamble provides not only a thumb-nail sketch of the governmental and class structure of Novgorod at the time of its enactment, but also allows its dating with great precision. The peace treaty of Korostyn’, concluded between Novgorod and Ivan iii of Moscow on 11 August 1471, marked the final defeat and subjugation of Novgorod.42 The treaty stipulated that the grand prince would confirm the charter of Novgorod with his seal. The definitive shaping of the Charter of Novgorod, as transmitted in its only available copy, will therefore have taken place between 11 August and 15 December 1471, the latter being the ordination of Feofil (Theophilos) as archbishop of Novgorod.43 The 1471 version of the Charter was preceded by earlier ones. Sergeevich and Vladimirskii-Budanov refer loosely to the middle of the 15th century as the time of origin of the earlier version, but a more elaborate and closely argued theory has been developed by Cherepnin. According to him, the first version of the Charter of Novgorod goes back to as far as 1385 and was connected with an attempt, documented by the Novgorod Chronicle, to increase the judicial independence of Novgorod vis-à-vis the Moscow metropolitan and the prince.44 To this oldest layer of the Charter belong arts. 1–5, 8, 13–19, 22–24, 30–32, 35, and 39–41. It could be regarded, in Cherepnin’s view, as the judicial constitution of Novgorod and as such it had, beyond its purely legal effect, a certain symbolic significance. This would explain the emphasis in these provisions on the oath through the ritual of kissing the cross, as an act of allegiance to the legal order established by the city itself. Cherepnin added that there must have been at least two other occasions when the Charter of Novgorod was amended, before its final version of 1471. He suggested 1422 as one likely date. That year was preceded by stormy social upheavals in Novgorod; the amendments of 1422 would then represent an attempt to codify the compromises reached between the aristocracy and the common people. These amendments were reflected in the last sentence of art. 5 and in arts. 6–7, 10–12, 20–21, and 42. According to Cherepnin, the following occasion of major reforms was connected with certain events in 1446. These reforms would have affected arts. 9, 26, 28–29, 33–34, and 36–38. Zimin emphasized the hypothetical character of Cherepnin’s theory. He believed that for the time being it would be safer to regard the Novgorod Charter as a document from the middle of the 15th century, revised and put into its final 42

Text of the Korostyn’ treaty in gvnp, 45–51 (Nos.26–27) and in prp ii, 251–259. See also Cherepnin, Arkhivy i, 395. 43 Zimin in prp ii, 228. 44 Cherepnin, Arkhivy i, 378–379.

Town and Provincial Charters

187

form in 1471.45 It is uncontested anyway that the presently available copy of the Charter represents a version reworked in favour of the Moscow grand prince; by eliminating the advantageous position of the latter in a number of places one would receive an impression of what the original would have looked like. The immediate sources of the Charter of Novgorod were local customary law, previous decisions of the city assembly (veche), and the treaties concluded between Novgorod and its neighbours and trading partners.46 Many of the latter­are known; the customary law of Novgorod can only be hypothetically reconstructed on the basis of the Charter and a few similar sources.

Iaroslav’s Law on Bridges

In the Pushkin group of copies of the Expanded Pravda there is a short text added as an appendix (after art. 21) with the heading: “And this is Iaroslav’s law on bridges” (A se ustav Iaroslavl’ o mostekh). The same text appears at the same place, but without the heading, in the Karamzin group of copies.47 It is a short ordinance which apportions responsibility for the upkeep of the streets in Novgorod among the quarters and streets of Novgorod. Most (bridge in modern Russian) refers to the wooden planking used for paving streets in Novgorod, located in marshy terrain. The importance of the text is primarily in providing more detailed information on the urban organization and taxation of Novgorod. It refers to the church of Boris and Gleb, which was built in 1146, and also to the official known as tysiatskii (‘thousandman’), whose first appearance in Novgorod is in 1191. This has prompted commentators to look for a Novgorod prince Iaroslav in the period after 1191. The earliest is Iaroslav Vladimirovich, who ruled as prince of Novgorod from 1182 to 1199. His candidacy is supported by Iushkov and Tikhomirov.48 Rybakov49 and Cherepnin50 have argued in favour of Iaroslav Vsevolodovich, which would put the Law on Bridges 45 Zimin in prp ii, 211. 46 Vlad.-Bud., Obzor, 98. 47 Texts of the 15 variant copies in B.D. Grekov (ed.), Pravda Russkaia i, Moskva/Leningrad, 1940, 292, 316–317, 340–241, 361–352, 390. One text in prp i, 207, with comments by ­Zimin, 213–217. Three variant texts in rz i, 233–248, with introduction and commentary by V.L. Ianin. 48 Tikhomirov, Issledovanie, 145–146; S.V. Iushkov, Russkaia Pravda, Moskva, 1950, 102–103. 49 B.A. Rybakov, “Delenie Novgorodskoi zemli na sotni v xiii v.”, Istoricheskie Zapiski ii, 148–149. 50 Cherepnin, Arkhivy i, 254.

188

chapter 8

in the period of 1230–1235, and Zimin advocated an even later date, between 1238 and 1268, the reign of Iaroslav Iaroslavich as prince of Novgorod.51 A similar position is taken by V.L. Ianin, who narrowed the time the Law on Bridges was issued down to 1265–1267. If Ianin’s views, which are not only the most recent but also the most extensively argued, are followed, the original Law on Bridges constituted a listing of Novgorod districts and other parties, directing each one of them to look after the paving of certain streets. The other parties included the prince, the mayor (posadnik), the tysiatskii, and the German and Scandinavian (‘Gothic’) merchant compounds (see Chapter 16, on Novgorod). All texts include two insertions which were made soon after the original text was drafted. The first one lists certain rural districts, located upstream the Volkhov River. Their inhabitants were obliged, according to Ianin, to supply the timber required for the great bridge across the Volkhov, connecting the two sides of Novgorod. The second insertion listed the Novgorod ‘hundreds’ who were responsible for different sections of the bridge. Iaroslav’s Law on Bridges is not to be confused with the Urok mostnikov, the Bridge Builders’ Statute, included as the last article (art. 41) in the Short Pravda.

The Charters of Belo Ozero

Belo Ozero (also Belozero: White Lake) is the name of a principality and also a lake and a town in the North of Russia, halfway between Moscow and the White Sea. It was formed as an apanage principality in 1238 for Gleb, son of Vasil’ko Konstantinovich, prince of Rostov. His descendants ruled until 1386 when the principality was absorbed by the Moscow grand princes.52 Dmitrii Donskoi assigned it to his third son Andrei (*1382) in his will of 1389 and Andrei’s­son Mikhail was forced to return it to the Moscow grand prince in his will of 1486. In March 1488, Ivan iii, Grand Prince of Moscow, issued a charter setting out the main lines for the administration of the newly acquired 51 52

prp i, 213–214. In the will of Dmitrii Donskoi, the principality was designated as “a purchase of his grandfather” (kupleiu deda svoego). This would have been Ivan Kalita († 1341). At any rate, there is no doubt that Belozero, like most other Russian principalities in the 14th century, had gradually become more and more dependent on the Moscow princes. The wills of 1389 and 1486 in ddg, Nos.12 and 80. In a treaty between the grand prince and Mikhail Andreevich of 1482 (ddg, No.75) the latter’s rights to the Belo Ozero principality had already been limited to his own lifetime. Full story with A.V. Ekzempliarskii, Velikie i udel’nye kniaz’ia Severnoi Rusi v tatarskii period, Moskva, 1998 (orig. Sankt-Peterburg, 1899), 188–189.

Town and Provincial Charters

189

territory­(the Belozero Statutory Charter, Belozerskaia ustavnaia gramota). The charter has been transmitted in a single copy only.53 The majority of the charter’s provisions is devoted to the precise definition of fees due to the princely officials: periodic subsistence payments (korm), various court fees, fines, duties on goods, etc. The particular importance of Belo Ozero for the Moscow rulers was in its location on the crossroads of several northern trade routes. The closest parallel to the Belozero Charter is the Dvina Land Charter. There was greater emphasis on local independence in the latter; the prince’s representatives in Dvina Land were to be appointed from the local population. In Belozero the prince was free to appoint his own people, although their number was limited to one namestnik (governor, vice-gerent), or possibly two, two deputies (tiuny), and ten court agents (dovodchiki). Moreover, officials apparently elected or appointed locally (sotskie, hundredmen) were entrusted with the collection of various taxes. Also, the charter provided that the administration of justice by the namestniki or their deputies was only to take place with the participation of hundredmen and prominent citizens (‘good people’, dobrye liudi). The sources of the Charter of Belozero encompass the Dvina Land Charter (of 1398) and, more dimly, the Russkaia Pravda. The Charter itself is one of the principal sources for the Code (Sudebnik) of 1497. Art. 10 of the Charter (according to the accepted division into articles, based on VladimirskiiBudanov’s­edition of the text) offers a striking example of the continuous line of development from the Russkaia Pravda to the Sudebnik of 1497. The article deals with the ploughing over or cutting down of boundary marks. Similar provisions appear in the Short Version of the rp (art. 34), the Expanded Version (art. 72), the Dvina Land Charter (art. 4), and the Sudebnik of 1497 (art. 62). The Charter of Belozero offers a vivid impression of life in an outlying province of the emergent Russian empire, and its relations with the metropolitan government. Its general tenor was the decrease of local independence vis-àvis central government, although there was an obvious attempt to soften the 53

Text with notes and comments by A.A. Zimin & A.G. Poliak in prp iii, 170–174, 208–219 and in rz ii, 191–206 (comments by V.M. Kleandrova); the rz text has been taken over, together with comments by Iu.V. Ospennikov, in PRoP ii, 107–111. Also in asei iii, 38–41 (No.22) and M.F. Vladimirskii-Budanov, Khristomatiia po istorii russkago prava ii, 73–80. An English translation appeared as an appendix to H.W. Dewey, “The White Lake Charter: a Mediaeval Russian Administrative Statute”, Speculum xxxii (1957), 74–83. This translation has also been included in H.W. Dewey, Muscovite Judicial Texts 1488–1556, Michigan Slavic Materials, No.7, Ann Arbor, 1966, 1–6.

190

chapter 8

­impact of centralization by allotting a role to locally elected officials and making an effort to limit abuses by the officials of the Moscow prince. Additionally, there were a few provisions concerning criminal and matrimonial law. In the Dvina Land Charter there was less scope for interference by Moscow into local affairs.54 Nine years later, in 1497, the Charter of Belozero (Belozerskaia ustavnaia gramota) was followed by the Tax Charter of Belozero (Belozerskaia tamozhennaia gramota).55 The latter is also an early example of the policy of centralization and unification pursued by Moscow. The Tax Charter of Belozero is mainly concerned with various duties levied on commercial transactions concluded at the market of Belozero. By fixing rates and appointing officials and agents entrusted with the collection of fixed sums, the Tax Charter contributed to the further erosion of discretionary powers of local government.

The Metropolitan’s Justice

Although the Metropolitan’s Justice (Pravosudie Metropolich’e) had been mentioned and partially published in a 19th century publication,56 it was Iushkov who brought it to the attention of Russian historiography and to whom we owe its first complete publication in 1929.57 Its origins are nebulous, but on account of its contents and in particular its links with the Statute of Iaroslav it is best discussed in this chapter. 54

55

56 57

On the Belozero Statutory Charter, see also Iu.G. Alekseev, Sudebnik Ivana iii. Traditsiia i Reforma, Sankt-Peterburg, 2001, 102–128 (chapter on the Belozero Charter as one of the sources of the Code of 1497). Text, with comments by A.A. Zimin & A.G. Poliak, in prp iii, 175–178, 220–226; rz ii, 200–206, with comments by V.M. Kleandrova (rz text taken over in PRoP iii(1), 63–65); also in asei iii, 41–43 (No.23). A.V. Gorskii, K.N. Novostruev, Opisanie slavianskikh rukopisei Sinodal’noi biblioteki, otd.2, vyp.3, Moskva, 1862, 692–694. S.V. Iushkov, “Pravosudie mitropolich’e”, Letopis’ zaniatii Arkheograficheskoi komissii za 1927–1928 gody, Vol.39, vyp.2, Leningrad, 1929, 115–120; included in O.I. Chistiakov (ed.), S.V. Iushkov. Trudy vydaiushchikhsia iuristov, Moskva, 1989, 336–344. Later editions: M.N. Tikhomirov, “Pravosud’e mitropolich’e”, Arkheograficheskii ezhegodnik 1963, Moskva, 1964, 32–55 (text, facsimile of the relevant pages of the Tsvetnik manuscript, and translation into modern Russian); text also included in Tikhomirov’s Posobie, 127–129; prp iii, 426– 432 (text, modern Russian translation and comments by V.N. Avtokratov); asei iii, 22–25 (No.8); Ia.N. Shchapov, Drevnerusskie kniazheskie ustavy i tserkov’, 207–211; Kaiser, Laws, 107–110 (text and English translation).

Town and Provincial Charters

191

The Metropolitan’s Justice (pm) is a fairly short legal text, covering five manuscript pages in a collection of ecclesiastical texts, the Tsvetnik, dating from the early part of the 16th century. This is also the only extant copy of the text. It contains a number of short rules on a variety of legal subjects: criminal law, ecclesiastical law, procedure, divorce, and others. Its style (brief statements) and lack of system create an impression of archaism, but other features, especially its terminology, disprove an early origin.58 Beyond this point opinions of Russian scholars diverge. Grekov favoured a 13th century origin, while V.N. Avtokratov believed that the pm had been influenced by the Sudebnik of 1497 and thus was preceded by it.59 Neither is there much agreement about its geographical connections. Novgorod has been suggested, on account of the Novgorod origin of other Tsvetnik texts.60 Other authors have opted for a more central location in the Muscovy principality, or for Perm, which became a seat of a bishop in 1383. The text itself speaks repeatedly of the “bishop” and not of the “metropolitan” and this has led some commentators to the conclusion that the title of Metropolitan’s Justice does not belong to it and has been added at some later date.61 The pm has been influenced most clearly by the Church Statute of Iaroslav. A number of provisions have been taken over without amendments. There are also several borrowings from the Expanded Pravda. The few vague parallels with the Dvina Land Charter are insufficient to allow the conclusion that this Charter is also one of the sources of the pm. The grounds for regarding the Court Charter of Pskov in the same light are even weaker. The only thing to be said with safety is that there is a certain common element in the terminology of all these texts.62 Avtokratov has defended a very late origin for the pm, on the ground of a similarity of structure in a section of the Sudebnik of 1497 and a sequence of provisions in the pm.63 A comparison of the two passages shows that the similarity is quite vague. Moreover, any concrete connection between the two texts is improbable, because if one assumes that the pm would have preceded the Sudebnik, it would be implausible that such an obscure and amateurishly edited text could have been a significant source for such an important and fundamental legislative document as the Code of 1497; if on the other hand 58 Tikhomirov, op. cit., 42–44; Shchapov, op. cit., 208; prp iii, 438–440. 59 B.D. Grekov, Krest’iane na Rusi, book 2, Moskva, 1954, 96; Avtokratov, op. cit., 439–440. 60 Cherepnin, Arkhivy ii, 25–29. 61 Tikhomirov, Arkheograficheskii ezhegodnik 1963, 42. 62 Cherepnin, Arkhivy ii, 26–28. 63 Avtokratov, op. cit., 438–440.

192

chapter 8

the Sudebnik would have preceded the pm, then one may wonder why anyone would have gone to the trouble of compiling a small ‘home-made’ code, if the Sudebnik was at hand. Art. 12 of the pm refers directly to the Procheiron (Zakon gradskii), but as the latter Byzantine law probably had reached Russia at a quite early moment, this reference is of little help in dating the pm.64 A provisional conclusion concerning the date of the pm, on the basis of its general terminology, would indicate some time during the 15th or perhaps the late 14th century. The evidence available fits Tikhomirov’s hypothesis most conveniently (for the time being): that the text of the pm originated in the newly established eparchy of Perm, at that time a remote eastern outpost of the principality of Muscovy. The pm would then be a brief law code for a border region of Muscovy which was in fact ruled by the bishop of Perm. This would explain the general tenor of the document, which tends to strengthen the position of the bishop, but acknowledges the supreme power of the grand prince; it also explains certain archaisms in the text and other terminological peculiarities.65 An evaluation of the relevance of the pm within the framework of medieval Russian law is even more uncertain. If Tikhomirov’s hypothesis is accepted, the pm can be understood as an example of the haphazard and eclectic way in which different legal sources were combined into a small code by a provincial scribe; the pm was most likely the work of a poorly educated monk. In any other theory concerning the origin of the pm, its general character and its place in medieval Russian law become more difficult to define. The many uncertainties surrounding the pm also concern its authorship. Avtokratov has suggested that the text was compiled by the same person who was responsible for the compilation of the Tsvetnik collection in which the pm was included.66 Other possibilities that have been mentioned are circles close to the metropolitan or to the bishop of Perm. Identification of the author would also throw more light on the legal status of the text, or in other words, to what extent can it be regarded as the reflection of actual law and to whom did it apply. 64 “And punish the murderer according to the Procheiros Nomos …”. 65 Tikhomirov, Arkheograficheskii ezhegodnik 1963, 43. Tikhomirov’s position is shared by Ia.N. Shchapov in Drevnerusskie kniazheskie ustavy xi–xv vv., Moskva, 1976, 208. 66 Avtokratov, op. cit., 439–440.

chapter 9

The Code (Sudebnik) of Ivan iii of 1497

The Homicide Law of Vasilii ii the Blind

The Zapis’, chto tianet dushegub’stvom k Moskve (“Ordinance about the scope of Moscow jurisdiction in homicide cases”) is a short enactment of the Moscow grand prince, usually dated somewhere in the period 1456–1462.1 Recently an earlier date was advocated by Iu.G. Alekseev, who put the origin of the law at a moment not later than the early ‘40’s of the 15th century.2 The numbering of the articles was introduced by Vladimirskii-Budanov, who included the text in his anthology.3 It is also known by the name of Gubnaia zapis’; the verb gubit’ (“to ruin”, “to destroy”) is also present in the designation of the subject matter of the law, dushegubstvo (lit. “destruction of the soul”); this usually has the meaning of “homicide”, but occasionally also refers to violent death, suicide, robbery accompanied by violence, etc.4 In fact, the offences covered by the Zapis’ comprised more than just homicide, but apparently all serious ­offences (such as theft by a recidivist) where capital punishment was allowed, as ­opposed to offences punishable by a fine.5 Regardless of whether one follows the traditional or the more recent view concerning the date of the Zapis’, it would belong to the reign of Vasilii ii Temnyi (“the Blind”), Moscow grand prince from 1425–1462. The first article of the law summarizes its main features: centralization of homicide jurisdiction in the hands of the prince’s lieutenant (namestnik) in Moscow, the prominent position of the Grand Lieutenant (bolshoi namestnik), and its territorial applicability to the old Moscow principality. Most provisions reflected traditional arrangements, which could already be found in almost 1 See Cherepnin’s chapter on the Zapis’ and its connection with the Code of 1497 in Arkhivy ii, 348–359, esp. 352–353; Cherepnin’s view on the date is accepted by A.G. Poliak in his commentary to the Zapis’ in prp iii, 199–208, at 200–201 (text of the Zapis’ at 167–169). Text and comments (by V.M. Kleandrova) also in rz ii, 187–191 (taken over in PRoP iii(1), 62–63). Text and English translation in Kaiser, Laws, 114–116. 2 Iu.G. Alekseev, “«Zapis’ chto tianet dushegubstvom k Moskve»: Nekotorye voprosy datirovki i soderzhaniia”, A.A. Preobrazhenskii (ed.), Rossiiskoe samoderzhavie i biurokratiia. Sbornik statei v chest’ N.F. Demidovoi, Novosibirsk, 2000, 50–63 (not available to me). 3 M.F. Vladimirksii-Budanov, Khristomatiia po istorii russkago prava, ii, Kiev, 1915 (5th ed.), 68–72. 4 Cf. rz ii, 189. 5 This is made clear by the comments in prp iii and rz ii.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_010

194

chapter 9

identical formulas in treaties between the Moscow grand prince and apanage princes.6 Immunity charters, conferring jurisdiction on monasteries and secular lords, had already in most cases excepted homicide and other serious offences from such jurisdiction and reserved it to the prince. The Zapis’ narrowed the scope of the jurisdiction of others than the grand prince even more, although some of it remained in the hands of apanage princes. The last article (art. 10) allowed the homicide trial of a subject of the grand prince of Tver’ (who at the time was still an independent ruler) if such a person was caught red-handed, but referred all other cases of Tver’ subjects to the court of Tver’. The Grand Lieutenant was originally the namestnik of the Moscow grand prince for his own domain (udel), while his brothers had their own lieutenants for their domains.7 The precise listing of the districts in art. 1 demonstrates that the Zapis’ only concerned the old principality of Moscow (originally an apanage of the grand principality of Vladimir) and not the entire territory ruled in the middle of the 15th century by the Moscow grand prince, of which the Moscow principality was only a minor part (the principalities of Vladimir and Moscow had already been united in 1362). In the scholarly debate concerning the Zapis’ an ingenious hypothesis of Cherepnin has played a central role.8 Cherepnin noted the parallels between the Zapis’ and the last article (art. 100) of the Code of Ivan iv of 1550, devoted to the courts of apanage princes. Cherepnin had plausibly advocated (see the following sections) that the Code of 1497 should not be divided into 68 articles, but into 94 (or 95). This led him to the suggestion that the Code of 1497, of which the Code of 1550 was admittedly the successor and replacement, had originally consisted also of 100 articles and that the contents of the Zapis’ were the source of the last few missing provisions. No definitive answer has as yet been given, but the conclusion that the Zapis’ was one of the main forerunners of the Code of 1497 is inescapable. One of the general features they have in common is the prominence of the fiscal aspect of the administration of justice; the income derived from trials and its distribution were dominant factors in designing the court system.

6 Cf. A.A. Zimin, “Zapis’ o dushegubstve”, Vspomogatel’nye istoricheskie distsipliny xvii, Leningrad, 1985, 133–141. 7 Cf. ppr iii, 203–204; rz ii, 190. 8 See Cherepnin, Arkhivy ii, 348–359.

The Code of Ivan iii of 1497



195

The Code of Ivan iii: Introduction and Historiography

The full text of the Code (Sudebnik) of Ivan iii of 1497 was lost for several centuries, although its existence was known (at least theoretically), because Herberstein had included a Latin translation of the initial provisions (arts. 3–7, 9–16) of the Code in his famous memoirs. A Russian translation of Herberstein’s work appeared in 1866, but by that time the original text of the Sudebnik had been rediscovered by P. Stroev, who, together with K. Kalaidovich, published the text two years later, in 1819.9 The existence of the Code was known in Russia at least as early as the end of the 18th century, because of the references to it in chronicle literature.10

Sigismund von Herberstein

Sigismund von Herberstein was the third son of a member of the lower Austrian nobility in the Karst, in present-day Slovenia. He was born in 1486 and learned Slovenian in his native village. Of delicate health in his youth, he did not follow the customary military career, but received a good education in various religious schools and the University of Vienna. He then entered the service of the emperor Charles v and his brother Ferdinand, lord of the Austrian Habsburg possessions. After successfully carrying out several diplomatic missions in Western and Central Europe, he reached the high point of his career in two missions to the court of the grand prince of Moscow, Vasilii iii Ivanovich, in 1516–17 and 1526–1527. After two centuries of Tatar domination, Russia had almost become a white space on the map for the Western world. Herberstein’s mandate explicitly included the collection of all sorts of information on Russia, such as could be useful for the diplomatic and strategic policies of his masters. He executed his duties brilliantly and to the great satisfaction of his sovereigns. He was elevated to the dignity of Reichsfreiherr (baron of the Holy Roman Empire) and later on, in 1556, to the high positions of hereditary chamberlin (Erbkämmerer) of Austria and hereditary steward or seneschal (Erbtruchsess) of Karinthia. His marriage to Helena von Saurau remained childless. Herberstein died in Vienna in 1566. Due to his knowledge of Russian, Herberstein was able to acquire firsthand information on a great variety of subjects, such as the organization 9 10

K. Kalaidovich, P. Stroev, Zakony velikogo kniaz’ia Ioanna Vasil’evicha i Sudebnik tsaria i velikogo kniaz’ia Ioanna Vasil’evicha s dopolnitel’nymi ukazami, Moskva, 1819. Cf. Iu.G. Alekseev, Sudebnik Ivana iii. Traditsiia i reforma (hereafter: Alekseev, Sudebnik), Sankt-Peterburg, 2001, 28–29.

196

chapter 9

of the state of Muscovy, the mores of the Russian court, the relationship with the Russian Church, religious and moral beliefs, the situation in the provinces, education, family life, non-Russian ethnic groups, and law and courts as well. His reports are usually precise and fair, and, considering his background, not overly judgmental. He may deservedly be considered the patriarch of Russian studies in the West. The original reports to his masters have been lost, but he published a book-length Latin version of them in 1549 in Vienna (Rerum Moscoviticarum Commentarii); slightly amended versions were published in Basel in 1551 and 1556. He translated the work himself into German and this was published in Vienna in 1557 (Moscovia Hauptstat in Reissen). Numerous new editions (including one in St.Petersburg in 1795) and translations into various European languages have appeared over the years (see the extensive bibliography in N. Poe, Foreign Descriptions of Muscovy; An Analytic Bibliography of Primary and Secondary Sources, Columbus, Ohio, 1995, 61–65). The original Latin and German editions are available on Internet. After the Stroev edition, several others followed before 1917, the most influential among them the one by Vladimirskii-Budanov, who included the text of the Code in the second volume of his anthology on the history of Russian law.11 A cursory inspection of the text produces the impression that the Code was predominantly concerned with court procedure, criminal as well as civil, and that in this procedural aspect the emphasis was on the fees and other payments due to judges and all kinds of other court officials. In the words of Dewey: “ … the Sudebnik sounds disappointingly like a simple listing of court fees, or of payments to be made to victorious litigants.”12 This peculiarity of the Code would explain that many pre-1917 authors displayed only moderate interest in it.13 A more thorough investigation shows that underneath and beyond this financial pettifoggery the Code offered a broad view of the entire structure of the administration of justice at the time the Muscovy state was consolidating. After 1917 the first major study of the Code of 1497 was by Iushkov, in 1926.14 In 1951 Cherepnin devoted a long chapter to the same subject in his 11

M.F. Vladimirskii-Budanov, Khristomatiia po istorii russkago prava, vyp.2, Kiev, 1915 (5th ed.), 82–108. 12 H. Dewey, “The 1497 Sudebnik – Muscovite Russia’s First National Law Code”, American Slavic & East European Review, Vol. 15 (1956), 325–338, at 325. 13 Vlad.-Bud., Obzor, 227–229; Sergeevich, Drevnosti, dealt extensively with the Russkaia Pravda, but mentioned the Code of 1497 only in passing. 14 Published in the Uchenye Zapiski (T.V, Part 3, 1–46) of Saratov University and reprinted in O.I. Chistiakov (ed.), Serafim Vladimirovich Iushkov. Trudy vydaiushchikhsia iuristov, Moskva, 1989, 370–443.

The Code of Ivan iii of 1497

197

work on ­Russian medieval archives, which remained for a long time the most ­authoritative investigation of the Code.15 Cherepnin also wrote the comments to the 1497 Code in the 1952 Academy of Sciences edition of the Sudebniki of 1497, 1550 and 1589.16 Less well known is S.I. Shtamm’s short monograph of 1955.17 The Code of 1497 was also included in the major collections of Russian legislation, the “Monuments of Russian Law” (prp),18 the “Russian Legislation from the 10th to the 20th Century” (rz),19 and the “Monuments of Russian Law in 35 Volumes” (PRoP).20 Building to a considerable extent on the work of Iushkov and Cherepnin, Iu.G. Alekseev’s monograph on the Sudebnik of 1497 represents the most important contribution to Russian scholarship on this document from the postSoviet period.21 In his historiographical survey Alekseev attempted to correct some of the most egregious examples of ideological posturing by his Soviet predecessors. Three years later a collective memorial volume, dedicated to the 5th centenary of the Code, was produced by a group of St.Petersburg historians.22 Among the works by Western authors, the studies by Szeftel and Dewey deserve to be mentioned.23 Szeftel also published a French translation of the Code.24 An English translation was included by Dewey in his Muscovite Judicial Texts.25 15 Cherepnin, Arkhivy ii, 253–385. 16 B.D. Grekov (ed.), Sudebniki xv–xvi vekov, Moskva/Leningrad, 1952. 17 S.I. Shtamm, Sudebnik 1497 g., Moskva, 1955. 18 prp iii, 341–416, including a translation into modern Russian by Cherepnin and comments by A.G. Poliak. 19 rz ii, 54–97, with comments by S.I. Shtamm. 20 PRoP iii(1), 18–25, with historiographical introduction by I.V. Popriadukhina, 6–18. 21 Iu. G. Alekseev, Sudebnik Ivana iii. Traditsiia i reforma, Sankt-Peterburg, 2001 (Alekseev, Sudebnik). This work also contains a review of the historiography of the Code of 1497, which updated Cherepnin’s review of half a century earlier. In a lengthy review of Alekseev’s study, S.N. Kisterev, critical on many points of detail, hailed it as a milestone in the study of the Code and of Ivan iii’s policies; S.N. Kisterev, “Issledovanie Iu.G. Alekseeva o Sudebnike 1497 g.”, S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, vyp.6, Moskva, 2002, 235–269. 22 I.Ia. Froianov (ed.), Sudebnik Ivana iii. Stanovlenie samoderzhavnogo gosudarstva na Rusi, Sankt-Peterburg, 2004. 23 M. Szeftel, “The Sudebnik of 1497: Paleographical Analysis, Composition and Sources”, M. Halle (ed.), For Roman Jakobson, The Hague, 1956, 547–552. H. Dewey, The Sudebnik of 1497, Ann Arbor, 1955 (unpublished doct. diss.); id., “The 1497 Sudebnik – Muscovite Russia’s First National Law Code”, American Slavic & East European Review, Vol. 15 (1956), 325–338. 24 M. Szeftel, “Le Justicier (Sudebnik) du Tsar Ivan iii”, Revue historique de droit français et étranger 34 (1956), 530–568. The Introduction reproduced Szeftel’s paper of the same year in the Jakobson Festschrift. 25 M. Dewey (ed.), Muscovite Judicial Texts 1488–1556. Michigan Slavic Materials, No.7 (Ann Arbor), 1966, 7–21.

198

chapter 9

The manuscript discovered by Stroev is still the only one extant, but, as mentioned above, there can be no doubt that the Code of 1497 represented a major legislative event. Various theories concerning the circumstances of its origin have been advanced, but no consensus has as yet emerged. For a long time a prominent official, the d’iak (clerk) Vladimir Gusev was considered the principal author, but this view has been abandoned now, thanks to Cherepnin’s persuasive refutation. Cherepnin also advocated an early date for the origin of the present copy, a few years after 1497, and this was generally accepted until A.I. Pliguzov more recently made a strong case for a much later origin, around the middle of the 16th century.26

The Numbering of the Articles of the Code

In the single available manuscript copy of the Code the separate provisions have not been numbered, neither is their separateness indicated in another way, except by the use of red ink for the first letter of certain sentences and also for certain words. The matter of numbering is important, as pointed out in connection with other ancient legislative sources, because it helps in clarifying the structure of a legislative text and the relationships between its constituent parts. All editions and translations follow the numbering system adopted by Vladimirskii-Budanov in the first edition (of 1873) of his anthology. In doing so, Vladimirskii-Budanov asserted that he had merely added numbers to the provisions he found in the Stroev edition. His system was not based on an inspection of the one and only copy and it is uncontested that it was to some extent arbitrary and unfortunate, leading to separation of what should have remained united and the inverse.27 Cherepnin, whose study also involved the perusal of the manuscript text, had suggested that the use of red ink in the text should be the main guide for dividing up the Code into articles.28 Many sentences in the Code start with the red letter A (“And” or “And if”); also certain words have been written  in red ink and these words constitute headings for the following 26

A.I. Pliguzov, “O sud’be spiskov Sudebnika i dukhovnoi gramoty Ivana iii”, Sovetskie ­arkhivy, 1989, No.6, 44–51. See also Alekseev, Sudebnik, 75. 27 For example, the “Decree concerning bailiffs” occurs in the middle of art. 31, while it actually is the beginning of a new fragment, running up to art. 37. Art. 30 and the first part of art. 31 would then constitute the “Decree on riding-distance fees”. 28 Cherepnin, Arkhivy ii, 278–289.

The Code of Ivan iii of 1497

199

sentences.29 By applying this method Cherepnin arrived at a total number of 94 provisions.30 In a few instances provisions in the standard edition were joined into a single provision, but in most of Cherepnin’s proposals they were split up. Pliguzov’s recent argument in favour of a comparatively late origin of the extant manuscript text robs the latter of some of its authority and consequently undermines Cherepnin’s approach to some extent. However, as observed by Alekseev, the system of marking initials in red ink proved to be quite stable over time in the case of the numerous copies of the Expanded Pravda, and this might also apply to the Code of 1497.31 In any case, the numbering system of Vladimirskii-Budanov, with all necessary caveats, remains the one that is still followed by most authors.

The Contents of the Code

Because of the single copy, there is no codicological history of the Code of 1497 which could help in distinguishing the various components of the Code. Everything here will have to be based on what this copy yields on the Code’s contents. This applies first of all to observable coherence of a particular block of provisions, and then also to the use of red ink for headings, by which obviously the beginning of a new theme is indicated. The two principal commentators, Cherepnin and Alekseev, came to more or less the same conclusion in their investigation of the structure of the Code.32 Two main segments (arts. 1–25 and arts. 37–45) deal respectively with higher courts (of boyars and okol’nichie33) and with lower courts (of urban and rural lieutenants, namestniki and volosteli). The two segments are separated by a relatively coherent set of rules (arts. 30–36), concerning the duties and remuneration of different court officials. Art. 30 bears the title “Decree on travelling [expenses]” (Ukaz o ezdu). In the middle of art. 31 there is a new heading 29

Except in one case, in art. 19, where the words Ino ta gramota (“Then such a charter”) are written in red ink and constitute the beginning of the second sentence of the provision. 30 Cherepnin also advanced the hypothesis that the Code of 1497 originally had 100 articles, like the Code of 1550, and that the omitted six provisions dealt with the matter previously regulated in the Homicide Law of Vasilii ii the Blind (see the first section of this chapter). 31 Alekseev, Sudebnik, 158–159; starting from this Chapter (5), Alekseev used the numbering proposed by Cherepnin, putting the numbers in square brackets. 32 Cherepnin, Arkhivy ii, 359–376; Alekseev, Sudebnik, 157–179. 33 Okol’nichie (derived from okolo, “around”) were originally officials belonging to the inner circle of the ruler; at the time of the Code they were part of the serving aristocracy, ranking immediately after the boyars. Cf. Pushkarev, 74.

200

chapter 9

“Decree on bailiffs” (O nedel’shchikakh ukaz).34 Arts. 46–64 treat of a variety of subjects of a civil law nature. Arts. 65–68 cover miscellaneous additions. The main segments themselves are interrupted by shorter units, sometimes single provisions, sometimes small blocks of rules, which seem to have found their place through a process of association in the minds of the drafters of the Code. This can be demonstrated by considering the sequence of provisions in the beginning of the Code. First there is a coherent body of provisions­ defining the fees to be paid to court officials in a variety of situations. Arts. 7–8 deal with lawsuits concerning theft, homicide, arson, robbery, and other crimes, and the fees connected with those suits. Then art. 9, almost as an aside, decrees that such criminals should be put to death. This is followed by a redletter heading “On thieves”; arts. 10–14 are then devoted to thefts and the way the courts should deal with them, as if the drafters, being on the subject of theft at arts. 7–8, felt this was a convenient place to say a few more words about it. In art. 15 the main line of the text is then taken up again with more rules about court fees. The last part of the Code contains its most famous provision, art. 57, “On the Peasant Quitting-Time” (O khristianskom [= krest’ianskom] otkaze), which allowed the peasants to move to another village or district only during one week before and after St. George’s Day (Iur’ev den’, 26 November).

General Historical Background and Character of the Code

Some knowledge of the historical background of the Code of 1497 can obviously be helpful in understanding obscure aspects of individual provisions. The grand picture was determined, without question, by the achievement of complete supremacy in Russia by the Moscow grand princes.35 The two major contenders, Novgorod and the princes of Tver’, had gradually been reduced to helpless victims of Moscow’s ambitions and were ultimately incorporated into the Muscovy state, Novgorod in 1477 and Tver’ in 1485. Only the more marginal principalities of Pskov and Riazan’ remained nominally independent for a few more years (Pskov until 1510, Riazan’ until 1521). The territory ruled by the Moscow grand prince had increased enormously since its modest beginnings 150 years ago under Ivan Kalita. As a result, a new political reality had arisen in Russia, which called also for new legal arrangements. The territorial 34 35

An eloquent example of the defective numeration of Vladimirskii-Budanov. The decisive years of 1479–1485 are the subject of a special study by Iu.G. Alekseev, ­Osvobozhdenie Rusi ot ordynskogo iga, Leningrad, 1989.

The Code of Ivan iii of 1497

201

a­ pplicability of the Code is defined in considerable detail in a list of 53 towns and the corresponding travelling expenses (the ‘riding-fee’, ezd) to which bailiffs riding on official business were entitled. But the conditions under which the Code of 1497 came into being can also be considered from a lower perspective, focusing on the politico-legal circumstances of its adoption in 1497. For a long time this question had been bedevilled by the figure of Vladimir Gusev. He was introduced as the actual author of the Code by Karamzin on the basis of a mistaken reading from the so-called Typographical Chronicle.36 The same chronicle reported that Gusev was executed in the same year the Code was published, in connection with his involvement in a conspiracy against Ivan iii’s grandson Dmitrii Ivanovich. The connection between the two events remained in the dark.37 Gusev’s posthumous enjoyment of the authorship of the Code of 1497 only came to an end after Ia.S. Lur’e and then Cherepnin had demonstrated that Karamzin had misunderstood the chronicle text.38 As an alternative explanation the prominent involvement of the Patrikeev princes,39 Ivan Iur’evich and his son Vasilii Ivanovich, was tentatively suggested by Cherepnin, on account of them having been the chief judicial officers of Ivan iii in the 1495–1499 period.40 The significance of this connection would have been that the Patrikeevs, representing the high Moscow nobility which had thrown in its lot with the grand prince in his struggle for supremacy in ­Russia, would have been inclined to support centralizing tendencies through legislative reforms. Gusev, on the other hand, belonged to the old nobility of the independent principalities, which would not be in favour of such centralization. Alekseev rejected Cherepnin’s hypotheses as lacking any solid foundation.41 The Code of 1497 was seen by Alekseev as the capping-stone of Ivan iii’s 36

Karamzin, T.vi, col.219. The Typographical Chronicle in psrl, Vol. xxiv, Petrograd, 1921, the relevant sentence on p. 213. 37 A full exposition of the entire story in Cherepnin, Arkhivy ii, 255–256, 289–303. 38 Ia.S. Lur’e, “Iz istorii politicheskoi bor’by pri Ivane iii”, Uchenye Zapiski lgu, seriia istoricheskikh nauk, vyp.10 (1940), 90–91. Cherepnin, Arkhivy ii, 255–256, 289–303. 39 The Patrikeev princes, descendants of a Lithuanian Gediminid prince who had entered the service of the Russian grand princes, had for several generations occupied high offices in Moscow; Ivan Iur’evich was the son of a sister of Vasilii ii the Blind, and thus Ivan iii’s first cousin. 40 Cherepnin, Arkhivy ii, 306–320. Other persons closely involved in the drafting of the Code, according to Cherepnin, were the d’iaki Vasilii Tret’iak Dolmatov and Fedor Kuritsyn, judicial officers of Ivan iii, belonging to the circle of the Patrikeev princes. 41 Alekseev, Sudebnik, 59–61.

202

chapter 9

l­egislative reforms, rather than the product of relatively ephemeral political forces. The Code was an expression, in the view of Alekseev, of a new political concept of Russia which had gained the ascendancy through the rule of Ivan iii. In proclaiming a return to the “old order” (starina) of the founder of the Kievan realm, St. Vladimir, the ‘aberrations’ of the era of the independent principalities were to be corrected through the establishment of a unified Russian state. The Code streamlined the court system of this new creation, but it did so by retaining much of the law of the previous period.42 The sub-title of Alekseev’s work is “Tradition and Reform”. The main foreign commentators, Szeftel and Dewey, were in agreement about centralization being the dominant characteristic of the Sudebnik. “It is a tool of centralization”, writes Szeftel, “which was a necessary consequence of the territorial and political centralization of Great-Russia.”43 Dewey described the establishment of uniform and orderly procedure as the main task of the Sudebnik.44 Without denying the essentially centralizing thrust of the Code, Cherepnin painted a more complex picture of its basic purposes. The Code did undoubtedly emphasize the influence and the jurisdiction of Moscow vis-à-vis the provinces and the subordinate towns. This showed, for instance, in the various provisions obliging judges to refer cases to the court of the grand prince or of a higher boyar (e.g. arts. 20 and 43). But there was another tendency as well, according to Cherepnin, mitigating the centralization effort: the maintenance of a certain equilibrium between the powers of the grand prince and those of the higher nobility. This tendency was reflected in a number of provisions which recognized the equality between the grand prince’s court and the courts of high boyars and which distinguished between various levels of courts.45 In conclusion, Dewey’s down-to-earth evaluation of the Code is worth quoting: “ … the Grand Prince wanted his judicial system set on a sound basis, with uniform judicial fees and prohibition of judicial corruption as all-important steps, initial measures without which laws of substantive character could only fail.”46 42 43 44

See esp. Ch.iv (129–156) of Alekseev’s study. Szeftel, “Le Justicier (Sudebnik) du Tsar Ivan iii”, quoted above, 550. Dewey, “The 1497 Sudebnik – Muscovite Russia’s First National Law Code”, quoted above, 337. 45 This argument is developed in §8 of Cherepnin’s chapter on the Code, Arkhivy ii, 320–348. It is entitled, in typical Soviet jargon, “The Sudebnik as a monument of class justice”. 46 Dewey, op.cit., 337.

The Code of Ivan iii of 1497



203

The Sources for the Code of 1497

The most easily identifiable sources of the Code are two decrees devoted to the courts of boyars and okol’nichie and resp. the lower lieutenants’ courts. The existence of these decrees can be accepted on the basis of the text of the Code. The solemn title of the Code is: “In the year 7006 [1497] in the month of September, the Grand Prince Ivan Vasil’evich of All Russia decreed with his children and his boyars about courts, how boyars and okol’nichie [were to] judge.” And art. 37 is preceded by the heading: “Decree to the lieutenants about the town court”. Most commentators agree that there were therefore originally two enactments. A.G. Poliak repeats Cherepnin’s apposite observation that the last words of the Preamble, “how boyars and okol’nichie [are] to judge”, written in black ink, do not actually belong to the original Preamble, which was written in red ink, but are in fact the beginning of the first section of the Code.47 A first question concerns the relationship of the two sections. The existence of a close relationship is obvious, because there is a number of parallel, almost identical provisions (arts. 8 and 39; 15, 22 and 40; 17, 18 and 42; and others). As the provisions which can be regarded as belonging to the second part (concerning lower courts) are generally less detailed, Cherepnin has argued that the decree on lower courts probably preceded its counterpart on boyars’ courts and that the former was used in drawing up the latter.48 The opposite position would raise questions which would be difficult to answer.49 It is equally obvious that the original decrees were subject to a thorough editing process in the drafting of the Sudebnik and that they were not simply incorporated without alterations into the Code. The point has been made above that the editing process in most medieval legislation was often more associative than rational-logical. Some of the meandering insertions have the look of having been derived from separate enactments, but others may have been the product of the drafters’ creative imagination. Alekseev, on the other hand, stressed the differences between the two segments dealing with courts in the Sudebnik, and suggested that the two were drafted simultaneously in the immediate preparation of the Code.50 This agrees with Alekseev’s general penchant for regarding the Code first and ­foremost as a coherent and comprehensive effort to create a uniform legal and judicial 47 A.G. Poliak in prp iii, 374. 48 Cherepnin, Arkhivy ii, 362–363. 49 Such as: Why leave all the detail of the older part, considered unnecessary for including in the younger part, intact when the final combined text of the two parts was being drawn up? 50 Alekseev, Sudebnik, 321–323.

204

chapter 9

s­ ystem for the emerging state of Muscovy and for dismissing the importance of individual enactments as building-blocks for the Code. Without denying the fundamental significance of the Code and recognizing the major innovations it introduced, one cannot disregard its often ramshackle and disorganized structure. Even if one takes on board Alekseev’s injunction concerning the different approach to drafting of medieval legislators, the overwhelming impression produced by the Code is that it was cobbled together by collecting the most important existing laws concerning the administration of justice and eliminating subsequently the most glaring contradictions and abolishing rules that did not fit into the overall concept of the desired new system. Another, more general observation by Alekseev concerning the drafting process of the Sudebnik is perhaps more enlightening. In a special chapter on “The Prince’s Law and Custom” (Kniazhoi ustav i obychnoe pravo),51 Alekseev argued that the usual juxtaposition of statute and customary law had been exaggerated, at least in the case of the Code of 1497. He was more inclined to view medieval law in such a setting as a continuum, from which occasionally, for whatever reason, bits might be lifted out and put down in writing. The Code of 1497 was therefore based on and rooted in Russian customary law, the same law that had been expressed in other legislative acts of the period. Alekseev did not pay much attention to enactments that others proposed as “sources” of the Sudebnik; in his view, presumably, they all had their source in contemporary custom. Although this is a useful and productive insight, it still remains obvious that the two segments discussed above must have had their origin in earlier legislation. Similarly, the insertions of arts. 30–36, between the two main segments, are clearly entitled: “Decree on travelling [expenses]” and “Decree on bailiffs”, suggesting that they were based on specific legislation. Older authors have looked at the ustavnye gramoty (local government charters) as important sources for the Code of 1497.52 Cherepnin on the other hand proposed a different approach to the matter of the relationship between the ustavnye gramoty and the Code. He suggested that his presumed decree on the lieutenants’ court was not only the source for arts. 37–44 of the Code, but also for the local government charters.53 51 Alekseev, Sudebnik, 77–101. 52 Vlad.-Bud., Obzor, 228, regarded them as the chief source of the Code; similarly, Szeftel, op.cit., 551. 53 Cherepnin, Arkhivy ii, 379. The decree on the lieutenants’ courts is dated provisionally in 1483–1484 by him (ibidem and 367) and constituted the main foundation of the reform

The Code of Ivan iii of 1497

205

A definitive answer is difficult to give, because of the incertitude surrounding the chronology of the various enactments concerned. The essential point remains that many of the Code’s provisions constituted an elaboration of previous Muscovy law, whether expressed in specific statutes or forming part of the body of customary law. Among the other possible sources for the Code of 1497 most authors mention the Russkaia Pravda and the Pskov Court Charter.54 Art. 54 of the Expanded Pravda and art. 55 of the Code both deal with the case of a merchant who has become indebted by having lost his merchandise through shipwreck, robbery or a similar disaster; art. 110 of the Expanded Pravda and art. 66 of the Code both list three similar grounds for becoming a slave. The situations described in these provisions display great similarity, but the wording of the two sources is so different that direct borrowing looks very improbable. With regard to the Pskov Charter the matter is more obvious; several provisions of both texts are partly identical (i.e. the same, word for word). So while the drafters of the Code of 1497 probably did not have a text of the Russkaia Pravda on their writing table, the Pskov Court Charter must have been at hand.

Legal Significance of the Code of 1497

Notwithstanding its limited scope and its focus on courts and procedure, the Sudebnik of 1497 may still be considered the legislative foundation stone of the Muscovy principality. It stands at the beginning of a continuous line of development, running through more than four centuries, until the wholesale abolition of all pre-revolutionary law by the Bolshevik government in 1918.

54

of land ownership. Entrusting the administration of justice in the regions to appointed officials and defining their fee income from such activities were initial steps in the gradual elimination of the kormlenie system, completed under Ivan iv Groznyi in 1555–1556. The Belo Ozero charter (Belozerskaia ustavnaia gramota) of 1488 was probably accompanied by similar local government charters for other regions (now lost) and fitted into the same grand scheme of Ivan iii, as well as the large-scale confiscations of boyar lands and the forced relocation of their owners in the recently acquired provinces of Tver’ and Novgorod. E.g. Vlad.-Bud., Obzor, 228–229; Cherepnin, Arkhivy ii, 371–373; Szeftel, op.cit., 551. The pre-revolutionary literature concerning the sources of the Code of 1497 is discussed in S.I. Shtamm, “Russkaia istoriografiia xix veka ob istochnikakh Sudebnika 1497 i 1550 godov”, E.A. Skripilev (ed.), Istochnikovedenie istorii gosudarstva i prava dorevoliutsionnoi Rossii, Irkutsk, 1983, 102–117.

206

chapter 9

As the Kievan realm started to fragment, its original legal unity, manifested before all by the Russkaia Pravda and the church statutes of St. Vladimir and his son Iaroslav the Wise, was weakened by the emergence of law of only regional applicability. Much of the law of this period has been lost, except that from the westernmost regions of Novgorod, Pskov and Smolensk, and also from Volynia before the latter province was incorporated into the Polish-Lithuanian state, together with large swaths of present-day Ukraine and Western Russia. Concerning the once independent principalities of Tver’ and Riazan’ there is some diffuse information about them having had statutes of their own.55 On the other hand, regional differences in legal regimes were probably small. This is suggested by what has been made available by the sources, particularly by medieval charters from various parts of Russia (even those under PolishLithuanian­control), as well as, indirectly, by the smooth transition to a unified legal system once Moscow had imposed its rule. There was of course Moscow law before the Code of 1497; the Homicide Law of Vasilii ii the Blind would be the most obvious example. But also the charters of Dvina Land, of Belo Ozero, and even the Court Charter of Pskov, were in fact issued by the Moscow grand prince. But none of these enjoyed the universal applicability in the entire principality of Muscovy, as it had taken shape by the end of the 15th century, that could be claimed for the Sudebnik of 1497. The latter remained in force until it was replaced by Ivan iv’s Code of 1550, which was then replaced by the Sobornoe Ulozhenie of tsar Aleksei in 1649. The Ulozhenie of 1649 was the starting-point of a new period of legislative development, reaching its completion in the consolidating codification of Count Speranskii in the middle of the 19th century. For these reasons, it is worth considering the relationship of the Code of 1497 and its successors and predecessors. The relationship between the Codes of 1497 and 1550 is the easiest to define. The Code of Ivan iv was the regular successor of the Code of his grandfather, Ivan iii. The Code of 1497 was far and away the most important source for the Code of 1550. The overwhelming majority of the 1497 Code’s provisions were incorporated into the 1550 Code, with numerous amendments and additions.56 During the 1497–1550 period the Code of 1497 was often explicitly referred to in legal documents.57 The Code of 1497 put an end to the legal fragmentation of Russia. 55 56 57

Based on a communication by Tatishchev; cf. rz ii, 48. Cf. B.D. Grekov (ed.), Sudebniki xv–xvi vekov, Moskva/Leningrad, 1952, 192 (this part of the commentary was written by B.A. Romanov). I.I. Smirnov gave a list of 15 instances in I.I. Smirnov, “Sudebnik 1550 g.”, Istoricheskie Z ­ apiski, Vol. xxiv (1947), at 273–274.

The Code of Ivan iii of 1497

207

The relationship between the Code of 1497 and its predecessors, as sources of law, is more difficult to determine. The Code itself refers twice to local government charters, both times in the segment dealing with lower courts (arts. 38 and 44).58 The implied meaning is that the validity of these charters had not been affected by the adoption of the Code. The Code was superimposed on the existing law of Muscovy and superseded only what was contrary to it. The concept of a hierarchy of laws is a modern one and it operates only where there is a clear understanding of a well-regulated system of adopting legal rules. Where there is no separation of powers (as in Muscovy Russia or in modern authoritarian or totalitarian systems), all legal rules ultimately emanate from the same authority and remain in force until the ruling powers decide otherwise. In an individual case one has to look for an applicable rule; if there is more than one, the most recent rule applies, no matter which public authority enunciated it. The ruler, or some of his prominent representatives, could also bypass an existing rule and thereby amend the legal system. This is not the same as arbitrariness, where decisions of empowered agencies are in principle unpredictable. A somewhat similar view had already been expressed by Sergeevich, when he wrote: “The Muscovy state was not administered by laws, in the present meaning of this word, but by discretion [usmotrenie]; ordinances and laws of the sovereign did not precede practice, but the other way round.”59 Finally, there is the question of the relationship between the legislation of the Moscow prince, culminating in this era in the Sudebnik of 1497, and the legal sphere dominated by church jurisdiction. This jurisdiction, as explained in Chapter 21 (on the Church and Monasteries), concerned certain types of cases and disputes and, additionally, an entire class of persons who were (almost) completely and exclusively subject to church jurisdiction. The latter category is explicitly recognized in art. 59 of the Code: members of the clergy and certain other categories of church dependents were to be judged by the bishop 58

Most authors understand gramoty in these provisions as ustavnye gramoty (local government charters); cf. Cherepnin, Arkhivy ii, 373–374; D’iakonov, Ocherki, 217; Vlad.-Bud., Obzor, 228; Szeftel, op.cit., 551. 59 Sergeevich, Lektsii, 27; in similar vein Dewey, “The 1497 Sudebnik – Muscovite Russia’s First National Law Code”, American Slavic & East European Review, Vol. 15 (1956), 325–338, at 337. See also a more recent discussion of the relationship between customary and statute law (in connection with the Code of Ivan iii) in Ocherki feodal’noi Rossii (OfR) between S.N. Kisterev (“Velikokniazheskii Sudebnik 1497 g. i sudebnaia praktika pervoi poloviny xvi v.”, OfR 11, Moskva, 2007, 440–461) and K.N. Petrov (“Imel li Sudebnik 1497 g. znachenie zakona v ego sovremennom ponimanii?”, OfR 12, Moskva, 2008, 365–382) and Kisterev’s reaction (“Zakon i poriadok v srednevekovoi Rusi (otvet K.V. Petrovu)”, OfR 12, 383–406).

208

chapter 9

or his judge. Efforts by the Moscow prince to make inroads on the lucrative jurisdiction of the Church in the decades preceding the adoption of the Code remained largely unsuccessful.60 Art. 59 would then be a recognition of the Church’s traditional powers in this area, and a price paid for its much needed support of the grand prince. The second part of art. 59 represented a compromise solution for litigation between an ordinary citizen and a person under church jurisdiction; such disputes were decided, as was done in the past, by a mixed court. The Code had one short and rather insignificant provision on the law of succession (art. 60), but otherwise the main branches of law reserved to the Church, matrimonial and inheritance law, were not mentioned and presumably remained in the hands of the Church. 60

Cf. Cherepnin, Arkhivy ii, 344–345.

chapter 10

Foreign Laws This chapter deals with foreign laws which at some time during the Russian middle ages were applicable at some place in Russia, albeit in an amended form. The laws concerned are from neighbouring regions, South, West, and East. Chronologically, Byzantium came first, the country from which Russia received the Christian religion, and along with it certain laws with religious connections. To the West there were Poland and Lithuania and, further away, Germany. The entire subject of Polish-Lithuanian law which was applicable for a very long period in the western regions of Russia is discussed in Chapter 17 (on Western Russia); this subject also involves the influence of German (mainly Magdeburg and Lübeck) law in Central and Eastern Europe. A small pocket of German law on Russian territory was represented by the Skra of Novgorod, the law of the Hanseatic merchant community in Novgorod. The massive influence of European law started much later, with the policies of Peter the Great in the 18th century. The question whether Mongol-Tatar law and institutions had an impact on medieval Russia, and if so, what the results were, is part of the wider problem of the place and meaning to be given to the period of Mongol-Tatar rule in Russia.

The Impact of Byzantine Law

In Chapter 2 (on Sources), the section “The Penetration of Byzantine Law Into the Slavic World” discusses in some detail which Byzantine laws reached medieval Russia and during which period.1 An important moment in this process was the arrival, shortly before 1273, of the Serbian redaction of the Nomocanon, which contained among other things the entire text of the Procheiron. This Serbian redaction was the main source of the so-called Russian redaction (of the Nomocanon or Kormchaia). The first phase of the latter redaction (roughly the period from 1273 to 1280) resulted in a family of South-West Russian copies 1 This section, and the present survey, are based mainly on Ia.N. Shchapov’s pioneering studies in this field, especially his Vizantiiskoe i iuzhnoslavianskoe pravovoe nasledie na Rusi v xi–xiii vv., Moskva, 1978.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_011

210

chapter 10

of the Kormchaia, while the second phase, following immediately, included the Short Redaction of the Court Law for the People (to be discussed below), itself not a Byzantine law, but almost entirely based on it. Inclusion of a text in a kormchaia obviously implied that the text was available at that moment to the scribe and had arrived in Russia at some previous moment; at the same time inclusion ensured much wider dissemination and the greater impact of the text. After the kormchie, the collection known as “Just Measure” (Merilo Pravednoe) was a major conduit for spreading texts of Byzantine origin in Russia. The Merilo Pravednoe contained Russian translations of the Procheiron and the Ecloga, as well as the Short Redaction of the Court Law for the People (­implying that it is to be dated after ±1280). Another Byzantine law which was available in Russian translation was the Farmer’s Law (Nomos Georgikos), the main component of a collection known as Knigi Zakonnye (“Law Books”, which also included excerpts from the Procheiron and the Ecloga). All these collections were made and copied in ecclesiastical circles, especially in the chanceries of the metropolitan, the Novgorod archbishop, and also other bishops, as well as the major monasteries. Their interest in materials of a legal nature was primarily directed to matters in which church jurisdiction would be involved (matrimonial law, especially divorce and marital property, inheritance, and also criminal matters entrusted to church jurisdiction). These questions are dealt with more extensively in Chapter 21 (on the Church and Monasteries) and also in the discussion of the so-called church statutes in Chapter 6 (on Princely Statutes). Generally speaking, Byzantine law dealing with such matters was a major source of inspiration for the Russian courts involved, but Byzantine law was rarely adopted directly; instead it was subjected to a process of reworking to adapt it to the circumstances of medieval Russia, which differed greatly from those prevailing in Byzantium.2

The Court Law for the People (Zakon Sudnyi liudem)

The “Court Law for the People” (Zakon Sudnyi liudem, zsl) is known to have had three redactions, the Short zsl, the Expanded zsl, and the Concordance zsl (Kratkii, Prostrannyi, and Svodnyi zsl). 2 See also A.A. Dorskaia in PRoP i, 421–430.

Foreign Laws

211

The Short Redaction The Short zsl has survived only in Russian ecclesiastical collections, although it is not a Russian law.3 Most copies are part of various kormchie, the oldest one being the copy included in the Novgorod Kormchaia of 1282. The Short zsl is also found as part of another important manuscript collection, the Merilo Pravednoe (see the section on this collection in Chapter 2, on Sources). The question of the origin of the Short zsl is surrounded by much controversy. Among the different theories, the so-called Moravian, Bulgarian, and Macedonian theories are the most widely accepted.4 The Moravian theory holds that the zsl was drawn up in Great Moravia in or shortly after 862, on the basis of the Ecloga, a Byzantine law code, supposedly of 726 (or 741). The main positive evidence for this theory is of a linguistic nature.5 The Bulgarian theory asserts that the zsl had its origin in the early Bulgarian empire, where it would have been enacted by the first Christian ruler, khan Boris, in 866–868. This theory is also based on indirect historical evidence.6 The Macedonian theory, advanced by S.V. Troitskii, regarded the zsl as an adaptation of the Ecloga, intended for use among irregular Slavic troops in the service of Byzantium, and drawn up between 830 and 840 in Macedonia.7 3 The principal editions of the Short zsl are: M.N. Tikhomirov (ed.), Zakon Sudnyi liudem kratkoi redaktsii, Moskva, 1961; this edition contains facsimile reproductions of the five most important manuscript copies; V. Ganev, Zakon Soudnyi Liud’m, Sofiia, 1959; this work offers the most elaborate analysis of the text, although it is defective in some ways. A critical review by I.V. Milov in Slavianskii Arkhiv, 1961, 51–63 (“Novoe issledovanie o Zakone Sudnom liudem”); H. Oroschakoff, “Ein Denkmal des bulgarischen Rechts”, Zs. f. vergl. Rechtsw. 33(1916), 141–282; English translation with introduction and commentary by H. Dewey and A. Kleimola in Michigan Slavic Materials No.14, Zakon Sudnyj Ljudem (Court Law for the People), Ann Arbor, 1977. 4 Cf. Dewey and Kleimola, op.cit., vii–xii. 5 The principal proponent of the Moravian theory is J. Vašica, “Origine cyrillo-méthodienne du plus ancien code slave dit « Zakon sudnyj ljudem »”, Byzantinoslavica, Vol.12, 1951, 154–174. 6 Cf. Ganev, op.cit., esp. 23–25 and passim. Oroschakoff (op.cit.) also supports this theory, as does M. Andreev, “Iavliaetsia li ‘Zakon Sudnyi Liudem’ drevnebolgarskim iuridicheskim pamiatnikom?”, Slavianskii Arkhiv, 1959, 1–22. A central place in the historical argument for the Bulgarian theory is occupied by the answers of pope Nicholas i to the questions directed to him by khan Boris, concerning the drafting of a civil law. Cf. J. Harduinus (ed., = Hardouin), “Responsa Nicolai Papae i ad Consulta Bulgarorum”, Acta Consiliorum et Epistolae Decretales, T.V, Paris, 1714, 353–386. 7 S.V. Troitskii, “Sv. Mefodii kak slavianskii zakonodatel’”, Bogoslovskie trudy, Vol.2, Moskva, 1961, 83–141, and id., “Sv. Mefodii kak slavianskii zakonodatel’”, Zhurnal moskovskoi patriarkhii, 1961, No.12, 49–59.

212

chapter 10

The oldest and most important copies of the Short zsl, the Novgorod, Varsonof’ev and Ustiug copies, do not differ greatly and are affiliated to the same protograph.8 The Short zsl is almost entirely based on the Ecloga; only the introductory provisions (arts. 1 and 2) and the end of the last provision (art. 33) lack a close parallel in the Ecloga.9 Moreover, with a few exceptions, the Short zsl is limited to extensive borrowing from the penultimate seventeenth title of the Ecloga. This title (= chapter) was devoted to criminal law. Arts. 4–17 of the zsl rephrased arts. 21–23, 25–26, 29–33, 35, and 40–41 of the seventeenth title of the Ecloga, and arts. 18–19 and 23–32 of the zsl were related to arts. 1, 5–8, 10, 12–17 of the same Ecloga title. Arts. 3, 21–22 and 33 corresponded to other Ecloga provisions (title 18, title 14, arts. 4–5, title 8, art. 6, title 14, art. 11, and title 2, arts. 13–15). The textual parallels as well as the sequence of the provisions demonstrated beyond doubt the close relationship between the Ecloga and the Short zsl. The latter, however, is not to be regarded as a slavish imitation of selected Ecloga provisions. The principal innovation of the zsl is in the system of sanctions. The seventeenth chapter of the Ecloga (“Punishments for Crimes”) provided several forms of capital punishment, as well as an array of other corporal punishments, such as flogging, whipping and the cutting off of various body parts, and banishment. This system has been much mitigated in the Short zsl. Capital punishment was retained only for serious cases of arson, and of the corporal punishments of the Ecloga only cutting off the nose (for serious sexual offences) and flogging were preserved. A greater role is given to financial sanctions, but the main innovation is the introduction of a two-track penalty system: along with the penalties to be imposed by secular authorities, ecclesiastical penalties figure prominently, such as church penance, fasting for a fixed period, or exclusion from participation in church ceremonies. The Short zsl may therefore be characterized as an adaptation of selected criminal law provisions of the Ecloga; apart from the different system of sanctions, there is also a modest amount of new text.10 8 Tikhomirov, op.cit., 14. 9 Cf. Lipshits, op.cit., 22–23. The numbering of the individual provisions of the Short zsl goes back to the Novgorod Kormchaia Copy. Dewey and Kleimola designate these provisions as “chapters”, but in accordance with the practice followed in this work I use the term “articles” (Russian sources similarly speak of stat’i). 10 On the relationship between the Ecloga and the zsl, Ia.N. Shchapov, Vizantiiskaia «Ekloga Zakonov» v russkoi pis’mennoi traditsii, Sankt-Peterburg, 2011, 6 and 147–186 (Shchapov’s commentary to Chapter xvii of the Ecloga).

Foreign Laws

213

In the context of the history of Russian law, the question concerning the relevance of the Short zsl for medieval Russian law is of greater interest than the points discussed above, concerning its origin and original applicability. Was the zsl ever directly applied in Russia, and, if not, did it directly influence Russian law? There is some indirect evidence suggesting that church courts had recourse to it and may have used it, particularly in conjunction with the Church Statute of Iaroslav, which dealt mainly with the same sort of situations. The inclusion of the Short zsl in many versions of the Kormchaia suggests its usefulness in ecclesiastical jurisdiction.11 The availability of the Short zsl at a comparatively early date in Russian church circles12 quite naturally leads one to look for an effect on contemporary Russian legislation. The earliest candidate would be the Church Statute of Vladimir. Shchapov has pointed to the offences of church theft and d­ igging up corpses.13 They are to be found in the Short zsl in arts. 30 and 29. In the list of cases referred to church jurisdiction in the Statute of Vladimir the terms  “church theft” and “digging up corpses” have been inserted consecutively in the later redactions, but are missing in the oldest Oleninskaia redaction. This  appears to be a case of inspiration by the zsl, rather than direct borrowing. Both the Church Statute of Iaroslav and the Short zsl are in the main specialized criminal codes. Most of the provisions of the Statute of Iaroslav are devoted to offences in the sphere of marriage and sexual relations; the remainder concern offences in some way connected with the transition from a pagan to a Christian way of life. In the Short zsl the list of sexual offences is much less detailed; there are also a few offences connected with the introduction of Christianity, but as their origin is in the Ecloga and conditions prevailing in Byzantium, they were probably of little relevance in Kievan Russia. The clearest parallel is in the combination of secular and church penalties, but, as Shchapov has repeatedly pointed out, there is a difference in the penalizing church authority. In Byzantium the church penalty consisted of the imposition of penance, fasting, etc., and it was imposed by the priest. In Russia, jurisdiction in certain types of cases was transferred to the bishop, more or less as an agent of the state, and the penalty was a fixed sum of money. Also, the various

11 Cf. Tikhomirov, op.cit., 25–26; Dewey and Kleimola, op.cit., xvi–xvii. 12 Tikhomirov, op.cit., 27, speaks of the first centuries of Christianity in Russia, “perhaps even the end of the 9th century”. Dewey and Kleimola, op.cit., xv, quote several older authors who support the idea that the Short zsl reached Russia soon after the latter’s conversion. 13 Ia.N. Shchapov, Kniazheskie ustavy i tserkov’ v Drevnei Rusi xi–xiv vv., Moskva, 1972, 77–78.

214

chapter 10

mutilating penalties which were still included in the zsl, are not in the Statute of Iaroslav. In view of all this, the direct application of the Short zsl in Russia is difficult to imagine. It would have created impossible dilemmas for the Russian church court. Fornication with a nun, for instance, would cost 40 grivna (Statute of Iaroslav, art. 21), or the offender would have his nose cut off and be assigned a church penance (art. 7 zsl). If one assumes that the Slavic translation of the zsl was available at the time the original Statute of Iaroslav was drafted, it could only have served as a certain source of inspiration, suggesting the regulation of specific situations. In later times the text of the zsl was obviously part of the repertory available to church courts, but then again not as a principal source of law, but rather as an aid in shaping decisions. The relationship between the zsl and the Russkaia Pravda is a theme which has given rise to a number of assertions. Certain superficial parallels have prompted theories about Byzantine and even Roman law influences on the rp. (See also the discussion of this question in the sections on sources in the chapters on the rp.) The most efficient way to tackle this matter is by establishing first of all the appropriate time frame. This means that only the Short zsl is involved; the other two redactions were too late to have had an influence on the rp. In practical terms it boils down then to arts. 12 and 18 of the Short Pravda.14 These provisions deal, respectively, with riding another person’s horse without permission, and destroying or damaging another person’s weapons or clothes. Art. 24 of the Short zsl concerned the liability of the person who had borrowed a horse which subsequently died or was injured (text adopted almost unchanged from Ecloga xvii, 7). With regard to the ‘joy-riding’ case of art. 12 Short Pravda, a slightly more attentive consideration of the two provisions involved (of the rp and the zsl) shows that they concern totally different situations. The Short Pravda provision is part of a catalogue of ‘offences against the person’, such as is found in the laws of pre-medieval cultures where the horse was the main means of transport and the unauthorized taking of a horse, without the intention to appropriate it, was a common occurrence. The rule of art. 12 is almost identical to art. 40 of the Frankish Lex Ribuaria. The zsl provision, through Ecloga xvii,

14

Art. 12 of the Short Pravda is parallelled by art. 33 of the Expanded Pravda; art. 18 of the Short Pravda is only to be found as an appendix in certain later copies of the Expanded Pravda (e.g. last article of the Pushkin Copy).

Foreign Laws

215

7, goes back to Roman law (D.13.6.5.7), where it is part of a complex of rules concerning the contract of loan-for-use (commodatum).15 There is no parallel provision in the Short zsl for art. 18 of the Short Pravda; art. 26 of the Short zsl is sometimes mentioned in this respect, but the similarity with art. 18 of the Short Pravda is minimal.16 (See also the section on the sources of Iaroslav’s Pravda in Chapter 4).17 The Expanded Redaction18 The principal copies of the Expanded Redaction of the zsl are found in the so-called Pushkin Collection and in the Archeographical Copy of the First Novgorod Chronicle (Younger Version). The Pushkin Collection consists of various legal texts (including also the Expanded Pravda) and probably dates from the second half of the 14th century.19 The Archeographical Copy dates from the middle of the 15th century.20 In both copies the title Zakon Sudnyi liudem is missing. Following Tikhomirov’s edition of the various manuscripts of the Expanded zsl in 1961, accompanied by an introductory essay, it can be considered proven that the Expanded zsl was compiled on Russian soil and functioned in fact exclusively as a Russian law. The first 41 provisions (articles, “chapters” in the terminology of Dewey and Kleimola) of the Expanded zsl reiterate the entire Short zsl, sometimes word for word, sometimes with alterations. The other half of the Expanded zsl (40–45 articles, depending on the numbering system adopted and on the specific copy) consisted mainly of criminal law provisions, with a smaller number of rules concerning evidence, inheritance law, and obligations. Some provisions have a mixed character, criminal as well as civil.21 15

In the Expanded zsl, after art. 26 which more or less reiterates art. 24 of the Short zsl, there is an art. 27 which in its descriptive part is very close to art. 12 of the Short Pravda (the sanction is quite different). This formula is therefore in all probability borrowed from the Short Pravda. See also Shchapov, Vizantiiskaia «Ekloga Zakonov», 184–185. 16 The views put forward here were already defended a century ago by E. Chernousov, K voprosu o vlianii vizantiiskogo prava na drevneishee russkoe, Iur’ev, 1916, 303 ff. 17 More extensively on these questions see F. Feldbrugge, “Roman Law in Medieval Russia”, in Feldbrugge, lmr, 59–128, at 79–80 and 116–118. 18 Basic edition: M.N. Tikhomirov (ed.), Zakon Sudnyi liudem prostrannoi i svodnoi redaktsii, Moskva, 1961. English translation and facsimile Russian texts also in Dewey and Kleimola, op.cit. 19 Tikhomirov, op.cit., 6–9. 20 Ibid., 10–12. 21 Art. 80, for instance, is devoted to the duties of the executor of a will but also provides for punishment (70 lashes and punitive compensation) for an executor who has failed in carrying out his duties properly.

216

chapter 10

The tone of the second part of the Expanded zsl is occasionally strongly moralistic. In the process of inserting the Short zsl into the new text, the latter’s authors consulted the Byzantine laws on which the Short zsl was based, and as a result the text of the Expanded zsl is sometimes closer to the Ecloga than that of the Short zsl.22 The second half of the Expanded zsl is based on Russian (Slavic) translations of other Byzantine laws, included in Russian ecclesiastical collections and on Old Testament laws. The main Byzantine source of the Expanded zsl (apart from the Ecloga) is the Procheiron.23 The many biblical borrowings are chiefly from a Russian collection entitled “Selection from the Laws of Moses”, and sometimes directly from the Old Testament (Exodus, Deuteronomium, Leviticus).24 According to Tikhomirov, the Expanded zsl was probably compiled in the first half of the 14th century in the North-West of Russia (Novgorod or Pskov).25 This would agree with the situation prevailing in Novgorod, where the scope of jurisdiction exercized by the (arch)bishop was very extensive. The Expanded zsl would then have functioned as the basic codification of criminal law, unlike the Short zsl which had to compete with the indigenous Statute of Iaroslav as well as with the criminal law aspects of the rp. Although the origins of the Expanded zsl were ultimately in Byzantine law, certain minor influences from the rp can be perceived in matters of terminology and procedural institutions.26 This is again a demonstration that the Expanded zsl did not arrive in Russian legal practice as an alien text (as the Short zsl did to a great extent), but was integrated from its inception into the fabric of Russian medieval law. The Concordance Redaction The so-called Concordance Redaction of the zsl is found in a manuscript of the Sofia Chronicle of 1402. This version of the zsl simply consists of an ­amalgamation of the other two redactions. It does not therefore have much 22 Tikhomirov, op.cit., 15. 23 Ibid., 13–15. As the Slavic translation of the Procheiron reached Russia around 1270 as part of the Serbian kormchaia (see Chapter ii), this provides a clear terminus post quem for the Expanded zsl; cf. Shchapov, Vizantiiskoe i iuzhnoslavianskoe pravovoe nasledie na Rusi v xi–xiii vv., Moskva, 155. 24 Ibid., 15–16. 25 Ibid., 17–21. Tikhomirov’s principal conclusions regarding the zsl are accepted by Shchapov in Vizantiiskoe, 186–187. 26 Tikhomirov, op.cit., 17–19, who offers several examples.

Foreign Laws

217

independent­relevance for legal history. It was apparently compiled in the chancery of the Moscow metropolitan in or shortly before 1402.27 The Skra of Novgorod The Skra of Novgorod was the internal law of the Hanseatic merchant community in Novgorod. It could be viewed as a curiosity of legal history, but in appreciating its relevance one should take into consideration that for much of the middle ages Novgorod was the leading city of Russia, that Novgorod’s status and wealth were determined chiefly by its being the principal centre of foreign trade in Russia, and that the Hanseatic League occupied an almost monopolistic position in Russian-West-European trade. This trade was of great importance to both sides; Russia exported furs, wax (mainly for making candles), timber and honey (the principal sweetening agent for food); Western Europe exported linen and woollen cloth, wine and luxury items. For several centuries the Hanseatic League maintained a semi-permanent trading-post in Novgorod: the German Court (nemetskii dvor) or Court of St. Peter (Hof Synte Peteres te Nogarden).28 The distance between the Novgorod settlement and its West-European home bases and the difficulty of communicating with these bases made a certain amount of self-government and self-regulation inevitable. The internal affairs of the German Court were regulated by a short law code, called the Skra, established by the League.29 Seven ­successive versions of the Skra are known, the first one dating from the middle 27 Tikhomirov, op.cit., 22–27. 28 The German Court, together with its own church of St. Peter, was founded in 1192, according to E.A.Rybina, “O dvukh drevneishikh torgovykh dogovorakh Novgoroda”, Novgorodskii istoricheskii sbornik 3(13), Moskva, 1989, 43–50 (and also Rybina’s monograph, quoted below, 15–19). Generally on the Court of St. Peter see N.G. Riesenkampf, Der deutsche Hof  zu Nowgorod bis zu seiner Schliessung durch Iwan Wassiljewitsch iii im Jahre 1494, ­Dorpat, 1854. 29 The basic publication in which the seven versions of the Skra appear is W. Schlüter, Die Nowgoroder Schra in sieben Fassungen vom xiii. bis xvii. Jahrhundert, Dorpat, 1911. See also F. Frensdorff, “Das statutarische Recht der deutschen Kaufleute in Nowgorod”, Abhandlungen der kön. Ges. der Wiss. zu Göttingen, Vol.33 (1886), 1–35 and Vol.34 (1887), 1–55; E.A. Rybina, Inozemnye dvory v Novgorode xii–xvii vv., Moskva, 1986 (contains text of Skra iv and Russian translation); F. Feldbrugge, “The Skra of Novgorod: Legal Contacts B ­ etween Russia and Western Europe in the Middle Ages”, Feldbrugge, lmr, 261–291 (updated version of paper with identical title in Hommage à-Hulde aan-Tribute to René Dekkers, Bruxelles, 1982, 519–533).

218

chapter 10

of the 13th century. The sixth Skra was enacted after Novgorod had lost its independence and trading relations between the German merchant community and Novgorod, now part of the Muscovy empire, had been re-established in 1514.30 But after Novgorod had been incorporated into the Moscow principality it never regained its hegemonial position in Russian-Western trade, and the German Court gradually faded into insignificance in the course of the 16th century, although a seventh version of the Skra was issued by the city of Lübeck in 1604. The text of the Skra was in Middle Low German, except the last (High German) version. The oldest nucleus of the Skra consisted of the confirmation in writing of various practical arrangements which arose as the German merchant community gradually took shape in the 13th century. In the more extensive and detailed later versions most provisions were based on the city law of Lübeck. Much of the contents of the Skra reflected the policies of the Hanseatic League, especially the protection of its trading monopoly. What made the Novgorod settlement different from other Hanseatic trading-posts in West-European countries was its strictly semi-annual schedule of activities. During winter Novgorod could only be reached over-land and during summer the sea route was obviously preferable. As roads were impassable in spring, winter visitors would have left before summer visitors arrived. As a result there was a constantly changing population, without a permanent body of self-government. A new alderman was elected twice a year by the merchants who happened to be present. The Russian component of the Skra was insignificant and consisted mostly of some terminological borrowings. The Skra had no noticeable impact on the law of Novgorod. It was not only the relatively modest size of the German Court, but also the fact that the Skra was an internal regulation that made such  an effect improbable. Relations between Novgorod and the German Court were  regulated by a whole series of treaties, of which a number have been p ­ reserved (see Chapter 7, on Treaties). The Skra, in its different versions, often took a­ ccount of the agreements with Novgorod, as embodied in the treaties.31

30 31

See N.A. Kazakova, “Eshche o zakrytii ganzeiskogo dvora v Novgorode v 1494 g.”, Novgorod­ skii istoricheskii sbornik 2, Leningrad, 1984, 177–188. Art. 97 of Skra iv, regulating the wax trade, explicitly reproduces the entire text of the 1342 treaty between Novgorod and the League; cf. gvnp No.41, 73–74.

Foreign Laws

219

The Iasa of Chingis-Khan and the Impact of Mongol-Tatar Rule on Russian Law The Iasa of Chingis-Khan The imposition of Mongol32 suzerainty in Russia after 1240 implied that the law of the Mongol empire became a factor in the legal make-up of medieval Russia. The determination of the impact of Mongol rule on the Russian contemporary legal system is complicated by the fact that not very much is known about the law of Chingis-Khan’s empire.33 There was something in the nature of a code, which is known as the “Great Iasa” (also Yasa or Yassa) of Chingis-Khan (1162–1227), which nowadays is ­regarded by most scholars as a predominantly legal text, rather than as a collection of maxims of various kinds.34 No complete text of the Iasa has been preserved and the most extensive summary was given by the Egyptian historian Al Makrizi (1364–1441). Excerpts from the Iasa provided by other authors confirm the reliability of Makrizi’s communications. The inaccessibility of the text is explained by some authors as being connected with its sacred and 32

33 34

The Mongol empire founded by Chingis-Khan imposed its rule initially on neigbouring Mongol and Turkic peoples. Within a few generations the rulers were turkicized, although Mongol was still used into the 14th century as the language of administration. “Tatars” was the generic name for Turkic nomads in medieval Russia, although it actually designated only a specific group among them. Many Turkic peoples had converted to Islam and this also resulted in the ultimate islamization of the Mongol-Tatar rulers. Khan Berke (1257– 1266) was the first Muslim khan of the Golden Horde. The term “Mongols” became less relevant after the 13th century, but, in accordance with the usage of most authors, “Mongols” and “Tatars” are used here more or less as synonyms. (“Tartars” is a West-European­ corruption in an allusion to Greek Tartaros, “underworld”, which the Tatars allegedly came from.) For a general overview, see R.Iu. Pochekaev, Pravovaia kul’tura Zolotoi Ordy, Moskva, 2015, 122–130. See V.A. Riasanovsky, “Velikaia Iasa Chingiz-Khana”, Izvestiia iuridicheskogo fakul’teta v Kharbine, Vol.10 (1933), and id., Fundamental Principles of Mongol Law, Tientsin, 1937 (1st ed.), Bloomington/The Hague, 1965 (2nd ed.), as Vol.43 of Indiana University Publications – Uralic and Altaic Series. Earlier, Riasanovsky (V.A. Riazanovskii) had published in Harbin Customary Law of the Mongol Tribes (Mongols, Buriats, Kalmucks), Vols.i-iii, Harbin, 1929. G. Vernadsky, The Mongols and Russia, Vol.3 of M. Karpovich and G. Vernadsky, A History of Russia, New Haven, Conn., 1953, 99–110; also in the Russian edition: G.V. Vernadskii, Istoriia Rossii. Mongoly i Rus’, Tver’/Moskva, 1997, 106–115; and by the same author, “The Scope and Content of Chingis-Khan’s Yasa”, Harvard Journal of Asiatic Studies, Vol.3, 1938, 348 ff.

220

chapter 10

magical character, which caused it to be kept in secret for the use of only a few people and in a restricted number of copies. According to Riasanovsky, the promulgation of the Iasa took place between the years 1206 and 1218. Much of its contents is based on the customary law of the Mongols, but there is also an important element of innovation and reform in it. Some of the Iasa’s prescriptions merely reflect ancient tribal customs and taboos and have no legal significance (e.g. the prohibition against dipping a hand into the water; some kind of vessel should be used); other rules contain moral exhortations (not to lie, to love one another). Of the remaining provisions most can be regarded as concerned with criminal law. The penalty in most cases was death, even for such offences as urinating into water or on ashes, or not picking up the property of a comrade-in-arms in battle. The Iasa is mentioned in one of the charters (iarlyks) of the Tatar khans addressed to the Moscow metropolitan, the iarlyk of Mengu-Timur of 1279.35 It threatens all (presumably: Mongol) officials who would disregard the provisions of the iarlyk with death “in accordance with the Great Iasa”. The Iasa was also applicable to Russian troops serving in the Mongol army. Otherwise there is no evidence of the direct application of the Iasa in respect of the Russian population. Mongol-Tatar Impact on Russian Law The question of how the period of Mongol-Tatar domination affected Russian civilization remains fundamental in Russian historiography and has been debated for almost two centuries.36 Foreign rule, imposed by force, is a traumatic experience for any nation, and it is also an experience from which few nations escape. (I am aware of the problems surrounding the concept of a nation; nevertheless, in the case of Russia, her self-awareness as a Russian nation has been obvious and undeniable since the Kievan era.) Mongol-Tatar rule lasted for a long time, although its hold gradually weakened, with occasional flare-ups in asserting its status. Such national experiences are strong emotional factors and these may cloud an objective investigation of the effects of foreign rule. 35

36

prp iii, 467–468. However, according to A.P. Grigor’ev, Sbornik khanskikh iarlykov russkim metropolitam, Sankt-Peterburg, 2004, 43–44, the entire formula is an interpolation of later date. (On iarlyks generally, see the relevant section in the Chapter xi). Other or more specific aspects of the impact of Tatar suzerainty were discussed in ­Chapter 1 (sub-section on “Mongol-Tatar Rule” in the section on “State and Law During the Era of the Independent Principalities”), Chapter 11, on Charters (section on “The Iarlyki of the Tatar Khans”), Chapter 13, on the Prince (section on “Princely Rule: Succession, Popular Assent, and Mongol-Tatar Validation”, and the sub-section on “Taxes Imposed by Tatar Khans” in the section on “The Expansion of Princely Administration in Later Centuries”).

Foreign Laws

221

The traditional designation of the period in Russia – the Tatar Yoke (Tatarskoe igo) – is itself indicative of the emotional charge involved. Russian and Soviet historians have occupied various and diverse positions in this debate; historians from other countries have added valuable external perspectives to it.37 The discussion in this work can be limited to the more manageable problem of the impact of the Mongol-Tatar era on Russian law. The principal authors who have pronounced on this topic are Riasanovsky and Vernadsky and, much later, and in a critique of his predecessors, Ostrowski.38 Riasanovsky’s rather infelicitous starting-point was that Mongol culture and law, on account of their different level (by which the author obviously meant: inferior), “could not have exerted, and did not exert, any significant influence on Russian culture and law”.39 But then he continued to investigate the question. He pointed out that there was no evidence of any direct effect or application of Chingis-Khan’s Iasa in respect of the Russian population (apart from Russian troops in the Mongol army, as also mentioned above). In denying the influence of Mongol law on Russian civil law, he mentioned the Charter of Pskov as an example. This is not very convincing, as of all medieval Russian principalities, Pskov was the place where one would expect the impact of Mongol rule to be minimal. One could even turn Riasanovsky’s argument upside down by arguing that the only major piece of legislation roughly contemporary to Mongol rule came from Pskov and that this could be taken as circumstantial evidence for some Mongol influence in the law of other Russian principalities. Regarding criminal law, Riasanovsky noted the introduction of capital punishment, flogging and torture during Tatar rule and ascribed this to the coarsening of moral standards resulting from the general cultural deterioration caused by the Mongol invasions.40 This at least seems to contradict his view that Mongol culture and law, on account of their inferiority, could not and did not exert any significant influence on their superior Russian counterparts. When it came to government and administration, Riasanovsky again started from the in his eyes inefficient and primitive administrative methods and practices of the Mongols. The Russians had nothing to learn from them.41 Russian 37

See especially Ch.J. Halperin, The Tatar Yoke, Columbus, Ohio, 1988; D. Ostrowski, Muscovy and the Mongols. Cross-cultural influences on the steppe frontier, 1304–1589, Cambridge, 1998, 244–248. 38 Riasanowsky in Fundamental Principles of Mongol Law; G.V. Vernadskii, Mongoly i Rus’, 126–135 (section on Mongol government and administration in Chapter ii, “The Mongol Empire”); D. Ostrowski, Muscovy and the Mongols, 1–13. 39 Riasanovsky, Fundamental Principles of Mongol Law, 262. 40 Ibidem, 263. 41 Ibidem, 263–273.

222

chapter 10

princes ruled, he admitted, subject to confirmation by the Tatar khan, but this had no effect, according to him, on the internal administration of the Russian principalities. The Mongol principle of unconditional subordination of the individual, of whatever rank, to the ruler was, in his view, unconnected to the universal service of the population to the autocracy in Muscovite Russia. The latter phenomenon should rather be viewed as a parallel to the rise of the absolute monarchy in Western Europe. There was some influence of the Tatar system of taxation – the levying of tribute being one of the most prominent and essential features of Mongol overlordship – but this point should not be overrated in Riasanovsky’s opinion.42 The whole idea of the cultural superiority of one system, as compared to another, whatever value it might have in general, is of little use anyway in investigating questions of legal cultures and institutions. A legal system may borrow institutions and practices from another legal system, not because they are ‘superior’, but because they can be accommodated and put to use domestically. Very little Byzantine law (with its impressive Roman law pedigree) was taken over by Kievan Russia, apart from certain parts intimately connected with the Christian religion (e.g. matrimonial law, sexual offences). A more sensible way forward would be to look at the actual points of contact between the Mongol and Russian civilizations. The Russian princes were for a considerable period in the position of servants of the Tatar khan, who himself was a vassal of the great khan, residing in the vastness of the Asian steppes or in China. In order to be able to take up the succession in his principality, a Russian­prince needed the khan’s confirmation. He owed the khan obedience and could be punished and even killed by the latter. In practice, as long as a prince behaved as was expected of him, his main duty consisted of paying various taxes and supplying occasional contingents to the khan’s army. In later years the princes, and particularly the grand princes of Vladimir-Moscow, acquired a central role in the Tatar system of tax collection. Otherwise they were generally left to their own devices in the government and administration of their principalities. From this perspective it is clear that the prince and his administration were the main channel through which Mongol-Tatar ideas and institutions could reach Russian law. Relations between private Russian citizens (anachronistically: “civil law”) would generally not be greatly affected by Mongol-Tatar ­interference, although the khan would usually have an interest in disputes between Russian princes and would then claim jurisdiction. Equally, according 42

Ibidem, 273–276.

Foreign Laws

223

to Vernadskii, disputes between Russians and Mongols were subject to Mongol courts.43 The Mongol-Tatar involvement in criminal jurisdiction was larger, because in a number of cases Mongol interests would be at stake. This applied not only (as mentioned above) to Russians serving in the khan’s armies, but also to R ­ ussians who had in some way offended against significant interests of the khan or his servants (e.g. by killing Tatar tax collectors, a not infrequent occurrence). The introduction of capital punishment and other corporal punishments is often adduced as an indication of Mongol influence on Russian law, while at the same time this idea is rejected by others who point to parallel contemporary developments in Western Europe. There is probably some truth in both views. The emergence of a more powerful and more intrusive state may easily lead to an expansion of the punitive arsenal of public power, as alternative private systems of settling disputes are being pushed aside. At the same time, the Tatars were there and they had different (and much more drastic) ways of coping with deviant behaviour; it stands to reason that this would be an obvious source of inspiration for the Russian authorities. That Byzantine law of the era offered a similar catalogue of physical punishments would be an additional incentive. Along with jurisdiction, tax collection and the organization of the army were the main functions of the medieval state. Initially, the khan employed his own officials to collect the taxes imposed by him. These baskaki, supported by armed contingents, visited the capital cities of the Russian principalities to carry out their duties. Their activities often gave rise to local rebellions, usually resulting in punitive expeditions by larger Tatar forces. In later years, the collection of tribute and other Tatar impositions was handed over to the Moscow grand prince, who was made responsible for the timely delivery of the correct amount. The actual work was carried out by special officers, dan’shchiki.44 In this manner the Tatar fiscal system directly influenced the Russian system of tax collection. The Tatar system was originally operated mainly for the benefit of the khan, and its comprehensiveness is well illustrated by hundreds of documents concerning various fiscal duties and immunities (tarkhannye, obel’nye, obrochnye, tamozhennye, bezdannye gramoty; see Chapter 11).45 43 Vernadskii, Mongoly i Rus’, 362–363. 44 Cf. Vernadskii, 365 ff. 45 See A.D. Gorksii, “Otrazhenie tataro-mongol’skogo iga v russkikh aktakh xiv–xv vv.”, V.T. Pashuto (ed.), Feodal’naia Rossiia vo vsemirno-istoricheskom protsesse [Cherepnin Collection], Moskva, 1972, 48–48.

224

chapter 10

In reviewing these developments, Vernadskii also pointed to the effect of Tatar domination on the balance of power as it had prevailed during the period of Kievan Russia in the relationship between princes, aristocracy, and the urban populations.46 Tatar domination was exercized mainly, as explained above, by tight control of the princes. Urban independence did not have a place in this system. The towns were therefore the chief losers and the princes the chief winners. Only Novgorod and Pskov were for a long time able to maintain their exceptional position, being far away from the centre of Tatar power. The boyars remained in the middle, but when in the end the grand prince of Moscow emerged victorious in the struggle with the other princes, partly with the help of local aristocracies, the balance of power shifted definitively in favour of the Moscow tsar, all others becoming losers. A special and unique position was occupied by the Russian Church (see also the section “The Russian Church Under Mongol-Tatar Rule” in Chapter 21). The comprehensive tax exemption for the Russian Church and its personnel was one of the most important politico-legal effects of Tatar rule. It allowed the accumulation of great wealth and the acquisition of vast estates, resulting in a much enhanced position of the Church in later centuries. Chingis-Khan and his immediate successors, before the conversion of the khans to Islam, ruled a vast amalgam of nations with a multitude of religions, and religious tolerance was undoubtedly a factor favourably affecting the coherence of this empire. The first Russian metropolitan after the Mongol invasion, Kirill, occupied his post until his death in 1281 and an adroit use of the opportunities offered by Mongol benevolence to the Russian Church produced great yields for the latter; it particularly strengthened the position of the metropolitan himself, who was the recipient of the first iarlyk outlining the privileges of the Church in 1267.47 The metropolitans usually worked closely together with the grand princes of Vladimir-Moscow in a mutually advantageous arrangement. D. Ostrowski’s approach to the question of Mongol-Tatar influence deserves special mention, not only because it also addressed several legal aspects, but especially because of its apposite methodological observations. Ostrowski noted that there are a number of basic attitudes to the question which tend to exclude each other: Muscovite institutions and attitudes were mainly determined by the Byzantine connection, or on the contrary by the impact of Mongol rule, or by a combination of the two, or by Western European models, or 46 Vernadskii, 352–357. 47 The iarlyk of Mengu-Timur, see Grigor’ev, Sbornik khanskikh iarlykov, 7–44 (text on 44); also prp iii, 467–468. Mengu-Timur was the grandson of Baty, the conqueror of Russia, himself a grandson of Chingis-Khan.

Foreign Laws

225

they did not owe anything to outside influences and were the result of internal dynamics.48 While all five attitudes were represented among pre-revolutionary Russian historians, the last attitude was dominant in Soviet times. Ostrowski himself pointed out that at least the civil and military institutions of 14th century Muscovy were overwhelmingly Mongol in origin, while the legal system was inherited from Kiev with only a limited number of effects of Mongol ­influence.49 The Russian Church at the same time was leaning heavily towards Byzantium. The attitude of the Church was of exceptional importance, in view of its uniquely advantageous position during Tatar rule. In the early period, when Mongol power was still overwhelming, the Church’s attitude was decidedly positive in the sense that the khan was regarded as the legitimate ruler, enjoying the title of “caesar” (tsar), along with the Greek and German emperors. As the Tatar hold weakened, the Church gradually developed an anti-Tatar position. But all through the period of Mongol-Tatar dominance there remained the problem of its conceptualization, a matter which was of special concern to the Church. How could rule by pagan or Muslim rulers of the Christian Russian­ nation, and the subordination of Russia’s Christian princes to these rulers be explained? How could the adoption of numerous Tatar institutions in the administration of Muscovy be justified? For the medieval Russian churchman there was probably no meaningful solution to this riddle; one therefore passed it over in silence. The Mongol conquest and the occasional Tatar invasions in later years appeared as natural disasters in the chronicles; they just happened. Once the Tatar threat had receded, in the second half of the 16th century, the myth of the Tatar Yoke emerged, which until the present day has to a considerable extent determined the way Russian historiography looked at and interpreted the two centuries following the fall of Kiev in 1240, and this, according to Ostrowski, accounted for the numerous contradictions in the appreciation of the exact impact of Mongol-Tatar rule.50 A dispassionate evaluation of the evidence, evading juxtapositions like civilized/uncivilized, European/Asiatic, just/unjust, cruel/humane, progressive/ backward, etc., indicates that the legal and administrative make-up of medieval Russia after the Mongol invasions showed a mixture of autochthonous Russian, Byzantine and Mongol-Tatar elements. The latter two would occasionally tend to push Russian institutions in the same direction and then it would become much more difficult to identify the real spiritus movens. The often quoted example is the excessive absolutism of the ruler and the concomitant reduction 48 49 50

Ostrowski, 1–15. Ostrowski, 26, 16. Cf. Ostrowski, 244–248.

226

chapter 10

to virtual serfdom of every subject, from the highest to the lowest. Early Kievan Russia, as reflected by many incidents reported in the chronicles, showed a comparatively free intercourse between the princes and their subjects, especially the boyar class, contrasting with the rigid hierarchy of the courts of the emperor in Constantinople or the khan in his steppe headquarters. The pre-Mongol Kievan realm has in the past often been compared to the empire of Charlemagne. Such a comparison has its merits in explaining a number of parallels, as long as the very significant differences are not lost sight of. A more adventurous comparison is between the Kievan empire and the “Golden Horde”.51 This road is taken, although somewhat implicitly, by Iu.V. Seleznev, as indicated in his work “The Russian Princes as Members of the Ruling Elite of the Ulus of Juchi during the 13th to the 15th centuries”.52 It involves adopting a Mongol perspective. Chingis-Khan and his immediate successors had founded an empire, not merely by conquering and subjugating other peoples, but by forcing them to become members of a multi-ethnic political conglomerate, ruled by the Chingisid khans. If the subject nations and their rulers fulfilled the obligations imposed on them (mainly taxation and military support), they were allowed their share in the revenues and other advantages generated by the empire’s expansion. This is of course not unlike the way Charlemagne handled relations with his Germanic (and non-Frankish) neighbours. From this point of view, the behaviour of most Russian princes can easily be explained. Once they had become convinced that resisting Mongol rule was not an option, turning themselves into allies and vassals of the khan offered many advantages, as indicated above. In the two-and-a-half centuries following the invasion of Russia, Russian princes were frequently and deeply involved in the complex struggles among the various factions within the Mongol-Tatar empire. Mixed Russian-Tatar forces often faced similar forces in battle.53 There were also a number of mixed marriages between members of the Chingisid and Rurikid houses, the most spectacular among them the marriage between Iurii Danilovich, grand prince of Vladimir and Moscow and Konchaka (Agaf’ia), the 51

The empire ruled by Chingis-Khan’s eldest son Juchi designated itself as the Ulus of Juchi, while contemporary Russian sources simply called it the Horde (Ordá). “Golden Horde” came only in use in the 17th century. Cf. Ostrowski, xiii, who himself uses “the Qipchaq Khanate”. 52 Iu.V. Seleznev, Russkie kniaz’ia v sostave praviashchei elity Dzhuchieva Ulusa v xiii–xv vekakh, Voronezh, 2013 (not available to me). 53 In Russko-ordynskie konflikty xiii–xv vekov. Spravochnik, Moskva, 2010, Iu.G. Seleznev compiled a detailed catalogue of armed encounters between the Russians and the Horde during the period 1223–1502.

Foreign Laws

227

sister of khan Uzbek, in 1317.54 Although the khan’s power remained absolute (not unlike that of the later Moscow tsars), Russian princes certainly could be considered as members of the ruling elite of the khan’s empire. The actual impact of Byzantine or Mongol-Tatar law on Russian law may have been quite modest, but the effect of the underlying attitudes was very significant.

The Legal Environment of Medieval Russian Law

The foregoing sections of this chapter were concerned with foreign law which to some extent may have had a direct impact on Russian law or was directly applied in Russia. This section will briefly survey the legal systems operating in the regions bordering on medieval Russia. Whether they had any impact on Russian law is a question which has to answered case by case. The Finnish Forest Dwellers The autochthonous population of Northern and North-Eastern Russia before the gradual northwards penetration of the Eastern Slavs consisted of numerous Finnish55 tribes. (The same is true for Scandinavia before the arrival of Germanic tribes.) The Primary Chronicle mentions the Chud’, Ves’, Kors’, Iam’, and the Narva in the Baltic area, and they frequently appear under the collective name of Chud’ in the First Novgorod Chronicle;56 more to the North-East and East the presence of the Mer’ia, Mordva, Murom, Meshchera, Mari and others (the ancestors of the present-day Volga Finnish peoples) is reported. In the course of the Russian middle ages, most of these populations were forced to recognize Russian rule, in the person of the Vladimir-Moscow grand prince, or the Novgorod republic. This process was accompanied by conversion to orthodox Christianity and by widespread russification. As a result, the peasant population in a significant part of the territory of the Muscovy state consisted of russified Finnish inhabitants. It is almost inevitable that the customary law of this population survived to some extent. But as next to nothing is known about this law, and the ­peasant 54 55 56

See N. de Baumgarten, “Généalogies des branches régnantes des Rurikides du XIIIe au XVIe siècle”, Orientalia Christiana, Vol.xxxv-1, No.94, Roma, 1934, 150. “Finnish” is used in a very broad sense (‘Finnic’) to denote ethnic groups linguistically and culturally related to the ancestors of modern Finns. Other sources add the Vod’ and the Vepsy (surviving in the Karelian republic and in Leningrad province).

228

chapter 10

customary law of medieval Russia is poorly documented and also largely unknown, the whole subject remains terra incognita, academically speaking. The Baltic Coast In the course of the middle ages, almost the entire Baltic sea coast came under the control of the German or Teutonic Order.57 Only the northern half of Estonia was colonized by Denmark from 1219 on, and Danish law was applied until 1346, when the Danes ceded power to the Order.58

The German Order

Together with the other two knightly orders (the Templars and the ­Order of St. John, later on the Knights of Malta), the Order of the House of St. Mary of the Germans (Ordo Domus Sanctae Mariae Theutonicorum) arose during the First Crusade in order to provide medical services to the crusader troops. It was officially recognized in 1198 by pope Clement iii and the emperor Henry vi. While the Knights Templar were mostly a French organization (brutally annihilated by the French king Philippe le Bel in 1312–1314) and the Knights of Malta counted members of many nations, the German Order was specifically tied to the Holy Roman Empire (which embraced many other nations apart from ethnic Germans). When prospects for a successful conclusion of the Crusades began to fade, the German Order shifted its focus to the conversion of the last remaining pagan regions in Europe itself, the Baltic area. In 1228 they accepted the invitation of the Polish (Piast) duke Konrad of Mazovia to subdue the latter’s pagan Baltic-Prussian neighbours. This resulted in the military conquest of the land later known as East Prussia. A serious attempt to understand the medieval mentality fuelling WestEuropean expansion in the Baltic region will lead to the conclusion that the religious sentiment, the desire to spread the Christian faith, played a significant role. If it is all ascribed to lust for power and wealth or a sense of adventure, too many aspects remain unexplained. One indication is that military action was preceded by the arrival of missionaries, first the German Augustinian friar Meinhard who became the first bishop 57

58

“Teutonic” and Russian Tevtonskii have acquired an unpleasant ring and for this reason I have preferred to call the Order “German”, as in German (Deutscher Orden) and other European languages. Cf. H. Küpper, Einführung in die Rechtsgeschichte Osteuropas. Studien des Instituts für Ostrecht München, Band 54, Frankfurt am Main, 2005, 183–189. See also F.G. Bunge, Das Herzogthum Estland unter den Königen von Dänemark, Gotha, 1877 (not available to me).

Foreign Laws

229

in Livland in 1184. Then in 1200 a Bremen priest Albert (Albrecht) came, accompanied by a fleet of crusaders. He conquered the land around the mouth of the Western Dvina and founded Riga in 1201. He became the first bishop of Riga and received Livland as a fief from the empire. To protect and expand his possessions he founded a military order (the Order of the Swordbearers) in 1202. Public power in Livland (roughly modern day Latvia and the southern part of Estonia) was shared between the bishop and the Order of the Swordbearers. In 1246 Riga was raised to the rank of an archdiocese, after three more bishops had been appointed (Dorpat, Kurland, and Ösel). In 1237 the Livonian Order (of the Swordbearers) was absorbed by the much larger German Order. Its chief in Livland was the Livonian Landmeister, residing in Wenden (now Cēsis, Latvia) or in Riga. The German Order, which had had its headquarters in Venice after the crusaders had been driven from the Holy Land, moved the seat of its Hochmeister to Marienburg in East Prussia (now Malbork, Poland) in 1309. After almost two centuries the Order was unable to stand up to the superior power of the combined Polish-Lithuanian state. After being defeated at the battle of Tannenberg in 1410, the Order never fully recovered, although it remained an important power in the region until the Reformation, when it was secularized and its possessions became dispersed among different secular rulers. During its heyday the German Order was one of the best organized and progressive European states; it was the only non-urban member of the Hanseatic League; its head, the Hochmeister, enjoyed the status of prince (Reichsfürst) in the Diet (Reichstag) of the Holy Roman Empire. The legal landscape in the German-controlled Baltic Coast was complicated on account of the absence of a single state power. The territory directly controlled by the German Order consisted of two main parts: East Prussia and Livland, separated by lands subject to Lithuanian control; the Livonian Landmeister usually operated independently of the Order’s headquarters in East Prussia. Then there were the lands of the bishops, who, as Western hierarchs, were temporal as well as spiritual lords, and finally, a number of towns, mostly harbour towns along the coast, enjoyed significant independence. Within the Order itself and with regard to its knightly members, German feudal law (such as the Sachsenspiegel) applied. In Livland, the towns had ­followed Riga in adopting Lübeck law. This was a natural choice, as most of them (Riga, Dorpat, Reval, Wenden, Pernau, Windau, Wolmar, Lemsal, Roop,

230

chapter 10

Kokenhusen, Goldingen and Fellin) were members of the Hanseatic League, headed by Lübeck. In East Prussia, where there were only a few members of the Hanseatic League, almost all towns had adopted Magdeburg law. For the almost entirely peasant Baltic population, its old customary law was largely maintained. The early German bishops of Livland and the German Order endeavoured to have the customary law of various ethnic groups written down, and this resulted in a collection of law books which were published and studied in the 19th century, thanks mostly to the efforts of F.G. Bunge. The general pattern of these law books is comparable to the early Germanic laws and to the Russkaia Pravda, but a considerable new layer had been superimposed on them as the result of the newly established feudal system.59 The oldest parts went back to the 13th century; new elements were added afterwards. There are separate codes for Livland, Kurland, the Dorpat (Tartu) diocese and the Ösel diocese (as published in the Nazarova edition). Lithuania and Poland The legal system of Lithuania as a grand principality, and, after 1386, as a state in a personal union with the Polish kingdom, was discussed at some length in Chapter 17 (on Western Russia). The law of Lithuania and later of PolandLithuania was applicable for centuries in most of Western and South-Western Russia.60 Lithuanian law retained its independence until the end (the partitions of Poland) and was generally closer to Russian law; in Polish law, the influence of Germany (esp. Magdeburg law) and later on also Roman law was more obvious. The oldest surviving Polish law book, the Elbinger Rechtsbuch, is of special interest for Russian legal history because it reflects surviving Slavic customary law better than later sources. It is similar to the Livland law books referred to above, in that its reduction to writing was undertaken by the feudal authorities, in this case probably clerics working for the German Order, some time after 1249.61 59

60 61

See E.L. Nazarova, “«Livonskie Pravdy» kak istoricheskii istochnik”, dg sssr 1979, Moskva, 1980, 5–218, which reproduces most of the relevant texts in Middle Low German with a Russian translation. Nazarova also provides full references to Bunge’s numerous publications. See also Küpper, op.cit., 197–204 (Lithuania) and 267–275 (Poland). The original Middle German text and Russian translation are in B.D. Grekov, Izbrannye Trudy, T.I, Moskva, 1957, 265–447 “Pol’skaia Pravda. Opyt izucheniia obshchestvennogo i politicheskogo stroia Pol’shi xiii v. po Pol’skoi Pravde («Knige Prava»)”. Elbing (Pol. Elbląg) was a Hanseatic harbour near the mouth of the Vistula, founded in 1237; Elbing itself had Lübeck law. Excerpts appear also in M.M. Freidenberg (ed.), Khrestomatiia po

Foreign Laws

231

Although Elbing was situated in land ruled by the Order (East Prussia), there is no doubt whatsoever that it reflected Polish customary law.62 Hungary and the Balkans Hungary was Russia’s neighbour while Galicia was part of the Kievan realm, i.e. until the middle of the 14th century. After Galicia’s incorporation in the Polish kingdom, Hungary and Hungarian law no longer had significant relevance for developments in Russia and in Russian law. Initially, there were several parallel factors in the formation of the Hungarian and Kievan state structures. In both cases an effective ruler introduced Christianity as the official religion, was posthumously elevated to sainthood, and emerged as a legitimizing symbol for the new state. In Hungary, however, greater unity was preserved and, more importantly, the kingdom of St. Stephen operated in a medieval European environment where the presence of the Holy Roman Empire loomed large. These factors caused Hungarian law to develop as a system which was especially akin to German law.63 Bulgaria, on the other hand, emerged as a Slavic state which bordered directly on the Byzantine empire. The “Court Law for the People” (Zakon Sudnyi liudem, see above for the special section on this subject) in its oldest version (second half of the 9th century) is connected by some scholars with the reign of the first Christian ruler of Bulgaria, khan Boris. This law was based on the Byzantine Ecloga, but very much amended to adapt it to contemporary Slavic culture. It reached Russia soon after that country’s conversion. By this time the first Bulgarian state had collapsed (in 1018) and had been incorporated into the Byzantine empire. The original zsl was subsequently reworked in Russia, resulting in the first part of the 14th century in the so-called Expanded Redaction, which was probably in use as a valid law book, a guide for judges, in Northern Russia. Bulgarian independence was restored by the dynasty founded by tsar Asen († 1096) and lasted for another three centuries, until it was overrun by the Turks. Relations with Russia were sporadic and ceased altogether after the Mongol invasion which effectively cut post-Kievan Russia off from the Balkans.

62

63

istorii iuzhnykh i zapadnykh slavian, Tom I, Epokha feodalizma, Minsk, 1987, which gives numerous excerpts from legal history sources of Bulgaria, Serbia, Bosnia, Kroatia, Slovenia, the Czech lands, Slovakia, and Poland. Its first provision read: “Let it be known to anyone who wants to know Polish law [Polensche recht] that the Poles, after embracing Christianity, have been subject to the Roman see of the Pope, and not to the emperor.” See further Küpper, op.cit., 290–301.

232

chapter 10

The legal culture of Bulgaria during this period was close to that of Byzantium and had little similarity with that of Russia.64 The complex medieval history of the numerous entities that made up 20th century Yugoslavia need not be reviewed here, as it is hardly of interest for Russian­legal history. An exception may be made for the medieval law of the Dalmatian coastal republics, specifically Poljica (orig. 14th century) and Vinodol (of 1288), because their legislations retained a number of traditional features of Old Slavic law and for that reason attracted the interest of Russian legal historians.65 This would also apply, but to a lesser extent, to the Law Code of the Serbian king (tsar) Dušan of 1349, the most ambitious legislative project to emerge from the Balkan peninsula in the middle ages. It represents a mixture of Byzantine and traditional Slavic elements.66 Byzantium See above, the section on the impact of Byzantine law. Caucasus In the Caucasus area, only Georgia and Armenia could boast legal systems of comparable sophistication during the period of medieval Russian law. Armenia, however, was in fact too far removed and belonged culturally to the world of the Crusaders and the Near East.67 Its legal system, although retaining many traditional features, was strongly influenced by Byzantium and the West-European­(mostly French) law applied in the Crusader kingdoms and 64

65

66 67

This is clearly demonstrated by the small number of charters and treaties from this period which have survived, such as the grant charter of tsar Asen ii to the Vatopedi monastery on Mount Athos, shortly after 1230 (Russian translation in Koretskii, op.cit., 686–688, and in Freidenberg, op.cit., 48–49), the confirmation charter of tsar Konstantin (1257–1277) to the St.George’s monastery near Skopje (Koretskii, 688–689; Freidenberg, 49–50), the confirmation charter of tsar Ioann iii Shishman of 1378 to the Rila monastery (Koretskii, 690–692; Freidenberg, 51–52), and others. The main source is Grekov: B.D. Grekov, Izbrannye Trudy, T.I, “Politsa. Opyt izucheniia obshchestvennykh otnoshenii v Politse xv–xvii vv., Moskva, 1957, 111–263 (comments); id., Izbrannye Trudy, T.I, “Vinodol. Vinodol’skii Statut ob obshchestvennom i politicheskom stroe Vinodola”, 3–107. Slightly abbreviated Russian translations of the Kroatian texts of the Statutes of Poljica (originally from the 14th century) and Vinodol (of 1288) in ­Koretskii, 927–945 and 917–926. Cf. Küpper, 380; partial Russian translation in Koretskii, 892–915. On early medieval Armeno-Russian contacts: Ia.R. Dashkevich, “Drevnaia Rus’ i Armeniia v obshchestvenno-politicheskikh sviaziakh xi–xiii vv. (Istochniki, issledovaniia, temy)”, dg sssr 1982, Moskva, 1984, 177–195.

Foreign Laws

233

principalities.­Georgia was nearer to Russia and had held on to a home-grown and original system of its own. But its contacts with medieval Russia were sparse.68

Rurikid Marriages as an Indication of Political and Cultural Contacts

In addition to what was said about Rurikid marriages in Chapter 13 (on the Prince), this topic is also illuminating for an insight into medieval Russia’s foreign contacts.69 After the Mongol invasion, the reservoir of foreign marriage partners dried up, with the exception of Lithuanian candidates. A much smaller number of brides (and only a few bridegrooms) of Tatar origin replaced them. Baumgarten also lists six marriages with members of Byzantine imperial families. The majority of Rurikid marriages took place within the family itself and with members of boyar families. One should take into account that in these later centuries the Rurikid stock had increased impressively; there was simply a much larger supply of marriage candidates within the dynasty itself. Up to the Mongol invasion the picture is much more varied. Baumgarten mentions 73 internal dynastic Rurikid marriages, 5 with other Russian partners, 13 with partners from the Holy Roman Empire, 13 with English and Scandinavian partners, 6 Bohemian partners, 3 Bulgarian ones, 12 Byzantine partners, 13 Turkic (various ethnic origin) partners, 7 Georgian and Ossetian ones, 15 from the Hungarian kingdom (not all ethnically Magyar), 5 Lithuanian partners, 2 French, 27 Polish partners, and 7 (Slavic) partners from Pomerania and Silesia. 68 69

See further my “Medieval Law in Transcaucasia–On the Periphery of European Legal History”, Feldbrugge, lmr, 293–314. Data from N. de Baumgarten, Généalogies et mariages occidentaux de Rurikides russes du Xe au XIIIe siècle (Orientalia Christiana, Vol.ix.-1, Num.35), 64–73, Roma, 1927; id., Généalogies des branches régnantes des Rurikides du XIIIe au XVIe siècle (Orientalia Christiana,Vol.xxv.-1, Num.91), 145–150, Roma, 1934. See also P.P. Tolochko, Dinasticheskie braki na Rusi. xii–xiii vv., Sankt-Peterburg, 2013.

chapter 11

Non-Legislative (Non-Normative) Legal Sources: Gramoty Introduction The previous chapters have dealt with the legislative sources of medieval ­Russian law. “Legislation” has been used in a wide sense, embracing not only laws in the form of statutes (generally binding rules issued by a sovereign authority), but also written materials serving a similar – normative – function: providing sufficiently general and authoritative regulation of certain aspects of social life. Additionally, one has to take into consideration the fact that medieval legislation offers a wide variety in the status of texts, from official and authentic texts of pure legislation (very rare), to copies of copies of private notes of what purports to be the law. The present chapter will discuss the non-legislative or non-normative sources of medieval Russian law. A sharp distinction between normative and non-normative materials is difficult to make. Some sources contain both (this is especially the case with treaties and with so-called ustavnye gramoty). In other cases it may be hard to determine the exact nature of a legal provision. The body of non-legislative sources consists of a wide variety of documents, such as contracts, wills, treaties, reports, instructions, depositions, requests, etc. In accordance with Russian usage, “document” is employed as the most general term; a gramota is a deed or charter, as against other documents which may be just a piece of paper or parchment with a few words on it.1 Parenthetically, it is worth remembering that a document which could not reasonably be considered a legal document (e.g. personal correspondence) may still be legally relevant and merit the attention of the legal historian. The legal character of a document depends not only on its contents, but also on its form. The practice of medieval Russia owed much to its Byzantine ancestor in this respect. The affixing of seals, the appearance of witnesses as co-signatories, and the special mention of certain surrounding circumstances (such as time and place) are among the principal features which mark a document as a legal one.2 1 The Russian term is derived from the Greek grammata (pl.,“script”, “writing”). 2 Cf. N.A. Soboleva, “K voprosu ob udostoverenii russkikh aktov v kontekste vostochno-­ rimskogo prava”, A.Iu. Dvornichenko (ed.), Issledovaniia po istorii srednevekovoi Rusi. K 80-­letiiu Iuriia Georgievicha Alekseeva, Moskva/Sankt-Peterburg, 2006, 47–61. © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_012

Non-Legislative Legal Sources

235

After introductory sections covering briefly the historiography and the principal publications in this field, the inevitable question of classification of the great mass of materials must be addressed. Then more than one hundred different types of deeds (gramoty) will be described briefly, in the manner of a dictionary, to be followed by sections on related and comparable documents. Two final sections will be devoted to two types of documents which occupy a particular and separate position among the sources of medieval Russian law: birch-bark documents discovered in the course of archaeological excavations in Novgorod and other ancient Russian cities, and the iarlyki issued by the Tatar khans, mainly to Russian church dignitaries.

Sources and Historiography before 1917

Legal documents usually constitute a significant part of the written heritage of past cultures. This also applies to the Russian middle ages. With the beginning of modern historical scholarship at the end of the 18th century and the beginning of the 19th century there was a growing awareness of the desirability of collecting and publishing these documents. Most of the early Russian publications are difficult to find in Western libraries and have also been superseded by qualitatively superior later editions. For this reason only the most important older publications will be mentioned here. Many of them have been reprinted or microfiched and will therefore be more accessible. For more complete information the various specialized bibliographies must be consulted.3 The earliest publication of medieval Russian charters was in Drevniaia Rossiiskaia Vivliofika ili sobranie raznykh drevnikh sochinenii in 1773–1775.4 More accessible to Western readers will be the official publication of state charters in five volumes, which began in 1813.5 In 1836–1838 the Imperial Academy of Sciences published four volumes of records collected by its Archeographical Expedition in the libraries and archives of the empire (abbreviated: Akty Arkheograficheskoi Ekspeditsii).6 A prominent role in the publication of ­sources (see also Chapter 2, on Sources) was played by the Archeographical 3 J. Gilissen (ed.), Bibliographical Introduction to Legal History and Ethnology, D/9, M. Szeftel, “Russia (Before 1017)”, 1966, 22–31; A. Eck, “Introduction bibiographique à l’histoire du droit russe”, Archives d’histoire du droit oriental, Vol. 2, 1938, 403–430. 4 1st edition, Sankt-Peterburg. 5 Sobranie Gosudarstvennykh Gramot i Dogovorov, khraniashchikhsia v Gosudarstvennoi Kollegii inostrannykh del, Moskva, 1813 (Vol. 1, 1819 (Vol. 2), 1820 (Vol. 3), 1828 Vol. 4), 1894 (Vol. 5). 6 Akty, sobrannye v bibliotekakh i arkhivakh Rossiiskoi imperii Arkheograficheskoiu ekspeditsiiu Imperatorskoi akademii nauk, Sankt-Peterburg, 1836–1838.

236

chapter 11

Commission, founded in 1834 (and still in existence). It was responsible for the Akty Iuridicheskie,7 the five volumes and twelve volumes of supplements of Akty Istoricheskie,8 parallel series of historical sources for Western Russia,9 and for Southern and Western Russia,10 as well as other publications. The Archeographical Commission also initiated two serial publications, both of which were continued after the October Revolution: the Russkaia Istoricheskaia Biblioteka (rib), which was begun in 1872, and the proceedings of the Commission, Letopis’ zaniatii Arkheograficheskoi Komissii. Among the privately published collections one of the earliest was a series of documents from the Riazan’ province gathered together by A.I. Piskarev.11 Other 19th century collections were published by Fedotov-Chekhovskii,12 D’iakonov13 and Likhachev.14 The well-known legal historian N.V. Kalachov published three volumes of various kinds of charters and documents for the Archeographical Commission in 1857–1884.15 Documents in private possession and deposited with the Appointments Department (Razriadnyi prikaz) after the abolition of the precedence (mestnichestvo) system in 1682 were published by A.I Iushkov.16 Other pre-revolutionary publications worth mentioning are Debol’skii’s collection of documents from the monastery of Kirill of Belozersk,17 and the publication of the collection of count Uvarov by I.M. Kataev and A.K. Kabanov.18

7 8

Akty iuridicheskie, ili sobranie form stariinogo deloproizvodstva, Sankt-Peterburg, 1838. Akty istoricheskie, sobrannye i izdannye Arkheograficheskoiu komissieiu, 5 vols., Sankt-­ Peterburg, 1841–1842, and twelve volumes of supplements, Dopolneniia k Aktam istoricheskim, sobrannym i izdannym Arkheograficheskoiu komissieiu, Sankt-Peterburg, 1846–1872. 9 Akty, otnosiashchiesia do istorii Zapadnoi Rossii, 5 vols., Sankt-Peterburg, 1846–1853. 10 Akty, otnosiashchiesia do istorii Iuzhnoi i Zapadnoi Rossii, 15 vols., Sankt-Peterburg, 1863–1892. 11 A.I Piskarev, Drevnie gramoty i akty riazan’skogo kraia, Sankt-Peterburg, 1852. 12 A.A. Fedotov-Chekhovskii, Akty, otnosiashchiesia do grazhdanskoi raspravy drevnei Rossii, 2 vols., Kiev, 1860–1863. 13 M.A. D’iakonov, Akty otnosiashchiesia k istorii tiaglogo naseleniia v moskovskom gosudarstve,­2 vols., Iur’ev, 1895–1897. 14 N.P. Likhachev, Sbornik aktov sobrannykh v arkhivakh i bibliotekakh, Sankt-Peterburg, 1895. 15 N.V. Kalachov, Akty otnosiashchiesia do iuridicheskogo byta drevnei Rossii, 3 vols., SanktPeterburg, 1857 (i), 1864 (ii), 1884 (iii); a fourth volume with indices was published separately, Sankt-Peterburg, 1901. 16 A.I. Iushkov, Akty xiii–xvii vekov, predstavlennye v Razriadnyi prikaz predstaviteliami sluzhilykh familii posle otmeny mestnichestva, Part 1 (all published), Moskva, 1899. 17 N.N. Debol’skii, Iz aktov i gramot Kirillo-Belozerskogo monastyria, Sankt-Peterburg, 1900. 18 I.M. Kataev, A.K. Kabanov, Opisanie aktov Sobraniia grafa A.S. Uvarova, Akty istoricheskie, opisannye I.M. Kataevym i A.K. Kabanovym, Moskva, 1905.

Non-Legislative Legal Sources



237

Sources and Historiography after 1917

After the October Revolution two volumes of charters deposited with the ­Department of Economic Affairs (Kollegiia ekonomii) were published in 1922 and 1929.19 The work on these volumes had already been started before 1917 by A.S. Lappo-Danilevskii, who is regarded as the founder of diplomatic studies in Russia. After the secularization of church property in the 18th century, many of the old charters in the possession of monasteries and other church institutions had been handed over to the Kollegiia Ekonomii. A complete description of the charters of the Kollegiia was started in 2016.20 In Soviet times, the central role in the publication of old documents was passed to the Institute of History of the Academy of Sciences. During the following decades, the Institute took the lead in publishing the most important collections of medieval Russian documents; its principal policy in this respect was to keep archival complexes, as they had emerged over time, intact. The first publications resulting from this policy were two collections of documents accumulated by some of the wealthiest ecclesiastical landowners of medieval Russia, the Troitse-Sergiev monastery, north of Moscow, and the Solovetskii monastery in the White Sea.21 After the Second World War these volumes were supplemented by a collection of documents from the monastery of Joseph of Volokolamsk, west of Moscow.22 A thematic, rather than archival criterion was decisive for the publication at the same time of two other volumes. S.N. Valk edited a collection of charters concerning the history of Novgorod and Pskov, covering the period of their independence from Moscow,23 i.e. until 1478 for Novgorod and until 1510 for Pskov. In the following year L.V. Cherepnin published a collection of treaties and testaments (last wills) of grand and provincial princes.24 These are of great 19

Sbornik gramot Kollegii ekonomii, t.1: Gramoty dvinskogo uezda, Petrograd, 1922, t.2: Gramoty dvinskogo, kol’skogo, kevrol’sko-mezenskogo i vazhskogo uezdov, Leningrad, 1929. 20 A.V. Antonov (ed.), Opisanie gramot Kollegii Ekonomii, T.I (A-I), Moskva, 2016. 21 S.B. Veselovskii, A.I. Iakovlev (eds.), Pamiatniki sotsial’no-ekonomicheskoi istorii moskovskogo­ gosudarstva xiv–xvii vv., Moskva, 1929, and N.S. Chaev (ed.), Severnye gramoty, ­Moskva, 1929. 22 A.A. Zimin, M.N. Tikhomirov (eds.), Kniga kliuchei, Moskva,. 1949. 23 S.N. Valk (ed.), Gramoty Velikogo Novgoroda i Pskova [gvnp], Moskva/Leningrad, 1949. A two-volume commentary to gvnp was published by V.L. Ianin in 1990, Novgorodskie akty xii–xv vv. Khronologicheskii kommentarii, Moskva, containing numerous corrections and additions. 24 S.V. Bakhrushin (comp. and ed.), L.V. Cherepnin (final ed.), Dukhovnye i dogovornye gramoty velikikh i udel’nykh kniazei xiv–xvi vv., Moskva/Leningrad, 1950.

238

chapter 11

significance for an understanding of the constitutional law of medieval Russia and of the relations between the Russian principalities. Cherepnin was also the chief editor of the three-volume “Acts of Feudal Landowning and Management”,25 of which the first volume was based on the archives of the Moscow metropolitanate and the second on those of the monastery of Joseph of Volokolamsk.26 The third volume (covering the 1521–1622 period) contained further documents concerning the Moscow metropolitanate (later on patriarchate) and especially concerning the Annunciation (Blagoveshchenskii) monastery in Nizhnii-Novgorod. These ambitious and large-scale publications from the Soviet era endeavoured to present entire archival complexes without regard to previous publication. In this respect they may be considered as having replaced these earlier publications. The plan to publish the core fund of medieval Russian documents was completed by the Institute of History with another three-volume work, specifically devoted to the Russian North-East.27 The purpose of these three volumes was to cover the most important medieval archival funds (mainly from the 15th and early 16th centuries) which had remained outside the scope of the earlier Institute publications. The first volume contained documents from the archives of the premier medieval Russian monastery, Troitse-Sergiev, and the monasteries subordinate to it. The second volume covered the other principal medieval monasteries, Kirill of Belozersk, Ferapont of Belozersk, the monastery of Simon in Moscow, and the Spaso-Evfimii monastery in Suzdal’.28 25

26

27

28

L.V. Cherepnin (ed.), Akty feodal’nogo zemlevladeniia i khoziaistva, vol. 1 (L.V. Cherepnin, ed.), Moskva, 1951; vol. 2 (L.V. Cherepnin, ed.; A.A. Zimin, comp.), Moskva, 1956; vol. 3 (L.V. Cherepnin, ed.), Moskva, 1961. The second volume formed the basis of a monograph by A.A. Zimin, Krupnaia feodal’naia votchina i sotsial’no-politicheskaia bor’ba v Rossii (konets xv–xvi vv.), Moskva, 1977. Documents from the same monastery from the 1580–1600 period were published by A.G. Man’kov, Votchinnye khoziastvennye knigi xvi v. Prikhodnye i raskhodnye knigi Iosifo-­ Volokolamskogo monastyria 80–90-kh gg., Moskva/Leningrad, 1987 (two volumes). Akty sotsial’no-ekonomicheskoi istorii Severo-Vostochnoi Rusi, vol. 1 (B.D. Grekov, ed.), Moskva, 1952; vol. 2 (L.V. Cherepnin, ed., I.A. Golubtsov, comp.), Moskva, 1953; vol. 3 (L.V. Cherepnin, ed., I.A. Golubtsov, comp.), Moskva, 1964; abbreviated asei. Later documents from the Spaso-Evfimii monastery were published by S.N. Kisterev and L.A. Timoshin: Akty Suzdal’skogo Spaso-Evfim’eva Monastyria 1506–1608 gg., Moskva, 1998. Similarly, later documents from the Moscow Simon monastery were published by L.I. Ivina: Akty feodal’nogo zemlevladeniia i khoziaistva – Akty Moskovskogo Simonova Monastyria (1505–1613 gg.), Leningrad, 1983. Charters from the Troitse-Sergiev monastery from part of this later period were published by A.A. Novosel’skii and L.V. Cherepnin (eds.) and S.B. Veselovskii (comp.): Akty Russkogo gosudarstva 1505–1526 gg., Moskva, 1975.

Non-Legislative Legal Sources

239

The ­Troitse-Sergiev monastery was founded around 1380, and the others respectively in 1397, after 1408, around 1370, and around 1360. The collections extend to the year 1505 or occasionally a few years later, The third volume brought together a number of smaller archives, of monasteries as well as of landowning families; it covered the period from around 1294 until the beginning of the 16th century. During the post-war period, several collections of charters from specific areas and towns were published.29 Also, the publication of smaller clusters of newly-discovered charters was continued.30 During the following post-Soviet period, these various efforts at making archival materials accessible went on uninterruptedly and important new initiatives were taken. I.Z. Liberzon collected more than 1300 charters from the Solovetskii monastery, covering the period from 1479 to 1584.31 Documents from three Moscow monasteries and from the Uspenskii and Arkhangel’skii cathedrals in Moscow were published under the editorship of V.D. Nazarov.32 Almost 2000 documents, originating from the private archives of landed families and covering three centuries (from around 1400 until 1700), were published by A.V. Antonov and K.V. Baranov.33 Antonov also acted as the editorin-chief of the series Russkii diplomatarii, which started in 1997 and offered 29

30

31

32

33

R.I. Avanesov (ed.), Smolenskie gramoty, Moskva, 1963; A.L. Khoroshkevich (ed.), Polotskie gramoty xiii – nachala xvi vv., Moskva, 1977 (i), 1978 (ii); G.N. Anpilogov (ed.), Nizhegorodskie dokumenty xvi veka (1588–1600), Moskva, 1977; V.M. Rusanivs’kyi (ed.), Ukraïns’ki hramoty xv st., Kyiv, 1965; M.M. Peshchak (ed.), Hramoty xiv st., Kyiv, 1974. A notable series of publications is Russkii feodal’nyi arkhiv xiv – pervoi treti xvi veka, Moskva, 1986 (i), 1987 (ii, iii), 1988 (iv), 1992 (v), edited by V.I. Buganov and compiled by A.I. Pliguzov and G.V. Semenchenko. As a one-off continuation of this series A.I. Pliguzov published a work with the same title in 2008 (Moskva), containing the entire Synodal collection No. 562 of the State Historical Museum (gim); this collection represents an official sbornik (collection) of the metropolitan chancery from the period indicated and is of great interest for the Church-state relationship of this era. I.Z. Liberzon (comp.), A.I. Kopanev, N.E. Nosov (eds.), Akty sotsial’no-ekonomicheskoi istorii Severa Rossii kontsa xv–xvi vv. Akty Solovetskogo monastyria, 1479–1571 gg., Leningrad, 1988 (i), 1572–1584 gg., Leningrad, 1990 (ii). V.D. Nazarov (ed.), Akty Rossiiskogo gosudarstva. Arkhivy moskovskikh monastyrei i soborov xv – nachalo xvi vv., Moskva, 1998. Another collection of monasterial charters was S.N. Kisterev, L.A. Timoshina (eds.), Akty Troitskogo Kaliazina monastyria xvi g., Moskva/ Sankt-Peterburg, 2007; the Troitskii Kaliazin monastery, north-west of Moscow, was founded around 1434. This collection is a continuation of the series of charters from the same monastery published in asei iii, Nos. 128–174. A.I. Antonov, K.V. Baranov (eds.), Akty sluzhilykh zemlevladel’tsev xv – nachala xvii veka, Moskva, 1997 (i), 1998 (ii), 2002 (iii), 2008 (iv).

240

chapter 11

the full text of hundreds, and summaries (regesta) of thousands of documents from the 13th to the 17th century, of various provenance.34 A valuable collection of English translations of eighty medieval Russian charters was published by Dewey and Kleimola in 1973.35 The document collections known as pistsovye knigi and razriadnye knigi will be discussed below in the section on documents other than gramoty.

Classification of Documents

Russian and Soviet literature has paid much attention to the question of classifying large numbers of medieval legal documents. At the beginning of this chapter we opted for making the normative significance of a document the basic classificatory criterion, because this is the most practical approach for the legal historian. The basic characteristic of a normative document is that it functions beyond the individual case, that it has a wider effect in time and space, and that it is therefore of special interest in describing the history of the law. For this reason normative or legislative sources have been taken together and discussed in chronological order, with a view to illuminating their mutual relations. The dichotomy between normative and non-normative is self-evident for modern lawyers and needs no further explanation. This has not always been the case, and the dichotomy is therefore not to be taken for granted in legal history, nor in legal theory for that matter. Legal rules have often arisen from decisions in individual cases or resolutions of concrete questions; only more sophisticated legal cultures institute separate procedures for making rules and for deciding individual disputes. (See also Chapter 2, on Sources, and the section on legislation in Chapter 14, on the Prince’s Government.) Most documents can be classified without serious problems as either normative or non-normative. The major documents in the former category have been discussed in the preceding chapters. Hundreds, thousands indeed of documents of the latter category have been published in the numerous collections referred to above. There remains a not insignificant number of ­documents occupying an intermediate position and displaying a gradual t­ ransition from 34

35

A.I. Antonov (ed.), Russkii diplomatarii, Moskva, 1997 (i); T.X appeared in 2004. T.viii (2002) contained thousands of summaries of charters from private archives of hundreds of landed families, going back as far as 1390. H.W. Dewey, A.M. Kleimola (eds.), Russian Private Law in the xiv–xvii Centuries. Michigan Slavic Materials, No. 9, Ann Arbor, 1973.

Non-Legislative Legal Sources

241

purely normative to purely non-normative. A prominent example is the ­so-called Testament (Rukopisanie) of Vsevolod Mstislavich, which was discussed in Chapter 6 (on Princely Statutes) because it contains a text which can be regarded as the charter of the St. John the Baptist’s guild of Novgorod merchants. The major part of the document is taken up, however, by various concrete and individual measures of a fiscal nature. Another distinction, basic to modern lawyers, is the one between public and private law. But in a medieval setting, where the ‘state’ is often conceived of as part of the estate of a prince, the distinction is often dysfunctional. The testaments of the Moscow grand princes, particularly the early ones, offer a good illustration (see the relevant section in Chapter 13, on the Prince). Along with gold and silver, weaponry and other possessions, and the ownership of tracts of land, the lordship of Moscow is also bequeathed by the testator to his eldest son. Similar situations, but on a more modest scale, occur in various types of charters, where a plot of land is donated, together with certain judicial and/or fiscal rights. With these caveats, the main problem of devising a system for classifying medieval legal documents can be tackled. It has been extensively discussed in Russian and Soviet literature and various criteria have been put forward. D.M. Meichik chose the position of the author of the document as the decisive factor in constructing his typology. Was the document issued by somebody­ in an official capacity, or was it drawn up by a private citizen?36 This device re-introduced the public-private quandary and, not surprisingly, Meichik had to have recourse to a third and intermediate category. A similar, but more elaborate scheme was proposed by S.A. Shumakov,37 who placed church documents in a special category, but otherwise adhered to Meichik’s basic division between officially issued and private documents. A.S. Lappo-Danilevskii, the author of the first book-length treatise on diplomatic studies in Russia,38 added another distinction to the public-private dichotomy. He distinguished on the basis of content between declaratory (osvedomitel’nye) and constitutive (udostoveritel’nye) documents.39 The first category refers to some legally relevant event having occurred in the past and 36 37 38 39

D.M. Meichik, Gramoty i drugie akty xiv–xv vv. Moskovskogo arkhiva Ministerstva Iustitsii, 1884, 2–3. S.A. Shumakov, Obzor gramot kollegii ekonomii, Part 4, Moskva, 1917, 3–43. A.S. Lappo-Danilevskii, Ocherk russkoi diplomatiki chastnykh gramot, Sankt-Peterburg, 2007 (orig. Petrograd, 1920). The explanation given by the author (op. cit., 40) shows that “declaratory” and “constitutive” are indeed the meanings he had in mind.

242

chapter 11

serves to prove and confirm the legal consequences of this event. The second category embodies the legally relevant event and is far more common in the collections. Again, the distinction is not as sharp as one might expect; it is not always clear whether the effect of the charter is merely declaratory or whether it actually creates a new legal situation. When a document is drawn up in order to define the exact boundaries between two pieces of land (mezhevaia gramota)­it can be done for a purely declaratory purpose or in order to embody an agreement reached between adjoining landowners about a disputed boundary. Soviet authors, in accordance with their penchant for contrasting form and content, rejected a classification based on the position of the document’s author as formalistic, and argued that the contents of the document, looked at from a Marxist-Leninist viewpoint, should supply the decisive criterion. This resulted in a first distinction between socio-economic and political documents in a proposal advanced by A.A. Zimin.40 This proposal was amended and expanded by Cherepnin, enlightened, he claimed, by I.V. Stalin’s teachings on feudalism and the feudal state.41 Cherepnin defined nine groups of documents, ranging from “documents which characterize the struggle of the feudal lords for the means of production and especially for land” to “documents of ecclesiastical law”. No matter how different these proposals may appear, if one looks more closely, beyond the theoretical foundations, at the actual breakdown of the various categories into smaller groups of documents, it transpires that there is much similarity in their detailed elaboration. Obviously, charters pertaining to the sale, gift or exchange of land are closely related, irrespective of the ideological­position taken. The same goes for the different types of grant charters, bestowing fiscal or judicial immunities. It would seem therefore that, phraseology apart, the differences between traditional Russian and Soviet approaches were not so enormous. One could allow Cherepnin the view that content should be the decisive factor, recognizing at the same time that the contents of a medieval Russian document were usually closely connected with the position of the document’s author. A grant charter, for instance, was usually issued by a prince. After the content of a document as the principal distinguishing criterion, additional aspects present themselves which may have relevance for a particular purpose. Geographical origin is of interest in comparing local and regional differences between documents, or when one’s attention is directed at 40 In an unpublished course programme, according to Cherepnin, Arkhivy ii, 62. 41 Cherepnin, Arkhivy ii, 62–63.

Non-Legislative Legal Sources

243

a particular locality. In this respect the contrast between Novgorod and other North-West Russian documents and those of Central Russian provenance is important.42 Novgorod, an outward and westward-looking republic in a conglomerate of inward and eastward looking principalities, occupied a unique and eccentric place in medieval Russia. This was also reflected in the style of Novgorod documents, where the author of the text is presented in the third person (“Ivan Petrovich has bought from Andrei Nikolaevich …”), instead of the usual Russian formula with the first person (“I, Ivan Petrovich, have bought from Andrei Nikolaevich …”). There are also terminological differences, as well as dialectological ones. The position of the author (the person issuing the document) becomes a prominent criterion for classification in studies devoted to specific agents or institutions. The most notable example in this respect are the treaties between princes and the last wills (testaments) of princes, constituting the chief source of knowledge concerning the position of the medieval Russian princes, their mutual relations and the mechanics of the ascent of the grand princes of Moscow.43 The chronological criterion is seldom decisive, but always relevant, in order to provide the necessary diachronic perspective. The oldest charters date from the 12th century; there is only a trickle from the 13th and the earlier part of the 14th centuries; a more plentiful supply starts around the last decades of the 14th century and the vast majority dates from the 15th century. The possibilities for chronological comparison are restricted by this uneven supply. Although this work is devoted in principle to the period preceding the enactment of the Code of Ivan iii in 1497, this cut-off date cannot be applied too strictly to the topic of charters. The life of the law in Russia continued after 1497 much as it had done before and the major collections of Russian charters usually run on into the 16th or even the 17th century. All in all, the emphasis will be on the mass of 15th and 16th century charters. Archival origin may also be used as a criterion for classifying charters.44 Charters are rarely discovered as single documents; they usually form part of larger collections and these collections have their own history. The bulk of Russian medieval charters has been preserved through the archives of the great monasteries, first among which was the Troitse-Sergiev monastery, the biggest 42 43 44

Cf. N.N. Pokrovskii, Aktovye istochniki po istorii chernososhnogo zemlevladeniia v Rossi xiv – nachala xvi v., Novosibirsk, 1975, 47–48. Collected and edited by S.V. Bakhrushin, Dukhovnye i dogovornye gramoty velikikh i udel’nykh kniazei xiv–xvi vv., Moskva/Leningrad, 1950. This question is discussed at length by Cherepnin in his Arkhivy ii, Chapter 1 (10–64).

244

chapter 11

private landowner in Russia. The state archive of the Moscow grand princes constituted another eminent treasure of medieval documents. The landholdings of the major monasteries were so vast that the latter were induced to set up elaborate administrative offices to keep track of their estates. These offices assembled coherent collections into kopiinye knigi (lit. “copybooks”); most of the presently available charters have survived in this form. Those that have come down in originali did so through the Kollegiia Ekonomii, set up (as noted above) to administer church property after the secularization of ecclesiastical land in 1764. Along with kopiinye knigi, the monasteries maintained pistsovye knigi, land registers containing all kinds of information concerning­monasterial land (type of land, population, habitation patterns, etc.). Another type of document from the monasterial administration was the formuliarnik, a set of sample documents for the use of the land offices, especially the chancery of the Moscow metropolitanate (patriarchate, after 1589). Some designations of charters are very general and are usually combined with another more specific characteristic indicating the actual content of the charter. A chelobitnaia is a petition, a zhalobnaia a complaint, a dogovornaia or dokonchal’naia an agreement, a riadnaia an agreement concerning property, a dertnaia a ‘definitive’ charter, none of them revealing what the charter was about. Other designations concern only a particular aspect of the charter, such as its form: charters confirmed by oath (krestotseloval’naia, prisiazhnaia, shertnaia), counterfeit charters (l’zhivaia), circulars (okruzhnaia), confirming charters (podtverditel’naia), charters in the form of a report (dokladnaia), lists (perechnevaia), copies (protivnaia), renunciation charters (otstupnaia, otpisnaia), charters issued by a prince or his representative (posyl’naia). When content is considered, there are private law charters, referring to all kinds of private law transactions: gift charters (dannye), deeds of sale (kupchie), repurchase charters (vykupnye), deeds of exchange or barter (menovnye), leases (naemnye), loans (zaemnye, kabal’nye), mortgages or pledges (zakladnye), amicable settlements (mirovye), warranties (ochishchal’nye, poruchnye), charters concerning boundaries (otvodnye, mezhevye, delovye, razdel’nye, raz”ezdnye), land purchases by peasants (posil’nye), undertakings to refrain from something (zariadnye); in the sphere of marriage and family law: last wills (dukhovnye, izustnye), gifts mortis causae to monasteries (vkladnye), betrothals (sgovornye), divorces (rospusknye). Of mixed public-private character are those charters which record the lease of a public office (otkupnye) or various charters concerning the entering into or release from an unfree status (serfdom, bondage, slavery): kholop’i, otpustnye, polnye, poriadnye, sluzhilye, vol’nye gramoty.

Non-Legislative Legal Sources

245

Other charters, issued by a prince or another public authority, are in the public sphere. The most general term is zhalovannaia (a grant). This category further includes various travelling documents (berezhnye, opasnye, podorozhnye,­ proezzhie), charters conferring land or an official position (kormlennye, mestnye, nevmestnye, pomestnye, votchinnye), judicial immunities (nesudimye, srochnye), charters releasing from a public law obligation (oslobozhonye), ­charters enjoining peasants to obey a new master (poslushnye, vvoznye), official orders or instructions (ukaznye, posyl’nye, pogonnye), charters conferring various privileges (okhrannye, zapovednye), excerpts from land registers (sotnye). Other special categories in the public sphere are the various types of legislative charters (gubnye, sudnye, tamozhennye, ustavnye); the most important of these have already been discussed in Chapter 8, on Local and Provincial Charters. Of considerable significance are also the fiscal privileges (bezdannye, l’gotnye, obel’nye, obrochnye, tarkhannye). Among the charters connected with the courts and their activities are the judgment charters (pravye) and others (beglye, bessudnye, obysknye, poletnye, pristavnye, mirovye, zazyvnye). In the sphere of international relations one finds treaties in general (usually called dogovornye gramoty, dogovory or dokonchaniia), peace treaties (mirnye or peremirnye), declarations of war (razmetnye, vzmetnye, skladnye), and letters of credence (veritel’nye). Finally there are several types of charters concerning ecclesiastical appointments (blagoslovennye, nastol’nye, povol’nye, stavlennye).

Alphabetical Dictionary of Gramoty

The following abbreviations have been used, along with several others, included in the general List of Abbreviations (asei; Cherepnin, Arkhivy; ddg; gvnp; prp; Pushkarev, Dictionary). afzkh AIuB Akty Ross. Gos. Akty Russk. Gos. Akty sluzh. zemlevlad.

Akty feodal’nogo zemlevladeniia i khoziaistva, 1951–1956 N. Kalachov (ed.), Akty, otnosiashchiesia do iuridicheskogo byta drevnei Rosii, 1857–1884 V.D. Nazarov (ed.), Akty rossiiskogo gosudarstva. Arkhivy ­moskovskikh monastyrei i soborov xv – nachala xvii vv., Moskva, 1998 S.B. Veselovskii (comp.), Akty russkogo gosudarstva 1­ 505–1526, Moskva, 1975 A.V. Antonov, K.V. Baranov (eds.), Akty sluzhilykh zemlevladel’tsev xv – nachala xvii veka i–iv, 1997–2008

246 Akty Solovetsk. mon. Dewey, Russian Private Law Ivina-afzkh Russkii Diplomatarii

chapter 11

I.Z. Liberzon (comp.), Akty Solovetskogo monastyria 1­ 479–1571 gg., Leningrad, 1988 H.W. Dewey, A.M. Kleimola, Russian Private Law in the xiv– xvii Centuries. Michigan Slavic Materials, No. 9, 1973 L.I. Ivina (ed.), Akty feodal’nogo zemlevladeniia i khoziaistva. Akty Moskovskogo Simonova Monastyria, Leningrad, 1983 A.V. Antonov (ed.), Russkii Diplomatarii, 1 (Moskva, 1998) →

Beglaia gramota A court document, ordering the return of a fugitive (beglyi) slave to his master. This is the usual definition of this term, occurring only in art. 20 of the Code of 1497. According to this provision, urban and rural lieutenants (namestniki and volosteli) who did not possess full jurisdiction (who enjoyed kormlenie without the right of a boyar court; see Chapter 22, on Courts) were not allowed to release slaves without reporting (doklad) to higher authorities, or to issue beglye gramoty.45 Berezhnaia (Berezhonaia) gramota Defined by Vernadsky-Pushkarev as a “protective charter, safe conduct”.46 Bessudnaia gramota A default judgment, a document issued by the court to one of the parties in a dispute, without a trial, on the mere grounds of the other party’s failure to appear in court at the appointed time. A modest number of such default judgments, of fairly similar format, is known from the second half of the 15th century.47 They usually begin with an identification of the party present and the prince exercizing jurisdiction; the party briefly relates his case in the first person, concluding that his opponent has not shown up. Then the document reports that the judge (the prince), after examining the summons, has issued a default judgment in favour of the party present. Art. 27 of the Code of 1495 is devoted to default judgments. The court clerk (d’iak) was responsible for issuing them, after investigating the terms which had been set for appearance in court. They were written out by the scribes 45 Cf. Cherepnin, Arkhivy ii, 342; prp iii, 389; Pushkarev, Dictionary, 24. 46 Pushkarev, Dictionary, 24. 47 Cf. Cherepnin, Arkhivy ii, 231, 343. Examples in asei i, 238–239 (No. 329), 362 (No. 479); asei ii, 102–103 (No. 167); afzkh i, 221 (No. 257). Translations of asei i (No. 479) and afzkh i (no. 257) in Dewey, Russian Private Law, 38–40.

Non-Legislative Legal Sources

247

(pod’iachie) and issued on the eighth day after the trial date, although other periods also occurred. Default judgments are also mentioned in arts. 25, 32 and 36 of the same Code. Bezdannaia gramota A document which freed the recipient from the payment of dan’ (tribute). Blagoslovennaia gramota A document containing a blessing from a church hierarch, especially a charter confirming the appointment by the bishop of a lower church dignitary. The texts of such documents indicate that the dignity was conferred by the blessing itself. The bishop’s blessing could concern the appointment of an abbot or a priest, but also the building of a church.48 Chelobitnaia gramota A petition; such a document, also known as a chelobit’e, was the normal means of addressing a petition, request or complaint to the prince or another person of exalted status in Muscovy. The literal meaning of chelobit’e is “beating of the forehead” (against the ground), as a sign of submission. The usual opening words of such a document were: “nn. [followed by an indication of social standing, rank, position, etc.] has beaten his forehead [se bil chelom] before [name and rank of person addressed], speaking as follows”, and then these words were followed by a direct account of the case from the petitioner’s point of view.49 Dannaia gramota A gift charter, a donation. Hundreds of gift charters are known from the period preceding the Code of 1497.50 Among the donors mentioned in the gift charters one finds private citizens, persons of princely rank and, rarely, church dignitaries.51 Where princely donors are concerned, a distinction must be made between gifts of a private nature and gifts with a significant or predominant 48 Pushkarev, Dictionary, 24. Examples in asei ii, 58–59 (No. 97); AIuB i, 63–69 (Nos. 24–27). 49 Cf. Dewey, Russian Private Law, 3–5. 50 One of the oldest known dannye is gvnp, No. 104 (161–162), a gift of around 1200 by Varlaam Mikhailovich to a Novgorod monastery, the oldest private charter in Russia, available in the original. See S.M. Kashtanov, Iz istorii russkogo srednevekovogo istochnika. Akty x–xvi vv., Moskva, 1996, 87–88. A few old (14th century) gift charters from Western Russia in M.M. Peshchak (ed.), Hramoty xiv st., Kyiv, 1974. 51 A rare example is a gift by the archbishop of Rostov in 1434, asei i, 90–91 (No. 113).

248

chapter 11

public law aspect. In the latter instance the prince acted in his capacity as ­territorial ruler. In such cases the verbal form of “to give” is then accompanied in the formula of the charter by the corresponding form of “to grant”. These charters are usually called zhalovannye dannye or simply zhalovannye. The gift of a property may also be accompanied by the granting of fiscal or judicial privileges (immunities) and such not uncommon charters are then referred to as zhalovannye dannye, tarkhannye i nesudimye gramoty (gift charters granting fiscal and judicial immunity).52 The donee was usually a monastery and occasionally a church in Moscow or Novgorod. Among private persons, donations between ascendants and descendants. were not common, because the desired effect could normally be achieved informally during the donor’s lifetime. If only a post mortem effect was envisaged, a testament would be the solution, if the donee was not already the donor’s heir of intestacy. Donation between private persons inter vivos therefore, as a rule, occurred only if there was a specific reason for transferring the property right away, without waiting for the death of the donor.53 The object of the donation, as described in the gift charters, is nearly always real property. This is not surprising, as the gift of movable property can easily be effected through the actual transfer of the object donated. The reason for preferring the written form in the case of real property is in the evidentiary force of the charter. The same argument applies to the gift of ‘invisible’ rights, particularly rights concerning real property. Several gift charters embody the gift of fishing rights in specific bodies of water.54 The few instances where movable property was included in gift charters concerned mixed donations: where movable property was donated together with real property, for instance the gift charter of a village, enumerating all the assets of which the village consisted.55 Most of the available gift charters are of a type called vkladnaia, by which the donee (always a monastery) is favoured so that the monks will remember the donor and his living and deceased relatives in their prayers (na pominok or po dushi).56 52 53

54 55

56

E.g. asei i, 326 (No. 436). Illustrated by asei i, 364–364 (No. 483), the gift of a village to a daughter and her husband, on the condition that the donor (mother) is kept and cared for for the remainder of her life; also gvnp, 203 (No. 156), gift of a share in the donor’s property to a daughter and her husband, on the condition that they assume the care of the donor’s son and two other daughters. Charters granting fishing rights were normally issued by a prince and had a public law character; they are then designated as zhalovannye dannye; e.g. asei i, 47–48 (No. 41). E.g. asei i, 64 (No. 71), where all property, movable and immovable, was listed; gvnp, 203 (No. 156), where one half of the movable property and one third of the real property were donated. Cf. Cherepnin, Arkhivy ii, 65–70.

Non-Legislative Legal Sources

249

Occasionally, other more secular conditions were added in the charter, such as the right for the donor or his heirs to buy the property back or exchange it for another.57 Some gift charters contained references to other obligations of the monastery, such as the payment of a sum of money to the donor or to third persons; in such cases the transaction’s character as a donation can be much diluted, even if would still be designated as a dannaia.58 Gift charters sometimes indicate the exact extent of the property by listing its boundaries; others refer to local knowledge and usage by designating the property only by name and a general formula, such as “as far as the axe, the scythe, the sickle and the plough go”.59 It was also not unusual to indicate the title of the property’s donor, by stating that the property donated was part of his inherited estate (votchina) or by naming the person from whom he had acquired it. Delovaia gramota A charter dividing property, especially real property. The number of extant delovye is small. An essential element of a delovaia is of course an indication of the shares into which the property was divided. The question of who received what is not always answered and may be left to the drawing of lots. A delovaia may be of a purely private character, but it may also concern the dividing of property between ruling princes, with the accompanying division of judicial and fiscal powers.60 Another name for this type of charter is razdel’naia.61 Dertnaia gramota A document repealing an earlier document or confirming ownership of a landholding. The approximate meaning of dertnaia or dernovataia is “final” or “definitive”.62 57 58

E.g. asei ii, 157 (No. 237). Cf. N.N. Pokrovskii, Aktovye istochniki po istorii chernososhnogo zemlevladeniia v Rossii xiv – nachala xvi v., Novosibirsk, 1973, 48. The relevant section in Pokrovskii’s book on dannye, kupchie and menovnye (46–62) had been published earlier as “Kupchie, dannye i menovnye gramoty kak istochnik po istorii chernososhnogo zemlevladeniia Rossii xiv – pervoi chetverti xvi v.” in Novoe o proshlom nashei strany [Tikhomirov memorial volume], Moskva, 1967, 79–90. 59 E.g. asei ii, 136 (No. 210). 60 E.g. asei ii, 360–361 (No. 476). 61 E.g. gvnp, 191 (No. 137), 234 (No. 204); asei i, 422 (No. 543). 62 Pushkarev, Dictionary, 24. A grant charter of Ivan iv of 1539 contains the formula: “And there is not any dertnaia gramota affecting this grant charter of mine” (prp iv, 113). References to dertnye gramoty may be found in other charters, afzkh ii, 62 (No. 62), 63 (No. 63), 129 (No. 133), 133 (No. 135).

250

chapter 11

Dogovornaia gramota An agreement, especially a treaty. International and internal Russian treaties (between princes) are discussed in other chapters. Treaties were an important instrument in spreading Moscow’s hegemony and there are numerous treaties between the grand princes of Moscow and other princes; they usually go by the name of dokonchal’nye gramoty. Dokladnaia gramota A document by which a contract or a unilateral act of an official is referred to a higher authority for approval or confirmation. The higher authority is usually the Moscow grand prince, another grand prince or provincial prince, his agent (a particular boyar, a steward, a lieutenant, etc.), or occasionally the metropolitan or a bishop.63 The dokladnaia rarely stood by itself; it was normally the form assumed by another document, such as a court judgment, deed of sale, barter or pledge, etc. Whenever such documents were transmitted through the process of doklad (report) to somebody in authority, they were designated as dokladnye. The purpose of the doklad could be the securing of the approval of a higher authority, or merely the notification to the latter of the matter contained in the document reported, thereby increasing the evidentiary force of the original document. Among the contracts covered by dokladnye one finds sales,64 barter (exchange),65 pledges,66 loans,67 enserfments,68 leases,69 and others. In their simplest form these dokladnye represent a brief record of the transaction, reported by one of the parties to the prince (or another authority). More intricate forms first describe the original transaction and then record how this transaction was reported to the prince, who then questioned the other party as to the truthfulness of the description of the transaction and finally affixed his 63

64 65 66 67 68 69

E.g. afzkh i, 50–51 (No. 33), reporting the grant of a use for life of a plot of land to the metropolitan, and id., 53 (No. 37), reporting the lease of a plot of land to the same. Both documents were also published in AIuB i, 493–494 (No. 69-ii) and 491–492 (No. 69-i). E.g. asei ii, 16–23 (Nos. 2–7, 10–13); AIuB i, 494–495 (No. 69-iii); asei iii, 387–388 (Nos. 365, 367). E.g. asei iii, 170–173 (Nos. 150, 153, 155, 156), 175 (No. 160), 178 (No. 166). E.g. asei i, 151 (No. 216), the same document in AIuB ii, 5–6 (No. 126-iii); asei iii, 448 (No. 465). E.g. asei iii, 374–374 (Nos. 348–350), 381 (No. 358). E.g. asei iii, 411–414 (Nos. 392–396), 416–417 (Nos. 400–401), 418–424 (Nos. 404–414). E.g. afzkh i, 53 (No. 37), the same document in AIuB i, 491–492 (No. 69-i).

Non-Legislative Legal Sources

251

seal to the document describing the original transaction and the doklad proceedings.70 In some cases the doklad proceedings were recorded as a separate entry on the same sheet as the original transaction.71 Court documents could also assume the form of a dokladnaia or a dokladnyi spisok.72 The document then started with a record of the trial, beginning with a statement by the plaintiff, usually in direct speech. This was followed by a statement of the defendant, the evidence of witnesses and interrogation by the judge, all of which were usually in direct speech. No judgment followed at the end of the proceedings, but the document recorded that the case was reported to the prince or a judicial officer representing him. At this higher forum­the parties were questioned again as to the correctness of the initial proceedings and then the higher judge decided on the matter and instructed the lower judge to pronounce judgment accordingly. The lower judge would issue the final judgment and provide the winning side with a copy of it (pravaia gramota).73 This doklad procedure was typical for medieval Russian law, where it took the place of ordinary appellate proceedings. The lower judge could refer the case to the higher judge, either because he was not sure how he should decide, or because he was not competent to decide the case.74 The doklad procedure is mentioned in the Code of 1497 (arts. 16, 20 and 24) and also in the Court Charter of Novgorod (arts. 6, 20, 26 and 29). It was still included in the Ulozhenie of 1649 (Ch. 10, art. 2). Occasionally, last wills were presented to the bishop (or metropolitan) and thereby assumed the character of dokladnye. In such cases the bishop would act as a supervisor of testamentary dispositions.75 Dokonchal’naia gramota See Dogovornaia gramota. Dukhovnaia gramota A last will or testament. In fact any document which contained instructions about what was to happen after the death of the de cuius could be called a 70

71 72 73 74 75

E.g. afzkh i, 50–51 (No. 33), a doklad, not to the prince, but to the metropolitan. In this case (the grant of the use for life of a plot of land) the transaction appeared to be a gift, but as both parties entered into mutual obligations, there was undoubtedly a synallagmatic contract. E.g. asei i, 151 (No. 216), quoted above; asei i, 333–334 (No. 446). E.g. asei iii, 87–88 (No. 56), 181–189 (Nos. 172–173), 217–223 (Nos. 208–209). Cf. Cherepnin, Arkhivy ii, 231. Cf. Dewey, Russian Private Law, 44–45. E.g. asei i, 523–525 (No. 612), translation in Dewey, op. cit., 229–231.

252

chapter 11

dukhovnaia or dushevnaia gramota (lit. “soul charter”). In the last will itself the term “handwriting” (rukopisanie) is often used. Such rukopisaniia need not concern the fate of the testator’s estate. The earliest known example is the so-called Testament of Vladimir Monomakh, inserted in the Chronicle in the year 1096, which consisted of an account of the author’s life accompanied by various admonitions to his sons (discussed in several other parts of this work). Similarly, the oldest known private will, of the abbot Antonii Rimlianin in Novgorod († 1147), had almost nothing to say about his estate, but was mostly concerned with the running of the monastery.76 Even among later wills, some were mainly concerned with spiritual matters, such as the will of the founding abbot of the Belozersk monastery, Kirill († 1427).77 But one of the oldest surviving original private charters (1270 or earlier), the testament of Kliment, a rich and apparently childless Novgorod merchant, listed in detail the destination of the various parts of his estate.78 Most of the numerous extant texts of wills benefitted monasteries. This is not necessarily indicative of a tendency to accumulate monasterial wealth at the expense of secular fortunes.79 In the most common case of an estate passing­to descendants, there was usually no need to make a will. Only when property was left outside the circle of descendants, was a will called for. Since monasteries were more careful in keeping records than private citizens, wills which mentioned monasteries as beneficiaries had a much better chance of survival. Wills often did not provide full instructions concerning the entire estate, but only specific dispositions, such as an instruction to the heirs to respect the sale of a certain plot of land to a monastery.80 Bequests were sometimes ­accompanied by the obligation to pay a fixed sum to the widow.81 76

77 78 79 80

81

gvnp, 159–161 (No. 103); prp ii, 106–107. See S.M. Kashtanov, Iz istorii russkogo srednevekovogo istochnika. Akty x–xvi vv., Moskva, 1996, 84–86; see also M.N. Tikhomirov, “O chastnykh aktakh v Drevnei Rusi”, id., Drevniaia Rus’, Moskva, 1975, 240–266, at 248–257 (orig. in Istoricheskie zapiski, t.17 (1945), 225–244). asei ii, 277–279 (No. 314). gvnp, 162–163 (No. 105); prp ii, 108–110. See also Kashtanov, op. cit., 88–89. As seems to be suggested by Cherepnin, Arkhivy ii, 75, in his discussion of dukhovnye gramoty. E.g. gvnp, 202 (No. 155); id., 241–242 (No. 217) – a simple bequest. See also the section on succession law in Chapter 19, on the Individual and the Family, where the point is made that Russian law did not follow the Roman law rule that one cannot die partly testate, partly intestate. E.g. asei i, 379–380 (No. 501) and asei i, 46 (No. 38): bequest of a village to a monastery, with the obligation to maintain the widow out of the income from the village. See

Non-Legislative Legal Sources

253

Where the last will apparently dealt with the entire estate of the testator, left to his children, the purpose was usually to make suitable provision for the widow and to prevent discord among the heirs by assigning specific shares to the heirs individually. Most of such wills concerned landholdings82 and listed the villages and possessions allotted to the individual heirs, often containing a report of the survey (otvod, see Otvodnaia gramota), describing the exact size and location of the different plots.83 Although most wills were merely concerned with real property, a number of more elaborate ones also paid attention to the fate of specific categories of unfree persons, belonging to the testator’s estate.84 Such wills did not relate to the general (unfree) rural population, considered to be part and parcel of the villages, but to slaves and other unfree persons in the personal service of the testator. 15th century wills usually provided for their emancipation.85 Occasionally, cattle and other valuable movable property, such as icons, jewels and clothes, were also named in wills.86 Many wills contained an account of the testator’s debts and financial claims, with instructions to the heirs or executors to pay the debts and collect on the claims.87 Last wills almost invariably began by an invocation of the Trinity (the Sign of the Cross), followed by such words as: “I, God’s servant nn., write this last will during my lifetime and being of sound mind, [in order to state] who owes me something and to whom I give something”. The more elaborate wills then proceed to list the debts and claims of the testator. Then follow the actual testamentary dispositions. Even where the bulk of the property was left to descendants or other relatives, some gift was usually made to a monastery or a church to remember the souls of departed parents or other relatives, or for the soul of the testator him- or herself. The concluding part of the will consisted of a record of the witnesses and the person who transcribed the will (usually a clergyman) and then, at least in Novgorod wills, a warning that anybody contesting the will or violating its provisions would have to answer before God. Wills in Central Russia were often presented to the bishop for his visa. This was recorded on the will itself, often with a short record of the hearing before the

82 83 84 85 86 87

also Cherepnin, Arkhivy ii, 75. A similar, but different situation arose in gvnp, 265–266 (No. 256): bequest with obligation to pay a debt of the testator. E.g. gvnp, 329 (No. 344); afzkh ii, 18–20 (No. 15). E.g. asei i, 344–345 (No. 457). E.g. asei i, 86–87 (No. 108); id., 162 (No. 228). Such as the above quoted asei i, 379–380 (No. 501) and 86–87 (No. 108). E.g. asei i, 31–32 (No. 11), 162 (No. 228), 181–183 (No. 253). E.g. asei i, 337–338 (No. 450).

254

chapter 11

bishop or his official, where the various parties were interrogated about the discharge of the duties imposed on them or the receiving of what was due to them.88 A very special category is formed by the last wills of ruling princes. A number of the most important of such wills have been published in a separate collection.89 As the topic of princely wills is intimately connected with the treaties between princes and, more generally, with inter-princely relations in medieval Russia, it is treated in Chapter 23 (on the Prince). Dushevnaia gramota See Dukhovnaia gramota. Dvusrochnaia gramota See Srochnaia gramota. Gubnaia gramota The earliest known gubnaia gramota is from 1539,90 and many more followed.91 Several of these charters have been translated by Dewey, who called them “anti-­brigandage” charters. Pushkarev defined them as “a criminal statute or charter originally issued by the government at the request of local communities; it granted permission for elected officials to investigate and punish crimes.”92 They are discussed at greater length in Part ii of this work. Izustnaia gramota A dying declaration, a written record taken down from a person before dying, containing either specific instructions about certain actions or goods (a codicil), or covering most of the assets belonging to his estate. In the latter case this

88 89

E.g. afzkh ii, 18–20 (No. 15); asei i, 523–525 (No. 612): asei ii, 512–513 (No. 474). Dukhovnye i dogovornye gramot velikikh i udel’nykh kniazei, collected and edited by Bakhrushin and Cherepnin; see the List of Abbreviations. Quoted as ddg. 90 The Gubnaia Charter of Belozersk, prp iv, 176–179; rz ii, 213–218. English translation in H.W. Dewey, Muscovite Judicial Texts 1488–1556. Michigan Slavic Materials, No. 7, Ann ­Arbor, 1966, 31–43. See also H.W. Dewey, “Muscovite Guba Charters and the Concept of Brigandage (Razboj)”, Papers of the Michigan Academy of Science, Arts, and Letters, LI (1966), 277–288. 91 E.g. the Anti-Brigandage Instruction of Medyn’ (Medynskii gubnoi nakaz) of 1555, prp iv, 179–185 and rz ii, 218–223 (also in PRoP iii(1), 65–68); the same of Sol’ Galitskaia of 1540, Ivina-afzkh, No. 64 (75–76). 92 Pushkarev, Dictionary, 24.

Non-Legislative Legal Sources

255

document comes close to a full-blown will. Other names for it are izustnaia pamiat’ of zaustnaia gramota.93 Kabal’naia gramota This term, or more commonly: kabala, is used to denote a document which records a loan. There are different types of kabaly, depending on the accompanying conditions of the loan. These conditions may be so preponderant that the original character of the transaction as a loan is completely overshadowed. The most frequently encountered kabala is the zakladnaia, where the recipient of the loan pledged real property.94 Peasants who were unable to provide such security for a loan could pledge their labour, entering into the service of the creditor, in a service charter (sluzhilaia kabala). An ordinary loan charter or promissory note, not secured by any kind of pledge, is called zaemnaia kabala. Kholop’ia gramota Literally, a slave’s charter or a charter concerning a slave, but in fact a judgment concerning a slave (pravaia gramota s kholopa) or a charter of emancipation (otpusknaia gramota). It is referred to in art. 17 of the Code of 1497 and also, without the term being mentioned, in art. 20.95 Khrestnaia gramota See Krestotseloval’naia gramota. Kormlennaia gramota A charter granting korm or kormlenie (lit. “food”, “feeding”). The kormlenie practice involved local government officials, in particular urban and rural lieutenants (namestniki and volosteli), not being paid a salary, but granted an income in kind, to be produced by the local population. But gradually this korm assumed the form of monetary remuneration; it could also consist of a share in local court fees. The kormlenie system was officially discontinued in the middle of the 16th century, but in fact lasted much longer.96 93 94 95 96

A 16th century example in afzkh ii, 349–351 (No. 332). In earlier times the term izustnaia gramota occurs in other documents, where it is more or less synonymous with “last will”. E.g. Akty Solovetsk. mon., No. 26 (28); No. 37 (33); No. 45 (36–37). Cf. Cherepnin, Arkhivy ii, 342. Cf. Pushkarev, Dictionary, 44–45. A late kormlenie grant from 1584 in Akty sluzh. zemlevlad. i, No. 307, (298–299), by Ivan iv’s son tsar Fedor, to Il-Murza Iusupovich, the ancestor of the Iusupov princes.

256

chapter 11

Most of the extant kormlennye gramoty are from the second half of the 15th and first half of the 16th centuries, but the practice undoubtedly went back to the early Kievan princes who appointed trusted boyars as their local representatives. Kormlenie was granted by the prince; in most cases the Moscow grand prince, but other ruling princes also appear.97 Most grants concerned the office of rural lieutenant (volostel’), but other offices also occur, such as urban lieutenant (namestnik)98 or a judgeship of a certain area,99 or regional agent of the iam (government communications and transport system).100 In most cases the general governmental appointments included jurisdiction (sud or pravda), involving a share of the court fees. Kormlenie charters customarily contained a reference to traditional practice; kormlenie was granted “according to ancient usage, as it used to be before” (po staroi poshline, kak bylo prezh sego),101 or as it used to be under the grantee’s ancestors or predecessors.102 The latter formula, found in one of the oldest extant kormlenie charters (of the Moscow grand prince Dmitrii, 1363–1389), corroborates­the assumption that kormlenie actually started long before the earliest written evidence appeared. A smaller number of grants do not use the term kormlenie, but the property or right indicated is granted v put’, otherwise these grants are identical with ordinary kormlennye gramoty. There is some disagreement about the meaning of the term v put’. Zimin and Poliak interpret it as referring to kormlenie within the personal domain of the prince.103 The usual grant formula is short and general, only occasionally does the charter list in detail what the grantee was entitled to.104 Most of the ­kormlennye 97

98 99 100 101 102 103

104

E.g. princes of Dmitrov, of Uglich, of Staritsa, of Volotsk, grand princes of Riazan’ (asei iii, No. 112 (pp. 84–85); id., No. 74 (p. 60); id., No. 76 (pp. 61–62), id., No. 69 (p. 104); Akty sluzh. zemlevlad. i, No. 175 (p. 145)). asei iii, No. 73 (107–108), mentions Mariia Iaroslavna (the widow of Vasilii ii the Blind) as the grantor. asei iii, No. 108 (145–146); id., No. 385 (398–399), also a charter of a grand prince of Riazan’. asei iii, No. 351 (375). Akty sluzh. zemlevlad. i, No. 16 (21). E.g. asei iii, No. 73 (107–108); id., No. 102 (140); id., No. 145 (No. 107). E.g. asei iii, No. 4 (16). A.A. Zimin, A.G. Poliak, in their commentary to a kormlenie charter of Ivan iii; prp iii, 156–157 (charter), 178–180 (commentary). The same charter appears also in asei iii, No. 279 (295–296). Other examples of such grants v put’ are in V.N. Kozliakov, “Dve kormlennye gramoty xv veka”, Russkii Diplomatarii vii, 13–19. See also V.O. Kliuchevskii, Boiarskaia Duma Drevnei Rusi, Moskva, 1902 (3rd ed., repr. Moskva, 1994), 538–539, where a very similar view is presented. E.g. asei iii, No. 114 (150); id., No 189 (202–203).

Non-Legislative Legal Sources

257

gramoty were sine die, but in some cases the grant was made for one year only.105 Krepkaia (Krepostnaia) gramota Also known as krepost’, a charter in which the Moscow (or Lithuanian) grand prince gave assurances for the safe entry, a benevolent reception and the provision of the necessary means of subsistence to members of the ruling elite of the Crimean khanate during the last decades of the 15th century. They were usually drafted by the potential beneficiaries themselves and represented a mixture of Tatar and Russian diplomatic customs. Their purpose, from the Russian perspective, was to exploit the political unrest prevailing in the Crimean khanate and entice important Crimean princes and noblemen to come over to the side of the Russians.106 Krestotseloval’naia gramota A charter confirmed by oath, in the traditional orthodox fashion of kissing the Cross (krestotselovanie); also termed a krestnaia or khrestnaia gramota.107 Kupchaia gramota A purchase deed, almost invariably of land.108 Among the medieval Russian charters that have appeared in print, purchase deeds are the most numerous; hundreds of kupchie were included in the basic publications mentioned above. Both pre- and post-revolutionary authors have proposed various schemes for dividing purchase deeds into different categories, using either legal or socioeconomic (Marxist) criteria.109 Below, only the most important general features of kupchie will be pointed out and several special categories will be identified. A kupchaia is usually worded as a deed of purchase, in which the buyer, speaking in the first person, states that he has bought a certain piece of land. Novgorod kupchie, in accordance with general Novgorod usage, are written in 105 E.g. asei iii, No. 279 (quoted above). 106 Cf. A.L. Khoroshkevich, “«Krepostnaia» ili «krepkaia» gramota”, dg sssr 1987, Moskva, 1989, 77–84. 107 E.g. asei iii, No. 18 (34–35). 108 I have not come across any others. 109 Cf. K. Kindiakov, “Opyt uchenoi razrabotki kupchikh gramot, pomeshchennykh a Aktakh iuridicheskikh”, D. Meier (ed.), Iuridicheskii Sbornik, Kazan’, 1855, 409–448; D.M. Meichik, Gramoty i drugie akty xiv–xv vv. Moskovskogo arkhiva Ministerstva Iustitsii, Moskva, 1884, 71–73; Cherepnin, Arkhivy ii, 78–79; N.N. Pokrovskii, Aktovye istochniki chernososhnogo zemlevladeniia v Rossii xiv – nachala xvi v., Novosibirsk, 1973, 46–62.

258

chapter 11

the third person.110 A small number of kupchie are worded as deeds of sale, in which the seller stated that he has sold a property; these charters are called zaprodazhnye.111 The essential contents of a purchase deed included: the identity of the buyer and the seller, a description of the object sold, and the price. While the numerical predominance of charters in which the Church or a monastery appears is easily explained by the better conditions for preservation enjoyed by such charters, this does not explain why the Church appears more often as a buyer than as a seller. The conclusion probably has to be that there was overall a greater accumulation of wealth in the hands of monasteries and other church bodies. Among other buyers and sellers one finds the grand prince and his family members, other princes, boyars, officials, other landowners and, occasionally, peasants. Land purchases among peasants were called posil’nye. Purchase deeds concerning villages often contained formulas which tended to cover anything and everything in the village, including therefore also movable property.112 Otherwise, the absence of purchase deeds for movable property is easily explained by the practical aspect of proof of ownership. Movable property is normally transferred to the new owner, while the ownership of land is not immediately obvious in most cases. This argument would be particularly persuasive in the conditions prevailing in medieval Russia, a sparsely populated country with much uncultivated land or previously cultivated land which had been deserted (pustoshi). Especially the monasteries and other great landowners, who owned a large number of villages spread out over an immense area, had a strong interest in being able to proffer documentary proof of their ownership. Purchase deeds usually described the land being bought as the village soand-so. In later times this description was accompanied by a reference to the province (uezd) and district (volost’) in which the village was located.113 Many deeds described the property more precisely by indicating its boundaries: from the hamlet A to the forest B, and then to the road to C, and from there to the 110 See the more than 100 kupchie in gvnp. 111 E.g. asei iii No. 162 (176), No. 171 (180). 112 E.g. asei i, No. 163 (119): “the village Prisetskoe with all its hamlets and the Zamolzhskie hamlets and deserted lands, and the village Vorob’evskoe and its hamlets and deserted lands, and the meadows, rivers, fords, fowling nets, woods, bee-keeping woods, and appurtenances, and with everything belonging to the village Prisetskoe and the village Vorob’evskoe, as it used to be under Fetinia and her son Dmitrii [the sellers]”. 113 Cf. Pokrovskii, op. cit., 47.

Non-Legislative Legal Sources

259

river D, etc.114 Such a description is often in the form of a special survey deed (otvodnaia gramota), attached to or incorporated in the kupchaia.115 Where such descriptions are absent, one usually finds the traditional formula: “wherever the axe and the plough and the scythe went”. Another common addition to the definition of the purchase was the quality of the seller’s ownership, whether he was selling his inherited ancestral land (votchina) or whether he had himself bought the land (kuplia). In the latter case the previous owner is sometimes mentioned as well.116 All such additions could strengthen the probative value of the purchase deed. Purchase deeds always mentioned the price paid for the property; this price was usually accompanied by a popolnok, a supplement consisting of a cow, a horse, a chicken, a pelt, a bag of flour, etc.117 As with many other deeds, the kupchie always included the names of the witnesses present and the scribe who wrote down the text. One of the most common conditions in purchase deeds was bez vykupa, without the right of redemption. There are indeed a number of examples which show that sellers or their children (if the condition had not been expressed, presumably) made use of the right to buy back a property.118 This right was apparently not exclusively connected with ancestral property (votchina),119 it could also be invoked when the seller himself had bought the property.120 A purchase deed which realized the right of redemption was called a vykupnaia gramota.121 In some purchase deeds the customary right of redemption was strengthened by an express prohibition on the buyer to resell the land to anybody except the original seller.122 114 E.g. afzkh i, No. 59 (68–69); this is the normal format in Novgorod purchase deeds, where the survey (otvod or zavod) is less often encountered; cf. e.g. gvnp, Nos. 153–154 (201–202). 115 E.g. asei i, No. 10 (30–31). 116 E.g. asei i, No. 426 (315). 117 According to Zimin and Poliak (prp iii, 64), the custom of giving a popolnok, as well as the use of the formula “where the axe, the plough, and the scythe went”, were of great antiquity. The latter formula originally referred to a more primitive mode of agriculture, based on clearing virgin woodland. The formula did not occur in Novgorod deeds. 118 E.g. asei i, No. 487 (367), a vykupnaia gramota which itself contained the bez vykupa condition (conceivably in order to prevent a legal perpetuum mobile of redemption and re-redemption). 119 asei i, No. 488 (367–368): renunciation of the right of redemption of a votchina. 120 asei i, No. 484 (365): renunciation of the right of redemption of a kuplia. 121 E.g. asei i, No. 509 (386–387), a vykupnaia of votchina land. 122 E.g. asei i, No. 444 (330–331), which even added the condition that in case of redemption the price would be the same as in the first sale.

260

chapter 11

Soviet authors have pointed out that the contract embodied in the purchase deed may reflect a great variety of factual and legal relationships.123 If the price agreed upon was very low, the contract would approach a gift; if property passed in both directions, the contract of purchase and sale merged with the contract of barter. An interesting type of contract in this respect was the purchase of land with the simultaneous retention of a life interest for the seller, allowed to remain on the property and continue to enjoy its income for the rest of his (usually her) life.124 A significant aspect of the variety of purchase deeds is in the more ambiguous nature of medieval ownership. The sale of a plot of land might occasionally include the transfer of certain public law functions, such as administration of justice or taxation.125 The prince could also be regarded as having a certain proprietary right in the lands of his principality. This is quite clear in the sale of land among free peasants, who buy and sell “the prince’s land” and their “possession” (see posil’nye gramoty). In other instances the prince’s involvement is illustrated by the appearance of the purchase deed in the form of a dokladnaia: it is reported to the prince that A has bought a piece of land from B.126 Another special form of a purchase deed was the zhalovannaia kupchaia: the purchase in the form of a grant, in which a prince granted a property which at the same time was sold to the recipient for the sum mentioned in the text.127 L’gotnaia gramota A charter granting temporary tax exemptions.128 L’gotnye usually appear in combination with a grant of other privileges, such as permanent tax exemptions (tarkhannye) or judicial immunities (nesudimye). The most common combination is with judicial immunity (l’gotnaia i nesudimaia gramota).129 The recipient of the exemption was usually (at least in the available texts) a monastery, but private landowners also appear,130 as well as peasants.131

123 Cherepnin, Arkhivy ii, 82; Pokrovskii, op. cit., 48. 124 E.g. gvnp, No. 164 (208); asei i, No. 163 (119). 125 E.g. asei ii, No. 295 (250): Fedor, prince of Kem, sold his share (including jurisdiction and tribute) in the principality of Kem, to his brother Afanasii for seventy roubles and a horse as popolnok. The princes of Kem belonged to a cadet branch of the princes of Belozero. 126 Examples of kupnye dokladnye: asei i, No. 83 (70); No. 301 (213). 127 A rare example in asei iii, No. 178b (194). 128 Cf. Cherepnin, Arkhivy ii, 96, 112; Pokrovskii, op. cit., 88–92. 129 Examples of simple l’gotnye: asei i, Nos. 49 (52–53), 225 (160–161), 239 (168–169). 130 E.g. asei ii, No. 265 (177–178). 131 E.g. asei iii, Nos. 163–165 (177–178), 489 (528–529).

Non-Legislative Legal Sources

261

­Judicial immunity was not granted to peasants, as there would be no dependent population over which a peasant could exercize judicial powers. L’gota means freedom or lightness (of a charge); the l’gotnaia accordingly granted freedom from one or more taxes to the recipient. There were numerous taxes and duties in medieval Russia; some charters granted an exemption from only one or two taxes,132 while others tended to cover all fiscal charges, either by granting a comprehensive exemption or by listing all the taxes included in the privilege.133 L’gotnye could also cover obligatory work (corvées) to which the dependent population of a territory was subject. In the long run, such works tended to be replaced by payments in cash or kind; it is not always clear whether the l’gotnaia would also exempt from such payments. Other fiscal charters discussed below are the obel’nye, obrochnye and tarkhannye gramoty. L’zhivaia gramota Defined by Pushkarev, Dictionary, 24, as a document which is either counterfeit or formally wrong. Counterfeit charters, charters written with the intention to corroborate a legally relevant fact in the knowledge that the statement was false, are not at all rare. A tax exemption charter, allegedly from Dmitrii Donskoi (†1389) to the Troitse-Sergiev monastery, written down in a monasterial register dating from 1584–1588, has been known since 1884 to be a fake.134 Such charters are also known as podlozhnye gramoty. “Formally wrong” could mean that the original text of the charter was written down in good faith, but that its contents were incorrect from the beginning. Menovnaia gramota An exchange deed. Such deeds are closely related to purchase deeds, in a legal as well as an economic sense, and most of what has been said about kupchie applies to menovnye.135 A purchase deed may even be considered a special kind of exchange deed, where the input of one of the parties consists of a sum of money. Conversely, an exchange deed can be viewed as a double purchase 132 E.g. asei ii, No. 265 (177–178), a land grant to a private owner with exemption from paying tribute (dan’) for one year. 133 E.g. asei i, No. 49 (52–53), mentioning the following taxes: dan’, myt, tamga, pishchaia belka, iam, podvoda, and other poshliny (see the section on taxation in Chapter xv, on Towns). 134 See asei i, No. 1 (25–26). 135 Cf. Cherepnin, Arkhivy ii, 77–89; Pokrovskii, op. cit., 48–62.

262

chapter 11

deed where two properties of equal value are exchanged, and the money payments cancel each other out. Where the amount of money to be paid for a purchase is to be accompanied by certain goods, or where one of the parties in the exchange contract has to pay an additional sum of money, the two kinds of contract become even more similar. Exchange contracts did indeed not infrequently contain a provision that one of the parties was to add a sum of money to the property which was being exchanged.136 Exchange deeds, like purchase deeds, always concerned real property, for the reasons indicated before. Sometimes, land exchanges included the addition of supplementary goods (apart from money, as mentioned above), in ­order to make up the balance.137 Exchange deeds often comprised a survey of the plots to be exchanged, in the form of an otvodnaia.138 Another not uncommon form of an exchange deed was the dokladnaia, where the exchange transaction was reported to a prince, a bishop or another person in authority.139 A special category is formed by the zhalovannye menovnye, exchange deeds in the form of a grant, where the territorial ruler granted property in exchange for other property.140 Mestnaia gramota A charter concerning the place (mesto) or status of prominent nobles and servants of the prince in the official hierarchy. The system of mestnichestvo involved not only court etiquette, but also appointments to official functions. The mesto of an individual nobleman was determined by two factors, the status of his family among other noble families, and his own status within his family (determined according to the same principles as were applied in the Rurikid house). The system was administered (in Muscovy) by a special government department. As the serious disadvantages of this anti-meritocratic system became more obvious, various exceptions were introduced (e.g. the non-applicability of mestnichestvo in times of war), until the system was fully abolished in 1682 and the relevant registers were burned. (See the sections on mestnichestvo in Chapter 14 and in Chapter 31.)

136 137 138 139 140

E.g. asei ii, Nos. 233 (154–155), 255 (168). E.g. asei ii, No. 184 (116–117): a horse. E.g. asei ii, Nos. 35 (27–28), 61 (40). E.g. asei ii, Nos. 61 (40), 238 (158). E.g. asei ii, Nos. 147 (86), 486 (526–527).

Non-Legislative Legal Sources

263

A few documents survived elsewhere, such as two mestnye gramoty of Dmitrii Konstantinovich, grand prince of Nizhnii Novgorod († 1383), in which the exact order of precedence of a number of boyars was indicated.141 Mezhevaia gramota A document fixing and describing the boundaries between landholdings. The terminology for such documents is not quite stable and depends to some extent on the circumstances under which the description of the boundaries took place. Other designations, apart from mezhevaia (from mezha, boundary), are also common. Where boundaries were unclear, the parties concerned could come to an agreement and set out the boundaries to which they had agreed in a document, sometimes called a razvodnaia (separation charter).142 A more elaborate procedure would be to send out a party of representatives from both sides to inspect the boundary in situ. The report of such an expedition (raz”ezd) would then be included in a document in which the parties concerned laid down their agreement about the boundaries (raz”ezzhaia).143 Such a party could also be replaced by an official (raz”ezdshchik), who would report his findings to the prince. This report would normally be included in an official document in which the prince questioned the raz”ezdshchik about the results of the latter’s mission and then fixed the boundaries as they were to be in future (dokladnaia raz”ezzhaia).144 A closely related type of document is the otvodnaia (q.v.) a document containing the result of an otvod. This is strictly speaking a unilateral act concerning­an individual property, while various forms of mezhevye expressly concerned the delimitation of different properties. In practice, however, mezhevye, raz”ezzhie, raz”ezdnye, razvodnye, and otvodnye were often used almost synonymously. Mirnaia gramota Peace treaty; see Peremirnaia gramota. Mirovaia gramota A conciliation charter, a document in which the agreement between litigant parties to resolve their dispute is recorded. In connection with the fact that the 141 asei iii, Nos. 307–308 (335–338). There is a discussion of this subject in Kliuchevskii, op. cit., 120–121, 539–541. 142 E.g. asei ii, Nos. 152 (88), 181 (144). 143 E.g. asei i, Nos. 284 (203), 413 (303). 144 E.g. asei ii, Nos. 420–422 (309–312); asei i, Nos. 257 (185–187), 378 (275–276).

264

chapter 11

dispute resolved through reconciliation is already at the stage of actual litigation, the mirovaia gramota is often in the form of a dokladnaia, a formal report to the judicial official that the dispute has been resolved by conciliation.145 Naemnaia gramota A document recording a contract of hire or lease, of labour as well as property.146 Nastol’naia gramota A charter issued by the highest ecclesiastical authorities (metropolitan, patriarch, bishops) to bishops and heads of monasteries, confirming their installation or the conferment of other dignities.147 Nesudimaia gramota A charter granting judicial immunity. Such immunities were granted by the prince or, rarely, by a church hierarch (bishop, archbishop, metropolitan).148 Such charters were often combined with other privileges. The most common combination was with a permanent or temporary tax exemption (tarkhanno-­ nesudimaia or l’gotno-nesudimaia).149 Other common and more complex combinations were with a gift charter (dannaia), permanent and temporary tax exemptions together, and with obrochnye (see below),150 resulting in dannye tarkhanno-nesudimye,151 dannye l’gotno-nesudimye,152 l’gotno-tarkhannye i nesudimye.153 Where the judicial immunity was combined with a gift charter,154 the transaction could be regarded as an extensive gift; the prince not only donated a property, but also endowed it with judicial immunity. In most cases, however, the property was already in the possession of the recipient of the grant; the 145 E.g. gvnp, No. 51 (89–90), which is of special interest, as it concerned a conciliation between a Novgorod citizen and a German merchant and also contained an account of the procedure followed; see also asei i Nos. 549 (427–428), 554 (430–432), 574 (454–455); asei ii, Nos. 189–190 (120–121), 284 (191–192). See also H.W. Dewey, “Immunities in Old Russia”, Slavic Review, xxiii (1964), No. 4, 643–659. 146 Some 17th century examples in AIuB i, Nos. 161–165 (511–524). 147 E.g. AIuB i, No. 47 (145–151). 148 E.g. asei ii, Nos. 174–176 (110–112), judicial immunity charters granted by the archbishop of Rostov. 149 Numerous examples of both types in asei i and ii. 150 E.g. asei i, No. 221 (156–157). 151 E.g. asei i, No. 103 (83–84). 152 E.g. asei i, No. 171 (124–125). 153 E.g. asei i, No. 191 (136–137). 154 E.g. asei i, No. 176 (127–128).

Non-Legislative Legal Sources

265

charter would then usually refer to the title: judicial immunity was conferred on a property previously donated by the prince, his ancestors or a third party.155 In the vast majority of immunity charters available, a monastery is mentioned as the beneficiary; private landowners occasionally also received this privilege.156 The substantive contents of the immunity charter would as a rule consist of four components: an instruction to the officials of the prince not to enter the territory to which the immunity applied; the right of the recipient of the immunity to administer justice to the inhabitants of the territory; the provision of a mixed court for litigation between inhabitants of the territory and outsiders; and the stipulation that the recipient himself and his subordinate judicial officials would be subject to the jurisdiction of the prince.157 Homicide, and in later years also robbery and theft, were usually excluded from the immunity and reserved for the prince’s jurisdiction. Judicial immunity charters belong to the oldest types of legal documents;158 this, and their availability in large numbers make them an important source for the history of land ownership in Russia.159 Nevmestnaia gramota A charter correcting the ranking of a nobleman in the service hierarchy of the mestnichestvo system (see above Mestnaia gramota).160 Obel’naia gramota A type of grant charter (zhalovannaia) by which the inhabitants of a specific locality were exempted from paying tax to, or doing work for the grantor (usually a prince).161 The beneficiary of an obel’naia was usually a monastery which had already been granted the territory (or certain rights in it) in which the locality where the obel’naia applied was situated.162 Obetnaia gramota Mentioned only in art. 39 of the Novgorod Court Charter. Obviously, very similar to the better known default charter (Bessudnaia gramota, q.v.). 155 156 157 158 159 160 161 162

E.g. asei i, No. 195 (139–140). E.g. asei iii, Nos. 63–66 (95–98). Cf. Cherepnin, Arkhivy ii, 12. Some of the oldest in gvnp, e.g. No. 86 (143), from 1337/1339. Cf. Cherepnin, Arkhivy ii, 152–155. E.g. AIuB i, No. 48 (152–159). Cf. Cherepnin, Arkhivy ii, 12. Examples in asei i, Nos. 199 (142), 250 (178–179).

266

chapter 11

Obodnaia gramota A charter in which the contents of other charters were summed up and which then replaced those charters: a consolidation charter. Among the few examples of this type of charter are an obodnaia mezhevaia,163 laying down the boundaries between a number of territories, an obodnaia nesudimaia,164 in which a number of judicial immunity charters concerning a great many territories were merged into a single document, and an obodnaia dannaia,165 which confirmed a number of previous land grants. Obrochnaia gramota A tax exemption charter by which all taxes to be paid from a certain property were replaced by a single annual payment (obrok). Such charters normally appeared in combination with other privileges, especially judicial immunity. The grantor was usually the prince, the recipient almost always a monastery.166 Obysknaia gramota Defined by Pushkarev as an investigation warrant.167 This document was not necessarily connected with a criminal investigation, but also embraced any document empowering somebody to conduct any kind of official investigation.168 Ochishchal’naia gramota Or more commonly, ochishchal’naia zapis’: a document in which a previous owner declared that the property sold, donated, etc., by him was free of mortgages, liens or other encumbrances, and that he would compensate the new owner if any of the latter were to be enforced.169 Okhrannaia, Okhranitel’naia gramota See Zapovednaia gramota. 163 164 165 166

gvnp, No. 285 (286–288). asei ii, No. 316 (282–298). asei ii, No. 223 (143–146). E.g. asei i, Nos. 221 (156–157), 237 (166–167); asei ii, Nos. 51 (34–35), 185 (115), 202 (131); asei iii, No. 238 (259–260); AIuB ii, Nos. 173–177 (545–562); S.N. Kisterev (ed.), Akty Suzdal’skogo Spaso-Efim’eva monastyria 1506–1608, Moskva, 1993, No. 5 (23, an obrochnaia with private persons as beneficiaries); see also Cherepnin, Arkhivy ii, 113. 167 Pushkarev, Dictionary, 25. 168 Cf. afzkh ii, No. 373 (417). Ivina-afzkh, No. 76 (79–80), concerned a boundary dispute where the parties each appointed a team of “old-timers” (starozhil’tsy) who combined to investigate the exact location of the boundaries. 169 E.g. afzkh ii, Nos. 209 (103), 266 (270–271); Akty Russk. Gos., No. 215 (217–218).

Non-Legislative Legal Sources

267

Okruzhnaia gramota A circular letter, i.e. a letter to a number of persons belonging to a particular category and not identified by name.170 Opasnaia gramota A safe conduct, a laissez passer, for foreign envoys and merchants.171 Oslobozhonaia, Osvoboditel’naia gramota A charter by which the recipient is freed from an existing prohibition and received the permission he requested. Issued by the prince and regarded as an unusual type of grant charter.172 Otdel’naia gramota A document by which something is divided, separated or put aside. It is encountered infrequently and covers quite disparate transactions, such as ordinary partitions of property,173 as well as administrative adjustments of a fiscal nature.174 Otkupnaia gramota A charter recording an otkup, the granting of a public franchise against payment, the lease of a public power.175 Otpisnaia gramota Also called an otpis’; a general term for a document in which one party unilaterally stated that he was relinquishing a right or a claim, or undertook to refrain from doing something. One of the commonest examples is the undertaking not to appropriate land which had been granted in use.176 Art. 26 of the Code of 1497 mentions otpisnye srochnye, officially issued documents in which

170 E.g. asei i, No. 359 (263–264), a circular letter of grand prince Ivan iii Vasil’evich of Moscow to his lieutenants and rural stewards (posel’skie) in Suzdal’ and Iur’ev. 171 Several of such documents from the early 16th century are mentioned in a 1626 inventory of the Moscow ambassadorial archive (the Posol’skii prikaz); ddg, 472, a laissez passer for envoys from the Hanseatic League. 172 E.g. asei ii, No. 142 (84), 242 (160), 320 (303), 341 (339). 173 E.g. Akty otnosiashchiesia k istorii Iuzhnoi i Zapadnoi Rossii i, Sankt-Peterburg, 1863, No. 3 (2). 174 E.g. AIuB i, No. 49 (159–161). 175 E.g. gvnp, No. 93 (149): the purchase from the grand prince of judicial office in a precisely defined territory in Northern Russia by two Novgorod citizens. 176 E.g. afzkh i, Nos. 160 (142), 218 and 220 (192–193).

268

chapter 11

the day for appearance in court, as fixed by the srochnaia, is postponed in an individual case.177 Otpusknaia gramota A manumission charter, a document releasing a kholop (slave or bondman).178 Art. 18 of the Code of 1497 (repeated in art. 42) restricted the issue of such documents in several ways. Manumission charters were sometimes mentioned in wills, where the testator released some of his slaves and ordered his heirs to issue the appropriate documents.179 Another name for such a charter is a vol’naia (freedom charter). The designation otpusknaia can also be used for other documents which release somebody from an obligation or a position.180 Otstupnaia gramota A charter in which a right or a claim is renounced. This may be done by giving an undertaking not to interfere with a certain property to which one has claimed certain rights in the past.181 A special kind of otstupnaia concerns the sale of land among peasants, where ownership remained with the prince or another overlord and only limited user rights were transmitted.182 Otvodnaia gramota A document recording an otvod or land survey. Such a survey was usually part of another document concerning land, such as deeds of sale, exchange or gift.183 Where the survey charter stood by itself, it was drawn up by one party and addressed to another party, presumably in connection with an existent or latent dispute.184 The otvodnaia gramota typically defines the boundaries of the landholding in question (“along such-and-such a stream, and then along the road to N.”); it always names the witnesses of the otvod. 177 Cf. Cherepnin, Arkhivy ii, 343; B.D. Grekov (ed.), Sudebniki xv–xvi vekov, Moskva/Leningrad, 1952, 69–70; prp iii, 390. 178 Examples, all from the 17th century, in AIuB i, No. 221/i–ix (643–648). 179 E.g. asei i, No. 612 (523–525), the 1497 will of Vasilii Borisovich Tuchko Morozov, a prominent boyar. 180 Several later examples in AIuB i, 219–220 (641–6743), 222 (648–652). 181 E.g. asei i, No. 373 (272); asei iii, No. 91 (123); afzkh i, No. 153 (134). 182 Cf. Pokrovskii, op. cit., 55–61. 183 E.g. asei ii, No. 61 (40), an exchange and survey charter. 184 E.g. asei ii, No. 94 (56–57); asei iii, No. 89 (121).

Non-Legislative Legal Sources

269

Perechnevaia gramota, (vypis’, zapis’) A document containing a list.185 Peremirnaia gramota An agreement embodying an armistice (peremirie).186 Such treaties are in fact hard to distinguish from peace treaties, which are usually ranged under the wider category of dogovornye gramoty (treaties) and are occasionally called mirnye gramoty.187 Podorozhnaia gramota A “road document”, issued to a person travelling on the prince’s business or another official errand, and containing instructions to specific third parties, e.g. not to levy taxes from the traveller,188 or to provide him with certain services.189 Podtverditelnaia gramota A charter which confirms an earlier charter; usually confirmation of a grant made by the grantor’s predecessor.190 Pogonnaia gramota An official instruction to a local official to assist the master of runaway serfs or slaves in their arrest and return.191 Poletnaia gramota A document issued under the seal of the prince, allowing a debtor a postponement of the payment of his debt.192 Art. 55 of the Code of 1497 provided that the poletnaia was to be issued, after an investigation by a boyar, to a merchant

185 E.g. asei i, Nos. 286 (204), 649 (565–571). 186 E.g. ddg, Nos. 6 (21–22, between the grand princes of Lithuania and Moscow), 46 (140–142, between the princes of Mozhaisk, Verei and Belozersk, and the grand prince of Moscow); gvnp, No 76 (127–129, between Novgorod and the Hanseatic League). 187 Many examples of peace treaties between Novgorod and various princes, and between Novgorod and various Western powers appear in gvnp. 188 E.g. afzkh i, Nos. 293 and 296 (249–251). 189 E.g. asei i, Nos. 393 (285), 652 (576–577). 190 E.g. asei i, Nos. 360 (353–354), 375 (367). 191 E.g. AIuB i, No. 51 (162–163). 192 E.g. Akty sluzh. zemlevlad. i, No. 3 (10–11), for the widow of an officer killed by the Tatars; she was also exempted from paying interest. Cf. Cherepnin, Arkhivy ii, 343.

270

chapter 11

who had lost goods belonging to somebody else, due to circumstances for which he was not answerable.193 Many loan charters (zaemnye) contained a clause in which the debtor was forbidden from seeking a poletnaia.194 Polevaia gramota A “duelling charter”; mentioned only in the Novgorod Court Charter (art. 33). Apparently a document recording an agreement to settle a dispute by means of a judicial duel. Poliubovnaia gramota A document recording an amicable settlement, usually of a question concerning boundaries between adjoining landowners. Otvodnye gramoty, and other such documents concerning boundaries (mezhevye, razvodnye), in the form of a poliubovnaia, differ from the general type in being issued by the parties together, without the intervention of an official or an intermediary.195 Polnaia gramota A document by means of which a person becomes a slave (kholop).196 No original polnye from the 15th century or earlier have survived, but a large collection of copies of late 15th century polnye is extant.197 The standard polnaia mentions the master, the person who sells himself into slavery, together with his relatives sharing the same fate, the price paid by the master, the presence of witnesses, and the tax (tamga) paid to the prince. Some polnye are in the form of a report (dokladnaia) to the prince.198 The term polnaia is also used to designate the deed of sale of a slave from one master to another.199 The Code of 1497 devotes art. 66 to the polnaia; it laid down certain requirements with which the polnaia had to comply, and, in general, restricted the practice of selling oneself into slavery.200

193 See Grekov, Sudebniki, 89–90 and prp iii, 402–403, both pointing out that the provision goes back to art. 54 of the Expanded Pravda. 194 E.g. asei iii, Nos. 348–350 (374–375). 195 E.g. asei ii, Nos. 152 (88), 181 (114), 246 (162). 196 Cf. Cherepnin, Arkhivy ii, 343. 197 Cf. asei iii, Nos. 392–462 (410–446). 198 E.g. asei iii, No. 409 (421), 199 E.g. asei iii, No. 411 (422). 200 See Grekov, Sudebniki, 106–107; prp iii, 411–412.

Non-Legislative Legal Sources

271

Pomestnaia gramota A grant charter (zhalovannaia) concerning the grant of an estate (pomest’e) to a serviceman. The pomestnaia, issued by a prince, was usually combined with the granting of fiscal and/or judicial privileges (l’gotnye, nesudimye).201 Poriadnaia gramota A document in which a peasant undertook to perform certain works or pay certain dues in return for a plot of land put at his disposal.202 Poruchnaia gramota A guarantee; a document in which a person (the guarantor) obliged himself to pay a specific sum to another person if a third person failed to behave in an agreed manner.203 The guarantee might be for a completely private matter, such as the payment of a debt,204 or for public behaviour, such as abstaining from drunkenness. One of the earliest known letters of guarantee is signed by a large number of Russian princes and nobles; they vouched for the political loyalty of a certain Gridka Konstantinovich to the Lithuanian grand prince.205 In the 16th century the use of the guarantee or surety bond as a means to enforce political loyalty became very popular, especially under Ivan iv.206 In the Ulozhenie of 1649 surety bonds, as a means to enforce the performance of all kinds of duties, occur frequently. Posil’naia gramota A deed concerning the purchase of land among peasants. This type of ­transaction (a special kind of kupchaia) was not uncommon in Northern Russia. Although such transactions did not affect the over-arching ownership rights of the prince (akin to dominium eminens), free peasants were able to transfer their semi-proprietary rights in land to each other.207 The form of the posil’naia was not essentially different from the general kupchaia; it o­ ften designated itself as a posil’naia and occasionally contained a reference­to the rights of the prince 201 E.g. asei iii, No. 389 (263–264). 202 E.g. gvnp, No. 260 (267–268); see also Pushkarev, Dictionary, 25. 203 Cf. Dewey, Russian Private Law, 236–254, with many examples, mostly from the 17th century. 204 E.g. gvnp, No. 304 (299). 205 Akty otnosiashchiesia k istorii Iuzhnoi i Zapadnoi Rossii i, Sankt-Peterburg, 1863 No. 2 (2), dating from before 1390; translated in Dewey, Russian Private Law, No. 71 (236–237). 206 An early example (from 1474) in asei iii, No. 19 (35–36). 207 Examples in Akty Russk. Gos., No. 115 (116–117) and asei i, No. 634 (546); asei ii, No. 297 (255); asei iii, Nos. 247 (266) and 251 (277); the last two are in fact one and the same purchase deed.

272

chapter 11

in the description of the land sold: “the land of the grand prince and our possession” (zemlia velikogo kniazia, a nashego vladeniia).208 Poslushnaia gramota A princely charter ordering the peasants of a specific territory to obey their new master and to carry out the works and pay the dues required of them.209 Such a document was logically preceded by a grant charter in which the territory concerned was granted to the new master. The poslushnaia repeated the principal provisions of the grant charter by referring to the grant itself, its beneficiary and its conditions. Povol’naia gramota A document registering approbation, especially by an ecclesiastical hierarch, of a church appointment.210 Posyl’naia gramota In its literal sense, a document sent (through an intermediary). In a few cases this is indeed the meaning.211 In most cases the posyl’naia is actually a version of an ukaznaia.212 Pravaia gramota A written decision of a court, handed down to the winning side in a lawsuit. There was, strictly speaking, a distinction between the pravaia, the court decision, and a sudnyi spisok, the record of a lawsuit, but in practice the distinction is difficult to maintain. The form of a pravaia is that of a court record with the decision added, and documents going by the name of sudnyi spisok normally record only the judgment of the court. Another distinction is between pravye in a narrow sense, documents which contain the trial court’s decision in the matter, and pravye dokladnye, in which the trial court examined the matter and then referred it to a higher court of the prince or of a boyar.213 In the latter 208 209 210 211 212

Cf. prp iii, 54, comments at 72–73. E.g. afzkh ii, No. 255 (259–260). E.g. AIuB i, No. 50 (161–162). E.g. asei iii, Nos. 9–11 (25–27), letters from the metropolitan to various princes. E.g. asei i, No. 564 (443) an instruction from the grand prince to the peasants of a village, contained in a judgment record (sudnyi spisok), asei i, No. 571 (449–452). 213 Cf. Cherepnin, Arkhivy ii, 227; Dewey, Russian Private Law, 44–45. The record of the doklad hearing and the subsequent issue of the pravaia gramota by the lower judge were normally part of the text of the pravaia. Occasionally, however, the doklad hearing was recorded on the reverse of the charter; such documents are called podpisnye; e.g. asei ii, No. 388 (391–393).

Non-Legislative Legal Sources

273

case the pravaia usually contained a laconic record of the session of the higher court. The judge in that court questioned the parties whether ­everything took place as set out in the trial record and then pronounced his judgment. The lower court was then charged with the issuing of a pravaia gramota. The doklad hearing would occasionally provide an opportunity for airing complaints about the initial trial or for bringing up new arguments.214 In such cases it could be regarded as a form of appellate procedure. Pravye invariably concern civil actions between private parties. Even in cases which have a criminal aspect, such as those arising from assault or robbery, the litigious point is the damages to be paid, not the punishment to be meted out to the culprit.215 The number of pravye extant is considerable. They are generally longer than other types of gramoty. Most of their contents are taken up by the court record, written down in direct speech. The plaintiff stated his claim and the defendant was ordered: “Answer!” Then the parties adduced evidence and in between the judge asked questions. Often, witnesses were heard, especially starozhil’tsy, people who had lived for a long time in the district where the contentious property was located.216 Other charters were frequently presented as evidence and then incorporated into the pravye.217 Needless to say, almost all pravye concern disputes about land. The pravye complement the static reflection of the law, produced by the numerous normative sources, by illuminating the actual operation of the law in medieval Russia. Their importance for the study of this subject is enhanced by the fact that members of all social classes appear as parties in lawsuits.218 The Code of 1497 has two provisions (arts. 22 and 40) dealing with pravye gramoty, both of them concern only the payments due to various court officials; similar rules appear in the Code of 1550. Other court decisions, but not on the merits of the case, are bessudnye (default judgments), mirovye (confirming amicable settlements), srochnye (setting or postponing dates for appearing in court), and others. Prisiazhnaia gramota A document confirmed by oath, especially one concerning allegiance.

214 E.g. asei i, No 607 (505–509); the complaint was dropped, however, the next day. 215 Cf. afzkh i, Nos. 1a and 2a (13–22), 222 (194–197). 216 Cf. asei ii, No. 467a (506–507), an unusual kind of pravaia, in fact an intermediate form between a pravaia and a grant charter (zhalovannaia). 217 E.g. asei i, Nos. 430 (318–320, a kupchaia), 447 (335–336, a dannaia). 218 Cf. Cherepnin, Arkhivy ii, 232–247; Dewey, Russian Private Law, 41–48.

274

chapter 11

Pristavnaia gramota A bailiff’s warrant, issued by the clerk of the court (d’iak), empowering the bailiff or another court officer to summon the defendant, to carry out an investigation, or to execute a judgment.219 Bailiff’s warrants are mentioned in the Code of 1497 (arts. 28 and 31). Proezzhaia gramota A document issued to a traveller and ordering local officials, tax collectors, etc., not to interfere with the free passage of the traveller.220 Protivnaia gramota A document which is the counterpart of another, basically identical document. In diplomatic practice especially, documents were usually not drawn up in a bilateral mode, like a contract, but as two unilateral declarations, being each other’s mirror image. They were then handed over to the opposite party.221 In other cases protivnaia simply means “copy”.222 Razdel’naia gramota See Delovaia gramota. Raz”ezdnaia (Raz”ezzhaia) gramota See Mezhevaia gramota. Razvodnaia gramota See Mezhevaia gramota. Riadnaia gramota A document containing an agreement concerning property, especially the settlement of a dispute concerning property.223 Rozpusknaia gramota A document concerning divorce.

219 220 221 222 223

Cf. Cherepnin, Arkhivy ii, 344; Dewey, Russian Private Law, 28–29. E.g. afzkh i, No 244 (209–210). Numerous examples exist from the practice of Novgorod and Moscow in gvnp and ddg. E.g. afzkh ii, No. 128 (121); asei ii, No. 316 (283). E.g. gvnp, No. 115 (174).

Non-Legislative Legal Sources

275

Ruzhnaia gramota A charter granting ruga, subsistence payment, usually in kind (grain) or in money to clerics.224 Sgovornaia gramota A document concerning a betrothal. Shertnaia gramota A document confirmed by Moslem oath (shert’),225 especially as used by the Tatar khans.226 Skladnaia gramota A declaration of war, a declaration concerning the cancellation of a peace ­treaty. Also called razmetnaia or vzmetnaia gramota. Sluzhilaia gramota A document recording the entry into service of a person. The most typical form is the zaemnaia sluzhilaia: peasants who had received a loan and who did not own land (the most common object to be pledged as security), pledged their labour instead. The work done replaced the interest. The term of the loan was usually short: one, two or three years. Some contracts provided for the option of terminating the service relationship and paying interest instead.227 Sobornaia gramota An act emanating from a sobor, a church council. Sotnaia gramota An official excerpt from a land register, listing the property of a landowner within a specific district. Sotnye were issued in the 16th century and later.228 From sotnia, a territorial unit. 224 Akty Russk. Gos., No. 15 (24–25); Akty Ross. Gos., No. 93 (220), an internal note (zapis’) on annual payments of ruga. 225 Pushkarev, Dictionary, 25. 226 Cf. Cherepnin, Arkhivy ii, 62. An example of a shertnaia: D. Iskhakov, I. Izmailov, Vvedenie v istoriiu Kazanskogo khanstva, Kazan’, 2005, 110–112; Abdul-Latif, khan of Kazan’ from 1496 to 1502, after having been ousted, sought refuge with the Moscow grand princeVasilii iii Ivanovich and was granted the town of Iur’ev Pol’skii (near Suzdal’); in a shertnaia of 29 December 1508 he confirmed his rights and obligations towards the grand prince by oath, in a way similar to a “younger brother” in the usual treaties between Russian princes. 227 E.g. asei iii, Nos. 371 (391), 376, 378, 380–384 (393–398). 228 E.g. afzkh ii, No. 148 (143); Ivina-afzkh, Nos. 69–70 (80–82), 78 (91–92)

276

chapter 11

Srochnaia gramota A charter which granted the inhabitants of a certain territory the right to be summoned to appear in court on only one day in the year. The charter was issued by the prince and in fact ordered the bailiff (pristav) not to summon persons to whom the charter applied on any other day. It applied to the population of a territory which already enjoyed judicial immunity and concerned litigation between the inhabitants and persons from outside the territory.229 Some charters provided two or three days on which the court appearance could be ordered (dvukh- and trekhsrochnye). The days mentioned were always important church holidays. The Code of 1497 mentions srochnye in arts. 26, 27, 32 and 36. Stavlennaia gramota An episcopal letter of appointment of a priest or a deacon.230 The difference, if any, from a blagoslovennaia gramota is that in the latter the emphasis is on the blessing by which the office is bestowed. From other documents it is known that stavlennye gramoty had to be carried by priests who wanted to officiate outside the locality to which they had been appointed; before being allowed to carry out their duties, they had to present their letter of appointment.231 Sudnaia gramota A charter, a statute, concerning courts. The best known are the Sudnye g­ ramoty of Pskov and Novgorod; these are among the most important legislative ­documents of medieval Russia and were discussed in Chapters 8 (on ­Local and Provincial Charters) and 16 (on Novgorod and Pskov). Similar texts are ­reported to have existed in other independent principalities, but they have been  lost. The designation sudnaia gramota is used occasionally in a more ­modest and  limited sense as a synonym for pravaia gramota, a court judgment.232 Tamozhennaia gramota A charter containing tax rates and specific regulations concerning the levying of taxes. The earliest known fiscal charter is the Belozero (White Lake) Tax 229 Cf. Cherepnin, Arkhivy ii, 112. Examples in asei i Nos. 329 (239), 495 (374); afzkh i, No. 256 (221). Also: asei i Nos. 74 (65–66, a dvukhsrochnaia) and 243 (170–171, a trekhsrochnaia). 230 E.g. afzkh ii, No. 361 (402). 231 Cf. asei ii, Nos. 234 (155), 280 (188). 232 E.g. asei iii, No. 32 (54–56) and also in the Novgorod Court Charter itself (in arts. 33 and 34).

Non-Legislative Legal Sources

277

Charter (Belozerskaia tamozhennaia gramota) of 1497, discussed in Chapter 8 (on Provincial and Local Charters).233 This charter, like some of its successors, was in the form of an otkupnaia, by which the execution of the prince’s fiscal powers was leased for a fixed sum of money and for a limited period to private tax collectors. The fiscal charter also served in such cases to protect the population against over-taxation by the tax collectors. Tarkhannaia gramota A charter granting exemption from paying taxes, duties and other fiscal charges.­ The name of the charter is derived from the Tatar tarkhan, meaning a free person, not subject to tribute.234 As explained in connection with the l’gotnaia gramota, the latter, unlike the tarkhannaia, is valid for a limited period only. Otherwise the wording of both kinds of charters is similar. The sources are not always very precise in distinguishing between the two types. Tarkhannye are also known as obel’nye.235 Like l’gotnye, tarkhannye rarely appear as such,236 but usually in combination with judicial immunity (tarkhanno-nesudimye), and also with obrochnye, involving the payment of an annual sum. A tarkhannaia is granted by a prince and sometimes a bishop.237 It usually granted freedom from all taxes, with the exception of church taxes. As in the case of l’gotnye, tarkhannye may also be combined with a gift charter in which a prince granted property and attached fiscal privileges to it (as well as judicial immunity in many cases).238 Monasteries are the usual beneficiaries of tarkhannye; private landowners appear less frequently.239

233 Cf. the commentary to the White Lake (Belozero) Tax Charter in prp iii, 220–221. 234 Pushkarev, Dictionary, 26. 235 S.A. Shumakov, Obzor gramot Kollegii Ekonomii, vyp.4, Moskva, 1917, 5–9, reserved the designation tarkhannye to charters granting full immunity, i.e. fiscal and judicial (these charters are usually called tarkhanno-nesudimye); obel’nye gramoty in his terminology were those charters which granted fiscal immunity only (tarkhannye in the usual terminology). 236 Some rare examples of mere tarkhannye: asei i, No. 461 (369–370); asei ii, No. 68 (44). 237 afzkh i, Nos. 135–139 (124–126, charters issued by the metropolitan). 238 E.g. asei i, No. 618 (530–531), a dannaia/tarkhanno-nesudimaia of the Tatar khan of Kazan’ from 1498. 239 Examples of tarkhannye granted to private landowners: asei i, Nos. 236 (166), 325 (234), 336 (243–244), 341 (249–250), 419 (308–309), 527 (405); asei ii, No. 95 (57); afzkh i, Nos. 213–216 (187–190).

278

chapter 11

In most cases tarkhannye concern taxes to be raised from property, but there are also tarkhannye exempting the beneficiary from taxes on commercial activities.240 Torgovaia gramota A charter concerning trade, especially trade privileges of monasteries. The usual form is through the granting of fiscal or judicial privileges. Trekhsrochnaia gramota See Srochnaia gramota. Ukaznaia gramota A document containing an order or instruction from the prince. Sometimes the designation posyl’naia is used. Such directives could be of all kinds and could be addressed to individual officials, to all officials within a certain territory, or to an even wider category, such as the population of a certain territory. More often than not, the directive contained a prohibition, an order to abstain from certain acts, such as interference with the immunities of a monastery or the levying of taxes from the servants of the monastery, etc. Other ukaznye contained an appointment of an official by the prince in order to carry out a specific job, such as the adjudication of a dispute.241 The typical ukaznaia concerned a triangular relationship: the prince, at the request of one party, ordered another party to behave in a certain way with regard to the former. A special type of ukaznaia is the gramota s prochetom; in it, the addressee is ordered to return the document after having read it. Another gramota s prochetom is the one which is to be handed over to the beneficiary who may retain it for future reference. Ustavnaia gramota A local government charter. The term covers both normative princely charters and charters containing concrete instructions, dispositions or grants. One and the same charter may display both aspects. The so-called Testament of prince Vsevolod Mstislavich was at the same time a fiscal and judicial immunity 240 E.g. afzkh i, No 133 (79–80), which freed a monastery from certain taxes and duties on trade conducted by the monastery. 241 A whole series of such cases, where usually a local steward or a similar official was appointed to decide a dispute between monasteries or private parties, is in S.N. Kisterev (ed.), Akty Suzdal’skogo Spaso-Efim’eva monastyria 1506–1608 gg., Moskva, 1993, Nos. 9–10 (26–27), 13–14 (30–32), 18 (47–48), 22–23 (51–53).

Non-Legislative Legal Sources

279

charter­and the statute of a major merchant corporation in Novgorod (and has been explained as such in Chapter 6). The designation ustavnaia gramota is used generally for local government charters, although the charters themselves do not normally refer to this designation. As a result, the entire, not very large, collection of ustavnye gramoty is rather a mixed bag. The first documents designated as ustavnye gramoty were the Smolensk charter of 1136 of prince Rostislav (see Chapter 6, on Princely Statutes) and a charter of around 1289 of prince Mstislav Romanovich of Vladimir-Volynsk.242 Some of the most important ustavnye gramoty were discussed in Chapters 6, on Princely Statutes, and 8, on Local and Provincial Charters (the Charter of Dvina Land, the Charter of Belozero) and in Chapter 33, on Local Government. Most of the extant ustavnye gramoty are from the 15th and 16th centuries, and nearly all of them emanate from the Moscow grand prince.243 One of the most remarkable charters in the category is the “statutory agreement” (ustavnaia dogovornaia) between the grand prince and the metropolitan of 1404.244 On the face of it, it regulated Church-state relations, and in particular church jurisdiction and fiscal powers, in a particular district. But it was included in a “book of forms” (formuliarnik) of the metropolitanate and can therefore be regarded as a late successor to the statutes of St. Vladimir and Iaroslav, discussed in Chapter 6. 16th century charters of this type were usually addressed to the population of a specific district,245 granting them certain privileges and regulating their activities. Veritel’naia gramota Diplomatic credentials; this term is still used in modern Russian law. Vkladnaia gramota A gift charter by which property is donated to a monastery or a church with the explicit condition that prayers will be said for the soul of the donor and his relatives. The vkladnaia is a special kind of gift charter (dannaia).246 242 The text of this charter, regulating certain taxes for the town of Berest’e, survived because it was included in a chronicle text; see prp ii, 29, comments by A.A. Zimin, 32. 243 There is one example of an ustavnaia gramota issued by the metropolitan in 1391, asei iii, No. 5 (16–18), in a dispute between a monastery and its peasants, the metropolitan clarified the rules regulating their relationship. Also in prp iii, 423–425, comments by A.A. Zimin, 436–438. 244 asei iii, No. 6 (18–20); prp iii, 421–423, comments by A.A. Zimin, 432–436. 245 E.g. Akty Russk. Gos., No. 18 (26–28); Russkii Diplomatarii, iii, 67–70. 246 E.g. gvnp, No. 255 (264–265).

280

chapter 11

Vol’naia gramota See Otpusknaia gramota. Votchinnaia gramota A charter granting the ownership of an estate (votchina). As a grant charter the votchinnaia is a sub-species of the zhalovannaia; the estate was usually granted as a gift (dannaia); the grantor was the prince, occasionally a church hierarch.247 Vvoznaia gramota See Poslushnaia gramota. Vykupnaia gramota A purchase deed recording the exercise of the right of vykup (redemption): the right of the seller and his relatives to buy back land which had been sold or, less commonly, given away.248 As noted above (under kupchaia), the right of redemption was not limited to ancestral lands (votchina) which had been sold or donated, but also extended to land which had been acquired by a kuplia.249 The right of redemption was often expressly excluded through the ­formula  bez vykupa; this formula also appeared in purchase deeds among relatives.250 Vzmetnaia gramota See Skladnaia gramota Zaemnaia gramota A document recording a simple loan of money; usually called a zaemnaia k­ abala, a promissory note. There is a small number of such documents, the  most common being the zakladnaia kabala, a loan contract reinforced

247 E.g. AIuB i, No. 30-vii (88–90), a grant charter from 1689, from the archbishop of Velikii Ustiug. 248 E.g. asei i, No. 509 (386–387), also in prp iii, 47 (with comments at 63–64), vykup of donated villages by the donor’s son; S.N. Kisterev, L.A. Timoshina (eds.), Akty Troitskogo Kaliazina monastyria xvi v., Moskva/Sankt-Peterburg, 22007, No. 41 (42–43, vykup of land from a daughter-in-law, who gave a guaranty that the land had not been mortgaged). 249 E.g. asei i, No. 484 (365). 250 E.g. asei i, No. 488 (367–368).

Non-Legislative Legal Sources

281

by a pledge or mortgage of land. The extant zaemnye concern comparatively modest sums of money lent to peasants for short periods, such as one year.251 Zakladnaia gramota A pledge or mortgage charter; usually referred to as zakladnaia kabala or zaemnaia zakladnaia kabala.252 In strict legal terms these charters record loans and may for this reason be regarded as a type of zaemnaia, with the addition of certain property being pledged as security (zaklad). But in fact zakladnye almost exclusively concerned real property and the transaction concerning this property completely overshadowed the original loan at the bottom of it. From the socio-economic point of view, moreover, zakladnye covered a wide variety of factual relationships between more or less equal to very unequal partners. Finally, the zakladnaia could be used as the legal form for a transaction which was actually a sale, a gift or an exchange agreement.253 There were all kinds of reasons which could make the zakladnaia an attractive form of contract. The essential components of a zakladnaia were at least the definition of the property pledged (almost invariably real property), the amount of the loan, and its duration. The principal legal division of zakladnye was between contracts that allowed the creditor to use the property and those that did not. The former category normally included a clause to the effect that if the debt was not repaid on time, the zakladnaia would be regarded as a deed of sale.254 A second clause was added occasionally, providing that in such a contingency the amount of the loan would have to be supplemented by an additional sum of money in order to make up a fair sale price. Other zakladnye of the first category did not include a sale clause but provided instead that failure to pay the debt on time would result in an extension of the creditor’s possession of the property, until the debt was repaid. Interest was not charged, as a rule; instead, the creditor, being in possession of the property, enjoyed the income of it.255 When the mortgaged property remained in the possession of the debtor, the contract usually provided for the payment of interest; the standard formula

251 252 253 254 255

E.g. asei iii, No. 358 (381). There are numerous examples in Akty Solovets. mon., see Kabal’naia gramota. Cf. Cherepnin, Arkhivy ii, 89. E.g. Akty Russk. Gos., No. 3 (10). Very explicitly, e.g. in zakladnye which stipulated that “instead of interest” the creditor would have the full enjoyment of the property; cf. asei iii, No. 368 (389).

282

chapter 11

was “to five – a sixth”, i.e. 20%.256 This second category of mortgage contract could also be turned into a contract of sale, when the loan was not repaid on time. Most zakladnye of this category contained such a clause. In that case the creditor would take possession only after the contractual period of the loan had expired, unlike the typical cases from the first category, where the creditor was in possession from the start. Repayment of the loan was actually never contemplated in many cases, and the pledge contract was then in fact a contract of sale in disguise. Where the zakladnaia was genuinely meant to be repaid, there was often a clause forbidding the debtor to conclude specific other transactions which might injure the interests of the creditor.257 Zapovednaia gramota Zapovednaia or okhrannaia (okhranitel’naia) gramota is a collective designation for charters which granted various protective prohibitions or privileges to certain territories.258 The grantor was generally the prince and the beneficiary a monastery. The most common type of zapovednaia concerned a prohibition addressed to the prince’s own officials on entering the territory to which the grant applied or taking part in local assemblies (piry and bratchiny).259 In other zapovednye this prohibition extended to all outsiders,260 and could be accompanied by the threat of a fine for trespassers. Similar types of charters forbad travelling through the territory concerned,261 or staying for a longer period than necessary.262 Other instances of zapovednye cover a variety of prohibitions and privileges, such as the granting of a share in portage fees,263 dispensation from the duty to pay an investigation fee in a case of accidental death,264 or a prohibition on all outsiders to cut wood.265 256 Instead of interest, the right to certain proceeds, such as the harvesting of hay, could be granted the creditor; cf. asei ii No. 367 (361–362). Such zakladnye then constituted an intermediate form between the two principal categories mentioned above. In rare cases, no interest was charged at all: asei iii, No. 157 (173–174). 257 E.g. asei iii, No. 368 (389). 258 Cf. Cherepnin, Arkhivy ii, 113. 259 E.g. asei i, No 264 (192). 260 E.g. asei i, No. 315 (225). 261 E.g. asei ii, No. 69 (44). 262 E.g. asei ii, No. 479 (517). 263 E.g. asei ii, No. 159 (95–96). 264 E.g. asei ii, No. 109 (67). 265 E.g. asei iii, No. 61 (94).

Non-Legislative Legal Sources

283

In all cases, the zapovednaia was connected with a certain plot of land; the monastery which was the beneficiary of the charter was usually already in possession of the territory to which the zapovednaia applied. Zariadnaia gramota A document in which a person obliged himself to do or not to do something, on penalty of forfeiting a fixed sum of money.266 Also a document containing an agreement to have an issue settled by arbitration.267 The underlying problem was usually the fixing of boundaries between adjoining landowners. Zazyvnaia gramota A summons to appear before a court, issued on behalf of the court. Mentioned in art. 22 of the Belozero Charter.268 Zhalobnaia gramota A written complaint to a government official.269 Zhalovannaia gramota A charter in which a property, certain rights, privileges or immunities were granted by the prince. The name of the charter is derived from the verb ­zhalovat’ (to have mercy and, hence, to grant) and grant charters usually contained a form of this verb in the opening sentence: “I, prince A, have granted B …”. There is a great variety of grant charters. They are also very numerous. In a few cases they were issued, not by a prince, but by a church hierarch (bishop, archbishop, metropolitan).270 266 An example from 1503/1504 in asei i, No. 647 (564); in this case the element of zariad (forfeit) was combined with poruka (guarantee): if the debtor, prince Fedor Dolgorukov, did not fulfil his obligations, the two guarantors put up by him would forfeit the sum of twenty roubles. 267 E.g. Akty Russk. Gos., No. 278 (280–281) and No. 90 (95–96; no forfeit clause included). 268 Cf. prp iii, 173 and comments at 219. An example in asei iii, No. 22 (38–40). An example of a zazyvnaia from 1678, to appear before the court of the Moscow patriarch, is in AIuB i, No. 45 (143–144). See also Cherepnin, Arkhivy ii, 189. 269 Pushkarev, Dictionary, 26–27. 270 E.g. asei ii, No. 487 (527), issued by the Moscow metropolitan Simon. A rare example of a grant charter by a Tatar prince: asei i, No. 618 (530–531), Mukhammad-Amin, khan of Kazan’ from 1487 to 1496 (and again from 1502–1518), having been granted lands in Muscovy after having been dethroned in 1496, donated forests near Kashira to a monastery, with judicial and fiscal immunities, in 1498 (a zhalovannaia dannaia tarkhannaia i nesudimaia gramota).

284

chapter 11

The main types of grant charters have been discussed under their own names. This lemma will look at what is common to all grant charters and at the division of the general class of grant charters into separate sub-groups. Grant charters may easily and anachronistically be defined with the aid of modern concepts, such as the distinction between public and private law or the concept of sovereignty. A grant charter would then be a document in which a public authority conferred, from the fullness of its sovereign power, something to a private agent. In fact, in a medieval setting, where sovereignty was diffuse and private and public law inextricably intertwined, such a definition is hardly helpful. Still, the first characteristic of a grant charter is that it was issued by somebody possessing public authority, i.e. in the typical case a prince, and a ruling prince at that. Secondly, the grant charter conferred something specifically connected with the prince’s official position and public powers. Grant charters, as public law documents, can be regarded as related to other public charters, such as ukaznye; the difference is that the specific purpose of a zhalovannaia was the transfer from somebody in public authority to a private agent. The difficulty remains that no sharp distinction between public and private law can be made in this respect. There was no clear dividing line between the prince acting as a territorial ruler and the prince in his capacity as private landowner. At the receiving end of the grant one usually finds a monastery, the most common intermediate landowner in medieval Russia, between the prince and the immediate users of the land. To regard the monasteries themselves as purely private institutions would be misleading. In brief, and avoiding the public-private dichotomy, it would be safest to say that the grant charter was a typical instrument in shaping relations between the prince, intermediate agencies, and the population at large in medieval Russia. The classification debate which raged among pre-1917 scholars and with Soviet scholarship has already been mentioned in the section above on the classification of gramoty in general. It has also affected the inevitable topic of classification of the large number of grant charters. Again, in the end, the net difference between the various views is not disturbing. A pragmatic approach avoids unnecessary controversy. One main group of zhalovannye is formed by documents directed at the transfer of property: gift, sale and exchange charters in the form of a grant (zha­lovannye dannye, kupchie, menovnye). These combine the grant element with the purely private aspect of gift, sale or barter. The second main group of grant charters comprises those which conferred judicial privileges; the most common among them are the nesudimye, through which the prince waived his jurisdictional rights, or some of them, in respect of the territory concerned and granted jurisdiction to the grantee. Such privileges­

Non-Legislative Legal Sources

285

(immunities) were usually granted in combination with fiscal privileges or immunities, and these form the third main group. The most important fiscal grants were the tarkhannye, the l’gotnye and the obrochnye. Zapovednye or okhrannye gramoty was the designation of charters in which the prince forbad his own servants and outsiders to engage in certain activities with regard to the territory to which the grant applied (e.g. to enter it). Such charters cannot always be distinguished from those in which a positive right is conferred to the possessor of the territory. The prohibition on entering a ­territory, for instance, can also be formulated as the right to expel unauthorized visitors. There is a tendency therefore to place all kinds of grant charters which do not fit easily into one of the main categories indicated above into  the  ­category of zapovednye gramoty; these would then include, e.g. a c­ harter ­conferring the right to levy a toll on a road or at a ford. See also srochnye, votchinnye, obodnye, poslushnye, vvoznye, kormlennye, pomestnye and torgovye. It goes without saying that zhalovannye represent a historical source of prime importance, especially on account of the large number available and the considerable time-span covered.271 Russian as well as Soviet scholars have drawn attention to the fact that the most ancient charters have not been worded as express exclusions of princely power within a certain territory, but as a general land grant, implying public powers within the territory concerned.272 One of the oldest land grant charters dates from 1130, in which the Kievan grand prince Mstislav (the Great) ­Vladimirovich and his son Vsevolod donated a village to the monastery of St. George in Novgorod, together with certain taxes and court fines.273

Documents and Collections Other Than Gramoty

Although the terminology with regard to medieval Russian documents is not entirely stable or uniform, gramota (charter) is the most common designation. Other more or less synonymous terms are often encountered, as well as terms 271 In a review of a small number of ancient zhalovannye, Alekseev writes: “Only a very small number of grant charters has been preserved.” (Iu.G. Alekseev, “K voprosu o sudebnom immunitete v kniazheskikh gramotakh xii–xiv vv.”, S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, vyp.8, Moskva, 2004, 10–28, at 10.) His paper, however, is devoted only to charters granting judicial immunity, usually referred to as nesudimye gramoty. 272 Cf. Cherepnin, Arkhivy ii, 113–114. 273 gvnp, No. 81 (140–141).

286

chapter 11

with a more specific meaning. Some of the more frequently used are explained below. Doklad A report. Many gramoty, of various kinds, are in the form of a report to the prince or some other authority. These are called dokladnye gramoty. Apart from such charters, there is a small number of documents where the report is the essence of the message contained, not just the form. These are called doklady.274 Dokonchanie An agreement, a treaty, especially between princes.275 Dozor An inspection report.276 Iarlyk A document issued by the Tatar khan. These documents are discussed separately at the end of this chapter. Khartiia Another, less common, name for gramota, a charter. Nakaz An instruction, particularly one of a general nature, such as from the metropolitan concerning certain aspects of church administration.277 Opis’ A description, an inventory.278 Otpis’ See Otpisnaia gramota 274 E.g. AIuB i, Nos. 68–70 (491–497). 275 E.g. ddg, No. 2 (11–13), a treaty of 1351 between the Moscow grand prince Semën and his brothers Ivan and Andrei. 276 E.g. asei ii, No. 372 (366). 277 E.g. AIuB i, Nos. 166–167 (523–525). 278 E.g. asei iii, No. 48a (72–74); ddg, 445–484 (excerpts from inventories of the Posol’skii Prikaz, the ambassadorial department, from the early 17th entury).

Non-Legislative Legal Sources

287

Pamiat’ A mémoire, a note, a record of some legally significant fact.279 Pis’mo A letter. Spisok A list or, more commonly, a copy. A great many gramoty have not survived in originali but as copies. Such documents are often preceded by the words Spisok s gramoty … (“Copy of a charter …”), or a similar designation. Particularly numerous are copies of judgments (pravye gramoty); such documents are called sudnye spiski.280 Vypis’ An excerpt from another document.281 Zapis’ A note, a record of some legally significant fact.282 Zapis’ as well as pamiat’ may occur as a synonym for gramota.

Pistsóvye and razriadnye knigi

Pistsovye knigi were records, comparable to West European cadastres, in which ownership of land, including all kinds of relevant aspects of it (size, quality, location, yields, population, buildings, etc.), were recorded. Their main use was for tax purposes, but they were also used for proving ownership or for genealogical reference;283 in connection with mestnichestvo claims, see the section on mestnichestvo in Chapter 14 (on the Prince’s Government) and in Chapter 31 (on the Tsar’s Government). They began to be compiled during the latter part of the 15th century, until around 1630, when they were gradually replaced by perepisnye spiski or knigi, which only recorded the local population and their 279 E.g. asei i, No. 596 (494), a pamiat’ from 1495/1499 to a monastery, signed by witnesses, testifying that Anastasiia Salareva had donated a property to the monastery na pominok – for the souls of her father-in-law and her husband. 280 E.g. asei i, No. 326 (235–236). 281 E.g. afzkh i, No. 12 (29). 282 E.g. asei i, No. 556 (433). 283 Cf. S.A. Kozlov, Z.V. Dmitrieva, Nalogi v Rossii do xix v., Sankt-Peterburg, 2001 (2nd ed.), 21.

288

chapter 11

ability to pay taxes. The pistsovye knigi of the Moscow principality were first published by Kalachov in 1872.284 The basic publication of the pistsovye knigi from Novgorod started earlier (in 1859) and was completed in 1910.285 A rich additional collection of pistsovye knigi from various parts of Novgorod territory, covering the period of ca.1490 to 1560, was published in five volumes by K.V. Baranov.286 Razriadnye knigi or spiski were more or less contemporary with pistsovye knigi, starting in the reign of Ivan iii (the oldest dates from 1471) and officially destroyed in 1682 in connection with the abolition of mestnichestvo, with which the razriady were closely connected. They recorded appointments of officials, in particular of military commanders. With the increasing importance and institutionalization of these records, a special government department, the Razriadnyi prikaz, arose in the middle of the 16th century. This department acquired a central role, not only in the allocation of military commands, but in a wider sphere of regulating the employment of the nobility and assigning estates to them in payment for their service to the state. Noble families often maintained their own razriadnye knigi, in order to be able to support their claims to certain positions or advantages. A considerable number of such private registers has survived.287

Novgorod Birch-Bark Documents

The first birch-bark documents (berestianýe grámoty) were found during ­excavations in the old Russian city of Novgorod in 1951. The following decades produced many more hundreds, including smaller numbers from other m ­ edieval Russian towns (Staraia Russa, Smolensk, Pskov, Moscow and Vitebsk). The total number of available birch-bark documents is now well over one thousand. The preservation of the birch-bark documents is due to the climatic and soil conditions of North-Western Russia. 284 N.B. Kalachov (ed.), Pistsovye knigi Moskovskogo gosudarstva, Sankt-Peterburg, 1872. See also V.B. Pavlov-Sil’vanskii, Pistsovye knigi Rossii xvi v., Moskva, 1991. 285 Novgorodskie pistsovye knigi, published in Sankt-Peterburg in six volumes by the Archeographical Commission, 1859–1910. 286 K.V. Baranov, (ed.), Pistsovye knigi Novgorodskoi zemli, Moskva, 1999 (i, ii), 2001 (iii), 2004 (iv, v). 287 See Iu.V. Ankhimiuk, Chastnye Razriadnye knigi s zapisiami za posledniuiu chetvert’ xv – nachalo xvii vekov, Moskva, 2005.

Non-Legislative Legal Sources

289

The documents were inscribed by means of a pointed implement. This explains the generally good legibility. Only rarely has ink been used, and then complicated technical procedures are required to restore the text. The documents have been numbered consecutively, according to the date of their discovery. The definitive publication is in the serial work Novgorodskie gramoty na bereste, but the entire collection can also be accessed ­electronically on gramoty.ru; the latter publication includes a modern Russian translation of the texts. The size of the piece of bark used posed a natural limit to the length of the document. In one case (No. 419) a number of sheets was gathered into a little booklet, containing the text of an evening prayer. It appears that birch-bark was used more or less in the same way as writing-paper in modern times, in other words for anything considered worth writing down. Some documents are no more than labels or name tags, with only a few words written on them. Then there is a small collection of writing exercises (Nos. 199–210) of a boy called Onfim. There are all kinds of lists, notes, and some private correspondence, among the last are two letters of Ontsifor Lukinich to his mother (Nos. 354 and 358). Ontsifor Lukinich was a prominent Novgorod boyar, mentioned in 1342 in the First Novgorod Chronicle. Document No. 377 is regarded as a love letter by some Russian historians. The birch-bark texts are not only of necessity short; more than three quarters of them are also defective in the sense that part of the text is missing or has become illegible. The language is a local Novgorod Russian dialect, with a few exceptions (No. 292, a pagan invocation in Karelian; No. 488, a psalm text in Latin, found in the ‘Gothic’, i.e. Visby settlement within Novgorod). The documents can to some extent be dated paleographically (on the basis of script and language), as well as on the basis of their contents. Purely ­archaeological methods offer more exact dating. Dendrochronology in particular has been helpful, as the medieval streets of Novgorod were covered with wooden pavements (mosty). The oldest document has been dated to around 1080 (No. 526). Documents from the 12th–14th centuries are well represented; the number decreases after that, due no doubt to the wider availability of paper. For the legal historian, two types of documents are of particular interest. There is a modest number of purely legal documents: wills, gift charters, deeds of sale, etc., and a much larger number of documents which, although not of a strictly legal nature, illustrate in one way or another some aspect of the legal system of medieval Novgorod. One of the prominent works on the importance of Novgorod birch-bark documents as a historical source contains a long chapter entitled “The Russkaia Pravda in Action”, while other chapters on

290

chapter 11

deals concerning land, the position of peasants, court procedure, mortgages and other subjects with a legal dimension demonstrate how law permeated many aspects of daily life.288 The formulae used in the birch-bark charters were similar to those ­already known from paper and parchment charters. They adhere to the ­typical Novgorod usage of the third person (“Hereby Ivan Petrovich buys …”) instead of the first person, as current in Central Russia (“I, Ivan Petrovich, have bought …”). The actual number of complete or almost complete birch-bark charters is quite small, not more than about ten. The longest of them, No. 519–520, is a will from around 1400. Among the others are two agreements of the riadnaia type (Nos. 136 and 366) and at least one kupchaia (No. 318). A full understanding of the nature of the charter is often made difficult by the conciseness of its style and the lack of contextual information. The beginning of No. 138, for instance, has the appearance of a will: “I, God’s servant Silvester, have written this rukopisanie”.­ The term rukopisanie (“handwriting”), as explained above, usually denotes a last will, but may also refer to other charters. The opening words are followed by a list of persons who are apparently Silvester’s debtors, and the amounts of their debts (a frequent component of last wills). Among the incomplete charters are several wills, recognizable as such by the customary opening words of the invocation of the Trinity (Nos. 28, 42, 369). The uniqueness of the birch-bark documents as a source for legal history is illustrated especially by the large number of documents concerned with daily life and business. Their interpretation often gives rise to difficulties, but they nevertheless offer a vivid picture of the “law in action” in a period when the usual legal sources (laws and ordinary legal charters) are scarce or non-existent. The Iarlyki of the Tatar Khans289 The iarlyki of the Tatar khan constitute an exotic but unavoidable element in the reservoir of sources of medieval Russian law.290 The word iarlyk is of 288 L.V. Cherepnin, Novgorodskie berestianye gramoty kak istoricheskii istochnik, Moskva, 1969. This work also contains the texts of almost all Novgorod birch-bark documents up to No. 424. 289 As already explained elsewhere, the ethnonyms “Mongols” and “Tatars” are used more or less synonymously in referring to the empire of Chingis-Khan and his successors. The explosive growth of the originally Mongol realm brought overwhelming numbers of Turkic peoples in Central Asia and the adjoining steppe world into the confines of the empire. Within a few generations, the thin layer of Mongol leaders had been thoroughly turkicized. 290 The most extensive collections of iarlyki are to be found in pre-revolutionary p ­ ublications: Sobranie gosudarstvennykh gramot i dogovorov [quoted as sggd], Vol. 2, Sankt-Peterburg, 1819, Nos. 2, 7, 9–12, 15;

Non-Legislative Legal Sources

291

­ urkic origin and means “order” or “decree” (in modern Russian its meaning T has been reduced to “a label” or “a slip of paper”). The invasions of the armies of Chingis-Khan’s grandson Baty, which started in 1237, resulted in the rapid subjugation of most of the Russian principalities. Russia became what can best be described as a collection of vassal states of one of the successor states of the empire of Chingis-Khan, the Ulus of Juchi (Dzhuchi, Chingis-Khan’s eldest surviving son), better known in later centuries as the Golden Horde or the Qipchak khanate. Mongol-Tatar domination left the infrastructure of Russian law by and large intact and limited itself to the imposition of various kinds of tribute and taxes, and to securing recognition by the Russian princes of the khan’s suzerainty (see also the section on the Mongol-Tatar impact on Russian law in Chapter 10, on Foreign Laws). For this purpose princes would be summoned to the khan’s temporary headquarters, at Sarai, on the Lower Volga, or somewhere else in South-East Russia or in the West-Siberian steppe. Occasionally, they would even be required to present themselves at the court of the great khan, in Karakorum, in present-day Mongolia, until khan Mengu-Timur (1266–1282) made the Golden Horde independent in 1269.291 Among the number of available iarlyki, some have no significant connection with Russian legal history and they need not be considered here.292 The recent works of two authors have furthered a fuller understanding of the iarlyki affecting legal history. A.P. Grigor’ev has been able to reconstruct the original Old Uigur texts by an extensive comparison with available diplomatic texts from the

M.A. Obolenskii, Iarlyk khana Zolotoi Ordy Tokhtamysha k pol’skomu koroliu Iagailu 1392– 1393 g., Kazan’, 1850; V. Radlov, “Iarlyki Tokhtamysha i Temir-Kutluga”, Zapiski vostochnogo otdela imperatorskogo russkogo arkheologicheskogo obshchestva, T.3 (1888), Sankt-Peterburg, 1889, 1–40; I.N. Berezin, Khanskie iarlyki, 3 vols., Kazan’, 1850–1851; id., “Tarkhannye iarlyki krymskikh khanov”, Zapiski obshchestva istorii i drevnosti, No. 8, Odessa, 1872; id., “Iarlyki krymskikh khanov Mengli-Gireia i Mukhamed-Gireia”, ibidem; Ia. Iartsev (transl)., V. Grigor’ev (comm.), “Iarlyki Tokhtamysha i Seadet-Gireia”, Zapiski obshchestva istorii i drevnosti, No. 1, Odessa, 1844; V.V. Grigor’ev, O dostovernosti iarlykov, dannykh khanami Zolotoi Ordy russkomu dukhovenstvu, Moskva, 1848; also in Sbornik statei “Rossiia i Aziia”, Sankt-Peterburg, 1876, 170–258.’ More recent and accessible publications are: M.D. Priselkov, Khanskie iarlyki russkim metropolitam, Petrograd, 1916; V.N. Beneshevich, Sbornik pamiatnikov po istorii tserkovnogo prava ii, Petrograd, 1914, 9–25; prp iii, 463–491; A.P. Grigor’ev, Sbornik khanskikh iarlykov russkim metropolitam, Sankt-Peterburg, 2004. 291 R.Iu. Pochekaev, Pravovaia kul’tura Zolotoi Ordy, Moskva, 2015, 187. 292 E.g. the iarlyk of Temir-Kutlug of 1398, discussed by Radlov (see above). This document concerned the appointment of a certain Mekhmet and his sons as tarkhans in the Crimea.

292

chapter 11

entire Mongol empire.293 These documents were drafted in accordance with a fixed format. In the first section the person issuing the document (­usually the khan himself) identified himself and addressed himself to the officials concerned, or sometimes to the entire population. The historical legitimacy was established by referring to previous and similar charters issued by ChingisKhan himself or his successors. The next section contained the legal substance and provided the actual contents of what was being ordered. In the case of the iarlyki addressed to the Russian Church this mostly concerned fiscal immunity. In return, the Russian Church was ordered to pray for the khan and his family. Then there was a warning paragraph, containing threats against anyone not obeying the decree. The final section mentioned the place and the date the iarlyk was passed, and in some cases the witnessing officials.294 R.Iu. Pochekaev has presented an explanatory framework for the six available iarlyki. They have come down in church collections and in Russian translation only. In keeping with the Mongol tradition of religious tolerance, the Russian Church was initially not prevented from continuing to function and was in fact granted a privileged position in being exempted from taxation. These privileges were confirmed, according to Mongol custom, every time a new khan came to power. The metropolitan would be required to travel to the khan’s encampment, bringing presents, in order to receive the confirmation iarlyk. Most of these iarlyki conferred fiscal immunity on the Church, who was instructed in return to pray for the khan and his kin (plemia). The texts of these iarlyki to the Russian metropolitan, originally written in Old Uigur, were translated into Russian already in the 14th and 15th centuries. In this form they were included in the metropolitan archive and acquired a place in the kopiinye knigi (lit. copy books, see above).295 The collection is not complete and Pochekaev explained the absence of certain iarlyki by their intentional exclusion. It appears that political circumstances repeatedly induced the khan to curtail the privileges which had been extended by his ancestors. When the old privileges were again restored by a successor, the metropolitan archive would keep only the more favourable documents. The iarlyki of the khans commanded great respect and the documents issued by Taidula (the widow of khan Uzbek and the mother of khan Dzhanibek) and included in the official Russian collection 293 A.P. Grigor’ev, op. cit. 294 Cf. Grigor’ev, 206–207. 295 Cherepnin, Arkhivy ii, 53–57. Texts in sggd ii, Nos. 2 (5–6), 9–12 (11–4), 15 (17–18); prp iii, 465–470; Beneshevich, Sbornik pamiatnikov ii, 9–25; revised texts in A.P. Grigor’ev, Sbornik khanskikh iarlykov russkim metropolitam, Sankt-Peterburg, 2004, 44, 52–53, 65–66, 70–71, 114–115, 201–202.

Non-Legislative Legal Sources

293

should be considered as enjoying less prestige.296 According to Pochekaev, the full list of iarlyki issued by the khans to the Russian metropolitans counted 9 documents, of which only three survived in their Russian version.297 The importance of the iarlyki for the Russian Church was in the privileged treatment the Church enjoyed at the hands of the infidel rulers; thus the iarlyki were politically useful documents in the Church’s attempts to secure similar concessions from the Moscow grand princes. In this respect it is noteworthy that the texts of some of the copies of surviving iarlyki had been doctored to produce a more favourable position for the Church298 and that some of the series of copies contain an entirely counterfeit seventh document, the so-called iarlyk of khan Uzbeg.299 The three iarlyki addressed to the metropolitan directly concerned fiscal immunity for the Church. They differed on additional questions. The oldest of them, the iarlyk of Mengu Temir of 1267, established general fiscal immunity for the entire clergy (priests and monks) and imposed on them the obligation to pray for the khan.300 The iarlyki of khan Berdibek of 1357 and of khan Biulek (also Tiulak or ­Tulunbek) of 1379 are very similar. The latter document confirmed earlier grants and did in fact refer to Berdibek’s previous grant. Both iarlyki originate from a lost iarlyk of khan Tokhta of 1308.301 They allowed full tax exemption to the metropolitan, priests and monks (the 1379 charter even specified “­ordinary” and “extraordinary” taxes), but also established territorial immunity for the churches and dwellings of the clergy, as well as for all church lands and ­waters (i.e. Tatar officials were told to keep out).302 A tax exemption iarlyk­ from

296 Pochekaev, op. cit., 194. 297 Pochekaev, 200, mentions iarlyki of 1283, 1308, 1313, 1333, 1342 and 1363, along with the iarlyki of 1267, 1357 and 1379, discussed hereafter. 298 The iarlyki of 1357 and 1379, for instance, conferred criminal jurisdiction upon the ­metropolitan, according to the texts from the metropolitan’s archives (prp iii, 466 and  470), although such provisions are absent in Grigor’ev’s new reconstruction (see below). 299 Cf. P.P. Sokolov, “Podlozhnyi iarlyk Uzbeka metropolitu Petru”, Russkii istoricheskii zhurnal, No. 5 (1918), 70–85; Cherepnin, Arkhivy ii, 54; prp iii, 464–465. Text of the counterfeit iarlyk in sggd ii, 9, and in Beneshevich, Sbornik pamiatnikov ii, 21–24. 300 Grigor’ev, 44. The old text in prp iii, 467–468 and in Beneshevich ii, 14–16, is different and much longer. 301 prp iii, 471, 478. 302 Grigor’ev, 114–115, 201–202; longer and different texts in prp iii, 465–466 and 469–470, and in Beneshevich ii, 9–12 and 18–20.

294

chapter 11

Taidula,­widow of khan Dzhanibek, issued in 1351, was slightly less ­generous in that it did not exempt the Church from market taxes.303 Another iarlyk from Taidula, from 1347, was traditionally regarded as a fiscal immunity charter, granted to the metropolitan.304 In Grigor’ev’s reconstructed reading it appeared as a proezzhaia, a travelling document guaranteeing the bearer free passage, issued to the bishop of Sarai for travelling through Russia in 1347.305 For a 1354 iarlyk of Taidula both readings agree in understanding it as a proezzhaia, in this case for metropolitan Aleksei who intended to travel to Constantinople.306 The iarlyk threatened those who disregarded it with responsibility under the Great Iasa (see Chapter 10). These six iarlyki demonstrate the well-developed diplomatic practice of the Golden Horde. There is, for instance, a clear difference in style between the three iarlyki issued by Taidula in something like a regent’s capacity and the other three iarlyki issued by the khan himself. The latter three all commence with a solemn invocation of divine powers. Such diplomatic niceties were also reflected in a letter from khan Tokhtamysh to the Polish king Jagiello of 1392–1393.307 The original text of this letter in Old Uigur was accompanied by a contemporary Russian translation, apparently prepared in the khan’s chancery. The letter contained a report on a plot against Tokhtamysh, hatched by a group of Mongol princes, conspiring with Timur (Tamerlane). Additionally, the khan requested the payment of tribute and the resumption of commercial relations. The Russian version of the iarlyk is less severe and more courteous in tone than the Uigur original. Tokhtamysh was in serious trouble at the time and was certainly interested in enlisting the support of the Polish king.308 The subordinate position of the Russian princes is made clear by the very few iarlyki addressed to them directly.309 303 Grigor’ev, 65–66; different texts in prp iii, 468–469 and Beneshevich ii, 16–18. 304 prp iii, 466–467; Beneshevich, 13–14. 305 Grigor’ev, 52–53. Within the context of Tatar policy with regard to religion, a bishopric had been established in 1261 in Sarai, the temporary headquarters of the khan at that time. See R.G. Skrynnikov, Krest i korona. Tserkov’ i gosudarstvo na Rusi ix–xvii vv., Sankt-Peterburg, 2000, 42. 306 Grigor’ev, 70–71; prp iii, 470–471; Beneshevich ii, 24–25. 307 Russian text in M.M. Peshchak (ed.), Hramoty xiv st., Kyiv, 1974, 112–113. 308 See G.V. Vernadskii, Istoriia Rossii; Mongoly i Rus’, Tver’/Moskva, 1997, 277–280 and also the works by Radlov and Obolenskii, quoted above. 309 Cf. a very brief charter, dated 1266–1272, and consisting of only two sentences, the first one being: “The word of Mengu-Timur to prince Iaroslav: allow the German merchants to travel freely through your lands.”, gvnp, No. 30 (61), the prince being Iaroslav Iaroslavich,

Non-Legislative Legal Sources

295

grand prince of Vladimir, who served as prince of Novgorod from 1266 on. Even more explicit is the letter of the Tatar emir (not even the khan himself) Edigei to the Moscow grand prince Vasilii Dmitrievich in 1409, in which the grand prince was reproached for lack of respect and failure to pay his dues; sggd, Vol. 2, No. 15 (17–18). The Polish and Lithuanian rulers, who were never in the position of vassals, were addressed more politely as “brother” by the khan; see the iarlyk mentioned above of 1393 to the king of Poland and one addressed by khan Murtazy in 1484 to the Lithuanian grand prince Kazimir (V.M. Rusanivs’kyi (ed.), Ukrains’ki hramoty xv st., Kyiv, 1965, 1347–138). Three late Tatar iarlyki have been published by A.A. Gorskii in Moskva i Orda, Moskva, 2001, 196–199, from the usurping Tatar ruler Edigei to the Moscow grand prince Vasilii I Dmitrievich, of 1408; from khan Akhmet to Ivan iii, some time between 1472 and 1480 (cf. Gorskii, 175–177); and from khan Murtoza to Ivan iii, from 1486.

Section 2 The Law

∵

chapter 12

Setting the Stage: Territory and Tribes in Early Kievan Russia

The Physical Stage of Early Russian History

Half-way between Moscow and the ancient Russian city of Velikii Novgorod, the Valdai Heights present the most notable elevation in the vast expanse of European Russia. If one were to go from there in a south-westerly direction all the way to Warsaw, the road would be level for the first two hundred kilometres, but then right up to the Polish border it would follow a ridge of gentle hills, the West-Russian elevation. South of the south-western tip of this elevation the impenetrable Pripiat’ marshes constitute a formidable natural border. These geographical features are of fundamental importance for the course of Russian history, because the main rivers of Medieval Russia find their origin here in the West-Russian elevation: the Dnepr, the Volga, the Western Dvina1 and the Volkhov. The flatness of the terrain and the closeness of the heads of the rivers and their tributaries made portage possible and thereby the emergence of long-distance river transport. Along with these hydrographical features, the vegetation zones are among the basic determinants of Russian history. A broad zone, running in a swne direction, in which broad-leaved forests gradually thin out into the forest steppe, separates the southern steppes and the northern forests. The central axis of this zone is the Ufa- Chişinau (Kishinev) line. Mixed forests dominate in the Central-Russian territory; further north, roughly above the Riga-Perm’ line, conifers reign absolute. The tundra in the Far North is of minor importance in Russian history.

The Eastern Slav Tribes in the 10th Century

When the Eastern Slavs appeared on the stage of history, the territory o­ ccupied by them consisted roughly of the basins of the Dnepr, the Western Dvina and the Volkhov, and their tributaries, and the upper reaches of the Volga. 1 The Western Dvina, which empties into the Baltic Sea at Riga, is not to be confused with the Northern Dvina, flowing into the White Sea.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_013

300

chapter 12

Novgorod, on the Volkhov, and Kiev, on the Dnepr, were the old economic and political centres. As most of this area was densely wooded, rivers offered the only realistic thoroughfares. The inhospitable North was sparsely inhabited by various Finnish tribes, mostly known as Chud’ in the Russian annals. To the East, in the direction of the Urals, other Finnish and Ugrian tribes lived in the forests. Further to the South, the forest gradually changed into forest-steppe and then full steppe, part of the immeasurable plains stretching from the Carpathians to the mountains of Central Asia, the Altai and the Tian-Shan. This was and would remain for most of Russian history the homeland of nomads, mainly of Turkic origin. In the West, Russian land bordered on the lands of other Slavic and Baltic peoples. According to the Primary Chronicle, the main Eastern Slav tribes in the 10th century were the Poliane (in the area around Kiev), the Severiane (ne of the Poliane, along the Seim, Sula and Upper Desna rivers), the Radimichi (W of the Severiane, along the river Sozh), the Dregovichi (W of the Radimichi, between the Pripiat’ marshes and the Dvina), the Derevlians (S of the Dregovichi and W of the Poliane), the Polochane (N of the Dregovichi, with Polotsk as their centre), the Viatichi (in the Oka river basin), the Krivichi (N of the Polochane, Radimichi and Viatichi, with Smolensk as their centre), and the Slovenes (N of the Krivichi, with Novgorod Velikii as their centre). Additionally, the Chronicle mentions the Volynians (or Duleby, along the Western Bug), and a multitude of Finnish tribes, scattered around the northern half of this territory. The picture drawn by the Chronicle of the tribal territories of 10th century Russia has been almost universally accepted in Russian historiography, without much serious questioning. Lately I.N. Danilevskii has pointed out that supporting evidence is almost completely absent.2 With this caveat in mind we continue our narrative. These Slavic tribes presumably constituted the main political units during the 10th century, although there are echoes of larger tribal confederations in the works of non-Russian authors. Procopius of Caesarea and Jordanes, both writing in the middle of the sixth century, mention the related nations of the Sclaveni and the Antes, inhabiting the area of Western Russia.3 2 I.V. Danilevskii, “Vostochnoslavianskie «plemennye soiuzy»: real’nost’ ili letopisnaia legenda?”, T.N. Dzhakson, A.V. Podosinov (eds.), Kniga kartiny Zemli. Sbornik stateii v chest’ Iriny Gennadievny Konovalovoi, Moskva, 2014, 66–75. 3 English texts in G. Vernadsky & R. Fischer (eds.) and S. Pushkarev (comp.), A Sourcebook for Russian History From Early Times to 1917, Vol.1, New Haven/London, 1972, 7–8. Russian texts in T.N. Dzhakson, I.G. Konovalova & A.V. Podosinov (eds.), Drevniaia Rus’ v svete zarubezhnykh

Territory and Tribes in Early Kievan Russia



301

Russia’s Multi-Ethnic Past in Ancient Times

The most fundamental factor in the geopolitics of European Russia was and is its division into two main zones: the forested North, difficult to penetrate and traversable mainly by water, and the steppes in the South, stretching eastwards for thousands of kilometres to Mongolia and Eastern Siberia. Mounted, mobile and well-armed tribes had since time immemorial been able to impose their rule over vast territories. The earliest detailed information about the territory of Russia stems from the Greeks, who, as mentioned before, had founded numerous colonies along the coast of the Black Sea. Herodotus discussed at length the Scythians, the population of the steppes north of the Black Sea. That they belonged to the great amalgam of Indo-Iranian peoples is not seriously contested. As can be expected, his information about the neighbours of the Scythians is sketchier. The Neuri, living to the north and north-west of the Scythians, are regarded by some as Slavs, as is another nation mentioned by Herodotus, the Budini.4 The Sauromatians are placed by Herodotus between the Scythians and the Budini, i.e. in the south-eastern part of European Russia. In the following centuries the Sauromatians formed the main segment of the Sarmatians, a league of predominantly Indo-Iranian nations, who replaced the Scythians as the dominant force in southern Russia until the arrival of the Germanic Goths in the 3rd century a.d.5 The Indo-Iranian element did not completely disappear in southern Russia; from the 1st century a.d. on, the presence of the Alans has been recorded in the area around the Sea of Azov and north of the Caucasus.6 The present-day Ossetians are regarded as their descendants. The rule of the Goths spread over most of Europe. The populations of the conquered territories did not disappear but became less visible. This might apply also to the Antae, inhabiting the area between the Dnestr and the Dnepr. istochnikov, T.I (Antichnye istochniki), A.V. Podosinov (comp.), Moskva, 2009, 269–274 and T.II (Vizantiiskie istochniki), M.V. Bibikov (comp.), Moskva, 2010, 69–79. 4 Vernadskii, op.cit., 81–83. 5 The principal authority on the history of the Goths (and equally of the Huns) is Jordanes, a Gothic monk, who wrote in the middle of the 6th century. The Gothic language survived for a long time in the Crimea, where de Busbecq, an emissary of the German emperor to the Ottoman sultan, recorded a considerable number of Gothic words in the middle of the 16th century. 6 The Alans as such are not mentioned in the Primary Chronicle. The Iasy (also known as Ovsy), the ancestors of the Ossetians, turn up in 965, together with the Kasogi (the ancestors of the Adyge), inhabiting the steppes to the north of the Caucasus, in the tale of Sviatoslav’s campaign against the Khazars.

302

chapter 12

The visibility of ethnic units in this period depended very much on their mobility. A mostly sedentary population, as the Slavs seem to have been in this era, would hardly be noticed by the more advanced powers such as Byzantium, while the warlike nomadic peoples, be they Huns, Goths or Alans, constituted a genuine threat to the civilized mediterranean world. The Antae emerged in the 5th century a.d. and are the first to be reliably identified as Slavs on ­Russian territory. The original homeland of the Slavs is generally considered to have been located more to the north-west in present-day Poland. The Goths in turn were overrun by the Huns in the second half of the 4th century. The Huns were probably of Turkic origin, but their armies included auxiliaries of numerous subject nations. The Hun empire rapidly fell apart after the death of their most famous king, Attila, in 453. The appearance of the Huns had caused, or at least considerably contributed to, the massive ethnic movements in Europe known as the Great Migration of Peoples (Germ. Grosse Völkerwanderung). It also signaled the emergence of a new ethnic factor in Russia: peoples speaking languages belonging to the Ural-Altaic family. In the 6th century the Avars arrived from Central Asia, to play an active role in Russia, the Balkans, and Central Europe.7 They reached their apogee under their ruler Baian in the second half of the 6th century. The Avar empire survived for another two centuries, although gradually weakening, until it was annihilated by Charlemagne during the last decade of the 8th century. Another Turkic people which entered on the Russian and then European scene was the Bolgars who arrived in southern Russia in the 5th century.8 They fell under Avar domination around the middle of the 6th century, but were not fully absorbed. There are reports of Bolgar attacks against Byzantium in the beginning of the 6th century and during the government of Justinian (527–565). They continued to harass the Byzantines during the following centuries, especially after they had founded the first Bulgarian state in the Balkans during the latter half of the 7th century. Another group of Bolgars moved up along the Volga, where they settled in the Middle Volga area. The Volga Bolgars are mentioned in the writings of Ibn Fadlan; they converted to Islam in the 9th century. 7 Whether the original Avars themselves spoke a Turkic language is not entirely clear; the multiethnic armed bands which constituted the Avar host were predominantly Turkic-speaking. 8 I use the term ‘Bolgars’, although ‘Bulgars’ or ‘Bulgarians’ are also encountered in the literature. The Bolgar elite in the early Bulgarian empire in the Balkans was soon slavicized so that present-day Bulgarians and their language are considered to be Slavic. Vernadskii regards the Bolgars as closely connected with the Huns and often speaks of Huns-Bulgars; in contemporary Byzantine sources the Bolgars are commonly called Huns.

Territory and Tribes in Early Kievan Russia

303

They were important trading partners of the Russians on the trade route from Scandinavia to the Middle East. Of greater importance in protohistoric Russia were the Khazars, another nation of Turkic origin (as is assumed by most scholars), who are first mentioned in the 6th century. In the course of the following centuries the Khazar empire, which had its centre in the vast steppes north of the Caucasus, rose to be the regional hegemonial power, imposing tribute on most of the surrounding nations: the (equally Turkic) Volga Bolgars, the Alans (north of the Caucasus), and the early Slavs in the Middle Dnepr area. The Khazars maintained close relations with the Byzantine empire and were constantly at war with Arab invaders coming across the Caucasus during the explosive expansion of Islam in the 7th century. Khazar hegemony came to an end when the Kievan grand prince Sviatoslav (the father of St. Vladimir) defeated the Khazars in 965 (or 966) and took their capital Bela Vezha (on the Lower Don). Comparative late comers in southern Russia were the Magyars or ­Hungarians, who wandered from their homeland somewhere in western S­ iberia or the Ural area during the 8th century. In the 9th century they ­appeared as ­tributaries of the Khazars. There are reports of Hungarian forays into the empire of the Franks in 862 and 881. The Primary Chronicle mentions them for the first time during the last decade of the 9th century, when they raided Kiev under the reign of prince Oleg. It was also at the same time (896) that the entire H ­ ungarian nation moved en masse to Central Europe where it settled. Although the Hungarians belonged linguistically to the Finno-Ugrian language group, their nation also embraced Turkic elements (mainly Khazars) which had joined them during their stay in the lower Don region, migrating with them to their destination on the Danube. The exodus of the Hungarian tribes during the last decade of the 9th century was caused by the pressure of new invaders from the East, the Turkic Pechenegs whose incursions had started earlier in the century. All through the 10th century they constituted a major component of the ethnic scene in southern Russia, occasionally in alliance with the Russians, but usually at war with them. The final showdown came in 1036 when a large Pecheneg force laid siege to Kiev and the Kievan grand prince Iaroslav the Wise destroyed them utterly with a combined force of Varangians (Vikings) and contingents from Kiev and Novgorod. The remnants of the Pechenegs were gradually absorbed by another wave of Turkic nomads, the Polovtsians, arriving from Central Asia during the 1030–1060 period. The Polovtsians are already squarely within the era of early medieval Russia. They are also known as the Cumans, or by their own ethnic name, the Kipchaks (Qipchaks). For many years they remained the main enemy of the

304

chapter 12

Kievan Russians, until they finally stood together with an all-Russian force in 1223 against the Mongols in the battle at the Kalka river; this signified the end of the Polovtsians.9 A crucial role in the beginning of Russian history was played by Scandinavians, Vikings, or Varangians (Variagi) as they are called in the Russian chronicles. The first mention is in 859, when “the Varangians from beyond the sea” are said to have imposed tribute on various nations in the northern part of Russia (the Finnish Chud’, Ves’ and Meri, and the Slavs – Novgorodians – and Krivichi), while the Slavic tribes of the Poliane, Severiane and Viatichi were tributaries of the southern Khazars. The following years were apparently marked by unrest: the Varangians were first driven out, but then some of them (called ‘Russes’) were invited back by the same northern peoples in 862. This is one of the most famous and disputed episodes in the Primary Chronicle. At this point it is sufficient to say that the appearance of Vikings in significant numbers at this time, as recorded by the Primary Chronicle, agrees with the information produced by external sources. Patriarch Photius and other Byzantine writers have described the Russian (or rather Varangian) raid against Constantinople in 860, and a disputed date around 840 is given for the attack by the Rós on the town of Amastris on the Black Sea. In Western European sources the Russians turn up in the Bertinian Annals, where (as related before) the emperor Louis the Pious received a Byzantine delegation in 839, which included a few Rhos people; Louis did not quite trust them (the Frankish empire was already suffering from Viking invasions at that time) and established, after further investigations, that they were Swedes. The events after 859 should not be viewed as the result of a sudden invasion of Russia by Scandinavians. Archeological evidence indicates that goods from Scandinavia had been passing through Russia for at least a century by then. There would certainly have been a presence of Scandinavian traders in Russia during that period.10 But the intensity and therefore the impact of this ­presence increased after the middle of the 9th century. 9

10

For the sake of completeness the Torks or Oghuz (a Turkic people) should also be mentioned in this connection. They occupied the steppes to the west, north and east of the Aral Sea and played a minor role in the earliest history of Kievan Russia. They are mentioned as members of an anti-Khazar alliance in 890 and supported the Kievan prince Sviatoslav in defeating the Khazars in 965. They seem to have been mostly supportive of the Russians, first against the Khazars and later against the Polovtsians. Torks were present in Kievan Russia and are mentioned occasionally in the Primary Chronicle. See the first chapter “The Silver-Seekers from the North (c.750-c.900)” in Franklin and Shepard, op.cit., 3–70.

Territory and Tribes in Early Kievan Russia

305

While the southern Russian steppes witnessed a continuous va-et-vient of various Indo-European and Altaic (Turkic and Mongolian) nomad invaders from the beginning of recorded history until the arrival of the Mongolian Kalmyks during the 18th century, the forested North of Russia presented a scene of silent stability. It had been sparsely populated since neolithic times by Finno-Ugrian tribes. In medieval Russian history they continued to play a minor but still noticeable role. The Russian chronicles report about occasional armed collisions with the Chud’, a Finnish people living in the north-western corner of European Russia. The economic impact of the connections between the forest-dwellers and the more advanced civilizations of southern Russia was quite significant. The forests of North Russia produced an inexhaustible supply of animal skins, one of Russia’s principal exports through the centuries. The penetration of the North by the Eastern Slavs (Russians) was gradual and by and large peaceful. The autochthonous Finnish populations were ­mostly absorbed; in the eastern part of European Russia some of them survived as compact ethnic blocks (Komi, Mari, Udmurt, Mordva), in other parts of Russia (especially in north-west Russia) as small scattered communities (such as the Vepsy in the Onega Lake region).11 The bewildering procession of warlike nomads succeeding each other as rulers of the plains in southern Russia appears more manageable if attention is focused on a shorter period, such as the 10th century. The situation sketched in the Primary Chronicle is confirmed by other sources: Eastern Slav tribes occupied the western half of European Russia, with the main tribes around the two main centres in the North (the Slovenes) and the South (the Poliane). In the eastern part of this territory (the Oka and Upper Don basins) the wild and coarse Viatichi had settled. To the north and east of the Slavic area various Finnish tribes had their homes, and further east, the realm of the Volga Bolgars was located in the Middle Volga region. The steppe to the south of Kiev was the stage of permanent conflict between Slavs (mainly the Poliane) and Pechenegs, who also controlled the vast open territories further east, as far as the Lower Don and Lower Volga. There the Pechenegs bordered on the Khazar empire, which had its centre in the steppes to the north of the Caucasus mountains and to the west and north of the Caspian Sea. The Varangians (Vikings), in accordance with their origin as traders/warriors, did not claim any territory (apart from their Swedish homeland) as exclusively their own but were prominently present wherever profit or booty was to be had. 11

The majority of river names in the north of European Russia are of Finnish origin, while in the south Iranian names dominate. This seems to reflect the ethnic make-up of the area during the first two millennia b.c.

306

chapter 12

The Khazars and Volga Bolgars were eliminated (as mentioned above) as independent political actors in 965–966 by prince Sviatoslav of Kiev and this left the Slavs (Russians), Varangians and Pechenegs as the major ethnic groups; the more primitive and fragmented Finnish populations of the northern forests were of little political importance. The Pechenegs, pagan Turkic nomads, were the enemy, the Slavs and Varangians lived in a symbiotic relationship. The ­Varangians were numerically insignificant. They had been passing through Russia as traders for centuries (as evidenced, for instance by Byzantine and Arab sources). Gradually, their presence assumed a more explicitly military and political character, as suggested by the famous story about Rurik and his brothers being invited to rule over the local Slavic population. The Primary Chronicle refers repeatedly (1015, 1018, 1024) to Russian princes sending to Sweden for Varangian troops. Iaroslav the Wise, in his struggle for the throne of Kiev in the decisive year 1015, is said to have collected a force of one thousand Varangians and forty thousand Russians. The 10th century undoubtedly represented the apogee of the Varangian impact in Russia. The comparatively small number of them meant that they were easily absorbed. Already before the adoption of Christianity, under prince ­Sviatoslav (the first Rurikid ruler with a Slavic name), russification had set in. The events around the succession of St. Vladimir in 1015/1016 were the last in which local Varangians played a significant role. A separate Varangian contingent in the Russian army is mentioned for the last time in 1036. After that they had apparently become fully integrated into Russian society.

The Emergence and First Expansion of the Early Russian State

In the narrative of the Chronicle, the emergence of the first Russian state in the course of the 10th and 11th centuries was closely connected with the subjugation of the main tribes to the authority of a single dynasty. The relevance of a Viking or Scandinavian element in this process is a central and unavoidable question, but will be left aside for the time being. The founder of the dynasty, Rurik, is said to have established his rule in Novgorod around 860 and extended it to include the Krivichi (directly south of the Novgorod territory) and some of the neighbouring Finnish peoples, such as the Ves’ and the Chud’, as well as the Meria and the Murom, who were also partly or in some respects subject to him. His successor Oleg (879–913)12 12

Oleg’s genealogical connections are uncertain; according to the Chronicle, he belonged to the gens (rod) of Rurik. Others (such as Tatishchev) indicate that he was Rurik’s shurin

Territory and Tribes in Early Kievan Russia

307

shifted the centre of gravity of his power to the south by taking Kiev and subjugating the local Polianians. He also conquered the Severians and, temporarily, the Derevlians. The Radimichi, tributary to the Turkic Khazars, switched their allegiance to Oleg. The latter also waged war against his south-western Slavic neighbours, the Ulichi and Tivertsy, but the outcome of these campaigns is unclear. Rurik’s son Igor (913–945), who succeeded Oleg, continued to fight the Derevlians under their prince Mal and fell in a battle against them. His widow Olga and son Sviatoslav succeeded in finally crushing the Derevlians. In 966 Sviatoslav defeated the Viatichi, inhabiting the basins of the Oka and the Upper Don, and made them his tributaries. Later on they rose once more against Sviatoslav’s son Vladimir, but were beaten by him in 982. The Viatichi stubbornly resisted the introduction of Christianity, and a century later Vladimir Monomakh ­recounts in his Testament how he waged a campaign for two winters against the Viatichi under their prince Khodota in 1079–1080. The Radimichi, under their ruler Wolf’s Tail (Vol’chii Khvost) unsucessfully rose up against Vladimir in 984. The pagan princes of Kiev, Oleg, Igor and Sviatoslav, had directed their ambitions mainly to the south, where they had to deal with the Bulgarians and the Byzantine empire. They established a precarious hold over the territory along the Black Sea between the Danube and the Dnepr. Sviatoslav even had his capital for a while in Pereiaslavets (Preslavets) on the Lower Danube. Under the first Christian princes, Vladimir and Iaroslav, the Kievan realm was enlarged by the conquest of the south-western corner, of what would later be known as Galicia-Volynia. Before his conversion Vladimir had also imposed his rule on the north-western principality of Polotsk, where he killed the prince Rogvolod and married his daughter Rogneda (978–980). Accordingly, the territory ruled by the Kievan grand princes at their apogee, the era of Vladimir and Iaroslav and their immediate successors, consisted of the areas inhabited by the Eastern Slavs, the ancestors of present-day Russians, Ukrainians and Belorussians. The western borders were more or less as they still are; in the North and the East the Slavic population slowly penetrated ­further into the forests of the Finno-Ugrian native peoples, and in the South the gradual transition from forest-steppe to steppe remained an uneasy and fluid border between the Russian forest-dwellers and the warlike steppe nomads. It was this territory which, broken up by the political fragmentation of K ­ ievan Russia, produced the amalgam of old Russian principalities. ­Traditionally and (i.e. the brother of Rurik’s wife). The two views of course do not exclude each other. See also E.V. Pchelov, Genealogiia drevnerusskikh kniazei, Moskva, 2001, 111.

308

chapter 12

conveniently they were numbered a dozen, although their number was always unstable: Galicia and Volynia in the South-West, Polotsk in the West, Novgorod the Great in the North, Kiev and Pereiaslavl’ in the South, Murom-Riazan’ and Vladimir-Suzdal’-Rostov in the East, Turov-Pinsk, Smolensk, Chernigov and Novgorod-Seversk in the centre. While the first generations of rulers of the Rurikid dynasty were not lacking in drive and political acumen, their success was certainly not a matter of personality alone. Occupation of the central economic axis of Novgorod-Kiev gave them a strategic advantage over the tribal conglomerates inhabiting the forested basins of the tributaries on either side of this axis. The Primary Chronicle already reveals a clear concept of the ethnic unity of the Russian nation. They are set off against non-Slavic peoples by pointing to the linguistic differences. The Slavic Poles (called Liakhs in the Chronicle) are sharply distinguished from the Russians. The component parts of the Russian nation are usually referred to as tribes (rody); these are obviously not tribes in the accepted sense of modern anthropology, but rather larger units, inhabiting areas the size of a small European country.13 The term rod is also used indiscriminately in the Chronicle to refer to other social units, such as the familia (Rurik and his brothers Sineus and Truvor, each with their own rod, mentioned in 860–862), larger kinship groups (“The Polianians … lived separately each with his own rod and at their own places, each ruling his own rod”), the nation (the Khazar rod), a race (Novgorodians of the Varangian rod), a group of nations (the Slavic rod), etc. The same confusion extends to the term plemia, the modern Russian word for tribe: the first Viking rulers of Kiev, Askold and Dir, belonged to the following (the druzhina) of Rurik, but were said to be boyars, not belonging to Rurik’s plemia (in this case obviously: his family or clan); in another place the Chronicle relates that the entire Avar plemia (i.e. nation) perished.

The Dynasty of Rurik

Although the Chronicle’s account of Rurik’s arrival in Russia and his successful reign is embellished with accretions which can probably be relegated to the 13

Cf. L.V. Cherepnin, “Usloviia formirovaniia russkoi narodnosti do kontsa xv v.”, N.M. Druzhinin & L.V. Cherepnin (eds.), Voprosy formirovaniia russkoi narodnosti i natsii, Moskva/ Leningrad, 1958, 7–104, at 19–22; B.A. Rybakov, “Soiuzy plemen i problema genezisa feodalizma na Rusi”, Z.V. Udal’tsova (ed.), Problemy vozniknoveniia feodalizma u narodov sssr, Moskva, 1969, 25–28.

Territory and Tribes in Early Kievan Russia

309

province of legend, there is no serious reason to doubt the historicity of the eponymous founder of the dynasty that ruled Russia for six centuries and that lives on in a number of Russian princely families.14 Rurik’s successor Oleg had established Kiev as his main seat, and from that city the entire following period of Russian history derived its name. The name, however, may suggest more than is warranted by reality. The Kievan era is often juxtaposed to era of the independent principalities which followed it: unity, strength, high culture and international prestige, against fragmentation, weakness, cultural and political decay. In actual fact, political unity was by no means the rule in Kievan Russia, and the other contrasts also deserve much nuancing. After the conversion of Russia under St. Vladimir (978–1015), only that prince himself, his son Iaroslav the Wise (1019–1054) and the latter’s grandson Vladimir ii Monomakh (113–1125) could justifiably claim to be the supreme ruler. In other words, the eras of Kievan greatness and of the independent principalities are inextricably interwoven. The explanation lies mainly in the character of Kievan dynastic rule. This was not very different from what was and is customary in many other ­traditional patriarchal government systems, where the right to rule was perceived to ­reside, not in the person of the monarch, but in a particular family (for instance the Merovingians and Carolingians in Western Europe, or the descendants of ­Chingis-Khan in the Mongol Empire). In pagan times, divine origin and descent would often legitimize such a right; after the adoption of Christianity (or Islam, as in the case of Saudi-Arabia), the will of God could be seen as the source of the right. But the perception of a family’s right to rule does not per se require such a clear ideological foundation. In all historical cases the dynasty started with the appearance of an outstanding ruler whose achievements spoke for themselves and made his rule incontestable (­Clovis, Charlemagne, William the Conqueror, Rurik, Chingis-Khan, etc.). Upon the death of the founder of the dynasty, his possessions (which would 14

Rurik’s undeniable Scandinavian background made his personality a tricky subject d­ uring the Soviet era. Modern authors have returned to the subject, but have not yet succeeded in establishing Rurik’s origins beyond doubt. See especially dgve 2005 g. Riurikovichi i Rossiiskaia gosudarstvenoost’, Moskva, 2008, and further E.V. Pchelov, Genealogiia drevnerusskikh kniazei. ix-nachala xi v., Moskva, 2001, 43–98; E.V. Pchelov, “­Proiskhozhdenie russkikh kniazei ot Riurika: ustnaia traditsiia ili letopisnaia konstruktsiia?”, dgve 2011 g., Moskva, 2013, 418–433; S.N. Azbelev, “O Riurike i Gostomysle”, Novgorodskii istoricheskii sbornik, 10(20), S.Peterburg, 2005, 7–31; G.V. Glazyrina, “Praviteli Rusi. Obzor drevneskandinavskikh istochnikov”, dgve 1999 g., Moskva, 2001, 143–159; V.I. Merkulov, Otkuda rodom variazhskie gosti? Genealogicheskaia rekonstruktsiia po nemetskim istochnikam, Moskva, 2005.

310

chapter 12

include his ­political function) were taken over by his sons. In accordance with the ­patriarchal ­foundations of the s­ ystem, the ruling family consisted of the male descendants in the male line of a common ancestor. Illegitimacy, in pagan as well as C ­ hristian times, ­constituted a serious but not insurmountable obstacle. As long as there was an undisputed patriarch, he would exercize supreme power from his ‘capital’ or principal seat and other male relatives would rule as subordinate princes in various other parts of the realm. There was an informal and natural hierarchy among them, first according to generation, and within the generation according to age. The informality of the hierarchy could easily be upset by ability, ambition, opportunity or sheer brutality. If everything proceeded peacefully, the supreme ruler would be succeeded, first, by his brothers, and then by his sons, according to age. Once the ruling dynasty expanded, sub-dynasties emerged and the system gradually collapsed. Sub-dynasties tended to hold on to what their own founders had acquired and to divide up their inheritance according to the old system. In the end the subordinate principalities became minute (as happened in many Russian regions) and then those clans which had made a timely switch to primogeniture and had managed to keep larger territories united were able to absorb the spoils (the rise of Muscovy). This explains how the so-called era of the independent principalities set in every time the Kievan throne was empty or occupied by an ineffective prince and the Kievan era surfaced again once a new grand prince was able to impose his authority on his brothers and cousins.15 15

The views outlined in this section are close to those of A.V. Nazarenko, who devoted several papers to this theme: “Rodovoi suzerenitet Riurikovichei nad Rus’io (x–xi vv.)”, dgsssr 1985, Moskva, 1986, 149–157, and “Drevnerusskoe dinasticheskoe stareishinstvo po «riadu» Iaroslava Mudrogo i ego tipologicheskie paralleli–real’nye i mnimye”, Drevniaia Rus’ i Slaviane, Moskva, 2009, 7–28, also in id., Iaroslav Mudryi i ego epokha, Moskva, 2008, 30–54. I first expressed my views on this question in “The Elder Brother in Russia: Seniority in Russian Politico-Legal Discourse”, G. Brunner (ed.), Sowjetsystem und Ostrecht. Festschrift für Boris Meissner zum 70. Geburtstag, Berlin, 1985, 211–225 and then in a chapter “The Elder Brother in Russia”, in Feldbrugge, lmr, 167–180. Nazarenko is more inclined to stress the legal nature of the various arrangements operating in the succession system, while I would rather see these arrangements as informal practices, based on what would make sense under certain circumstances, or on family custom at most. The same legalistic approach was adopted more recently by S.A. Mel’nikov in Pravovoi rezhim nasledovaniia prestola v Drevnei Rusi ix–xvi vv., Moskva, 2009, and Istoriko-pravovye faktory evoliutsii Drevnerusskogo gosudarstva (ix–xv vv.), Moskva, 2010. Among pre-revolutionary

Territory and Tribes in Early Kievan Russia



311

The Socio-Economic Nature of Kievan Russia: The Feudalism Debate

In the section on “Medieval Law” we pointed to the inherent dilemma b­ etween understanding a society by means of what we know about its law, and ­interpreting its law on the basis of what we know about the society. This ­dilemma is particularly prominent in the study of the law of Kievan Russia. The main relevant data are to be found in the Russkaia Pravda, which contains a number of provisions which throw light on the socio-economic ­conditions prevailing in Kievan Russia. There is mention of the buying of slaves, of the boundaries of fields, of the relative value of domestic animals, etc. But, u ­ seful as these pointers are, they fail to produce a comprehensive picture of the type of society which existed in Russia in the 10th to the 12th centuries. In some ways the Primary Chronicle helps to fill out more details, although its e­ mphasis is on political, dynastic and military, rather than social and ­economic ­matters. The inconclusiveness of the sources, combined with the need to ­obtain a general picture of Kievan society, has given rise to a debate which has been ­going on for at least a century and a half and in which almost all major R ­ ussian and Soviet historians have participated. The format of the ­debate has ­depended very much on the general views, philosophies and methodologies of the p ­ articipants. For many authors, feudalism was the key concept. More than a century ago, N.P. ­Pavlov-Sil’vanskii, in his main work on f­eudalism in ­Russia, stressed the parallels between developments in early medieval W ­ estern ­Europe and in Kievan Russia.16 This approach found many followers in Soviet times and b­ ecame  dominant through the works of B.D. Grekov.17

16

17

Russian authors A. Presniakov is a precursor of this approach, although his attention is directed mainly at parallels with other Slavic nations, A.E. Presniakov, Kniazhoe pravo v drevnei Rusi. Ocherki po istorii x–xii stoletii, Zapiski istoriko-filologicheskago fakul’teta imp. S.-Peterburgskago Universiteta, xc, Sankt-Peterburg, 1909. See also Chapter xiii, on the Prince. N.P. Pavlov-Sil’vanskii, Feodalizm v Rossii, Sankt-Peterburg, 1907 (1st ed.). I have used the edition edited by S.O. Shmidt and published in Moscow in 1988, which is based on the second and slightly amended (Soviet) edition of 1923. Especially Grekov, Kievskaia Rus (quoted from the 1953 Moscow edition, and the 1959 ­English translation Kievan Rus; page numbers from the latter source in brackets).

312

chapter 12

The Castle as the Feudal Icon

A reasonably educated member of the general public, without any special historical knowledge, when talking about “feudal lords”, will see a picture of a knight in his castle. This image has been inculcated from the days of childhood and has taken root in West-European languages in numerous sayings and expressions. If one were to start to explain the presence of feudalism in Russia during, say, the 12th to the 15th centuries, and the conversation would get to the abode of the Russian feudal lord, the conclusion would be that there were actually no feudal lords, because there were no castles. And what sort of feudalism is it, if there are no feudal lords? Such a spontaneous and uneducated judgment is not to be rejected out of hand. The West-European medieval castle, in the time it was built, represented and asserted the relative power and independence of its owner. His feudal status unquestionably implied the relativity of his independence and the presence of a higher feudal lord, his sovereign, whether king or high noble or ecclesiastical dignitary. But the strength of his castle provided him with some, and often quite effective protection when an armed conflict between lord and vassal arose. Only at the end of the middle ages, when modern states ruled by powerful princes emerged, was the provincial nobleman reduced to a servant, albeit often an important and influential one, of a new type of ruler. Political systems which for some reason were unable to bring about this transition lost out in the competition with more effective neighbours. In the new dispensation in Western Europe, the castle became an anomaly and was replaced by the country house. Medieval Russia boasted impressive fortifications, but almost all of them are of an urban nature: the kreml’ of the major towns, and ­simultaneously the seat of the local ruler, prince or bishop. Additionally, there are numerous fortified monasteries. But castle-like residences of landowning ‘feudal lords’ are very rare. A somewhat different way of visualizing or conceptualizing18 Kievan Russia can be summarized as “trade against agriculture”; was trade or rather 18

Russian authors occasionally use the term osmyslenie, the understanding, conceptualization, or even visualization, of Kievan Russia. The absence of feudal castles in medieval Russia is conspicuous in the work of B.A. Rybakov, for many years a leading Soviet medievalist and archeologist; in his major work on Kievan Russia, in a section on “The feudal ­castle in the 11th and 12th centuries”, all he came up with was the castle of ­Vladimir Monomakh in Liubech; B.A. Rybakov, Kievskaia Rus’ i russkie kniazhestva xii–xiii vv. Proiskhozhdenie Rusi i stanovlenie ee gosudarstvennosti, Moskva, 2013 (orig. Moskva, 1982), 312–324.

Territory and Tribes in Early Kievan Russia

313

a­ griculture the determining factor in shaping the society and civilization of Kievan Russia? Kliuchevskii, one of the earliest and most articulate protagonists of the former view, regarded Kievan Russia, as its contemporary Byzantine counterpart, primarily as a money economy.19 The Viking chieftains and the Russian princes succeeding them found the main source of their wealth and power in conducting trade with Byzantium. The imposition of their rule, in his view, served above all the furthering of their trading interests. This was the main reason for their campaign to subjugate the Eastern Slav tribes and the introduction of various kinds of taxes and tributes. Their political and military power was aimed chiefly at the protection of the trade routes to Byzantium and their defence against marauding Turkic nomads threatening the empire from the East. Kliuchevskii’s views were shared, at least in part, by Vernadsky20 and some Western authors, and by several Russian historians. The dominant view among Soviet historians, predisposed to follow the politically approved position of Grekov, was to stress the importance of agriculture. Kievan society was regarded as early feudal and therefore intrinsically closer to Europe in the early Middle Ages. Although the existence of a welldeveloped trade system was not denied, the utilization of land was seen as the determining factor for the socio-economic structure of Kievan society. In a predominantly natural economy, the powers concerning land (its ‘ownership’), the organization of its utilization, and the distribution of the yields would present the main issues in shaping the political and legal system. Grekov based his theory explicitly on Stalin’s definition of the feudal system: The basis of the relations of production under the feudal system is that the feudal lord owns the means of production and does not fully own the worker in production – the serf whom the feudal lord can no longer kill, but whom he can buy and sell.21 19 Kliuchevskii, Kurs i, 151–168 (Lectures ix and x). 20 G. Vernadsky, “On Feudalism in Kievan Russia”, Am. Slav. & East-Eur. Rev. (aseer) vii, 1948, 3–14. Reprinted in Vernadsky’s Kievan Russia, New Haven, 1948; Russian edition: G.V. Vernadskii, Kievskaia Rus’, Tver’/Moskva, 2004, 179–189. 21 Grekov, Kievskaia Rus, 115 (149). This section of Grekov’s study also appeared in an even more Stalinist style in a separate study “Genezis feodalizma v Rossii”, Voprosy Istorii, 1952, No.9, reprinted in Kievskaia Rus, 517–533. The first major presentation of Grekov’s view was at a conference at the gaimk (the Institute for the History of Material Culture) in the spring of 1933 in a report entitled “Slavery in Kievan Russia” and published in the Institute’s Izvestiia (1934, No.86) as “Slavery and Feudalism in Kievan Russia”. Extensive descriptions of the discussions in which Grekov’s report was a central issue are in M.B. Sverdlov, Obshchestvennyi stroi Drevnei Rusi v russkoi istoricheskoi nauke xviii–xx vv., Sankt-Peterburg, 1996, 192–212, and Froianov, KRoi, 232–249 (also in Froianov, Nachala, 243–260).

314

chapter 12

In order to justify his characterization of Kievan society as feudal, Grekov had to show that agriculture based on large-scale landowning was the prevailing mode of production during the period concerned. This was indeed one of the main themes in his major work on Kievan Russia, and he even went so far as to contend that feudal relations and feudal property existed among the Eastern Slavs as early as between the 6th and the 8th centuries.22 The feudalism issue muddied the waters of the wider-ranging question of the nature of Kievan Russian society. The Grekov school proceeded on two ­assumptions: the Marxist-Leninist concept of feudalism, and the ­feudal ­character (in its specific Marxist sense) of Kievan Russia. For them, the ­feudalism concept of course was not an assumption but scientific truth, but a non-­Marxist could still accept such usage as a working definition. However, declaring ­Kievan Russia feudal (if only in the Marxist meaning of the term) was intellectually questionable. S.V. Iushkov, in his legal history textbook, openly ­admitted that the contemporary sources did not contain anything to enable one to conclude how and when feudal landownership arose in Kievan ­Russia.23 This problem can only be solved, he continued, by reference to the ‘­foundation ­layers’ (­osnovopolozhniki, i.e. Marx, Engels, Lenin and Stalin). He then p ­ roduced a quotation which indicated that Lenin was on his side.24 The weakness of the construction was already clear to his contemporaries. Some of them found ways to circumvent the rigid schematism of the dominant theory.25 Other historians, while accepting the central positions of Grekov’s argument, proposed solutions to deal with various inconsistencies.26 These concerned such topics as the role of slavery, the importance of towns and foreign trade, ownership of land by peasants, and others. More significant shifts occurred during the last decades of the Soviet Union when the intellectual climate allowed a greater variety of opinions. This trend continued in the postSoviet period, to the effect that it is difficult now to point to a clearly dominant theory. Is it necessary for the legal historian to occupy a position in this debate? Yes and no. As the legal sources are often fragmentary and occasionally cryptic, a general understanding about the society in which these laws operated is very desirable. In many cases, however, the legal sources are sufficiently clear by 22 Grekov, Kievskaia Rus, 116 (150). 23 Iushkov, Istoriia, 112. 24 Ibid., 114: “… landowners imposed servitude [kabalili] on peasants already in the times of the Russkaia Pravda”, not even a very persuasive formulation. 25 S.B. Romanov’s highly original Liudi i nravy Drevnei Rusi, Leningrad, 1947, is an example. Grekov attempted to prevent its publication. 26 I refer to the descriptions by Sverdlov and Froianov, indicated above.

Territory and Tribes in Early Kievan Russia

315

themselves, and then they may in fact help in completing the picture of the society in which they operated. Moreover, a certain amount of practical common sense could take some of the acrimony out of the discussion. Much of it is essentially about concepts without authoritatively fixed contents. As argued earlier in this book, debates about when exactly there was a state in Kievan Russia (a most popular topic for many Russian historians, if one looks at the books and articles about ­‘statehood’ – gosudarstvennost’, in Kievan Russia) are often meaningless because everybody is free to use his own definition of a state. More generally, the juxtapositions which kept the debate going for many decades (trade versus agriculture, feudal landownership or rather something else, a central state or a loose confederation, etc.) are perhaps not as stark as their respective proponents pretend. In the end, nobody could deny that there was slavery in Kievan Russia, that the urban aspect was more preponderant than in early medieval Western Europe, that princely landowning co-existed with land held by peasants, to mention some of the salient issues. This said, the parallels with Western Europe (in Merovingian and Carolingian times) remain more meaningful and productive than the ones with contemporary Byzantium. The basic reason for this is that Kievan Russia and Merovingian-Carolingian Europe found themselves at similar stages of historical development: late Iron Age ‘barbarian’ tribal societies recently converted to Christianity and entering the orbit of the civilization of the extinct Roman Empire. If foreign trade had been the determining factor for the socio-economic character of Kievan society, its collapse in the wake of the Tatar-Mongol invasions in the 13th century should have resulted in the breakdown of the traditional socio-economic structures. This was evidently not the case. The lasting contribution of Karl Marx and Friedrich Engels, in my view, is the insight that economic factors and considerations are of great importance in almost all areas of human endeavour. Although they were not the first to make this point, they reached a wider audience than any predecessor, for ­reasons which do not concern us now. The historical theory which they built on this insight was based on certain 19th century views and suffered moreover from numerous internal inconsistencies. As a result, the progress of societal d­ evelopment in five stages (the piatichlenka)27 as proclaimed by Marxism, had an inhibiting effect on the progress of historical studies in the communist world. It made it difficult to approach the sources with an open mind. 27

Primordial communist, clan-tribal, slave-owning, feudal and capitalist societies, each with their specific modes of production.

316

chapter 12

In Chapter 1 it was already argued that the intellectual attitudes engendered by Marxism-Leninism have survived to some extent the collapse of the Soviet system. This concerns in particular what I have termed conceptual realism, the conviction that general concepts or ideas existed before, and independently of, their specific manifestations. Such a conviction made sense within ­Marxism itself, because, once one accepts the scientific nature of Marxist theory, ­concepts like “class”, “ownership”, “feudalism”, “state”, etc., are considered to be discoveries revealed by some kind of scientific investigation and therefore ­actually existing. Then one can debate the existence of slavery or feudalism in Kievan Russia; did they occur or not? Once the acceptance of Marxist theory is ­recognized as a belief, instead of an inevitable conclusion based on scientific investigation, such questions become meaningless if there is no agreement about the precise meaning of such terms. Nonetheless, quite a few post-­Soviet scholars still pay great attention to them in interpreting the materials available. Others, however, have left this unproductive path and have started to look at those materials in new ways, drawing also on the experience of pre-­ revolutionary Russian scholarship and the manifold approaches of foreign historians. A lot of creative energy is unleashed by the realization that the variety of human societies cannot be encapsulated by the Soviet five-stages straightjacket and that, anyway, nothing dictates the strict sequence of these successive stages. This kind of awareness has, for instance, allowed renewed interest in the parallels between the early Kievan era and pre-medieval Western Europe. As indicated above, these parallels are numerous and it would not be excessively speculative to assume that such similarity is not just a matter of convergence, but is based rather on common origins in an Iron Age Europe, populated predominantly by peoples of Indo-European stock still sharing many common traits. Kievan society arose on the basis of this heritage, in the specific circumstances of its geographical location and chronological frame. Certain facts about the Eastern Slavs in the pre-Kievan era have been established beyond doubt. Although they inhabited mainly the river valleys in a largely unconquered wilderness of forest and forest-steppe and engaged in hunting and fishing, they were an agricultural people whose livelihood relied primarily on their crops. The existence of slavery and other indications of social differentiation, documented by foreign sources, lead to the inevitable conclusion that agriculture was not confined to small-scale farming, but that there were also agricultural enterprises of some size, where dependent peasants worked for a master, a ‘landowner’.

Territory and Tribes in Early Kievan Russia

317

The existence of towns is much better documented and a number of towns were centres of domestic and also international trade (see Chapter 15, on Towns). The most important towns became in time the centres of government, where the local rulers or princes would normally reside. The position of the prince was closely bound up with that of his retinue, the druzhina. The wealth accumulated through warfare, trade, and various forms of taxation, was shared by the prince and his followers. The druzhina was recruited from various contingents, such as foreign adventurers or enterprising locals. It would also therefore include wealthy inhabitants, such as landowners. (More extensively on the druzhina: see Chapter 13, on the Prince, the subsection on druzhina, in the section on the prince and his officials). Compared to Western Europe of the era of the Merovingians and Carolingians, agriculture and landowning appeared to play a less prominent role in ­Kievan Russia. The relatively modest number of written sources from the earliest period is more concerned with the transfer of wealth through the gift or sale or bequest of chattels, than with transactions concerning land. This does not alter the fact that Kievan Russia, like the empire of the Franks, was an ­agricultural economy. The visible wealth in gold, jewellery, ornate weapons, expensive furs and textiles, was only the tip of the iceberg. If it had not been there, Kievan Russia would have been less spectacular, but not very different; in other words, it would still be an agricultural country with a distinct class of agricultural landowners. The emphasis on trade, urban life, the money economy, in brief, on the Byzantine parallels, may be correct in respect of certain aspects of Kievan culture, but with some scholars it has led to a denial of the primary role of agriculture, on the mere ground that the sources are almost silent about it.

The Viking Question

One of the most famous entries in the Primary Chronicle is for the years 859– 862. It describes how the Slavic and Finnish tribes of North-West Russia were subject to tribute payable to the Varangians (Scandinavians), while the Southern Russian tribes paid tribute to the Khazars. Then the Varangians were driven out, but this resulted in chaotic inter-tribal warfare. To put an end to this, the Finnish (Chud’ and Ves’) and Slavic tribes (Krivichi and Slovenes) agreed to invite a prince from abroad, from a particular Varangian tribe called the Russes (Rusini). They said to the Russes: “Our land is great and rich, but there is no order in it. Come to rule and reign over us.”

318

chapter 12

If the Chronicler is taken at his word, the quotation could be read as casting doubt on the political competence of the local population. This consideration has had a distorting effect on the general debate concerning the nature of early Kievan Russia. The involvement of a foreign ethnic factor will inevitably complicate the understanding of a particular phase of a country’s history. This difficulty is aggravated when the evaluation of such a factor becomes a matter of emotional and political significance. Viking invasions and settlements played an important role in the history of many European nations, but only in Russia did they arouse passionate controversies. The meaning attributed to the Chronicler’s colourful narrative has been emblematic for this development. Before 1917, the lines of the struggle could be drawn roughly between Slavophiles and Westernizers. In the ussr, once Stalinism had been imposed, the issue became completely politicized, like numerous other academic questions. The almost grotesque proportions which the debate assumed may be illustrated by the following quotation from the handbook on the history of the ussr, published by the Institute of History of the ussr Academy of Sciences, under the editorship of the leading Soviet medievalist of the time, B.D. Grekov:28 “The Anglo-American falsifiers of history and their cosmopolitan lackeys from the White emigration are now trying again to use this legend for their foul purposes, attempting in vain to defame the glorious past of the great Russian people.” The position taken by Grekov and his followers, dominant for many years, wove the rejection of any meaningful Scandinavian influence into its general perception of Kievan Russia: a well-established feudal Slavic state, which obviously did not need any outside help in ordering its affairs. Full-scale opposition to this approach, normanizm, bordering on high treason, was politically impossible, but scholars often got away with proposing modifications and minor divergences. In later years a more dispassionate treatment of the question replaced the former rigidity, and in post-Soviet times the debate was opened up completely,29 although, as pointed out above, many Soviet concepts and perceptions continued to be active. Mel’nikova has adduced much material to place the “invitation of Rurik” in the general context of Viking relations with rulers of countries attacked 28 29

B.D. Grekov (ed.), Ocherki istorii sssr; Period feodalizma ix–xv vv., Moskva, 1953, 76. The role of E.A. Mel’nikova, a leading expert in the field of Russo-Scandinavian relations in the proto-middle ages, was particularly influential in this respect. Her most important publications in this field were collected in E.A. Mel’nikova, Drevniaia Rus’ i Skandinaviia. Izbrannye trudy, Moskva, 2012.

Territory and Tribes in Early Kievan Russia

319

by them.30 Frankish and Anglo-Saxon kings, after several fruitless attempts to repel the invaders permanently by force, hit upon the device of suffering powerful bands to settle in their kingdoms, which allowed a gradual integration of the newcomers. Part of the deal was that the new allies would assist in keeping out competing Viking gangs. This process was clothed in legal form by the conclusion of pacts. The Rurik episode fits into this pattern. Scandinavian warrior-traders had been active for a long time in the Russian river network. The population of Novgorod reached an agreement with a particular group of Vikings by which the latter would be allowed a permanent presence in exchange for effective protection. There has been some debate among Russian historians about the legal status of such an agreement: was it something in the nature of a treaty, or rather a unilaterally imposed arrangement. In the view taken in this study, such a debate is sterile, because it attempts to apply modern legal concepts to a situation occurring at a time when these concepts were unknown. The archeological evidence for the Scandinavian presence in Russia from at least the middle of the 8th century is indisputable. The rise of Kievan Russia is closely bound up with the North–South trade between Scandinavia and Byzantium and the Near East. The considerable amount of information on Scandinavian activity in early Kievan Russia based on material remains is abundantly complemented by Old-Norwegian (Icelandic) sources. Trade and incidental warfare (piracy may be a more apt designation) were inextricably connected. The major eastern cities of the time occur in the sagas and other literary works with their own Norse names (Miklagard-Constantinople, Holmgard-Novgorod, Kenugard-Kiev, Palteskia-Polotsk, Aldeigjuborg-Staraia Ladoga; Russia itself is Gardariki, ‘land of the towns’). The sagas are less reliable as historical sources than other literary genres, but they do offer far more information. A major role was played by the numerous descendants of the first king of all Norway, Harald Haarfagr (‘Fairhair’, ca.850–933). His son and ­successor Erik Blodoks (‘Bloody Axe’, † 954) is the first of them to be mentioned as engaging in raids in Bjarmaland, a region to be located approximately in N ­ orth-Western Russia.31 Erik’s son Harald Graafell (‘Gray Fur’, king of Norway, ­ca.960-ca.970) 30 Mel’nikova, op.cit., 249–256 (“Riad v Skazanii o prizvanii variagov i ego evropeiskie i skandinavskie paralleli”); ibidem, 190–200 (Mel’nikova, V.Ia. Petrukhin, “«Riad» legendy o prizvanii variagov v kontekste rannesrednevekovoi diplomatii”). 31 In the saga of Harald Fairhair and in Egil Skallagrimsson’s saga; see T.N. Dzhakson, I.G. Konovalova, A.V. Podosinova (eds.), Drevniaia Rus’ v svete zarubezhnykh istochnikov, Tom V, Drevneskandinavskie istochniki, Moskva, 2009, 90–91, 207–208. The exact location of Bjarmaland is disputed; although originally identifiable as the Far North of Scandinavia, it appears later to refer to more eastern regions; ibid.

320

chapter 12

is mentioned as returning to Bjarmaland and winning a great battle (Harald Graafell’s Saga).32 Other members of the Ynglingar dynasty turn up as visitors at the court of St.Vladimir and his son Iaroslav the Wise, or as traders in Russia. Most conspicuous are two Norwegian kings Olav, Olav I Tryggvason (995–1000, *963) and Olav ii Haraldsson, also known as St. Olav (1015–1028, *995). There are several versions of the Saga of Olav Tryggvason, but the most interesting in our context is the fragment which relates how, after being ransomed as a boy by Estonian pirates, he ended up at the court of Vladimir in Novgorod, where he remained for about ten years, to return to Norway to reclaim the throne.33 Olav was apparently much favoured by Vladimir and his wife (probably Rogneda of Polotsk) and much wealth and several important military commands were bestowed on him. The story contains details about local customs and laws in Novgorod at the time (i.e. before the conversion of Vladimir in 988). Olav Tryggvason was a Christian and one of the later versions of the saga improbably ascribes to him an important part in the conversion of Vladimir. Of comparable interest is the Saga of Olav Haraldsson, a great-grandson of Björn Farmand (†927), one of the numerous sons of Harald Fairhair. Olav was born in 995 and became king of Norway in 1015. He was expelled by the Danish king Canute (Knut) in 1028 and died in the battle of Stiklestad in 1030 in an attempt to regain his throne. He energetically continued the Christianization of Norway, begun by Olav Tryggvason, and came to be venerated as St. Olav (during his lifetime he was known as Olaf Digre, ‘the Fat’). He spent some time in the period 1015–1019 at the court of Iaroslav and his wife Ingigerd (herself the daughter of the king of the Swedes, Olav Skottkonung, and the half-sister of St. Olav’s wife Astrid, also a daughter of Olav Skottkonung). According to the saga, Iaroslav attempted to keep him in Novgorod as a military commander, but Olav did not stay. He was active in trading with Russia, through partnerships with Norwegian merchants, and returned for some time to Russia after he had been deposed by the Danish king Knut in 1028; he raised an army with the help of Iaroslav and after he had been beaten and killed, his son Magnus remained at Iaroslav’s court for a while, until sufficient support for his return to the Norwegian throne (in 1035) had been raised.

32 33

Ibid., 93–94. Vladimir was sent to Novgorod by his father, grand prince Sviatoslav of Kiev, in 970. In 980 he himself began to occupy the Kievan throne, so the Novgorod sojourn of Harald Tryggvason must have occurred within this period.

Territory and Tribes in Early Kievan Russia

321

The most informative is the Saga of Eimund; it relates the adventures of another great-great-grandson34 of Harald Fairhair in Russia at the time of Iaroslav the Wise. Eimund came to Russia in 1015 or 1016, right after the death of St. Vladimir, when Iaroslav was still in Novgorod (Holmgard) and embroiled in the struggle for the succession. Eimund, in the blunt fashion of the Icelandic sagas, declared his intention to offer the services of himself and his companions to the highest bidder. After some haggling they reached a detailed agreement for one year’s service. The following chapters are devoted to Iaroslav’s ultimately successful attempt to secure the grand princely dignity and the Kievan throne; Eimund’s contribution to Iaroslav’s triumph is presented as decisive and much attention is devoted to the subsequent squabbling between the two princes over Iaroslav’s unwillingness to recompense Eimund. In all this, Iaroslav’s wife, the Swedish princess Ingigerd, played a prominent role. As a historical narrative, the latter part of the saga is quite unreliable, but the picture it paints of the leading actors at that particular time in Kievan Russia is livelier than the one offered by the Primary Chronicle. The parallels with the account of the Chronicle are striking and the recruitment of Eimund and his companions probably coincides with Iaroslav’s request for Viking support in 1015/1016, the event which started the developments leading to the adoption of the oldest part of the Russkaia Pravda.35 Although Russian sources on the Viking presence in early Kievan Russia are by no means as abundant as those from Old-Norse literature, the famous quotation from the Chronicle under the years 859–862 is followed by many others testifying to the activities of Vikings (Varangians) in that period. The 10th century treaties with Byzantium represent a special case. The ­participating warriors and merchants all have Scandinavian names and the forces commanded by the princes of Kiev consisted apparently almost completely of Varangians. The last time Varangians are mentioned in the Chronicle is in 1036, when Iaroslav ranged the men from Kiev on the right, the Varangians in the centre, and the men from Novgorod on the left flank in a battle against the Pechenegs. After the reign of Iaroslav, Varangians are no longer mentioned in Russian chronicles as separate units of mercenaries or as a separate contingent in the service of a prince. One can only conclude that the practice of calling on auxiliary forces from Scandinavia had come to an end and that the Scandinavian element present in Russia had been absorbed in the general population.

34 35

Son of Hring, son of Dag, son of Hring, son of Harald Fairhair. This branch of the Ynglingar were petty kings of Hedemark. Dzhakson a.o., op cit., 121–138.

322

chapter 12

The general picture which results is that bands of Scandinavian (Viking) warriors/traders were prominently active in Russia along the main waterways to Byzantium and further south and east from at least the middle of the 8th century; that some of them settled in Russia and achieved great political and economic prominence; that a particular Viking clan, the Rurikids, succeeded in acquiring monarchical power over the entire country; that they maintained lively relations with Scandinavia until the first decades of the 11th century, through dynastic marriages and the practice of calling on military aid from their former homeland; and that significant Varangian influence is no longer observable in later years. For the purposes of legal history, the ‘Varangian question’ may actually be less weighty. The most obvious traces of a Scandinavian presence are to be found in the Russkaia Pravda. Art. 10 of the Short Pravda grants a Scandinavian (Variag and Kolbiag) victim of minor violence the right to prove his case by taking an oath, instead of producing two eyewitnesses (vidoki), which was the normal procedure. The reason for this privilege was clearly that it could be difficult or impossible for a foreigner to produce an eyewitness. The rule returned in a somewhat different version in art. 31 of the Expanded Pravda.36 Another kind of evidentiary advantage for foreigners (Variags and others) is granted by art. 18 of the Expanded Pravda; in the case of an accusation of homicide, the defendant needs seven ‘character witnesses’ (poslukhi) to prove his innocence, a Variag or other foreigner only two.37 Art. 11 of the Short Pravda obliged a Variag or Kolbiag who had given shelter to a fugitive slave to hand him over to the rightful owner within three days. Various sources indicate that the Scandinavians usually lived separately, which would make it easier for a fugitive slave to hide with them; this would explain the separate rule. The rule returned in the Expanded Pravda (art. 32), but then applied to everybody, not just Scandinavians. 36

37

In one of the families of Expanded Pravda manuscripts (the Ferapontov version) included in the Merilo Pravednoe collection, the text of the Expanded Pravda is preceded by a few provisions which repeat a few Expanded Pravda provisions in slightly different wording. The origin of this text is disputed. In a fragment entitled “On the bloody man” (O krovavom muzhe) arts.29–31 are rephrased and to the words variag ili kolobiag is added “who are not baptized” (kreshcheniia ne imeia). As this text probably originated at a time when both Scandinavia and Russia had adopted Christianity, the author of the addition was presumably referring to a situation in the past, when most natives had become Christians, but certain non-Russian residents were still pagans. Cf. Tikhomirov, Posobie, 120; prp i, 211, 218–219; rz i, 73, 128–129. Most authors read the last word of the provision, togda (in the standard, Trinity i, copy), as to dva. There are convincing reasons for doing so.

Territory and Tribes in Early Kievan Russia

323

Variags or Varangians is the usual term to refer to people from Scandinavia (Norway, Sweden or Denmark). The precise meaning of Kolbiag is much disputed. In Russian (Kolbiag) and Byzantine (Kulpingi) sources they are almost always mentioned together with Varangians. They are probably identical with the Kylfingar of Old-Norse sources (e.g. the Saga of Egil Skallagrimsson). A likely hypothesis is that they were a specific Scandinavian population which had settled in Russia (Kylfingaland is used in Scandinavian sources as a synonym for Gardariki – Russia). This would explain why they were mentioned separately (as indigenous foreigners) along with Varangians (foreigners who were only temporary residents).38 A comparison of the relevant texts of the Short and Expanded Pravda suggests that the special legal status of Vikings was already on its way out in the latter text. Varangians and Kolbiags do no longer appear in later legal sources; ­Viking mercenaries and traders had stopped playing a significant role in Russia and those that had settled in Russia had become Russians. The reference made below to a rephrased version of art. 31, added to some rp manuscripts, could indicate that the copyist had felt it necessary to explain the by then historical terms of Variag and Kolbiag.

Tribute and Inter-Tribal Relationships in Early Kievan Russia

In its numerous references to tribute (dan’, ‘gift’) being paid by one tribe to another, the Primary Chronicle paints a vivid picture of the formation of the Kievan empire. Tribute, as it occurs in the Chronicle, can be defined as the expression of political subordination through gifts or payments. It can be regarded as a forerunner of a regular fiscal system, and as such it has been an important element in the emergence of early states. The Primary Chronicle is itself the source for almost everything we know about tribute in early Kievan Russia.39 The earliest mention of tribute in the Chronicle is in the introductory part, which covers the period before 852, without any indication of the year, where it is related how after the death of the legendary founders of Kiev, Kii, Shchek and Khoriv, the Polianians started to pay tribute to the (non-Slavic) Khazars, 38 39

Cf. Dzhakson, op.cit, 205; Vernadsky, Laws, 27; Grekov, B.D. (ed.), Pravda Russkaia ii, Moskva/Leningrad, 1947, 85–86; Tikhomirov, Posobie, 77; Baranowski, 210–214. The main special study on tribute in early Kievan Russia is S.M. Kashtanov, “Vozniknovenie dani v Drevnei Rusi”, V.L. Ianin (ed.), Ot Drevnei Rusi k Rossii novogo vremeni. Sbornik statei. K 70-letiiu Anny Leonidovny Khoroshkevich, Moskva, 2003, 57–71.

324

chapter 12

at the rate of one sword per hearth. After some time the tariff must have been changed, because under 859 the chronicler reports that the Polianians, Severians and Viatichi paid the Khazars a white squirrel skin per fireplace.40 At the same time, in the North of Russia, the East Slav (Slovenes and Krivichi) and Finnish (Chud’, Meria and Ves’) tribes paid tribute to the Varangians from beyond the sea; the complications following their refusal to continue this payment led to the establishment of the rule of Rurik in the North of Russia, as related before in this chapter. In 883 a tribute of a black marten skin per head is mentioned, to be paid by the Derevlians, after they were subjugated by Oleg. Otherwise, tribute seems to have consisted of money or silver or gold, or goods of comparable value. The first mention of monetary tribute is under 880–882, when the people of Novgorod had to pay 300 grivna annually to the Kievan prince. More than a century later, in 1012–1014, the Novgorod tribute was reported to be 3000 grivna, and the refusal to pay it any longer set in motion the process which propelled Iaroslav the Wise to the Kievan throne and which was also responsible for the drafting of the oldest segment of the rp. In the run-up to the treaty of 911 with Byzantium there is much talk of various kinds of tribute, but nothing of that returns in the actual text. The amounts mentioned were incredibly high and probably had their origin in the chronicler’s imagination. Another rate which occurs in the Primary Chronicle is a shilling (shch’liagu41), per head, paid by the Radimichi to the Khazars and then in 885 transferred to Oleg, and per plough, paid by the Viatichi to the Khazars and in 956–964 transferred to the Kievan prince Sviatoslav. In the narrative of the Chronicle, tribute is imposed upon an entire tribe. As the tribal territory was usually centred around a principal town, such a town itself could also appear as the tributary debtor. This was the case in the 945 episode when Igor, after returning from the raid against Byzantium, tried to increase the tribute paid by the Derevlians. He was killed in the attempt, but his widow Olga returned in 946 and laid siege to the Derevlian capital Iskorosten’. According to an improbable story containing many traditional motifs, she subdued them through a ruse, imposing a light tribute on the town, three 40

41

Pelts of wild animals constituted one of the principal currencies in early Russia. The most commonly used furs were those of squirrels (veveritsa, veksha) and of martens (kuna). Along with furs, precious metals (gold and silver) were used either in the form of coins (mostly Byzantine and Arabic), or in another form, such as ingots. From the text of the Short Pravda it is clear that even that early the names of various furs referred to monetary units rather than to actual pelts. See the Appendix on the monetary system of Kievan Russia. Probably an Arab dirhem; cf. Cross, Sherbowitz-Wetzor, The Russian Primary Chronicle, 234 (note 26).

Territory and Tribes in Early Kievan Russia

325

pigeons and three sparrows per house, which she then used to set the town alight. When she had taken the town she imposed a heavy tribute, two thirds of which went to Kiev, and one third to her own town Vyshgorod. This takes us to the more complicated question of the recipient of tribute. First and foremost it is the prince himself as the eminent representative of the victorious tribe who exacts, negotiates for, and receives the tribute from the submitting population. There are quite a few indications that custom demanded the further distribution of the tribute received. The 300 grivna tribute imposed by the Kievan prince Oleg in 880–882 on Novgorod was to be paid to “the Varangians”, most likely the Varangian garrison. A century later (978–980) the newly installed Novgorod prince Vladimir is reported quarrelling with his Varangian troops, who said to him: “This city belongs to us, and we took it; hence we desire tribute from it at the rate of 2 grivna per head.” In 1012–1014, two thirds of the 3000 grivna tribute went to Kiev (the grand prince) and one third to the Novgorod garrison. Several other examples could be quoted, and together they suggest that there existed a system for distributing tribute, an idea which is also suggested by common sense. There was clearly a territorial element within this system. In the negotiations leading up to the 907 treaty with Byzantium the Chronicle mentions “the sums required for the various Russian cities: first Kiev, then Chernigov, Pereiaslavl’, Polotsk, Rostov, Liubech, and the other cities”, adding : “In these cities lived great princes subject to Oleg.” The 971 treaty with Byzantium indicated that within the army there was a system in operation of distributing fixed shares among the various ranks. The participation of Scandinavian chieftains with their warrior bands further complicated the matter. Distribution patterns among Scandinavian warriors are well documented in Icelandic sources and the vitality of such patterns among the Russian Varangians is demonstrated by the example offered above. As to the occasions for paying tribute, two types can be distinguished: the annual tribute, imposed as an expression of political dependence, and incidental tribute, expressing a temporary inferiority of the tributary party and variously to be regarded as the price paid for a peace treaty, punishment for disloyalty or aggressive behaviour, etc. The annual tribute was collected in late autumn or early winter when the prince and his comrades-in-arms would travel around for precisely that purpose, as well as for hunting and other festivities. This was called the poliud’e (“visiting the people”), a term which was used more or less as a synonym of dan’. Originally, however, poliud’e represented gifts by which the prince was recognized by his own people, while tribute (dan’) was paid by a people which had been forced or persuaded to subject itself to the prince. In the course of time such a distinction would fade.

326

chapter 12

The Chronicle’s numerous references to the exaction and payment of t­ ribute leave little doubt that at the basis of the practice was the eternal tension between might and right. Initially a stronger group imposed its will on a weaker group; then the exercise of naked power was formalized by the imposition of tribute. This step implicitly restricted the exercise of power, because it is (­fortunately) in human nature that a stronger party attempts to ­rationalize the imposition of its will on a weaker party. “You must pay me, because I ­protect you, because you have offended me, or done me harm, etc.” From then on the refusal to pay tribute can be construed as the violation of an agreement. The legalization of the power relationship may be of some advantage to the t­ ributary group, because it transforms the latter into an ally and a client of the more powerful party. Ultimately, however, it is the power relationship which is ­decisive; when the tribute cannot be enforced any longer, the connection falls apart. The practice of imposing tribute was, in a rudimentary form, the international law instrument which welded the Kievan state together. This function is particularly manifest in the various instances of Russian tribes who were persuaded by the Kievan princes to shift their allegiance from the Khazars to Kiev. The practice of paying tribute may have continued for some time after the unification of the Eastern Slav tribes under the sceptre of Kiev. In his entry for 984, reporting the renewed imposition of tribute on the Radimichi, the chronicler added that it was paid “until the present day” (i.e. presumably 1116). The Novgorod tribute, instituted in 880–882, was stopped by Iaroslav in 1015 (the two thirds due to Kiev, one third went to the Varangians; see above) and probably not re-imposed by him when he became grand prince of Kiev a few years later, but the one third due to the Varangian garrison was said to have been paid until the death of Iaroslav (1054). The latter payment is also illustrative of the ultimate fate of tribute: it was absorbed into the regular fiscal system. Once its original function, cementing the unity of the Kievan realm, had been fulfilled, it became superfluous. In the latter part of the Kievan era tribute appears only as an imposition on non-Russian nations: in 1066 prince Rostislav of Tmutorakan’ received tribute from the Kasogians (a North-Caucasian tribe) and in 1096 the Finnish Pechora tribe paid tribute to Novgorod. The traditional term for tribute, dan’ (‘gift’), began to be used again at least as early as around 1130, when it referred to a general imposition, not connected to specific assets or transactions.42 According to S.M. Kashtanov, who quotes

42

In the famous grant made by Mstislav Vladimirovich, grand prince of Kiev, in 1130 to the Iur’ev monastery in Novgorod; gvnp No.81, prp ii, 102 (the oldest Russian charter surviving in the original; also discussed in Chapter xviii, on Rural Russia).

Territory and Tribes in Early Kievan Russia

327

a number of examples from the 14th century, this new form of tribute constituted a general tax imposed by the prince on his own subjects. Most examples are from gramoty exempting the beneficiary from the payment of all taxes, explicity including dan’ in some cases. This type of tribute was closely connected with the tribute Russian princes had to pay to the Tatar overlords, called vykhod (‘exit’). The vykhod was collected exclusively by the major independent princes (grand princes), as part of general taxation in the form of dan’. These were the princes who had reserved the exclusive right of dealing with the ­Tatar khan in their treaties with apanage princes. Legally, the relationship could be described as follows. A small group of grand princes, owing their patents to the khan, were personally obliged to pay an annual amount (the vykhod) to the khan. For this reason a certain sum was added to the traditional general taxation, applicable in the principality concerned (the dan’). But in their testaments and treaties the princes were quite explicit about the permanent character of the dan’ in its new form; if they would no longer be forced to hand over the vykhod, they would keep the whole sum themselves (see also the relevant section in Chapter 13).43

Territory: A Postscript

Traditionally, a state is defined as an entity possessing three attributes: a territory, a population, and a government. The following chapters will be devoted to the prince, and his government, and various legal aspects of the population turn up in different chapters. This leaves something to say about territory, in addition to what was discussed in the beginning of this chapter. Among Soviet authors, this topic did not arouse much interest, but prerevolutionary textbooks usually paid some attention to it, as part of a systematic treatment of the state. The first two chapters (“books”) of the first part of Sergeevich’s handbook were typically devoted to territory and population.44 Vladimirskii-Budanov followed the same pattern; in his handbook of Russian legal history, territory and population were the subject of the first two sections in all three parts devoted to “state law”, dealing with the zemskii period (the period of the ‘lands’: 9th–13th century), the Muscovy period (14th–17th century), and the period of the Empire.45 All these fragments show that there 43 S.M. Kashtanov, Finansy srednevekovoi Rusi, Moskva, 1988, 6–21, esp.6–10. 44 Sergeevich, Drevnosti i, 1–100 (“The State Territory”), 101–596 (“The Population”). 45 Vlad.-Bud., Obzor, 39–49, 126–135, 239–241 (“Territory”) and 50–62, 135–150, 239–246 (“Population”). Same approach with D’iakonov, 60–67, 235–245 (“Territory”), 68–113, ­249–396 (“Population”).

328

chapter 12

was much less to say about “territory” than about “population”, which invited wide-ranging discussions of the different social classes and their respective legal status. The neglect of territory as a legal category in Soviet literature was to a great extent compensated for by A.N. Nasonov’s monograph of 1951 “«The Russian Land» and the Formation of the Territory of the Old-Russian State”.46 Nasonov sketched the territorial formation of medieval Russia, starting from the nucleus of the original “Russian Land”, the regions of Kiev, Chernigov and Pereiaslavl’. Further chapters in his study dealt with the formation of the lands of Novgorod, Pskov, Western Russia (Galicia-Volynia), Polotsk, Smolensk, Rostov-Suzdal’ and Murom-Riazan’. Nasonov continued the tradition of his 19th century predecessors in adopting the “land” (zemlia) as the central concept in describing early developments. “Land” preceded more explicitly legal terms, such as kniazhestvo (“principality”) or volost’ (“power”, hence “territory subject to the power of a particular ruler”), to designate a specific territory. In early Kievan times, “land” referred usually to the area inhabited by a particular tribe, characterized by ­common customs and other factors, but not necessarily by central rule. Such a land could not yet be regarded as a state, but it did have a roughly defined territory. The further articulation of a territory (its more precise geographical definition) went hand-in-hand with, and was an element of, the coagulation of tribal lands into state-like entities. The case of the Polotians, as related by the Chronicle, may serve as an example of the transition from tribal land, through the establishment of central rule, to incorporation in a well-defined larger state. This tribe took its name from the Polota river and the town of Polotsk. They were related to the larger north-western tribe of the Krivichi (centred around the later town of Smolensk), of which they formed a sub-division. During the latter half of the 10th century, a Viking warlord, Rogvolod (Rognvald), established his rule in Polotsk. The grand prince of Kiev at that time, Sviatoslav, had placed one of his sons, Vladimir, as his representative in Novgorod. When Rogvolod refused to give his daughter Rogned in marriage to Vladimir, the latter killed Rogvolod (in 980) and took his daughter and the whole principality by force. Later on, when Vladimir had succeeded his father in Kiev in 1019, he placed his son by Rogned, Iziaslav, as apanage prince in Polotsk.

46

A.N. Nasonov, “Russkaia zemlia” i obrazovanie territorii drevnerusskogo gosudarstva. Istoriko-geograficheskoe issledovanie, Moskva, 1951, and republished in 2002 in S­ ankt-Peterburg, together with Mongoly i Rus’. Istoriia tatarskoi politiki na Rusi, originally published, Moskva, 1940. References are to the 2002 publication.

Territory and Tribes in Early Kievan Russia

329

The question of territory as a legal category requires answers at two levels, where medieval Russia is concerned: the all-Russian level, which entails the establishment of Russia’s borders with adjacent states, and the determination of borders between the numerous Russian principalities. As to the all-Russian level, the situation was reasonably clear-cut in respect of Russia’s borders with its well-established western neighbours, Lithuania and Poland, Sweden, and various smaller entities, such as Baltic bishoprics, Hanseatic towns, the German Order, and others. Borders were often changed, through wars or peaceful cession, but then these changes would be expressed in treaty texts. In the North and the East and South-East, the situation was fluid and generally unclear. The dense and inhospitable forests of Northern Russia, thinly populated by Finnish tribes, were slowly penetrated by traders and settlers from Novgorod, which eventually claimed almost the entire North of Russia as part of its empire. After Novgorod had lost its independence, its role was taken over by Muscovy. But control by the ruling power diminished with distance and this would make it hard to say how far it realistically extended. Going clockwise from the east of European Russia to the south-east and the south (the present Ukraine), the forests would gradually make way for open plains and steppes. This had always been the land of warlike nomads whose way of life made fixed borders of little interest to them. For centuries, the Russian principalities at the exposed edge of the realm were involved in a permanent struggle to keep invaders at bay. With the arrival of the Mongols and the imposition of Tatar suzerainty over the entire Russian land, the question of external borders in this part of the world lost most of its relevance. The fragmentation of the Kievan empire after Iaroslav the Wise (†1054) created the need for the determination of the borders between the emerging principalities. This was a process which continued over centuries and which was in principle not affected by Tatar suzerainty; the khan had every interest in maintaining the existing system, and once a prince had received the khan’s patent, managing border conflicts between princes was something left to them (see the relevant sections in Chapter 13, on the Prince). The preferred procedure for fixing disputed borders appeared to be, judging from the limited material available, the enumeration of villages belonging to one of the sides.47 The rise of Muscovy and the gradual elimination of all independent principalities resulted in the end in the emergence of a unified territory, ruled by the Moscow grand prince (later on the tsar). The formation of the nuclear t­ erritory 47

See the section on the Novgorod-Tver’ treaties in Chapter vii, on Treaties.

330

chapter 12

of Muscovy has been painstakingly described by V.A. Kuchkin.48 Kuchkin traced developments from the original apanage principality of Rostov, existing already during the reign of St. Vladimir. Initially less prestigious than Kiev, Chernigov, Novgorod and others, it became the root out of which the principality of Suzdal’ grew, which in turn was the origin of the grand principality of Vladimir, the leading principality during Tatar suzerainty and the origin of the power of Moscow. Kuchkin accordingly recorded the territorial transformation of the old Rostovskaia zemlia. 48

V.A. Kuchkin, Formirovanie gosudarstvennoi territorii Severo-Vostochnoi Rusi v x–xiv vv., Moskva, 1984.

chapter 13

The Prince in Medieval Russia Introduction Opinions may differ as to the impact of princely power on the law of Kievan Russia, but there can be no doubt that an understanding of the latter is impossible without a reasonably clear idea of the centralizing and organizing role of the former. The governance of towns and of the activities of their inhabitants, the use of land and the life of the rural population, the significant presence of the Church and its servants in legal affairs, all of these are intimately connected in one way or another with the position and the functions of the prince. It is therefore convenient to examine first of all the place occupied by the prince in Kievan society and its law. The earliest, foreign, written sources on the Eastern Slavs stress the absence of unified rule. Procopius, writing in the 6th century, states that “these nations, the Sclaveni and the Antae, are not ruled by one man, but have lived of old under popular power and therefore all affairs, good and ill, are conducted by all of them together.”1 The Byzantine emperor Mauricius expressed himself in similar terms around 600: “Finding themselves in a state of anarchy and mutual hostility, they [the Slavs and the Antae] have no idea of an order of battle, nor do they attempt to fight an orderly battle …”; “As there are many chiefs among them and they do not agree among themselves …”.2 The Arab historian Masudi echoed these statements several centuries later (around 956) when he wrote: “They form a numerous people, not subject to a ruler or to legislation.”3 Similar indications of the persistence of a certain democratic tradition in the earliest historical period can be observed in the Primary Chronicle, for instance in its reporting on the activities of the veche, the Old-Russian urban assembly (see Chapter 15, on Towns). Simultaneously, reports concerning proto-historical tribal leaders or princes among the Eastern Slavs occur in the works of contemporary authors. Jordanes, who wrote about the same time as Procopius, mentioned a king of the Antae, 1 Quoted from Drevniaia Rus’ v svete zarubezhnykh istochnikov, Tom ii: Vizantiiskie istochniki (M.V. Bibikov, comp.), Moskva, 2010, 72. 2 Ibidem, 96. 3 Drevniaia Rus’ v svete zarubezhnykh istochnikov, Tom iii: Vostochnye istochniki (T.M. Kalinina & others., comp.), Moskva, 2009, 114.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_014

332

chapter 13

called Bozh.4 Arab authors also refer to various Slavic kings or rulers.5 The early Russian “Life of Stephen of Surozh” refers to a Novgorod prince Bravlin, active in the first half of the 9th century.6 The Frankish Annales Bertiniani reported the presence of messengers from the nation called Rhos in a Byzantine mission to the court of Louis the Pious; they were said to be ruled by their chacanus (from the Turkic kagan, the ruler of the Khazars and other Turkic nations).7 The existence of local or tribal rulers or princes is well-documented by the Primary Chronicle. The evidence is intertwined with the n ­ arrative of  the ­establishment of the Rurikid dynasty in Russia. The main line of this ­story is as follows (see also the section on “The Viking Question” in ­Chapter 12, ­Setting the Stage). Under the year 859 it is related how the Varangians (Vikings) had imposed tribute upon the Finnish (Chud’, Meria, and Ves’) and Slav (Slovene and K ­ rivichi) populations of Northern Russia, and the Khazars upon the Slav (­Poliane, Severiane, and Viatichi) population of Southern Russia. Then the 860 entry reports that the tributaries of the Varangians drove the latter out and started to rule themselves (pochasa sami v sobe volodeti). This led to chaos and they decided to invite a prince from the Varangians to rule over them: “our land is great and abundant, but there is no order in it; come and reign and rule over us” (… da poidete kniazhit’ i volodeti nami). A Viking chief, Rurik, came over with two brothers and many followers. Rurik established himself in Novgorod; his brothers went to Beloozero and Izborsk, where they died soon afterwards. Although part of the story may be literary embellishment or mere legendary tradition, the central core is clear, especially in light of subsequent developments. Rurik and the dynasty he created did not have their roots in the native population, as most contemporary West-European dynasties did, but were invitees, whose rule was based on an agreement with the population inviting them. As we shall discuss in more detail below, princes continued to be invited 4 Quoted by Froianov, KRsp, 14 and Nachala, 494. Jordanes stressed that the Antae, together with the Veneti and the Sclaveni, made up a tribal complex known also as Veneti. Cf. D ­ revnaia Rus’ v svete zarubezhnykh istochnikov, Tom i: Antichnye istochniki (A.V. Podosinov, comp.), Moskva, 2009, 273. 5 E.g. Al-Bakri in “The Book of Roads and Kingdoms”, quoted from Drevnaia Rus’ v svete zarubezhnykh istochnikov, Tom iii: Vostochnye istochniki, 126. 6 Cf. V.G. Vasil’evskii, Trudy, T.iii, Petrograd, 1915, 95. This volume contains the texts of the Lives of the Saints George of Amastrida and Stephen of Surozh, together with Vasil’evskii’s introductions. 7 This event took place at some time in the period of 829–840; more detail in the section on foreign sources in Chapter 2. On the (pre-Rurikid) Russian kagan, see S.N. Temushev, “Problema lokalizatsii «Russkogo kaganata» ix veka”, A.Iu. Dvornichenko (ed.), Russkoe Srednevekov’e. Sbornik statei v chest’ professora Iuriia Georgievicha Alekseeva, Moskva, 2012, 213–232.

The Prince in Medieval Russia

333

by the popular assembly (the veche) and, before taking up their responsibilities, a contract (riad) had to be concluded, which both parties could and often did renounce after some time. There are numerous examples of princes “being sent on their way”, as was the traditional formula in the chronicles for the eviction of a prince, and princes themselves were always on the lookout for opportunities to move their seats to a wealthier and more powerful principality. This arrangement is of fundamental importance for understanding princely rule in medieval Russia. After the Mongol invasion in the 13th century, it underwent crucial changes but did not disappear; the veche was left out of the equation and lost almost all of its power. Instead, the Mongol (Tatar) khan a­ ppeared as the suzerain; Russian princes ruled on the basis of the khan’s charter (the iarlyk), and as long as the khan did not withdraw his favour. The waning of Tatar power in the course of the 15th century went pari passu with the rise of the grand princes of Vladimir-Moscow who could claim with some amount of credibility to be the successors of the old grand princes of Kiev, and therefore the restorers of the greatness of the Russian state.8

Rurikid Princes

The singularity of the Rurikid dynasty was reinforced in later centuries by its own size. There was always a wide choice of marriage candidates within the dynasty itself and such marriages were employed to further territorial and seniority ambitions. A marriage to the daughter of one of the leading princes would generally be more attractive to a prince of ­junior status than marrying a foreign princess. Marriages to boyar daughters were exceptional; occasionally powerful princes who had been widowed or whose wives had been repudiated could afford to follow their personal preferences. Impoverished and insignificant princes might not have any choice. Among foreign spouses, Polish and Lithuanian princesses were the most numerous, followed by Tatar princesses (who invariably adopted the orthodox faith). (See also the section on foreign marriages of Rurikids in the Chapter on Foreign Law.) The Rurikids were therefore not strongly rooted, in a genetic or genealogical sense, in Russia. The Romanovs (and the derivative dynasty of Holstein-Gottorp) quite clearly avoided marrying Rurikid princesses. Only the first wife of the first Romanov tsar, Mikhail Fedorovich, was a Dolgorukov princess.

8 On the legitimation of princely rule in Russia, see K.A. Solov’ev, Vlastiteli i sud’i. Legitimatsiia gosudarstvennoi vlasti v drevnei i srednevekovoi Rusi. ix- pervaia polovina xv vv., Moskva, 1999.

334

chapter 13

Rurik was succeeded by his kinsman Oleg and then by his son Igor; the latter was succeeded by his son Iaropolk and then another son, Vladimir, who accepted baptism in 988 and became the ancestor of a many-branched family. The story of the Rurikid house up to Vladimir (known in Russian history as St.  Vladimir) is the story of the subjugation of the entire Eastern Slav or ­Russian territory and the elimination of other indigenous rulers. A few of them are mentioned by name in the Chronicle. Igor was killed in a bloody struggle with the Derevlians under their prince Mal, but his widow Olga succeeded in breaking the resistance of this nation (tribe). One of the last independent principalities conquered by the descendants of Rurik was Polotsk. The Chronicle reports that Vladimir made war on Rogvolod, prince of Polotsk, killed him and his two sons and took his daughter Rogned as his wife (978).9 Not all Russian princes may have come to such a violent end in the course of the emergence of Rurikid rule. Some of the Eastern Slav tribes submitted voluntarily and their princes or chieftains presumably survived as highly-placed ‘vassals’ of the Kievan prince. The 907 Treaty between Oleg and Byzantium mentioned a number of Russian towns and then continued: “in these towns lived great princes subject to Oleg.” Similarly, the Treaty of 912 referred to Oleg, grand prince of Russia, and “all the serene and great princes … under his sway.” Such princes were mentioned again in the 944 Treaty with Byzantium.10 In the following years such references disappear and this coincided with the growth of the Rurikid dynasty. At least eleven of St. Vladimir’s sons are known by name and his son and successor Iaroslav had at least seven sons. In view of the wellknown practice of the Kievan grand princes to send their sons and other male relatives to rule as subordinate princes in provincial capitals, there was no longer any need to have recourse to the scions of the older non-Rurikid ruling families as local administrators. This development highlights one of the determining factors in the history of Kievan Russia, and indeed the entire history of Russia: the emergence of a single powerful ruling family, eventually consisting of numerous branches and

9

10

Rogvolod, or Rognvald, is generally believed to have been a Viking chieftain himself who “had come from overseas” (in the words of the Chronicle), like Vladimir’s ­great-grandfather Rurik a century earlier. That the princes mentioned in the Treaty of 944 were of non-Rurikid stock is also the opinion of Grekov, Kievskaia Rus’, 298. The question has been analyzed in considerable detail by A.S. Korolev, Istoriia mezhdukniazheskikh otnoshenii na Rusi v 40-e – 70-e gody X veka, Moskva, 2000, 49–78.

The Prince in Medieval Russia

335

a vast number of princes, excluding thereby the possibility of the rise of other ruling families with competitive dynastic claims. The unitary political order resulting from the suppression of all other rulers was short-lived. In the course of the Kievan Russian period only St. ­Vladimir, his son Iaroslav the Wise and the latter’s grandson Vladimir Monomakh could claim to be the unquestioned supreme princes of Russia. At other times the rulers of the constituent principalities assumed a more decisive role, with  the Kievan grand prince being nothing more, and occasionally even less, than the primus inter pares. In the section on the Primary Chronicle (in Chapter 2, on Sources) the political bias of this document, aggrandizing the Rurikid dynasty and belittling other rulers, as well as heavily emphasizing the role of St. Vladimir as the first Christian prince, has been noted. This chapter will review first of all the question of the identity of the prince: which individual was eligible to become a prince and how this position was acquired. This question involved several related issues, such as the matter of the internal relations within the Rurikid house, the succession to princely seats, the settlement of disputes between princes, and the treaties between princes of the Rurikid house. The remainder of the chapter will examine the people around the prince, his retinue or entourage. The next chapter will continue with a discussion of the prince ‘in action’, the organization of the government, his military leadership, his role in legislation and adjudication, and also taxation. Closely connected are such questions as the role of the prince in the administration of land and the princely officials assisting in the execution of various governmental and administrative duties. In Chapter 15, on Towns, the prince’s relationship with the population as a more or less independent political agent, is one of the central themes. This embraces such topics as the popular invitation (prizvanie) to a prince to come and rule over a particular territory and, more generally, the entire problem of the relations between the prince and the organized people, be it in the shape of the popular assembly (veche) or in other guises such as the town elders. In accordance with the mores of the times, women were generally considered incompetent to act as rulers. The ability to defend his people and lead his troops into battle was one of the chief qualities required of a prince. Nevertheless, a woman could act as regent when no male candidate was available. The formidable Olga, wife of Igor and mother of Sviatoslav, who reigned during her son’s minority, is the best-known example. In later years the proliferation of the house of Rurik made the unavailability of a suitable male candidate almost impossible. But once the old succession traditions, favouring male relatives of the same generation, had outlived their usefulness and succession was assured

336

chapter 13

for the ruler’s eldest son, widows again could have the opportunity to rule during the minority of their eldest sons. The prime example is the grand princess Sofia, the widow of the Moscow grand prince Vasilii i († 1425), herself a daughter of the Lithuanian grand prince Vitovt, who effectively ran the affairs of the grand principality for many years.11 During the pre-Christian era the sons of concubines were not excluded from the succession process, but had to settle for a somewhat lower status. When Christianity became the established religion, legitimate birth gradually became a requirement for participating in the selection process for a new prince.12

Relations between Princes: Succession and Treaties – Introductory Observations

The following sections will examine the question of how an individual became a (ruling) prince. This question immediately raises the question of the relationships between princes, on account of the great number of princes in medieval Russia. The importance of the system of relationships as it solidified during the Kievan era, apart from its intrinsic interest, was in the influence it exercized in the following centuries, down to 1598, the year of the death of tsar Fedor, the son of Ivan iv (the Terrible) and the last Russian monarch of the Rurikid house.13 The different destinies of the founding dynasties in Russia and Western Europe had a decisive impact on further developments in these regions. Two centuries after Charlemagne, the Carolingians had died out in Germany and France.14 Two centuries after the death of St. Vladimir there were close to one hundred male descendants. The early Rurikids had already eclipsed all other 11 12

13

14

I.G. Ponomareva, “Kto upravlial Moskovskim velikim kniazhestvom v 1425–1432 gg.?” A.A. Gorskii (ed.), Srednevekovaia Rus’ 9, Moskva, 2011, 167–196. See M. Font, “Nasledovanie kniazheskoi/korolevskoi vlasti v Vostochnoi i Tsentral’noVostochnoi Evrope”, A.Iu. Dvornichenko, A.V. Maiorov (eds.), Rossica Antiqua 2006, SanktPeterburg, 2006, 196–2003, at 196. By a curious twist of history, the Rurikids briefly returned to supreme power, albeit purely formal, when prince G.E. L’vov became prime minister in 1917 upon the abdication of Nicholas ii and the end of the Romanov monarchy. With the exception of the counts of Vermandois, descending from Charlemagne’s son Pepin, who predeceased his father in 811. There is an interesting parallel between this line and the princes of Polotsk, also descending from an underprivileged sub-dynasty, founded by Iziaslav of Polotsk († 1001), son of St. Vladimir, grand prince of Kiev († 1015).

The Prince in Medieval Russia

337

indigenous rulers and their offspring and, later, their descent from the glorious grand prince of Kiev who had brought the Christian faith to Russia provided them with a unique claim to rule in Russia. For many centuries the title of prince (kniaz’) was the exclusive right of members of the Rurikid house. Only in the later middle ages was this rule relaxed, with the russification of many of the descendants of the Lithuanian grand prince Gedimin and the absorption of various former ruling families of defeated Turkic (Tatar) nations.15 Princely rule in the Russian middle ages was characterized therefore by the unique position of the Rurikid dynasty, combined with the weakness of a central monarchical tradition. In the beginning, the first grand princes of Kiev ruled as virtually uncontested monarchs over the entire Russian land (the lands inhabited by Eastern Slav tribes). But the custom of dividing the realm among the surviving sons made this unity fragile, and the emergence of several branches of the ruling family inevitably led to fragmentation. Only when the paramount throne, the grand princely seat of Kiev, was occupied by a prince with sufficient talent and luck, such as Vladimir Monomakh (1113–1125), was the former unity of Russia temporarily restored. The central question in the following sections is therefore how the princes of the Rurikid house divided power among themselves. This question was much debated in pre-1917 historiography and several modern authors have returned to it, especially A.V. Nazarenko.16 Otherwise, the question did not arouse much interest during the Soviet era, although the main authors expressed themselves briefly on it.17 As with all disputed questions concerning Kievan Russia, the Chronicle is the main source, at least for the first period, up to the reign of Vladimir At the death of a grandfather, surviving one or more of his sons, the sons of the latter were in a weak position vis-à-vis their surviving uncles. 15 Cf. Sergeevich, Drevnosti ii, 350–351. 16 Kliuchevskii, Kurs i (Lecture xi), 169–189; Sergeevich, Drevnosti ii, 261–334; D’iakonov, 140–148, and in more recent times A.V. Nazarenko, “Rodovoi siuzerenitet Riurikovichei nad Rus’iu (x–xi vv.)”, dg sssr 1985, Moskva, 1986, 149–157 and id., “­Drevnerusskoe dinasticheskoe stareishinstvo po «riadu» Iaroslava Mudrogo i ego tipologicheskie ­paralleli – real’nye i mnimye”, A.V. Nazarenko, Drevniaia Rus’ i Slaviane, Moskva, 2009, 7–28, and id., in the same volume (47–87), “Dinasticheskii stroi Riurikovichei x–xii vekov v sravnitel’no-istoricheskom osveshchenii”; S.A. Mel’nikov, Pravovoi rezhim nasledovaniia prestola v Drevnei Rusi ix- nachala xvi vv., Moskva, 2009 and id., Istoriko-pravovye faktory evoliutsii Drevnerusskogo gosudarstva ix–xv vv., Moskva, 2010 (the second work is a somewhat expanded edition of the first one). 17 Iushkov, Stroi, 329–333; L.V. Cherepnin, “K voprosu o kharaktere i forme Drevnerusskogo gosudarstva x – nachala xiii v.”, Istoricheskie Zapiski No.89 (1972), 353–409, esp. 358–365. Grekov disregarded the matter.

338

chapter 13

­ onomakh. The various theories concerning princely succession in Kievan M Russia are therefore all based in principle on the same source and differ in the way additional information from other sources is digested. Before surveying this material in more detail, it will be useful to consider a preliminary problem: the much-disputed Viking origins of the Rurikid dynasty.

The Viking Origins of the House of Rurik

The Viking origins of the Rurikid dynasty is of course part of the wider question of the role of the Vikings in the history of Kievan Russia, which was discussed briefly in the previous chapter. Like this wider question, it constituted a touchy subject in Soviet times.18 Nowadays, however, no serious scholar seems to deny that Vikings (Varangians) played a significant role in 9th and 10th centuries Russia and that the stories of Viking chiefs setting themselves up as local rulers in Russia, as recounted in the Chronicle, do in fact refer to historical events.19 It would then not be too far-fetched to consider the possibility that princely succession in Kievan Russia could have its roots in earlier Scandinavian (Germanic) traditions.20 There are indeed several points of similarity between the succession practices in Kievan Russia and the well-documented 18

19

20

The leading Soviet medievalist from the times of Stalin, B.D. Grekov, wrote: “There are no reasons whatsoever to deny the appearance and activity of Norman bands, not only in the North of our territory. They appeared in various parts of Europe. But this has nothing to do with the question of the formation of the Russian state.” (B.D. Grekov, ed., Ocherki istorii sssr. Period feodalizma ix–xv vv. v dvukh chast’iakh, I, Moskva, 1953, 77; this part of the work is by Grekov himself). A more extreme point of view, explicitly critical of Grekov, was expressed by the leading legal historian of the time, S.V. Iushkov: “In one word, the view that the state of Rurik arose as the result of the conquest of Novgorod by the Normans is based on nothing. We are convinced that ultimately serious evidence will be produced that the story of the invitation of the Viking princes is a legend from beginning to end, introduced by the initial chronicler with the purpose of aggrandizing the importance of the Kievan princely dynasty … Then we will consider the princes Rurik, Oleg, and Igor as princes of the Novgorod Russians and, as all Russians, as Slavs.” (Iushkov, Stroi, 67). See for instance E.A. Mel’nikova, “Skandinavy v protsessakh obrazovaniia Drevnerusskogo gosudarstva”, E.A. Mel’nikova (ed.), Drevniaia Rus’ i Skandinaviia. Izbrannye trudy, Moskva, 2011, 49–72. Extensive dna research has also indicated that the Rurikids came from the Stockholm area and belonged to a Finno-Ugric genetic type. A suggestion already made by E. Shchepkin in “Poriadok prestolonaslediia u drevnenorvezhskikh konungov”, in Sbornik statei, posviashchennykh V.O. Kliuchevskomu, Moskva, 1909, 164–216.

The Prince in Medieval Russia

339

royal succession among the Merovingian and Carolingian dynasties. Most noticeable are the tendency to divide the realm among the ruler’s surviving sons, the appointment of sons as provincial rulers during the father’s lifetime, and a certain privileged position accorded to the eldest son. It is, on the other hand, entirely plausible that such similarity is to be explained, not by the Kievan system being based on Scandinavian traditions, but by the original affinity of underlying Germanic and Slavic succession systems. An apparent difference is the generational hierarchy within the Kievan system, which gives precedence to surviving brothers of a deceased ruler over the latter’s sons (more in the following sections). That the house of Rurik was originally of princely stock (or at least claimed to be so) is made clear by the Chronicle. Under the year 859 it is reported: “With Rurik there were two men who did not belong to his kin [plemeni], but who were boyars.” These men, Askold and Dir, set themselves up as rulers in Kiev, but were attacked and killed in 882 by Oleg, Rurik’s successor and kinsman. The Chronicle quotes Oleg’s words when he reproached them for usurping the principality of Kiev: “You are not princes nor even of princely stock, but I am of princely birth.”

The Succession History According to the Primary Chronicle – A Brief Survey

As already related above, Rurik and his two younger brothers came to Russia and settled, respectively, in Novgorod, Beloozero and Izborsk. After two years the younger brothers died and Rurik assumed sole authority. “He assigned cities to his followers,21 Polotsk to one, Rostov22 to another, and to another Beloozero,” and then, on his deathbed (before 879), “Rurik bequeathed his realm to Oleg, who belonged to his kin,23 and entrusted to Oleg’s hand his son Igor.” Igor was brought up by Oleg and married a woman from Pskov, Olga. After Oleg’s death in 912, Igor succeeded him and ruled until 945, when he was killed by the Derevlians on whom he had imposed tribute. The reign was then assumed by his widow Olga, their son Sviatoslav still being young. His own rule started 21 22 23

“Men” (muzhi), prominent persons from his entourage, ‘vassals’. The Old-Russian town of Rostov-Iaroslavskii, in Northern Russia. Probably a cousin, because if he had been Rurik’s brother the Chronicle would have referred to him as such. According to Tatishchev (V.N. Tatishchev, Istoriia Rossiiskaia, T.I. Moskva, 2003, orig. Sankt-Peterburg, 1768, 503) he was the brother of Rurik’s wife (Rurik’s shurin). He could have been both of course.

340

chapter 13

probably in 956 or soon afterwards. He had two sons by a wife whose name is not recorded in the Chronicle; these he installed as subordinate princes, Iaropolk in Kiev (which had already been added to the Rurikid lands by Oleg), and Oleg in Dereva (970). A half-brother of these, Vladimir, the son of Sviatoslav and his concubine Maliusha (stewardess, kliuchnitsa, of his mother Olga) and therefore of lower rank, was appointed to be prince in Novgorod, as the Novgorodians had asked for a resident prince. They would have preferred Sviatoslav or otherwise one of his legitimate sons but, on the advice of Dobrynia, Maliusha’s brother and Sviatoslav’s favourite general, Vladimir was sent and Dobrynia accompanied him. On his return from a successful expedition against the Byzantines in 971 (the last Russo-Byzantine treaty was the result), Sviatoslav was killed the next year in an ambush by the Turkic Pechenegs. His sons succeeded and remained in their assigned seats, the eldest son Iaropolk becoming the grand prince of Kiev. In 976–977 Iaropolk made war on his brother Oleg of Dereva, killed him and took over his principality. Upon hearing of these developments Vladimir fled to Scandinavia and Iaropolk took control of Novgorod. But Vladimir returned the next year with a force of Varangians and marched on Kiev. After having his brother Iaropolk killed, he became the sole ruler of Russia. His uncle Dobrynia was appointed as his lieutenant in Novgorod. Vladimir was baptized (in 988), introduced Christianity as the official religion in Russia, and became known as St. Vladimir. Vladimir’s chief wife was Rogned, the daughter of Rognvald, prince of Polotsk, deposed and killed by Vladimir. By Rogned he had four sons, Iziaslav, Mstislav, Iaroslav and Vsevolod. From other wives he had more sons: Vysheslav, Sviatoslav, Mstislav, Boris and Gleb, Stanislav, Pozvizd, and Sudislav. Then there was a son, Sviatopolk, of a union with the widow of his brother Iaropolk, herself a former Greek nun, a relationship regarded as illicit and immoral by the Chronicle. In 988 Vladimir set up his eldest son Vysheslav in Novgorod, Iziaslav in Polotsk, Sviatopolk in Turov, and Iaroslav in Rostov. After the death of Vysheslav, Iaroslav moved to Novgorod, and Rostov was assigned to Boris. Of the younger sons, Gleb received Murom, Sviatoslav Dereva, Vsevolod Vladimir,24 and Mstislav Tmutorakan (this is obviously the younger Mstislav, the elder Mstislav, son of Rogned, had apparently died earlier).

24

This is the principality of Vladimir, also known as Volynia, in present-day Ukraine, not the principality known later on as Vladimir-Suzdal’, of which a fortress Vladimir, founded in 1108, was the capital.

The Prince in Medieval Russia

341

Not surprisingly, in view of the profusion of contenders, the succession upon the death of Vladimir in 1015 led to major conflicts among the brothers. The two most senior ones, Vysheslav and Iziaslav, had already died before 1015. Next in line was Iaroslav, followed probably by Sviatopolk, prince of Turov. The latter, the only prince present in Kiev when Vladimir died in nearby Berestovo, grasped the opportunity and set himself up as prince in Kiev. The only other prince in the neighbourhood, Boris, was urged by his followers to resist Sviatopolk’s usurpation, but replied: “It is not for me to raise my hand against my elder brother.” As a reward, Sviatopolk had his brother treacherously killed. The same fate befell Gleb, Boris’ full brother. They are the princes now revered as the saints Boris and Gleb in the Russian church. A third brother, Sviatoslav, was also killed by Sviatopolk. The only surviving senior brother, Iaroslav of Novgorod, had been warned in time about Sviatopolk’s machinations; he collected an army of Novgorodians and Varangians and marched on Kiev. After several campaigns and battles Sviatopolk “the Accursed” (Okaiannyi) was beaten and fled to Poland, where he died (1019). For a while Iaroslav’s supremacy as grand prince of Kiev was not unchallenged. His nephew Briachislav, son of Iziaslav, who had succeeded his father as prince of Polotsk, captured Novgorod, but Iaroslav was able to repulse him and Briachislav retreated to Polotsk (1021). A much more serious challenge was presented by Iaroslav’s younger brother Mstislav, prince of Tmutorakan, who seized the principality of Chernigov and attempted to wrest control of Kiev from Iaroslav. In the end they reached a compromise, with Iaroslav retaining the western bank of the Dniepr (with Kiev) and Mstislav the eastern bank (with Chernigov). It was only after the death of Mstislav (1034/1036) that Iaroslav was able to assume sovereignty over the entire Kievan realm. He then installed his eldest son Vladimir as prince of Novgorod. Polotsk remained in the hands of Briachislav, who died in 1044 and was succeeded by his son Vseslav. Together with his father St. Vladimir, Iaroslav is considered the iconic ruler, symbolizing the glory of Kievan Russia. He is adorned with the epithet “the Wise” (Mudryi) and died in 1054; his eldest son Vladimir had preceded him to the grave two years before. The Chronicle contains the ostensible text of Iaroslav’s will, in which he arranged his succession in these words: “The throne of Kiev I bequeath to my eldest son, your brother Iziaslav. Heed him as you have heeded me, that he may take my place among you. To Sviatoslav I give Chernigov, to Vsevolod Pereiaslavl’, to Igor Vladimir, and to Viacheslav Smolensk.” Then he ordered his sons not to violate each other’s boundaries and not to despoil one another. Iziaslav was enjoined to aid the party wronged, should one brother attack another. Viacheslav, prince of Smolensk, died three years later, and Igor, the youngest son, moved over to Smolensk; he died shortly

342

chapter 13

­afterwards, in 1060. This left the Kievan realm in the hands of the three surviving brothers, Iziaslav, Sviatoslav, and Vsevolod. Together they conducted several campaigns. Other members of the family occupied princely seats of lower rank and occasionally caused dynastic conflicts. Sviatoslav’s eldest son Gleb resided in Tmutorakan, until he was expelled by his first cousin Rostislav, son of Vladimir (the eldest son of Iaroslav, who had died before his father). A more serious upheaval was caused by Vseslav, son of Briachislav, both of them princes of Polotsk. First he occupied Novgorod. The three brothers Iziaslav, Sviatoslav and Vsevolod marched against him and were victorious; Vseslav was taken captive and imprisoned in Kiev (1067). But in the next year the Russian army under the three princes was beaten by the Polovtsian nomads. In the ensuing confusion, the population of Kiev rose up, ­expelled Iziaslav, and installed Vseslav as grand prince. In 1069 Iziaslav returned and was accepted again by the people of Kiev; Vseslav fled to his paternal Polotsk, but was pursued by Iziaslav, who drove him out and installed his own son Mstislav. The latter died the same year and was succeeded by his brother Sviatopolk. In 1071 Vseslav returned to Polotsk and expelled Sviatopolk. In 1073 the pact between the three brothers broke down. Sviatoslav and Vsevolod forced Iziaslav to leave Kiev, and Sviatoslav took the latter’s place. He died in 1076 and was succeeded by his brother Vsevolod. In the following year (1077) Vsevolod and Iziaslav patched up their differences and Iziaslav returned to rule in Kiev. Serious trouble arose again the next year. Vsevolod was attacked by two nephews, Oleg, prince of Chernigov and son of Sviatoslav, and Boris, son of Viacheslav (prince of Smolensk, who had died in 1057). These two cousins had collected an army of Polovtsians and forced Vsevolod to seek refuge with his brother Iziaslav in Kiev. With the help of the latter the insurrection was overcome, but Iziaslav and Boris fell in the battle of Nezhata (1078). Vsevolod assumed sovereignty over the whole of Russia. His eldest son Vladimir, son of a Greek princess and therefore known as Vladimir Monomakh, was installed as prince of Chernigov (the more prestigious seat of Novgorod was occupied at that time by Sviatopolk, son of Iziaslav).25 Minor dynastic wars among the Rurikid princes continued during the following years, but Vsevolod remained on the throne until his death in 1093. His son Vladimir “Now reflected that if he succeeded immediately to the throne of his father, he would become involved in hostilities with Sviatopolk, because the throne had belonged to that prince’s father.” He accordingly 25

Vladimir Monomakh had left Chernigov in 1094 to take up residence in Pereiaslavl’, where his father Vsevolod had also been prince. Chernigov fell to Oleg, the son of Sviatoslav to whom Chernigov had been assigned in 1054 by his father Iaroslav the Wise.

The Prince in Medieval Russia

343

a­ llowed Sviatopolk (the son of Iziaslav) to become grand prince of Kiev, where he reigned until his death in 1113, to be succeeded by his cousin Vladimir Monomakh. Sviatopolk’s reign was by no means peaceful. Especially his cousins, the brothers Davyd and Oleg, princes of Chernigov and sons of Sviatoslav, were a constant source of trouble. There were also conflicts with other princes of the Rurikid house, descendants from less illustrious lines. The year 1097 was of particular interest, because most of the leading princes came together at the beginning of the year at Liubech, where they agreed that each of them should retain what had originally belonged to his father.26 The rest of the year was then spent in fighting each other. For developments during the next 120 years other chronicles must be consulted. Because of the fragmentation of the ruling house, the story gets even more confused but continued along the lines which were already discernible in the previous period. The growing number of principalities was ruled by princes of the Rurikid dynasty, but at the same time sub-dynasties began to take root. Once almost the entire Russian territory had been overrun by the Mongol invaders in 1237–1240, the succession system remained in place but was strongly affected by the supremacy of the khan. A Russian prince would only be admitted to rule his principality after having received the khan’s approval.

The General Principles of Princely Succession

The main dynastic developments up to Vladimir Monomakh’s occupation of the Kievan throne have been related here, because (as mentioned before) the narrative of the Chronicle which covers this period constitutes the principal source concerning the system of succession in Kievan Russia. The first author to propose a theory to explain this system was S.M. Solov’ev (1820–1877), who already in his doctoral thesis in 1847 pointed to the all-important aspect of the rod, the family, kin or clan (Germ. Geschlecht is more precise).27 His views are therefore summarized as the “family theory” (rodovaia teoriia). His student V.O. Kliuchevskii devoted an entire lecture (xi) to princely succession in his famous Kurs (Vol.i). He elaborated on several prominent 26

27

On the Liubech assembly, see D.M. Kotyshev, “Liubechskii s”ezd v istorii Iuzhnoi Rusi kontsa xi – nachala xii veka”, A.Iu. Dvornichenko (ed.), Russkoe Srednevekov’e. Sbornik statei v chest’ professora Iuriia Georgievicha Alekseeva, Moskva, 2012, 260–269. S.M. Solov’ev, Istoriia otnoshenii mezhdu russkimi kniaz’iami Riurikova doma, Moskva, 1847, republished in S.M. Solov’ev, Drevnerusskie kniaz’ia, Sankt-Peterburg, 2010, 109–404. Also in the first Book of his 18 volume Istoriia Rossii s drevneishikh vremen.

344

chapter 13

e­ lements of the succession system as it arose after Iaroslav the Wise: the role of family seniority, the mobility of princes, and the origin of the Kievan order of succession. He saw this origin in the customary family law of the Viking leaders, but also pointed out that similar practices prevailed among other nations, such as the Franks. Another of the giants of pre-revolutionary Russian history, V.I. Sergeevich, politely but firmly rejected the “family theories”. Sergeevich’s general view was that popular assemblies (the veche) were the original form of government and that they used to invite or elect a prince whenever they needed one, particularly in time of war. The position of a ruling prince rested therefore, at least initially, on a contract or rather on a network of contracts, because internally the prince had an agreement with the people, and externally he had to co-exist with other princes, to whom he was tied through peace or friendship treaties.28 Sergeevich’s views were shared to a considerable extent by M.A. D’iakonov,29 while Presniakov occupied an intermediate position, summarized by him in stating that the status of an individual prince was based on the possession, by the family as a collective entity, not of sovereignty over the entire territory but of the individual principalities (volosti).30 He recognized the operation of a seniority principle, which he regarded as a compromise solution between the tendency to divide up patrimonies (otchiny) and the tendency to keep them intact. The major Soviet authors either disregarded the question altogether (Grekov) or discussed it without any reference to the voluminous ­pre-revolutionary debate (Cherepnin),31 or briefly subscribed to the approach of Sergeevich (Iushkov).32 In later years I.Ia. Froianov returned to the question, but his approach remained within the confines of traditional Soviet conceptions. Kievan Russia was a feudal state, and the relations between the princes were to be explained as manifestations of vassalage.33 A.V. Nazarenko offered a more innovative treatment of the topic in a short essay, published in 1986.34 He examined the developments of princely succession in Kievan Russia within a comparative framework, pointing to the 28 See especially Sergeevich, Drevnosti ii, 31ff., 150ff., 181ff. 29 D’iakonov, 136–154. 30 Presniakov, Kn. Pr., 153–157. 31 L.V. Cherepnin, “K voprosu o kharaktere i forme drevnerusskogo gosudarstva x- nachala xiii v.”, Istoricheskie Zapiski No.89 (1972), 353–409, esp. 358–365. 32 Iushkov, Stroi, 330. 33 Froianov, KRsp, 45–48; Froianov, Nachala, 524–527. 34 A.V. Nazarenko, “Rodovoi siuzerenitet Riurikovichei nad Rus’iu (x–xi vv.)”, dg sssr 1985, Moskva, 1986, 149–157.

The Prince in Medieval Russia

345

­numerous parallels with Western and Central Europe. He noted how early systems, based on the equal and joint entitlement of a corpus fratrum (a body of brothers), through the emergence of seniority (of the eldest brother), gradually metamorphosed into feudal monarchies where junior siblings were turned into vassals. In post-Soviet times Nazarenko returned to the subject in lengthier studies.35 More recently S.A. Mel’nikov devoted several special studies to the question of succession to the throne in Russia.36 As the titles of his works suggest, he viewed the actual events of succession as manifestations of a legal regime. I would consider this questionable from a philosophical or theoretical point of view. Law, in any meaningful sense of the term, was still in an early stage of development in a society like Kievan Russia; customary practices would gradually solidify into more explicit legal arrangements. The various successional events could, under certain circumstances, create law, but were not the outcome of existing law. With this correction, Mel’nikov’s observations retain their value. When one attempts to draw a few conclusions on the basis of the preceding survey and the brief narrative of the Chronicle, the first one would be that, although the system may appear chaotic at a first glance, it was in fact governed by several interlocking principles. First and most obvious among these was that only male members of the house of Rurik were eligible as rulers. The princess Olga was the notable exception, but the Chronicle makes clear that she was ruling as the guardian of her young son Sviatoslav; no other male members of the then still very small dynasty are mentioned. Non-Rurikid princes turn up for the last time (as pointed out above) in the treaty of 945 with Byzantium, where the formula “the grand prince Igor and his princes and boyars” occurs several times, along with the formula “the grand prince Igor and his boyars”. In the treaty of 971 only the latter formula is encountered, which could indicate that other princes had disappeared in the intervening years. For many 35

36

Several of these were collected in A.V. Nazarenko, Drevniaia Rus’ i Slaviane (= dgve 2007), Moskva, 2009: “Bratskoe sovpadenie, otchina, sen’orat (dinasticheskii stroi Riurikovichei x–xii vv. v sravnitel’no-istoricheskom aspekte)”, dgve 2005, Moskva, 2008, 132–179 (also as dgve 2007, 47–87); “Drevnerusskoe dinasticheskoe stareishinstvo po «Riadu» Iaroslava Mudrogo i ego tipologicheskie paralleli–real’nye i mnimye”, in A.V. Nazarenko, Iaroslav Mudryi i ego epokha, Moskva, 2007, 30–54 (also as dgve 2007, 7–28); “Vladimir Monomakh i kievskoe prestolonasledie: Traditsiia i popytki reformy”, dgve 2004, Moskva, 2006, 279–290 (also as “Dinasticheskii proekt Vladimira Monomakha: popytka reformy kievskogo prestolonaslediia v 30-e gody xii veka”, dgve 2007, 88–102). S.A. Mel’nikov, Pravovoi rezhim nasledovaniia prestola v Drevnei Rusi ix – nachala xvi vv., Moskva, 2009; id., Istoriko-pravovye faktory evoliutsii Drevnerusskogo gosudarstva (ix–xv vv.), Moskva, 2010.

346

chapter 13

­centuries afterwards only the descendants of Rurik were considered to be entitled to rule in Russia. The second principle operating during the first two centuries of the Rurikid dynasty is the predominance of the house, the dynasty itself, over its individual members. The grand prince of Kiev and the ruling princes of principalities of lower rank were to be regarded as representatives of the sovereign house, not so much as sovereigns themselves. While the first principle, the exclusive eligibility of (male) Rurikids as ruling princes, could be seen as providing the general framework for the system of identifying rulers (what are the qualifications for being eligible?), the second principle constituted its foundation. It implied that an individual prince as such did not have a personal claim to a particular throne. The actual identification of a particular prince as the ruler of a particular principality was governed by a complex and often confused concept of seniority or family rank. The principle operated through a number of ‘sub-rules’ (not really rules, but rather practices, customs, traditions). One of these, discussed in previous chapters, was the existence of a certain hierarchy of principalities, or their capitals in fact. First among these was Kiev.37 Several of the earliest grand princes of Kiev were the undisputed rulers of the entire Russian realm. With the expansion of the Rurikid house and the emergence of subordinate principalities ruled by other members of the dynasty, the grand prince of Kiev acquired the character of the head of the house, the leader of the country. When his co-princes were strong and he himself weak, the grand prince of Kiev would merely be the first in honour among the Russian princes, the primus inter pares. The second place after Kiev was occupied by Novgorod, the first centre of Rurikid power in Russia and the principality regularly ruled by the most senior member of the family after the grand prince of Kiev or assigned to the eldest son of the grand prince of Kiev. Another and obvious aspect of the seniority principle was that among brothers precedence would be given to the eldest. There are many examples of this. Where there were many brothers, they were ranked according to age. In several cases this led to the emergence of one 37

The Chronicle provides two early lists of towns in connection with the appointment of his sons as provincial rulers by St. Vladimir in 988 and with the testament of Iaroslav the Wise in 1054. The lists appear to be quite different, but when certain special circumstances are taken into regard this difference becomes much smaller. A combination of the two lists would produce the following conditional hierarchy of towns: Kiev, Novgorod, (Polotsk,) Chernigov, Vladimir-Volynsk, Pereiaslavl’, Rostov, Smolensk, Murom. Over the years the ranking of a town could change considerably and lower down the list the hierarchical element was weak.

The Prince in Medieval Russia

347

group of senior and leading brothers, and another of less influential younger brothers.38 A third and quite peculiar elaboration of the seniority principle was the importance attached to the generational layering within the family. This meant that among male relatives more distant than brothers, rank within the family was primarily determined by generation, uncles being more senior than nephews. In other words, the substitution principle, common in more modern systems and allowing the son (and nowadays also the daughter) to take the place of the deceased father, did not apply or at least applied only after the entire generation of the father had been depleted. The operation of this principle was especially striking in the succession to the Kievan throne, where the prince was normally succeeded, not by his sons, but by his brothers and cousins first. The best way to put it may be that the substitution principle in its pure form (upon the death of the father the son steps into his place) was absent in Rurikid dynastic arrangements, but that an element of filial succession was nonetheless relevant. This is borne out by several episodes in the Chronicle where a prince based his claim to a particular principality on the fact that his father had ruled the principality in the past. Also, it had already been noted by Shchepkin that, with very few exceptions, only princes whose fathers had been grand princes of Kiev could successfully claim the dignity of grand prince themselves.39 One could also observe a tendency for filial succession to be stronger where the princely seat in question was of lesser importance. When the ruler of a principality of little importance died, his more powerful relatives would already be residing in more prestigious places and they would therefore, as a rule, be more inclined to let the son of the deceased succeed. In later centuries, with the wide expansion of the various branches of the Rurikid house, the political fragmentation of the country, and the concomitant weakening of the sense of unity within the ruling house, the principle of substitution (filial succession) asserted itself more strongly: virtually independent principalities arose, ruled by their own dynasties, where son succeeded father. An important milestone in this development was the princes’ meeting at Liubech, where the principle of filial succession was agreed upon, although the pact collapsed the same year.40 38

39 40

The principle continued to operate in later centuries and then often in the form of the fourth brother being considered equal in rights with the eldest son of the eldest brother. They were then considered sverstniki (co-evals), which of course they in fact often were. E. Shchepkin, “Poriadok prestolonaslediia u drevnenorvezhskikh konungov”, in Sbornik statei posviashchennykh V.O. Kliuchevskomu, Moskva, 1909, 164–216, at 213. Cf. L.V. Cherepnin, “K voprosu o kharaktere i forme drevnerusskogo gosudarstva x – nachala xiii v.”, Istoricheskie Zapiski, No.89 (1972), 353–408, at 361.

348

chapter 13

The absence of substitution, coupled with the idea of precedence given to the older generation, worked out most unfavourably for sons whose fathers had predeceased their own fathers. At best they might be allowed to succeed in their fathers’ principalities, if these were of modest importance. They were precluded from rising further in the family. Their surviving uncles might aspire to the Kievan throne if the grandfather was the grand prince of Kiev, and would in any case divide the more important principalities among themselves. They in turn would eventually be succeeded by the generation of their sons, but the orphan-prince, the kniaz’-izgoi as he is sometimes termed, would not be counted in these calculations.41 The earliest and most notable example of this procedure concerned the principality of Polotsk. This had been assigned to Iziaslav, the second son of St. Vladimir. Iziaslav died in 1001, many years before his father. Polotsk remained in the hands of his descendants for more than two hundred years, until it was absorbed by the Lithuanian rulers. One prince of Polotsk, Vseslav, as mentioned above, usurped the Kievan throne for a few months in 1068, but otherwise Polotsk remained a backwater of Kievan Russia. Because it was ruled by its own sub-dynasty, it was less concerned with, and affected by the great dynastic upheavals of the 11th and 12th centuries42 The various arrangements for dynastic succession were of decisive importance for the fate of early medieval polities. The different courses taken by Russia and various Central and Western European countries are not to be explained by fundamental differences in their political and dynastic organization, but by a different emphasis on certain elements within a basically similar setting. In Russia, the concept of a ruling house or clan was more pronounced than in the West, where the accent was more on the “patrimony” left by a father to his son. The concept of patrimony (otchina) ultimately also prevailed in Russia. In Muscovy the grand prince would, as a rule, bequeath his throne, dignity and lands to his eldest son, apportioning more modest shares to his other sons. In Kievan Russia, however, the idea that the right to rule belonged to the ruling dynasty, rather than to the prince who happened to occupy the throne in Kiev, was still strong. The natural consequence of this was that the strongest claimant for this throne, once it fell empty, would be the person who enjoyed the highest seniority (stareishinstvo) in the clan. Within a small family, such seniority is relatively easily determined by age: a (brotherless) father is to 41 42

Shchepkin, 213–214. On Polotsk, see L.V. Alekseev, Polotskaia zemlia, Moskva, 1966, and the chapter on Polotsk by the same author in L.G. Beskrovnyi (ed.), Drevnerusskie kniazhestva x–xiii vv., Moskva, 1975.

The Prince in Medieval Russia

349

be succeeded by his eldest son, and when a third generation appears, uncles will come before their nephews. When the family became more extended, it was still possible to devise rules, but factors other than age, such as prestige, power, etc., would also tend to be considered in establishing a prince’s place within the family pecking order. One factor which acquired increasing weight was the position occupied by the claimant’s father in the past. At this point the seniority and partimonial principles became entangled; if a prince’s position in the dynasty was co-determined by his father’s prominent position, then there would be a tendency to allow him to succeed in this position. This situation was clearly observable in the much-discussed assembly of the princes in Liubech in 1097, when the leading princes agreed that each should retain his paternal seat. The Chronicle’s narrative of the period, particularly of the events within the ruling dynasty, prompted several Russian authors of the pre-revolutionary era, as pointed out above, to formulate specific theories concerning the law of princely succession in Kievan Russia. Such theories can be used to explain why prince A was succeeded by prince B. No theory can explain all instances of princely succession, which means that it is difficult to evaluate the merits of the various theories. The matter of princely succession within the Rurikid house was unquestionably governed by customary arrangements, but whether these were sufficiently compelling to speak of customary law is uncertain. ­Early empires were all created by a talented, powerful and charismatic individual, who lived on in his gens, his rod, his male progeny. First, and most potently, in his sons, particularly the first-born. The closer a family member was to the ancestor, the higher his standing. This may explain the precedence of brothers of a deceased prince over the latter’s sons. But a family member intended to perpetuate not only the line of the ancestor, but also his own. This resulted in the emergence of sub-dynasties which tended to hold on to the patrimony of their own founders. In this way the Monomakhovichi could claim over-all precedence, the Ol’govichi the principality of Chernigov, the Rostislavichi the principality of Smolensk, etc. This development eventually destroyed the old system in which there was a fairly clear order of precedence among the princes and where the death of the grand prince of Kiev or another prominent ruling prince would cause a musical chairs’ situation; most ruling princes would move up to a better, wealthier, more important seat. The original idea of the right to rule belonging to the ruling house (the community of descendants of the founder) would almost inevitably become impractical once the number of descendants got too large. Then it would ­gradually be superseded by the patrimonial idea (the father’s ‘patrimony’ is

350

chapter 13

inherited by his sons). But if the patrimony was not to be fragmented again, it eventually needed the correction of primogeniture. All these developments are clearly observable in the course of the Russian middle ages. Initially the ruling princes would apportion parts of their principalities to individual sons, but in the end this practice was abandoned and everything was left to the eldest son. From another perspective, this development can also be viewed as the emergence of a much more explicit concept of statehood. As the position of the ruling prince waxed, the original apanage principalities of younger sons lost their status and approximated to ordinary noble estates. An understanding of the succession system does not require the postulation of an underlying legal system; the conduct of the princes of the ruling house can be explained completely satisfactorily as the outcome of rational considerations within the context of the times.

The Grand Princely Dignity

The governmental system of medieval Russia was based historically on the ­Kievan empire founded by the early Rurikid princes and culminating in the rule of St. Vladimir and his son Iaroslav the Wise. The annalists adorned the Kievan rulers with the title of grand prince and sometimes “grand prince of Russia”. As mentioned in the beginning of this chapter, the 912 Treaty with the Greeks referred to Oleg, grand prince of Kiev, “and all the serene and grand princes [svetlye i velikie] under his sway”, but this formula did not appear in subsequent treaties. During the following period the grand princely title was reserved by the annalists for the most senior prince who had his seat in Kiev.43 When the dynasty grew in size – both Vladimir and Iaroslav had many sons – younger sons were assigned principalities, but the supreme position of the Kievan prince was expressly recognized by Iaroslav in his last will, as transmitted in the Chronicle: “The throne of Kiev I bequeath to my eldest son, your brother Iziaslav. Heed him as you have heeded me.” This position represented the summit of the career of a ruling prince and this also implied that the Kievan dignity differed in some respects from other rulerships. The Kievan prince would normally remain in his seat until his death, unless forcibly removed by one of his relatives. His actual powers, as observed before, depended on various circumstances and tended to diminish in the course of 12th and 13th centuries. What remained was the prestige, which enhanced the standing of his immediate family. Most Kievan grand princes were themselves sons of grand princes 43

E.g. in reporting the death of Vsevolod in 1093, the last surviving son of Iaroslav the Wise.

The Prince in Medieval Russia

351

of Kiev.44 The dynastic unity of the house of Rurik and, by the same token, the ideal unity of Russia were held together by the concept of the common origin of the rulers as descendants of St. Vladimir and Iaroslav the Wise. As a result of the Kievan grand princely dignity wandering around different branches of the Rurikid house, some of the leading princely lines which had already produced grand princes of Kiev began to adopt the title of grand prince for themselves. The first to do so were members of the branch of the Rostislavichi, princes of Smolensk, in the second half of the 12th century.45 They retained the title until 1404, when Smolensk was incorporated into the Lithuanian-Polish state upon the death of the last grand prince of Smolensk, Iurii Sviatoslavich. The appropriation of the grand princely title by the princes of Riazan’ is less obvious. They were the descendants of Sviatoslav, son of Iaroslav the Wise, and himself grand prince of Kiev from 1073–1076. But Riazan’ was something of a south-eastern backwater, which therefore was the first victim of the Mongol invasion, when it was completely destroyed in 1237. In the aftermath it slowly recuperated and its somewhat marginal location may explain how Riazan’ was able to maintain its position as an independent principality for a long time. Its history is not very well documented and the precise moment (probably in the latter half of the 13th century) its princes adopted the title of grand prince is therefore uncertain.46 At that time, presumably, the grand princely title ­indicated that the prince concerned did not owe allegiance of any kind to another Russian prince. All princes were subject to the Tatar khan anyway. The grand princes of Riazan’ were the last to be unseated by the Moscow grand princes. The last grand prince of Riazan’ was Ivan Ivanovich, who fled to Lithuania in 1520. The princes of Chernigov, also known as Ol’govichi (descendants of Oleg Sviatoslavich, himself a son of Sviatoslav Iaroslavich, grand prince of Kiev from 1073–1076), who supplied a number of Kievan grand princes, also styled themselves occasionally grand princes of Chernigov.47 The main line became 44

45 46

47

The first exception was Vseslav of Polotsk (1068–1069), generally considered a usurper; the sons of grand prince Sviatoslav Iaroslavich († 1076), Davyd and Oleg, never made it to Kiev, but their sons and further offspring did, right down to Oleg’s great-great-grandson Mikhail († 1246). Descendants of Rostislav Mstislavich (†1168), grandson of Vladimir Monomakh. See A.A. Zimin, Formirovanie boiarskoi aristokratii v Rossii, Moskva, 1988, 113–121 (“Riazanskie kniaz’ia”); D.I. Ilovaiskii, Istoriia Riazanskogo kniazhestva, Moskva, 2008 (orig., Moskva, 1858). On the princes of Chernigov, see S.A. Mel’nikov, Pravovoi rezhim nasledovaniia prestola v Drevnei Rusi ix – nachala xvi vv., Moskva, 2009, 55–63; the same text in S.A. Mel’nikov,

352

chapter 13

e­ xtinct with Mikhail Vsevolodovich who was executed by the Tatar khan in 1246. After his death the Chernigov principality fell apart and most of it came under Lithuanian control until it was won back by Ivan iii in 1503. Apart from the Chernigov sub-dynasty, all other lines which assumed the grand princely title at some time were descendants of Vladimir Monomakh. The most senior line of the Monomakhovichi were the princes of Galicia. They were the descendants of Vladimir Monomakh’s eldest son Mstislav the Great. His great-grandson Roman became prince of Galicia-Volynia; Roman’s father Mstislav, as well as his grandfather Iziaslav, had occupied the Kievan throne. His four-year old son Daniil succeeded him in 1205, but it took him 34 years to achieve effective control of the principality and thereby become the most powerful of the Russian princes. He did not take the title of grand prince, but instead accepted the offer of a crown from pope Innocent iv (part of the latter’s struggle with the Holy Roman emperor). Daniil was crowned king of Galicia in 1253 and no longer needed the title of grand prince. His son Lev styled himself “prince Lev, son of the king”, but Lev’s son Iurii again was called king of Galicia. After Iurii the kingdom of Galicia fell apart and was ultimately ­absorbed by Poland-Lithuania (see Chapter 17, on Western Russia).48 The other grand princely lines all belonged to the sub-dynasty descending from Vsevolod “Big Nest” (Bol’shoe Gnezdo, † 1212), son of Iurii Dolgorukii and grandson of Vladimir Monomakh. The least significant49 of them was the line which produced a small number of grand princes of Nizhnii Novgorod; the first one was Konstantin Vasil’evich, prince of Suzdal’, who transferred his seat to Nizhnii Novgorod and assumed the title of grand prince in 1350. The grand princely line died out in 1418 with Aleksandr Ivanovich, great-great-grandson of Konstantin.50 Iaroslav, one of the sons of Vsevolod “Big Nest”, was the ancestor of the grand princes of Tver’, as well as of the main grand princely line of ­Vladimir-Moscow.

48

49

50

Istoriko-pravovye faktory evoliutsii Drevnerusskogo gosudarstva (ix–xv vv.), Moskva, 2010, 43–49. The latter work is a slightly expanded edition of the former. The rivalry for all-Russian hegemony between the princes of Galicia-Volynia and of Vladimir is the main subject of D.V. Kozlov, Zakonomernosti gosudarstvenno-pravovoi integratsii doordynskoi Rusi, Moskva, 2014. If one omits the even less significant line of the princes of Rostov, who are reported as having assumed the title of grand prince in the beginning of the 14th century. As fas as I could ascertain, only the founder of the line of the princes of Rostov, Konstantin Vsevolodovich (†1218), could claim this title (as grand prince of Vladimir); he was the eldest son of Vsevolod Bol’shoe Gnezdo; Iaroslav, the ancestor of the Moscow, Nizhniii Novgorod and Tver’ grand princes was one of his younger brothers. Several junior branches, such as the Shuiskii princes, survived.

The Prince in Medieval Russia

353

His son Iaroslav († 1271), like his father, first served as prince of Tver’ and then as grand prince of Vladimir, after the death of his elder brother Aleksandr Nevskii († 1263). Vladimir ultimately ended up in the hands of Aleksandr Nevskii’s ­descendants. Iaroslav’s son Mikhail became the ancestor of the Tver’ ­dynasty and adopted the title of grand prince in 1282. The grand princes of Tver’ were the principal rivals of the descendants of Aleksandr Nevskii in the struggle for the hegemony in Russia during the following two centuries and several Tver’ grand princes occupied the throne in Vladimir. The Tatar khan usually played  the two houses against each other, until the waning of Tatar power and the s­ uperior force of the Moscow rulers brought victory to the descendants of Aleksandr Nevskii. In 1485 the principality of Tver’ was united with Moscow. The grand princes of Vladimir emerged at an early stage in the struggle for the Kievan throne. Iurii Dolgorukii, the seventh of the eight sons of Vladimir Monomakh and prince of Rostov-Suzdal’, made several attempts to acquire the Kievan grand princely dignity and finally achieved his goal in 1154 after the death of his older brothers Mstislav, Iaropolk and Viacheslav, and Mstislav’s son, Iziaslav, all of them serving at one time as grand princes of Kiev. Upon the death of Iurii Dolgorukii in 1157, his eldest surviving son Andrei, surnamed Bogoliubskii, ruled in Rostov-Suzdal’ and transferred his capital to Vladimir, styling himself grand prince of Vladimir. In 1169 Andrei Bogoliubskii took Kiev by force from a distant cousin (­Iziaslav Davydovich, who had ruled there after Iurii Dolgorukii), but installed his younger brother Gleb there as grand prince. From this time on, the grand princes of Vladimir were generally considered the most important and prestigious among the Russian princes; the status of the grand prince of Kiev accordingly diminished and became insignificant and then meaningless after the Mongol invasion. When Andrei Bogoliubskii was assassinated in 1174, most of his sons had predeceased him and he was eventually succeeded as grand prince of Vladimir by his brother Vsevolod “Big Nest”. The principality of Vladimir subsequently remained in the hands of the descendants of Vsevolod’s son Iaroslav (as mentioned above), and the latter’s sons Aleksandr Nevskii and Iaroslav Iaroslavich (ancestor of the princes of Tver’). The princes and later grand princes of Moscow descended from Daniil, youngest son of Aleksandr Nevskii. His son Ivan I Kalita (“Money Bag”) also served as grand prince of Vladimir, as well as Ivan Kalita’s sons Semën Gordyi (“the Proud”) and Ivan ii Krasnyi or Krotkii (“the Meek”). At the end of the reign of the son of Ivan ii, Dmitrii Donskoi, the principalities of Vladimir and Moscow were united.

354

chapter 13

Under the grand princes of Moscow (at least since Ivan ii), the old Rurikid succession system, already defunct, was explicitly discarded by the testamentary appointment of the eldest son as the heir to the father’s “patrimony” or “heritage” (otchina). The title of grand prince, originally little more than a literary embellishment applied by the annalists to indicate the exalted status of the incumbent, gradually solidified into a qualification with clear legal overtones, suggesting rulership deriving directly from the old Kievan source and excluding subordination to another Rurikid prince. The title continued to play a role in the process of Moscow’s emergence as the hegemonial power, and the subtle changes in the way princes and rulers addressed each other in the treaties of the era reflected the continuous shifting of the relationships among them. The Moscow grand princes recognized the grand princely titles of their cousins in Tver’ or Riazan’; as long as they remained “brothers” they considered themselves as equals. Once the Moscow grand prince was identified as the “elder brother”, he was obviously the more powerful one. ­Further steps were the insertion of the term “Lord” (gospodin) in addition to “elder brother”, and then also the appearance of the grand prince’s eldest son, with or without the title of grand prince, as elder brother of the ­opposite treaty party. Grand Prince of All Russia A special twist was added to the evolution of the grand princely title by the emergence of the addition “of all Russia” (vseia Rusi). Epithets of this kind had already been used in early times, e.g. in referring to the death of Iaroslav the Wise in 1054 (“the Russian grand prince”) and in 1212, in reporting the death of Vsevolod “Big Nest”, “son of the pious grand prince of all Russia Iurii” (=Iurii Dolgorukii, syn Georgiev blagochestivago kniazia vseia Rusi). These references had a literary character, while the persons thus honoured did not themselves use the title of grand prince of all Russia.51 In the oldest surviving original Russian charter, an immunity charter of the Kievan grand prince Mstislav “the Great” Vladimirovich, of 1132, the donor identified himself, not as grand prince, but as “Mstislav, son of Vladimir, ­holding [ruling] the Russian land”.52 One could regard this formula as the 51

52

Kisterev has argued in favour of a more direct link between the title carried by Vsevolod Big Nest and the subsequent use of the title by Moscow princes; S.N. Kisterev, “«Velikii kniaz’ vseia Rusi» v xi–xv vekakh”, S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, vyp.6, Moskva, 2002, 47–85. gvnp No.81, 140; also prp ii, 102 (comments at 110–111); see also the short discussion of this charter in Chapter 18, on Rural Russia, in the section on landowning by the church and monasteries.

The Prince in Medieval Russia

355

f­ orerunner of the “grand prince of All Russia”. The first documented use of the latter title by the incumbent himself is during the reign of Ivan Danilovich Kalita (1328–1341), in a fiscal immunity charter issued to his falconers in Pechera.53 Somewhat earlier, the metropolitan had assumed the title “of all Russia” and obviously the two innovations were connected.54 In the latter half of the 14th century the title grand prince of all Russia was also used in external relations by the princes of Moscow.55 In proto-historic times, the title of grand prince of all Russia had a forerunner in the title of kagan, of Khazar origin. It reflected a memory of Khazar hegemony in Southern Russia, which came to an end in the 10th century. The first recorded application of the title to the ruler of Russia was in the episode at the Carolingian court of Louis the Pious, mentioned at the beginning of this chapter.56 It turned up in Russian as well as foreign sources from the 10th and 11th centuries. Its last occurrence is in the Lay of the Warfare Waged by Igor (Slovo o polku Igoreve), where it is used once (kogan), in reference to Oleg Sviatoslavich (†1115), prince of Chernigov and grandson of Iaroslav the Wise. The meaning of the term and its equivalence with kniaz’ were obviously still remembered at that time. Otherwise, kagan had completely been replaced by kniaz’ at that moment. Older references to the kagan of the Russians are believed to pertain to pre-Rurikid Russian rulers.57

53

54

55 56

57

Text in gvnp, No.84, 142; similar use in gvnp, No.86, 143, a land grant by Ivan Kalita to the Novgorod Iur’ev monastery. See also Vlad.-Bud., Obzor, 186; Kh. Lovmian’skii [H. Łowmianśki], “Russko-Litovskie otnosheniia v xiv–xv vv.”, V.T. Pashuto (ed.), Feodal’naia Rossiia vo vsemirno-istoricheskom protsesse. Sbornik statei, posviashchennyi L’vu Vladimirovichu Cherepninu, Moskva, 1972, 269–275, at 270–271. A.E. Presniakov, Obrazovanie Velikorusskogo gosudarstva, Moskva, 1998 (orig., Petrograd, 1918), 90, indicates Maksim, who served as metropolitan from 1283–1305, as the first metropolitan “of all Russia” (referring to Russkaia Istoricheskaia Biblioteka, vi, No.13). It was also Maksim who transferred the seat of the metropolitan from Kiev to Vladimir after the death of the famous metropolitan Kirill in 1281. See also Chapter 21, on the Church. E.g. in a mutual aid treaty between the Moscow grand prince Dmitrii Ivanovich Donskoi and Novgorod, gvnp, No.16, 31. The episode is widely commented upon in Russian historiography. See A.V. Nazarenko (ed.), Zapadnoevropeiskie istochniki, T.iv of Drevniaia Rus’ v svete zarubezhnykh istochnikov (T.N. Dzhakson, I.G. Konovalova, A.V. Podosinov, eds.), Moskva, 2010, 19–20; E.A. Mel’nikova (ed.), Drevniaia Rus’ v svete zarubezhnykh istochnikov, Moskva, 2000, 288–290 (a shorter version of the same in E.A. Mel’nikova (ed.), Drevniaia Rus’ v svete zarubezhnykh istochnikov, Moskva, 2013, 277–278). See E.A. Mel’nikova, “«Kniaz’» i «kagan» v rannei titulature Drevnei Rusi”, E.A. Mel’nikova, Drevniaia Rus’ i Skandinaviia. Izbrannye trudy, Moskva, 2011, 114–122; S.N. Temushev, “Problema lokalizatsii «Russkogo kaganata» ix veka”, A.Iu. Dvornichenko (ed.), Russkoe

356

chapter 13

Relations between Princes: Wills and Treaties

In pagan times, succession disputes between brothers and other relatives were often resolved by the sword. Of the sons of Sviatoslav, Iaropolk first killed his brother Oleg and was in turn killed by his brother Vladimir. This scenario repeated itself after the death of the same Vladimir, the first Christian prince of Kiev. His son Sviatopolk murdered three of his half-brothers, before being defeated by their brother Iaroslav (the Wise). The ensuing conflict between Iaroslav and the most senior of his surviving brothers, Mstislav, reached a peaceful solution after initial warfare between the two, when they divided the realm in 1026. This is the first reported pact between princes of the same house. Many more are referred to in the Chronicle and the practice lasted until the end of the Russian middle ages, when the absolute supremacy of the Moscow grand prince had reduced all other princes to ordinary subjects.58 Along with treaties between princes of more or less equal rank, paternal disposition was the other main instrument for resolving succession disputes before they could arise. This was sometimes done by a unilateral disposition inter vivos, such as the appointment of sons as rulers in various provinces (as discussed above), but more commonly and certainly more effectively by testamentary disposition (Iaroslav’s will of 1054 being the first example). A will was more effective because it would also deal with the main question: who was to succeed in the father’s main seat? In a paternal disposition inter vivos the father would of course reserve the main seat for himself during his lifetime. Treaties The treaties between Rurikid princes should not be viewed in isolation from other types of treaties, such as true international treaties and domestic Russian treaties concluded between princes and towns. The prevailing customs regarding treaties, especially the well-developed practice of the Byzantine empire, were also observed in the treaties which the Russian princes concluded amongst themselves.59 Sergeevich has demonstrated that the roots of the

Srednevekov’e. Sbornik statei v chest’ professora Iuriia Georgievicha Alekseeva, Moskva, 2012, 213–232. 58 See A. Poppe, “Words that serve the authority. On the title of ‘Grand Prince’ in Kievan Rus”, Acta Poloniae Historica, 60 (1989), 159–184. 59 Sergeevich, Drevnosti ii, 157–159.

The Prince in Medieval Russia

357

­ ractice of Russian princely treaties went back to Kievan times.60 The treaties p were drawn up in two different authentic texts, one each in the name of each of the parties, in which the author requested the other party to kiss the Cross (swear) to confirm the obligations undertaken by him. Each party would also retain a true copy of the authentic text which he had handed to his opposite number. Most of the surviving texts concern treaties between the Moscow grandprince and close or distant relatives. This is to be explained by the archival continuity between the Moscow principality and the following emanations of a central Russian state, and also, probably, by the deliberate d­ estruction of other princely archives. The general picture provided by the e­ xisting corpus of Moscow texts is, however, representative of a more general practice.61 The most common conditions contained in the treaties and traceable to the Kievan era concerned respect for each other’s territory and a pledge of unity and brotherhood. The elaboration of the latter concept allowed a more explicit expression of the relationship between the treaty partners. Formal equality was recognized when the partners referred to each other as brothers. D ­ esignation as an elder or younger brother implied a relatively superior or inferior status, which had to be elaborated in more precise terms. Among the more important conditions encountered in the treaties were the duty to support the elder brother in times of war (“to mount the horse” or “to ride alongside”, vsesti na kon’, podle ezdit’); not to conclude treaties with outside parties (ne kanchivati); to revoke certain existing treaties (tselovanie slozhiti); not to maintain direct contacts with the Tatar (Golden) Horde (Ordy ne znati); to inform the senior party about anything of importance to the latter. Complete subordination was expressed by accepting the other party “in the place of a father” (v ottsa mesto) or by “being in his will” (byt’ v ego voli). After the Mongol invasion, the relationship of a ruling prince with the ­Tatar khan was crucial, because the prince depended on receiving the khan’s

60

61

Ibidem, 150–154; see also L.V. Cherepnin, “K voprosu o kharaktere i forme drevnerusskogo gosudarstva”, Istoricheskie Zapiski, No.89, 1972, 353–409, at 369–378, and Iushkov, Stroi, 530. The standard work on the history of the archives of the Moscow grand princes and of connected archives is L.V. Cherepnin, Russkie feodal’nye arkhivy xiv–xv vekov, Part i, Moskva/ Leningrad, 1948, Part ii, Moskva, 1951 (quoted as Cherepnin, Arkhivy). The standard text edition is L.V. Cherepnin (text ed.), S.V. Bakhrushin (gen’l ed.), Dukhovnye i dogovornye gramoty velikikh i udel’nykh kniazei xiv–xvi vv., Moskva/Leningrad, 1950 (quoted as ddg).

358

chapter 13

­authorization, by means of a iarlyk, before he could occupy his seat. And when Tatar control was relaxed and the collection of tribute to the Tatars was entrusted to the prince, the relationship remained of overwhelming interest, because it determined the strength of the prince’s financial position. The treaties among the princes illustrate the continuous shifting of power balances in the variety of arrangements for dealing with the Tatar overlord.62 Where the relationship was formulated as one of equality, the princes addressed each other as brothers and recognized the other party’s freedom in dealing with the khan: “And to the Horde and to the tsar [khan], the road is clear for you, brother, and for your children, and for your grandchildren, and for your people.”63 In an earlier treaty between the Moscow and Tver’ princes, the latter recognized the Moscow prince as elder brother; the delicate matter of dealing with the Tatars was not mentioned explicitly, but the two princes agreed to maintain solidarity in their contacts with the Tatars, there was to be consultation in all matters and, if it came to hostilities, one would come to the aid of the other.64 In a treaty from the same period between the Moscow and Riazan’ princes, the latter was required to bring his external policy in line with that of Moscow by following Moscow’s course in dealings with the Lithuanians and the Tatars. Otherwise, the independence of the Riazan’ prince remained unaffected.65 After Dmitrii Donskoi’s (short-lived) victory over the Tatars in 1380 (the battle of Kulikovo Pole), the treaties often already envisaged an eventual collapse 62

63

64

65

On this question, see A.D. Gorskii, “Otrazhenie russko-ordynskikh otnoshenii v dukhovnykh i dogovornykh gramotakh velikikh i udel’nykh kniazei xiv – nachala xvi veka”, Appendix i (190–195) in A.D. Gorskii, Moskva i Orda, Moskva, 2001. ddg, No.15, 40–43 (treaty between the grand prince Vasilii Dmitrievich of Moscow and Mikhail Aleksandrovich of Tver’, around 1396); cf. Cherepnin, Arkhivy i, 84–86, and also V.A. Kuchkin, Dogovornye gramoty moskovskikh kniazei xiv veka, Moskva, 2003, 271–325; text of the treaty at 345–348. ddg, No.37, 105–107 (treaty between grand prince Vasilii Vasil’evich of Moscow and grand prince Boris Aleksandrovich of Tver’); cf. Cherepnin, Arkhivy i, 124–125; the date of this treaty was 1437 according to G.V. Semenchenko, “­Moskovsko-tverskoi dogovor vtoroi poloviny 30-kh godov xv veka”, V.A. Kuchkin (ed.), Issledovaniia po istochnikovedeniiu istorii Rossii (do 1917 g.). Sbornik statei, Moskva, 1997, 4–15. ddg, No.9, 25–28 (treaty between the grand princes Dmitrii Ivanovich of Moscow and Mikhail Aleksandrovich of Tver’ of 1375). Cf. Cherepnin, Arkhivy i, 51–55, and also Kuchkin, Dogovornye gramoty, 169–222; text of the treaty at 339–343. ddg, No.10, 29–30 (treaty between the grand princes Dmitrii Ivanovich of Moscow and Oleg Ivanovich of Riazan’ of 1382). Cf. Cherepnin, Arkhivy i, 55–58, and also Kuchkin, Dogovornye gramoty, 223–270; text of the treaty at 343–345.

The Prince in Medieval Russia

359

of Tatar suzerainty by providing new conditions to deal with such changed circumstances. As several authors have noted, there are no treaties between fathers (or grandfathers) and sons (or grandsons),66 although there are many examples of princes rebelling, often successfully, against their fathers. In principle, the son owed his father complete obedience. The same logic explains the absence of treaties with the Tatar khan, who demanded the same obedience. Although the ancient principle of family seniority (stareishinstvo or starshinstvo) remained terminologically the instrument to shape relationships within the ruling dynasty, its negotiability in fact abolished it. Once seniority was no longer determined by birth and descent, but became negotiable between family members, its original meaning was lost. The most powerful one would in the end be recognized as the senior one. Tatar supremacy unquestionably favoured this metamorphosis; the khan had reserved for himself the power to sanction princely succession in Russia and could not be bound by the traditional seniority system of the Rurikids. But even without this factor the original seniority system would have been unworkable once the family had spread out in numerous branches and sub-branches. In an early period, when the ruling family had not yet branched out excessively, princes occasionally assembled to work out their differences. These assemblies could also result in the conclusion of a pact which settled outstanding territorial disputes. The best-known example is the meeting of six princes at Liubech in 1097, where Sviatopolk, grand prince of Kiev, Vladimir Monomakh, then prince of Pereiaslavl’, Davyd and Oleg Sviatoslavichi, Davyd Igor’evich (all of them first cousins), and Vasil’ko Rostislavich (son of a first cousin) divided up most of the principalities, assigning, as a general rule, principalities to the sons of fathers who had ruled there before.67 These assemblies, especially when most of the leading princes took part, had the potential to develop into a more permanent institution, embodying the concept of the dynasty as the supreme ruler of the country.68 But although the princely assemblies in some cases made explicit decisions on national matters, such as war or the distribution of principalities, the institution never acquired sufficient strength and vitality to achieve a permanent status. N ­ ational

66 67

68

E.g. Sergeevich, Drevnosti ii, 152, Cf. Presniakov, Lektsii i, 159–161; D.M. Kotyshev, “Liubechskii s”ezd v istorii Iuzhnoi Rusi kontsa xi – nachala xii veka”, A.Iu. Dvornichenko (ed.), Russkoe srednevekov’e. Sbornik statei v chest’ professora Iuriia Georgievicha Alekseeva, Moskva, 2012, 260–269. Cf. D’iakonov, Ocherki, 152–154.

360

chapter 13

unity was in the end imposed unilaterally by the Moscow grand prince, after manoeuvering himself into a position of supremacy. When conflicts between princes could not be settled through negotiations, war remained the standard manner of settling disputes. The sources show clearly that such wars differed from those against foreign invaders or from the raids against pagan tribes in which the Kievan princes often engaged. There was a sliding scale between wars which resembled duels, as an ultimate ­procedural instrument to arrange relationships, and wars waged without the pretence of a legitimate claim where a stronger prince would attempt to evict another prince by sheer military force. In the case of the duel, the outcome was regarded as ordained by heaven and the loser would usually accept his fate. ­Although princes often fell in such wars, this was considered a not unusual professional risk. If they lost and survived, they would normally not be punished, except by the loss of territory or assignment to a smaller principality. Outside regular warfare, violence and killing among the members of the house of Rurik was strongly condemned in the chronicles, reporting several i­ nstances of the princes themselves reflecting on the impermissibility of bloodshed among relatives. Wills The will or testament is only a specific type of unilateral disposition, made when the testator wants to achieve a definitive settlement of his affairs before his death. Similar dispositions could be made at various times during his life and they could of course be amended or revoked later on. The earliest example mentioned in the Chronicle is the assignment by Sviatoslav of principalities to his three most senior sons in 970. Such dispositions had by their very nature a temporary character; wills, on the other hand, were normally definitive. The oral will of Iaroslav the Wise in 1054, as transmitted in the Chronicle, has been mentioned several times before. He appointed his eldest son Iziaslav as his successor on the throne of Kiev and assigned principalities to his other four (surviving) sons, enjoining them to respect the position of Iziaslav, “that he may take my place among you.” There are several indications that princes continued to make such dispositions, but the first actually available text is the will of Ivan I Kalita, from about 1339.69 It was followed by a complete series of wills of Moscow grand princes, down to Ivan iv (the Terrible). The private law aspect was still dominant in the will of Ivan I Kalita; in other words, it dealt mostly with the distribution of the prince’s property among 69

ddg, No.1, 7–11. Cf. Cherepnin, Arkhivy i, 12–20.

The Prince in Medieval Russia

361

his children and his future widow. At that moment, it was not in the gift of the Moscow prince to decide who was going to rule in Moscow and in other parts of his principality. Numerous villages, gold and silver implements and ­expensive garments were assigned to his four eldest sons, with another share going to their mother and the younger children. The eldest son Semën received a larger share and was enjoined to act as protector (pechal’nik) for his mother and his siblings. When Semën himself died without issue in 1353, he left his worldly goods to his widow.70 His brother and successor as grand prince, Ivan ii (†1359), made the usual dispositions in his will in favour of his two sons and his widow, ­preceding those with the formula: “I assign my patrimony of Moscow to my sons Dmitrii and Ivan.”71 He also made bequests to his nephew Vladimir Andreevich.72 Ivan ii’s son Dmitrii Donskoi employed the same formula in his will of 1389, but added later on in the will the formula “And I bequeath the grand princely dignity, my paternal heritage, to my son prince Vasilii (i).”73 This was nine years after the first major defeat inflicted on the Tatars, when Dmitrii annihilated the army of Mamai on the Sandpiper Field (Kulikovo Pole). He then felt able to assign the grand princely dignity without having received ­Tatar ­assent. The will of 1389 was also remarkable in granting a significant role to his widow; his five sons (the eldest, Vasilii, being 17 years old) were ­instructed to heed their mother’s will and the grand princess was provided with an estate securing her independence. Vasilii i Dmitrievich himself followed his father’s independent course in his second will (of around 1417), by leaving “my paternal heritage, the grand princely dignity” to his son Vasilii. But the vicissitudes of his relations with the

70 71 72

73

ddg, No.3, 13–14. His brothers Ivan (the future grand prince) and Dmitrii witnessed the will. Cf. Cherepnin, Arkhivy i, 20–27. ddg, No.4, 15–19 (around 1358). Cf. Cherepnin, Arkhivy i, 27–31. This Vladimir, the son of grand prince Ivan’s brother Andrei, prince of Serpukhov (†1353), was a five-year old orphan; as the grand prince Ivan’s sons were also young children, the testator may have felt the need to provide as best as possible for the few male heirs of his branch. Vladimir Khrabryi (“the Brave”) turned out a steadfast supporter of his cousin, grand prince Dmitrii Donskoi, and played a decisive role in the battle of Kulikovo Pole against the Tatars. ddg, No.12, 33–37 (1389). Cf. Cherepnin, Arkhivy i, 58–62. An earlier will of Dmitrii Donskoi of around 1375 has survived only in part (ddg, No.8, 24–25). The 1389 will is the subject of a long study by V.A. Kuchkin, “Poslednee zaveshchanie Dmitriia Donskogo”, A.A. Gorskii (ed.), Srednevekovaia Rus’, 3, Moskva, 2001, 106–183.

362

chapter 13

Tatars led him to adopt a more cautious approach in his wills of 1406–1407 and 1423 (“and in case God will grant my son the grand princely dignity”).74 In the will of Vasilii ii Vasil’evich, eldest son and successor of Vasilii i ­Dmitrievich, the decisive bequest of the grand principality was moved to the beginning of the will and his son and successor Ivan iii was explicitly indicated as the eldest son.75 Ivan iii Vasil’evich in his turn appointed his eldest son Vasilii iii as his successor and instructed the other sons simultaneously to regard him as their father or, in other words, to obey him.76 This series of wills of the grand princes of Moscow, covering a period of almost two centuries, was conservative in its private law aspect, the regulation of what was to happen with the private property of the prince, his personal villages and other real estate, his gold and silver. The public law aspect, almost absent in the will of Ivan I Kalita, gradually asserted itself until the final stage was reached: the appointment of the eldest son as comprehensive successor in the grand princely dignity. While the wills of Moscow grand princes, starting with Ivan I Kalita, were all in the Muscovy state archives, the wills of other princes are poorly represented. In fact, the 13 wills included in the ddg volume, all concerned close relatives of the grand prince.77 Few other princely wills are extant.78 74

75 76 77

78

ddg, No.20, 55–57 (1406); No.21, 57–60 (1417); No.22, 60–62 (1423). Cf. Cherepnin, ­Arkhivy i, 86–92. See also I.G. Ponomareva, “K khronologii zaveshchanii moskovskogo velikogo kniazia Vasiliia Dmitrievicha”, A.Iu. Dvornichenko (ed.), Russkoe srednevekov’e. Sbornik statei v chest’ professora Iuriia Georgievicha Alekseeva, Moskva, 2012, 103–110. ddg, No.61, 193–199 (1461). Cf. Cherepnin, Arkhivy i, 158–161. ddg, No.89, 353–364 (1504). Cf. Cherepnin, Arkhivy i, 220–223. Six of them (Nos.17, 29, 68, 71, 74, 99) concerned younger sons of the grand prince; three of them (Nos.80, 88, 98) sons of younger sons; three others the widows of some of the foregoing (Nos.28, 57, 87); and one (No.86) is the last will of prince Ivan Iur’evich Patrikeev, son of Mariia, daughter of grand prince Vasilii i. Ivan Patrikeev was the grandson of prince Patrikii Narimontovich (of the Lithuanian royal house of the Gediminids), who had come to Russia in 1408 and entered the service of the Moscow grand prince, the first non-Rurikid prince in Russia. Cf. A.A. Zimin, Formirovanie boiarskoi aristokratii v Rossii vo vtoroi polovine xv – pervoi treti xvi v., Moskva, 1988, 29–35. asei i, 86–87 (No.108) contains the will (1473) of a grandson of prince Dmitrii Ivanovich of Galich (an obscure line, descendants of Konstantin, a brother of Aleksandr Nevskii); cf. Cherepnin, Arkhivy ii, 72. asei ii, 146–147 (No.224) contains a gift charter (1473–1485) by the widow of Fedor Ivanovich, the last prince of Kargolom, in execution of his last wishes. The princes of Kargolom were a cadet branch of the princes of Belozero, themselves the descendants of Konstantin, one of the sons of Vsevolod Big Nest. A gift charter of princess Elena, widow of prince Dmitrii Ivanovich Riapolovskii, of 1463–1470, was also made out in order to execute the prince’s last will, asei ii, 499 (No.462). The Riapolovskii princes

The Prince in Medieval Russia

363

The surviving wills of princes (and princesses) did not differ essentially from the wills of other wealthy landowners from the period; in other words, their contents did not concern the public law aspects of the princely office. A possible exception was the will of Mikhail, prince of Verei, a son of Andrei, prince of Mozhaisk, the latter a younger son of Dmitrii Donskoi. His only surviving son Vasilii had fled Muscovy and gone over to the Lithuanian grand prince in 1484. The Moscow grand prince Ivan iii Vasil’evich had therefore allowed Mikhail Andreevich to continue to enjoy the principality of Verei (and other possessions) during his lifetime, with the obligation to turn it over to the grand prince in his will. This was done in a will, drafted by the grand prince himself, in 1486.79 What is missing in the reservoir of available princely wills is the wills of ruling princes of other leading principalities (Smolensk, Tver’, Riazan’, etc.). According to Cherepnin, such documents were probably intentionally destroyed by the Moscow rulers.80 One can only presume that the format of such documents must have been similar to that of the Moscow ones; in other words, that there would have been a transition from wills with a purely private character, in which the prince transferred his personal possessions to his heirs, to a later form, reflecting the relaxation of Tatar control, in which the transfer of sovereign power was the main element, along with the distribution of personal possessions.

Princely Rule: Succession, Popular Assent, Mongol-Tatar Validation

The family-based organization of the Kievan realm gave rise to a peculiar political structure. There has been endless discussion about its nature; was it a unitary state, a conglomerate of semi-states, or something else again?81 were a cadet branch of the princes of Starodub, the descendants of Ivan, one of the sons of Vsevolod Big Nest. A will of prince Dmitrii Ivanovich Sheleshpanskii, from around 1470, in A.V. Antonov, K.V. Baranov (eds.), Akty sluzhilykh zemlevladel’tsev xv – nachala xvii veka i, Moskva, 1997, No.301, 293–294. The Sheleshpanskii princes were also a cadet branch of the princes of Belozero. 79 ddg, No.80, 301–315 (1486); for the complicated story behind these documents, see Cherepnin, Arkhivy i, 175–179. 80 Cherepnin, Arkhivy i, 183–189. 81 See for instance, Kliuchevskii, Kurs i, 144; Sergeevich, Lektsii, 141, 147; Presniakov, Lektsii i, 154–156; D’iakonov, Ocherki, 140–144; Grekov, Kievskaia Rus’, 45–47; Iushkov, Stroi, ­322–329; A.A. Zimin, “Feodal’naia gosudarstvennost’ i Russkaia Pravda”, Istoricheskie Zapiski, No.76, 1965, 230–275; L.V. Cherepnin, “K voprosu o kharaktere i forme ­Drevnerusskogo

364

chapter 13

The main thing to be kept in mind is that the character of the Kievan polity was constantly in flux; the interplay of centrifugal and centripetal forces produced an ever-changing picture. The most potent centrifugal force was undoubtedly the dynastic custom of dividing up the estate of a deceased ruler among his heirs. Then there were the ambitions and capabilities of regional rulers and also the still lively tradition of provincial independence. It was only the Rurikid dynasty which had put an end to the independence of tribal ­principalities, such as Dereva, Polotsk, Smolensk, and others. The strongest centripetal forces were the general awareness of the underlying unity of the Russian land, the dignity of the Kievan grand prince, and the unity of the ruling house. The question of succession or, more precisely, of identifying the prince who would be the ruler of a particular principality, has been investigated hitherto as a matter of relationships between princes. One crucial aspect is still missing in drawing a complete picture of princely succession in Kievan Russia: popular involvement. This aspect will be discussed from a different perspective in the section on the relationship between the veche and the prince in C ­ hapter 15, on Towns, but something must be said about it here. The background of this ­involvement was, as was pointed out in the introductory section of this ­chapter, the basically contractual character of the relations between prince and people. The chronicles offer many examples of the importance and often decisiveness of popular involvement in the selection of a prince in the Kievan era. The events in Kiev in 1068–1069 were a prominent example of this (related above in the section containing a historical survey of princely succession). When the ruling Kievan prince, Iziaslav, had lost the support of the people of Kiev after a lost battle against the Polovtsians, the Kievans expelled him and installed in his place Vseslav, prince of Polotsk, who had been incarcerated in Kiev after an unsuccessful uprising againts Iziaslav and his brothers Sviatoslav and Vsevolod (sons of Iaroslav the Wise).82 When Iziaslav approached with an army, Vseslav fled and the inhabitants of Kiev offered their allegiance to Iziaslav again.

82

­gosudarstva”, Istoricheskie Zapiski, No.89, 1972, 353–408; I.A. Isaev, “Drevnerusskaia gosudarstvennost’ v istoricheskoi perspektive: kritika evraziiskoi kontseptsii”, G.V. Shvekov (ed.), Problemy prava i pravovoi ideologii, Moskva, 1985, 94–115; M.B. Sverdlov, “Obrazovanie Drevnerusskogo gosudarstva (Istoriograficheskie zametki)”, dgve 1992–1993, 6–16; N.F. Kotliar, Drevnerusskaia gosudarstvennost’, Sankt-Peterburg, 1998. Vseslav was the grandson and successor (after his father Briacheslav) of Iziaslav, prince of Polotsk and elder brother of Iaroslav the Wise. This Iziaslav had died before their father St. Vladimir and his descendants were therefore out of the loop for the succession of the

The Prince in Medieval Russia

365

In Novgorod and Pskov (see Chapter 16 on those two cities) the election and rejection of the local prince was a common occurrence for several centuries and although the prince remained very much an element of their governmental organization, the republican component was very significant. In other principalities the prince was generally the central political institution, but his appointment was not always merely the result of the complex dynastic arrangements of the Rurikid house; in many cases the population (of the capital, as a rule) had a significant input in the process of selecting a new prince; they would occasionally object strenuously to a particular candidate. It was important for a prince to have popular support. Just belonging to the right branch of the Rurikid house was often not enough. Popular involvement decreased after the Mongol invasions. The khan had appropriated the authority to confirm princely succession and this had given him an effective political instrument to maintain control from a distance. He was obviously not going to allow the citizens of a particular town to interfere with his policies. Mongol-Tatar validation of princely succession was introduced immediately after 1240. A short item in the Suzdal’ Chronicle under the year 1243 r­ eports that grand prince Iaroslav (of Vladimir, son of Vsevolod Big Nest) made the journey to the Tatar headquarters to khan Baty, who released him with the words: “Iaroslav, thou shalt be the senior of all the princes of the Russian nation”, and “Iaroslav returned to his lands with great honour”. The next year, three other princes83 made the same journey “for their patrimony (pro svoiu otchinu)”, were received by Baty and dismissed, each having been assigned his patrimony.84 Occasionally, princes were required to travel all the way to Karakorum to the great khan himself. The diplomatic phraseology of the chronicles should not disguise the risk of these endeavours. Not only was the journey itself long and arduous, but also a sojourn at the Mongol court often ended in murder or summary execution of the prince and even wholesale slaughter of the Russian delegation.85

83 84 85

latter. Still, Vseslav could claim that he represented the most senior branch of the Rurikid dynasty. Vladimir Konstantinovich of Uglich, Boris Vasil’kovich of Rostov, and Vasilii Vsevolodich of Iaroslavl’. psrl i, 470. In fairness to the Mongols one should add that a stay at the court of the Moscow grand prince in the 15th and 16th century was an equally risky experience for subordinate ­Russian princes.

366

chapter 13

The Office and Function of the Prince

In the foregoing sections the identification of the prince has been examined, in other words: who would be eligible; the concept of the ruling house; the manner of selection, and similar questions. The next chapter will deal with the way a prince, once having occupied his throne, would function, what kinds of activities he would engage in, seen, of course, from the point of view of legal history. It goes almost without saying that we are only concerned with ruling princes, not with anyone rightfully bearing the title of prince (such as the sons of a ruling prince). Members of the latter category, once they had reached adulthood, would normally be entrusted with positions of responsibility, especially military commands, but they could not be considered ruling princes unless they had been assigned principalities of their own by their fathers or other genealogically superior relatives (uncles, elder brothers, etc.), themselves ruling princes. In later years junior princes would occasionally also be appointed as representatives of a ruling prince, as his regional or local lieutenants (as posadnik or namestnik), but such positions were quite different from that of being a ‘suffragan’ or apanage prince. The Moscow grand princes in particular made frequent use of such ‘service princes’ (sluzhilye kniaz’ia, see the following chapter). But at the end of this chapter we want to take a closer look at the court of the prince, the people around him, his entourage, the court officials. The public activities of a ruling prince required the involvement of such persons; without them a prince could not function. While modern constitutions define the rights and duties of the head and the chief officials of a state, other legal cultures regard such matters generally as subjects of customary law or mere custom. An indication of the way of thinking about such topics in Kievan times is provided by a few literary sources, such as the so-called “Testament of Monomakh”, or, more generally, the text known as the “Word of Daniil the Exile” (Slovo Daniila Zatochnika)86 and also the famous “Lay of Igor’s Campaign” (Slovo o Polku Igoreve). In the “Testament of Monomakh”, a text incorporated in the Primary Chronicle after the year 1096,87 Vladimir Monomakh is introduced as speaking in the first person, advising his sons on how a prince ought to conduct himself. The narrowest circle around the prince was formed by his family and close relatives. The principal aspects of the prince’s relations with this category have already been mentioned above. 86 87

On the legal and political aspects of this text, see B.A. Romanov, Liudi i nravy Drevnei Rusi, Leningrad, 1947, 17–46. psrl i, col.240–252.

The Prince in Medieval Russia

367

The visible role of wives was small, apart in exceptional situations. Adult males (younger brothers and sons) would either be entrusted either with subordinate principalities of their own or with military commands.

The Prince’s Court and Officials in Kievan Times

The Druzhina Ouside his own family, closest to the prince were the members of his druzhina, his personal retinue or Gefolgschaft. The general historical literature on the druzhina is very extensive and goes back to the 19th century.88 There has been increased interest in the importance of the druzhina in the political and legal culture of early Kievan Russia among modern Russian historians.89 Social groupings similar to the Old-Russian druzhina can be observed among other Indo-European peoples in comparable stages of social development. The Russian druzhina unquestionably had its roots in prehistoric times, and is already present in the earliest written sources. It is mentioned frequently in the Primary Chronicle, for the first time in 945, in a very significant passage.90 In this year, Igor’s druzhina said to him: “Sveinald’s young men [otrotsi] are well equipped with weapons and clothing, while we are naked; go forth with us, Prince, in search of tribute, in order that you and we may profit from this.” The main points to be noted here are that the druzhina at that time was obviously an armed band of comparatively small size, attached to the prince, but not fully subordinate to him; other magnates, besides the prince, had their 88

89

90

The most recent comprehensive treatment is P.S. Stefanovich, Boiare, otroki, druzhiny: voenno-politicheskaia elita Rusi v x–xi vekakh, Moskva, 2012. See also Froianov, KRse, ­64–96, and id., Nachala, 542–575. In particular the group of scholars connected with the yearbook Drevnie gosudarstva Vostochnoi Evropy (dgve), the continuation of Drevnie gosudarstva na territorii sssr (dg sssr), founded in 1978. See especially S.I. Nikol’skii, “O druzhinnom prave v epokhu stanovleniia gosudarstvennosti na Rusi”, A.A. Gorskii (ed.), Srednevekovaia Rus’, vyp.4, Moskva, 2004, 5–48; E.G. Mel’nikov, “K tipologii predgosudarstvennykh i rannegosudarstvennykh obrazovanii v Severnoi i Vostochnoi Evrope”, dgve 1992–1993, Moskva, 1995, 16– 32; N.F. Kotliar, Drevnerusskaia gosudarstvennost’, Sankt-Peterburg, 1998, 63–70 (there is also a Ukrainian edition from 2002); A.A. Gorskii, Drevnerusskaia druzhina, Moskva, 1989 (not available to me). psrl i, col.54.

368

chapter 13

own druzhiny. This agrees with a more general pre-medieval phenomenon in which a king or chief functioned as the central figure of a group of warriors, comrades-in-arms and drinking companions, who engaged in various warlike activities, ostensibly to acquire booty or exact tribute, while the enhancement of status was the actual driving force. Such a leader is a recurrent element in the earliest history of most European peoples. The Homeric ‘kings’ offer one of the oldest examples, but similar set-ups appeared in Old-Irish society and they were very common among Germanic peoples.91 S.L. Nikol’skii emphasized the point that Kievan druzhina membership crossed tribal and even ethnic lines; it was not limited to persons who were genetically close to the chief. This pluralist character of druzhina membership provided an additional incentive for the fixation of existing or new legal arrangements, hitherto fixed mnemonically in tribal custom.92 These archaic features of the original druzhina were already fading in the early Kievan period, when it mutated into a group of armed men, attached and subordinate to the prince. This would be a generalized description and not a definition. In later centuries druzhina sometimes referred to an armed force of considerable size; at other times to a small group of high nobles, close to the prince, and to various in-between groupings. This terminology was and is often conceptualized by regarding the druzhina as consisting of two distinct layers: senior members (boiare or boliare, also designated as kniazhi muzhi, “the prince’s men”) and junior members, otroki (lit. “youths”), but this view implies a degree of institutionalization of the druzhina which is perhaps not quite realistic.93 Although the druzhina occurs in the chronicles at an early stage, it is absent in the Short Pravda and mentioned three times in the Expanded Pravda. In art. 53, the preamble to the Statute of Monomakh, its meaning is completely obvious: a small group of the prince’s closest councillors. Art. 2 of the E ­ xpanded Pravda (which rephrases the preamble to the Statute of Iaroslav’s Sons in the Short Pravda) is very similar, but refers to the councillors as the prince’s “men” (muzhi). 91

I have discussed this aspect at greater length in Feldbrugge, lmr, 140–145; more recently, P.S. Stefanovich published an important study on precisely this topic, “Germanskaia druzhina i popytki sravneniia ego s slavianskoi druzhinoi. Istoriograficheskii obzor”, A.Iu. Dvornichenko, A.V. Maiorov (eds.), Rossica Antiqua 2006. Issledovaniia i materialy, SanktPeterburg, 2006, 204–228. 92 Nikol’skii, op. cit. (“O druzhinnom prave”), 24–25. 93 Cf. Grekov, Kievskaia Rus’, 344; Presniakov, Kniazhoe pravo, 241–249; Froianov, KRsp, 76ff. and id., Nachala, 554ff. The indeterminateness of the druzhina concept is a major element in the approach of Stefanovich, op. cit. (Boiare …), 259–262.

The Prince in Medieval Russia

369

Art. 91 of the Expanded Pravda dealt with the inheritance of boyars and druzhina members in contrast to art. 90, covering the inheritance of the peasant (smerd). The peasant’s estate escheats to the prince. The estates of boyars and druzhina members do not escheat to the prince; if there are no sons, the daughters inherit. It is implied that in the normal case the sons inherit. The formula “boyars and druzhinniki” raises the question about their relationship. Are the two categories more or less identical? Do they partly overlap (there are some boyars who are also druzhinniki, and vice versa)? Are they separate categories? My tentative view is that the two groups were originally separate, but already partly fused at the time of the Expanded Pravda (see the section on boyars and other nobles in Chapter 19, on the Individual and the Family). In art. 5 of the Expanded Pravda druzhina is used apparently as a synonym for verv’. The meaning of the latter term itself is not entirely clear, “community of local residents, not necessarily related by blood” is probably a suitable approximation. I have not found any comments in the literature on the curious and unique use of druzhina in this provision. All commentators simply treat it as a synonym for “community”.94 One can only regard the druzhina of art. 5 of the Expanded Pravda as a one-off case. The prince’s men (kniazhi muzhi), as has been pointed out above, appear in the Expanded Pravda as a synonym for druzhina; both terms are absent in the Short Pravda, but the parallel formulations of art. 20 Short Pravda and art. 3 Expanded Pravda indicate that the ognishchanin, repeatedly mentioned in the Short Pravda, is a kniazh muzh.95 The druzhina turns up only rarely in sources of the 13th century, where it refers rather loosely to a group of people, as, for instance, in art. 37/35 of the 1229 Treaty between Smolensk and Riga.96 The last mention in the First Novgorod Chronicle is in 1266, when the Lithuanian prince Gerden’ escaped after a lost battle “with his small druzhina” (apparently his bodyguard). There is also a very late example from the Suzdal’ Chronicle, concerning a similar situation, when the grand princes Dmitrii Donskoi and Oleg of Riazan’ managed their escape v maloi druzhine (with or in a small druzhina) in 1371.97 The druzhina being an important element in the political and legal ­make-up of early Kievan society, specific aspects of it have also been discussed ­elsewhere 94 95

96 97

Cf. Baranowski, 363–368. On the ognishchanin: Sergeevich, Drevnosti i, 363; Presniakov, Kniazhoe pravo, 231; Grekov, Pravda Russkaia ii, 138–146; M. Szeftel, A. Eck, Documents de droit public relatifs à la Russie médiévale, Bruxelles, 1963, 48; Baranowski, 251–255. In the text of Copy A, prp ii, 69. psrl i, col.534.

370

chapter 13

in this work: the question of the Zakon Russkii as ‘druzhina law’ (in the section on the Zakon Russkii, in Chapter 3, on the Treaties with Byzantium and the Zakon Russkii), druzhina membership and the emergence of noble landownership (in the section on boyar landowning, in Chapter 18, on Rural Russia), and the origin of noble status (in the section on boyars and other nobles, in ­Chapter 19, on the Individual and the Family). The Maior Domus Returning to the quotation set out above, about the druzhiny of Igor and Sveinald, something more must be said about the identity of the latter. Igor gave in to the request of his druzhina and started a campaign against the Derevlians, in which he was killed (945). He was succeeded by his young son Sviatoslav, with his widow Olga acting as regent. At the same time Sveinald is mentioned as the military commander (voevoda) and Asmud as Sviatoslav’s tutor (kormilets). The latter quickly disappeared from the stage,98 but Sveinald continued his career as general and chief advisor of Sviatoslav until the latter’s death in 972 and is last mentioned in 977. The high point of his career seems to have been in 971, when the treaty with the Byzantine emperor Johannes Tzimisces named Sviatoslav, prince of Russia, and Sveinald side by side as the Russian parties. After Sviatoslav’s death, Sveinald was closely associated with the most senior of Sviatoslav’s sons, Iaropolk, but when finally Vladimir (who was initially outranked by other brothers) emerged victorious in 980 nothing more is heard of Sveinald.99 His place as military commander and chief councillor to the ruling prince was taken by Dobrynia, who was Vladimir’s maternal uncle. About Dobrynia’s prominent position there is no doubt – he ruled in Novgorod for some time and campaigned together with his nephew – but there are no indications that he ever appeared as the prince’s equal, as Sveinald did. His position was possibly inherited by his son Konstantin, who is mentioned as posadnik (lieutenant) of Vladimir’s son Iaroslav the Wise in Novgorod in 1018. Later on during the reign of Iaroslav, in 1043, he sent one of his sons on a military campaign against the Greeks and gave the command to Vyshata, the son of Ostromir (also posadnik in Novgorod). After Vyshata, his son Ian served several Kievan grand princes as councillor, general and tysiatskii of Kiev (mentioned in 1089), until his death

98 99

He is mentioned in 946, together with Sveinald, as the young prince Sviatoslav’s chief companions. Iaropolk and another brother, Oleg, were legitimate, while Vladimir was the son of a concubine, Maliusha. Also, Iaropolk had already been assigned the Kievan throne by his father, when the latter set up his headquarters in Pereiaslavets on the Danube in 967.

The Prince in Medieval Russia

371

90 years old in 1106. Ian’s brother, Putiata, served Sviatopolk (grand prince of Kiev from 1093–1113 and son of Iziaslav) in a similar capacity (mentioned from 1097–1106). More examples could begiven, but those given above are sufficient to assert that during the earlier Kievan period, at the side of the ruling prince, an official, not unlike the Merovingian maior domus, was usually present, exercizing the functions of commander of the army, governor of Kiev or Novgorod and, if need be, keeper of the realm.100 The connection between Vladimir and his maternal uncle Dobrynia allows the hypothesis that the position of premier magnate would naturally fall to a prominent and capable relative of the prince, who was himself not a member of the Rurikid house, and thereby not a contender for the princely dignity. In later years the powers attached to the position gradually diminished; Presniakov observed that developments in Russia were different from those in the Frankish kingdom. The Rurikids retained a firm grip on the affairs of state, following Vladimir Monomakh’s advice in his Testament: “without relying on lieutenants [posadniki] or messengers [birichi], I did whatever was necessary” and “attend to all matters yourself. Do not rely on your sheriff [tivun] or your servant [otrok]”. A similar and almost identical function is that of princely tutor or kormilets, the first one mentioned being Asmud, tutor of Sviatoslav in 945, and equal in rank with Sveinald, the general. In 1018 one encounters Budy, tutor and general of Iaroslav. Some authors hold that this Budy is none other than Blud or Bludy, the ruthless and treacherous general of Iaroslav’s uncle Iaropolk, who went over to the side of Iaroslav’s father Vladimir in 980. The princely tutor (kormilets), who obviously belonged to the highest echelon of Kievan society, is not to be confused with the official of the same name mentioned in the rp (art. 27 of the Short Pravda and art. 17 of the Expanded Pravda). The latter person was a low-ranking member of the princely household, entrusted with looking after young members of the princely family; it could even be a slave. In later times in the Moscow principality, the commander of the Moscow militia, the tysiatskii, occupied a position of exceptional power and trust within the administration of the prince, until the position of tysiatskii was abolished in 1374 by Dmitrii Donskoi.101 100 Among the few authors who paid special attention to this official is A.E. Presniakov, Kniazhoe pravo v drevnei Rusi, Sankt-Peterburg, 1909, 233–238. 101 Cf. Iu.G. Alekseev, U kormila rossiiskogo gosudarstva, Moskva, 1998, 19. Alekseev points to asei iii, 259–260 (No.238), a fiscal grant charter in which Dmitrii Donskoi refers to his last tysiatskii, Vasilii Vasil’evich Vel’iaminov, as “his uncle”.

372

chapter 13

The Officials of the Kievan Prince The druzhina was at the root of both the court and the service of the Kievan princes. While the core of the druzhina was made up of boyars or kniazhi m ­ uzhi, junior members were present at an early stage. The usual term for the latter was otroki, but gridin or grid’ (a term of Scandinavian origin) is also used (e.g. in art. 1 of the Short Pravda).102 Like boyars, junior druzhina members could serve as members of the prince’s retinue or in specific offices. The mechnik (“sword man”) appears in the Short as well as the Expanded Pravda. From the context one can conclude that the mechnik was a personal bodyguard of the prince, but that he was also involved in court duties (Vernadsky translates mechnik as “sheriff”).103 Of somewhat lower status was the metel’nik, an assistant of the bloodwite collector (virnik) mentioned in arts.9 and 107 of the Expanded Pravda (Vernadsky translates metel’nik as “constable”).104 Tikhomirov regarded the metel’nik as a junior druzhina member. Another court official who is regarded by several authors as a junior member of the druzhina is the detskii (arts.86 and 108 of the Expanded Pravda). His involvement concerned primarily, as it seems, executive duties.105 Along with druzhina members, whether they belonged to the prince’s immediate household or exercized their duties elsewhere, various other categories of persons employed at the prince’s court are mentioned in the rp. First among these is the stable master (koniukh), responsible for the prince’s horses. Art. 23 of the Short Pravda referred to the koniukh staryi, the senior stable master, who enjoyed the same status as senior druzhina members, the fine for his killing being set at 80 grivna, the same as for other high dignitaries such as the ognishchanin and the prince’s tiun (steward). Other (junior) stable masters are ranged with junior members of the druzhina, the otroki, and with the prince’s cook, their bloodwite being 40 grivna (art. 11 Expanded Pravda).106 The senior stable master (koniukh staryi) of the Short Pravda (art. 23) is probably the same as the stable tiun or steward (tivun koniushii) of art. 12 of the Expanded Pravda, where he is paired with the pal102 On the gridin, see Grekov, Pravda Russkaia ii, 42–44; Tikhomirov, Posobie, 144; Szeftel/Eck, 42; Baranowski, 181–182. 103 On the mechnik, see Grekov, Pravda Russkaia ii, 47–48, 232–233; Tikhomirov, Posobie, 154; Szeftel/Eck, 42; Baranowski, 184–185. 104 On the metel’nik, see Grekov, Pravda Russkaia ii, 305; Tikhomirov, Posobie, 154; Szeftel/ Eck, 42; Baranowski, 380–381. 105 Cf. Baranowski, 592–593. 106 On the koniushii, see Sergeevich, Drevnosti i, 279; Grekov, Pravda Russkaia ii, 161–163; ­Baranowski, 385–386.

The Prince in Medieval Russia

373

ace steward (tiun ognishchii), each meriting a bloodwite of 80 grivna. The senior stable master is therefore to be regarded as one of the principal officers of the prince’s court, comparable to the marshal in the courts of West-European princes, unquestionably one of the chief nobles and a member of the boyar class.107 Although the prince’s court was undoubtedly the main place where governmental functions were exercized in Kievan Russia, not all princely officials carried out their tasks there. The highest agents of the prince in regional centres were the prince’s lieutenants or posadniki. They were known already in the time of St. Vladimir.108 While the posadnik was a general agent of the prince in civil matters, military responsibilities were entrusted to the thousandmen or tysiatskie (chiliarchs).109 The preamble to the second part of the Expanded Pravda, the Statute of Monomakh, referred to the tysiatskie of Kiev, Belgorod and Pereiaslavl’ by name as the most intimate councillors of the prince, and by the same token the most prominent members of his druzhina. In later chronicles tysiatskie regularly turn up as military commanders.110 According to older authors, the office of tysiatskii, as well as that of the less visible sotskii (centurion) and desiatskii (decurion), was a relic of the prehistoric tribal-military organization of Russia into decimal units: thousands, hundreds, tens (of armed men, or of the places where they lived, or of the households providing them).111 There are obvious parallels with patterns of social organization among early Germanic and other Indo-European peoples; even the Mongols were organized along similar lines. Other authors deny such origins and connections, pointing to the very defective evidence for such a state of affairs in early Kievan Russia.112 The tysiatskii and the sotskii remained prominent in the governmental systems of Novgorod and Pskov in subsequent centuries, albeit with significantly altered functions. As mentioned above, the office of tysiatskii existed in Moscow, until it was abolished in 1374. 107 Cf. Sergeevich, Drevnosti i, 279; Grekov, Pravda Russkaia ii, 161–163. 108 First mention in the Chronicle in 977 and then in 994–996 when Vladimir summoned “his boyars, his posadniki, his town elders …”, psrl i, cols.75 and 125. 109 Only mention in the Chronicle in 1098, “Ian, commanding the Kiev thousand”, psrl i, col.208. 110 On the military character of the tysiatskii’s office, Sergeevich, Drevnosti i, 605. 111 A review of this question in Grekov, Kievskaia Rus’, 313–317. 112 Particularly Presniakov, Kniazhoe pravo, 165–190 and V.A. Kuchkin, “Desiatskie i sotskie Drevnei Rusi”, A.A. Gorskii, V.A. Kuchkin (eds.), Drevniaia Rus’. Ocherki politicheskogo i sotsial’nogo stroia, Moskva, 2008, 270–425.

374

chapter 13

Another general agent of the prince, of lower rank than the tysiatskii, was the tiun or tivun, a steward or overseer. The older meaning of the term is “servant” and this agrees with its Germanic origin (cf. Germ. Diener).113 The servile origin of the tiun is confirmed by art. 110 of the Expanded Pravda which includes entering into stewardship (tivunstvo) among the three sources of slavery, unless there has been an agreement to the contrary. Similarly, art. 66 of the Expanded Pravda provided that slaves could not serve as witnesses, but that in case of necessity a boyar’s steward could. It follows, considering the laconic style of the rp, that a boyar’s steward was a slave (as a rule). Nevertheless, one has to distinguish between social and public status. Other provisions of the rp demonstrate that the tiun occupied a comparatively high position among the prince’s servants. The bloodwite of the prince’s steward (kniazhii tiun) placed him in the highest bracket, on a par with the prince’s man (kniazh muzh).114 The same high bloodwite of 80 grivna was due for the killing of the household steward and the stable steward (tiun ognishchii and tiun koniushii, see art. 12 Expanded Pravda). Other lower-ranking stewards (tiuny), along with the three high-ranking ones mentioned above, were the village, rural, and boyar’s stewards (tiuny sel’skie, ratainye, boiarskie, arts.13 and 1 Expanded Pravda) and the assistant steward (tivunets, arts.21 and 33 Short Pravda). Their less elevated position is indicated by the lower fines set for killing them (40 grivna for the boyar’s ­steward and 12 for the other two stewards). The modest position of the latter two s­ tewards is confirmed by the parallel provision of the Short Pravda (art. 24), where they are designated not as tiun, but as elders (starosta). The numerous references to tiuny in the laws and other sources suggest that the term represented a rather undifferentiated designation of a public official or agent, and that the actual position of a tiun in the Kievan hierarchy depended on the function entrusted to him. This function seems normally to have been of a general administrative nature, but it could also have a judicial character, as indicated by two provisions (arts.13 and 19) of the longer version of the Church Statute of Vladimir.115 In these provisions Vladimir ordered his tiuny not to interfere in what was assigned to the jurisdiction of the Church and not to judge cases without the participation of the bishop’s law officer, wherever such a mixed court was required.

113 Presniakov, Kniazhoe pravo, 273; Vernadsky, Laws, 31. 114 Cf. art. 22 Short Pravda, art. 1 Expanded Pravda. 115 It is found in the majority of the copies of the Statute, viz. in the more than hundred copies of the Synodal and Trinity Redactions (see Chapter 6, on Princely Statutes).

The Prince in Medieval Russia

375

Several authors regarded the riadovnik or riadovich (art. 25 Short Pravda, art. 14 Expanded Pravda) as the lowest representative of princely or boyar power in the village.116 The name is derived from riad, the Old-Russian word for contract. Other authors pointed out that, according to the monetary scales of the rp, the status of a riadovnik was no higher than that of an ordinary peasant or slave; this would make it unlikely that he would occupy a place of any importance in the prince’s administration.117 In a legal code like the rp, officials connected with the administration of justice are the best documented. The tiun, the mechnik, the metel’nik and the detskii have already been mentioned in this respect. The iabetnik, figuring in the first article of the Short Pravda, has an interesting pedigree (the term is connected with “ambassador” and “ombudsman”, going back to Celtic ambactus), but the exact nature of his office is subject to debate.118 In the parallel provision of the Expanded Pravda (art. 1) he is replaced by the boyar’s steward. There is no doubt that his duties concerned judicial business, but in the absence of more precise indications it would be safest to define him as a court agent. The function of the virnik (art. 42 Short Pravda, arts. 9–10 Expanded Pravda) is less uncertain. These provisions, containing the pokon virnyi (the law on the collection of fines), demonstrate that the virnik was the principal officer responsible for the collection of the vira, the bloodwite or fine to be paid to the prince by the killer.119 The emets (art. 41 Short Pravda) was obviously an assistant official, involved in the execution of judgments.120 The virnik may also be included among the tax-collecting officers of the prince. The latter category further embraced the mytnik (mentioned in arts. 37 and 39 of the Expanded Pravda), an official also known in later times as the 116 Iushkov, Ocherki, 130–131; Presniakov, Kniazhoe pravo, 293; Vladimirskii-Budanov, Khristomatiia i, 40. 117 Grekov, Kievskaia Rus’, 191–195; Grekov, Pravda Russkaia ii, 166–170, 311–314; Zimin, in prp i, 98. See also Baranowksi, 276–279. 118 On the iabetnik, see S.V. Vasil’ev, “O funktsiiakh «sokov» v sviazi s problemoi drevnerusskikh «iabetnikov» i «iabednichestvom» Sudebnika 1497 g.”, A.Iu. Dvornichenko (ed.), Issledovaniia po srednevekovoi istorii Rusi. K 80-letiiu Iuriia Georgievicha Alekseeva, Moskva/ Sankt-Peterburg, 2006, 100–112; also: Grekov, Pravda Russkaia ii, 44–47; Tikhomirov, P­ osobie, 174; Vernadsky, Laws, 26; Szeftel/Eck, 42; Baranowski, 182–184. In the Code of 1497 iabednichestvo had an entirely different meaning (see Chapter 9). 119 On the virnik, see Grekov, Pravda Russkaia ii, 233–234; Zimin, in prp i, 105; Szeftel/Eck, 56; Baranowski, 325–327. Zimin regarded the virnik as a member of the druzhina. 120 On the emets, see Grekov, Pravda Russkaia ii, 232–233; Zimin, in prp i, 104; A.A. Zimin, “Feodal’naia gosudarstvennost’ i Russkaia Pravda”, Istoricheskie Zapiski, No.76, 1965, 230– 275, at 252; Baranowski, 318–320.

376

chapter 13

collector of the myt, a market or trading tax (Germ. Maut). It would seem that his duties in Kievan Russia were not essentially different.121 There is less certainty about the pod”ezdnoi kniazhii, mentioned in art. 19 of the Short Pravda, as somebody of rank, approximately equal to the ognishchanin. The term itself is derived from “to ride”, and has accordingly been translated as the prince’s messenger, emissary or adjutant.122 Several Soviet scholars follow Grekov, who regarded the pod”ezdnoi as the chief collector of revenues within the prince’s domain, and as the right hand of the boyar representative of the prince (the ognishchanin) entrusted with the management of the prince’s estate.123 121 On the mytnik, see Tikhomirov, Posobie, 155; Baranowski, 439. 122 Cf. Grekov, Pravda Russkaia ii, 132, 146–147; Baranowski, 255. 123 Grekov, Kievskaia Rus’, 145; Zimin, in prp i, 95.

chapter 14

The Prince’s Government

The Prince’s Government

As mentioned before, a longish text with the title of “Testament [Pouchenie] of Monomakh” is inserted in the Laurentian Redaction of the Primary Chronicle between the entries for the years 1096 and 1097. Part of the Testament consists of excerpts from the Psalms and ecclesiastical writings and is obviously the product of the pen of a cleric, but the middle section contains a down-to-earth admonition from Vladimir Monomakh to his sons about the desirable conduct of a prince. The third and last part presents an autobiographical sketch. In this way the Testament offers a lively picture of the way a Kievan prince spent the day. Most of the time he was away on the warpath. When at home, he would (allegedly) start the day by going to church and then sit and deliberate matters with his retinue (druzhina), adjudicate cases submitted to him, or go hunting. The last activity, as with medieval princes in general, claimed much of the prince’s time, being the peacetime equivalent of warfare.

Hunting

An early indication of the importance of hunting as a princely pastime is the report in the Chronicle from 946–947 about the princess-regent Olga establishing hunting preserves in the land of Dereva (Western Ukraine) and in the Novgorod region. The Short Pravda (art. 37) set a comparatively high fine (3 grivna) for the theft of a (hunting) dog, hawk or falcon; it probably referred exclusively or especially to hunting animals b­ elonging to the prince.1 The parallel provision of the Expanded Pravda (art. 81) only covered theft by cutting a bird from a snare; then 3 grivna for a ­falcon or a hawk and much smaller fines for the taking of other birds (doves, chickens, geese, swans, cranes); additionally the owner of the damaged snare received one grivna. Art. 73 of the Expanded Pravda, covering the cutting down of an oak which was serving as a boundary marker, probably referred to forest land, because the destruction of boundary marks on agricultural land was covered by art. 72. The only provision concerning poaching is art. 69, stealing a beaver. 1

1 Baranowski, 311–312, summarizes the various viewpoints.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_015

378

chapter 14

The actual business of government appears to have been a relatively simple and straightforward affair. The Testament stressed repeatedly that the prince should do as much as possible himself and not rely too much on stewards (­tiuny), servants (otroki), lieutenants (posadniki) or messengers (birichi). The governmental workload could be divided into domestic and foreign affairs. The latter duties could be discharged through warfare or by peaceful means, mainly through negotiation and the conclusion of treaties. Domestic administration embraced specific tasks, such as adjudication and incipient legislation, along with general government business. Judging by the not very abundant sources, the latter would consist mainly of running the prince’s domain. The matter of princely landowning is discussed in the relevant section in Chapter 18. The domain was the prince’s regular and principal source of income. If domanial revenues were inadequate, additional income could initially be obtained only externally, by imposing tribute on populations not directly subject to the prince or by waging war and taking booty. This point is graphically illustrated by the Chronicle’s entry for 945, quoted at the beginning of the previous chapter, when Igor’s druzhina urged him to go after tribute with them. The sources are almost silent on other domestic concerns of the prince, apart from adjudication and occasional legislation. One activity that does get some attention is the building of towns and fortified places, although some of this could also be connected with the expansion of the prince’s own domain. The Testament of Monomakh enjoined the prince to pay close attention to the affairs of his domain; the second half of the Short Pravda is also devoted mainly to the protection of the prince’s domain and his servants. All indications therefore suggest that his domain and its welfare were the paramount domestic concerns of the prince. There are no indications that the druzhina as such was in any way involved in the running of the prince’s domain, but the prince could entrust the responsibility for looking after his own affairs to a trusted druzhina member; the ognishchanin is generally considered to have been employed in this capacity. Although in later centuries the grand princes of Muscovy treated their own estates as purely personal and private property, distributing it freely during their lifetime or in their wills among their children and wives, Kievan princes would often involve their closest relatives in important transactions concerning their estates, and even affairs of state. The Church Statute of Vladimir stated that the prince acted in consultation with his wife the princess Anna, and their children in making an endowment to the Church.2 The 944 Treaty with

2

2 These lines are part of the oldest nucleus of the Statute; cf. Ia.N. Shchapov, Kniazheskie ustavy i tserkov’ v Drevnei Rusi xi–xiv vv., Moskva, 1972, 120.

The Prince’s Government

379

the Greeks included princess Olga and her son Sviatoslav as treaty partners, along with prince Igor himself, and a long list of prominent persons. The participation of the druzhina in running the affairs of the state, together with the prince, is well documented. The Chronicle entry for 996 relates that St. Vladimir regularly consulted his druzhina in matters of administration, war and government. There are similar statements about other Kievan princes, and in his Testament Vladimir Monomakh advised his sons to sit and deliberate with the druzhina in the morning, after having been to church.3 (See also the discussion concerning the Boyar Duma in the following pages.)

The Expansion of Princely Administration in Later Centuries

The comparative simplicity of central administration in the Kievan era did not change radically in the immediately following period (of the independent ­principalities), because the more modest size of the political units did not require more complicated governmental machineries. This situation began to change with the rise of the principality of Moscow. Originally an apanage ­principality of the grand princes of Vladimir-Suzdal’, assigned to Aleksandr Nevskii’s youngest son Daniil († 1303), it had doubled in size by the time of the death of Daniil’s son, Ivan Kalita, in 1341. In the following fifty years, up to the death of Kalita’s grandson Dmitrii Donskoi in 1389, the principality of Moscow at least tripled in size.4 Also, the princes of Moscow usually (but not always) served as grand princes of Vladimir. This spectacular accretion of territory inevitably engendered a transformation of the traditional system of administration.5 For the early period, the rule of Ivan Kalita and his sons Semën the Proud and Ivan ii the Handsome, information is scarce, limited mostly to the wills of these princes.6 In the first version of Ivan Kalita’s will the d’iak (secretary, clerk) who wrote out the document is mentioned at the end; this is one of the 3 4 5 6

3 This is followed by the sensible advice to have a nap: “Sleep is ordained by God for noontide, then animals and birds and men rest.” 4 The territorial history of North-Eastern Russia (the area of the future grand principality of Moscow) is documented in detail by V.A. Kuchkin, Formirovanie gosudarstvennoi territorii Severo-Vostochnoi Rusi v x–xiv vv., Moskva, 1984. An earlier fundamental work on this topic is M.K. Liubavskii, Obrazovanie osnovnoi gosudarstvennoi territorii velikorusskoi narodnosti. Zaselenie i ob”edinenie tsentra, Leningrad, 1929 (not available to me). 5 See especially Iu.G. Alekseev, U kormila rossiiskogo gosudarstva, Moskva, 1998, on which much of this section is based. 6 ddg, Nos.1, 3, 4.

380

chapter 14

earliest appearances of an official who became a central figure in the prince’s government in later years. Ivan ii was succeeded by his son Dmitrii (*1350) in 1359, the metropolitan Aleksii acting as regent. During his comparatively short actual reign (he died in 1389), Dmitrii proved himself to be an energetic and effective ruler. He scored the first major victory over the Tatars on the Sandpiper Field (Kulikovo Pole) near the Don (in 1380), earning him the soubriquet Donskoi and allowing him to bequeath the grand princely dignity to his son Vasilii without the khan’s consent.7 The rapid territorial expansion of the principality of ­Vladimir-Moscow (united since 1362) was accompanied as well as made possible by the rise of a boyar elite. The wealthy and powerful magnates served the prince as military commanders and regional governors in a mutually advantageous alliance. The abolition of the office of tysiatskii, referred to before, is probably to be seen in this light.8 Donskoi’s successor Vasilii i, who ruled from 1389 to 1425, continued his father’s policies and his rule constituted the apogee of the “boyar government” (Alekseev’s expression).9 Under his son and successor Vasilii ii the Blind (*1415, 1425–1462), the Moscow territory grew again impressively and the traditional system of administration, based mainly on oral instructions to a small number of great boyars serving in responsible positions, became increasingly inadequate. Greater reliance on written records implied a regular central chancery, which was run by the personal clerk (d’iak) of the grand prince. From an originally modest scribe, usually of unfree birth, this official developed into the leading civil servant of the state. Ivan iii, also called “the Great” (*1440, 1462–1506), more or less completed the “collection of the Russian lands”, in particular by adding the huge territories of Novgorod to the already vast Muscovy empire. The further construction of a condign governmental apparatus proceeded in parallel with the expansion of the territory. The backbone of this apparatus was a new class of officials, the d’iaki, to whom the task of running the state machinery on a daily basis was entrusted. The social origins of this class were not uniform; there were persons from boyar clans who had become impoverished or otherwise lost status, persons with a clerical background, and persons from middle-­level service families. Although the administration of the grand prince was the principal employment of the d’iaki, prominent boyars maintained their own clerks. 7 8 9

7 ddg, No.12, 34 “And I bequeath the grand princely dignity [velikoe kniazhenie], my heritage [svoeiu otchinuiu], to my son prince Vasilii” (1389). 8 Alekseev, U kormila, 19–20. 9 Alekseev, U kormila, 30–50.

The Prince’s Government

381

The relationship between prince and boyars on the one hand and their d’iaki on the other was one of mutual dependence. The mighty needed their professional staff to exercize their powers, the d’iaki needed the protection of a powerful lord. Along with the secretarial duties of the d’iaki in the central administration of the prince, the registration of landholdings and the compilation of various registers for fiscal purposes were entrusted to special officers (pistsy, revenue clerks) who carried out their work all over the country. These activities, resulting in the emergence of pistsovye knigi, constituted an important component of the administrative innovations engendered by the territorial growth during the reign of Ivan iii.10 The main aspects of governmental administration in Novgorod are discussed in Chapter 16. Sources on the administrative systems of other principalities are scarce.11 Apanage Princes and Service Princes As explained in several sections of the previous chapter, the early Kievan princes would usually appoint their adult sons as subordinate princes in the major centres after Kiev. When an important seat fell vacant, the princes would move up the ladder. Once the dynasty grew in size and complexity, this system gave way to another in which sons would hold on to the principalities which had been ruled by their fathers. The custom of assigning principalities to junior members of such sub-dynasties remained in force. This resulted in the emergence of the apanage principalities (udel’nye kniazhestva). The principality of Moscow, for instance, arose as an apanage principality for the youngest son Daniil, born in 1261, two years before the death of his father Aleksandr Nevskii, grand prince of Suzdal’-Vladimir. Depending on various circumstances, an apanage principality would occasionally succeed in loosening its ties with the principality which had generated it, and become a more or less independent principality. In other conditions it might disappear in one or two generations and be reabsorbed. Under the Muscovy grand princes the practice of the apanage principalities became more institutionalized. The grand prince would often during his lifetime, or otherwise in his will, assign apanage principalities to his younger sons. Also, the Moscow grand prince could lay down the details of the relationship 10 11

10 Cf. Alekseev, U kormila, 126–149. 11 See e.g. N.V. Shtykov, “K istorii skladyvaniia apparata upravleniia tverskikh kniazei v xiii  –  nachale xiv vv.”, A.Iu. Dvornichenko (ed.), Issledovaniia po istorii srednevekovoi Rusi. K 80-letiiu Iuriia Georgievicha Alekseeva, Moskva/Sankt-Peterburg, 2006, 70–75.

382

chapter 14

between himself and his brothers or cousins as rulers of apanage principalities in official treaties. As mentioned elsewhere, the traditional view of father-son relationships precluded the conclusion of contracts between relatives in the direct line. An apanage prince would rule his principality independently, apart from the matters which had been reserved for the grand prince in the assignment of the principality. He was not in the service of the grand prince, although he had important duties towards the latter. These could best be summarized by saying that he was to support the latter and not in any way hinder him. The apanage relationship implied first of all a military alliance; also, the apanage prince was not to conduct his own foreign policy. The apanage system undoubtedly had archaic traits, going back to an era when the right to rule was perceived as a family heritage. Under the Moscow grand princes it repeatedly led to fierce infighting among different family groups, resulting occasionally in civil war. One of the best-known and most serious of these episodes occurred after the death of Dmitrii Donskoi’s son Vasilii i in 1425. He was survived only by his youngest son Vasilii, who was nine years old at the time. Several sons of Dmitrii Donskoi were alive in 1425, the most senior of them being Iurii, prince of Galich and Zvenigorod, and Andrei, prince of Mozhaisk and Vereia. Iurii, who had been a successful commander of his brother Vasilii’s forces in wars with Novgorod and the Tatars, was little inclined to leave the rule of Muscovy to his young nephew and was supported in this by his brother Andrei. His claim was based on certain unclear provisions in the will of Dmitrii Donskoi of 1389. After a long struggle, he succeeded in unseating his nephew, occupied the Moscow throne in 1433, and appointed the deposed grand prince Vasilii (then 18 years old) as apanage prince of Kolomna. Iurii, however, died the next year (1434). His eldest son Vasilii Kosoi (“the Squint”) took over his father’s place, but could not maintain himself in Moscow, not being supported by his brother Dmitrii Shemiaka,12 who went over to the side of his cousin Vasilii. During the following two years the cousins repeatedly reconciled and broke up again, and in the process Vasilii ii had his cousin Vasilii Kosoi blinded. Dmitrii Shemiaka continued to serve his cousin as a military commander, but in 1445, when Vasilii ii had been taken captive and then released by the Tatars, Dmitrii Shemiaka avenged his brother and had Vasilii ii also blinded (hence Temnyi, “the Blind”). 12

12

The soubriquet Shemiaka has not been satisfactorily explained; it survives in the expression shemiakin sud, an “unfair trial”.

The Prince’s Government

383

Dmitrii Shemiaka then occupied the grand princely throne, but was thrown out the next year by the Moscow population. In later centuries, with the growth of the overwhelming power of the grand prince and tsar, the assignment of apanages became mostly a formality; the last apanage prince was Dmitrii, prince of Uglich († 1591), the last son of Ivan iv the Terrible, born in 1582 of his father’s seventh marriage to Mariia Nagaia. In the course of time, the apanage system proved to be unable to accommodate the steady growth of the Rurikid stock. Younger sons of the ruling princes of insignificant apanage principalities had no option but to find employment in the service of more powerful relatives.13 Political developments could also cause a prince to lose his principality. In this way a new category of service princes (sluzhilye kniaz’ia, also sluzhebnye kniaz’ia) arose.14 The notional equality which existed in the relationship between a grand prince (“elder brother”) and an apanage prince (“younger brother”) was lacking with the position of the service prince. There were, however, distinctions within the class of the service princes. Their highest level consisted of princes whose families had surrendered their principalities to the Moscow grand prince and entered the latter’s service, while at the same time receiving back their lands as freely inheritable estates (otchina, “patrimony”) or service estates (pomest’e). In such cases many of the old ‘sovereign’ rights concerning jurisdiction and taxation would sometimes be retained by the prince concerned. At the lower end there were the landless sons of impoverished princely families, whose service was normally rewarded in the usual way by the granting of estates.15 13 14 15

13 Kliuchevskii, Kurs i, 354–355 (Lecture xx), gives the example of Dmitrii Vasil’evich, of the line of the princes of Iaroslavl, apanage prince of Zaozer’e (a region north-east of the Kubena Lake) in the early 15th century; his ‘realm’ consisted of a princely residence close to the place where the Kubena River flowed into the lake, a church, and the village of Chirkovo close by. 14 A review of the literature on service princes in M.E. Bychkova, Sostav klassa feodalov Rossii v xvi v. Istoriko-genealogicheskoe issledovanie, Moskva, 1986, 29–73 (chapter on sluzhilye kniaz’ia). 15 Extensively on service princes: A.A. Zimin, Formirovanie boiarskoi aristokratii v Rossii vo vtoroi polovine xv – pervoi treti xvi v., Moskva, 1988, of which the entire first part is devoted to the “princelings” (kniazhata, service princes) from the various regions of the country in the consolidation period of the Muscovy state; V.D. Nazarov, “Sluzhilye kniaz’ia SeveroVostochnoi Rusi v xv veke”, Russkii Diplomatarii v (1999), 175–195; id., “O titulovannoi znati Rossii v kontse xv v. (Riurikovichi i Gediminovichi po spisku dvora 1495 g.)”, dgve 1998, M., 2000, 189–206. The latter study is complemented by V.D. Nazarov, “Netitulovannaia

384

chapter 14

The service princes themselves constituted the highest level of the boyar class. The reservoir of service princes was considerably enlarged in the 15th century with the arrival and acceptance of non-Rurikid princes. The first of them was Patrikii Narimontovich, a member of the Lithuanian dynasty of the Gediminovichi, who entered the service of the Moscow grand prince Vasilii i in 1408; his son Iurii married Vasilii’s daughter. Somewhat later, in the reign of Ivan iii, princes of Tatar and Mongol stock started to join the ranks of the service princes. Although the service princes are overwhelmingly encountered in the service of the Moscow grand prince, they also served other grand princes, such as those of Tver’. Mestnichestvo Service princes were closely connected with the institution of mestnichestvo, although mestnichestvo also affected other members of the boyar class. Mestnichestvo, as a peculiar form of seniority system, arose in Moscow, at least under the rule of Ivan iii; its roots probably went back much further. It concerned the assignment of offices in accordance with the rank held by the appointee’s family, and with the position of the appointee within his own family. “Precedence” would be the closest English equivalent,16 but this term does not quite do justice to the peculiarities of the mestnichestvo system.17 16 17

16

17

znat’ po podokhodnomu spisku dvora Ivana iii v 1495 g.”, A.P. Pavlov a.o. (eds.), Rossiiskoe gosudarstvo v xiv–xvii vv. Sbornik statei, posviashchennykh 75-letiiu so dnia rozhdeniia Iu.G. Alekseeva, Sankt-Peterburg, 2002, 567–583. The subject of these last two studies by Nazarov was an official list of persons belonging to the court of Ivan iii, providing an important insight in the composition and internal relationships within the highest level of the Muscovy elite. The peculiarity of the mestnichestvo system was known to the great medievalist Johan Huizinga, who wrote: “In the old Russian Empire before the Romanovs, the struggle for precedence before the throne had assumed the form of a permanent department of state. The Western medieval states did not know this form, but jealousy about precedence was also prominently present there.” (my translation, ff); in Ch. 2 of Huizinga’s best-known work Hersttij der Middeleeuwen (“The Waning of the Middle Ages”, many editions and translations). The principal pre-revolutionary study on mestnichestvo is A.I. Markevich, Istoriia mestnichestva v moskovskom gosudarstve v xv–xvii vv., Odessa, 1888. See also N.P. PavlovSil’vanskii, Gosudarevy sluzhilye liudi, Sankt-Peterburg, 1898, newly published together with another work (Liudi kabal’nye) by the same author, Moskva, 2001 (references below are to the 2001 edition), Ch. ii, 35–51; Sergeevich, Lektsii, 120–140; D’iakonov, 284–294; Kliuchevskii discussed mestnichestvo in Lecture xxvii, Kurs, ii, 145–156; In Soviet and post-Soviet times: Iu.M. Eskin, Mestnichestvo v Rossii xvi–xvii vv. Khronologicheskii reestr, Moskva, 1994, containing a register of mestnichestvo cases from 1332 to

The Prince’s Government

385

The system owed its name to mesto (place), which referred to the place or rank of a person within his own family and the rank occupied by the family in relation to other boyar families. The ranking of persons within the family went back to Kievan traditions, and perhaps even further, and was based on the idea of the unity of the family. It was the same principle which was at the basis of the Rurikid system of succession, discussed before. It was elaborated in numerous more detailed rules, or at least usages. The main principles within the family were that older generations preceded younger ones and that within one generation age was the decisive criterion. But these principles were refined in several ways. The fourth son, for instance, was considered of equal rank to the eldest son of the eldest son; they were sverstniki (coevals), which in fact they often were. The proliferation of princes of Rurikid stock and perhaps also the influx of Gediminid and other princes can be identified as major factors which created the need for some sort of hierarchical arrangement. The ranking of princely and other boyar families was obviously more difficult to establish than the ranking within a single family. The main guideline would be the historical record: the importance and status of the family in the past, the service positions occupied by their individual members, and of course also the favour they found with the ruler. In theory, every nobleman belonging to a princely or boyar family would have a fixed place in the government hierarchy. In fact, the system was anything but stable or static, as every new appointment could change the balance. This explains to a great extent why such importance was attached to holding on to and improving one’s position and that of one’s family on the ladder. Any appointment which involved a deterioration of this position in the eyes of the appointee would affect not only his own prospects, but also those of his family members. The claimant in a typical mestnichestvo dispute would, for instance, submit that the post which had been proposed to him (such as deputy governor of a particular town) would involve him in serving under a governor whose uncle had served as deputy governor of another town under the claimant’s ­father as governor. As the mestnichestvo system became embedded, such disputes would be dealt with by a panel of boyars, and sometimes by the grand prince (later, the tsar) himself. It has been noted in the literature that everybody, including the 1717; Iu.N. Mel’nikov, “Mestnicheskie dela v razriadnom proizvodstve 80-kh godov xvi v.”, Vspomogatel’nye istoricheskie distsipliny, Tom ix, Leningrad, 1978, 222–235; K.V. Baranov, “Akty xvi – nachala x vii veka iz mestnicheskikh del”, A.V. Antonov (ed.), Russkii diplomatarii vii, Moskva, 2001, 35–51; Iu.M. Eskin, “Mestnichestvo, rodoslovtsy i rodoslovnye «paskvili»”, V.I. Ianin (ed.), Ot Drevnei Rusi k Rossii novogo vremeni. Sbornik statei: K

386

chapter 14

grand prince himself, took such disputes very seriously. Even Ivan iv (the Terrible), not averse to dealing ruthlessly with troublesome nobles, always displayed great patience and tolerance in mestnichestvo cases.18 A nobleman was expected and actually obliged to observe the system and to refuse an appointment which he considered to be beneath the dignity of his family and himself. In exceptional cases, he could be imprisoned for his refusal to accept a position proposed to him, or he could be appointed, without his agreement and as a punishment, to another post. When an appointment had to be made, the ranking of the different princely and boyar families had to be combined with the first ranking system (the ­internal family hierarchy). Precedents were of decisive importance in such situations, and the more recent the precedent, the more powerful. A special government department, the Razriadnyi prikaz, kept records of military and civil appointments (razriadnye knigi), which helped to solve the frequent disputes about precedence. The first of such registers appeared already during the government of Dmitrii Donskoi (1362–1389).19 Additionally, many families maintained their own registers, in order to have the necessary information at their disposal should the need arise.20 The system was in its heyday during the 16th century, but the strains i­ mposed on the state’s administration were then already beginning to show. Legislation by Ivan iv in 1550 allowed certain military appointments to be made “without places” (bez mest); the law stipulated that such appointments would not affect the status of the appointees.21 In the end, the mestnichestvo system, constricting the influx of new talent into the administration of the state, became too much of a burden. It had led to endless strife between the leading families22 and had seriously hampered the tsar in selecting suitable servants. In 1682, tsar Fedor Alekseevich abolished it and the registers were burned “to the joy of contemporaries and to the sorrow of future historians”, in the words of S.G. Pushkarev.23 18 19 20 21 22 23

70-­letiiu Anny Leonidovny Khoroshkevich, Moskva, 2003, 165–172; Iu.V. Ankhimiuk, Chastnye Razriadnye knigi s zapisiami za posledniuiu chetvert’ x v – nachalo x vii vekov, Moskva, 2005. 18 Cf. Pavlov-Sil’vanskii, op. cit., 74. 19 Ankhimiuk, op. cit., 29. 20 This is the main subject of Ankhimiuk’s work. 21 Texts in prp iv, 582–586. 22 Cf. Iu.M. Eskin, “Mestnichestvo, rodoslovtsy i «rodoslovnye paskvili»”, V.L. Ianin (ed.), Ot Drevnei Rusi k Rossii novogo vremeni. Sbornik statei. K 70-letiiu Anny Leonidovny Khoroshkevich, Moskva, 2003, 165–178. 23 Pushkarev, Dictionary, 60.

The Prince’s Government

387

The functionality of mestnichestvo is quite clear when looked at from the perspective of the individual nobleman, for whom it was a vehicle to secure and improve his position in the government hierarchy. For the grand prince, mestnichestvo was first of all a much-needed instrument to maintain a balance between the competing ambitions of aristocratic groups, particularly the old nobility of the Moscow principality and the influx of service princes. Then it also served to weaken the tendency towards forming alliances among the aristocracy; it favoured an attitude of looking primarily after the interests of one’s own family or clan. It also helped to integrate the prince’s former contenders, ruling families of principalities absorbed by Muscovy, into the Moscow aristocracy. Once these factors lost their potency, the meritocratic drawbacks of the system became more manifest, and after several attempts to alleviate them proved to be inadequate full abolition was inevitable. Nevertheless, disputes based on the mestnichestvo concept continued sporadically into the 18th century.24 Non-princely Servants Chapter 19 discusses princes, boyars and other members of the elite (‘nobility’) of medieval Russia (along with other social classes), from the point of view of the rights and duties of the individual. In medieval Russia, elite status was overwhelmingly dependent on a person’s service to the prince, much more so than in medieval Europe. The present section looks at the various components of the elite from the point of view of the services they provided within the court and the administration of the prince, particularly in Muscovite Russia. After the princes (ruling princes, their close relatives ruling apanage principalities, and service princes) came the boyars, a category not sharply defined at the bottom end. At the top there were the “introduced boyars” (boiare vvedënnye), constituting the circle of intimate advisors and courtiers of the prince, and the boiare putnye, who were in charge of a put’, a department entrusted with the running of a part of the prince’s estate. The put’ system probably ­developed from the simpler arrangements of Kievan times, where we know about the prince’s stable master (arts. 23 Short Pravda, 12 Expanded Pravda). The growth of the prince’s estates engendered the setting-up of a more elaborate management structure, and in later centuries one encounters special offices concerned with falconry, horses, sheep farming, bee-keeping, hunting, and the provision of food and drink. The boyars in charge of such departments enjoyed such titles as sokol’nichii, koniushii, lovchii, chashnik, stol’nik. ­According to Kliuchevskii, who is the main authority on this subject, the puti represented an administrative system which paralleled and ran across the regular system 24

24

Cf. Ankhimiuk, op. cit., 209–210.

388

chapter 14

of ­local administration, because particular princely estates, and even other ­estates, were exempted from the regular system and subordinate in almost all matters to the put’ to which they belonged.25 As mentioned above and discussed at greater length in the section on boyars in Chapter 19, boyar status, in Muscovite times, depended primarily on the office occupied by the incumbent. Boyars would of course strive towards securing similar positions for their sons, and in such a way boyar families arose and the status became semi-inheritable. Nevertheless, boyar offspring might not always be socially successful and then would descend to the official status of “boyar children” (deti boiarskie). Boyar status, in sum, had a dual character; it could be granted to a high official by the prince, while also all (male) members of a family, of whom a number served in high state offices, could be regarded as boyars. Immediately below the boyars in the court hierarchy came the okol’nichie, originally persons serving “around” (okolo) the prince himself. The office is first mentioned in 1284. Unlike the boyar, the okol’nichii was a functionary, an official, who could be assigned a more specific duty (such as military commander, or urban governor); there were usually some okol’nichie among the intimate advisors of the grand prince. A prince or boyar could be appointed as an okol’nichii. The Boyar Duma The question of the councillors of the Moscow grand prince is connected with a major controversy among pre-revolutionary Russian historians.26 ­Kliuchevskii had advanced the thesis that there was a permanent governmental agency, which he called the Boyar Duma and which he regarded more or less as the co-owner of governmental power.27 This thesis was strongly supported by Vladimirskii-Budanov,28 but rejected by Sergeevich.29 Among Soviet ­historians 25 26 27 28 29

25

V.O. Kliuchevskii, Boiarskaia Duma Drevnei Rusi, Moskva, 1902 (3rd ed., repr. 1994), 100– 110. See also G.V. Vernadskii, Istoriia Rossii. Mongoly i Rus’, Tver’/Moskva, 1994, 368–370. The parallels with the traditional court offices of marshal, chamberlin, butler and numerous other minor ones in medieval Western Europe are obvious. 26 A survey in P.P. Tolochko, Vlast’ v Drevnei Rusi x–xiii vv., Sankt-Peterburg, 2011, 32–50. 27 B.O. Kliuchevskii, Boiarskaia Duma Drevnei Rusi, Moskva, 1882 (1st ed., last and 5th ed. in 1919); it was first published in instalments in Russkaia Mysl’, 1880. The 3rd edition (1902) was reprinted in Moscow in 1994, together with Dobrye liudi Drevnei Rusi (orig. 1892). 28 Vlad.-Bud., Obzor, 70–74. There were some differences between Kliuchevskii and Vladimirskii-Budanov, concerning the origin and composition of the Boyar Duma. 29 Sergeevich, Drevnosti ii, 371–384; 454–517.

The Prince’s Government

389

there was little interest in the question. Iushkov agreed in principle with ­Sergeevich that there was no evidence for the existence of a clearly defined governmental agency, such as Kliuchevskii’s Boyar Duma.30 In Zimin’s posthumously published work on the rise of the boyar aristocracy, the Boyar Duma appeared as a basic concept, because Zimin looked in particular at the higher court and government positions occupied by service princes and boyars, taking for granted that such positions entailed the incumbent being a member of the Boyar Duma. The principal evidence adduced by Zimin for the existence of such a body was a statement by Lenin about its role during the 17th century.31 We shall return to this question in Chapter 31, on the Tsar’s Government. The Code of 1497 of Ivan iii had a preamble stating that “In September of the year 7006 [1497] the grand prince Ivan Vasil’evich of All Russia, together with his children and his boyars, decreed [as follows] on courts”. This was by no means the only indication of the practice of the Moscow prince (and some of the remaining contemporary princes) in conducting government business, legislation in particular, in council with his advisors, and to that extent it is justified to speak of the existence of a Boyar Council or Boyar Duma in Muscovite times. The institution lacked a formal structure and its ad hoc membership depended obviously largely on the grand prince’s discretion. The limited evidence suggests that there would always be several boyars and okol’nichie, as well as selected members of the lower nobility (dumnye dvoriane) and highranking secretaries (dumnye d’iaki). Such lower noblemen and secretaries, selected to serve as councillors to the prince, constituted the next two ranks of court functionaries. Like boyars and okol’nichie, they were also employed in other responsible positions by the prince, as military commanders, envoys, and heads of regional or local government. These four ranks of officials, participating in the prince’s government at the highest level (the ‘Boyar Duma’), were followed by four other categories of court officials, equally employable for duty elsewhere in the principality of Muscovy. They were the stol’niki, the striapchie, the dvoriane moskovskie, and the zhil’tsy. The stol’niki (from stol, “table”) originally served at the prince’s table during banquets and are mentioned as early as in the 13th century. The next three categories arose later on.32 The “Moscow 30 31 32

30 Iushkov, Stroi, 340–345. 31 Lenin, Collected Works (Polnoe Sobranie Sochinenii), T.1, 153–154. Quoted by Zimin, Formirovanie, 13. 32 G. Kotoshikhin, a secretary (pod’iachii) at the Posol’skii prikaz (the foreign department), fled to Western Europe in 1664 and settled in Sweden, where he wrote a description of the Russian state during the rule of tsar Aleksei Mikhailovich. It was first published in Russia in 1840 under the title O Rossii v tsarstvovanie Alekseia Mikhailovicha. The numbers

390

chapter 14

noblemen” (dvoriane moskovskie) were selected noblemen who had received estates near Moscow in order to provide an immediately available corps of armed servants. The various classes of servants of the grand prince must be distinguished from the specific court and government functionaries, although the two categories are connected. Mentioned above were some of the highest offices such as the falconer (sokol’nichii), the master of the prince’s hunt (lovchii), the master of the stable (koniushii), the cup-bearer (chashnik), who were in charge of important departments and were selected from the boyar class. Other offices of high rank were those of pechatnik (keeper of the seal), postel’nichii (chamberlin), and kaznachei (treasurer).

General Taxation

After the income from his own domains, taxation was the second major source for the prince’s treasury. If taxation is understood in a broad sense as all financial burdens imposed on individuals or groups by a public authority, then the oldest form is tribute, exacted, not from one’s own population, but from outsiders. Such tribute is frequently encountered in the chronicles in very early times and remained in existence all through the period of Kievan Russia, down to the tribute imposed by the Mongols. It is discussed in a previous chapter in the section on tribute and inter-tribal relationships in early Kievan Russia. From the 14th century on, tribute (dan’) appeared as a general tax imposed by the prince on his own subjects. This would not affect individuals, but rather corporate or individual entities representing specific communities, such as owners of large estates, towns, or monasteries. It was intimately connected with the system of fiscal immunities. Beneficiaries of fiscal immunities were often exempted from all impositions, except dan’.33 Taxation in the Russian middle ages is treated extensively by Sergeevich, and more briefly by later authors.34 33 34

of the four lower categories of court officials, as given by Kotoshikhin, give an indication of their relative importance: about 500 stol’niki, 800 striapchie, 1200 dvoriane moskovskie, and 2000 zhil’tsy. 33 Cf. S.M. Kashtanov, Finansy srednevekovoi Rusi, Moskva, 1988, 6–10. 34 Sergeevich, Drevnosti iii, 164–384; S.A. Kozlov, Z.V. Dmitrieva, Nalogi v Rossii do xix v., Sankt-Peterburg, 2001 (2nd ed.), first and second lecture (4–28); S.M. Kashtanov, Finansy srednevekovoi Rusi, Moskva, 1988.

The Prince’s Government

391

For a more orderly discussion of the subject it may be useful to point out several distinctions, using such criteria as: “To whom (person or entity) does the tax apply?” and “What is being taxed?”. One distinction, then, is between general and special taxation.35 Special taxation is imposed on specific activities (such as trading or transport) and therefore directly affects only persons or entities engaged in such activities. It can often be justified, not as taxation proper, but as a fee for services rendered. The most obvious examples are the numerous kinds of payment connected with the administration of justice. (They will be discussed in a special section in Chapter 22, on Courts.) For many forms of special taxation, however, it would be difficult to point to a specific service provided by the authority imposing the tax. General taxation affects in principle the entire population and aims at the accumulation of means for the use of the government (the prince); such taxes are also often designated as direct taxes (taxes on income and property). Some general taxation, however, may be earmarked for specific purposes (such as road maintenance or military equipment). A second distinction looks at the tax debtor, who may be an individual person or a collective or corporate entity (a town or village, a monastery, landed property, a merchant guild, a homestead, etc.). The two distinctions are not unrelated, because taxation of specific activities will more commonly affect individuals, while corporate entities will probably pay most of their taxes in some form of general taxation. In this respect one should bear in mind that today’s unspecified citizen as a taxpayer was unknown in a medieval setting; every individual belonged to a specific social group and such groups were subject to different systems of taxation. A third distinction could be made by looking at the authority imposing taxation. This would usually be the prince (or central government), but also other powers, such as municipal government or church authorities. The typically medieval absence of a strict distinction between public and private law is relevant in this respect. The obrok paid by the numerous peasants living on lands of the prince could be regarded as a tax, while obrok was also paid by dependent peasants of private landowners (to those owners). Obrok, as a rather general term for a permanent material obligation imposed on the peasantry, could be payable as a certain part of the harvest (izdol’e); the usual amount was one fifth (piatina). The obrok could also be fixed beforehand; this was called 35

35

The distinction general/special taxation is not quite the same as the distinction direct/ indirect taxation. A sales or value-added tax is usually considered an indirect tax, while it is also a general tax, levied, not on property or income, nor on specific activities, but on the (almost) entire expenditure of the population.

392

chapter 14

posp, occasionally replaceable by monetary payment.36 In other words, and more generally, the interwovenness of public and private elements affected also the definition of taxation, which was inevitably less clear than it would be nowadays. The difficulties in applying modern fiscal categorizations to medieval Russian tax law probably led Sergeevich to abandon all efforts to systematize his treatment of the various taxes applicable in medieval Russia. The general term tiaglo (“burden”) was used by him as a collective designation for all kinds of taxes, from the very general to the very specific, and understood in an even wider sense than the one indicated above (“all financial burdens imposed on individuals or groups, imposed by a public authority”), because under tiaglo Sergeevich also gathered non-financial impositions (such as payments in kind, or obligatory works). Sergeevich also discussed dan’ (“gift”, “tribute”) among the different forms of tiaglo, and the various meanings of the term through the ages. As pointed out above, its earliest meaning referred to the payment of tribute (in money or in kind) by a subject population, something that could be regarded as an embryonic form of general taxation. Later, dan’ came to include all kinds of payments to be made to officials of the prince, and after the Mongol invasions dan’ usually referred to the fixed annual money payments to the foreign rulers. When in the end the Moscow grand prince succeeded in becoming the exclusive collector of the Tatar dan’ (then also known as vykhod), and subsequently was able to discontinue the payment, he had acquired an effective system for imposing and collecting general taxation. Along with dan’, korm is one of the oldest forms of taxation, appearing already in the Short Pravda in art. 42, the pokon virnyi (law on the collection of bloodwite, the payment to be made to the prince in a case of homicide). This provision (which probably dates from long after the time of the sons of Iaroslav the Wise, the assumed authors of the second part of the Short Pravda, because it refers to fasting during Lent, which was not yet widely observed in 11th century Russia) fixed the daily rations to which the collector of bloodwite (virnik) and his assistants were entitled. Most rations were accompanied by a monetary equivalent. Korm means “forage”, “fodder”, and kormlenie “feeding”. It was the basic form of paying princely officials who were exercizing their functions within the principality and it appears in numerous legal documents, laws as well as charters. It could easily be replaced by cash payments and ­eventually 36

36

Kozlov, Dmitrieva, op. cit., 24.

The Prince’s Government

393

(in the 16th century) it was abandoned in favour of direct payments to the prince’s coffers (obrok). The basic unit of taxation was the sokha (lit. plough). The size of the sokha differed from one part of the country to another, depending on the quality of the land and its status (state, private, church land, etc.). In the northern regions, esp. the old Novgorod lands, a so-called small sokha was in force which comprised only a few farm households; in other Muscovy regions the sokha was much larger.37 In towns, the urban sokha would comprise a number of households, in the range of 40–160, depending on the wealth of the individual households and allowing also for local differences. From the 15th century on, a parallel system of general taxation was in ­existence, based on the vyt’ (“share”), applicable mostly in the countryside, and taking into account (as in the sokha system) the quality of the land. The size of the vyt’ was also variable, but much smaller than the sokha. Its exact nature is much disputed.38 Originally, at least in Novgorod, vyt’ may have been an annual payment to the lord or master of the peasant; unlike the sokha, it was imposed on the individual peasant household.39 In addition to general taxation in the form of dan’, there were a few other general forms of taxation in Muscovy, primarily the iam, intended to cover the upkeep of roads and related expenses, and an urban tax (gorodovoe delo) for building and maintaining fortifications, as well as an imposition called posokha, requiring the supply of a workforce and financial means for military needs.40 In the same category was the duty to put up bridges (mostovshchina). General taxation, by its nature, targeted a settled population, which meant mostly the great mass of rural inhabitants and then also town populations. Special taxation consisted primarily of a great variety of commercial taxes (discussed in Chapter 15 in the section on trade regulation and taxation) and further of all kinds of court fees and payments connected with court proceedings (see Chapter 22). For the sake of completeness, taxation as a source of income for the Church (mainly in the form of tithes and court fees) should be mentioned (see Chapter 21). 37 38 39 40

37 38

39 40

Cf. Pushkarev, Dictionary, s.v. sokha, 136–137; Kozlov, Dmitrieva, op. cit., 22–23; Sergeevich, Drevnosti iii, 318–341. See A.L. Shapiro, Z.V. Dmitrieva, “Vyt’ – edinitsa oblozheniia v Russkom gosudarstve xv– xvii vv.”, S.B. Lobachev, A.S. Lavrov (eds.), Srednevekovaia Rus’. Sbornik nauchnykh statei k 65-letiiu so dnia rozhdeniia professora R.G. Skrynnikova, Sankt-Peterburg, 1995, 94–135. Cf. Sergeevich, Drevnosti iii, 352–359. Kozlov, Dmitrieva, op. cit., 22–23.

394

chapter 14

Taxes Imposed by the Tatar Khan During the first few years after the Mongol conquest of Russia, the khans apparently followed the taxation system preferred at that time within the empire, of selling taxation rights to private tax collectors (otkupshchiki).41 In Russia (in the ‘Golden Horde’), this task was soon taken over by special officials, baskaki, but tax collectors from the great khan in Karakorum were still active in the 1260s. Then a general census was organized in Russia in 1257, emulating similar measures taken earlier in other parts of the Mongol empire. Its initial unit of calculation was the individual household.42 A “great baskak”, in charge of tax collection in the grand principality of Vladimir, was the head of the revenue service for the whole of Russia. The baskaki toured the country, accompanied by armed detachments, enabling them to enforce payment. They also headed a multitude of subordinate Mongol/Tatar officials which constituted the mainstay of Tatar rule in Russia. After an uprising in Tver’ in 1327, the system of tribute collection through the baskaki administration was discontinued by transferring the obligation to the grand prince of Vladimir; the grand princes of Tver’, Riazan’ and Nizhnii Novgorod were responsible for tribute collection in their own principalities.43 Other princes (apanage princes) were usually prevented from having direct contact with the Horde (Ordu ne znati) in their treaties with the grand prince. Novgorod enjoyed a somewhat special fiscal regime with regard to Tatar tribute; it paid a tax called chernyi bor (“black collection”) to the grand prince of Vladimir.44 As mentioned above, the annual tribute paid by the grand princes to the khan was known as vykhod (lit. “way out” or “exit”).45 Its effect was u ­ ndoubtedly 41 42 43 44 45

41

42 43

44

45

Most of this survey is based on A.N. Nasonov, Mongoly i Rus’, Istoriia tatarskoi politiki na Rusi, Sankt-Peterburg, 2002 (orig., Moskva, 1940), 220–231; the 2002 edition is published together with “Russkaia Zemlia” i obrazovanie territorii drevnerusskogo gosudarstva, by the same author (another edition of Mongoly i Rus’ was published in Sankt-Peterburg in 2006). In later times, other units were applied: villages, ploughs, working men, etc. Cf. S.A. Fetishchev, “«Dan’ velikaia tiazhkaia …»”, A.Iu. Dvornichenko (ed.), Russkoe Srednevekov’e. Sbornik statei v chest’ professora Iuriia Georgievicha Alekseeva, Moskva, 2012, 270–279, at 274–275. The subject of a special study by V.L. Ianin, “«Cherny bor» v Novgorode xiv–xv vv.”, in a book Kulikovskaia bitva v istorii i kul’ture nashei Rodiny, Moskva, 1983, 98–107 (not available to me). First mentioned in the 1375 treaty between the Moscow and Tver’ grand princes, ddg No.9, 25–28. See also S.M. Kashtanov, Finansy srednevekovoi Rusi, Moskva, 1988, 7.

The Prince’s Government

395

to strengthen the position of the grand prince (esp. the grand prince of Vladimir/Moscow), who was able to combine the collection of the vykhod with that of other taxes due to him. And once Tatar power waned and the grand prince could get away with withholding the vykhod, it was not abolished but flowed into the prince’s own coffers. This was explicitly provided by several wills of Moscow grand princes.46 A special category of serviceman, called the deliui, was involved in the delivery of the moneys collected for the benefit of the khan. Most of the information on the deliui derives from wills and treaties of the Moscow grand princes, where they are first mentioned in a treaty between grand prince Dmitrii Donskoi and his cousin Vladimir Andreevich Khrabryi (“the Brave”) of Serpukhov of 1364–1365.47 The deliui were rewarded for their services by being allotted the use of parcels of land, which were taken back when they left the prince’s service. The position and status of the deliui remained obscure for a long time, but it is clear at least that they constituted an elite corps of soldiers, closely tied to the prince himself. With the evaporation of Tatar power, the deliui also faded away.48

The Prince as Judge

Although the separation of powers is a comparatively modern concept, adjudication as a specific function of government is clearly observable in Kievan Russia. The Testament of Vladimir Monomakh, as related above, listed “rendering justice to the people” between “deliberating with the druzhina” and “hunting” as one of the daily activities of the Prince. The Chronicle entry for 996 reports the much commented-on altercation between St. Vladimir and the bishops, who reproached the prince for not punishing robbers and advised him that he had been appointed by God in order to chastise the wicked and reward the good, adding: “It is proper to punish the robber, but only after a trial”.49 (The prince took their advice.) 46 47 48 49

46

47 48 49

E.g. in the second will of Dmitrii Donskoi of 1389, ddg No.12, 33–37: “And if God changes the Horde and my children will not have to pay vykhod to the Horde, each son will take the tribute [payable] for his own udel [apanage]”. ddg No.5, 19–21, at 20; ddg gave the date as “around 1367”. I.G. Dobrodomov, V.A. Kuchkin, “Deliui srednevekovoi Rusi”, dgve 1998, Moskva, 2000, 88–98. No so ispytom; psrl i, 127.

396

chapter 14

The different layers of the rp do actually show the gradual emergence of the prince as a judge. In the oldest layer, the Pravda of Iaroslav, evidence for the ­activity of the prince as a judge is weak and, at the same time, there are still obvious traces of self-help. The latter are to be seen not only in the well-known references to blood feuds and vengeance (arts. 1 and 2), but also in several other provisions. Art. 14, for instance, expressly enjoined the owner who had found his property in somebody else’s possession not to take it back outright, but to observe a specific procedure. The rule implied that simple self-help had been the practice previously. Some indication of the existence of courts is given in the provisions of Iaroslav’s Pravda which refer to eyewitnesses (vidoki, arts. 2 and 10), and the reference to the oath in art. 10. In this provision the oath (rota) appears as an alternative for producing eyewitnesses; foreigners (­Vikings: Variagi and Kolbiagi), who presumably could have difficulty in producing the required two eyewitnesses, were allowed to swear an oath. It is entirely possible, on the other hand, that the witness testimony or oath, referred to in these provisions, was not connected with court proceedings, or at least not with the court of the prince. In sum, therefore, the evidence for the existence of a prince’s court in the Pravda of Iaroslav is at best ambiguous. In the next chronological layer of the Short Pravda, the Pravda of Iaroslav’s Sons, there is more positive evidence for the existence of the prince’s court in art. 38, which provided inter alia that the thief apprehended during the night on the prince’s estate, if he had not been killed in the process, had to be brought to the prince’s court the next day. This provision suggests that the function of the prince as judge grew, at least in part, out of his position as lord of his domain. The other main root of princely jurisdiction was in his position of ruler over a territory much larger than his own domain, viz. his principality. In the latter capacity, as “head of state” instead of “lord of the manor”, the prince would act, at least in the earlier period, in concert with his druzhina, in particular the most senior boyars. In the Expanded Pravda the above-mentioned provisions of the Short Pravda return (in amended form), but additionally, in the second part of the Expanded Pravda, starting with the Statute of Monomakh, references to the court of the prince are numerous and explicit. One of the most informative examples in this respect is art. 56, providing that a zakup will not be reduced to slavery when he has left his lord openly, in order to go to the prince to sue for the money owed to him, or when he has gone to the judges to complain of an injustice inflicted by his lord. The rule makes clear that the prince could either involve himself personally in settling such master-servant disputes or leave matters to his judges. The same point is made by the rule in the Church ­Statute  of Vladimir, forbidding the prince or his judges from interfering in

The Prince’s Government

397

c­ ases  assigned  to  church courts. This rule belongs to the oldest part of the Statute. The explicit reference to the prince and his court in this Statute, along with the Chronicle reference from 996, is clear evidence of the early appearance of princely jurisdiction, exercized both by himself and by his appointed judges. This jurisdiction continued all through the Kievan era, in tandem with church jurisdiction in a great number of cases. In Novgorod and Pskov (see Chapter 16), the prince’s court functioned alongside the courts established by the city authorities.

The Prince as Legislator

On Legislation in General Before moving on to the more specific subject of the prince as legislator in medieval Russia, some general considerations concerning legislation may be appropriate, elaborating on what was put forward in the section on the definition of law in Chapter 1.50 The emergence of legislation in the sense of authoritative and generalized statements about law, fixed in writing, can be viewed as taking place in two distinct but interrelated processes. Legislation can be seen as the outgrowth of custom and customary law. Potential conflicts in early societies were often avoided through informal procedures or, if the latter were unsuccessful, by reference to customary law. Once a central authority had arisen and acquired sufficient power, it could attempt to introduce alterations in the existing body of customary rules. Much early legislation reflected therefore the active interference of a central authority in societal affairs and was then in opposition to pre-existing customary law, although it was rooted in it. But legislation can also be seen as an outgrowth of adjudication, the settlement of disputes by specific dispute-solving agencies, such as judges and courts. While customary law can operate perfectly well in the absence of legislation, the emergence of adjudication (in the sense of dispute settlement by courts and similar agencies) will inevitably entail the birth of the legislative process. Every case decided acquires to some extent a power of precedent, and constitutes the embryo of a legal rule. Generally, repetition is the most important factor, because the more a certain practice establishes itself, the more difficult and undesirable it will be to deviate from it. Nonetheless, a single 50

50

For the general conceptual framework of this section, see my “Law’s Beginnings”, F. Feldbrugge (ed.), The Law’s Beginnings, Leiden/Boston, 2003, 255–280.

398

chapter 14

d­ ecision in a momentous case may all by itself acquire a strong effect for the future. As the precedent is followed in similar cases, the rule solidifies and it will become increasingly unlikely that the deciding agency will depart from established practice; at the same time, members of society, anticipating the position to be taken by the court, will adjust their conduct accordingly. Then the rule created by the original decision (or by a whole series of decisions) changes its character: it is no longer primarily a guideline for the court itself in deciding future cases, but first and foremost a generalized norm regulating citizens’ behaviour. The two processes described are related, because one of the first areas in which an emerging central authority will express its ambitions will be in the solution of certain social controversies. In other words, one of the first functions to be assumed by an arising new power will be that of judge. Legislation in the full sense is present when the function of establishing general rules is detached from adjudication. This takes place when the central authority is able to bypass the judicial process and achieve the desired regulatory effect more efficiently by enunciating and publishing its new rules directly to the public. A final corrective remark is to be added. Modern legal anthropology has demonstrated that customs and customary law are not to be regarded as rigid and immutable entities to which the societies in which they operated were helplessly subordinated. Such societies were usually in possession of procedures capable of adapting the body of custom to changed circumstances and of handling disputes which occurred outside the normal ambit of customary law. The transition from a traditional society living by custom and customary law to a society possessing central agencies adjudicating disputes and issuing general norms was therefore gradual.51 Legislation in Kievan Russia The transition indicated above is easily observable in Kievan Russia.52 The 912 and 944 treaties with Byzantium contained several references to the Zakon 51 52

51

52

See also the discussion concerning the relationship between customary and statute law (in connection with the Code of 1497) in Ocherki feodal’noi Rossii (OfR) between S.N. Kisterev (“Velikokniazheskii Sudebnik 1497 g. i sudebnaia praktika pervoi poloviny xvi v.”, OfR 11, Moskva, 2007, 404–461) and K.N. Petrov (“Imel li Sudebnik 1497 g. znachenie zakona v ego sovremennom ponimanii?”, OfR 12, Moskva, 2008, 365–382) and Kisterev’s prompt reaction (ibidem, 383–406). This transition is the central theme in D. Kaiser, The Growth of the Law in Medieval Russia, Princeton, 1980. The topic is somewhat underexposed in the otherwise vast Russian

The Prince’s Government

399

russkii; the meaning of this is quite clear: Zakon russkii was not Russian law, but Russian custom (see the section on the Zakon Russkii in Chapter 3). The 944 Treaty opposed the Zakon russkii to the Greek ustav and zakon, i.e. Greek law and custom. A possible reference to legislation is the 947 entry in the Chronicle about Olga’s campaigns in that year. She is reported as having passed through the land of Dereva, establishing ustavy and uroki. The latter term is translated by Sherbowitz-Wetzor as tribute. If ustavy means laws in this text, one can only guess about their contents. An early and unambiguous example of legislation is the famous story about Vladimir’s abolition of the vira in 996 (mentioned several times above). Vladimir’s legislative activity is expressed most clearly in his Church Statute. The most comprehensive illustration of the general views on the origin of legislation, outlined in the previous section, is in the various stages of the Russkaia Pravda. This subject was discussed at greater length in Chapter 4; it will be enough to recapitulate the main conclusions here. The oldest part of the rp, the Oldest Pravda or Pravda of Iaroslav, was still close to customary law and was predominantly a written record of ­customary  rules. The unusual circumstances surrounding its origin made it desirable to fix in writing what was already observed in practice. The amount of ­innovation was modest and, as pointed out in the previous section, it offered practically no evidence of the prince’s activity in a judicial or executive capacity. In the next phase, the Pravda of Iaroslav’s Sons, the picture was significantly changed. The preamble already heralded the legislative self-confidence of its authors: “The law established for the Russian Land”, at the assembly of the three princes and their councillors. The main thrust of the Pravda of Iaroslav’s Sons was towards increased protection of the prince’s interests. Where homicide or physical attacks threatened the prince’s servants or his property, the customary rules were amended. The prince himself, and not the direct victims, would then claim compensation. The genesis of at least some of the rules of the Pravda of Iaroslav’s Sons will have been in ad hoc decisions. The best example is art. 23 of the Short Pravda. and Soviet literature on the rp and other major monuments of early medieval Russian law. The principal authors usually contented themselves with a few pages. Cf. Sergeevich, Lektsii, 25–27; Vlad.-Bud., Obzor, 93–94; Presniakov, Lektsii i, 208–209; D’iakonov, Ocherki, 33–37; A.A. Zimin, “Feodal’naia gosudarstvennost’ i Russkaia Pravda”, Istoricheskie Zapiski, No.76, 1965, 230–275, esp. 234–240 (“Skladyvanie rannefeodal’nogo prava v kontse ix – nachale x v.”).

400

chapter 14

It follows arts. 19–22 which set a double fine (bloodwite) of 80 grivna for killing the highest princely officials (the ognishchanin/steward, the pod”ezdnoi/­ adjutant, the tiun). Art. 23 then set the same amount for the killing of the senior stable master (koniukh staryi), adding: “as Iziaslav established when the men from Dorogobuzh had killed his stable master”. In the parallel provision in the Expanded Pravda (art. 12) these words were edited out. Art. 27 of the Short Pravda (the killing of a slave nurse or a slave tutor) probably had a similar origin. As a general rule, the killing of a slave of the prince would entail a 5 grivna fine, but where trusted personal servants, albeit slaves, were concerned, the fine was increased to 12 grivna. The final parts of the Short Pravda were derived from special legislation. Art. 42 states: “This is the law on vira”, and art. 43 begins: “This is the bridgebuilders’ statute”. The close connection between judicial decisions and legislation is well illustrated in the amended version of the preamble to the Pravda of Iaroslav’s Sons, as incorporated in the Expanded Pravda (art. 2). This provision not only ­explicitly outlawed blood feuds and revenge, but also added the following words to the version of the Short Pravda: “and so was everything else, as it had been adjudicated by Iaroslav, confirmed by his sons”. The incipient legislative effect of Iaroslav’s judgments, inasmuch as they constituted important precedents, was thus fully expressed and confirmed by his sons. The separation of legislation from adjudication and, consequently, the emergence of legislation as a distinct function of the prince, took place during the early part of the Kievan era and was more or less completed during the reign of Iaroslav’s sons. Legislative Procedure It has been noted above that the prince in Kievan Russia did not rule as a pure autocrat, but in consultation with his family, members of his druzhina, and other influential persons. This would certainly also apply to legislation as one of the main governmental activities. The most common situation was that the prince would deliberate with his retinue, or at least with its higher echelon, his boyars. Numerous instances of this practice are reported in the Chronicle. In the two most prominent legislative landmarks, the Pravda of Iaroslav’s Sons and the Statute of Monomakh, only a small number of leading officials were mentioned as participating in the drafting of the law, not the boyars as a group. The Church Statute of Vladimir referred to consultations between the prince, his wife and children, presumably because the donations made to the Church in the Statute would affect the financial position of the entire family. The background of Vladimir’s donations to the Church is extensively reported in the

The Prince’s Government

401

Chronicle under the years 994–996 and this entry names several other groups of persons who took part in the consultations with the prince. Important governmental decisions were often taken on occasions when a large number of prominent persons had gathered for great religious events, followed by more worldly feasting. The 994–996 entries mentioned that Vladimir had summoned his boyars, lieutenants (posadniki) and town elders, and on another occasion, also his junior druzhina members (the grid’), military commanders (tysiatskie and sotniki), and ‘important men’ (narochity muzhi).53 Next, the Chronicle reported that Vladimir would consult his druzhina in matters of administration, war and government, and then, still within the 994–996 entry, followed the story about the consultations with the bishops concerning the abolition of the vira and the punishment of robbers. The obvious conclusion from all this must be that it was the prince who promulgated laws and ruled the country, but that he would normally submit his intentions to an appropriate sounding-board, his boyars and other leading officials as a rule, in order to strengthen the effect of his measures. Legislation after the Breakdown of Kievan Unity The Expanded Pravda is the last major achievement of central Kievan legislation and there is no serious doubt about its validity in medieval Russian principalities, apart of course from those that fell under Lithuanian-Polish rule. There is no consensus about the time of its final compilation, but a reasonably safe guess would be to locate it chronologically at some time between the beginning of the reign of Vladimir Monomakh (1113) and some time not too long after his death (1125) or that of his son, Mstislav the Great (1132). After these two princes, no Kievan grand prince would probably have had the prestige and power to legislate for the whole country. Although one has to reckon with the probability that most legislative materials from these times have been lost, it is hardly a co-incidence that it is exactly in this period that the first legislation from separate principalities begins to appear: the Church Statute of the Novgorod prince Sviatoslav Ol’govich (1137), the Smolensk Church Charters of prince Rostislav Mstislavich (1134–1136), the nucleus of the ‘Testament’ (Rukopisanie) of the Novgorod prince Vsevolod Mstislavich (tentatively 1135–1136), and others. On the whole, the legislative production from the principalities in the following two or three centuries is extremely modest; most of it is, understandably, from Novgorod and the only major monument is the relatively late Court Charter of Pskov. In view of the more favourable storage conditions in churches and monasteries, most of the 53

53

On the celebrations of 994–996, see Froianov, KRsp, 140–143; id., Nachala, 615–617.

402

chapter 14

available texts are also connected with the Church. The first significant text from the principality of Moscow is the Dvina Land Charter (1397–1398). The legislative procedures outlined above continued to be adhered to in most of the texts from the later era. Prince Rostislav of Smolensk stated that he had involved the (new) bishop of Smolensk in producing his statute, sdumav s liudmi svoimi (after consulting his people, or perhaps his ‘men’). Prince Vsevolod Mstislavich of Novgorod, quite elaborately, consulted his wife, the Novgorod archbishop, his boyars, the ten sotniki and the city elders. The relationship between the prince and various sections of the population of his principality changed fundamentally after the Mongol invasion. The prince owed allegiance to the khan and the admission of a ‘democratic’ component in governmental procedures was not in the interests of the khan or the prince. There is no reference to consultation by the prince in the Dvina Land Charter. Consultation of a select groups of leading noblemen continued however (see the section above on the Boyar Duma).

External Relations: Diplomacy and War

Treaties and Diplomacy The conduct of foreign affairs was one of the prince’s main duties. This is completely obvious from the attention paid to this matter in the chronicles and from the account given by Vladimir Monomakh in his Testament (“I concluded nineteen peace treaties with the Polovtsians”). Warfare and diplomacy formed a continuum, although their legal ramifications were very different. Diplomacy would ideally result in an agreement in which the parties pledged “peace and amity” or “peace and love”. The origins of Russian diplomacy go back far into prehistory; faint echoes can still be heard in the Chronicle in the oldest entries concerning events in the 9th century. 10th century treaties are well represented in the Chronicle through the four treaties with Byzantium. These treaties are of fundamental importance for the history of Russian law and have accordingly been discussed separately (Chapter 3). No treaty texts from the following two centuries have survived; the first one available is the 1191–1192 treaty between Novgorod and the Hanseatic League.54 This treaty explicitly confirmed an earlier treaty (staryi mir) between the parties. The Kievan princes had to deal with a great variety of neighbours, and this would of course be reflected in diplomatic practice. The formal treaties with 54

54

gvnp, No.28, 55–56; on the dating, see E.A. Rybina, “O dvukh drevneishikh torgovykh ­dogovorakh Novgoroda”, Novgorodskii istoricheskii sbornik, No.3 (1989), 43–51.

The Prince’s Government

403

the Byzantine empire, which had very long and extensive diplomatic experience, were very different from the oral agreements which must occasionally have been reached with Finnish tribes inhabiting the forests of Northern Russia. In the West, Russia’s neighbours (Poles, Czechs, Germans, Scandinavians) represented established medieval states, while in the East and South-East the Russian princes were faced with a multitude of nomadic tribes, occasionally coagulating into a state-like entity; Khazars first, then Pechenegs, Polovtsians and other Turkic ethnic groups. Moreover, once the Kievan empire started to break up into semi-independent principalities, relations between their ruling princes became a major area of interest (this subject was treated in a separate section in the previous chapter). The liveliness of diplomatic intercourse with the steppe nomads is illustrated not only by the above quotation from Vladimir Monomakh’s Testament, but also by the numerous marriages of Kievan princes with Polovtsian and other Turkic princesses.55 On the basis of his examination of the 10th century Russian-Greek treaties Sakharov has argued that the practice of treaty-making, the form of treaties, the manner of their conclusion, and their basic clauses, were regulated by wellestablished usage, some of it going back to the time of oral diplomacy.56 A central element in the treaty-making process was the ambassadorial speech, an institution which survived into the 11th century.57 The prince would give oral instructions to his envoys, ordering them to address the foreign ruler in certain words. The latter would then, depending on the status of the contracting partners, either reply in person to the envoys, thereby actually concluding the treaty (the envoys would return and report accordingly to their own principal), or the envoys would return together with a mission sent by the foreign prince, and the latter’s ambassadors would pronounce the words conveyed to them by their own ruler. Written treaties began with an identification of the ambassadors, then the substantive clauses would follow, and the treaty would be closed by provisions spelling out the confirmation procedure to be observed (the exchange 55 56 57

55

The third wife of Vladimir Monomakh was a daughter of the Polovtsian prince Aepa (1107); his cousin Sviatopolk, who preceded him on the throne of Kiev, had married a daughter of the Polovtsian khan Tugorkan as his second wife in 1094. At least a dozen other Russian-Polovtsian dynastic marriages are mentioned by de Baumgarten, op. cit., 69–70; in all cases except one, a Russian prince married a Polovtsian princess. 56 Sakharov, op. cit., 48–82. 57 Cf. D.S. Likhachev, “Russkii posol’skii obychai xi–xiii vv.”, Istoricheskie Zapiski, No.18 (1946), 42–55.

404

chapter 14

of oaths). After the conclusion of the treaty, gifts would usually be exchanged. The substantive part of the treaty would of course depend on the circumstances of the previous dispute, but the central clause, as noted above, was generally a mutual pledge of “peace and amity” or “peace and love”. The Prince at War Being involved in warfare of some kind was the rule rather than the exception for the medieval Russian prince. This is again shown abundantly by the chronicles and also by the descriptions in the Testament of Monomakh. If the prince was not at war, he was probably preparing for one or trying to undo the damage caused by the last war. The warlike actions displayed a great variety. During the early phase of ­Kievan Russia the most common type of hostilities were the raids against other tribes or foreign powers, undertaken for the sake of booty and glory, and usually of comparatively small scale. In later years the campaigns waged against pagan peoples, such as Turkic steppe nomads or Finnish forest dwellers, often lacking an obvious defensive or strategic purpose, seem to have been viewed as an outlet comparable to a hunting expedition. Then there were the more major armed conflicts with European nations, such as the Poles or Greeks. Of particular frequency were the mostly defensive wars with the steppe nomads, whose incessant incursions would ultimately culminate in the Mongol invasions in the first half of the 13th century and the end of Kievan Russia. If no external enemy threatened the peace, there were still numerous domestic upheavals. A town might rise up against its prince. Novgorod in particular had a long and often successful history of asserting its independence against its nominal prince. Dynastic conflicts between members of the Rurikid house also often escalated into open warfare (these have already been mentioned above). The variegated pattern of warfare in Kievan Russia resulted in greatly differing systems of military organization, command structure, the conduct of hostilities, treatment of the enemy, and the supply and rewarding of the troops, all these aspects being determined by the kind of armed conflict engaged in. Most writers distinguish between three kinds of armies.58 There was the small standing army represented by the prince’s retinue, the druzhina; then the large popular army, constituted by the male population in arms, gathered 58

58 Sergeevich, Drevnosti i, 595–600; Sergeevich’s chapter on the army in Kievan times (Drevnosti i, 595–618) is one of the most comprehensive treatises on the subject in the works of leading legal historians. See also Grekov, Kievskaia Rus’, 310–353; Iushkov, Stroi, 110–113 and 381–384; Froianov, KRsp, 185–215 and id., Nachala, 658–686. Shorter ­paragraphs

The Prince’s Government

405

at moments of national emergency;59 and finally the foreign forces, usually recruited for a specific campaign. As circumstances dictated, a combination of these three might present the most apposite answer to a particular military challenge. The druzhina and the different meanings of the term have been discussed above. What is envisaged here is what is referred to as the junior druzhina, consisting of professional warriors, living permanently at the prince’s court, supported and rewarded by him, and sharing his table at court and in the field. Great magnates maintained their own druzhiny (see the episode related before, concerning Sveinald’s druzhina). There has been much debate concerning the question whether the Kievan period was preceded by an era of “military democracy”, a time in which every able-bodied man would become a soldier at a moment of need.60 The question is obviously connected with the more general question concerning the nature of pre-Kievan society. It suffices to say that at least during the Kievan era the idea was very much alive. The main difference from the druzhina, apart from the aspect of size, was in the temporary character of such a popular army. It would be called up by the prince through a popular assembly (veche); for the purpose of a specific campaign or to face a specific emergency; when hostilities were over, or even earlier, everybody would go home to look after his own affairs (examples may especially be found in the Novgorod Chronicle). The Kievan princes also made extensive use of foreign auxiliaries, mainly Vikings (Varangians) and Turkic horsemen, especially Pechenegs and later Polovtsians.61 Vikings were especially active in the northern regions around Novgorod, and the Turkic cavalry in the South, in the Kiev area. Many of these soldiers were gradually assimilated and absorbed by the Slavic population. The supreme command of the army rested with the prince, but early on one already encounters generals or military commanders (voevody) in actual command of the troops.62 Where the druzhina, the members of which had a 59 60 61 62

59

60 61 62

on military organization in Kievan times in Vlad.-Bud., Obzor, 107–108; D’iakonov, Ocherki, 80–84. The reality of the concept of such a large force, consisting of the armed male population, assumed by most authors, is questioned by P.V. Lukin, “Sushchestvovalo li v drevnei Rusi narodnoe opolchenie?” A.A. Gorskii (ed.), Srednevekovaia Rus’, 9, Moskva, 2011, 47–98. This thesis was strongly advocated by Grekov, Kievskaia Rus’, 310–320. In the first major encounter with the Mongols-Tatars, on the Kalka River in 1223, a mixed Russian-Polovtsian force was defeated. According to Tolochko, voevody were professional military commanders, recruited from the higher echelon of the boyars, and appointed by the prince to head the druzhina, or

406

chapter 14

­personal connection with the prince, was concerned the latter was their leader. In such a comparatively small unit, no more elaborate command structure would be required, while a larger force would also need intermediate levels of command. The tysiatskii (discussed above, and in Chapter 16) was an officer of high rank in Kievan times, usually the commander of the detachment of the major city of the principality.63 His status as a local leader, although appointed by the prince, granted him a certain degree of independence. This explains, according to Sergeevich, why in later years the princes tended to replace the tysiatskie as permanent commanders of provincial detachments by voevody, generals, appointed for a specific campaign.64 As pointed out by several authors, supported by the sources, the command structure was in fact lax and fluid.65 A prince or commanding general often had little control over his army. Especially when a large army consisted of contingents from several principalities, there was little co-ordination between the commanders of the different units. Provincial detachments or auxiliaries from other nationalities might follow their own battle plans. Much would depend on the personality of the supreme commander. The treatment of prisoners and of the population of a foreign region showed a varied, although not quite unregulated, pattern. Pagans, such as the Pechenegs or Polovtsians, were treated more harshly than Christians. The pious clerk who recorded the Testament of Monomakh has the great prince listing, among his many glorious exploits, how he had four Polovtsian princes, fifteen chieftains, and two hundred other important prisoners killed and thrown into the river. Christian prisoners of war could be sold into slavery or ransomed, but were often returned at the conclusion of a peace treaty. Russian prisoners in domestic wars might fare better. While the druzhina was kept and rewarded by the prince himself, his means would usually not permit him to finance a large popular army. For this reason, the main source of payment was the taking of booty. The prince would in fact often need such proceeds from foreign campaigns also for keeping his druzhina satisfied, as is amply illustrated by several entries in the Chronicle. The opportunities for plundering were therefore an important factor in deciding on the course of a campaign and the direction of the strategy. This holds true not only for the early period, as shown by the reports concerning the ­campaigns 63 64 65

to command a specific army for a campaign; P.P. Tolochko, Vlast’ v Drevnei Rusi x–xiii vv., Sankt-Peterburg, 2011, 79–106. 63 See also Tolochko, op. cit., 107–130. 64 Sergeevich, Drevnosti i, 606–608. 65 Cf. Sergeevich, ibidem, 608–612.

The Prince’s Government

407

against Byzantium, but also in respect of later times. In a passage from the Hypatian Redaction of the Chronicle, the princes are heard rejecting the possibility of waging war on Novgorod territory; for the explicit reason that the Mongols had been there before them and that consequently there was nothing to be taken from the local population.66 While the prince was leading his army through his own territory or the lands of his allies, the property of the inhabitants would have to be respected; the army then would only be entitled to korm, to be fed and maintained. 66

66

Entry for 1277; quoted by Sergeevich, Drevnosti i, 615.

chapter 15

The Towns Introduction The town was one of the principal localities in the middle ages where people lived in close proximity; relations between them therefore tended to be more intense and complex. In this way the medieval town was an important locus of law and comparable, in this respect, to the court of a prince or a landowning monastery. During the early Kievan period monasteries were in fact inside, or in the immediate vicinity of, towns and so were the normal places of residence of the ruling princes. The major towns of the Kievan realm constituted therefore legal communities which embraced the smaller legal communities of princely courts and monasteries. This chapter will briefly investigate, first, the origin of ­Russian towns, ­different on several counts from the origin of towns in Western Europe. The ­following section will deal with the internal organization of the town, with the c­ haracter and function of the popular assembly, the veche, as the central ­topic. Then the town will be considered within its wider setting: its relations, ­especially ­treaty relations, with Russian princes and foreign powers. The next topic will be the ­urban population, its different strata and their respective rights and ­duties. The final general topic concerns the legal aspects of the ­urban e­ conomy; what in modern terminology would be called commercial law represents the ­principal subject. The city republic of Novgorod, which ruled over the enormous territory of almost the entire northern half of European Russia, was a dominant factor in medieval Russia and itself the subject of an extensive literature. The smaller city of Pskov gained its independence from Novgorod; its importance for legal history is that the Court Charter of Pskov constituted the most comprehensive piece of legislation between the Russkaia Pravda and the Law Codes of the unified Muscovy state (of which the 1497 Law Code, Sudebnik, of Ivan iii was the first). Novgorod and Pskov will be dealt with in a special Chapter (16). The towns of Western Russia developed in ways different from those in Central Russia and will be discussed in Chapter 17 (on Western Russia).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_016

The Towns



409

The Origin of Russian Towns

Notwithstanding the many general parallels between Kievan Russia and the early middle ages in Western Europe, the importance of towns in early ­Christian Russia presents a conspicuous difference with an overwhelmingly rural Western Europe. Towns occur frequently in the narrative of the Primary Chronicle, even where it discussed events from the pagan past. Several 19th century authors had already noted this point and the prominence of the topic only grew when archaeological discoveries during the last half century produced a mass of new material. During the more dogmatic periods of Soviet historiography scholars struggled with the problem of fitting the existence of towns into the Marxist ­framework for early medieval history. B.D. Grekov, the leading medievalist of the Stalin era, had offered a definition of the town which was for a long time regarded as authoritative and which was directly derived from the writings of Marx and Engels: … the gorod is a settlement with an industrial and trading population to some extent detached from agriculture. Such a gorod is the result of the divorcement of «industrial and trade labour from the agricultural», a ­result of the social division of labour.1 The definition did not allow the many towns referred to in the Primary Chronicle as existing in pagan times to be regarded as such (because a population as specified by Grekov’s definition was absent); all the same, occupation in agriculture and the raising of cattle remained a major element in the life of Russian towns, sometimes up to the 19th century.2 Grekov’s authoritative views did not prevent the further advance of Soviet historical scholarship on this topic, but they still presented a serious obstacle to an unbiased development of new insights. 1 B.D. Grekov, Kievskaia Rus’, Moskva, 1953, 98; the translation has been taken from the English edition of the same work, Kiev Rus, Moscow, 1959, 127. The section in French quotation marks is a direct quotation from Marx-Engels (4th Russ. ed., iv, 40–41). A more precise translation of Grekov’s words would be: “… the town was an inhabited place in which a population, engaged in crafts and trade and in one way or another detached from agriculture, was concentrated. Such a town was the result of the separation of «crafts and trade from agricultural labour», the result of a social division of labour.” 2 This point had already been made by M.G. Rabinovich, “O zemledelii v russkom feodal’nom gorode”, T.V. Nikolaeva (ed.), Drevniaia Rus’ i Slav’iane, Moskva, 1978, 129–133.

410

chapter 15

Archaeological and historical research has allowed us to date the emergence of towns in Russia to at least as early as the second half of the 8th century. This development was connected with the victory of the Abbasid over the Ommayad dynasty in the Middle East in 749 and the transference of the Arab capital from Damascus to Baghdad. This gave a strong boost to international trade because Baghdad had become the greatest centre for issuing ­silver coins (­dirhams). Furs from the North European forests were much sought ­after and transit trade along the Volga and other Russian rivers was the result. Transit trade needed points where traders could restock and goods could be unloaded.3 In all this one has to bear in mind that the northern part of Russia (and most of Northern and Western Europe as well) was almost completely covered by dense and impenetrable forests and that the slow-flowing rivers in the flat ­Russian country offered the only realistic means of long-distance travel. The earliest known Russian town is Staraia Ladoga (on the southern shore of Lake Ladoga, about 100 kms from St. Petersburg), the existence of which is documented in the second half of the 8th century. It was situated close to the point where the Volkhov river flowed into Lake Ladoga, which by means of the river Neva gave access to the Baltic Sea. Staraia Ladoga was surrounded by dense forest and marshes, sparsely inhabited at that time by Finnish tribes of hunters and fishermen. The population of Staraia Ladoga, judging from the material remains, would probably have been predominantly Scandinavian, but other ethnic elements (Slavs, Finno-Ugrians) were also present.4 The reason for its existence was to serve the transit trade between Scandinavia and the Middle East. Staraia Ladoga fitted Grekov’s definition in that transit and internal trade, together with local industry (pottery, metal-working, etc.), constituted the economic foundation of the settlement; the forbidding environment made agriculture almost impossible. Hunters from the surrounding forests might bring furs, but otherwise there was little contact between Staraia Ladoga and the region around it. 3 Cf. E.N. Nosov, “Rechnaia set’ Vostochnoi Evropy i ee rol’ v obrazovanii gorodskikh tsentrov Severnoi Rusi”, A.A. Gippius, E.N. Nosov, A.S. Khoroshev (eds.), Velikii Novgorod v istorii srednevekovoi Evropy. K 70-letiiu Valentina Lavrent’evicha Ianina, Moskva, 1999, 157–170. 4 Extensively on Staraia Ladoga, S. Franklin & J. Shepard, The Emergence of Rus 750–1200, ­London/New York, 1996, 12–21. Grekov, op. cit., 107, insists on the Slav character of Staraia Ladoga’s population and was followed for a while by Soviet authors. This point of view seems to be deserted now; see e.g. E.N. Nosov, “Proiskhozhdenie pervykh gorodov Severnoi Rusi”, M.B. Sverdlov (ed.), Feodal’naia Rossiia. Novye issledovaniia, Sankt-Peterburg, 1993, 5–10. Staraia Ladoga was known to the Scandinavians as Aldeigjuborg; see G.V. Glazyrina, T.N. Dzhakson, “Iz istorii Staroi Ladogi (na materialakh skandinavskikh sag)”, A.V. Novosel’tsev (ed.), dg sssr 1985, Moskva, 1986, 108–115.

The Towns

411

Similar urban-type settlements emerged, or at least are documented at a slightly later stage: Gnëzdovo (very close to Smolensk), Gorodishche (Riurikovo Gorodishche, Rurik’s Fort, outside Novgorod), Sarskoe Gorodishche (Sarskii Fort, near Rostov, south of Iaroslavl’) and others. These pre-Christian towns were invariably connected with long-distance North-South trade and located at confluences of rivers or other advantageous points on the shores of rivers. Apart from supporting trade directly by providing various services, they could also have administrative and military functions in controlling and protecting trade routes. Most scholars recognize that in the course of the following centuries other types of towns began to emerge, which were not initially and primarily based on trade. Some of the types mentioned are fortified villages, forts (built as a refuge and not necessarily connected with a village), domanial centres (controlled by a prince or lord), regional tribal centres (which might coincide with any of the foregoing), etc. Occasionally, as documented by several chronicle reports, towns did not come into being gradually, but were founded specifically by a prince, usually for military purposes. Of the older Soviet authors, Grekov dealt with towns briefly in his major work on Kievan Russia. Iushkov restricted himself to some tentative conclusions about the emergence of the earliest towns on the basis of fortified tribal settlements during the last pre-Christian centuries.5 The principal specific study was by M.N. Tikhomirov, who generally agreed with Grekov’s definition of a town.6 In later years other authors generally kept to Grekov’s outlines but added their own accents. Another prominent scholar who wrote extensively on Old Russian towns, P.P. Tolochko, regarded fortified centres of Slav tribes as their main origin. In this connection he gave more prominence to the military, administrative and religious functions of these early towns than to their role as centres of trade and crafts.7 I.Ia. Froianov, notable during the last decades of Soviet power for his nonconformist views on medieval Russian history, emerged as one of the leading historians in the post-Soviet era. Already in 1980, in his study of the socio-­ political history of Kievan Russia, he revived the idea launched before the Revolution by Presniakov, that before a unified Kievan state arose, there were a number of tribal states consisting of towns/tribal centres and the surrounding

5 S.V. Iushkov, Ocherki po istorii feodalizma v Kievskoi Rusi, Moskva/Leningrad, 1939, 20–24. 6 M.N. Tikhomirov, Drevnerusskie goroda, Moskva, 1956; republished with an introduction by S.V. Alekseeva, Sankt-Peterburg, 2008 (references below are to the 2008 edition). An earlier version appeared in Uchenye Zapiski mgu, vyp.99, Moskva, 1946. 7 P.P. Tolochko, Drevnerusskii feodal’nyi gorod, Kiev, 1989, esp. 34–48.

412

chapter 15

territory.8 The St. Petersburg school of medieval historians, of which Froianov was a central proponent, produced a number of valuable studies based on this idea, but, although the ‘tribal’ theory still has many adherents,9 it is by no means generally accepted.10 To an outsider the debate appears to be mostly about terminology. When does a tribal centre (which presumably will usually be fortified) become a town and when is such a town (with the surrounding area) to be considered a state?11 One point that stands out from the entire discussion of the problem is that a certain hierarchy among towns was a definite characteristic of Kievan ­Russia. A particular town, usually an old tribal centre, would emerge as the regional capital, the eponymous locality of the future principality. In later centuries the hierarchy was occasionally formalized in subordinate towns (such as Pskov) having the status of a suburb (prigorod) of the principal town (such as Novgorod). E.N. Nosov observed that in Northern Russia the ancient trading centres appeared more often as the nucleus around which the later towns 8

9

10

11

I.Ia. Froianov, Kievskaia Rus’. Ocherki sotsial’no-politicheskoi istorii, Leningrad, 1980, Ch. vii, 216–243. This work has been reprinted together with other major works by Froianov on Kievan Russia in Nachala russkoi istorii, Moskva, 2001, where the same chapter is to be found at 687–712. See also A.E. Presniakov, Lektsii po russkoi istorii, Tom i, Kievskaia Rus’, Moskva, 1938, Ch. xi (163–173). Presniakov’s lecture notes from the period 1908–1916 were not published at the time. For instance, S.N. Malovichko, “«Plemennaia» teoriia vozniknoveniia drevnerusskikh gorodov v trudakh otechestvennykh istorikov xviii–xx vv.”, V.M. Vorob’ev, A.Iu. Dvornichenko (eds.), Srednevekovaia i novaia Rossiia. Sbornik nauchnykh statei. K 60-letiiu ­professora Igoria Iakovlevicha Froianova, Sankt-Peterburg, 1996, 118–129. Also various publications by Dvornichenko, such as Gorodskaia obshchina Verkhnego Podneprov’ia i Podvin’ia v xi–xv vv., Moskva, 2013. Malovichko’s views were criticized by S.N. Kisterev, who concluded: “…this theory is a theory about nothing, and the discussions about it are meaningless.” S.N. Kisterev, “Zamechaniia k otsenke «plemennoi» teorii vozniknoveniia drevnerusskikh gorodov”, S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, vyp.3, Moskva, 2001, 247–256. The tribal theory can to some extent be traced to a local academic tradition. S.F. Platonov, who perished in the purges of 1933, was the teacher of A.E. Presniakov, the Leningrad medievalist who personified the transition from ‘bourgeois’ to Soviet historiography (he escaped the purges by his timely death in 1929). Presniakov was the teacher of V.V. Mavrodin (1908–1987), who was the teacher of Froianov and many of his colleagues, such as Iu. G. Alekseev. Another author, N.F. Kotliar, introduced the term “proto-town” (protogorod), to refer to a transitory phase between a fortified settlement and a town, but this does not really help. See N.F. Kotliar, “Rol’ gorodov v protsesse gosudarstvennogo osvoeniia territorii Galitsko-Volynskoi Rusy (do nachala xiii v.)”, A.A. Preobrazhenskii (ed.), Feodalizm v Rossii. ­Iubileinye chteniia, posviashchennye 80-letiiu so dnia rozhdeniia akademika L’va Vladimirovicha Cherepnina, Moskva, 1985, 117–122.

The Towns

413

developed, while in the South tribal centres with mainly administrative and military functions predominated.12 The narrative of the Primary Chronicle, which begins in earnest with the year 852, mentioned the existence of some 15–20 towns before the adoption of Christianity in 987; they were fairly evenly distributed across the territory of Kievan Russia.13 The larger ones developed into capitals of principalities once the unity of the Kievan state was dissolved. Soon after the conversion of Russia a church hierarchy was instituted, Kiev and Novgorod being the first episcopal sees (already in 988–989). With the emergence of semi-independent principalities, every regional capital tended to acquire its own bishop.14

Town Government and the Veche in Particular

As noted above, the greater population density in a medieval town also resulted in a greater density of law. A central element in the urban legal network was the town itself as a legal construct. Outwardly, the town appeared as a legal entity in its dealings with whatever authority to which it was subordinate (usually a prince), and with other external powers. Internally, the town was a major legal actor in relation to the urban community which it embodied, and to individual citizens and various groups or organizations of citizens. A general description of medieval urban government in Russia is made difficult by the differences between the numerous towns and by the developments taking place over time; and also of course by the scarcity of materials. Novgorod and Pskov are the best documented and will be treated in a separate Chapter (16). What is known about urban government in other places is almost entirely based on chronicle reports. It was only when the grand princes of Muscovy had emerged as the supreme rulers that a more uniform system came into being. Still, the basic axis of urban government was identical everywhere: prince and town population. In some cases, such as Novgorod and Pskov, the prince 12 13

14

E.N. Nosov, “Proiskhozhdenie pervykh gorodov Severnoi Rusi”, M.B. Sverdlov (ed.), Feodal’naia Rossiia. Novye issledovaniia, Sankt-Peterburg, 1993, 5–11. In more or less chronological order: Kiev, Novgorod, Polotsk, Belozersk, Izborsk, Rostov, Murom, Smolensk, Liubech, Chernigov, Pereiaslavl’, Iskorosten’, Vyshgorod, Pereiaslavets, Vruchii, Turov, Rodnia, and perhaps also Dereva. Ia.N. Shchapov, Gosudarstvo i tserkov’ Drevnei Rusi x–xiii vv., Moskva, 1989, 33–56, 107–114, presents the following list of pre-Mongol eparchies (with probable dates of origin): Kiev (988), Novgorod (989), Belgorod (991), Turov (996), Polotsk (±1000), Chernigov (±1030), Iur’ev/Kanev (after 1032), Pereiaslavl’ (before 1054), Rostov (before 1072), Vladimir-Volynsk (±1080), Peremyshl’ (±1120), Smolensk (1136), Galich (1136–1150), Riazan’ (±1200), Vladimir/ Suzdal’ (1214), Ugrovsk (after 1219)/Kholm (±1240), Lutsk (1220–1230).

414

chapter 15

was often marginalized, while other towns were in fact ruled by their prince or his agent. All kinds of intermediate arrangements occurred. In the earliest period, the Kievan prince ruled in Kiev and his sons and other relatives were appointed as his lieutenants (posadniki) in the other major centres. This pattern remained the same when semi-independent principalities arose; the princes of the major principalities normally resided in their capitals, although some princes did occasionally prefer other seats. Where there was no prince or when the prince was away from his normal residence for a long time, he would be represented by his lieutenant; the designation namestnik gradually replaced that of posadnik and remained for centuries the title of the urban governor. In rural parts the prince was represented by the volostel’, the head of a volost’, a region.15 The remuneration of the namestniki and similar regional princely agents was effected through the kormlenie system, payment generated by the region itself (shares in court fees and various taxes, deliveries in kind, etc.). There is more on the kormlenie system in Chapter 11 (Kormlennaia gramota). As to the urban population, the evidence available indicates that for several centuries some kind of general gathering of the town’s inhabitants regularly played a major role in the socio-political life of Russian towns. Such gatherings were often referred to as a veche. There has been much debate about the exact meaning of the term and about the question whether urban gatherings which were not specifically referred to as veche should still be regarded as veche meetings. The answer to such a question requires a criterion which allows us to determine whether a meeting was a veche or not, or, to put it differently, what the author of the chronicle had in mind when he used the term: just a meeting of a large crowd, or something more specific, and if so, what exactly. The terminology of the chronicles at least, where they mentioned veche meetings, gave rise to the conception that the veche was a more or less circumscribed institution, fulfilling certain functions, endowed by tradition with customary rights and duties. This resulted in a further step – the view, dominant before 1917 as well as in Soviet times, that the veche was a central part of the politico-legal structure of local and regional government during the Kievan era. Historians, and legal historians especially, then discussed various legal questions, such as the specific competence of the veche, its place in the

15

I.E. Andreevskii, O namestnikakh, voevodakh i gubernatorakh. Istoriia gosudarstvennogo upravleniia v Rossii (ix–xix vv.), Moskva, 2014 (orig., Sankt-Peterburg, 1864), is still a convenient survey of the local government system of medieval Russia.

The Towns

415

relationships between capital and subordinate towns, the procedures followed by veche meetings, the question of “unlawful” veches, etc.16 Modern authors, such as Lukin or Granberg, tend to stress the need to return to the sources.17 In this respect it is worth reminding oneself that almost everything we know about the veche is communicated by the chronicles. They inform us about meetings which were termed “veche”, and about apparently similar meetings which were not so identified. The legal nature of many Old-Russian institutions is beyond doubt because specifically legal sources, such as the Russkaia Pravda, tell us about their existence. The veche as such rarely turns up in legal documents and the question concerning its legal nature (if any) is therefore more difficult to answer. Moreover, the possibility or rather probability of “veche” not having the same meaning in the different sources must be kept in mind. It is therefore more convenient to start from a fairly loose and vague concept (“some kind of general gathering of the town’s inhabitants”) and elucidate this as we go along. The Veche: Sources and Literature The term veche is usually derived from the Old-Russian verb veshchati/vetiti, to speak, and more specifically: to discuss together in council.18 It occurs for the first time in the Primary Chronicle in a reference to a town meeting in Belgorod in 997, when the inhabitants were hard-pressed by a prolonged siege by the Pechenegs and came together to consider the surrender of the town. There are numerous explicit references in the chronicles to the veche in later years and, additionally, mention is often made of urban assemblies without using the term veche.19 For the 11th century, references are not very numerous, but 16 17

18 19

The chapter on the veche in my own Law in Medieval Russia (Leiden, 2009), relying perhaps too strongly on Sergeevich, is not entirely free from this defect. P.V. Lukin, “O tak nazyvaemoi mnogoznachnosti poniatiia «veche» v russkikh letopisiakh: Domongol’skoe vremia”, Neischerpaemost’ istochnika: K 70-letiiu V.A. Kuchkina, Moskva, 2005, [not available to me]; J. Granberg, Veche in the Chronicles of Medieval Rus: A Study of Functions and Terminology, Göteborg, 2004. An abbreviated translation of the latter work appeared in dgve 2004, Moskva, 2006, 3–163 (“Veche v drevnerusskikh pis’mennostnykh istochnikakh: Funktsii i terminologiia”). Quotations below are from the Russian translation of Granberg’s study. Cf. Vlad.-Bud., Obzor, 75; Grekov, Kievskaia Rus’, 359. A discussion of the etymology of veche in Granberg, op. cit., 162–163. A few authors, Granberg (op. cit., 7) being the most recent one among them, have argued that only veche meetings explicitly mentioned as such in the chronicles should be accepted as the foundation for studies on the veche. The juxtaposition of chronicle statements explicitly referring to veche meetings to statements referring to other urban assemblies

416

chapter 15

they get more plentiful in the twelfth century. After 1240 (the Mongol invasion) reports about town assemblies mostly concern Novgorod and Pskov. For earlier periods certain indications may be found in the works of foreign authors, such as the Byzantine historian Procopius of Caesarea, who wrote in the middle of the 6th century: For these nations, the Sclaveni and the Antae, are not ruled by one man, but they have lived from of old under a democracy, and consequently everything which involved their welfare, whether for good or for ill, is referred to the people.20 Echoing this arrangement is an event described in the Primary Chronicle which appears to have taken place sometime during the first half of the ninth century or earlier. The Khazars were exacting tribute from the inhabitants of Kiev (or the region of Kiev), the Poliane, who were said to have consulted among themselves (s”dumavshe poliane) before giving in to the request. In later instances the words duma and dumati (“counsel”, as noun and verb) are often used in referring to the activities of the veche.21 Similar indications of the recognition of the people as a separate political agent can be perceived in the treaties between Kiev and Byzantium, most clearly in the treaty of 944, where the Russian envoys declared: “And our grand prince Igor and his boyars, and the whole people of Rus have sent us…”. This entry is followed in 997, as mentioned above, by the express reference to the town veche of Belgorod. One of the most crucial veche meetings in Russian history occurred in Novgorod in 1016 (or 1015), when Iaroslav the Wise called a meeting of the townspeople after engaging in similar activities is artificial, as was pointed out, e.g. by T.L. Vilkul in a paper appearing in the same volume as the Russian translation of Granberg’s study, “Konstruirovanie narrativa v parallel’nykh letopisnykh soobshcheniiakh o veche”, dgve 2004, Moskva, 2006, 210–243, at 212. Occasionally the chronicle text will speak first about a town assembly and then later on refer to it as a veche meeting; e.g. the 1217 entry in the First Novgorod Chronicle which relates that the men of Novgorod were deliberating with the men of Pskov, when their camp was being attacked by the Chud’; “the men of Novgorod ran from their veche to their baggage”. 20 Translation of Vernadsky-Pushkarev, 7. Russian translation and detailed discussion (by M.V. Bibikov) in E.A. Mel’nikova (ed.), Drevnaia Rus’ v svete zarubezhnykh istochnikov, Moskva, 2000, 80–84. Also in Dzhakson, T.N., Konovalova, I.G., Podosinov, A.V. (eds.), Drevniaia Rus’ v svete zarubezhnykh istochnikov: Khrestomatiia T.ii (Vizantiiskie istochniki), Moskva, 2010, 72. See also I.Ia. Froianov, Kievskaia Rus’. Ocherki sotsial’no-politicheskoi istorii, Moskva, 1980, 160. 21 Froianov, id., 159–160.

The Towns

417

his father Vladimir had died in Kiev and the Kievan throne had been seized by Iaroslav’s half-brother Sviatoslav. Other important veche meetings took place in Kiev in 1068–1069, at another moment of dynastic strife, when the people of Kiev had put Vseslav of Polotsk on the throne, bypassing the sons of Iaroslav the Wise. Other entries appear during the 11th and 12th centuries, referring to veche meetings in Kiev, Novgorod and other Russian towns.22 The chronicles are therefore the basic source concerning the veche, and in particular the Primary Chronicle and (for Novgorod especially) the First Novgorod Chronicle; as the narrative of the Primary Chronicle stops at 1116, the next generation of Russian medieval chronicles, such as the Suzdal’ Chronicle, also have to be included.23 A central role in the veche debate is played by an entry in the Suzdal’ Chronicle for the year 1176 which says: “From of old the people of Novgorod, of Smolensk, of Kiev, of Polotsk, and of all the lands have assembled for counsel in veches.” This quotation is one of the main arguments of those scholars who advocate the universal occurrence and immemorial origins of the veche in medieval Russia.24 The veche was and still is one of the most ardently discussed topics in the history of early medieval Russia and the domestic literature is therefore ­extensive; foreign authors, in particular from Western Europe, have added to this already large volume. The obviously emotive power of the subject is itself an interesting phenomenon. It could perhaps be explained by reference to the different paths taken in this respect in Western Europe and Russia. ­Certain forms of ­representative government and an ensuing balance of power between rulers and representative institutions remained a more permanent fixture in Western Europe than in Russia, where the overwhelmingly ­paramount ­position of the ruler was virtually uncontested from the time the Moscow princes achieved dominance until the end of the twentieth century. In this p ­ erspective the question whether and in what form and to what extent an ­element of ­representation was present during the earliest period of the country’s existence assumes a certain symbolic importance. The veche question, in this light, is a special aspect and one of the chief components of the wider problem of the overall conceptualization of Kievan Russia. 22

A survey of such entries in Sergeevich, Drevnosti ii, 1–50. More recently P.V. Lukin has offered an extensive discussion of a great number of veche reports from various chronicles in “Veche: sotsial’nyi sostav”, A.A. Gorskii, V.A. Kuchkin (eds.), Drevniaia Rus’: Ocherki politicheskogo i sotsial’nogo stroia, Moskva, 2008, 33–147. Granberg’s works contain ­detailed enumerations of such chronicle reports. 23 The Laurentian text of the Suzdal’ Chronicle in psrl, Vol.1 Part 2, Leningrad, 1927. 24 See e.g. Sergeevich, Drevnosti ii, 1; Granberg, op. cit., 47–49; Lukin, op. cit., 92–97.

418

chapter 15

Of the pre-revolutionary authors who concerned themselves with the history of the veche, Sergeevich is undoubtedly the most important. Book 4 of his “Antiquities of Russian Law” was entirely devoted to it.25 Although the views of Sergeevich were not accepted uncritically by all his contemporaries, his studies on the topic remained the starting-point for most writers who came after him, even up to the present day.26 During the Soviet era, the most ­detailed study was by Iushkov who wrote an elaborate refutation of the theories of ­Sergeevich.27 Other Soviet historians of the period occupied more middle-of-the-road positions.28 Of the historians of the later Soviet period, I.Ia. Froianov, devoted a chapter to the veche in his work on the socio-political history of Kievan Russia, first published in 1980.29 Froianov’s views continued to be prominent, as well as controversial, in the post-Soviet period. His perspective on the veche was determined by his overall conception of Kievan Russia as a pre-feudal, clan-based (obshchinnyi) system which replaced the older extended-family (rodovoi) system. The veche of the Kievan era, according to Froianov, constituted a transformation of the veche from an earlier era.30 A central position in the recent literature is occupied by P.V. Lukin, who has written extensively on the veche, taking account also of studies published outside Russia.31 Among the latter, the older works by Marc Szeftel and 25 Sergeevich, Drevnosti ii, 1–149. This work was to a considerable extent based on an earlier publication Veche i kniaz’, Sankt-Peterburg, 1867. 26 The main dissenter in pre-revolutionary times was Kliuchevskii (Kurs, Vol.1, Lecture xii, 190–205) who argued that the veche emerged only after princely power had became weak and fragmented in the course of the 11th century. 27 Iushkov, Ocherki, 193–216, and Stroi, 345–360 (the two fragments are virtually identical). 28 Such as Grekov, Kievskaia Rus’, 353–370, and M.M. Tikhomirov, Drevnerusskie goroda, Moskva, 1946, 213–222. 29 I.Ia. Froianov, Kievskaia Rus’. Ocherki sotsial’no-politicheskoi istorii, Leningrad, 1980, 150–184. This work was included in Nachala russkoi istorii (Moskva, 2001), in which Froianov’s three books on Kievan Russia were republished, together with other writings by the same author (the chapter on the veche at pp. 624–657). 30 This view was more recently elaborated by him in I.Ia. Froianov, “Ob evoliutsii vechevoi i kniazheskoi vlasti v Kieve (konets x – seredina xii v.)”, A.Iu. Dvornichenko (ed.), Srednevekovaia Rus’. Sbornik statei v chest’ professora Iuriia Georgievicha Alekseeva, Moskva, 2012, 233–259. 31 P.V. Lukin, “Veche, «plemennye» sobraniia i «liudi gradskie» v nachal’nom russkom letopisanii”, A.A. Gorskii (ed.), Srednevekovaia Rus’, vyp.4, Moskva, 2004, 70–130; id., “K voprosu o tak nazyvaemym sovete v domongol’skoi Rusi”, dgve 2003, Moskva, 2005, 132–142; id., “O tak nazyvaemoi mnogoznachnosti poniatiia «veche» v russkikh letopisiakh”, Neischerpaemost’ istochnika: K 70-letiiu V.A. Kuchkina, Moskva, 2005, 36–83; id., “O sotsial’nom sostave novgorodskogo vecha xii–xiii vv., po letopisnym dannym”, dgve 2004, Moskva,

The Towns

419

K. Zernack should be mentioned, as well as the more recent monograph by J. Granberg.32 The chronicles are not only the main source concerning the veche, they are virtually the only source, if one disregards foreign reports and sporadic references or implications in other contemporary Russian documents. Why is it then that the veche has continued to be such a controversial subject for over a century? Most of the major studies on the subject start with a review of the foregoing literature, arguing that its authors were all wrong in one or more ways. P.V. Lukin’s most recent study is no exception in this respect, but the problem is noted by him. He points to the “apriorism” that dominates the debate: the tendency to make the sources illustrate preconceived ideas.33 One can certainly agree with Lukin’s criticism; it would apply not only to the veche debate, but also to many other topics in the study of the Russian middle ages. On the basis of my more general views on jurisprudence (as explained in Chapter 1) I would add another related but different aspect. The veche debate seems to be particularly susceptible to an approach in which conceptual constructs are treated as pre-existing realities. Participation in the veche is ­considered as an original right of (free) townspeople (Sergeevich); the veche, alongside the prince, was an organ of the feudal Kievan state (most Soviet authors); the veche was not a political institution (Granberg). This approach ­inevitably begs the questions: What is meant by “the right of free townspeople”, “an organ of a feudal state”, “a political institution”? Such concepts have been constructed by writers and any statement claiming the presence or absence of an entity corresponding to such a concept requires a definition of the latter. The often intense discussions about such issues are therefore semantic shadow-boxing. Almost all authors base their views on the same collection of chronicle entries and obviously these entries often require interpretation and that is precisely the point at which a false conceptualism (more precisely: philosophical realism) may slip in. This danger is especially real in questions which we would consider as belonging to “public law”, such as those concerning the veche. Kievan Russia and

32

33

2006, 164–209; id., “Veche: sotsial’nyi sostav”, A.A. Gorskii, V.A. Kuchkin (eds.), Drevniaia Rus’, Moskva, 2008, 33–147. His views were rejected by P.P. Tolochko in a more recent work: Vlast’ v Drevnei Rusi x–xiii vv., Sankt-Peterburg, 2011, 155–156. M. Szeftel, “La participation des assemblées populaires dans le gouvernement central de la Russie depuis l’époque kiévienne jusqu’à la fin du xviii siècle”, Receuils de la Société Jean Bodin, Vol.25, 1965, 339–365; K. Zernack, Die burgstädtischen Volksversammlungen bei den Ost- und Westslaven. Studien zur verfassungsgeschichtlichen Bedeutung des Veče. Giessener Abhandlungen zur Agrar- und Wirtschasftsforschung des Europäischen Ostens, Bd.33, Wiesbaden, 1967. P.V. Lukin, “Veche: sotsial’nyi sostav” (2008), 38 ff.

420

chapter 15

even pre-Kievan Russia had an awareness of the rights of an individual person (at least a freeman) against his fellow man in matters of contract, personal injuries, etc. Such matters formed the substance of the oldest laws and of the earlier body of customary law. But constitutional or state law in the modern sense was completely absent. There were customary arrangements about the division of authority, power and property within the family, and such arrangements also embraced ruling families. But it would be unrealistic to consider the activities of the veche in the light of the “rights” of the populace against the rulers. No constitution or charter had endowed them with such rights. The townspeople would congregate naturally and more or less spontaneously at stressful moments; they would not if they were prevented by circumstances, such as the presence of another power who did not want them to meet (usually an armed force under the command of a prince or other dignitaries). If one avoids this realist trap, the area of controversy around the veche grows much smaller. This should not surprise anybody because the considerable but still finite treasure of chronicle entries concerning the veche constitutes the same source for every commentator. This body of evidence indicates that the veche was a not unusual occurrence over a long period and in many towns of Kievan Russia. Moreover, the chronicles make clear that its contemporaries regarded it as a normally proper and, as a rule, legitimate event (I recall the famous 1176 entry, quoted above). For these reasons the veche may in our modern view be seen as a component of the customary law of Kievan Russia. If it were a mere political phenomenon there would be no reason to examine it here. Still, its recognition as a customary institution does not involve much more than the admission that its activities were embedded in the general value judgments of the time. It would, for instance, be unthinkable, once the ruling house of Rurik had been firmly established, that the veche would elect a prince from outside this house. On the other hand, the fairly abundant evidence from the Novgorod veche demonstrates that even major riots and mass disorders were occasionally designated as veche meetings. This means that if one were to insist on a comprehensive definition of the veche, a vague and very general formula would emerge, such as Granberg’s “a gathering or mobilization of the entire community or of at least a large number of people”.34 Within such a wide concept one may then differentiate and describe narrower categories, such as “mass disorders” or, at the other side of the spectrum, regularly convoked citizens’ assemblies. All such events were at times referred to as veches and, to make matters more complicated, they were related at other times without being called a veche. 34 Granberg, op. cit., 50.

The Towns

421

Origin and Development of the Veche Most authors assume that the veche of the Kievan era grew out of the tribal or popular assemblies of the Eastern Slavs of the preceding centuries. This was the view of Sergeevich, the most important author on the veche from the prerevolutionary era, and also of prominent Soviet scholars such as Grekov and Iushkov.35 Kliuchevskii did not express himself on this point and merely noted that the veche became more prominent, from the 11th century onwards.36 More recent authors, such as Froianov, occupy the same general position. Common sense seems to support this position, but at the same time one has to admit that the evidence is not abundant. It boils down mainly to the statement of Procopius of Caesarea (mentioned above) and a few other less clear communications from foreign authors (such as the Byzantine emperor Mauricius in his Strategikon), the single but explicit statement in the Suzdal’ Chronicle under the year 1176, and the reference to the town veche of Belgorod in 997 (both of them mentioned above). The question of the origin of the veche, an urban assembly in historical times, is obviously connected with the question of the origin of the Russian town. Where the town had come into being as a tribal or regional centre, the gradual transformation of a traditional tribal assembly into a town veche stands to reason. This would not apply to those towns which had emerged or which had specifically been founded for other reasons and which therefore did not necessarily have their roots in the surrounding countryside. On the other hand it is to be expected that such towns also knew the institution of a general town assembly. In the course of the early Kievan era the different origins of town assemblies had apparently faded and had merged into the general presence of the veche. There is ample evidence that veche meetings took place in Kiev, Novgorod and most of the other principal cities during the 11th and 12th centuries.37 The situation is much less clear in respect of the 10th and the first half of the 11th centuries. Grekov, although he subscribed to the theory that the veche was an institution with ancient roots, interpreted this as a decline in the political function of the veche, caused by the newly dominant position of the Kievan 35 36

37

Cf. Sergeevich, Drevnosti ii, 1–2; Vlad.Bud., Obzor, 75; Presniakov, Lektsii i, 168; Grekov, Kievskaia Rus’, 353–370, esp. 369; Iushkov, Ocherki, 35–36 and 193–215. Several authors (Grekov, Iushkov, Froianov, Granberg) stress Kliuchevskii’s dissident position in this matter, but careful reading of the first few pages of Lecture xii (as quoted above) does not bear out this view. See, for instance, Sergeevich, Drevnosti ii, 1–50. Iu.A. Limonov, Vladimiro-Suzdal’skaia Rus’, Leningrad, 1987, has a long chapter (117–149) on the role and activities of the veche in the principal towns (Rostov, Suzdal’ and Vladimir) of the Suzdal’-Vladimir principality in the 12th and 13th century.

422

chapter 15

grand prince, who ruled in concert with his druzhina.38 The scarce references to popular assemblies during this period were explained by Grekov either as exceptional events, occasioned by the temporary absence of the prince, or as assemblies that did not deserve the name of veche. Grekov then observed a rebirth of the institution during the latter half of the 11th century, a development he connected with the onset of the fragmentation of the Kievan empire. Grekov’s views were already rejected by his contemporary Epifanov and later on by Froianov.39 The modest amount of evidence from the earliest period offered by the chronicles and other sources, suggests the following. Town veches may have had different origins, depending on the origin of the town itself. The town as a gradually urbanized tribal centre may have been the dominant type, but in Kievan times this type was merging or had already merged with other types of towns (such as those which were specifically founded as military or administrative centres, or which originated as multi-ethnic trading centres). The subsequent fate of the veche, the urban assembly, depended on a variety of factors, such as the power of the local prince, the town’s standing in the region (regional capital or not), the socio-economic conditions prevailing in the area, the general cultural level, etc. Accordingly, the veche could atrophy, or it could become the dominant political agent; it could be an infrequent occurrence, or a regular event. In the end the veche did not survive the Mongol invasion and domination of Russia, except in the North-West, where the effects of Mongol rule were less stringent. But whatever the local differences, there can be no doubt that in Kievan Russia the veche constituted a significant part of the politico-legal structure. The Composition of the Veche In the entire complex of questions around the Old-Russian veche, the problem of its composition is the central issue. Once a clear picture can be formed of the different persons or groups who took part in it, all other issues can be resolved more easily. The question is usually considered primarily from the ­social aspect, the participation of different social groups among the urban population. It does however also have a secondary, territorial aspect. Most  chronicle items about veche meetings concern the main towns of p ­ rincipalities 38 Grekov, Kievskaia Rus’, 353–370. 39 P.P. Epifanov, “O drevnerusskom veche”, Vestnik Mosk. Univ. seriia istoricheskaia, No. 3, 1963, 112–117; Froianov, Kievskaia Rus’. Ocherki sotsial’no-politicheskoi istorii, Moskva, 1980, Ch. 5, 150–184 (also in Nachala russkoi istorii, Moskva, 2001, 624–657).

The Towns

423

(Kiev, Novgorod, Chernigov, Smolensk, etc.), and then the question arises of the participation of citizens or representatives of subordinate towns. Some of the problems concerning the composition of the veche are already suggested by the earliest references in the Primary Chronicle. At the Belgorod veche of 997, which was briefly mentioned above, an old man who had not been present at the meeting “sent for the town-elders” (posla po stareishiny gradskyia) the next day and persuaded them to overturn the veche decision and accept his own solution instead. Belgorod was at that time under siege by the Pechenegs (Turkic nomads) and the citizens intended to surrender the town. The sparse narrative leaves several questions unanswered, such as: Did the veche embrace more than the town-elders, and if so, how could the latter go against the decision of the former? Who was the old man (starets), that he was able to prevail over the veche itself? The events in Belgorod in 997 neatly encapsulate one of the main problems connected with the composition of the veche in Kievan times: should it be thought of as a general popular assembly, or was it rather a comparatively small body, consisting of a number of prominent citizens? Pre-revolutionary Russian historians, whatever their other differences concerning the Kievan veche, usually agreed about its broadly popular character.40 But it was especially the Soviet historians who paid much attention to the question of the social make-up of the veche, as could be expected. Iushkov insisted that the veche was essentially an aristocratic parliament, consisting of the narochity muzhi, the prominent citizens, the urban feudal lords in Iushkov’s terminology.41 Even where the popular masses were physically present, they were, in his view, the mute and passive tools of the local elites. Most other leading Soviet historians rejected this view and argued that it could not be reconciled with the evidence from the chronicles.42 Without reviewing the development of the various theories concerning the social composition of the veche in detail (a work that has already been carried out recently by P.V. Lukin), it will be sufficient to refer to the conclusions reached by the latter on the basis of an extensive re-examination of the materials from the chronicles.43 40 Sergeevich, Drevnosti ii, 52; D’iakonov, Ocherki, 118; Vlad.-Bud., Obzor, 53. 41 Iushkov, Stroi, 350; Ocherki, 196. Ianin, the leading expert on Novgorod history, occupied a similar position with regard to the composition of the Novgorod veche (see Chapter 16). 42 Grekov, Kievskaia Rus’, 369; Froianov, Kievskaia Rus’. Ocherki sotsial’no-politicheskoi istorii, Moskva, 1980, 153 (also in Nachala russkoi istorii, 626–627). 43 Cf. Lukin, op. cit. (Veche: sotsial’nyi sostav).

424

chapter 15

During the early Kievan period the prince and his entourage (druzhina) constituted a separate element in the political make-up of the principality, against which the general assembly of the people formed the main c­ ounterweight. In Lukin’s words: “… sections of the population, not belonging to the princely/ boyar/druzhina elite, unquestionably took part in the socio-political life of Old Russia”.44 This conclusion is based on chronicle reports concerning veche meetings in several major towns. There is no evidence, according to Lukin, for the thesis that the rural population of the region surrounding the town would regularly take part in the political life of the town. The opposite view had been espoused by most earlier authors, mainly on the basis of the above-quoted line from the Suzdal’ Chronicle (1176) that the people from all the different Russian lands would assemble in veches. This led to the conception of the veche as some kind of parliament of the land (the region of which the town in question was the capital), with all free inhabitants enjoying the right to take part in a general assembly. Several  authors admitted the improbability of such participation in practice, on account of the size of the region concerned, but maintained that other persons outside the town population were still entitled to take part in the veche. Lukin’s final conclusion concerning the social composition of the veche is in general agreement with the majority view, in that the veche was not the exclusive domain of the urban elite, but that the ordinary people from the town were also involved. As noted above, the social composition of Kievan towns did not constitute a fixed constellation, but was constantly evolving. The original entourage of the prince, the druzhina (partly of non-Russian ethnic origin), melted away in the surrounding Slavic population, providing one of the components of the new elite, the boyar landowners and the “best people” (luchshie or narochity liudi) in the towns. The veche as the general assembly of the town people is consequently to be regarded, not as a mass of individuals, deciding matters on the basis of one-man-one-vote, but as a living, organic community, including its formal and informal relationship patterns. This may explain the variability of the veche’s composition. Where a bishop was present, for instance, one finds him taking part, but not as an ordinary citizen. His undisputed spiritual authority made him the obvious president of the assembly. In such a capacity the Kievan metropolitan is mentioned in 1147.45 44 45

Op. cit., 64. This, at least, is the impression created by the entry in the Suzdal’ Chronicle; cf. psrl I/2, 316–317. It is also the opinion of Vlad.-Bud., Obzor, 78.

The Towns

425

Lukin’s recent study also agreed with the general assumption that only free persons could take an active part in the veche.46 What is known about the ­position of unfree persons in Kievan society would certainly support this assumption. More speculative is the opinion of 19th century authors that fathers would speak for their sons, except when the latter for some reason could be regarded as independent free citizens.47 Lukin noted that there were no indications of women taking part in veche meetings; although their position in Kievan Russia was less restricted than in the Muscovy era, he regarded it as unlikely that they had sufficient independence to participate in political decision-making.48 The local prince himself is often reported as a participant, although he could hardly be regarded as an ordinary citizen. The relationship between prince and veche is discussed in a following section. Finally, there is the still unanswered question of the participation of other persons outside the actual inhabitants of the town. Lukin admitted the participation of persons immediately outside the fortified town,49 but seemed to deny the participation of persons from other towns which had the status of a suburb (prigorod) of the main town. Older authors, especially those who regarded the veche of the principal town as the assembly of the entire region (principality), affirmed the right of the population of subordinate towns to take part in such veches, but added that in practice it would be limited to p ­ ersons who happened to be present at the time the veche in the principal town took place.50 As argued above, the question is more effectively approached as one of fact, instead of one of right. The first point to be established then is that there are a few rare examples of subordinate towns involved in veche meetings in the chief town, as when in 1136 “the men of Novgorod summoned the men of Pskov and of Ladoga and took counsel how to expel their prince Vsevolod”. Secondly, subordinate towns (prigoroda) are mentioned a few times as conducting their own assemblies.51 The Scope of Veche Activity In the older view, where the veche was considered as a legal institution endowed with certain rights, the scope of its activities was perceived as a ques46 Lukin, op. cit., 146–147. See also Sergeevich, Drevnosti ii, 53; D’iakonov, Ocherki, 119; Vlad.Bud., Obzor, 78. 47 Sergeevich, Drevnosti ii, 52; D’iakonov and Vlad.-Bud. as in preceding footnote. 48 Lukin, op. cit. 146. 49 Op. cit., 107. 50 Sergeevich, Drevnosti ii, 54–55; D’iakonov, Ocherki, 119–120; Vlad.-Bud., Obzor, 77. 51 See for instance the list in Granberg, op. cit., 150–161.

426

chapter 15

tion of its competence or jurisdiction. This approach is not to be rejected outright, because (as argued above) it can indeed be seen as an institution supported by customary law. But then its legal contents can only be determined by the occurrence of concrete events, and not, as was often done in the past, by ­reference to the trias politica doctrine (legislation, administration, and justice). The following quotation indicates that as eminent a legal historian as Sergeevich was well aware of the anachronism of the latter approach. It is understandable that the people may take any question of public life into consideration, as they meet in the veche by virtue of their right to decide on public affairs, which were not yet separate from their private ­affairs and which were regarded as being of direct concern to them. Speaking in the language of our times, the veche had the power to legislate, to administer, and to judge. But the mutual relationship of these various concerns of the veche was then quite different from what it is in our time. Legislation was certainly not of primary importance. Our ancestors did not live under law, but under custom, which was equally binding for the people as well as for the princes.52 The emphasis which Sergeevich placed on custom, in a paragraph specifically purporting to discuss the competence of the veche, might suggest that Sergeevich considered this competence primarily determined by custom. It is however more likely that the veche, in drawing up its agenda, would be guided not so much by what was proper (i.e. in accordance with custom) but by expediency (i.e. what could be achieved under the circumstances). Custom would primarily play a role in circumscribing the work of the veche; the veche (esp. in Novgorod) would often dismiss its ruling prince and invite another prince, but it would not invite one (as mentioned before) from outside the Rurikid dynasty. Beyond the veche’s relationship with the prince, which will be discussed separately below, custom does not seem to have delegated specific issues to the veche. Once the assembly took place, it would deal with anything that took its fancy (unless prevented by custom). Naturally, these would normally be matters of considerable general interest; participants would not like to waste their time on trivia. This is the general picture suggested by the chronicles. The Veche and the Prince Underlying the relationship between the town and its veche on the one side and the prince on the other is the idea that a town without a prince is orphaned. 52 Sergeevich, Drevnosti ii, 72.

The Towns

427

This idea is occasionally expressed in the chronicles. In more pragmatic terms one could point to the military aspect. Kievan towns were continually being harassed by invading nomads; in later years, when the unity of the Kievan e­ mpire had been lost, there were incessant wars between the princes. ­Originally, the prince was a military leader with his own band of warriors, his druzhina. Later on, towns usually needed a prince to lead their armed forces. Another basic function of the prince was the provision of judicial services through his officials; the Russkaia Pravda indicates that this function arose already at an early stage, i.e. under the first Kievan grand princes. Although the evidence is not completely conclusive and incontrovertible, there are strong indications that the contractual relationship between prince and people went back to the earliest times, when a Viking chief was invited to come and rule in Northern Russia and he settled in Novgorod. Rurik’s successors moved their capital to Kiev, but at least in Novgorod the essential equality between the contractual partners remained a prominent feature all through the history of Novgorod’s independence.53 What has been said above about the relationship between law, custom and expediency in the matter of the scope of veche activities applies equally to the question of the relationship between the veche and the local prince. The evidence from the chronicles indicates clearly that a contractual bond between the veche and a particular prince was a normal phenomenon. Frequently, the population of a town would invite a member of the Rurikid dynasty to become “their prince”; they would then mutually swear oaths (“kiss the cross”) and he would be the local prince until he died, was expelled by the townspeople, or dislodged by another prince. The relationship can be regarded as legal because of its formal contractual nature. Although no pacts (riady) between towns and princes from the earlier Kievan era have survived, there are indications that they were not a 13th century innovation (when they were standard practice in Novgorod). The first surviving Novgorod pact with a prince, of 1264, contained the formula: “Kiss the cross, prince, on this [charter] on which your father Iaroslav kissed the cross”. And two years later a new pact with Iaroslav contained the more extensive formula: “Kiss the cross, prince on this [charter] on which your ancestors [dedi] and fathers [ottsi] and your father Iaroslav kissed the cross.”54 An older 53

54

This is a leading idea in Ianin’s presentation of Novgorod history, V.L. Ianin, Ocherki istorii srednevekovogo Novgoroda, Moskva, 2008. See also K.A. Solov’ev, Vlastiteli i sud’i. Legitimizatsiia gosudarstvennoi vlasti v drevnei i srednevekovoi Rusi. ix – pervaia polovina xv vv., Moskva, 1999, 82–87. gvnp, Nos. 1 and 2 (pp. 9–11). The prince in question was the grand prince of Tver’ Iaroslav Iaroslavich, a brother of Aleksandr Nevskii, who was invited to come to Novgorod in 1264

428

chapter 15

but less unequivocal indication is a communication in the Novgorod Chronicle under the year 1209 when the Novgorod prince Konstantin wanted to reward his Novgorod army after a successful campaign against Pronsk and “he gave them all their will and the decrees [ustavy] of the old princes, all the men of Novgorod had wished for”.55 As to the exact contents of the older pacts, one can only speculate, but they were probably not very different from those of the later Novgorod pacts, as the latter have every appearance of being firmly rooted in tradition. Nevertheless, factual circumstances were the dominant factor. A strong and united urban population would be much freer in its choice of prince and its readiness to expel him if he did not prove to be satisfactory. A powerful prince with good connections and a significant armed force of his own would be able to be more influential in the town he ruled. As explained before, the rotation of princes from smaller towns-­principalities to more important ones was less restricted in the early period of the Kievan empire, when the Rurikid house was still comparatively small. As different branches and sub-dynasties arose, these tended to hold on to their principalities by having close relatives succeed and eventually adopting the system of sons stepping into the shoes of their fathers. Still, there are many examples of towns changing their allegiance from one Rurikid branch to another. Once the prince had been installed, his relationship with the veche is again best described along factual lines and not as a matter of law, as earlier authors were inclined to do. If the prince’s position was tenuous, his influence in the veche would be reduced, while a powerful prince could afford to be dominant. The evidence from the chronicles suggests that there was no clear awareness of the prince and the veche being two separate institutions that were to act in concert. If the prince was present at the veche, he was part of it. During the prince’s absence his responsibilities could be entrusted by him to a lieutenant, the posadnik. This official is mentioned once in the Expanded Pravda (art. 114): “If somebody finds his kholop in another town, and the posadnik did not know about him [the latter], …”. In Novgorod and Pskov the relationship with the ruling prince developed over time in such a way that the prince became more and more marginalized until in the end these two towns were in fact republics. The relationship between town and prince in Novgorod and Pskov will be reviewed separately in Chapter 16 (on Novgorod and Pskov).

55

after the townspeople had expelled Aleksandr Nevskii’s son Dmitrii because they considered him too young. This was Konstantin Vsevolodovich, the eldest brother of Iaroslav (father of Aleksandr Nevskii and Iaroslav who became prince of Novgorod in 1264).

The Towns

429

Veche Proceedings The numerous references to veches in Russian chronicles, especially for the period of the 13th–15th centuries, allow the reconstruction of typical veche proceedings. This does not mean that there were any precise written rules concerning such proceedings, only that veches were customarily conducted along certain lines. First, a veche had to be convoked.56 The most obvious person to do this would be the prince. Often, however, the main topic of the veche meeting would be a conflict between the prince and the population, and in such cases the citizens themselves would take the initiative. In Novgorod, and probably in other towns as well, regular veche meetings were convoked by ringing the veche bell. When Novgorod lost its independence and the grand prince had forbidden further meetings of the veche, the veche bell was removed to Moscow. Whether sufficient people would turn up is another matter. There was apparently no strict duty to attend and if the number of participants was insignificant their decisions would lack legitimacy and enforceability. There are even instances of unsuccessful convocations by the prince himself. The general haziness of the procedure also did not preclude the convocation of two simultaneous veches of competing sections of the population. In some cases the veche met as a result of a spontaneous assembly of the population, usually in moments of acute emergency. The normal meeting-place would be a central square in the middle of the town: in front of the Sophia cathedral, or in the Court of Iaroslav, or the Market Place in Kiev, and the Sophia Cathedral Square or the Court of Iaroslav in Novgorod.57 During a campaign, a veche could be held in the open field, even on horseback. Little is known about the actual proceedings, except that, as mentioned above, the bishop could act as chairman. In other instances this function could be assumed by the prince, although his position in the veche debate was ­different. The position of the bishop tended to place him in the role of a mediator between the factions, while the prince, if relations with the populace were good, would be the natural leader of the assembly. In any case the prince represented a faction all by himself. The ideal form of a veche decision was the acclamation: the unanimous and almost spontaneous resolution of all present.58 If no consensus could be reached, the veche was a failure and no decision was taken. The c­ hronicles show that an escalating series of measures was employed to bring about ­unanimity, 56 Sergeevich, Drevnosti ii, 55–58; D’iakonov, Ocherki, 120–122; Vlad.-Bud., Obzor, 56. 57 Sergeevich, Drevnosti ii, 58–59; D’iakonov, Ocherki, 122; Vlad.-Bud., Obzor, 57–58. 58 Sergeevich, Drevnosti ii, 62; D’iakonov, Ocherki, 124; Vlad.-Bud., Obzor, 58.

430

chapter 15

from persuasion to intimidation, right down to physical violence against the minority faction. There are no reports of a veche adopting a decision by a majority vote. Town Officials If the prince was absent, his appointed representative (the posadnik, and later on the namestnik) would be the head of the local government. Posadniki (lieutenants) are mentioned as early as in 977 and return frequently in the chronicles. Obviously, however, neither the posadnik nor the veche could run the town by themselves on a day-to-day basis. Nevertheless, other institutions and persons involved in managing urban affairs have received far less attention than the veche. The matter is usually dealt with in connection with Novgorod, where of course the subject of town government is much better documented. Those authors who do touch upon the topic of town government in Kievan times usually take the ‘decimal’ system, the occurrence of desiatskie, sotskie and tysiatskie (Latin: decanus, centenarius, millenarius) as their starting point.59 The most detailed argument was offered by Pavlov-Sil’vanskii, who regarded the decimal system of the organization of Kievan society as an ancient remnant of a system common to several other Aryan (Indo-European) peoples.60 The evidence for the involvement of the ‘thousandmen’ (tysiatskie) in town government is undeniable; this might suggest that the ‘hundredmen’ (sotskie) and the ‘tenmen’ (desiatskie) were similarly involved within a hierarchical structure. The first question to be answered therefore is whether this relationship between the three groups of officials actually existed, in other words, whether there was a decimal system of urban government. The investigation can best be started with the most visible group, the tysiatskie. The first appearance of the tysiatskii is in 1089, when Ian the son of Vyshata is mentioned in the Laurentian Chronicle as commanding the Kiev “thousand”. He died, 90 years old, in 1106. His brother Putiata is mentioned in the Hypatian Chronicle as the tysiatskii of Kiev in 1097; while he is mentioned several more times as such in the Hypatian Chronicle, the Laurentian Chronicle referred to

59

60

Cf. Iushkov, Istoriia, 109–110; Iushkov, Stroi, 104–108; Tikhomirov, Drevnerusskie goroda, 173–177; N.P. Pavlov-Sil’vanskii, Feodalizm v Drevnei Rusi, Moskva, 1988 (1st ed., Sankt-­ Peterburg, 1910), 47, 55, 227–228. Vlad.-Bud., Obzor, 98–100. An early author to reject the then dominant view that there was a decimal system of territorial government (1000-100-10) in Kievan Russia was Presniakov, Kn. Pr., 165–190.

The Towns

431

him as the military commander of Sviatopolk Iziaslavich, grand prince of Kiev (1093–1113).61 Sviatopolk was succeeded as grand prince of Kiev by his cousin Vladimir Monomakh (Vladimir Vsevolodovich, 1112–1125). He was one of the last effective grand princes of Kiev who exercized control over the entire Kievan realm. One of his important achievements was the legislation known as the Statute of Monomakh (Ustav Monomakha), incorporated as one of the main later components in the Expanded Pravda. It is usually dated 1116 and its preamble (art. 53) related that Vladimir called together his druzhina in Berestov (near Kiev): Ratibor the tysiatskii of Kiev, Prokopii the tysiatskii of Belgorod, Stanislav the tysiatskii of Pereiaslavl’ and further Nazhir, Miroslav and Ivanko Chudinovich. Two points standing out from this brief survey are that the tysiatskii was originally a military commander under the prince and that his office in Kievan times was connected with a major town, a town which was the capital of a dependent principality. This explains how in later times, and especially in Novgorod, the tysiatskii became one of the highest urban officials. Originally, the tysiatskie were appointed by the prince and were primarily the commanders of the urban militia.62 In Novgorod and Pskov the office (which also included judicial responsibilities) had become elective at an early stage, while in other places it only tended to be elective.63 In any case, it often ran (as mentioned above) in particular families (from which either the prince or the veche had to select their candidate). In the principality of Moscow the office disappeared after the death of the last tysiatskii, Vasilii Protas’ev in 1374.64 The sotskie and desiatskie (from sto, hundred, and desiat’, ten) have more recently been the subject of a detailed study by V.A. Kuchkin.65 On the basis 61

Putiata was still alive and active in 1106 and during riots in Kiev in 1113 the court (dvor) of the tysiatskii Putiata was sacked according to the Hypatian Chronicle. In 1116 a new Kiev tysiatskii (Ratibor) is mentioned; Putiata was then not alive anymore, or too old, or removed by the new prince Vladimir Monomakh. See also Tikhomirov, Drevnerusskie goroda, 173–177, who limited his discussion of urban government to the role of the tysiatskie. He pointed out that the office of military commander of the town apparently ran in specific families. Putiata was the son of Vyshata, the general who was put in charge of the expeditionary force by Iaroslav the Wise in 1043 to attack Constantinople. Vyshata himself was the son of Ostromir, the general of Novgorod (Primary Chronicle, 1064). He had two sons Ian and Putiata, of whom Ian was obviously the elder. 62 Sergeevich, Lektsii, 324. 63 Tikhomirov, Drevnerusskie goroda, 176. 64 Sergeevich, Lektsii, 325, based on an item in the Voskresenskii Chronicle. 65 V.A. Kuchkin, “Desiatskie i sotskie Drevnei Rusi”, A.A. Gorskii, V.A. Kuchkin [a.o.] (eds.), Drevnaia Rus’. Ocherki politicheskogo i sotsial’nogo stroia, Moskva, 2008, 270–428.

432

chapter 15

of an analysis of a large number of documents, Kuchkin reached conclusions which seem to refute the view which was traditionally dominant in the 19th century. Kuchkin demonstrated that the emergence of desiatskie and sotskie was connected with fundamental reforms in the princely economy. In the earliest, ‘heroic’ period the prince’s wealth depended on his relationship with his druzhina. He was its leader in carrying out armed raids abroad; the booty acquired would be distributed among his comrades-in-arms. This system could be highly profitable and therefore effective, but it also carried great risks. Several early Kievan princes perished in skirmishes with hostile tribes. With the consolidation of the Kievan empire under St. Vladimir and his son Iaroslav the Wise a more peaceful and reliable method of securing the prince’s income was developed. Land and/or money would be made available to peasants-colonists who then could pay back their debts in money or in kind. The system was administered in loco by low-ranking princely servitors (the desiatskie) who would each supervise and organize about ten peasant households. In time they assumed other related functions, such as fiscal and executive duties. The hundredmen were, as the name suggests, of higher rank. Their basic and original task was the supervision and organization of the work of the desiatskie; other related tasks were gradually added to this, in the sphere of dispute settlement, taxation, etc. In all this one has to keep in mind that the prince’s court and government were normally located in or close to the capital of the principality. The sotskie would therefore spend much of their time in town. As princely ­appointees they were often entrusted with ad hoc tasks, and these might include responsibilities in urban government. In Novgorod the sotnik was a local official of considerable importance.

External Relations: Treaties with Princes and Foreign Powers

Almost everything known about the treaty-making activities of towns concerns Novgorod and to a lesser extent Pskov. It is therefore more convenient to discuss this topic within the context of Novgorod and Pskov as semi-­independent states.

The Urban Population

A consideration of the origins of Russian towns already suggested the presence of different urban social groups, such as merchants and craftsmen, in Kievan

The Towns

433

times. This picture can be augmented by what we know about the veche. For a more comprehensive view additional information from the chronicles and the few available legal sources is required. Many of the events narrated by the chronicles took place inside towns and the urban population often played a prominent role. The legal sources are primarily the two main versions of the rp. As explained before, the final versions of the rp constitute an amalgamation of different sets of rules, some of which explicitly or implicitly refer to an urban environment. The first part of the Expanded Pravda mainly represented an edited version of related provisions from the Short Pravda. Then another block of provisions still followed certain themes from the Short Pravda, but in a much more elaborate way. In this block (roughly starting from art. 32), there were various references to the town itself (gorod), to the market place (torg), and to merchants (kuptsy). Similar references occurred in the beginning (arts. 54 and 55) of the second main part of the Expanded Pravda, the Statute of Monomakh (starting at art. 53). In line with what has been said above about the divergent origins of OldRussian towns, the composition of their populations was probably not always identical; a preponderance of manufacturing, trading, or military activities would lead to a greater number of respectively craftsmen, merchants, or soldiers. Free Craftsmen M.N. Tikhomirov, the author of the fundamental monograph on Old-Russian towns, regarded craftsmen as the principal component of the urban population.66 This would probably be correct as a general rule for the average major town of the Kievan era. The basic distinction within the category of craftsmen would be between free and dependent persons. Tikhomirov adduced quite a few examples from the chronicles which presented (obviously free) craftsmen as prominent political actors within the local community. The chronicles refer to various manufacturing professions, especially to persons engaged in the production of durable goods: metalworkers, such as jewellers or makers of weapons and armour, carpenters and other woodworkers, masons and other builders, potters, etc. The evidence indicates that, while some craftsmen acquired considerable wealth and social status, others might descend into abject poverty.67 66 Tikhomirov, Drevnerusskie goroda, 118. 67 Cf. Tikhomirov, 118–122.

434

chapter 15

There are indications that urban craftsmen were organized in guild-like corporations, although no direct documentary traces are available. The matter was obviously left to customary law.68 Unfree Craftsmen and Other Unfree Persons The unfree craftsman makes an appearance in the Expanded Pravda in the list of princely dependents, whose killing must be compensated for by the payment of bloodwite to the prince. According to art. 15 the payment for the killing of a craftsman or -woman was 12 pounds (grivna). This was the same as the payment for the killing of the prince’s middle-rank officials (the village and farm overseers of art. 13 and the tutor of art. 17) and indicated that the prince put far greater value on his craftsmen than on ordinary unfree servants. As the princes’ residences were generally within the capital towns of their principalities, their craftsmen would have had their dwellings and workshops close by.69 Along with princes, great nobles (boyars) and the Church (esp. monasteries) would also have their own dependent craftsmen. These would usually come under the general description of “serfs” or “slaves” (kholopy). Art. 46 of the Expanded Pravda mentioned slaves of princes, boyars and monks. Craftsmen dependent on boyars or monasteries would exercize their crafts in close proximity to their masters’ residences. This would usually be a town in the case of boyars, while all Old-Russian monasteries were originally situated inside or adjacent to a town.70 Another category of dependent persons, apart from serfs/slaves, discussed by Tikhomirov, are the milostniki, ‘beneficiaries’, persons enjoying the milost’ (grace, benevolence) of the prince or of a boyar. They seem to have served normally in the personal service of their lord, especially as armed personnel.71 See further the section on boyars and other nobles in Chapter 19. According to art. 117 of the Expanded Pravda “If someone permits his slave [to engage in trade] in the market square, and he [the slave] becomes indebted, then the slave-owner is to redeem him, and not to be deprived of him [because of his debt].” This indicates that dependent persons (of a prince or a boyar, or perhaps a monastery) could also appear in the capacity of traders. 68 69 70 71

Cf. P.S. Peniak, “K voprosu o remeslennykh ob”edineniiakh v Drevnei Rusi xi–xiii vv.”, P.P. Tolochko (ed.), Zemli Iuzhnoi Rusi v ix–xivvv., Kiev, 1985, 126–130. Cf. Tikhomirov, 122–125. Ibidem. Cf. Tikhomirov, 124–125, and more extensively: M.N. Tikhomirov, “Uslovnoe feodal’noe derzhanie na Rusi v xii v.”, id., Drevniaia Rus’, Moskva, 1975, 233–239, where Tikhomirov presented a more developed conception.

The Towns

435

Finally, the list of dependent inhabitants of the town would also include various other groups, such as izgoi (generally: persons who had lost their social status), proshchenniki (persons dependent on the church), beggars, etc.72 Merchants The importance of trade, especially long-distance trade, in the emergence of towns in pre-medieval Russia is beyond doubt. Already in the earliest written sources merchants appear as a distinct and prominent social group. The 944 treaty with Byzantium was concluded on the Russian side by the representatives of, first of all, the grand prince Igor, then of a group of his relatives and close supporters (his druzhina supposedly), and thirdly of a group of merchants. In the treaties with Byzantium, trade between the Russians and the Greeks was also one of the main themes. The first article of the Short Pravda mentioned the merchant (kupchina) in the same breath as the man from Kiev (rusin), the junior member of the druzhina (gridin), the bailiff (iabetnik), the bodyguard (mechnik), the izgoi and the man from Novgorod (slovenin), as entitled to the standard wergeld of 40 grivna. The Expanded Pravda (art. 48) mentioned the merchant (kupets) and distinguished between local and long-distance trade (kuplia and gost’ba); while kupets remained the general designation for a merchant, gost’ referred exclusively to a long-distance trader. Both the Short and the Expanded Pravda paid considerable attention to merchants and their activities. This also demonstrates that the latter constituted a separate segment of the urban population. It stands to reason that merchants would be domiciled in towns. The merchants should on the other hand not be r­ egarded as a closed group, especially in early Kievan times. In the 10th century, the era of the ­Russian-­Byzantine treaties, there was not always a sharp distinction between foreign trade (by sea) and warlike raids; the trader was a warrior at the same time and vice versa. The line between being a successful merchant and a boyar was therefore fluid. Impoverishment of a merchant could lead to a diminution in his social status. The Urban Aristocracy The general designation of the urban elite in the chronicles is the collective boiare.73 Most authors agree that, at least originally, the boyars did not form 72 73

Cf. Tikhomirov, 125. The singular boiarin occurs rarely in the texts. The origin of the word is not clear. Some consider it a loan-word from a Turkic language, others regard it as Slavic, connected with bit’ (to beat) and boi (fight); a boyar would then originally mean a fighter or a warrior. If, as appears to be the case, boliare is the older form, then it could be connected with bol’shoi

436

chapter 15

a homogeneous component of the population. Four strands can be distinguished. There were first of all the people referred to in the oldest sources as “town elders”, the leading citizens, already mentioned under the year 997 in the story about the Belgorod veche. If these could be regarded as the autochthonous part of the local elite, the druzhinniki, who had their origin in the prince’s druzhina, had originally come from elsewhere and were often not even of Slavic origin. Wealthy merchants, as indicated above, unquestionably had the chance of finding a place within the town’s elite. Finally, anyone, whether belonging to the original local aristocracy, being of druzhina ancestry, being a successful merchant, or for any other reason having acquired considerable wealth, particularly in the form of rural land holdings, could claim membership of the leading class as a landowner. Where the authors differ is in the accents they place and in the description of the processes that led to the emergence of these various groups.74 During the Kievan period they gradually merged into a single class of local boyars. It has been pointed out that the organization of the boyars, particularly as an important element of the military power of individual principalities, was based on their urban provenance: the boyars of Vladimir, of Kostroma, etc.75 Although boyar status could be acquired and lost through social success or failure, it was in principle an inherited quality. Tikhomirov discussed the role of several boyar families, not only in Novgorod where their activities were welldocumented, but also in Kiev, and concluded that such a role would have been similar in other towns of the same era.76 Conclusions about the legal status of boyars can only be very general. They did form a more or less separate class with specific rights and duties. They had a strong and often decisive voice in the running of the affairs of the town and could usually claim the important urban offices. According to the older layers of the rp, the wergeld of persons who later on emerged as members of the ­local aristocracy was usually twice the wergeld of the ordinary freeman. See also the special section on boyars in Chapter 19.

74

75

76

(great). Cf. S.V. Zavadskaia, “«Boliarin»–«boiarin» v drevnerusskikh pis’mennykh istochnikakh”, dgsssr 1985, Moskva, 1986, 89–94, who opts for a Turkic origin. The most important representative of the mainstream of Soviet scholars is Iushkov, Stroi, 89–93, 138–139, 257–267, who generally elaborated on Grekov’s conception of the (Marxist) feudal character of Kievan Russia. A more balanced view is offered by M.N. Tikhomirov in his basic monograph on Old-Russian towns, op. cit., 129–135. Cf. A.N. Kotliarov, “Boiarskii «gorod» v xiv veke”, A.A. Preobrazhenskii (ed.), Feodalizm v Rossii. Iubileinye chteniia, posviashchennye 80-letiiu so dnia rozhdeniia L’va Vladimirovicha Cherepnina, Moskva, 1985, 84–87. Tikhomirov, 131–135.

The Towns

437

Clergy Members of the clergy and lay persons connected with the Church constituted a significant section of the urban population of Kievan Russia. Among the clergy, the basic distinction was between the so-called black and white clergy, monks and secular clergy. The conversion of Russia advanced from the towns into the still pagan countryside; clerical personnel were therefore initially concentrated in the towns. The foundation of monasteries in remote places was a development that only took off by the end of the 14th century.77 Along with monks, the nuns in a women’s convent also belonged to the black clergy. The monasteries and convents were the organizational units of the black clergy, each one under the direction of an abbot (igumen) or abbess (igumen’ia). The monastic community could also embrace other persons who contributed particular services. The Church Statute of Vladimir (art. 16) mentions proshchenniki and zadushniki, persons in some way dependent on a monastery.78 Art. 46 of the Expanded Pravda illustrated that, apart from dependent persons attached to a monastery, there were also persons who were the dependents of individual monks.79 Although some monks would be engaged in specific crafts and trades, they were on the whole more connected with the higher strata of society, both in their social origin and in their way of life.80 The black clergy were celibate. The white clergy consisted primarily of the ordinary priests and deacons of the town, entrusted with the spiritual care of the urban population. In the capital town of the principality there would be a bishop, with his entourage. The office of bishop was open only to monks. The local priesthood, in its way of life and social origin, was generally close to the middle and lower strata of the urban population.81 The contemporary literature frequently refers to the participation of priests in rowdy festivities and the Church Statute of Iaroslav had a special rule (art. 48) about the drunkenness of priests, monks and nuns bez vremeni (i.e. at an inappropriate time, such as during Lent). 77 Tikhomirov, 140. 78 Kaiser, Laws, 44, translated these terms as free debt slaves and manumitted slaves. Tikhomirov (146) refrained from an exact translation and added that there were also other types of dependent persons attached to monasteries. 79 The kholopi … chernech’ are occasionally translated as serfs (or slaves) of the monastery, but several authors have pointed out that such a translation is unwarranted and that the direct translation as serf (or slave) of a monk is correct. See Baranowski, 459–461, for further references. 80 Tikhomirov, 143–146. 81 Tikhomirov, 135–140.

438

chapter 15

The upper segment of the urban priesthood was formed by the kliros (from Greek klèros, share→heritage→clergy), the priests attached to a sobor. This term is usually translated as “cathedral”, but refers instead to the wider category of “church in which daily services are held”.82 The kliros is separately mentioned in art. 16 of the Church Statute of Vladimir as belonging to the class of ecclesiastical persons.83 There are indications that certain rights and duties, such as membership of church courts, were exclusively reserved to the kliros.84 The special legal status of church people goes back to the very beginnings of Christianity in Russia. Art. 16, which belongs to the oldest nucleus of the Church Statute of Vladimir, lists the “church people” (tserkovnye liudi) as “the abbot, the priest, the deacon, their children, the priest’s wife, anyone in the kliros, the abbess, the monk, the nun, the woman who prepares the Eucharist bread, the pilgrim, the healer, the manumitted slave [zadushnik], the freed debt slave [proshchennik], the wanderer, the blind, the lame, the monasterial people, and those in hospitals, hostels and refuges for wayfarers.” This group of people was subject to the jurisdiction of the bishop (art. 17 of the Church Statute of Vladimir). In a dispute between a church person and somebody under ordinary jurisdiction, a joint secular/church court was to be set up (art. 18 of the same). The role of the Church and its institutions and personnel is a factor of primordial importance in the law of medieval Russia, in respect of land ownership, status of persons, administration of justice, family and inheritance law, taxation, and other matters. It will therefore be dealt with in a separate Chapter (21). Foreigners The foreigner as an urban resident in early Kievan Russia is a questionable topic. In those days, Russian nationhood was gradually taking shape out of the amalgam of Eastern Slav tribes. At the same time Kievan society was in many ways multi-ethnic as in the preceding pre- and proto-historic centuries. Scandinavian traders and warriors had been around for ages and the chronicles offer ample evidence of the frequent and close contacts with other non-Slavic elements, particularly persons of various Turkic and Ugrian origin. Smaller 82 83

84

On the kliros, see Ia.N. Shchapov, Gosudarstvo i tserkov’ Drevnei Rusi x–xiii vv., Moskva, 1989, 124–131. In modern Russian kliros means “church choir”, and most translations of the Church Statute of Vladimir follow this meaning. Shchapov, who follows older Russian authors such as Tikhomirov (op. cit., 137), demonstrates convincingly that such a reading is anachronistic. Cf. Shchapov, loc. cit.

The Towns

439

numbers of Greeks, Arabs, Jews, Caucasians and Persians can be added. One might reasonably assume that some of these ‘foreigners’ would become settled, especially in the major towns, such as the capitals of principalities. As could be expected, the few indications available suggest that the general tendency was to equate the status of foreigners permanently or temporarily present among the native population with the status of the latter. In later centuries, when Kievan Russia had broken up into a loose collection of Russian principalities, and especially after the Mongol invasions, trade relations between European and Western Russian towns, such as Novgorod, Pskov and Smolensk, developed, resulting in the frequent residence of foreign merchants in these places. Their status was often the subject of legal regulation through treaties or through internal rules. See the section below on foreign merchants and the section on the Skra of Novgorod.

The Legal Framework of the Urban Economy

Towns were intimately connected, as discussed above, with the beginnings of Russian history. The oldest towns emerged in the 9th century as multi-ethnic way-stations for long-distance trade along the rivers. They might well have been set up in the localities of older tribal centres, but, especially in Northern Russia, towns could also arise in uninhabited areas. Where the town was located in a populated region, it would naturally also assume the role of a regional (short-distance) trading centre. The clear distinction between long-distance (foreign) and local trade is very characteristic of medieval Russia and (as mentioned above) is expressed through different terms for the persons engaging in such activities (gost’ for foreign trade merchant and kupets for a local trader), and the corresponding difference in social status: higher for the gost’.85 Beyond this external distinction, long-distance and local (regional) trade also differed in respect of the merchandise involved, a difference determined by the market. Archeological finds show the importance of oriental goods (especially silver and valuable cloth) as imports. Other sources (Arab and Icelandic) indicate that the principal exports consisted of furs and skins, and also slaves. Certain metal goods (especially Frankish swords) were a significant item of transit trade. Beeswax can probably be added to the list; it was an important export product in later times and the Russkaia Pravda mentions 85

From Indo-European ghosti (a stranger to whom one owes hospitality), as in Germanic languages (German Gaste, English “guest” ), but in Latin: hostis (“enemy”) and hospes (“host”, from *hosti-potes).

440

chapter 15

beehives repeatedly (arts. 32 Short Pravda, 71–72, 75–76, 107 and 109 Expanded Pravda).86 Domestic trade could be divided into strictly local trade, where rural producers and urban craftsmen offered their produce on the local market, and inter-regional trade, where goods were carried from one region of Kievan Russia to another. The latter activity was of special importance in respect of grain, which could not be grown in sufficient quantity in the Novgorod area and other parts of Northern Russia. Trade was not the only economic activity in the Russian medieval town, but it was central to all the others. Certain types of production would not reach the market because they were destined for use or consumption within the community where they were produced: the peasant household, the estate of a wealthy person, the monasterial economy. But any excess production would normally reach the market, be it the wares of an individual craftsman or of a group of artisans, or the agricultural or other production of secular or ecclesiastical estates, or the surplus of the peasant’s harvest. From the legal point of view, trade was regulated everywhere by trade practices, commercial custom, long before there was any question of identifiable commercial law. The latter emerged visibly when commercial custom was written down. This is why a systematic discussion of the commercial law of Kievan Russia is difficult. Certain trade practices were registered in documents which could be regarded as legal texts; as the incidence of such registrations grew, one might perhaps discern general lines, the beginning of a system. As ever in early medieval law, the question of the sources overshadows everything. For this reason attention has to focus mainly on the Expanded Version of the rp and the Court Charter of Pskov, by far the two most important sources of medieval commercial law in Russia. The range of commercial activities finds its legal expression primarily in contractual relationships. Such relationships are usually synallagmatic, which means that there is a potential material benefit to both sides. (Non-syllagmatic contracts, such as gift, where the donor’s obligation is not matched by an obligation of the donee, normally have no place in commerce.) In any system which accepts the freedom of contract, the range of contracts is in principle infinite, but most legal systems identify certain types of contracts. The old Roman scheme of do/facio ut des/facias provides a traditional guide (“I give/do (something) in order that you may give/do (something)”). It is of course based on distinguishing between transferring material goods (money and other things) and rendering services. 86

There is one reference in the Court Charter of Pskov, in art. 106.

The Towns

441

Do ut des: barter, purchase/sale, money loan, etc. Do ut facias or facio ut des: labour contract, works contract, hire, carriage, storage, etc. Facio ut facias: various association contracts. In a medieval setting many modern types of contracts are of course unknown, but on the other hand certain contracts between masters and various categories of persons with limited freedom have disappeared in modern times. Apart from the aspect of commercial law proper, two other aspects are of importance in elucidating the legal framework of the urban economy of Kievan Russia. One is the legal status of merchants, a subject discussed briefly above. The other one concerns the organization of the merchants as a distinct social group and their relations with the authorities, what one would designate in modern terms as the public law aspect of trade, a question we shall return to below. Commercial Law in the Expanded Pravda Commercial law proper made its first appearance in the Expanded Pravda, although commerce is mentioned, referred to, and implied in earlier legal documents, such as the treaties with Byzantium and the Short Pravda. This suggests that certain socio-economic shifts in the course of the 11th and 12th centuries favoured the legislative expression of particular aspects of commercial law, aspects which had largely been left unregulated in the Short Pravda. The considerable number of provisions concerning commercial law in the Expanded Pravda does indeed evoke a lively picture of trade in Russian towns during the Kievan era. Originally, the central legal vehicle for trade has always been the contract of barter where reciprocally desired goods are exchanged between the parties. At an early stage the contract of sale arose, where one side, instead of goods, offered money or something that could take the place of money. Although barter has remained very much alive until the present day, the contract of sale replaced it long ago as the main institution of commercial law. In Russia, this transformation had already taken place in the pre-Kievan era, with the eminent role of the silver trade. Still, the monetary nomenclature of Kievan Russia (kuny, veveritsa) reflected the use in times past of animal skins. The circumstances of trade in Kievan Russia would favour a situation where agreement about the sale, payment of the agreed price, and handing over of the goods would coincide in time. In such a situation legal problems would rarely arise. Various provisions of the Expanded Pravda dealt with certain complications that might occur, the most common of which would be the ­acquisition

442

chapter 15

of property from somebody who was not the owner. The Short Pravda already had a few provisions on this subject; arts. 32–39 of the Expanded Pravda constructed a more consistent and systematized complex of rules on the basis of the older rules from the Short Pravda. It will be more convenient therefore to examine the Expanded Pravda complex first. Art. 37 covered the purchase of stolen property (a horse, clothes, or livestock) at market. The buyer was to produce two free men or the market overseer, the mytnik, as eyewitnesses to testify (that the goods were indeed bought at market). If the buyer did not know whom he bought from, the eyewitnesses had to take an oath (to confirm the buyer’s statement); the original owner would then take his property back, without refunding the buyer. If the buyer subsequently recognized the person who sold him the goods, he could reclaim the money paid; the seller had to pay the original owner for any additional losses and a fine to the prince.87 The obvious question which art. 37 did not answer was: how to proceed when the buyer identified the seller? This question was actually answered by the surrounding provisions dealing with the ‘confrontment’ (svod) procedure in a broader context (not referring specifically to market sales). Art. 35 is the main rule: if one recognized lost or stolen property (horse, clothes, livestock) in another person’s hands, that person had to produce the person from whom he acquired it, and so on, until one reached the person who had acquired the property unlawfully from the original owner. If the confrontment procedure led out of town, the original owner would only have to go as far as the third confrontment; the third person in the chain would then have to pay the owner the price and could continue the procedure himself (art. 36). The term “out of town” (po zemliam) must be understood as referring to the surrounding region (under the authority of the local government). Art. 39 provided that there was no confrontment “in a different land” (v chiuzhiu zemliu); in such a case the possessor had to produce testimony by witnesses or a statement from the mytnik that he had bought the property (in good faith presumably), the original owner got his property back, and the possessor “mourned the loss”. The complex of rules concerning the involuntary loss of property was rounded off by art. 34, which concerned not theft, but the loss of property (in this cases the list embraced “a horse, weapons or clothing”). The loss must be announced publicly (na torgu – at the market);88 if the owner then recognized 87 88

This is the usual reading of the somewhat obscure text. See Pravda Russkaia, ii, 378–380; Rossiiskoe Zakonodatel’stvo, i, 97; Baranowski, 438–441. The public announcement at the market is also known to the Charter of Pskov, in arts. 39 and 44 (vzaklich’), and represents an archaic institution with parallels in Germanic

The Towns

443

his property in his own town, he could take it back and the person who held it was also to pay him 3 pounds za obidu (for the insult). These provisions make no mention of one of the most important objects of trade in Kievan Russia – slaves. This aspect is covered by arts. 32 and 38. Although slavery is traditionally defined as the state wherein human beings are considered as ‘things’, objects of ownership, without rights of their own, this view cannot be applied in its full rigour, because a slave remains a human being, able to think and act on its own and thereby radically different from all other objects of ownership. This consideration forms the background of the special legal treatment of slaves and was explicitly recognized in art. 38, the continuation of the preceding provision, where it said: “and this property is not cattle, so it is not possible to say «[I do not know] from whom I purchased [the slave]»; but [pursue the confrontment] on the [slave’s] word until the end”;89 unlike a horse or cattle, the slave can speak up and identify the seller. According to art. 38, the original owner who recognized a slave stolen from him had to start the confrontment procedure, i.e. he demanded that the new owner reveal how he had acquired the slave; this was continued until the third confrontment. Then the person named as owner in the third confrontment had to supply the original owner with a new slave instead of the stolen one and he himself continued the confrontment procedure; if this continuation led to discovery of the thief, the slaves were exchanged between their owners (i.e. the original owner got his slave back) and the thief paid them the losses and a heavy fine (12 pounds) to the prince.90 The explanation for the first exchange of slaves at the third confrontment is that the original owner is not to be burdened excessively by having to follow the confrontment procedure to the very end; the person identified at the third confrontment, however, needed the stolen slave to continue the confrontment procedure; he therefore supplied the original owner with another slave for the time being.91 A slave can obviously not be lost like the horse, weapons or clothing mentioned in art. 34. But a slave can run away and hide somewhere. This is what art. 32 deals with. The procedure parallels that of art. 34. The loss must again be announced at the market; the person who is hiding the slave then has three days to produce him. After the third day the owner (if he finds out the whereabouts of the slave) may take his slave back and also receives 3 pounds (grivna).

89 90 91

legal history; cf. Iu.G. Alekseev, Pskovskaia Sudnaia gramota i ee vremia, Moskva, 1980, 176–179. Kaiser’s translation, Laws, 24. Cf. A.A. Zimin, prp i, 155; Ia.N. Shchapov, rz i, 97–98; Baranowski, 441–444. Cf. Tikhomirov, Posobie, 94.

444

chapter 15

A short provision on the unauthorized use of another person’s horse is inserted as art. 33. The insertion is understandable, if one considers the working method of the compilers of such documents as the Russkaia Pravda; they did not proceed systematically like pandectists, but re-arranged and edited a set of pre-existing rules primarily by association. The general theme of arts. 32–39 of the Expanded Pravda is what the owner has to do when he has involuntarily lost his property, either by theft or simple loss, and he comes across it again. It then made sense to warn right at the beginning that the case of riding someone’s horse without permission was separate. It was implied of course, and this is additionally made clear in several following rules which cover theft and mention horses specifically, that in the case of art. 33 there was no intention to steal and that the horse would be returned after the unauthorized use. As in other societies which depended on the horse as the principal means of transportation, the theft of horses was regarded as a very serious crime in Kievan Russia.92 As noted above, the complex of arts. 32–39 in the Expanded Pravda belongs to the oldest layers of this text and is based on an older complex of rules in the Short Pravda, arts. 11–14 and 16. Art. 11 sp corresponds with art. 32 ep, but the provision refers only to a slave hiding specifically with a Viking or Kolbiag (a stranger, in any case), which is a much narrower formula than in art. 32 ep. Art. 12 sp, as mentioned above, is almost identical with art. 33 ep. Art. 34 ep refers to the discovery (by the owner) of a horse, weapons or clothes which were lost; art. 13 sp simply refers to the owner coming across his horse, weapons or clothes which had been ‘taken’ by someone; this would seem to cover not only lost goods, but also stolen ones; the owner can take back his property and receives 3 pounds za obidu (for the insult). Art. 14 sp represents a shorter version of the first part of art. 35 ep, the introduction of the confrontment procedure (the svod) being the central idea. Art. 14 sp provides that the owner who comes across the property he lost cannot just take it back but has to summon the possessor to come to a confrontment. This seems to contradict art. 13 sp, which appears to say that the owner can simply take his property back. Several explanations have been proposed, the simplest one being the one proposed by Shchapov: art. 13 sp represents the substantive side and defines the owner’s right, art. 14 sp adds the procedure: he has to go through the confrontment procedure.93 Art. 16 sp is a shorter 92

93

I have discussed the pedigree of art. 33 of the Expanded Pravda (which is itself taken over from art. 12 of the Short Pravda) in my Law in Medieval Russia. Law in Eastern Europe, No. 59, Leiden/Boston, 2009, 98–100. Shchapov in rz i, 56; see also Baranowski, 225–230.

The Towns

445

version of art. 38 ep, with less sophisticated wording. Altogether, the casuistic complex of arts. 11–14 and 16 sp has been transformed in arts. 32–39 ep into a more consistent and comprehensive set of rules covering a particular theme: involuntary loss of property. The complex of rules about retrieving slaves in the Expanded Pravda is completed by art. 114, which offers a procedure for reclaiming one’s slave when found in another town (the owner must invoke the help of the town’s mayor, the posadnik, in apprehending the slave). This rule forms part of one of the later components of the Expanded Pravda, the so-called Statute on Slavery (Ustav o kholopstve). The topics of sale and slavery turn up twice in this part of the Expanded Pravda. Art. 117 provides that the owner of a slave who allows the latter to trade in the market square becomes liable for the debts incurred by the slave; it adds “and he shall not be deprived of him”. This is interpreted by most commentators as meaning: “he is not entitled to give up the slave in lieu of the debt”. This would agree with the practice in most slave-owning societies where owners conduct commercial operations through slaves.94 Art. 118 covers the same subject as art. 38 (the original owner reclaiming the slave), but seen from the side of the last possessor. If the latter is confronted by the owner, he must swear that he did not know (that his seller was not the owner) and then his buying-price is paid back. If he was not in good faith, he loses his money. The Expanded Pravda also pays attention to other legal disputes that could arise in commercial transactions. The largest complex is formed by arts. 47–55, devoted mainly to debts and interest. This complex (at least as far as art. 52) is connected by several authors with the legislative activity of the Kievan grand prince Sviatopolk Iziaslavich (1093–1113).95 Art. 49, “on storage” (o poklazhai), could be regarded as a special kind of debt: if someone places goods for storage with somebody else, without witnesses, and later on claims that he stored more than he actually did, then the person who stored the goods may take the oath to determine the amount actually stored.96 The same applies to art. 54: if a merchant loses cargo 94 95

96

Cf. Baranowski, 695–696. Especially M.N. Tikhomirov, “Obshchestvenno-politicheskie otnosheniia v Drevnei Rusi i Russkaia Pravda”, A.P. Novosel’tsev (ed.), Drevnerusskoe gosudarstvo i ego mezhdunarodnoe znachenie, Moskva, 1965, 128–278, at 229 (not available to me); also Shchapov, rz i, 101 and Zimin, Pravda Russkaia, 223. In the storage contract of the Expanded Pravda, the commercial aspect is secondary; it is regarded primarily as a friendly gesture, a voluntary service (bologodel), and for that reason the evidentiary requirements for the depositee are lenient.

446

chapter 15

­belonging to others in a shipwreck, he is allowed to pay off the debt in annual instalments, except when he is himself to blame for the loss of the goods (“if he drinks to excess or gambles, and in his foolishness ruins someone else’s good, then [depending on what] suits them whose property [he lost], either to wait for him [to repay the loss] or sell [him into slavery] – the choice is theirs [whose property was lost].”).97 The main provision concerning debts is art. 47 which provides that the creditor must produce witnesses against an unwilling money debtor; the witnesses then must confirm the correctness of the creditor’s claim on oath (rota). If the debt has been left unpaid for many years, the debtor must additionally pay 3 pounds za obidu (for the insult). Whether this money is to be paid to the creditor or to the prince is unclear.98 The underlying rule implied by art. 47 is that loan contracts are to be concluded before witnesses. Art. 47 is the only provision in the complex which has its roots in the Short Pravda, in its art. 15. In art. 15 sp the procedure is different: the dispute is to be submitted to the izvod, a group of 12 persons, who apparently decide the matter. If the judgment is for the creditor, he receives back what the debtor owed him and there is an additional fine of 3 pounds. The location of art. 15 sp in a complex of rules concerning the involuntary loss of property has prompted many authors to explain it as a continuation of art. 14 sp (the confrontment procedure in case of a dispute about ownership). In the words of Shchapov: “One could agree with the old point of view of N.M. Karamzin, developed in our time by A.A. Zimin. The provision concerns the case where the thief has been exposed as a result of the confrontment, but where along with the goods recovered other unfound goods were identified, the return of which is demanded by the plaintiff.”99 Whatever the cogency of this argument, nobody has suggested that the scope of art. 47 ep (disputes about money debts in general) would be as limited as that of art. 15 sp, as interpreted by Shchapov and his predecessors (a dispute about additional debts of somebody exposed as a thief). The following art. 48 of the Expanded Pravda is devoted to the narrower subject of commercial credit, loans between merchants. When one merchant gives money to another merchant to engage in local or foreign trade (the text explicitly mentions the two forms of kuplia and gost’ba), there is no need for witnesses; the loan debtor may rely on his own oath. Several authors define the

97 Kaiser’s translation, Laws, 26. 98 Cf. Baranowski, 462–464. 99 In rz i, 56.

The Towns

447

relationship as a limited partnership, very much like the present tovarishchestvo na vere (the German Kommanditgesellschaft).100 A creditor who lends money against interest needs witnesses; the same rule applies when honey or grain is given out and increased repayment is agreed upon (art. 50). No witnesses are required when the sum loaned is 3 pounds or less; instead the creditor is allowed to confirm the correctness of his claim by oath (art. 52). The interest rate is regulated in arts. 51 and 53. The heading of art. 53 is “Statute of Volodimer Vsevolodich”; there is no doubt that this was the Kievan grand prince known as Vladimir Monomakh (his mother being a Byzantine princess of that dynasty). Art. 51 appears to have been inserted between arts. 50 and 52, belonging to the legislation of Monomakh’s predecessor, Sviatopolk Iziaslavich.101 Annual interest was 50%; shorter term interest was 20% per month. If the debt remained outstanding for 12 months or more, the monthly payments were to be returned and the annual rate would apply. The annual rate of 50% could be charged twice and then the creditor could demand the return of the principal. If the annual rate was charged for a third time, the creditor lost his right to the principal. The practical implication of this would seem to be that loans would not run beyond two years; the creditor would then have realized a 200% return (the principal and twice the annual interest). If he demanded interest for the third year, he would lose the principal and his return would be only 150% (three times the annual interest); if he did not ask for the interest, the loan would presumably continue to run, but it would in fact be interest-free. Commentators generally agree that the later commercial law complexes of the Expanded Pravda (the Statute of Monomakh in particular) are to be considered against the background of an economic crisis and were meant to alleviate to some extent its effects on the merchant class in an attempt to restore economic balance.102 This is demonstrated not only by the rules on limiting interest, but also by various rules granting merchants a more favourable status than ordinary citizens. The easing of the evidentiary burden for loans in art. 48 has been mentioned above; another example is art. 55 which spells out a kind of bankruptcy procedure for merchants. A foreign merchant (or merchant from another town) who has deposited goods with a merchant who is in debt is considered the most privileged creditor when the bankrupt merchant is to be sold into slavery (provided the creditor did not know about

100 Tikhomirov, Posobie, 96; Shchapov, rz i, 100. 101 Cf. Shchapov, rz i, 100. 102 E.g. Zimin, Pravda Russkaia, 223 ff.

448

chapter 15

the indebtedness).103 The balance is divided, first to satisfy the claims of the prince, and then equally between other creditors. A creditor who had charged too much interest is excluded from the division. It is to be noted that the medieval prohibition against charging interest,104 which so deeply affected the economy and the law of Western Europe, did not reach Russia. Priests and deacons, however, were subject to a universal canon law prohibition on accepting interest.105 Another commercial transaction, along with sales and loans, which is mentioned in the Expanded Pravda is the contract for supplying work: in arts. 96 and 97. The first one laid down the monetary value of the sustenance the builder of the town’s fortifications (the gorodnik) was entitled to; the second one did the same for the bridge-builder (the mostnik). The latter rule was based on an earlier one in the Short Pravda (art. 43). It is entirely clear from the wording of the provisions that the officials mentioned were specialists in charge of directing the work (which was done by the townspeople, according to Shchapov).106 Their fee would obviously depend on the size and duration of the work; arts. 96–97 merely spelled out what they were entitled to while the work was going on. The two articles have apparently been inserted arbitrarily in a long series of provisions concerning inheritance law. Commercial Law in the Charter of Pskov The next major document concerning commercial law, after the Expanded Pravda, is the Court Charter of Pskov, dated by almost all authors at some time in the period between 1462 and 1475. Information from the preceding period of about two-and-a-half centuries (according to the most reliable dating of the Expanded Pravda) is not altogether lacking, but is very fragmentary. At least two dozens of birch-bark texts give a surprisingly many-sided picture of commercial life in Novgorod in the fourteenth century (a few documents are from the 12th or 13th century). But their contents are usually of a starkly practical nature: brief instructions or requests, lists of goods or outstanding debts, and 103 Grekov, Kievskaia Rus’, 185–186, argues that the verb prodati (to sell) refers not to the debtor himself in this provision, but to his property. 104 Based, in my view, on a mistaken reading of Luke 6, 35. This passus (mutuum date, nihil inde sperantes, Russ. vzaimy davaite, ne ozhidaia nichego) is part of a long adhortation to be genuinely unselfish: if you loan money, you should not do so in the hope of deriving advantage or profit. It took the Western Church a long time to reach this view. 105 This was explicitly spelled out in the authoritative Questionary of Kirik (question 4); see the section on church legislation in Chapter 21. 106 rz i, 118.

The Towns

449

such things, so that they cannot really add much to our knowledge of the commercial law of the era.107 As has been explained in the section on the Pskov Charter, the presumed enactment date (sometime between 1462 and 1475) relates to only the final stage of the text. Most of its contents were probably already included in an earlier version which, according to the leading modern commentator Iu.G. Alekseev, can be dated to the year 1397, mentioned in the text itself.108 Whatever information about medieval commercial law in Russia can be gleaned from the Pskov Charter therefore concerns not only the 15th but also the 14th and possibly the 13th centuries. The gap between the Expanded Pravda and the Pskov Charter is therefore not as wide as it might seem at first sight. Moreover, it is generally accepted that the commercial law of Pskov was not very different from that of other medieval Russian towns. The Charter of Pskov can thus be regarded as representative of the commercial law of Russia in the period following the era of the rp. A peculiarity of the Pskov Charter is that it is very much a practical guide to the Pskov judges; almost every provision wraps the substantive rule in a procedural rule: “if such and such is the case, then decide as follows”.109 Not for nothing did N.N. Murzakevich who was the first to publish the full text in 1847 give it the name of Pskov Court Charter.110 Its main commercial law topics had already been mentioned in the Expanded Pravda and return in more developed and elaborate form in the Pskov Charter: storage, loans of various kinds, acquisition from somebody who is not the owner, pledges, interest, etc. The procedural focus determined to a great extent the scope of topics covered. Only those relationships which would most frequently give rise to disputes between parties and which would then be submitted to the court have been considered. The absence of rules on sale or barter is striking. Under such contracts the performances of the parties would normally be simultaneous. Problems would arise more easily when one side had performed its obligations fully or in part and the other side still had to perform its part of the bargain. This explains 107 See in particular L.V. Cherepnin, Novgorodskie berestianye gramoty kak istoricheskii istochnik, Moskva, 1969, 267–298. 108 rz i, 330–331. 109 The general similarity with classical Roman law is obvious, although the influence of Roman law on medieval Russian law is arguably non-existent or at least negligible. See the chapter on “Roman Law in Medieval Russia” in my Law in Medieval Russia, Leiden/Boston, 2009, 59–128. A legal text drafted as a guideline to judges will inevitably tend to formulate substantive claims as procedural options. 110 N.N. Murzakevich, Pskovskaia Sudnaia gramota, sostavlennaia v 1467 g. Izdana po spisku, khraniashchemusia v biblioteke kn. M.S. Vorontsova, Odessa, 1847.

450

chapter 15

why a considerable number of provisions are devoted to all kinds of relationships connected with loans. In such cases everything depended on evidence: How could the creditor prove that he had lent a certain amount of money? How could the debtor prove that he had already paid back the loan, or that he had never received any money? And so on. The Pskov Charter contains detailed rules about admissible evidence and the relative weight of various kinds of evidence. The substantive rule is then to be derived from the way the burden of proof has been divided among the parties. The most powerful evidentiary weapon was a document of which a copy had been deposited at the lar’, the official archives of Pskov, maintained at the Holy Trinity Cathedral.111 The zapis’ (note, esp. loan note) is the usual term for the formal document testifying to the existence of a contractual relationship. Of almost equal force is a zaklad, collateral on the basis of a pledge as a means to secure performance. A much less reliable instrument is the informal note or doska (pl. doski). The doska (the original meaning is ‘board’) had apparently been in general use in the past, but the Pskov Charter clearly attempts to relegate it to minor transactions only.112 Whenever the Charter intends to bolster the procedural position of one of the parties to the dispute (because it is in possession of a zapis’ or zaklad, or both, or for some other reason), it usually offers the privileged party a choice between ‘kissing’, ‘placing at the cross’, or the ‘field’. This shorthand refers to, respectively, swearing an oath (‘kissing the Cross’, which could effectively decide the case), delivering the disputed money or property into court (which would normally imply giving in to the demands of the other party), or accepting a judicial duel (where heavenly powers were believed to secure victory for the party who had right on its side). The first commercial contract encountered in the Charter is storage. In the Expanded Pravda this was still a more or less informal arrangement among persons who knew each other, but in the Pskov Charter it is fully commercialized.113 This finds expression in the strict formal requirements. Arts. 14–19 are 111 Cf. Zimin, prp ii, 340. Such documents are mentioned in arts. 14 (a will), 32 and 38 (a riadnitsa or poriadnia, a document embodying a contract), and 50 and 82 (various court documents to be sealed and verified by the Pskov cathedral archives). 112 Doska is frequently encountered in the Pskov Charter and rarely elsewhere, e.g. in the First Novg. Chr. under the year 1209. There are several explanations of the term; it could be connected with the birch-bark documents which were in current use in Novgorod and Pskov, or it could refer to boards between which the documents were kept in the form of a book. Cf. Zimin, prp ii, 339. 113 Zimin, prp ii, 339, makes the intriguing observation that the evolution of storage, as reflected in arts. 14–19 of the Pskov Charter, indicates the emergence of commercial

The Towns

451

devoted to various specific cases, but they allow us to reconstruct the general system of the law on storage (the Pskov Charter does not use the term poklazha, as in the Expanded Pravda, but zbliudenie or sbliudenie instead). The most general rule is art. 19, according to which claims for the return of stored goods based (only) on a doska and not accompanied by a list of the goods are not allowed. Art. 14 specifies this rule for three special cases. If the depositee has died and left a properly registered will (i.e. deposited in the Pskov cathedral archives), then whatever the will says about the stored goods will prevail over a doska. But if the storage is confirmed by a formal note (zapis’) or by pledged property (zaklad, collateral), then the depositor may file his claim against the heirs. Heirs who do not have a zapis’ or a zaklad, do not have a claim against persons enjoying such security (this rule concerns not only storage, but also loans and trading debts). In the manner typical of medieval legislation, the following article (15) continues the last thought of the preceding provision by stating that within the family the strict evidentiary rules do not apply. Arts. 16 and 17 are devoted to stored property destroyed by fire or lost on account of theft or an uprising. The texts are defective and this has given rise to different interpretations.114 What is clear is that in such cases the strict evidentiary rules are relaxed. Art. 17 allows the defendant a choice between a decisive oath or a judicial duel, or the return of the (value of the) property lost. Alekseev has suggested that arts. 16–17 may have been inspired by the Ecloga, which devoted a short Title xi to the question of stored property lost through theft or fire.115 The Ecloga provision had its roots in older Roman law, where along with fire and theft other accidental causes of loss of property (such as uprisings, natural disasters, etc.) were mentioned.116 However, a similar list appears in art. 54 of the Expanded Pravda (loss of property caused by shipwreck, military expropriation or fire), where Byzantine, let alone Roman influence is unlikely and this weakens Alekseev’s hypothesis. Art. 18 concerns the special case of agricultural storage in the countryside (po volosti) by certain dependent peasants having deposited property or grain, presumably with the person on whom they were dependent. In such cases the c­ orporations among the merchants of Pskov, but does not corroborate this statement. See the discussion of art. 92 below, concerning the question of siabrenichestvo. 114 Cf. Alekseev, Pskovskaia Sudnaia gramota, 73–77; Zimin, prp ii, 341–342; T.E. Novitskaia, rz i, 354–355. 115 Alekseev, Pskovskaia Sudnaia gramota, 75–76. 116 Most enumerations appear to be derived from Ulpian who mentioned uprisings, fire, destruction and shipwreck; cf. D. 16, 3, 1, 1.

452

chapter 15

depositee has the same options as the defendant in art. 17: take an oath, accept a judicial duel, or return the (value of the) property. The dependent peasants mentioned are the zakupen and the skotnik. The former is probably not much different from the zakup in the Expanded Pravda, an agricultural labourer, while the skotnik is obviously somebody employed in looking after cattle. Alekseev regards them as persons without a fixed residence; this fact, together with the modest amounts involved, would explain the more informal character of this particular kind of storage.117 The most important commercial subject regulated by the Pskov Charter is loans (the usual term in the Charter is ssuda). The main block of rules is arts. 28–38 (arts. 34–35 are about theft) and further down the text a number of more or less isolated provisions can be found. The accent, similar to the rules on storage, is on the ways the existence of a loan can be proved. Art. 28 defines the case when a loan has been documented by doski and secured by a pledge. The creditor then has the choice (when the debtor defaults) of confirming the existence of the loan by oath or of offering to return the pledged property in court (against repayment of the loan, obviously). A duel is not allowed in such a case and the validity of the doski is recognized. When the existence of a loan is indicated only by the presence of collateral (pledged property) and there is no doska, it is the loan debtor who has the choice of confirming the existence or non-existence of the loan by oath or of offering to repay the loan in court against the return of the collateral (art. 29). Loans in excess of one ruble and confirmed only by a doska, but not by collateral, cannot be reclaimed in court; for small loans (less than one ruble) a mere doska is acceptable, although not conclusive, evidence (art. 30). The latter point is not made explicitly in art. 30, but it follows from art. 36 (see below) which describes a specific instance of a claim concerning a small loan and which grants certain categories of persons the option of hiring somebody to fight the judicial duel for them. The Pskov ruble from the times of the Charter was the equivalent of the 3 pounds (grivna) of art. 52 of the Expanded Pravda (see above); according to Alekseev, this sum was the price of a herd of 20–30 sheep.118 Art. 31 goes back to the case of art. 28 (loan with doska and collateral) and concerns the complication when the collateral appears to be insufficient to repay the loan. If, in such a case, the alleged loan debtor denies the existence of the loan and of any confirming pledge, then the creditor keeps the collateral and the case is over. (There is some contradiction here with art. 28 which 117 Cf. Alekseev, Pskovskaia Sudnaia gramota, 76–77; Novitskaia, rz i, 355; Zimin, prp ii, 342. 118 Alekseev, Pskovskaia Sudnaia gramota, 78; Novitskaia, rz i, 359.

The Towns

453

grants the creditor two options; the creditor would appear to be better off relying on art. 28, while the debtor is offered an easy way out by art. 31, provided the value of the debt exceeds the value of the collateral. Zimin is one of the few authors who has spotted this problem and he proposed to solve it by distinguishing between the two cases: art. 28 was meant to deal with loans secured by a pledge recognized by the debtor, while art. 31 envisaged the situation where the loan debtor denied the existence of a pledge.119 I do not find this convincing, but the obscurity of the text makes it difficult to find a satisfactory solution.) The next provision (art. 32) describes a specific situation, but the main rule to be derived from it is that the deposition of a document establishing the repayment of a loan in the cathedral archives produced incontrovertible proof of such repayment. Otherwise the creditor may proceed to seek repayment from the debtor or from the person who guaranteed the loan (the poruchnik). Art. 33 adds that only loans of up to one ruble may be secured by a guarantee (poruka). In actions based on a doska (according to art. 30 these would be actions about loans of less than one ruble), persons who are unable or unqualified to fight a duel (women, children, old people, invalids, monks, nuns) may hire a replacement, but should take the oath themselves; if a replacement is hired, the opponent is also free to hire a replacement (art. 36) Art. 38 repeats the principle expressed in art. 32 (which concerned a loan backed by guaranty) by stipulating that a document establishing the repayment of a trade loan (torgovye den’gi), but not registered (deposited as a copy) in the cathedral archives, has no evidentiary force.120 The trade loan (torgovlia)121 is mentioned along with the ordinary loan in art. 45, without receiving special treatment. But in art. 101 the trade loan, along with guaranty and certain other special items, is treated differently from the ordinary loan; in disputes about such items the defendant may choose to engage in a judicial duel or take an oath.122 119 Zimin, prp ii, 346, 348. 120 A more detailed analysis of arts. 32 and 38 and the meaning of the term riadnitsa (translated as “document” by Kaiser, “receipt” by Vernadsky, and “arrangement” by Szeftel/Eck) in S.N. Kisterev, “«Riadnitsa» v stat’iakh 32 i 38 Pskovskoi sudnoi gramoty”, S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, vyp.4, Moskva, 2000, 71–84. 121 Both Zimin (prp ii, 311) and Kaiser, Laws, 95, translate torgovlia as trade loan (torgovaia ssuda). 122 The main commentaries diverge in the interpretation of this rule. Zimin, prp ii, 372, regards art. 101 as envisaging all kinds of suits concerning trade loans and sees a contradiction with art. 45, which disallows among other things all loan suits which do not contain an enumeration of the money or property concerned. N.A. Semiderkin, rz i, 380, argues

454

chapter 15

Another special type of loan (called pokruta) is envisaged in arts. 44 and 51: where a landowner had lent money or grain to his izornik (and other dependent persons) and the izornik denied having received a loan from his master. It need not be discussed here, because it is part of a rural setting and has no direct connections with urban commercial life.123 The question of interest connected with a loan is dealt with in arts. 73–74. The Pskov Charter does not limit interest, as the Expanded Pravda does, but instead allows interest only if there is an official loan note (a zapis’) which specifies the interest due and if the interest due is announced to the Pskov authorities (gospode) at the proper time. If the creditor fails to do so, he loses his right to interest. He also loses his right to interest if he claims repayment of the loan before the time agreed in the contract. If the debtor repays the loan before the agreed time, the interest is reduced accordingly. The final provision concerning loans is art. 93, which provides that a loan debtor who has absconded by the time repayment is due also has to pay the costs connected with the enforcement of the creditor’s claim. Pledge (zaklad)124 is usually mentioned in the same breath as a zapis’ (loan note) in provisions which concern loans. There are also a few other provisions devoted to pledge (or mortgage). Although the property pledged would normally be placed in the possession of the creditor, this is not possible in the case of future property (the future harvest or next spring’s catch of a fisherman, art. 43) or of land, bodies of water or houses (art. 104). In the latter case special documents (gramoty) are required; the provision also regulates the situation when several mortgage creditors of the deceased turn up and the heirs want to pay off the debts. In such a case creditors who possess a mortgage document as well as a loan note are privileged; creditors who only have a mortgage document have to confirm the existence of a loan debt by oath.125 Art. 107 deals with the dispute which arises when the alleged creditor denies having lent any money and received any collateral. He is given the usual choice between swearing (that everything was as he said it was), depositing the colthat art. 101 only concerns suits containing such an enumeration and therefore does not come into conflict with art. 45. 123 On the thorny problem of the izornik, see the special chapter in Alekseev, Psovskaia Sudnaia gramota, 145–203 and also K.V. Petrov, “Dogovor «izornika s gosudarem» Pskovskoi Sudnoi gramoty (rekonstruktsiia)”, A.Iu. Dvornichenko (ed.), Issledovaniia po istorii srednevekovoi Rusi. K 80-letiiu Iuriia Georgievicha Alekseeva, Moskva/Sankt-Peterburg, 2006, 113–126. 124 It is the same as the modern Russian term zalog; the verb used in the Pskov Charter is zalozhit’, see art. 43. 125 Cf. Zimin, prp ii, 321 (translation) and 373 (comments).

The Towns

455

lateral at the Cross (he returns the collateral and receives his loan back), or fighting a duel. Another topic which is usually related to loans is guarantee (poruka), where a third person guarantees the debtor’s performance. Art. 33 has been referred to above; it allows only small loans (up to one ruble) to be guaranteed. This restriction need not apply to other contracts where the performance is guaranteed. The main point of art. 45 is that a detailed list of property is required in a number of disputes: about trade loans, ordinary loans, storage, guaranty, and escheated property. Art. 54 describes the procedure to be followed by a person accused of theft: if he indicates the person from whom he acquired certain goods, the prosecution will be aimed at that person and the first accused becomes the latter’s guarantor; obviously, the value would then not be limited to one ruble. This provision (art. 54) also leads us to the subject of the acquisition of property from somebody who is not the owner. Two provisions (arts. 46 and 56) deal with it, each looking at it from a different angle. Art. 46 describes the position of the original owner. If he finds some property which he lost in the possession of another and that person declares that he bought it on the market from an unknown seller, the new owner is allowed to swear an oath that he acquired the property in good faith and then the original owner’s claim fails. The term “good faith” is not used, but instead the new owner declares that he did not steal the property but bought it on the market, that he did not know the seller, and that he had not entered into a deal with the actual thief. Art. 56 allows the buyer on the market who did not know the seller to produce four or five reliable witnesses to declare that they witnessed the sale; this will defeat the claim of somebody who claims to be the owner. If the witnesses cannot be found, the market buyer is allowed to swear an oath and this will also exonerate him. The second part of art. 56 does not add anything to what had already been laid down in art. 46. The system of the Pskov Charter obviously echoes art. 37 of the Expanded Pravda but is clearly more favourable to the buyer.126 Art. 47 extends the protection which art. 46 accords the bona fide market buyer to anybody who had bought something abroad or in the town, or found it somewhere, by prescribing the same procedure. Kaiser translates na chiuzhei zemli ili na gorode as “in another land or city [but not at the market]”; this does indeed make sense because the scope of arts. 46 and 56 is limited to market transactions and art. 47 would then exceptionally apply the beneficial regime of these provisions to transactions which had been effected abroad, in order to 126 Cf. Zimin, prp ii, 356, 360.

456

chapter 15

avoid the difficulty of proving the circumstances of these transactions. Zimin and Kleandrova, however, in their respective comments on art. 47 understand na gorode not as a foreign (or at last another) town, but as opposed to na torgu (at the market).127 This seems to be more plausible linguistically, but it raises the question concerning the sense of including arts. 46 and 56: the lex generalis of art. 47 does not require the repetition of the more specialized rules of arts. 46 and 56. The Pskov Charter refers in quite clear terms to some form of commercial partnership, but the texts give only a general outline. Art. 92 concerns disputes about siabrenago serebra, the money of siabry. This is usually considered as money contributed to some common enterprise and also property held jointly by several owners (land or beehives, in art. 106). In both cases the exact nature of the partnership remains obscure. Art. 92 speaks about “money invested in a joint enterprise”128 or “money [advanced] for a mutual endeavor”129 and then continues “or any other, except a local or long-distance trading [endeavor]” (oproch’ kupetskago dela i gostebnago); this obviously raises the question of what sort of partnership the provision has in mind. In art. 106 there is talk of a multitude of siabry who are jointly entitled to a certain stretch of land in which each of them is entitled to a specific parcel. The individual siabr thus enjoys two rights: to his own piece, and jointly with the other siabry to the entire plot. As the relationship between these two rights remains unclear, the entire institution of siabrenichestvo is also obscure. Alekseev regards it as an archaic leftover from the times of the rp, where it was not regulated because it was part of customary law.130 In the Expanded Pravda the contract for supplying work was regulated only with regard to the question of the amount of sustenance certain persons (the gorodniki and the mostniki) were entitled to. The Pskov Charter deals with this contract in a more substantive manner in arts. 39–41. In these provisions the hired craftsman (naimit) is the central person. Art. 39 mentions “a master” (master), “a carpenter” (plotnik) and a “hired [craftsman]” (naimit);131 art. 40 is devoted to the house craftsman (naimit dvornoi); and art. 41 to the hired ­carpenter (naimit plotnik). What the provisions make clear is that the hired craftsman (embracing all these categories) is a legally independent person who either contracted to do a particular job (as in arts. 39 and 41) or agreed to work 127 Zimin, prp ii, 311 (translation) and 356 (comments); V.M. Kleandrova, rz i, 366–367. 128 Zimin’s translation of siabrenoe serebro, prp ii, 319. 129 Kaiser’s translation, Laws, 101. 130 Alekseev, Pskovskaia Sudnaia gramota, 84–85; in the same vein Semiderkin, rz i, 377. 131 Zimin (prp ii, 351) regards the master carpenter as one person.

The Towns

457

a certain length of time for his gosudar’ (employer; as in arts. 39 and 40).132 The naimit is allowed to sue for his wages; the procedures prescribed by the three provisions are not identical. The house craftsman of art. 40 is apparently the one who is economically most dependent; art. 40 allows him to sue for his wages within one year after leaving his work, even if he has worked without wages for five or even ten years. In arts. 39–40 it is implied that the contract is normally not written down (although there might be an informal note in the form of a doska) and the procedures are tailored to deal with that aspect. Only in the case of the hired carpenter of art. 41 is the procedure supplied said to be applicable to the case where there is no written contract (zapis’), which suggests that the contract was normally or at last frequently written down in the special form of a zapis’. The independent position of the master is illustrated additionally by art. 102 which deals with legal actions concerning the costs of apprenticeship between a master and his apprentice. The degree of socio-economic dependence of the craftsmen covered by arts. 39–41 must be distinguished from their legal position. As indicated above, there were probably significant differences between the various categories and, moreover, these differences probably developed in the course of the centuries concerned. The chapter on the naimit in Alekseev’s 1981 monograph on the Pskov Charter is devoted mainly to these developments. If the commercial law embodied in the Court Charter of Pskov is compared to the same subject as reflected in the Expanded Pravda, the following points spring to mind. The Pskov Charter undoubtedly continued to build in a number of cases on the groundwork of the Expanded Pravda, although under changed economic circumstances. Slavery apparently had disappeared. Commercial relations have become more sophisticated, and this is demonstrated by the amount of detail in the regulation of certain topics. The role of credit has increased, which explains the large number of provisions dedicated to loans, because an unpaid commercial debt can be regarded as a loan. The practical problem with loans and many other commercial obligations is how to prove them. The Pskov Charter, which, as indicated, is primarily a guidebook for courts, seems to be mostly about evidence. The document in writing was clearly the preferred form, but had not yet ousted older forms of evidence. The Charter gives prominence to the oath, next to the informal note (the doska).

132 Cf. Alekseev, Pskovskaia Sudnaia gramota, 135–144 (the chapter on Naimit i ego gosudar’); Zimin, prp ii, 351–352; Kleandrova, rz i, 363–364.

458

chapter 15

Other Sources of Commercial Law The Smolensk Pravda of 1229 was in fact a treaty between the prince of Smolensk and the Hanseatic merchants of Riga and Visby (the ‘Gothic Coast’) and will be discussed below in the section concerning foreign merchants. Its contents mainly concern commercial relationships and are based primarily on the Expanded Version of the rp. Trade Regulation and Taxation The public law aspect of trade, i.e. the relations between trade and merchants and, on the other side, public authority, cropped up as early as in the ­treaties with Byzantium. Art. 8 of the 911 treaty provided that ships stranded on the coast of the other treaty partner were to be assisted and their cargoes to remain unharmed.133 The usefulness of such an arrangement was obvious, considering that navigation close to the coast of the Black Sea was the rule at that time. Almost everything else about the regulation of trade and the position of merchants appears in sources concerning Novgorod and will therefore be discussed in the following chapter. Taxation was obviously a major aspect of the interface between trade and public authority. Almost all information concerning commercial taxation dates from the period after the Mongol invasion and the Tataro-Mongol impact on fiscal matters had demonstrably been fundamental.134 The earlier situation remains therefore largely a blank space, with the exception of the brief mention of princely income from trade in the Church Statute of Vladimir, of which the tenth week was assigned to the Church.135 These words referred, albeit implicitly, to income from taxation on trade, and not to income from trade in general (in the earliest times one could expect the survival of the Viking tradition of the ruler’s participation in foreign trade). This is confirmed by later sources which addressed the question of the actual extent of the princely income from which the church tithes were withheld.136 All we know then is that even in the earliest Kievan times there existed some kind of market tax. 133 Cf. P.V. Savas’kov, “Normy mezhdunarodnogo morskogo prava v dogovorakh drevnerusskogo gosudarstva, zakliuchennykh s Vizantiei”, Vestnik mgu, seriia pravo, 1973, No. 4, 77–83. 134 A brief discussion of Mongol taxation in D. Ostrowski, Muscovy and the Mongols, Cambridge, 1998, 118–125. 135 “ … iz torgu desiatuiu nedeliu”, in several of the oldest redactions; cf. prp i, 237, 244; rz i, 140, 148. 136 See V.B. Perkhavko, Torgovyi mir srednevekovoi Rusi, Moskva, 2006, 287–292, based on Ia.N. Shchapov’s extensive work on this subject, e.g. Kniazheskie ustavy i tserkov’ v Drevnei Rusi. xi–xiv vv., Moskva, 1972 and Drevnerusskie kniazheskie ustavy. xi–xv vv., Moskva, 1976.

The Towns

459

The following list of names of taxes, duties and similar impositions applicable to trade indicates that fiscal authorities in medieval Russia were as inventive as their present-day colleagues.137 Ambarshchina – a tax levied from foreign merchants for their stay in the ‘merchants’ court’ (gostinnyi dvor) and for storing their goods (ambar, warehouse). Delarnoe, deliarnoe – a tax on river vessels. Desiatinnaia – a 10% tax on furs. Driagil’noe – a stamp duty for packaging and sealing goods. Golovshchina – a tax imposed at some transit point on the number of persons (golova, head) accompanying the goods. Gostinniki – a tax imposed on foreign merchants. Gostin(n)oe – a tax on commercial goods, esp. in connection with staying in the gostinnyi dvor. Iavlennoe, iavnoe – a tax on goods presented at a customs office. Kostki – a transit tax on merchants, often for the benefit of the Church. Kuna, kunitsa – originally ‘marten skin’, then monetary unit, also a tax in kind on skins. Mostovoe – a fee for passing a bridge (most). Myt – transit tax on goods; toll. Mytovoe – transit tax on goods. Naklo – id. Otvoz – a tax on goods destined for other Russian towns. Piatno – a tax on the sale of cattle (piatno, spot, stain, mark). Pomernoe – a fee for weighing bulk goods such as grain or salt; also: ­podymnoe, pudovshchina, veschee. Posazhennoe – a tax based on the length of a river vessel (sazhen’, c. 2.13 m). Poshlina – tax in general Povorotnoe – a fee for taking goods in and out of the gostinnyi dvor. Proezd – a tax on transit goods. Promyt – a punitive tax for avoiding myt by taking another road. Propiaten’e – a punitive tax for non-payment of piatno for the buying of a horse. Protamozh’e – a punitive tax for avoiding customs duty (also protamga). Provodnoe – the fee for accompanying a caravan. 137 Based mainly on V.B. Perkhavko, op. cit., 557–594 and also on S.A. Kozlov, Z.V. Dmitrieva, Nalogi v Rossii do xix v., Sankt-Peterburg, 2001, 22–24.

460

chapter 15

Provoz – a tax on transit travellers. Skupnoe – a sales tax on goods bought wholesale at a reduced rate. Tamga – a tax on trade introduced by the Mongols. Uturnoe – a tax on ships. Uzol’tsovaia poshlina – a tax on sacks (uzel, knot) in carts. Voznichee, vosmnichee, osmichnoe – a tax based on the price of the goods sold. Zapoved’ – a punitive tax for avoiding kostki This list does not reflect a coherent fiscal system, applicable at a certain time; some of the impositions may have been applied only locally or during a certain period, and may have been of little significance. Among the major commercial taxes the myt is to be mentioned first, as it appears in numerous treaties between princes (incl. the Novgorod republic). Often the treaties provide that myt will be levied as of old and that no new myty will be introduced.138 In other cases the treaty forbad one side to impose myt.139 It is clear that the myt was a transit tax or toll, imposed on commercial goods at certain points of transit, which were also called myt. The usual place for collecting it was the point of entrance of a road into a market town. It was normally accompanied by kostki, a personal tax on the trading persons themselves. The considerable body of treaties in which these taxes are mentioned suggests that the practice of imposing myt and kostki was traditional, wide-spread and stable and that the amounts involved were relatively modest.140 The penalties for evasion, on the other hand, were relatively high.141 The official responsible for collecting myt was the mytnik. He is already mentioned in arts. 37 and 39 of the Expanded Pravda (discussed above in the section on commercial law) as a market supervisor who is in a position to testify concerning specific transactions. This suggests that the myt constituted a very old tax and that it was collected at or near the market. 138 E.g. a 1402 treaty between the grand princes of Moscow and Riazan’, ddg No. 19, 52–55. 139 E.g. the third treaty between Novgorod and Iaroslav Iaroslavich, its titular prince, of 1270, gvnp No. 3, 11–13; prp ii, 138–141; commentary, prp ii, 153–157. 140 The treaties between Moscow and Tver’ mention one den’ga for a cart and two altyns (=12 den’gi) for every section (doska) of a ship. Cf. esp. E.N. Lan’ko, “K voprosu o torgovle i sbore poshlin v Tverskoi zemle xiv–xv vv.”, A.Iu. Dvornichenko (ed.), Issledovaniia po istorii srednevekovoi Rusi. K 80-letiiu Iuriia Georgievicha Alekseeva, Moskva/Sankt-Peterburg, 2004, 254–261. The principality of Tver’, straddling the major roads between Novgorod and Moscow, was of particular importance for transit trade. 141 Ibidem.

The Towns

461

If myt and kostki, as transit taxes or customs duties, applied to inter-regional and long-distance trade, sales were subject to sales taxes. The practical problem of levying a sales tax limited its applicability to transactions that could be controlled by the fiscal powers, such as market sales or the turnover of a merchant. The sources regularly mention the tamgá and the osmnichee (spelling varies). Most authors appear to regard these as two separate taxes, but Ia.N. Shchapov has put forward a plausible argument in favour of the view that the osmnichee applied specifically to the sale of grain, which was measured in osminy.142 A number of treaties between Moscow and Tver’ and Riazan’143 indicate that the rate remained steady over a long period: one altyn to the ruble.144 From the fact that myt, tamga and osmnichee appear in the testaments of the Moscow grand princes among the most important assets, along with land, one can conclude that these taxes constituted a major source of income. The proceeds from the osmnichee were usually assigned to the dowager grand princess (the testator’s mother) if she was still alive and otherwise to the testator’s spouse. A related topic of market regulation was the matter of weights and measures. A late addition to the Church Statute of Vladimir145 assigned the supervision of weights and measures, as a divinely ordained power, to the Church, referring to the Old Testament and other religious authorities.146 The first ­reliably dated mention was in the 1229 treaty (the Smolensk Pravda) between Smolensk and Riga and the Gothic Coast (in fact the Hanseatic League). Several of its remaining versions contained a provision which referred to a standard measure for weights which was being kept in Smolensk in two copies, in the Russian and the Latin churches.147 An earlier Smolensk document, the Charter of Rostislav Mstislavich of 1136 which regulated the bishop’s income in great detail, did not mention any ecclesiastical involvement in weights and measures (and the income derived from it) and this gives reason to assume that the Church managed to acquire control over this matter in the following 142 Cf. his commentaries to the Church Statute of Iaroslav in prp i, 280, and to the so-called Iaroslav’s Law on Bridges, in rz i, 240. 143 Between Moscow and Tver’ of 1396: ddg No. 15, 42; of ±1456: ddg No. 59, 188; of 1462/64: ddg No. 63, 203; of 1484: ddg No. 79, 298; between Moscow and Riazan’ of 1434: ddg No. 33, 86; of 1447: ddg No. 47, 145. 144 One altyn equaled 6 den’gi, and 200 (or 220) den’gi were equal to one ruble. This would result in a 3% sales tax. Other sources mention a slightly different equation (100 altyn = 3 rubles), resulting in a 3.33% rate. 145 prp i, 242, 245–246; rz i, 149; Beneshevich i, 71–72; Kaiser, 43–44. 146 See Leviticus 19, 35–36; Deuteronomy 25, 13–15, and Ezechiel 45, 10. 147 prp ii, 67.

462

chapter 15

period, roughly around the end of the 12th century.148 Shchapov observed that this development paralleled the course of events in Western and Central Europe. Previously, supervision of weights and measures (and the income from it) was presumably a responsibility of the secular powers. The sporadic evidence suggests that there were considerable local differences and that it was a matter which mainly concerned the local bishop and not the Russian Church as a whole. In later centuries the state gradually succeeded in reclaiming this power and the revenues produced by it.149 The adjudication of commercial disputes and the income generated by it will be discussed in Chapter 22, on Courts and Justice. Foreign Merchants The position and treatment of foreign merchants already appeared as prominent topics in the 10th century treaties between Kievan Russia and Byzantium, particularly in the 907 and 944 treaties (see the special Chapter 3 dealing with this subject). The focus was very much on the position of Russian merchants in Constantinople and the treaties therefore offer little information on the status of foreign merchants in Russia under Russian law. The text of the 907 treaty as communicated by the Primary Chronicle ­appears to present merely fragmentary summaries of what had been agreed as the result of a successful raid by the Kievan grand prince Oleg. Along with tribute to be paid to Kiev and other Russian cities, Russian merchants were to receive provisions for a period of six months and the necessary equipment for the return journey. They were freed from paying commercial taxes. They could only enter the city of Constantinople in groups of fifty, unarmed and accompanied by a Byzantine official. Then they were housed in the St. Mamas’ quarter where their names would be recorded and they would receive their monthly allowance. They were to refrain from engaging in violence on Byzantine territory. No allowances were granted to Russians who came without merchandise. The 911 treaty was silent on the matter of tribute and was concerned ­primarily with regulating various questions connected with the presence of 148 See Ia.N. Shchapov, “Iz istorii gorodskogo upravleniia v Drevnei Rusi. Sluzhba mer i vesov”, Ia.N. Shchapov, Ocherki russkoi istorii, istochnikovedeniia, arkheografii, Moskva, 2004, 34–39 (first published in Goroda v feodal’noi Rossii. Sbornik statei pamiati N.V. Ustiugova, Moskva, 1966, 99–104). A different version of this paper was also included in Shchapov’s Gosudarstvo i tserkov’ Drevnei Rusi x–xiii vv., Moskva, 1989, 90–94. My survey is based mainly on Shchapov’s writings. 149 See also Ia.N. Shchapov, Gosudarstvo i tserkov’ Drevnei Rusi x–xiii vv., Moskva, 1989, 90–94.

The Towns

463

Russian merchants in Constantinople: disputes and fights between Russians and Greeks, the estate of a Russian merchant dying abroad, disputes concerning slaves, etc. The main provisions which applied especially in Russia were the rules about shipwreck and related disasters; they were designed to protect those who had been affected against the prevailing ancient principle of declaring all shipwrecked goods forfeit and robbing the shipwrecked of almost all rights (the ius naufragii).150 The 944 treaty took up the thread of the 907 treaty; it was again silent (like the 911 treaty) on the question of tribute – which may have been a temporary and one-off imposition – but the monthly allowance to Russian visitors, whether government agents or merchants, was retained, as well as the procedure for recognizing their status and their housing in the St. Mamas’ quarter. In general, all the provisions of the 907 treaty were repeated and much more detail concerning the Russians’ rights to trade was added. They were, for instance, not allowed to buy silk above the value of 50 bezants. The rules to protect Greek ships and sailors who had suffered shipwreck on shores controlled by the Russians were taken over from the 911 treaty. Legal texts from later years and concerning foreign trade relationships and foreign merchants have survived only in North-Western Russia, especially in the laws of cities such as Novgorod, Pskov and Smolensk. As Novgorod and Pskov will be treated separately as more or less independent legal microcosms, the discussion can be limited here to Smolensk. As indicated before, the Smolensk Pravda is the principal source. The treaty of the ‘unknown prince’ with the Hanseatic merchants of Riga and Visby appears to be based on the Smolensk Pravda and does not offer much additional information. The general tenor of the Smolensk Pravda is the creation of favourable conditions for foreign trade. This is achieved especially by making the foreign merchant, whether German or Russian, the privileged creditor on foreign territory: in contracts of sale (art. 5); when the Hanseatic creditor and the Smolensk authorities (the prince) had competing claims (art. 6); in a claim against a deceased slave’s estate (art. 7). Other provisions which favoured the foreign merchant are arts. 9–10 (foreign merchants were not obliged to submit to ordeals or duels as evidentiary instruments), arts. 19 and 30 (the foreign merchant was completely free in buying and selling goods), art. 31 (freedom from paying myt, toll fees), art. 20 (freedom to trade in other parts of each other’s 150 Cf. P.V. Savas’kov, “Normy mezhdunarodnogo morskogo prava v dogovorakh drevnerusskogo gosudarstva, zakliuchennykh s Vizantiei v X veke”, Vestnik mgu, ser. ist., No. 4, 1973, 77–83.

464

chapter 15

territories; this even included the city of Lübeck for the Russians), and others. Many of these provisions represent amended versions of rules from the rp.151 Some of the other provisions seem to aim especially at streamlining procedure and simplification: art. 34 provided that disputes were to be settled in a single procedure without the possibility of appeal; a contract of sale could not be rescinded once the goods had been delivered (art. 21); before sending a bailiff to a foreign merchant the claimant must submit the case to the alderman of the foreign merchants’ guild (art. 22); a foreign merchant with a claim against a local resident must seek the aid of a local official (the bailiff, detskii, or the tiun; art. 14); in cases between a foreign and a local merchant, the court will apply the lex loci (art. 23). Practical aspects of long-distance trade are illustrated by a number of rules concerning portage (arts. 15–18, 35); Smolensk itself is situated on the Dnepr and some of the tributaries of the Dnepr (flowing to the Black Sea) and the Western Dvina (entering the Baltic Sea at Riga) come very close together. Art. 36 granted both Smolensk and Hanseatic ships free passage along the whole length of the Western Dvina. During the trip, merchants were free to deal with thieves as they saw fit (art. 33). Art. 37, echoing art. 8 of the 911 treaty between the Russians and the Greeks, protected foreign merchants who had suffered shipwreck. An interesting footnote to the subject of the legal position of foreign merchants is provided by a collection of foreign trade agreements concluded by or on behalf of the city and principality of Polotsk. As explained elsewhere, Polotsk, although one of the oldest Russian principalities, hardly participated in the ups and downs of medieval Russia because it was absorbed at an early stage by the emerging Lithuanian state, without, however, losing its identity. A number of commercial treaties between Polotsk and Baltic partners (the bishop of Riga, the master of the German Order, among others) are available, covering the period from 1263 (when Polotsk was still an independent Russian principality) to 1447 (the last treaty concluded by Kazimir, king of Poland and grand prince of Lithuania). The continuity of the contents is one of the striking features of these treaties. They generally stipulate the freedom to trade, on a mutual basis (i.e. Polotsk merchants in Riga, Riga merchants in Polotsk), the jurisdiction of local courts in all commercial disputes, and they pay much attention to the question of weighing merchandise.152

151 See especially Zimin, prp ii, 78–82. 152 Cf. A.L. Khoroshkevich (comp.), Polotskie gramoty xiii – nachala xvi vv., Moskva, 1977.

chapter 16

Novgorod and Pskov I

Velikii Novgorod1

Among the medieval Russian principalities, Novgorod merits special treatment on account of a number of unique features, also reflected in its legal system. Although there was never any doubt that it, like for instance the principalities of Vladimir and Rostov, belonged to Russia, and usually, like them, had a prince from one of the Rurikid sub-dynasties, the latter was normally the ruler in name only. Novgorod was governed, until it lost its independence in 1471, by its own citizenship. Moreover, its geographical position and its history had made it into the pre-eminent contact zone between Russia and Western Europe; its foreign trade made it the wealthiest and most cosmopolitan of all medieval Russian polities. Finally, Novgorod, unlike the other principalities, constituted a semi-colonial empire consisting of a vast territory populated by non-Russian peoples, controlled by and economically subordinated to a metropolitan centre. Slavic tribes had begun to penetrate into the heavily forested regions of North-West Russia in the course of the 8th or perhaps already the end of the 7th century. Their primitive agricultural economy could co-exist relatively peacefully with the sparse Finnish population of hunters and gatherers. In the following century the dense network of waterways of the area became the scene of increased commercial traffic between Scandinavia and Byzantium (along the Dnepr), and Scandinavia and the Near East (along the Volga). The first permanently inhabited trading-posts emerged along the inter-connected waterways of the Ladoga and Il’men’ lakes and the Volkhov and Lovat’ rivers, north-west of the watershed between the three major river basins, of the Baltic, the Black, and the Caspian Seas. One of these was the settlement which later on received the name of Riurikovo Gorodishche (Rurik’s Settlement), on the northern tip of Lake Il’men’, where the river Volkhov flows north into Lake Ladoga.2 1 “Novgorod the Great” was the official designation, used in treaties and other official documents, in order to set Novgorod apart from other similarly named towns, such as Nizhnii Novgorod or Novgorod Severskii; comp. similar toponymics in other languages, such as Newton, Neuville, Neustadt, etc. 2 V.L. Ianin, Ocherki istorii srednevekovogo Novgoroda (hereafter: Ianin, Ocherki), Moskva, 2008, 24, quotes E.N. Nosov, Novgorodskoe (Riurikovo) gorodishche, Leningrad, 1990, although this © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_017

466

chapter 16

The population of Gorodishche and similar settlements in the same area (Staraia Ladoga, Staraia Russa, Gnezdovo) appeared to have been ethnically mixed, with a predominance of Scandinavians. Novgorod itself was founded, or rather grew out of a cluster of small settlements, around the middle of the 10th century, just a few kilometres north of Riurikovo Gorodishche.3 The medieval city of Novgorod straddled the Volkhov River, its left bank was called the Sophia Side, the right (eastern) bank the Trade (or Commercial) Side. At the centre of the Sophia Side on the river bank stood the fortress (Kreml’ or detinets), surrounded by three quarters, the Liudin konets (the People’s or Potters’ quarter, in the south), the Zagorodskii konets (in the middle), and the Nerevskii konets (in the north). On the other side of the river, opposite the Kreml’, were the Market Square and the Court of Iaroslav (where veche meetings were held) and around it was the Slavno quarter (or Slavenskii konets). There was a bridge from the Kreml’ to the Market Square and the Court of Iaroslav. North of the Slavno quarter and separated by a small stream was the Plotnitskii konets (Carpenters’ quarter). Of the five principal churches, the sobory (see Chapter 21, on the Church), the Sophia cathedral sobor stood within the walls of the fortress, the Nikolo-Dvorishchenskii sobor in the Court of Iaroslav, the Znamenskii sobor in the Slavno quarter, while the sobory of the two oldest Novgorod monasteries, the Iur’ev and Antoniev monasteries, stood outside the city walls. The two guild churches of the Russian foreign and domestic merchants (the churches of St. Paraskeve-Piatnitsa and of St. John na Okopakh) and the two most important compounds of foreign merchants (the Gothic Court and the German Court) were all in the central area on or around the Market Square and the Court of Iaroslav. According to Ianin, the Slavno, Liudin and Nerevskii quarters arose on the sites of the originally ethnic settlements of, respectively, Slovenes, Krivichi and Finns.4 The historical province (principality) of Novgorod consisted of an area with a radius of roughly 200–250 km, with Novgorod at the centre and surrounded by the five ‘fifths’ (piatiny), the Vodskaia in the north, the Obonezh’e (area around Lake Onega) in the north-east, the Bezhitskaia in the south-east, the work is missing from Nosov’s bibliography in the memorial publication Gosudarstvo i obshchestvo v Rossii xv – nachala xx veka (A.P. Pavlov, ed.), Sankt-Peterburg, 2007, 598. 3 Cf. Ianin, Ocherki, 27–30; I.Ia. Froianov, Miatezhnyi Novgorod, Sankt-Peterburg, 1992, 41–45; V.A. Bulkin, I.V. Dubov, G.S. Lebedev, Arkheologicheskie pamiatniki Drevnei Rusi ix–xi vekov, Leningrad, 1978, 90–94. 4 Ianin, Ocherki, 27, who points out that the names of the three quarters suggest their original ethnic nature.

Novgorod and Pskov

467

Derevskaia in the south, and the Shelonskaia in the west.5 Whether the piatiny division goes back to the times of the Novgorod republic is a much debated question; the majority of scholars accept a relatively early origin. The question is closely related to another issue – the putative connection between the division of Novgorod itself into five quarters and the five surrounding regions. V.F. Andreev traced the locations of the main landholdings of the principal Novgorod monasteries and reached the conclusion that there was indeed such a connection.6 This hypothesis gains credibility by the fact that the four oldest quarters (kontsy) were each contiguous with their adjacent piatina.7 The piatiny then were, at least hypothetically, the extensions of the individual quarters into the open countryside, and were controlled by them.8 The expansion of Novgorod power affected first the region to the north of Lake Onega (the Zaonezh’e), and then the huge area to the east of this, the basin of the Northern Dvina (also known as the Zavoloch’e),9 where Novgorod penetrated in the course of the 12th century, and finally the distant regions further east and south-east of Dvina Land, such as the Viatka region (see below 5 South-east of the Bezhitskaia fifth was the Novgorod exclave of Volok-Lamsk, on the border of the Smolensk and Suzdal’ principalities, a source of frequent disputes with Novgorod’s neighbours. 6 V.F. Andreev, “O proiskhozhdenii novgorodskikh piatin”, A.V. Pavlov (ed.), Rossiiskoe gosudarstvo v iv–xvii vv. Sbornik statei, posviashchennyi 75-letiiu so dnia rozhdeniia Iu.G. Alekseeva, Sankt-Peterburg, 2002, 180–185. 7 The connection is as follows: Nerevskii quarter – Vodskaia piatina, Liudin quarter – ­Shelonskaia piatina, Slavno quarter – Derevskaia piatina, Plotnitskii quarter – Obonezhskaia piatina; the less ancient Zagorodskii quarter was connected with the more distant Bezhitskaia piatina, according to Andreev. The main boundaries between the four adjacent (to Novgorod) piatiny were formed by major rivers, as follows: Vodskaia/Volkhov River/Obonezhskaia/Msta River/Derevskaia/Lovat’ River/Shelonskaia/Luga River/Vodskaia. The Upper Msta River separated the Derevskaia and Bezhetskaia piatiny. Cf. A.N. Nasonov, “Russkaia Zemlia” i obrazovanie territorii Drevnerusskogo Gosudarstva, Sankt-Peterburg, 2002 (orig. Leningrad, 1951), map opposite 113. 8 According to Frolov, the piatiny were an adminstrative innovation introduced by M ­ oscow after the absorption of Novgorod. A.A. Frolov, “«Geograficheskii faktor» v organizatsii ­gosudarstvennykh pozemel’nykh opisanii kontsa xv – serediny xvi v.”, T.N. Dzhakson, A.V. Podosinov (eds.), Kniga kartiny Zemli. Sbornik statei v chest’ Iriny Gennadievny Konovalovoi, Moskva, 2014, 257–284. 9 Zavoloch’e referred originally to the basin of the Vaga River, but then became more or less synonymous with Dvina Land; from the 16th century onwards it referred to an even larger territory, stretching further east to the Pechora River; cf. Iu.S. Vasil’ev, “Ob ­istoriko-geograficheskom poniatii «Zavoloch’e»”, A.L. Shapiro (ed.), Problemy istorii feodal’noi Rossii. Sbornik statei k 60-letiiu prof. V.V. Mavrodina, Leningrad, 1971, 103–109.

468

chapter 16

the Note on Khlynov), Pechora and Perm’, where Novgorod’s control was episodic and weak. All these regions in the Russian North were densely forested (merging into the tundra in the north) and very sparsely populated, serving primarily as a source for the trade in pelts and wax. There were practically no towns of any importance; Novgorod colonists lived mostly in small tradingposts (pogosty). The principality of Pskov was not formally part of Novgorod territory. Sudislav, a younger son of St. Vladimir, is mentioned as prince of Pskov. His brother Iaroslav the Wise and then the latter’s sons did away with the independence of Pskov and Sudislav was forced to take the habit of a monk and died in 1063. Pskov was controlled directly by the princes in Kiev, but as they also still controlled Novgorod at that time, the prince of Novgorod was the actual ruler. When Novgorod successfully claimed independence from Kiev during the crisis of 1136–1137 (see below), Pskov grasped the opportunity to make itself independent again.10 Sources For a general framework for the history of Novgorod as an independent state (i.e. until 1471), the First Novgorod Chronicle is the basic source (see the relevant section in Chapter 2). The state archives of Novgorod have been lost, unlike those of Moscow and Tver’ (Moscow’s principal rival during the 14th and 15th century).11 After Novgorod’s incorporation into the grand principality of Moscow by the end of the 15th century, relatively abundant Novgorod archival materials from the later period are available,12 but they reflect aspects of provincial administration of the Muscovy state. The most important publication of legal documents (treaties and various charters) of Novgorod (and Pskov) origin is still the 1949 volume, edited by S.N. Valk, “Charters of Novgorod the Great and of Pskov”.13 This work was complemented in 1991 by a chronological commentary from the hand of V.L. Ianin.14 10 11

12

13 14

Cf. A.V. Valerov, Novgorod i Pskov. Ocherki politicheskoi istorii Severo-Zapadnoi Rusi xi–xiv vekov, Sankt-Peterburg, 2004, 92–117. The grand principality of Tver’, situated between the territories of Moscow and Novgorod, existed from 1247 to 1485, when it was incorporated into the Muscovy state. The Tver’ archives were transferred to Moscow. Cf. Cherepnin, Arkhivy I, 224–226. Such as the collections of land descriptions (pistsovye knigi), made for administrative and fiscal purposes; see K.V. Baranov (ed.), Pistsovye knigi Novgorodskoi zemli, Moskva, 1999 (1), 1999 (2), 2001 (3), 2004 (4), 2004 (5). S.N. Valk (ed.), Gramoty Velikogo Novgoroda i Pskova, Moskva/Leningrad, 1949 (cited as gvnp in this work). V.L. Ianin, Novgorodskie akty xii–xv vv., Moskva/Leningrad, 1991 (hereafter: Ianin, Akty).

Novgorod and Pskov

469

Legislation The volume of specifically legislative sources is comparatively modest. The Russkaia Pravda, at least its oldest layer, the Pravda of Iaroslav, can of course be regarded as the oldest Novgorod law known to us. However, this takes us back to a time when there was as yet no question of Novgorod as an independent political entity. The first known enactments of Novgorod proper are the church statutes of Novgorod princes, of Vsevolod Mstislavich and of Sviatoslav Ol’govich, together with the so-called Testament of Vsevolod Mstislavich (see Chapter 6). Only the statute of Sviatoslav Ol’govich can be dated confidently at 1137; the dates of the other two are much disputed. The major specifically Novgorod law is the Court Charter of Novgorod. Although its final version, the only one known at present, was probably compiled around 1471 when Novgorod had already lost its independence, most of its contents can tentatively be traced back to an earlier period, perhaps as far back as 1385 (see the section on the Novgorod Court Charter in Chapter 8). The Novgorod Court Charter dealt with the comparatively narrow subject of procedure before the Novgorod courts, and this raises the question about the substantive law, criminal as well as civil, in force during the period of Novgorod’s independence. The emergence of Novgorod as an independent state coincided more or less with the final compilation of the Expanded Pravda. The vitality and effectiveness of the rp can be observed in the close parallels to it offered by early legal texts from Novgorod, in particular the 1190–1191 treaty with the Hanseatic League (see below). It is safe to assume therefore that Novgorod’s domestic legal system was based primarily on the Expanded Pravda, supplemented by customary law and incidental enactments (of which almost nothing survived). It was undoubtedly also affected by the numerous treaties concluded with foreign powers.15 Novgorod’s legal system is abundantly illustrated by a large number of private charters (gramoty), containing various legal dispositions, such as gifts, sales, testaments, etc. (see below). This traditional source of information is nowadays supplemented by numerous birch-bark documents (see below), many of which contain information of a legal nature.16 15

16

A.A. Zimin, in his comments to the Novgorod Court Charter (prp ii, 210), is of the same view; a similar position had been taken already by B.D. Grekov, Krest’iane na Rusi s drevneishikh vremen do xvii veka, Moskva/Leningrad, 1946, 406. L.V. Cherepnin devoted an entire chapter to legal documents in his monograph on Novgorod birch-bark documents, with the title “The Russkaia Pravda in Action” (Russkaia Pravda v deistvii), Novgorodskie berestianye gramoty kak istoricheskii istochnik, Moskva, 1969, 36–112.

470

chapter 16

Treaties The forerunner of Novgorod’s rich treasury of treaties was the pact concluded between the Novgorodians and the Viking leader Rurik, at least if one reads the 860–862 entry in the various chronicles17 with a certain amount of benevolence.18 Once the more mythical or just legendary aspects of the story have been peeled off, there remains an account of a negotiated settlement between a predominantly commercial community and the chief of a band of mercenaries, not unlike the deals Novgorod concluded in later times with different Rurikid princes. The treaties of Novgorod can conveniently be divided into treaties with foreign powers and internal Russian treaties, i.e. treaties with Russian princes.19 Most of the foreign treaties were with the Hanseatic League or its leading cities; other parties include various Baltic cities (most of them equally Hanseatic members), the German Order, Sweden and Norway, Lithuania, Poland; and, as a curiosity, the German colony in Novgorod.20 The Russian treaty partners were the princes of Moscow and Tver’, Novgorod’s Russian neighbours. Most of the treaties with Tver’ are very similar in content.21 The oldest surviving treaty text is of 1190–1191, between Novgorod and the Hanseatic League, and provides a good example of the kind of legal information such documents may yield. It was concluded on the Novgorod side by prince Iaroslav Vladimirovich, after conferring with the mayor (posadnik) Miroshka and the city commander (tysiatskii) Iakov, and with all the citizenry. Later Novgorod treaties usually omit reference to a prince. The 1190–1191 treaty explicitly confirmed a previous treaty (staryi mir). Its contents echo strongly the oldest part of the rp, the Pravda of Iaroslav.22 17 18 19

20 21

22

The Younger Version (Mladshii Izvod) of the First Novgorod Chronicle has a more elaborate story than the Primary Chronicle. This is also the approach adopted by the most prominent modern historian of Novgorod, V.L. Ianin, in Ocherki, 22–26. Following the example of gvnp, which devoted its first two sections to these two categories. An (incomplete) list of Novgorod treaties in Feldbrugge, “The Treaties of Medieval Russia”, lmr, 181–231, at 220–224. See also S.M. Kashtanov, Iz istorii russkogo srednevekovogo istochnika. Akty x–xvi vv., Moskva, 1996, 58–65. The treaties with Tver’ cover the Nos.1–10, 12, 14–15, 17–18 and 20 of gvnp. Of these the Nos.1–3, 6–7, 9–10, 14–15, 18 and 20 represent a comprehensive package of treaty relations between the two states. In a comparable treaty with the Moscow grand prince of 1435 (gvnp No.19) the same formulas were used. English translations of Nos.1, 6, 14 and 15 in Kaiser, Laws. Text in gvnp No.28, 55–56; prp ii, 125–126; see also E.A. Rybina, “O dvukh drevneishikh torgovykh dogovorakh Novgoroda”, V.L. Ianin (ed.), Novgorodskii istoricheskii sbornik,

Novgorod and Pskov

471

Charters and Other Documents Novgorod charters (i.e. non-legislative documents) can be divided (again following the example of gvnp) into public and private charters. Public charters (“internal administration charters” as gvnp calls them) are to be understood as charters issued by a public authority (prince, bishop, posadnik, veche) or bilateral acts where one of the parties is a public authority. They usually grant a certain right or privilege or assign some material advantage and often take the shape of a zhalovannaia (grant charter). The oldest are several charters from prince Vsevolod Mstislavich, among them a grant charter of 1130 (probable date) of Vsevolod and his father, grand prince Mstislav Vladimirovich of Kiev, the oldest Russian charter surviving in the original.23 The collection of private charters24 from Novgorod proper in gvnp starts with the oldest available private texts in Russian legal history (in 16th century copies), a gift charter and the testament of the monk Antonii the “Roman” (Rimlianin), and numbers 21 items, gift, sale, barter, and other charters, and testaments.25 There is a much larger number (more than 150) from Dvina Land, a few from the end of the 14th century and the rest from the 15th century. A smaller but still considerable number (more than 40) is from the area around Lake Onega (the Obonezh’e), located between Dvina Land and the metropolitan area of Novgorod. The oldest charter in the latter collection is from ­1181–1182, but otherwise the overwhelming majority are again from the 15th century. Birch-Bark Documents Of the more than 1100 Russian birch-bark documents now available, more than 1000 have been found in Novgorod. Birch-bark documents therefore are primarily of interest for Novgorod history. A certain number of them also have legal relevance. There are several testaments and many short documents ­concerned with various legal-economic matters: instructions to agents and servants, disputes over debts or damages, etc. Their value is not so much in revealing unknown aspects of the legal system of medieval Russia as in offering a vivid illustration of the known law-in-action.

23 24 25

3(13), Leningrad, 1989, 43–50. In gvnp the treaty is dated 1189–1199, but Rybina has argued convincingly that the date of the treaty can be narrowed down to 1190–1191, as had already been suggested by Zimin in his comments in prp ii, 126–127. gvnp No.81, 140–141; prp ii, 102 and 110–111 (Comments by A.A. Zimin). See generally, V.F. Andreev, Novgorodskii chastnyi akt xii–xv vv., Leningrad, 1986. Novgorod testaments, of which the majority was from Dvina Land, were the subject of a special study by V.F. Andreev, “Novgorodskie dukhovnye xii–xv vv.”, Vspomogatel’nye istoricheskie distsipliny, xiii (1982), 131–148.

472

chapter 16

A general discussion of birch-bark documents as a legal source is to be found in Chapter 11. General Historical Overview If we follow the Primary Chronicle, Novgorod’s history started in 862 when the Slavic (Slovenes and Krivichi) and Finnish tribes (Chud’ and Ves’) of NorthWest Russia invited Varangians or “Russes” to “rule and reign over them”. The Varangian chief Rurik then installed himself in Novgorod (which at that time was nothing more than a collection of dispersed settlements). This episode, one of the most controversial in Russian historiography, is interpreted by Ianin in the following way.26 Slavic agriculturalists (as already mentioned above) had penetrated into the area, sparsely populated by Finnish hunters and fishers, in the course of the 8th and 9th centuries. The different economic activities of these two ethnic groups allowed relatively peaceful co-existence. The Varangians or Vikings had been a presence in this part of Russia for some time, as raiders and traders. They had imposed (as reported by the Chronicle) tribute on the local p ­ opulation, but had been driven out (in 860). In the ensuing chaos, the need for military protection against external threats and for the imposition of internal order was felt. The result was a compact between a foreign chieftain (Rurik) with his warrior band and the local inhabitants who would accept a ruler selected and paid by themselves. Rurik’s successor Oleg, apparently unhappy with the arrangement, abandoned Novgorod and went south, subjugating several Slavic tribal confederacies, and finally conquered Kiev where he remained. He then imposed an annual tribute of 300 grivna on Novgorod, “for the preservation of peace” (882). Ianin views this episode as the mould which determined many of the later characteristic features of Novgorod’s subsequent role in medieval Russia: its contractual relationship with its prince and its relative independence from the ruling dynasty, its uncomfortable relationship with Kiev, the dominance of the financial aspect in its relationship with its nominal ruler, and even the strong internal divisions within the city itself, which went back to its original multiethnic character (Slovenians, Krivichi, and various Finnish elements). Many older authors, especially during the Soviet era, were inclined to ­relegate the entire Rurik story to the realm of legend,27 but nowadays most 26 Ianin, Ocherki, 22–26, 376–377. 27 Such as D.I. Ilovaiskii, Stanovlenie Rusi, Moskva, 2003 (orig. Moskva, 1906), 15; Grekov, Kievskaia Rus’, 452; Iushkov, Stroi, 66. Kliuchevskii (Kurs I, Lecture ix) calls the Rurik story, not a reflection of popular tradition, but “a schematic parable concerning the origin of

Novgorod and Pskov

473

scholars accept the historicity of a Viking leader, named Rurik, coming to Russia around the time indicated by the Chronicle. Whether the circumstances of Rurik’s arrival, as related by the Chronicle, justify the conclusion that a compact as sketched by Ianin was actually achieved and that such a compact provided the basis and model for Novgorod’s relations with the house of Rurik in the following centuries can be doubted. Chronicle writing in the Russian middle ages was often a matter of shaping and bending dimly remembered events from a distant past in a form which suited the ruler for whom one was writing. By the middle of the 10th century, as observed above, Novgorod consisted of three small settlements, possibly connected with three different ethnic entities. Its relative unimportance is illustrated by its absence from the lists of Russian towns included in the Russo-Byzantine treaties of the 10th century. It is first mentioned again in the Chronicle in 947 when the widowed princess Olga organized an expansionary expedition to North-West Russia. When her son, Sviatoslav, had appointed his sons Iaropolk and Oleg as subordinate princes in Kiev28 and Dereva in 970, the people of Novgorod requested Sviatoslav also to appoint a prince for them, or otherwise “we will choose a prince of our own”. Sviatoslav then appointed Vladimir, his son by Maliusha, one of his concubines. The story illustrates the lower status of Novgorod during this early period, as compared to the main cities of Southern Russia, as well as the Novgorodian tradition of being assertive where the selection of its prince was concerned. With Vladimir, Novgorod gradually returned to the mainstream of events. After Sviatoslav had been killed by the Pechenegs in 972, his son Iaropolk succeeded him; after a few years he fell out with his brother Oleg in Dereva and in the ensuing hostilities Oleg was assassinated in 977. Vladimir, afraid that the same fate was awaiting him, fled to Scandinavia and Iaropolk sent his lieutenants (posadniki) to rule in Novgorod. Soon, however, Vladimir returned with a force of Varangians, recaptured Novgorod and marched on Kiev. Iaropolk was murdered as the result of a palace plot and Vladimir became the sole ruler of the Kievan realm. His maternal uncle Dobrynia was appointed to govern

28

the [Russian] state”, created at some later moment. A.V. Kuza occupied a transitional position in a learned study on the formation of the Novgorod territory; although he referred to the “legendary” Rurik, he treated the Chronicle narrative of the 860 events as basically historical; A.V. Kuza, “Novgorodskaia zemlia”, L.G. Beskrovnyi (ed.), Drevnerusskie kniazhestva x–xiii vv., Moskva, 1975, 144–201, at 146ff. Although Kiev was undoubtedly the capital city of Russia at that time, Sviatoslav’s attention was directed mainly towards the south and he had established his headquarters in Pereiaslavets in present-day Roumania in 969.

474

chapter 16

Novgorod; Dobrynia also served as Vladimir’s chief military advisor. He was succeeded as prince of Novgorod by Vladimir’s eldest son, Vysheslav. The conversion of Novgorod took place around this time and followed immediately upon that of Kiev. The first bishop of Novgorod, Ioakim of Korsun, arrived in 989. Vysheslav died in 1010 and was succeeded by another son of Vladimir, Iaroslav (later on known as Iaroslav Mudryi, the ‘Wise’).29 The following years, particularly 1014–1016, placed Novgorod in the centre of developments and were of decisive importance for its history. In 1014, Iaroslav ceased the payment of the annual tribute to Kiev (which had risen to 2000 grivna at that time), no doubt supported in this by the people of Novgorod. His father Vladimir started to prepare a campaign to subdue his rebellious son, but died in July 1015. Initially, among Vladimir’s numerous sons, Sviatopolk emerged as the successor, after murdering his half-brothers Boris and Gleb (Russia’s first saints) and then Sviatoslav. Iaroslav in the meantime was facing internal troubles in Novgorod, where hostilities between the people of Novgorod and Iaroslav’s Varangian troops had flared up. Eventually Iaroslav obtained the support of the Novgorodians and in a complicated campaign with many ups and downs took possession of the throne of Kiev. Most authors nowadays agree that the issuing of the oldest version of the rp, the Pravda of Iaroslav, was connected with these events and reflected certain concessions made to the people of Novgorod (see Chapter 4) Some of the copies of the First Novgorod Chronicle, in the last entry for the year 1016, after the words “Iaroslav went to Kiev and established himself on the throne of his father” (also found in the Primary Chronicle), added a sentence about the generous payments Iaroslav made to his soldiers from Novgorod, and then continued: “and he gave them a code of law [pravda] and wrote a law [ustav], saying «live according to this charter, and observe it, as I have written it»”. After these words then follows the text of the rp. Most commentators agree that the rp text was inserted into the First Novgorod Chronicle text at a later date (it is absent in the Primary Chronicle and in several old versions of the First Novgorod Chronicle). Ianin still held that by the pravda mentioned in the First Novgorod Chronicle the rp was indeed meant, or at least its first part, the Pravda of Iaroslav. These two views of course do not exclude each other. Ianin then extended his argument by ­stating 29

Dobrynia is still mentioned in 985 and the appointment of Vysheslav appears under the year 988, but need not have been in that year. Later on (1016) the Chronicle states that Iaroslav had been in Novgorod for 28 years, but not necessarily as his father’s representative; he was probably born in 978 (he died in 1054, 76 years old), so he would have been only ten years old in 988.

Novgorod and Pskov

475

that while the rp was actually a law for the whole of Russia, it contained a special concession to the Novgorod elite in the form of the retention of the right to revenge and blood feuds (as contained in art. 1) and of the immunity from princely jurisdiction granted by the same token. About the ustav, Ianin wrote that the text did not survive, but that it contained at least a restatement of the original limitations of princely power as expressed in the compact concluded with Rurik in 862.30 Views similar to those of Ianin had already been put forward by Cherepnin, except for Ianin’s extension concerning the special concession to Novgorod.31 Although Ianin’s views produced a coherent picture, not contradicted by known facts, some of them (especially his suggestions concerning art. 1 of the Short Pravda and the mysterious ustav) are a concatenation of conjectures. What can be considered as established is that the involvement of the men of Novgorod in the events of 1014–1016 was of decisive importance for Iaroslav’s success, that there must have been some kind of reward for this effort, and that the origin of the first part of the rp (the Pravda of Iaroslav) must be viewed against this background.32 In the following years, Iaroslav often stayed in Novgorod and Novgorod support remained an important factor in his difficult relations with one of his surviving brothers, Mstislav. The two brothers finally agreed in 1026 to share power, and this arrangement lasted until Mstislav’s death in 1034/1036, leaving Iaroslav in complete and uncontested control of the Kievan realm. Iaroslav then set up his eldest son Vladimir as subordinate prince in Novgorod. This Vladimir died two years before his father (1052 and 1054). Whether a prince was appointed for Novgorod in 1052 is unclear. Iziaslav, the surviving eldest son of Iaroslav, may have acted as de facto ruler.33 According to one of the versions of the First Novgorod Chronicle, Iziaslav sent his son Mstislav to Novgorod as prince upon the death of Vladimir in 1052.34 Novgorod is curiously absent in the testamentary dispositions of Iaroslav the Wise in 1054, when he distributed the most important principalities among his sons, Iziaslav, as the eldest, receiving Kiev. The explanation is probably that the obviously important seat of Novgorod had already been reserved for Iziaslav’s son. 30 Ianin, Ocherki, 36–37. 31 Cherepnin, Arkhivy I, 239–249. 32 See in particular A.A. Zimin, Pravda Russkaia, Moskva, 1999, 35–40. 33 Gleb, a son of Sviatoslav, the latter a brother of Iziaslav and prince of Chernigov (and later on grand prince of Kiev), was given the Novgorod seat in 1068/1069, which he occupied until his death in battle in 1078. 34 Ianin, Ocherki, 39–40, makes the valid point that Iziaslav could not at that time bypass his father Iaroslav, still alive in 1052.

476

chapter 16

For several decades, the succession of Novgorod princes, appointees of the grand prince of Kiev, proceeded relatively smoothly, at least the chroniclers have little to report on this matter.35 But in 1095 the people of Novgorod told prince Davyd Sviatoslavich, who had just left Novgorod for Smolensk, never to come back, and they invited Mstislav, the son of Vladimir Monomakh (then prince of Pereiaslavl’), to come to Novgorod. Mstislav had already been installed earlier in Novgorod in 1088 as a 12-year-old boy. This is one of the earliest instances (if not the earliest) of what was to become the practice in later years: Novgorod princes being invited and dismissed. This practice was reinforced by the sequel to this story in 1102. Sviatopolk Iziaslavich (who had himself served as prince of Novgorod from 1078 to 1088), at that time grand prince of Kiev, had agreed with Vladimir Monomakh (Mstislav’s father and at that time prince of Smolensk) that Mstislav would be moved from Novgorod to Vladimir-Volynsk, while Sviatopolk’s son (probably a younger son, Iziaslav) would receive Novgorod. While all the princes were together in Kiev, among them also young Mstislav with a delegation from Novgorod, the men of Novgorod went separately to see the grand prince and addressed him as follows: We were sent to you, oh Prince, with positive instructions that our city does not want either you or your son. If your son had two heads, you might send him. But the fact is that Vsevolod assigned us Mstislav as our prince. We brought him up as one of us while you left us in the lurch. The chronicler was obviously so struck by the brazen and self-confident language of this remonstration that he thought it worthwhile to quote it verbatim. What is more is that the Novgorod people had it their way, a most eloquent demonstration of the uniquely powerful position they had been able to secure for themselves. Another significant step in Novgorod’s progress towards full independence had been the appointment of a governor or mayor (posadnik) by the boyar leadership, without consulting the prince, at that time (1088–1094) Mstislav Vladimirovich, a boy still in his teens.36 Previous posadniki had been appointed 35

Gleb Sviatoslavich was succeeded upon his death in 1078 by his cousin Sviatopolk Iziaslavich, who again left Novgorod in 1088 to reign in Turov. Novgorod then went to Gleb’s brother David (although young Mstislav Vladimirovich is also mentioned as prince of Novgorod during the same period). 36 Ianin, Ocherki, 41; V.L. Ianin, Novgorodskie posadniki, Moskva, 2003 (2nd ed.), 87. The first elected posadnik, according to Ianin, was Zavid, whose son Dimitrii served as posadnik for seven months, until his death in 1118.

Novgorod and Pskov

477

by the prince as his representatives during his absence. Such appointments continued in later years, but then these officials were called namestniki (lieutenants). When Mstislav had become a widower in 1122 at the age of 46, he remarried the daughter of Dmitrii Zavidich, who had been the posadnik in 1118. As Rurikid princes of this period almost invariably married Russian or foreign princesses, this marriage demonstrated the prestige attached to the position of Novgorod posadnik. The princes did not abandon their grip on Novgorod without a fight. The Novgorod Chronicle reports (1118) that Vladimir Monomakh and his son Mstislav summoned the Novgorod boyars to Kiev and had them swear an oath of allegiance, after which some of them were retained and executed37 on account of certain wrongdoings. Mstislav, who could expect to succeed his father as grand prince of Kiev, moved to Kiev in 1117, presumably to be closer to events in the capital, and left his eldest son Vsevolod behind in Novgorod as his representative (Vsevolod was probably around 20 years old then). When Vladimir Monomakh died in 1125, Mstislav did succeed as grand prince. The people of Novgorod then accepted Vsevolod as their new prince, but made him swear to remain in Novgorod for the rest of his life. When Mstislav himself died in 1132, his childless brother Iaropolk succeeded him. Iaropolk called Vsevolod to Kiev, offered him the principality of Pereiaslavl’ and the prospect of succession. The plan failed because the people of Pereiaslavl’ refused to go along with it and the Novgorodians felt betrayed. They dismissed Vsevolod, but after a while allowed him to return. The reconciliation did not last long. The years 1133–1136 were turbulent and Novgorod was involved in military confrontations on all sides. In 1136 the matter came to a head. Vsevolod was arrested by his own people and confined under guard with his own family in the bishop’s residence. Three formal charges were laid against him: his Pereiaslavl’ escapade, his poor leadership as a military commander, and his disregard for the serf (smerd) population. Only after a new prince, Sviatoslav Ol’govich from Chernigov, had been installed did the Novgorodians release Vsevolod. He then went to Pskov (which was still part of Novgorod territory then) and attempted to regain control of Novgorod with the help of the Pskovians and his remaining Novgorod supporters, but he died soon in Pskov in February 1138. Sviatoslav Ol’govich, whose position was weak from the beginning as he did not have his own domains on Novgorod territory to support him financially, did not last long and was dismissed by the Novgorodians in April 1138.

37

Or “banished” in other translations; zatochi.

478

chapter 16

The events of 1136 constituted a major milestone in the history of Novgorod, marking the reduction of the position of the prince as the supreme ruler to that of the chief official in the service of a republic which was in effect run by its upper class of boyars. It also marked the beginning of the independence of Pskov, hitherto a ‘suburb’ (prigorod) of Novgorod, as the people of Pskov had taken the side of Vsevolod and invited his brother Sviatopolk to be their own prince. The 12th century was also the time when Novgorod’s trading relations with Western Europe began to assume significant proportions. Novgorod had been an important point of transit in prehistoric times for the trade between Northern Europe and Byzantium and the Near East. When trade patterns changed due to political developments in these areas, the North-West of Europe became the chief trading partner for Russia and Novgorod was the hub of this relationship. Scandinavian merchants from Gotland were the first to acquire their own permanent compound within the walls of Novgorod, the Gothic Court (Gotskii dvor) with the church of St. Olav, at the beginning of the 12th century. The Hanseatic merchants followed later on, around the end of the 12th century, with the German Court and its church of St. Peter. The treaty between Novgorod and the Hanseatic towns of 1190–1191 has been mentioned above already; the reference in the treaty to the staryi mir (the old treaty) indicates that relations with the Hanseatic League had already been in existence for quite a while then. While historians generally agree that the struggle for independence, ultimately successful, was the central theme of Novgorod history for the period up to 1136, it is far more difficult to find a suitable vantage point for looking at the following period. Ianin has stressed the importance of the Novgorod elite, the boyars, as the dominant force in the city’s policies, promoting their interests in their struggles with the princes, the ecclesiastical powers, and the ordinary people, and striving to turn the governmental and legal machinery of the city into an instrument in their own hands.38 Their narrow-minded obsession with their own interests, leading to the estrangement of the ordinary people, eventually caused not only their own downfall, but the loss of independence of Novgorod itself, because, when the pressure from Muscovy increased, the general populace greeted the grand prince as a liberator, according to Ianin. Froianov, on the other hand, in line with the approach adopted by him in his major works on Kievan Russia, made the general population the basic force determining developments in Novgorod. His monograph on Novgorod history 38

One only has to look at the titles of the chapters in Ianin’s Ocherki, which make very clear that the boyar class is the lead actor in the author’s view.

Novgorod and Pskov

479

described a series of momentous events in Novgorod’s history as illustrative of his thesis. Froianov pointed out, correctly, that the boyars were almost always bitterly divided and that any particular boyar faction could succeed only if it managed to obtain the support of the mass of the population. The general background of his approach is his criticism of the old standard theories of Soviet historians such as Grekov, who postulated a very early beginning of ‘feudalism’ (in the Marxist sense) in Russia, which allowed them to explain almost any kind of social upheaval as “exacerbation of the class struggle”. Ianin’s views still reflected this traditional approach, albeit in a more sophisticated way. Froianov, notwithstanding his critical attitude, also shows many traces of his Soviet upbringing in his dogmatic treatment of concepts like ‘feudalism’ or the ‘state’.39 A new perspective was recently proposed by O.V. Sevast’ianova.40 She attributed a more decisive role in determining developments in Novgorod to the princes and their incessant dynastic struggles. Novgorod, she argued, remained essentially a subordinate principality of the grand princes of Kiev (and later on Vladimir) and was used as a pawn in the princes’ conflicts. In this process princes were often inclined to grant favours and privileges to Novgorod, in order to enlist its support. Novgorod would also regularly serve as a prince’s stepping-stone to the throne of Kiev. Sevast’ianova’s views, which can in most cases be reconciled with those of Ianin, have the advantage of accentuating the general Russian context of Novgorod’s history, rather than looking at it as something determined by its internal dynamic. As the purpose of this section is only to offer a sketch of the history of Novgorod as an independent entity, insofar as it might help to understand the peculiarities of its legal system, we shall limit ourselves to pointing out certain prominent themes, without attempting to impose an explanatory framework on them. Most of the more spectacular developments and events in Novgorod history display the interaction of such themes. A factor of long-lasting influence was the emergence of a powerful ­neighbour in the East, appearing variously as the prince of Vladimir (on the Kliazma), 39

40

See also A.V. Petrov, who defended an intermediate view, according to which the existence of small urban communities, headed by boyar families, was a decisive element in the socio-political make-up of Novgorod; A.V. Petrov, “K obsuzhdeniiu problem istorii vechevogo Novgoroda”, A.Iu. Dvornichenko, A.V. Maiorov (eds.), Rossica Antiqua 2006. Issledovaniia i materialy, Sankt-Peterburg, 2006, 260–269. O.V. Sevast’ianova, Drevnii Novgorod: novgorodsko-kniazheskie otnosheniia v xi – pervoi polovine xv v., Moskva/Sankt-Peterburg, 2011 (originally defended as a thesis at the University of Zürich in 2008).

480

chapter 16

Rostov Velikiii, or Suzdal’. One of the younger sons of Vladimir Monomakh was Iurii Dolgorukii (†1157), prince of Rostov and Suzdal’ and later on also grand prince of Kiev. Of his 11 sons, two were of particular significance in connection with Novgorod. The oldest son alive in 1157 was Andrei Bogoliubskii, who had become prince of Vladimir (on the Kliazma) in 1155. With him the centre of gravity of Kievan Russia moved from Kiev to Vladimir, a fact also expressed in the grand princely title adopted by Andrei and by the latter’s permission to his younger brother Gleb to ascend the throne in Kiev.41 In the same year (1157) Andrei also assumed the princely seat of Suzdal’. His ambitions brought him into conflict with Novgorod. In 1167 the Novgorodians had ‘shown the road’ to their prince Sviatoslav Rostislavich, an appointee of Andrei Bogoliubskii,42 and invited Roman, the son of the then grand prince of Kiev, Mstislav Iziaslavich. Two years later the matter came to a head. The point at issue was the tribute from the Zavoloch’e region. A 7000-strong army sent over by Andrei was decisively beaten by a small Novgorod force of 400 men (if we can believe the Chronicle). Later in the same year (1169) a large Suzdalian army with its allies beleaguered Novgorod and was again beaten by the Novgorodians under prince Roman. The victories were short-lived, as a famine soon broke out and Novgorod was forced to restore good relations with Suzdal’. Prince Roman was dismissed in 1170 and a new prince, allied to Andrei Bogoliubskii, was brought in.43 Andrei Bogoliubskii’s ambition and efforts had made him many enemies; he was assassinated in 1174. His policies were continued by his successor and youngest brother, Vsevolod  iii “the Big Nest” (Bol’shoe Gnezdo, 1154–1212), grand prince of ­Vladimir. His son Iaroslav ii (1191–1246) was also grand prince of Vladimir, and of the many sons of the latter sprang the grand princely dynasties of Moscow (Aleksandr Nevskii), Suzdal’ (Andrei), and Tver’ (Iaroslav). Like his brother Andrei, Vsevolod iii (who was the most powerful Russian prince of his time) and successive princes of Vladimir and Rostov-Suzdal’ actively interfered in the internal affairs of Novgorod. This was done mostly by supporting one of the boyar factions and by manipulation of the selection of a posadnik. This office had been occupied from 1189 until his death in 1203 by Miroshka N ­ ezdinich. 41 42 43

This happened only in 1169, when Kiev was taken by an alliance of Russian princes. Of the sub-dynasty of the princes of Smolensk, as indicated by the name Rostislav. Riurik Rostislavich of the Smolensk house; he was dismissed again in 1171 and then Andrei sent his own son Iurii, who was dismissed in his turn in 1175 (this Iurii became the first husband of the famous queen Tamar the Great of Georgia, who repudiated him after some time).

Novgorod and Pskov

481

During his term of office Novgorod had supported Vsevolod in various conflicts with other Russian princes, although not without a certain amount of tension. Posadnik Miroshka and other prominent citizens were kept for two years at Vsevolod’s court in Vladimir and prevented from returning home. The Novgorod prince for most of this time (1187–1199) was an appointee of Vsevolod, Iaroslav Vladimirovich.44 In 1199 Vsevolod replaced him by one of his younger sons, Sviatoslav. After Miroshka’s death in 1203 the posadnik-office was given to a member of a competing boyar clan, Mikhalko Stepanich. Two years later Vsevolod suggested to the Novgorodians that they would be better off with a more experienced prince, like his eldest son Konstantin. They accepted Konstantin and at the same time divested Mikhalko Stepanich of his office and gave it to Miroshka’s son Dmitrii. The convoluted story, told with extreme matter-of-factness by the First Novgorod Chronicle, culminated in 1209, when the Novgorodians under their prince Konstantin and posadnik Dmitrii had joined Vsevolod in a campaign against the prince of Rostov.45 After the victorious Vsevolod had praised and handsomely rewarded the men of Novgorod for their support, he kept Dmitrii, who had been wounded, at his court and dismissed the Novgorod troops. When they came home, a veche meeting was held in which Dmitrii was robbed of his dignity. He and the whole clan of the Miroshkinichi were accused of all kinds of wrongdoings and the veche meeting was followed by general mayhem in which the houses and estates of the Miroshkinichi were plundered. Different interpretations of this series of events have been proposed;46 the points to be made here are that it demonstrated the involvedness of outside Russian princes in the domestic affairs of Novgorod, the importance of the rivalry between various Novgorod elite clans, and also the intensity of socioeconomic tensions among the population. The First Novgorod Chronicle reports extensively (under 1224) about the first Mongol invasion of Russia in 1223, which resulted in the Russian defeat on the Kalka River. But the enemy returned to the depths of Asia, “we know not whence they came, nor where they hid themselves again”. It had only been a warning, for in 1237 the great invasion of the Mongol armies engulfed most 44

45 46

He was a grandson of the Kievan grand prince Mstislav Vladimirovich, an elder b­ rother of Iurii Dolgorukii. Vsevolod recalled him in 1199 to replace him by one of own sons, Sviatoslav. Ianin and a number of other authors hold that 1207 is the correct date. See for instance, Ianin, Ocherki, 93–99, who held that Vsevolod’s intrigues were aimed at getting rid of the hostile Miroshkinichi, and Froianov, Miatezhnyi Novgorod, 235–262, who argued that Vsevolod and the Miroshkinichi were actually allies, opposed by the general population of Novgorod.

482

chapter 16

of Russia and parts of Europe. The Mongol hosts reached Novgorod territory in 1238 and besieged the important Novgorod town of Torzhok, the main Novgorod transit post for the domestic Russian trade (also known as Novyi Torg). After a siege of two weeks Torzhok fell and was annihilated. It may have saved Novgorod, because the threat of running out of forage for their horses, the change of seasons, and, possibly, developments faraway in the East induced the Mongol generals to turn around and go back to the steppes.47 Being the only major Russian town (together with Pskov) not to have been taken by the Mongols had obvious advantages for Novgorod, although the general consequences of the Mongol-Tatar domination, lasting for almost two centuries, affected Novgorod as well. The breakdown of domestic trade was especially disadvantageous for Novgorod, and the city also did not escape the effects of the fiscal demands made by the Tatar rulers. The enforcement of the latter impositions was only a small aspect of a much wider shift in Russian history, intimately connected with the person of prince Aleksandr Iaroslavich, better known as Aleksandr Nevskii.48 He was the eldest surviving son of Iaroslav ii, one of the many sons of Vsevolod iii. Iaroslav ii had become grand prince of Vladimir in 1238, after his elder brothers Konstantin and Iurii had died (in 1218 and 1238); Iaroslav ii therefore became one of the most prominent among the Russian princes at the beginning of Mongol domination in Russia. His son Aleksandr (born 1220/1221) had been appointed as prince of Novgorod in 1236, where he was effective, once he grew up, in his main task, the defence of the territory. Novgorod was almost permanently harassed by its western neighbours, Finnish (Estonian) tribal entities, colonizing German knights,49 the Swedes, and especially the Lithuanians. The beginning of Aleksandr Nevskii’s reign in Novgorod coincided with the great turmoil of the Mongol (Tatar) invasions. They appeared in the south-east by the end of 1237, where they attacked and took Riazan’. They then moved on to the important capital of Vladimir, which they took early in 1238. Shortly 47 Ianin, Ocherki, 116–130, reviews the much-debated causes of the Mongols’ desisting from attacking Novgorod and comes to the conclusion that foraging difficulties were the decisive factor. 48 Cf. J. Fennell, The Crisis of Medieval Russia, 1200–1304, London/New York, 1983, Chapters 4 and 5. 49 The Order of Our Lady of the Germans (Ordo S. Mariae Theutonicorum) was founded in 1190/1191 during the Third Crusade; in 1237 it absorbed the Livonian Order of the Swordbearers. The fact that in Russian (and in English) it is not called the “German Order” (as in German “Deutscher Orden”), but the “Teutonic Order” has contributed to its bad reputation in Russian historiography, where it is consistently depicted as evil and bloodthirsty. See further the section on the German Order in Chapter 10.

Novgorod and Pskov

483

­afterwards they crushed the army of Vladimir-Suzdal’ in a battle by the river Sit’, where the grand prince of Vladimir, Iurii, elder brother of Iaroslav ii, was killed. As mentioned above, the Mongol armies then pushed on towards Novgorod, but turned back before they had reached it. The next two years they spent in subjugating the southern part of Kievan Russia; Kiev itself fell in 1240. The Russian princes who submitted to Mongol suzerainty were allowed to keep their seats, but the accession of a new prince required the khan’s prior assent. The princes were made responsible for the collection of the various taxes imposed and for recruiting military forces for the army of the khan. The Russian Church and all its ‘church people’ were granted a general tax exemption, in accordance with traditional Mongol tolerance in the matter of religion. The Mongol imperial system was therefore based not only on naked military superiority but also on a shrewd mix of other measures. During the first years of the Mongol campaign Aleksandr Nevskii was involved in the protection of Novgorod interests. Best known are his victories over a Swedish invading force on the Neva River in 1240 and over a mixed force of Chud’ (Estonians) and knights of the German Order on the ice of Lake Peipus (Chudskoe ozero) in 1242. In 1246 his father Iaroslav ii died on a journey to Karakorum where he had been summoned by the great khan. He was succeeded first by his brother Sviatoslav and then in 1249 by his son Andrei; as Andrei was younger than Aleksandr Nevskii, this succession must be regarded as a usurpation, although it had the approval of the khan. In 1252 Aleksandr visited the Horde, possibly to complain about his brother Andrei, who apparently was unwilling to give in to all the demands of the Mongols. The khan despatched an army and Andrei was forced to flee to Sweden. Aleksandr finally received the throne of his father at Vladimir. During the remaining eleven years of his life his policy of accommodation of, and in effect submission to, the wishes of the khan secured him the undisputed supreme position among the Russian princes. The attempts of his brothers Andrei and Iaroslav (prince of Tver’) in 1252 to put up some resistance to Mongol domination were effectively thwarted and Aleksandr steadfastly continued this policy in the following years. When the Novgorodians refused to allow the tax collectors of the khan entry, Aleksandr brought in his army and threatened to take the city by force (in 1259). And this was not the first time Novgorod had shown its unwillingness to do his bidding. The fate of Novgorod in this case was emblematic of the fate of Russia under Aleksandr Nevskii. The establishment of Mongol-Tatar suzerainty had changed the rules of the game. The old rules governing the relationships ­between ­princes (and entities like Novgorod) had not lost their validity, but they operated henceforth within the wider framework of a dominant external force.

484

chapter 16

Aleksandr Nevskii had obviously reached the conclusion that resistance would be pointless and that only the course charted by him would offer a realistic way forward. Others clearly thought differently. In any case it was a painful decision to make and, as history is written by the victors, Aleksandr came out well, thanks especially to his staunchest supporter, the formidable metropolitan Kirill, who laid the foundation for the subsequent glorification (and canonization) of Aleksandr Nevskii. The latter’s victories for Novgorod over western enemies in relatively minor skirmishes in 1240 and 1242 were achieved while the rest of the country was in mortal combat with the Tatars, a struggle in which he took hardly any part. They were then blown up out of proportion by generations of Russian political actors for their own purposes and with the support of most Russian historians. Thus Aleksandr the saviour of Russia dwarfed Aleksandr the collaborator. When Aleksandr Nevskii died in 1263, the people of Novgorod dismissed Aleksandr’s son Dimitrii, whom they considered too young, and invited Aleksandr’s brother Iaroslav iii, prince of Tver’, who took the throne in 1265. His relations with the fractious city were by no means smooth. In the end, in 1270, he was forced to give in to all the demands of Novgorod and all the terrain won by Aleksandr Nevskii in the tug-of-war between prince and city was lost again. Iaroslav died in 1272 on a visit to the khan, a not uncommon fate for Russian princes, whether caused by the natural hardships of a long journey into Asia or by foul play. This time Dimitrii Aleksandrovich was considered acceptable as the new prince by Novgorod. Although the Novgorodians stuck to their old privileges in inviting and dismissing princes, the sub-dynasty of the grand princes of Vladimir (and later on Moscow) was regarded as the only reservoir to take a prince from. This sub-dynasty consisted of the descendants of Iaroslav ii Vsevolodovich († 1246) through his sons Aleksandr Nevskii († 1263) and Iaroslav iii († 1271), the founders of the houses of Vladimir-Moscow and Tver’, respectively. The Novgorodians continually played off these two houses against each other. As a result, Novgorod itself was often in conflict with its titular prince. The balancing act generally worked, especially since the Tatar khan also remained involved. With the waning of Tatar power and the inexorable ascent of Muscovy the arrangement gradually collapsed in the course of the 15th century. Aleksandr’s Nevskii’s younger brother and successor Iaroslav (iii as grand prince of Vladimir) was the first prince of Tver’, appointed in 1247 (by his uncle Sviatoslav ii, then grand prince of Vladimir). The principality remained in the hands of Iaroslav’s descendents, who also competed with their cousins, the descendents of Aleksandr Nevskii, for the seat of Vladimir. The Tatar khan would grant his favour in turn to one or the other of the two lines, in a long series of

Novgorod and Pskov

485

intrigues, according to his own political calculations (see the story behind the treaty of 1318 between the prince of Tver’ and the prince of M ­ oscow, ­together with Novgorod, in Chapter 7). The line of Aleksandr Nevskii, the  princes of Moscow,50 ultimately came out victorious, and in 1485 Tver’ was incorporated into the principality of Muscovy. Several Tver’ princes served as princes of Novgorod. After 1485 the Tver’ archive was transferred to Moscow and this archive contained a number of treaties between Novgorod and the prince of Tver’. The last decades of the 13th century also produced important modifications of Novgorod’s internal system of government. In the past, powerful boyar clans had competed for the leading position and this often resulted in the posadnikoffice being occupied by a single person for a long time, until he appeared too strong, or too rich, or too unsuccessful and was overthrown by popular and often violent discontent. In the new dispensation a council of leading citizens moved to the centre of the stage and the posadnik was elected for one year. The same system applied to the election of the tysiatskii, the second most important official and the representative of the merchants and craftsmen, and the archimandrite. The latter, the head of the entire monastic community, was in charge of supervising the very significant landowning wealth of the monasteries. According to Ianin, the background of this institution was the unwillingness of the boyar class, which had great direct and indirect interests in the lands owned by the monasteries, to leave these assets in the control of the archbishop, who could otherwise easily develop into a head of state. Although the archbishop was also elected by Novgorod,51 his official installation required the metropolitan’s consent and was therefore not fully in the hands of the Novgorod elite.52 In the 14th century Russia slowly recovered from the tumultuous 13th century. Novgorod’s position as the main point of transit for foreign trade further expanded. Along with the traditional goods for import and export, silver from Western Europe became a significant item, because tribute to the Tatars was partly paid in silver. Novgorod consolidated its foreign relations, particularly with its western neighbours, through a network of treaties. Lithuania was gradually emerging 50

Under Aleksandr Nevskii’s great-great-grandson Dmitrii Donskoi (†1389), grand prince of Vladimir and prince of Moscow, the principalities of Vladimir and Moscow, which had been held by the same princes for a long time already, were united. 51 The first recorded event is in 1156, the election of Arkadii, the successor of Nifont, the first bishop of Novgorod to use the archiepiscopal title. Cf. Ia.N. Shchapov, Gosudarstvo i tserkov’ Drevnei Rusi x–xiii vv., Moskva, 1989, 65–69. 52 Ianin, Ocherki, 384–385.

486

chapter 16

as the dominant regional power in the course of the 14th century and continued to play a strong role in the relationship with Novgorod and Muscovy in the 15th century. Novgorod could maintain its independence while the balance of powers between its neighbours lasted. The internal system of government was occasionally adapted to new circumstances. In 1354 the representatives of the five quarters all received the title of posadnik, while the actual mayor (stepennyi posadnik) was elected by the veche. Later on, the number of posadniki was further enlarged. As the grand princes of Vladimir-Moscow, who also served intermittently as princes of Novgorod, were gradually able to establish their hegemony, the old balance which had favoured Novgorod for so long began to crumble. The ­celebrated victory of Dmitrii Donskoi over the Tatar army under Mamai on the Sandpiper Field (Kulikovo Pole) in 1380 was of great symbolic importance, even if khan Tokhtamysh burned Moscow in revenge two years later. The Horde was not invincible and when Dmitrii died in 1389 he left the throne to his eldest son without asking for the khan’s approval. In the course of the 15th century the grand prince of Muscovy mopped up nearly all of the remaining independent principalities. There was no escape for Novgorod either. When it supported Dmitrii Shemiaka in his attempt to wrestle the throne of Moscow from his cousin, the grand prince Vasilii ii “the Blind” (Temnyi) in 1456, the latter brought Novgorod to heel and forced it to submit through the Iazhelbitsy treaty. Novgorod then sought a way out by turning to Lithuania for help. This gave Vasilii ii’s son and successor, Ivan iii, a pretext to attack the city in order to protect the orthodox faith, although this argument was fabricated largely for soliciting support among his own population.53 The Novgorod forces were decisively beaten in the battle at the Shelon’ River in 1471 and the peace treaty of Korostyn’ ended Novgorod independence de facto. In 1478 Novgorod was formally integrated into the Muscovy state. Government and Administration The Composition of the Novgorod Population When we consider the social composition of a particular group of persons in a modern (Western) setting, we take the equality of citizens before the law as granted; social differences present a mere sociological feature. In medieval Novgorod, as in most medieval settings, social differences had a clear legal content; belonging to a specific social group involved legal consequences and 53

As suggested by A.E. Tarasov in “Tserkov’ i podchinenie Velikogo Novgoroda”, Novgorodskii istoricheskii sbornik 12 (22), Sankt-Peterburg, 2011, 71–109.

Novgorod and Pskov

487

affected in particular an individual’s right to participate in public affairs. The (free) population of Novgorod consisted of boyars (nobles), zhit’i liudi (‘wellto-do people’) and chernye liudi or chern’ (‘black people’, or common people). In official documents, such as Novgorod treaties, these groups were often mentioned separately, with their representatives. The clergy, priests, monks and nuns constituted a special category. Older treaties usually referred simply to “all the greater and the lesser people” (stareishie and men’shie),54 while the formula referring to well-to-do vs. common people was of a later date.55 In the 15th century the formula “boyars, well-to-do people, merchants, and common people” is also encountered.56 To determine exactly how these different formulas relate to each other is difficult. The enigmatic document known as the Testament of Vsevolod Mstislavich (see Chapter 6) throws some light on this problem. The main theme of this charter was the merchants’ guild of St. John the Baptist na Opokakh, uniting the Novgorod merchants engaged in domestic Russian trade.57 Its board consisted of three elders, the tysiatskii on behalf of the well-to-do and common people, and two merchants. In the past, many authors read the text differently; the formula “three elders from the well-to-do people and from the common people the tysiatskii, and from the merchants two elders” (tri starosty ot zhit’ikh” liudei i ot chernykh” tysiatskogo, a ot kouptsev” dva starosty) could also be read as if there was a comma after “well-to-do people”; this would result in a total of six elders.58 Whichever reading is preferred, the fact remains that the provision (art. 5 of the ‘Testament’) made a clear distinction between merchants on the one side and the well-to-do and common people on the other. The distinction can also be observed in the treaty preambles, mentioning the representatives of Novgorod. The archbishop usually (but not always) headed the list, the posadnik and the tysiatskii almost always followed after 54 55 56 57 58

Such as the treaties with Tver’, mentioned above. E.g. gvnp No.17, 32–33, a mandate for Novgorod’s envoys to the prince of Tver’ in 1372. E.g. gvnp No.21, 38–39, a concessionary grant to the Moscow grand prince Vasilii ii (1448–1461). The overseas (zamorskie) merchants had their own church of St. Paraskeve, mentioned in 1156 and 1207 in the Chronicle. E.g. Zimin in prp ii, 179. Both Ianin and Bassalygo seem to follow M.N. Tikhomirov on this point, who had advocated the three elders’ theory in Drevnerusskie goroda, ­Sankt-Peterburg, 2008 (originally published, Moskva, 1946), 102. Tikhomirov was actually following in the footsteps of V.O. Kliuchevskii, Boiarskaia Duma, Moskva, 1902 (3rd ed.), 544–545. See also V.L. Ianin, Novgorodskie posadniki, Moskva, 2003 (2nd ed.), 128; L.A. ­Bassalygo, “Novgorodskie tysiatskie. Chast’ i”, Novgorodskii istoricheskii sbornik, vyp. 11(21), Sankt-Peterburg, 2008, 45.

488

chapter 16

the archbishop, but after that there is much variety. Often the tysiatskii is followed simply by “all Novgorod”, but (as mentioned above) older treaties (the last one in 1371, gvnp No.15) sometimes inserted the “greater and lesser people”, replaced in later times occasionally by “well-to-do and common people”. A 1372 document (gvnp No.17, mentioned above) inserted “boyars” between the ­tysiatskii and the well-to-do and common people, demonstrating that boyars were not included among the well-to-do people. The merchants of the St. John’s guild themselves knew a division between ordinary and privileged members. The latter (poshlye kuptsy) paid a very high entrance fee (fifty grivna silver), but this granted them and their successors hereditary membership. The two elders who headed the guild were to be chosen from the privileged members (art. 7 of the Testament). In some of the commercial treaties with Western partners the elders are mentioned (after the tysiatskii) as co-signatories.59 To summarize the picture of Novgorod’s social composition: at the top of the pyramid were the boyars (more about them in the special section on boyars below); the rest of the population was divided, first in “greater and lesser people”, and later on in “well-to-do and common people”. The “greater” and later on the “well-to-do” people also embraced an elite occasionally referred to as “elders”. Merchants could be found in different social groups, but constituted a special category, a comparatively closed group with its own social hierarchy. Persons belonging to the clergy represented a parallel pyramid, with the archbishop at the top, followed by the archimandrite (the abbot of the Iur’ev monastery) and the abbot of the Antoniev monastery, other abbots and then lower clergy. Although, as said in the beginning of this section, these social distinctions were legally relevant, they were not defined by law (with the exception of the ‘great merchants’). As a result, their borders were porous; an individual could, exceptionally, move in his lifetime from one category to another, the boyar class remaining strictly hereditary in the meantime. The Rural Population Apart from the city population, as discussed in the preceding section, there was the population of the rest of the territory controlled by Novgorod. The territory occupied by Novgorod’s five piatiny (including the huge Ladoga and Onega Lakes) measured roughly 322 thousand square kilometres by the end 59

gvnp No.41, a treaty on the wax trade with the Hanseatic League of 1342, mentions the “elder of the merchants Sidor and all the Novgorod merchants”; the unnamed starosty mentioned in a treaty of 1269 (gvnp No.31) and in a diplomatic note of 1301 (gvnp No.33) are presumably also elders of the St. John’s guild.

Novgorod and Pskov

489

of Novgorod’s independence. Its population varied greatly in the course of the 16th and 17th century, due to epidemics, famine, war and domestic upheaval, but it remained typically at a level of ten times the population of Novgorod itself. The vast majority (in the order of 90%) of it consisted of free peasants who worked the fields of landowners on a contractual basis. Another 5% was made up of peasants with a different status (slaves, bobyli); persons with a clerical status (less than 4%) and various others (merchants, craftsmen, landowners, soldiers, etc.) accounted for the remainder.60 Legislative sources on this very large section of the Novgorod population is almost non-existent, but a considerable number of charters and also birch-bark documents fills the gap. Novgorod peasants enjoyed and actually used the right to leave their landlords around St. George’s Day (Iur’ev den’), after giving notice (otkaz) and paying their debts.61 After the loss of Novgorod’s independence, the expulsion of Novgorod boyar and ecclesiastical landowners and their replacement by Moscow pomeshchiki (owners of service estates) implied various changes in the peasants’ position (they now had to pay obrok instead of performing contractual duties towards the landlords they worked for in the past); of much greater effect was the gradual abolition of the peasants’ right to leave their landlords, as this was implemented during the second half of the 16th century. In the end the enserfment of Novgorod peasants was no different from that of other Russian peasants. Apart from the already huge territory of the Novgorod republic (the city and its immediate surroundings and then the five piatiny) there was the even larger territory to the east of the Obonezhskaia piatina (the northernmost of the five), Dvina Land (Dvinskaia zemlia) and the borderless area beyond, ­extending as far as the Ob River in Western Siberia. Most of this terrain was extremely sparsely populated, due to the harsh climatic conditions, but Dvina Land proper occupied a special place in the history of Novgorod’s territorial expansion. It was administered by a namestnik appointed by Novgorod, who was by necessity left mostly to his own devices because of the difficulty of communicating with the Novgorod government. Moreover, on account of its l­ ocation, bordering on the Vologda region which had been acquired by M ­ uscovy during the reign of Vasilii i (1389–1425), it had attracted the attention of the latter, who had even attempted to add it to his lands in 1397 when an uprising of Dvina noblemen had tried to sever their ties with Novgorod. (This ­resulted in the ­Dvina Land Charter of 1397, see Chapter 8). In the course of the 15th ­century, the 60 61

V.M. Vorob’ev, “Novgorodskie krest’iane”, in A.I. Kopanev, M.B. Sverdlov (eds.), Istoriia krest’ianstva Severo-Zapada Rossii. Period feodalizma, Sankt-Peterburg, 1994, 86–103. V.F. Andreev, in Kopanev, Sverdlov, op. cit., 75–76.

490

chapter 16

­ oscow grand prince succeeded in acquiring most of Dvina Land before the M actual dissolution of the Novgorod republic. The possessions of the Novgorod boyars who owned much of the land in the region were not, as often happened, distributed among the petty nobility of Muscovy, but they remained in the hands of the state. This then turned most Dvina Land peasants into chernye liudi, ‘black people’, a position which was generally more advantageous than being the dependent peasant of an individual landowner.62 The surviving collection of documents concerning Dvina Land is surprisingly rich, which has allowed more detailed descriptions of the legal aspects of local conditions. The Veche What was said about the Old-Russian veche in general in Chapter 15 applied to the Novgorod veche as well; the Novgorod chronicles are after all an important source for the study of the veche in general. Their relative wealth of information on veche activity in Novgorod and the length of the period covered allow for the placing of a few extra accents.63 First of all, the veche concept of the Novgorod chronicles is very wide. It embraced not only formal assemblies, properly convoked by some person of authority such as the prince (1016, 1215, 1228) or the posadnik (1299), but also spontaneous, even riotous gatherings, often leading to mob violence (1209, 1270, 1290, 1342, 1418).64 Along the same lines, a veche could not always be considered to express the position of Novgorod, because it could also represent a rebellious current opposing the official position. There are also examples of disagreeing quarters conducting their own veches (1384). The Novgorod records prove beyond doubt that the veche label cannot be considered a requirement to identify an assembly as a veche. Numerous meetings are mentioned explicitly, or their occurrence is inevitably implied, without using the veche designation. The election of the archbishop by the veche, for instance, is described several times, usually when there were complications (1228 – dismissal of archbishop, 1299, 1375, 1388, 1415, 1421). Where the election went smoothly, the Chronicle might just refer to it without giving any details. The same goes for the election of the posadnik; this was obviously something effected at a veche meeting, but occasionally the Chronicle informs the reader 62 63 64

See A.I. Kopanev, Krest’ianstvo Russkogo Severa v xvi v., Leningrad, 1978, 30–63. This work is specifically devoted to the peasantry of Dvina Land in the 16th century. See also P.V. Lukin, Novgorodskoe veche, Moskva, 2014 (not avaliable to me). Under 1337 the Chronicle relates how the common people (prostaia chad’), “at the instigation of the devil”, held a veche in order to dismiss the archimandrite Esif.

Novgorod and Pskov

491

in passing that there was a new posadnik, without bothering to tell about his election. This means that beyond the more than 40 veche meetings explicitly reported by the Novgorod Chronicle there were numerous other similar meetings. An entry under the year 1160 in the Hypatian version of the Primary Chronicle states that the people of Novgorod often assembled in a veche.65 Veche meetings in Novgorod were therefore a common event, even on consecutive days or two on the same day (1214, 1218, 1342). Then there could also be longer periods without such meetings. The above observations are relevant for evaluating the legal significance of veche activity in Novgorod. Novgorod veches, as pointed out, ranged from official, orderly procedures to downright riots. Decisions reached at the former (e.g. the peaceful and unanimous election of a new archbishop upon the death of the last one, 1388) may without doubt be regarded as legally valid. But how, for instance, can one force the consecutive events of the restless year 1230 into a consistent legal framework? In 1229 the posadnik office had been entrusted to Vnezd Vodovik, after Ivanko Dmitrovich had been dismissed. The next year an opponent of Vodovik, Stepan Tverdislavich, together with his ally Ivanko Timoshkinich, attempted to remove Vodovik at a veche convoked by Ivanko. The attempt was unsuccessful, and in the ensuing hostilities Vodovik had Ivanko killed. But a few months later, while Vodovik was out of town with the young prince Rostislav, there was an uprising and the houses of Vodovik and his associates were plundered and Stepan Tverdislavich was made posadnik.66 The inevitable conclusion is that even veche meetings that might appear to have been unlawful and irregular could take decisions entailing valid legal consequences. If we accept that the veche concept, especially with regard to Novgorod, was amorphous or fluid, the question concerning the competence or jurisdiction of the veche becomes meaningless. Popular gatherings in Novgorod, whether expressly designated as veches or operating in a similar manner, would lead to all kinds of decisions and results, many of them legally relevant. What is possible is highlighting certain categories of decisions that the veche would regularly take. 65 66

psrl ii, col.510. Cf. P.V. Lukin, “K voprosu o tak nazyvaemym sovete v domongol’skoi Rusi”, dgve 2003, 131–142, at 141. The Novgorod Chronicle reported the death of Vodovik Vnezd, posadnik of Novgorod, in Chernigov in 1231, apparently in exile. The death of Stepan Tverdislavich is reported under the year 1243, with the observation that he had been posadnik for almost 13 years. It would seem that the chronicler wanted to abstain from passing judgment on the legal status of the two officials.

492

chapter 16

The most important among these was the selection, and dismissal, of the prince. The gradual emancipation of Novgorod from princely supervision has been described above. The dismissal of David Sviatoslavich in 1095 was the first recorded instance of Novgorod’s independence in this sphere, but it was followed by a long series of similar steps. The reason given was often that the prince had failed to honour the contract made with the city upon his acceptance of the throne. (There is more on this topic below). The election of the archbishop has been mentioned above. Most Chronicle entries reporting on such events added a reference to the required blessing of the metropolitan. This also meant that dismissal of an archbishop, although attempted a few times, needed the metropolitan’s agreement to be effective. Such a condition did not apply to the appointment of an archimandrite, ­although the archbishop obviously had a say in this matter. The veche’s turnover of posadniki was sometimes very rapid. Some failing posadniki were even sentenced to death and executed or just killed by an angry mob. The veche also acted as a court in other serious cases, ordering the execution of rebels or traitors (e.g. 1291, 1316). Being thrown off the bridge into the Volkhov River was a common manner of execution. The legal force of a veche decision was most obvious in the comparatively rare cases of a properly convoked veche meeting taking a formal decision upon a request. In 1411 the Novgorod veche established, at the request of the peasants of the village of Terpilov, the amount of taxes to be paid by the latter.67 Veche meetings of the disorderly type, such as popular riots, would obviously involve crowds of considerable size. But if the discussion is limited to the more institutionalized type of veche, the argument has been made that such veches were actually meetings of members of the elite, boyars, great merchants, church dignitaries and the like. Ianin in particular took this position, in line with his overall view of Novgorod as an oligarchic republic. P.V. Lukin, the author of several detailed studies on the social composition of the Russian veche, rejected Ianin’s views and presented elaborate grounds for accepting that the Novgorod veche would normally involve the participation of the entire free (male) population of the city.68 The turnout would of course depend on various circumstances. If the population of early 13th century Novgorod

67 68

gvnp No.89, 146. P.V. Lukin, “O sotsial’nom sostave Novgorodskogo vecha xii–xiii vv. po letopisnym ­dannym”, dgvo 2004, Moskva, 2006, 164–211; P.V. Lukin, “Veche: sotsial’nyi sostav”, A.A.  Gorskii, V.A. Kuchkin (eds.), Drevniaia Rus’: Ocherki politicheskogo i sotsial’nogo stroia, Moskva, 2008, 33–147.

Novgorod and Pskov

493

is considered to be in the region of 20.000 to 30.000,69 one could expect the free male population to consist of something like 3.000 to 4.000 persons.70 The usual meeting places of the Novgorod veche, the Court of Iaroslav or the Archbishop’s Court, could accommodate such numbers. The Archbishop Novgorod was the second Russian town to receive a bishop, immediately after Kiev, in 989 (as mentioned above). In later times the bishop of Novgorod differed on two points from the other Russian bishops; he was popularly elected instead of appointed by the Kievan metropolitan, and he enjoyed the title of archbishop. The first reported election was in 1156 when “all the people of the town came together and decided to elect as bishop, Arkadii, a man chosen by God”. This event took place at a time when Novgorod’s ascent to independence was in full swing, and the fact that the see of the Kievan metropolitan was vacant presented an excellent opportunity to circumnavigate the normal procedure (appointment by the metropolitan). The precedent was followed unfailingly until the end of Novgorod independence, the election always being confirmed by consecration (khirotoniia, from Greek χειροτονία, “imposition of hands”) in Kiev by the metropolitan. This required the newly elected bishop to travel to Kiev and often took place with much delay.71 The various reports of the Novgorod Chronicle do not produce a completely uniform picture of the procedure followed. The veche was normally involved, but occasionally a further meeting in the Sophia Cathedral is mentioned. Sometimes (e.g. at the 1421 election) lots were drawn between three candidates (a procedure also sometimes used in other situations).72 The crucial factor remained that the bishop of Novgorod was not imposed from outside. 69 70 71

72

See for instance, M.N. Tikhomirov, Drevnerusskie goroda, Moskva, 2008 (orig. published as Uchenye Zapiski mgu, vyp.99, Moskva, 1946), 116–117. Cf. V.F. Andreev, “O sotsial’nom sostave Novgorodskogo vecha”, I.Ia. Froianov (ed.), Genezis i razvitie feodalizma v Rossii, Leningrad, 1988, 70–80, at 78. Cf. Ia.N. Shchapov, Gosudarstvo i tserkov’ Drevnei Rusi x–xiii vv., Moskva, 1988, 62–69; Ianin, Ocherki, 63. The consecration was anything but an empty formality. The doctrine of apostolic succession, embraced by the Christian Church (both Orthodox and RomanCatholic), rested on the idea of co-optation into the original collegium of apostles. Breaking the chain of apostolic succession would result in the absolute invalidity of the episcopal dignity. Elected but unconsecrated bishops of Novgorod were always careful to present themselves not as bishops, but as bishops-elect. More on this: M.V. Pechnikov, who held that the lottery was a permanent feature of the Novgorod episcopal election: M.V. Pechnikov, “Novgorodtsy i kafedra Sv. Sofii v seredine xii–xiii v.”, A.A. Gorskii (ed.), Srednevekovaia Rus’, 9, Moskva, 2011, 7–46; and further:

494

chapter 16

As to the archiepiscopal title, this was honorific only and devoid of the customary privilege in the Byzantine church, i.e. the direct subordination to the patriarch in Constantinople, bypassing the territorial metropolitan. The bishop of Novgorod, like all other Russian bishops, was subject to a certain amount of supervision and control by the Kievan metropolitan.73 When the title was actually conferred is unclear. The year 1165 is often mentioned, because the Chronicle reports that the metropolitan ordered Ilia (the successor to the above mentioned Arkadii) to accept the archiepiscopal title in that year. Novgorod’s archbishop exercized the same judicial duties as other Russian bishops (see Chapters 19, on Family Law, and 21, on the Church). The point is made explicitly in the first article of the Novgorod Court Charter, which provided that the archbishop was to conduct his own court. His judicial duties were in fact carried out by a special official, the archbishop’s namestnik, ­assisted by a tiun (steward, sheriff). The Novgorod Court Charter refers repeatedly to the procedure in the archbishop’s court, and it appears that the provisions of the Charter applied to it, although art. 1 also directed that the archbishop’s court followed the rules of the church fathers and of the Nomocanon. In two other respects the legal activities of the archbishop went beyond the normal episcopal pattern. He was at least in some ways comparable to a ceremonial head of state (as in many present-day republics and monarchies), and he was the supreme ruler of an economic empire, the House of St. Sophia. During the first period, at least until 1136 (the dismissal of prince Vsevolod Mstislavich), the prince functioned as head of state. As Novgorod appropriated more and more elements of politico-legal independence, the posadnik acquired many of the tasks previously entrusted to the prince, although the latter never disappeared entirely from the stage and eventually re-emerged with a vengeance when the grand prince of Muscovy gradually achieved the complete submission of Novgorod. In the meantime the archbishop enjoyed the status of the highest dignitary of the republic. This found expression, for instance, in the texts of numerous treaties where he was mentioned first, before the posadnik and other persons and parties representing Novgorod. In the often tumultuous political life of Novgorod, where the posadnik was normally the highest representative of the dominant section of the elite, the archbishop was about the only person with sufficient authority to act as Matsuki Eiko, “Izbranie i postavlenie Vasiliia Kaliki na novgorodskoe vladychestvo v 1330– 1331 gg.”, A.A. Gippius, E.N. Nosov, A.S. Khoroshev (eds.), Velikii Novgorod v istorii srednevekovoi Evropy. K 70-letiiuValentina Lavrent’evicha Ianina, Moskva, 1999, 207–217. The lottery procedure in the election of bishops is probably of biblical origin: Acts, 1, 26. 73 Shchapov, op. cit., 62.

Novgorod and Pskov

495

­moderator and mediator. Many excesses and atrocities were averted by the active intervention of the archbishop. A good illustration of the role of the archbishop in secular matters was a letter dispatched in 1417 to the three major Baltic towns (Riga, Iur’ev, and Kolyvan’) in which the archbishop invited the town authorities to send envoys to Novgorod to work out a peace treaty. He pointed out that he had carried out their request to discuss the matter of such a treaty with the Novgorod authorities and that the latter had expressed the wish to return to the status quo ante by resurrecting the old treaty.74 The enormous wealth of the archiepiscopal see was not lost after Novgorod lost its independence and is well-documented for this period, the 16th and 17th centuries. It was the subject of one of the earlier works of B.D. Grekov, the “Novgorod House of St. Sophia”.75 The House of St. Sophia constituted almost a state within the state. It was based on the extensive landholdings of the archdiocese, providing the raw materials for all kinds of crafts and industries. Its produce not only served the domestic consumption of the archbishop’s household and its large and varied workforce, but was also used commercially for local and foreign trade. It had its own ‘civil service’ of clerks and managers, headed by the Clerk (d’iak) of St. Sophia. The Posadniki The title of posadnik referred originally to an official appointed to represent a ruling prince in a specific town and the region belonging to it. As such the posadnik is mentioned in various chronicles and legal sources.76 It is usually translated as “mayor”, but “lieutenant” and “governor” also occur.77 The ‘emancipation’ of the Novgorod posadnik by the end of the 11th century, by removing his appointment from the prince’s jurisdiction to that of Novgorod itself, has been mentioned already. This turned the posadnik into the actual ruler of Novgorod, although this was a far from stable arrangement. The strength 74

75

76

77

gvnp No.54, 92. The archbishop’s words were that he had blessed his children at the request of the Baltic towns and that his children, the posadnik, the tysiatskii, the merchants, and all Novgorod, had accepted his blessing. It was first published in 1914, but an up-to-date version was included as vol.4 in the posthumously published “Selected Works”: B.D. Grekov, Izbrannye Trudy, t.iv: Novgorodskii Dom Sviatoi Sofii, Moskva, 1960. In art. 114 of the Expanded Pravda, arts. 11 and 13 of the Church Statute of prince Rostislav Mstislavich of Smolensk, a.o. In the Primary Chronicle (1012–1014) Iaroslav the Wise, ruling in Novgorod for his father St. Vladimir, is himself called the posadnik of Novgorod. The Low German in the various treaties with Hanseatic partners has borchgrave, borchgreve (modern High German Burggraf) and Latin borgravio, and also borgermeister.

496

chapter 16

and effectiveness of the posadnik’s government would depend on several factors: the support of powerful political actors both inside and outside Novgorod, other political and economic circumstances, and of course his own capability. The Novgorod Chronicle shows that the posadnik was easily dismissed, like the Novgorod prince, but, unlike the prince who was just “shown the road”, the posadnik often paid with his life for political failure. The office of Novgorod posadnik was, moreover, not a stable institution which remained unaltered for centuries. Initially, the posadnik was appointed (by the prince, and then by Novgorod itself) for an unspecified period; then, by the end of the 13th century, the appointment was limited to one year; as from 1354, the five quarters of Novgorod each had their own posadnik, along with the acting city (stepennyi) posadnik. In the 15th century the number was further increased. Novgorod’s modern historian, V.L. Ianin, published a major monograph on the Novgorod posadniki in 1962, and a much amended edition appeared in 2003.78 Notwithstanding the wealth of information offered by this new volume, the sources for describing the legal aspects of the posadnik office were roughly the same as in 1962, that is to say, modest. The narrative of the Novgorod Chronicle suggests, as a general principle, that the Novgorod posadnik functioned as a replacement for the prince, that he took over the prince’s duties. This is confirmed by the evidence from the treaties between Novgorod and the princes of Tver’ and Moscow.79 The oldest surviving Novgorod-Tver’ treaty of 1264 (with grand prince Iaroslav iii Iaroslavich) contained the formula: “And without the posadnik, prince, you are not to grant lands nor issue charters [gramoty]”. In a treaty between the same parties of 1270 the formula was extended to: “And without the posadnik, prince, you are not to judge court cases, nor grant lands, nor issue charters”. This formula is retained in all similar following treaties with the princes of Tver’ and is also found in the 1435 and 1456 treaties with Moscow and even in the final 1471 treaty of Korostyn’. Its most problematic element is the issuing of charters. Kaiser interpreted it as “documents concerning land transactions”,80 while Zimin proposed a more comprehensive understanding: “legislative acts, court decisions”.81 As the general tenor of the treaties was to hem in the prince

78

V.L. Ianin, Novgorodskie posadniki, Moskva, 1962; second edition, Moskva. 2003. All references are to the second edition. 79 For details, see Chapter 7. 80 Kaiser, Laws, 67. 81 In prp ii, 144.

Novgorod and Pskov

497

as much as possible, the latter reading is to be preferred. It then comprised almost the entire package of princely duties, minus his military leadership role. The titular prince of Novgorod was usually engaged somewhere else in Russia during the 13th, 14th and 15th centuries, which meant that his responsibilities in Novgorod had to be shouldered by his namestnik. If the namestnik would then be in charge, in tandem with the posadnik, of executing the most important powers in Novgorod, it is obvious that the posadnik, whose position rested on the support of the population, would be the overwhelmingly dominant partner. Numerous events narrated in the Novgorod Chronicle confirm the view that the posadnik was in effect the ruler, at least most of the time, and always depending on his being able to muster sufficient popular backing. Novgorod did not have a constitution (in the sense of a legislative document setting out the legal organization of the state), so one has to look for direct legal confirmation of the posadnik’s paramount position elsewhere. The large number of Novgorod treaties with Russian princes, as well as those with Western parties, provide one indication. Although the archbishop was in many cases the first Novgorod representative mentioned in the opening sentences, immediately followed by the posadnik, there is a somewhat smaller number (about 20) of treaties concluded without the archbishop, where the posadnik heads the list of Novgorod representatives. In a few rare cases the prince’s lieutenant (namestnik) is also included and then he is mentioned before the posadnik.82 The oldest treaties with foreign parties were still concluded by the prince, “after consulting with the posadnik, the tysiatskii, and all Novgorod”, but soon the prince, if mentioned at all, just headed the usual list of Novgorod representatives.83 In other types of documents issued on behalf of Novgorod a similar practice was followed, Novgorod was represented by the posadnik, the tysiatskii, and others.84 It appears that the posadnik would never act alone in a legislative or executive capacity, but always as the chief agent of a collective acting on behalf of Novgorod. But as a judicial officer, the posadnik did act alone, as is well documented by the Novgorod Court Charter. The Charter mentions the posadnik several times (arts. 2, 5a, 8, 24, 27 and 28) and these provisions show that along with 82

83 84

E.g. gvnp Nos.41, 42, 44 (treaties with Hanseatic partners). In many treaties with foreign parties the Novgorod prince heads the list of Novgorod representatives, followed first by the posadnik. The old formula in the 1189 (gvnp No.28) and 1269 (gvnp No.31) treaties with the Hanseatic League. E.g. gvnp No.89, a grant charter of around 1411, issued by the veche.

498

chapter 16

the posadnik and the archbishop’s namestnik, judicial functions were also incumbent on the tysiatskii, although the posadnik appeared to be in charge of the general jurisdiction. The posadnik was closely connected to the boyar class and, in a way, defined the latter. The posadnik was always chosen from the boyar class, and boyar families were those families that could provide a posadnik. The posadnik was first and foremost the spokesman and representative of the Novgorod elite.85 Many Russian and Western historians have developed theories about a “Council of Lords” (Sovet Gospod), which was supposed to have come into ­being around the end of the 13th century and consisted allegedly of a small number of leading citizens, particularly the acting (stepennyi) posadnik, his predecessors, the prince’s namestnik (if available), the tysiatskii, with the archbishop acting as chairman. This Council was seen as the real executive of Novgorod during the 14th and 15th centuries, determining the agenda of the veche. The existence of such a body is nowhere mentioned in contemporary Russian sources and can be based only on one or perhaps two communications from Western visitors. Of course, small caucuses of powerful officials would consult each other and work closely together in many cases, and this may have given rise to the idea, or rather mystification, that they constituted an official body with determinate powers.86 The Tysiatskie After the posadnik, the most important official in Novgorod was the tysiatskii. The literal translation of this term is ‘thousandman’, millenarius, or chiliarch. While the presence of a posadnik is documented in Novgorod from very early times, a tysiatskii (by the name of Miloneg) appeared first (in the Novgorod Chronicle) in 1191. This does not mean that the office itself did not exist. In fact, thousandmen were known at an early stage in Kievan Russia. The preamble (art. 53) to the second main part of the Expanded Pravda, the Statute of Vladimir Monomakh (1112–1125), relates how Vladimir called together his druzhina in Berestovo: Ratibor, the tysiatskii of Kiev, Prokopii, the tysiatskii of 85 86

Ianin’s works, particularly his monograph on the Novgorod posadniki, offer abundant evidence for all this. In my study on the Skra of Novgorod (Feldbrugge, lmr, 265) I followed the view on the Council of Lords, as expounded by many authors. Failure to find any reference to it in the Russian sources, consulted in writing this chapter, made me doubt the existence of such a body. J. Granberg’s special study of the subject convinced me that my doubts were justified (Iu. Granberg, “Sovet Gospod Novgoroda v nemetskikh istochnikakh”, dgve 1998, Moskva, 2000, 78–87. See also V.L. Ianin’s sparse comment in Novgorodskie posadniki, Moskva, 2003 (2nd ed.), 243.

Novgorod and Pskov

499

Belgorod, Stanislav, the tysiatskii of Pereiaslavl’, and two others. The thousandmen belonged obviously to the highest level of officialdom. If the posadnik or the namestnik was originally the general permanent representative or lieutenant of the prince in a particular town or region, the thousandman was primarily concerned with the military leadership in a particular place.87 It is not entirely clear when the Novgorod tysiatskii emerged in his typical Novgorod role, that of a military commander and commercial judge. As a military official he may have been present during the 11th and 12th centuries and he may gradually have assumed certain functions in the supervision of trade. The first unambiguous indication is in the so-called Testament (Rukopisanie) of Vsevolod Mstislavich (mentioned above in the section on the composition of the Novgorod population). This prince of Novgorod died in Pskov in 1138, after having been arrested and expelled by the people of Novgorod. Nobody however doubts that most of the contents of the Testament are of a later date and that the Testament’s references to the prince and to the posadnik Miroslav (who died in 1136) represent anachronistic additions. More recent scholarship assigns the nucleus of the Testament to the last few decades of the 12th century, a period of growth in Novgorod’s long-distance commercial relations.88 These authors have argued that at some moment during the last two decades of the 12th century, the appointment of the tysiatskii, who had officially been an appointee of the prince’s administration until then, was taken over by Novgorod, like the appointment of the posadnik a century earlier. The most consistent scenario is outlined by Floria. According to him, the tysiatskii was originally a princely appointee, as everywhere else in Russia. The sotskie (hundredmen), of which there were apparently ten (see the Church Statute of Vsevolod), were important urban officials.89 The Church Statute of Vsevolod, tentatively dated 1182 by Floria, marked the point where the sotskie acquired control of commercial jurisdiction and (together with the 87

In the various treaties with Hanseatic partners, tysiatskii is translated into Low German as hertoge, which indicates that the translator was aware of the military aspect of the office. 88 Cf. L.A. Bassalygo, “Novgorodskie tysiatskie, Ch.I”, Novgorodskii istoricheskii sbornik, 11(21), Sankt-Peterburg, 2008, 33–67, at 42–44; B.N. Floria, “O polozhenii «Ivanskogo kupechestva» v Novgorode domongol’skogo vremeni”, Novgorodskii istoricheskii sbornik, 12(22), Sankt-Peterburg, 2011, 34–36 ; V.N. Floria, “K izucheniiu tserkovnogo ustava Vsevoloda”, V.A. Kuchkin (ed.), Rossiia v srednie veka i novoe vremia. Sbornik statei k 70-letiiu chl.-korr. ran L.V. Milova, Moskva, 1999, 83–96; V.L. Ianin, Novgorodskie posadniki, Moskva, 2003 (2nd ed.), 155–162. 89 The sotskie also appear in rural areas, see the section on “Local Government” in Chapter 18. In Novgorod the sotskie were involved in particular in the supervision of trade (see below).

500

chapter 16

a­ rchbishop) supervision over weights and measures, previously in the power of the prince and his tysiatskii, who used to serve as the head of the sotskie. Soon afterwards, the office of the tysiatskii himself also passed into the hands of the Novgorod veche. Miloneg is mentioned in 1185 as a wealthy Novgorod burgher (the builder of the church of the Ascension) and in 1191 as the tysiatskii. He is considered the first elected tysiatskii (an appointed one would probably be an outsider and would not invest in building a local church). The Testament is therefore of a later date than the Church Statute, because the former reflects a situation in which the tysiatskii and not the sotskie ran the commercial court. In the section on the composition of the Novgorod population we referred to art. 2 of the Testament in connection with its mention of ‘well-to-do’ vs. ‘common’ people. Another aspect of this provision is its description of the tasks of the three elders, who are said to have been appointed to “manage all affairs of the St. John’s guild, domestic and foreign trade, and commercial jurisdiction”. The three elders consisted of the tysiatskii and two other persons, to be appointed from amongst the wealthy (poshlye) merchants (art. 4). Art. 2 also added that the posadnik and the Novgorod boyars were not to interfere with the affairs of the guild. The judicial aspect of the tysiatskii’s office is indirectly confirmed by the Church Statute of Vsevolod (see Chapter 6) which in this and other ways is intimately connected with the Testament of Vsevolod, in agreement with Floria’s theory outlined above. The central topic of the Statute is the granting of tithes and of jurisdiction in a large number of cases to the church, more or less along the lines of the Church Statute of St. Vladimir. The Statute of Vsevolod, as said, does not mention the tysiatskii; instead, the prince states that it was issued after calling together the ten hundredmen (sotskie), the elder Boleslav, the town herald (birich) Miroshka, the elder Vasiata of the merchants’ guild of St. John, and that it was then established in consultation with all those persons, the archbishop of Novgorod, the prince’s wife and the boyars. But along with the church as the principal beneficiary, the guild of St. John turns up as the supervisor of trade measures in Novgorod (wax scales, honey weights, silver weights and cloth measures). This responsibility was specifically entrusted to the elder (singular) of the guild. The guild of St. John co-existed with the church of the same name, the endowment of which was the main concern of the Testament. The income from the various grants made by the Testament was spent partly for the upkeep of the church, its clergy and other personnel, and for liturgical services, while another part of it was added to the treasury of the guild. The general drift of the document is to confer the general management of trade in Novgorod to the complex of St. John, the merchants’ guild and its church. As the tysiatskii,

Novgorod and Pskov

501

himself a Novgorod official, not being a member of the guild, was already concerned with the administration of Novgorod trade, his appointment, to what amounted to being the head of the St. John’s guild, was a logical step to take once the guild acquired its public role in the administration of Novgorod’s trade. The tysiatskii and the sotniki, as the principal commercial officers of Novgorod, also had important responsibilities with regard to the upkeep of Novgorod’s streets and the great bridge across the Volkhov (see below, the section on central and regional government). The Novgorod Court Charter (reflecting mostly a situation prevailing at a somewhat later date) is very clear about the role of the tysiatskii as a separate court, side by side with the courts of the archbishop and of the secular powers, the latter being run jointly by the posadnik and the lieutenant (namestnik) of the prince (see arts. 1–4). The 1269 (draft) treaty between Novgorod and Lübeck together with the ‘Gothic’ Coast, which regulated the relationships between Novgorod and its Western trading partners in considerable detail, directed Western merchants to take their legal disputes (with Novgorod partners) to the court of “the tysiatskii, the elders, and the Novgorodians”.90 The election of the tysiatskii, after the office had been removed from the control of the prince at the end of the 12th century, was effected by the veche. As the second most important city official, the tysiatskii was recruited from the boyar class; this is confirmed by several Chronicle entries. The posadnik was often away from Novgorod, on diplomatic or military missions; in such a situation the tysiatskii, if he happened to be in town himself, would act as the posadnik’s deputy, but presumably only with regard to general executive duties, and not in a judicial capacity. The Novgorod Court Charter is quite precise about keeping the judicial duties of these offices separate. It has already been mentioned in passing that the tysiatskii, like the posadnik, was very much involved in Novgorod’s foreign relations. In treaty preambles he is almost invariably mentioned immediately after the posadnik. Boyars The Novgorod Chronicle, as well as legal sources such as treaties, demonstrates that boyars and merchants were perceived as distinct categories of persons, playing specific roles in the political and economic life of medieval Novgorod. In the works of V.L Ianin the boyar class even assumed the role of the actual carrier of Novgorod’s statehood and sovereignty. But while a manageable 90

gvnp No.31, 58–61, at 60.

502

chapter 16

c­ oncept of merchants as a social class is at least within reach (for instance: “persons who made their living primarily by buying and selling goods, together with their families”), boyars constituted a much more elusive collective entity. They are first mentioned in the First Novgorod Chronicle in 1118, when Vladimir Monomakh summoned “all Novgorod boyars” to Kiev. This would agree with the theory put forward by S.V. Zavadskaia that before the beginning of the 12th century the term “boyar” did not refer to a distinct social group.91 It is probably more than a coincidence that the term is first used in Novgorod to refer to such a distinct group at a time when Novgorod was able to assert the right to elect its own posadnik (first documented case in 1161). On the other hand (as argued in the section on boyars in Chapter 19), Zavadskaia’s date probably ought to be moved back at least to the middle of the 11th century (when “great boyars” and “lesser boyars” appeared a number of times in the Church Statute of Iaroslav). Two treaties (of 1372 and 1448–1461) in which boyars are mentioned specifically, between the chief officials (posadnik and tysiatskii) and the well-to-do people (zhit’i liudi), have been referred to in the section on the constitution of the Novgorod population. What exactly defined a person’s status as a boyar (apart from the fact that his father had been a boyar) remains unclear. One feature pointed out above is that the Novgorod boyars constituted the class from which the leading officials, the posadniki and the tysiatskie, were chosen. In most cases the appointment appears to have been effected by the veche, in which all free citizens could participate. The fact that such procedures would always lead to the appointment of a member of the boyar class demonstrates that either the choice was limited, by custom, to that class only, or that the boyar class wielded sufficient influence in veche meetings to ensure the election of one of their own. In the traditional Soviet view, the Novgorod boyars were identified as the ruling class in a feudal society.92 This meant that boyar land ownership had to constitute the foundation of their socio-economic and legal position. (­Monasteries and other ecclesiastical entities owning land were considered as associated with this ruling class.) This approach led to a simple answer to the question concerning the characteristics of the Novgorod boyars: an individual who owned (a sufficient quantity of) land was ipso facto a boyar. Even if one were to disregard certain general objections to this approach (the ­validity of 91 92

S.V. Zavadskaia, “«Boliarin»-«Boiarin» v drevnerusskikh pis’mennykh istochnikakh”, dg sssr 1985, 89–94. See the section on boyars and other nobles in Chapter 19. Cf. B.D. Grekov (ed.), Ocherki istorii sssr. Period feodalizma ix–xv vv., i, Moskva, 1953, 334–357 (“Novgorodskaia feodal’naia respublika”, by A.L. Mongait), at 335.

Novgorod and Pskov

503

Marxist theory on this matter, the dubious usefulness of the feudalism concept, etc.), this position is by no means unassailable. Novgorod ‘well-to-do’ people and merchants were also known to own land; a Novgorod boyar who lost his land did not lose his membership of the boyar class. In accordance with the pivotal role assigned by V.L. Ianin to the Novgorod boyar class, a more precise definition of it was attempted by him. In a special study devoted to the “feudal votchina” (roughly: allodium) he reached the conclusion that the Novgorod boyar class constituted a closed body of families descending from a small number of ancestors.93 His study is therefore subtitled “An historical-genealogical investigation”. This concept is close to the German Uradel, persons descending (in the legitimate and male line) from persons possessing noble status at some given moment in the past. The Novgorod Uradel, in Ianin’s view, was based on the local tribal aristocracy of the pre-Christian era. Most authors agree that landed property was the mainstay of the wealth of a Novgorod boyar. The dependent peasants living on the estates generally paid obrok (roughly: quitrent), the preferred system of exploitation where land was less productive.94 The non-Slavic (mostly Finnish of some description) population of more distant northern and eastern regions, controlled by Novgorod boyar families and engaged primarily in non-agricultural activities, such as hunting and fishing, paid tribute (dan’). There are several reports in the Novgorod chronicles about hostilities and punitive expeditions in connection with the payment of tribute.95 What can be said therefore, without providing a definition of the Novgorod boyars, is that they constituted the urban elite, that they controlled appointment to the most important offices, that their wealth and position were based to a considerable extent on landowning, and that the quality of being a boyar was inherited, in other words it was membership of a boyar family or clan that was the decisive factor. As with Russian boyars in general, the origin of Novgorod boyars is probably twofold, they descended in part from local families prominent in prehistoric times and in part from foreign elements, in particular members of princely druzhiny (esp. of Scandinavian origin) who had merged with local elites. The 93 94

95

V.L. Ianin, Novgorodskaia feodal’naia votchina. Istoriko-genealogicheskoe issledovanie, Moskva, 1981, 213–229. The alternative was especially barshchina, where a dependent peasant tilled a plot of land assigned to him for his personal use, after he had worked for a fixed number of days on the land of his master. See generally Mongait’s chapter on Novgorod, quoted above.

504

chapter 16

well-known Chronicle narrative of the sequence of events in 1015 leading ultimately to the succession of St. Vladimir by his son Iaroslav might echo this development. First, the chronicler related how the Novgorodians killed members of Iaroslav’s Varangian druzhina, and then continued with the story of Iaroslav’s revenge, when he had leading Novgorod burghers put to death. When Iaroslav needed the support of the Novgorod people the next day, he expressed his regrets by mourning “my beloved druzhina, whom I killed yesterday”. The leading citizens (narochity muzhi) as opponents of the (Varangian) druzhina apparently became members of the same druzhina in one day. The explanation, I suggest, is that the two categories, although still sufficiently separate to indulge in violent altercations between each other, were already in a process of being fused into a single Novgorod elite, and that is why Iaroslav could refer to both groups as his druzhina. In an urban setting such as Novgorod, the quantitative aspect of the class relationships is obviously relevant; in other words, what sort of numbers should come to mind when one considers the Novgorod boyar class. Somewhere between 100 and 250 adult men (who would take part in veche meetings) would be my guess, based on calculations of Russian scholars.96 The question of boyar landowning is closely connected with princely landowning and will be discussed below. Merchants Merchants have already appeared above in the section on the composition of the Novgorod population. Those remarks were based mostly on the socalled Testament (Rukopisanie) of prince Vsevolod Mstislavich, representing a kind of foundation charter of the guild of St. John the Baptist, a corporation of Novgorod merchants engaged in domestic (i.e. Russian) trade.97 The main points emerging from it (in the context of the present section) were: – merchants constituted a well-defined group, organized into several guilds or corporations; – they were not a socio-economically homogeneous category; there was a more or less separate group of important (poshlye) merchants; – a prospective merchant had to be admitted and had to pay an entrance fee; – the quality of “important” (poshlye) merchants could be inherited; 96 97

Esp. V.F. Andreev, “O sotsial’nom sostave Novgorodskogo vecha”, I.Ia. Froianov (ed.), Genezis i razvitie feodalizma v Rossii, Leningrad, 1988, 70–79. The guild was not set up by the Testament; the latter merely recorded an existing arrangement.

Novgorod and Pskov

505

– the merchant guild had its own board, which also served as a commercial court; it consisted of two ‘important’ merchants and the tysiatskii as president; – the guild’s income was derived from entrance fees and from trade tax. Additionally, the guild of St. John shared the revenue from the supervision of weights and measures with the church.98 Although little is known about other merchants’ guilds, their organization was probably similar to that of the guild of St. John. In this respect an interesting hypothesis has been advanced by B.N. Floria, who suggested that the merchants’ guild of St. John actually arose as the result of a merger of several, or at least two previous corporations. This would explain the presence of two aldermen and the absence of charters similar to the Rukopisanie, regulating the operation of other merchants’ corporations.99 Merchants are mentioned several times separately, along with other categories (such as boyars or ‘common people’) and Novgorod’s principal officials, in the preambles to treaties.100 Some of these treaties mention the elders of the merchants by name, as representatives of all the merchants.101 The economic vulnerability of merchants is illustrated by a clause on zakladniki (indentured servants), included in most of the considerable number of treaties with Tver’ (and a few with Moscow), providing the general framework for relationships between Novgorod and its prince (on zakladniki, see the section on “Other categories among the rural population”, in Chapter 18, on Rural Russia). It appeared for the first time in the 1266 treaty102 with prince Iaroslav Iaroslavich of Tver’ and forbad the prince and all his people to receive Novgorod persons into dependent (indentured) service, whether smerdy (dependent peasants) or merchants (kuptsiny); they were to be returned to respectively their villages (pogosty) or their ‘hundreds’ (soty). It is quite ­understandable that a dependent person such as a smerd would like to leave 98 99

This is not in the Testament, but in the Church Statute of Vsevolod (art. 15). B.N. Floria, “O kupecheskikh organizatsiiakh v Novgorode xii–xv vekov”, V.L. Ianin (ed.), Ot Drevnei Rusi k Rossii novogo vremeni. Sbornik statei: K 70-letiiu Anny Leonidovny Khoroshkevich, Moskva, 2003, 272–275. 100 gvnp No.41 (treaty with Hanseatic League on wax trade of 1342), No.42 (treaty with Hanseatic League of 1371), No.43 (treaty with Hanseatic League of 1372), No.48 (peace treaty with Dorpat/Iur’ev of 1405), No.21 (treaty of 1448–1461 with grand prince Vasilii ii “the Blind”). 101 The treaties of 1371 and 1372; the treaty of 1342 mentions only “Sidor, olderman der koplude”. 102 gvnp Nos.2–3; also in prp ii, 137–141.

506

chapter 16

his Novgorod ­master and enter into a more promising relation of dependence elsewhere, but of course only a merchant in serious difficulties would contemplate a similar course. The clause allows the reading that Tver’ masters were forbidden to accept Novgorod subjects (particularly smerdy or merchants) into the zakladnichestvo relationship, as well as the reading that it concerned in particular Novgorod persons (whether smerdy of merchants) who were already z­ akladniki of a Novgorod master. The merchant (kupets) turns up a number of times in the Novgorod Court Charter in procedural provisions; in these provisions he is treated in the same way as a boyar or a well-to-do (zhit’ii) person. The merchants discussed hitherto were the kuptsy, engaged in domestic trade; they are to be distinguished from the merchants engaged in foreign trade, the gosti, who enjoyed a more exalted status. The treaties with the princes usually contained the formula that the gosti were to be granted free passage within the territory of the treaty partner, as ordered by the charter of the tsar (gosti nashemu gostiti … bez rubezha, po tsesareve gramote). The “tsar” in question was the Tatar khan (the Moscow grand prince at that time had not yet assumed this title). It indicates the importance attached by the Tatars to the unhindered exercise of long-distance trade in Russia. Otherwise the sources are almost silent about the status of Novgorod (and other Russian) merchants engaged in foreign and long-distance trade. The position of foreign merchants in Novgorod will be discussed below. The merchants, as already mentioned above, constituted a relatively closed group, but not a social class. A person belonging to the ‘common people’, or to the well-to-do people, or even to the boyar class, could engage professionally in trade and then the rules concerning merchants would apply. By the same reasoning, the gosti and the kuptsy were not necessarily separate social groups; the quality would depend on the activity engaged in. This is of particular relevance to boyars. A wealthy boyar could be viewed as the owner and manager of an enterprise, based on agricultural production but often embracing also the production of other goods by craftsmen. Part of the output of the enterprise would be used or consumed by the owner, his family and his workforce, but the surplus would be available for sale. Its export to faraway places could be undertaken by the enterprise itself or by other merchants. In the former case the boyar himself would assume the quality of a gost’. Central and Regional Administration In addition to what has been said above about the central authorities of Novgorod and their mutual relationships, one more curious source should be mentioned which throws unexpected light on the way Novgorod managed its

Novgorod and Pskov

507

affairs. What we have in mind is the text known as Iaroslav’s Law on Bridges.103 This short text, appearing as an appendix to certain groups of copies of the Expanded Pravda, dealt in practical terms with the matter of the maintenance of urban roads and bridges in Novgorod. During wet seasons the marshy soil on which Novgorod was built would make urban traffic almost impossible, if nothing was done about it. For that reason roads were paved with wooden beams, called mosty (bridges). Iaroslav’s Law on Bridges listed the different neighbourhoods and the specific stretches of road they had to maintain. Along with the neighbourhoods, the prince, the posadnik, the tysiatskii, and the German and Gothic Courts were also assigned their own stretches. The list covered mainly those streets which were essential for Novgorod’s trade, those leading from the river front to the market. The taxes required for the upkeep were collected by the osmeniki, officials normally responsible for the collection of customs duty at the market. The Law also contained two insertions which were probably included immediately or soon after the main list was compiled. The first insertion offered a list of the ten urban ‘hundreds’, or rather their chiefs, the sotniki, and of nine provincial ‘hundreds’. They were collectively responsible for the maintenance of the great bridge across the Volkhov River, connecting the two halves of Novgorod. Each ‘hundred’ was assigned one section of the bridge (a few of them two or three sections, as there were 23–25 sections). The tysiatskii, as the head of the sotniki, was in charge of the entire operation. The second insertion listed several rural regions located upstream along the Volkhov River, the inhabitants of which were obliged to supply the timber required for Novgorod’s bridge-building. In his exposition of the meaning of Iaroslav’s Law on Bridges, Ianin points out that Novgorod could afford to be more relaxed about the timber of the forests downstream, which would be difficult to bring back to Novgorod.104 In a treaty of 1269 with the Hanseatic League, almost exactly contemporary with Iaroslav’s Law on Bridges, the German merchants were allowed to cut down trees on both sides of the river, to repair their masts or for other purposes.105 By collecting scraps of information from different sources it is possible, not to reconstruct the entire system of regional administration of the Novgorod republic, but at least to acquire some of idea of how the vast territory controlled 103 The following account is based entirely on V.L. Ianin’s interpretation of Iaroslav’s Law on Bridges, as explained in rz i, 233–248. For other views on this Law see the relevant section in Chapter 8. 104 Ibid., 245. 105 gvnp No.31.

508

chapter 16

by Novgorod was administered. The picture may be one-sided because less is known about the nuclear regions (the piatiny) around Novgorod than about the more distant, albeit vast, Dvina province. The five piatiny consisted basically of the estates of ecclesiastical (the archbishop and the Novgorod monasteries) and secular landowners (Novgorod boyars). Lands owned by, or granted to, princes constituted a special category (see below). Most disputes of a legal nature would arise and be solved within the small world of the estate. What remained as functions to be exercized by higher authorities were taxation and jurisdiction. For the purposes of taxation the territory was divided into districts (okruga-pogosty) which generally coincided with parishes (prikhody). The jurisdiction of the court of the urban quarter (konets) with which the piatina was connected extended to the latter.106 In the more distant regions to the north and the east, tax collection was the primary governmental business. The non-Slavic tribal communities were expected to pay tribute (dan’), which was whenever necessary enforced manu militari by armed officials (danniki). Government servants, bearing titles such as posadnik or namestnik, were often stationed at population centres. Their duties seem to have been mostly involved with tax collecting and possibly with other general administrative matters. Numerous (metal) seals of deeds certified by them have been preserved and suggest that they were in fact appointees of the archbishop. The sources testify to the presence of boyars of local origin and appointments of officials may have been made from this reservoir of local candidates.107 The most important towns on Novgorod territory enjoyed the status of prigorod (borough). The exact legal ramifications of this status are difficult to establish. Some of them can be pieced together on the basis of dispersed entries in chronicles.108 They obviously implied a certain amount of autonomy. The best-documented case is Pskov, which eventually was able to shake off the status of prigorod (see the section on Pskov below). Other prigorody were (among 106 In this respect I follow A.A. Frolov, “Novyi vzgliad na territorial’no-administrativnuiu sistemu zemel’ Gospodina Velikogo Novgoroda”, Novgorodskii istoricheskii sbornik, 11(21), Sankt-Peterburg, 2008, 151–165. 107 Cf. V.A. Ianin, “K istorii administrativnoi sistemy Novgorodskoi zemli”, V.L. Ianin (ed.), Ot Drevnei Rusi k Rossii novogo vremeni. Sbornik statei: K 70-letiiu Anny Leonidovny Khoroshkevich, Moskva, 2003, 77–84; P.D. Malygin, “O regional’nykh (oblastnykh) vladychnykh namestnikakh Novgorodskoi zemli”, A.A. Gippius, E.N. Nosov, A.S. Khoroshev (eds.), Velikii Novgorod v istorii srednevekovoi Evropy. K 70-letiiu Valentina Lavrent’evicha Ianina, Moskva, 1999, 218–224. 108 See Kliuchevskii, Kurs ii, 74–75.

Novgorod and Pskov

509

others) Torzhok (also known as Novyi Torg), Velikie Luki, Ladoga and Rzhev. It seems that at least some of the prigorody had their own courts, with the corresponding courts in Novgorod serving as the appellate instance. Relations with the Prince Novgorod the Great, before its incorporation in the grand principality of Muscovy, is commonly designated as a republic or even a boyar republic, at least after the events of 1136–1137 when it succeeded in wrenching control of its own affairs from the Kievan princes. But during the entire following period, with a few short intermissions, there always was a prince, who was subject however to being “shown the road” when he had incurred the displeasure of the people of Novgorod. In the selection of a new prince Novgorod usually had a preponderant, if not decisive, say. It would be pointless for the Kievan grand prince (later on the grand prince of Vladimir) to appoint an unwanted candidate, unless very particular circumstances would prevent the Novgorodians rejecting such a prince. As everywhere in Russia, the new prince would belong to the house of Rurik; the field was in fact much narrower, because after 1137 the Novgorod princes would always be somebody close to (i.e. a younger brother or son) the line of the grand princes of Vladimir-Suzdal’ which would ultimately produce the princes of Moscow: Vladimir Monomakh (†1125), Iurii Dolgorukii (†1157), Vsevolod ‘Big Nest’ (†1212), Iaroslav ii (†1246), Aleksandr Nevskii (†1263) and the further father-son line (there were a few Novgorod princes from the Smolensk branch, who were politically subservient to the Vladimir-Suzdal’ princes). For some time the principality of Novgorod was in the hands of the princes of Tver’, themselves a junior branch of the princes of Vladimir (descendants of Iaroslav ii). The legal ramifications of the relationship between Novgorod and its prince are well-documented, thanks to the survival of a considerable number of contracts concluded between the two. The tradition which legitimated these riady went back to an alleged compact between Iaroslav the Wise and the Novgorod people in 1016, when Iaroslav was in great difficulties and needed Novgorod support. Possibly, as suggested by Ianin, the memory of the legendary deal between the Viking Rurik and Novgorod may have served the same purpose. Most of the presently surviving texts concern treaties with the prince of Tver’.109 The texts closely parallel each other and also one of a similar treaty with the prince 109 The most extensive work on the Novgorod-Tver’ treaties has been done by L.V. Cherepnin in his work on medieval Russian archives, Cherepnin, Arkhivy, I, Moskva/Leningrad, 1948, 224–333. A brief outline in my “The Treaties of Medieval Russia”, Feldbrugge, lmr, 181–232, at 202–204. Important new insights were offered by V.A. Kuchkin, Dogovornye

510

chapter 16

of Moscow; they span the period of 1264–1471.110 This suggests that there was indeed a standard formula listing the duties and rights of the prince. The first and most comprehensive obligation of the prince was “to hold Novgorod according to custom [po poshline]”; several texts add “as of old” and/ or “as your father held it”. Such a formula was already included in the first available text (of 1264) and it survived until 1471. It demonstrates, incidentally, that the 1264 text was by no means the first of its kind. Among the specific obligations, the division of jurisdiction constituted one of the most important clusters. The basic rule, already referred to above, was that the prince (or rather his lieutenant/namestnik) was not to judge cases without the participation of the Novgorod posadnik. Another rule forbad the Novgorod prince to try cases outside Novgorod territory (which would allow him to avoid the shared jurisdiction). Several treaties warned the prince not to contemplate self-administered justice (A samosuda ne zamyshliati). An entire package of rules set out territories and periods for the prince’s hunt. The most detailed and extensive regulation was devoted to the question of princely landowning (to be discussed immediately hereafter). Closely connected with landowning were the rules aimed at preventing persons fleeing Novgorod jurisdiction from settling on land controlled or owned by the prince. The prince was not allowed to remove people from Novgorod territory to his own lands, nor to offer shelter to indentured persons (zakladniki, see the section on unfree persons in Chapter 18). This prohibition also extended to the prince’s wife and family and his boyars. In conclusion, some of the considerations discussed at greater length in Chapter 13 (on the role of the Prince in Kievan Russia) could be repeated here. For the inhabitants of the principality concerned, an indispensable and muchneeded aspect of the prince’s office was his military leadership. The chronicles show very clearly that princes would generally serve as commanders of the army, and that their reputation would depend to a large extent on their performance as such. The core of the armed forces consisted, at least during the earlier period, of the prince’s personal guard, his druzhina. Of even greater importance, although less tangible, was what one author has called “the magic of power”,111 the awe inspired by the princely dignity, the conviction that a gramoty moskovskikh velikikh kniazei xiv veka, Moskva, 2003, in the chapters on the treaties with Tver’. 110 gvnp Nos.1–3, 6, 7–10, 14–15, 19–20, 22–23, 26–27; some of these are also to be found in prp ii, 133–158; English translations of Nos.1, 6, 14–15 in Kaiser, Laws, 67–78. 111 V.A. Arakcheev, Srednevekovyi Pskov, Pskov, 2004, 39 ff.

Novgorod and Pskov

511

­princeless polity was like an abandoned orphan.112 This idea was fully applicable to medieval Novgorod and Pskov. Princely and Boyar Landowning As we have argued elsewhere, a modern concept of ownership is not quite suitable for analyzing relationships concerning land in the middle ages. This applied fully to the lands of Novgorod, which ranged from urban plots within the walls of the city to vast tracts of almost inhabitable and unusable land in the North. A single ownership concept cannot very well deal with such a variety of objects. A prince of Novgorod could be the ‘owner’ of land situated on Novgorod territory and belonging to his family of old. Then he could ‘own’ land allotted to him by Novgorod for his upkeep. Otherwise, the treaties forbad him, his family or his boyars, from acquiring land (or rather: villages) belonging to Novgorod. As quasi-sovereign he could claim certain rights with respect to the land belonging to Novgorod, in particular the payment of a ‘gift’ (dar), as set out in the treaties. It is best to look at the relevant and available legal rules and ask the standard question: Who could do what with a piece of land? The trouble is that documentation begins to become available at a moment when the entire picture is already fairly complex. Several authors have therefore attempted to devise a more comprehensive scenario to fit the individual bits of information provided by the various sources (chronicles, legal texts, birch-bark documents and the post-1478 tax registers – pistsovye knigi). The most comprehensive and elaborate, although not entirely undisputed, argument is by V.L. Ianin in his monograph on the Novgorod ‘feudal votchina’,113 supplemented by later publications.114 Briefly, it runs as follows. Under the first Kievan princes, land grants were made by the prince. (As pointed out in Chapter 18, first to druzhina members, to support their activities on behalf of the prince; and later also to monasteries.) According to Ianin, Mstislav Vladimirovich, after he had moved from Novgorod to Kiev in 1117, set aside the border region between the Novgorod and Smolensk principalities (the Toropets-Rzhev area) with the purpose of creating a family domain for his descendants (first of all his son Vsevolod, then prince of Novgorod) who would be princes of Novgorod. Such a private source 112 It may seem strange now, but most new states in 19th century Europe still found it necessary to look for a monarch in some small German principality. 113 V.L. Ianin, Novgorodskaia feodal’naia votchina. Istoriko-genealogicheskoe issledovanie, Moskva, 1981. 114 Esp. V.L. Ianin, Novgorod i Litva, Moskva, 1997.

512

chapter 16

of income would enable them to operate more effectively in Novgorod. In the course of the 13th century this area fell under the control of Lithuania, but after protracted hostilities Novgorod succeeded in regaining control through a peace treaty in 1326 (mentioned in the Novgorod Chronicle) in exchange for an annual payment. This arrangement lasted until the end of Novgorod’s independence.115 The first known land grants of Novgorod territory concerned monasteries, from 1130 by the Kievan grand prince Mstislav Vladimirovich and his son Vsevolod (the acting prince in Novgorod) of the Buitse region to the Iur’ev monastery, and from 1134 by Iziaslav Mstislavich of the village of Vitoslavichi to the Panteleimon monastery.116 While the grant of Buitse was simple and straightforward, the grant of Vitoslavichi was made “with the blessing of bishop Nifont and after I had asked [permission from] Novgorod”. This is explained by the fact that Buitse, situated on the border with Smolensk territory, was part of the extensive private domains of Mstislav’s family, while Vitoslavichi, being part of common Novgorod territory, could only be granted after securing the agreement of the Novgorod veche. After the events of 1136, the rule that the prince could not grant Novgorod land without the co-operation of the Novgorod authorities (the posadnik) became a standard clause in the treaties concluded between the Novgorod prince and the city. It was even included in the 1471 treaty with the grand prince of Moscow, and it was almost always combined with the basic rule discussed above, concerning the duty to share jurisdiction with the posadnik.117 In the end most of the agricultural land ended up in the hands of the boyar class or the Church, the latter in the person of the archbishop himself (St. Sophia), other Novgorod churches, or monasteries, among which the Iur’ev monastery was the most prominent. As mentioned above, the archimandrite, appointed by the Novgorod veche, was entrusted with the general supervision of church property and served simultaneously as the abbot of the Iur’ev monastery. ‘Well-to-do people’ and merchants constituted a secondary category of landowners. 115 It was still referred to in the 1470–1471 treaty with Kazimir iv, king of Poland and grand prince of Lithuania (gvnp No.77). 116 gvnp Nos.81–82, 140–141. The corrected date of 1134 instead of 1146–1155 (as indicated by gvnp) is based on newly discovered copies of Iziaslav’s grant; cf. V.L. Ianin, “Kniazheskii domen v Novgorodskoi zemle”, V.L. Ianin (ed.), Feodalizm v Rossii. Sbornik statei i issledovanii, posviashchenny pamiati akademika L.V. Cherepnina, Moskva, 1987, 119–134, at 119–120. Ianin, Akty, 135, notes that the village Buitse (mentioned in 1232 in the Novgorod Chronicle) was actually the centre of the Buets region and that the grant concerned the entire region. 117 Typically: A bez posadnika ti, kniazhe, suda ne suditi, ni volosti rozdavati, ni gramot daiati.

Novgorod and Pskov

513

In the long-drawn-out struggle between the prince and the Novgorod boyars, control over land as the principal source of wealth and power remained the main object. Preventing the prince from using the reservoir of public land as an instrument for exercizing influence was supplemented by a number of o­ ther conditions aimed at curbing his powers. The prohibition on granting land independently (i.e. without the co-operation of the posadnik) was usually accompanied in the treaty texts by the addition of a prohibition on issuing other documents concerning land (independently). Almost all treaties contained the rule that the prince, his family, his boyars and servitors were forbidden to hold, purchase or receive as a gift villages in the land of Novgorod. This rule did not apply to the domains the prince already held privately, nor to land temporarily granted to him for the maintenance of his office In 1480, after Novgorod’s incorporation in the Muscovy state, the entire Novgorod boyar class was resettled elsewhere in the country and its estates were given as service grants (pomest’ia) to servants of the Moscow prince. Finally, as may be clear from the foregoing, it should be stressed that the prince, although hemmed in considerably on different sides, still remained an essential component of the Novgorod polity, as a military commander, a member of the executive and the judiciary, and a participant in treaty-making. Novgorod, until 1471, was simultaneously a republic, run mostly by an aristocratic elite, and a principality. Relations with Foreign Powers118 Novgorod’s eastern and southern neighbours were Russian principalities. The relations, as reflected by a number of treaties between Novgorod and the principality of Rostov-Suzdal’-Vladimir and the principalities which sprouted from the latter (Moscow and Tver’), have been dealt with above. They ultimately resulted in the absorption of Novgorod by Moscow. In the south, Novgorod bordered on Smolensk and Polotsk. Polotsk was already very much in decline by the middle of the 12th century and had become increasingly under the influence of Lithuania, to be fully absorbed by it a century later. Polotsk therefore did not play a significant role as an independent Novgorod neighbour. The princes of Smolensk held out much longer against their powerful Lithuanian neighbours and were forced to submit only by 1386. The relations between Smolensk and Novgorod seem to have been relatively free from strain. Occasionally, the Smolensk princes were able to exploit the opportunity offered by internal discord within the Kiev and Vladimir sub-dynasties to i­nterfere 118 More detail on this topic in my “The Treaties of Medieval Russia”, Feldbrugge, lmr, 181– 231, esp. 200–210.

514

chapter 16

more actively in the affairs of Novgorod. This happened especially during the turbulent second half of the 12th century.119 Several Smolensk princes (or rather their sons) managed to be invited to become princes of Novgorod. It never lasted very long and left no important traces of legal relevance. Of far greater significance were the relations with western powers, Novgorod’s immediate western neighbours and more distant western powers (Sweden, Norway, Poland). During the centuries of Novgorod’s independence the situation on its western borders was fluid, with the late arrival of Christianity in the area as the general backdrop. The main permanent power was Lithuania, the last European country to be baptized.120 The area which would later form Latvia and Estonia was populated by Baltic and Finnish tribes; its conversion was undertaken by German missionaries, Riga became the seat of a bishop in 1201 (archbishop in 1246). Other bishoprics in this area were Dorpat, the island of Oesel, and Kurland. The German-dominated towns of Riga, Reval (Russian name: Kolyvan’, Estonian name: Tallin) and Dorpat (Russian name: Iur’ev, Estonian name: Tartu) were members of the Hanseatic League and therefore enjoyed a special status.121 A factor of special importance was the presence of the German or Teutonic Order (see the section on the Baltic Coast in Chapter 10). Co-operation between the Order and the German towns of Riga, Reval and Dorpat was generally close. These towns and other smaller German towns in the area followed the law of Lübeck. Novgorod of course owed its existence to its favourable location for transit trade and its contacts with western traders went back into the prehistoric era. The first available text of a commercial treaty is of 1190–1191, between Novgorod and “all the German sons, the Goths and the entire Latin tongue”.122 It was obviously not the first of its kind as it confirmed “the old agreement” (staryi mir). The western partners, as is clear from the further text and from subsequent similar treaties, were Germans from North German Hanseatic towns, first of all Lübeck, and inhabitants of the ‘Gothic Coast’ (the town of Visby on the Swedish island of Gotland). The treaty covered the most essential privileges 119 Cf. L.V. Alekseev, Smolenskaia zemlia v ix–xiii vv., Moskva, 1980, 205–207. 120 Its ruling prince Mindaugas was baptized in 1251, but Lithania remained basically pagan until 1386 when grand prince Jagaila married the heiress of the Polish crown, princess Jadwiga. 121 Nine other smaller towns in the area were also associated with the Hanseatic League: Fellin, Wolmar, Pernau, Lemdal, Kokenhusen, Wenden, Goldingen, Windau and Roop. 122 gvnp No.28 (55–56). The 1190–1191 date is based on E.A. Rybina, “O dvukh drevneishikh torgovykh dogovorakh Novgoroda”, Novgorodskii istoricheskii sbornik, 3(13), Leningrad, 1989, 43–50.

Novgorod and Pskov

515

for merchants of both sides (free passage, freedom to trade, guarantees against arbitrary arrest, etc.) but dealt in more detail with various difficulties and fights that could arise between local people and Germans or Scandinavians. This part of the treaty is still strongly reminiscent of the oldest part of the rp, itself originally an attempt to cope with inter-ethnic violence. After the treaty of 1190–1191, a considerable number of treaties and communications with Hanseatic partners followed, right up to Novgorod’s loss of independence. A few are explicitly with the entire Hanseatic League, designated as the “73 cities”.123 More often a less precise formula is employed; Lübeck and a few other prominent towns are mentioned by name, and then the words “and all the German merchants” or a similar term are added.124 The prominence of Lübeck is also demonstrated by the fact that several treaties or other communications concern Lübeck alone. A regional sub-category is formed by the treaties and communications with the Baltic cities: Riga, Iur’ev (Dorpat) or Kolyvan’ (Reval), either individually or collectively.125 The nature of the treaties is varied. Among the more general are treaties providing a framework for trade between Novgorod and its partners,126 and also peace treaties or treaties establishing a truce.127 Other treaties are devoted to settling more specific questions. Even more varied is the nature of the communications (one-sided contacts between Novgorod and a foreign partner): requests, complaints, proposals about different matters. Along with the central issue of the freedom to trade and the accompanying freedom of passage, the question of dealing with disputes between merchants from different places was an ever urgent matter. The general principle was mutual recognition of the competent foreign court. This principle did not always lend itself to smooth application. One of the obstacles was the bewildering diversity of legal systems, notwithstanding the overall dominance of Lübeck law among the Hanseatic towns. gvnp offers quite a number of official communications between Novgorod and foreign urban powers in which the other side is urged to take appropriate measures to do justice to the cause of the ­complaining citizens.128 If all failed, individual merchants would ­occasionally 123 E.g. gvnp No.62 (1423), No.64 (1434), No.67 (1436), No.74 (1450), No.76 (1466: 72 cities). 124 E.g. gvnp No.41 (1342): the ‘Gothic Coast’, Lübeck, Riga, Dortmund, Münster, Dülmen, Minden, “and all the German merchants”. gvnp No.43 (1372) only mentions “Johannes Prutze from the Gothic Coast as envoy of the entire German merchant community”. 125 E.g. gvnp No.36 (Riga, 1303/1307), No.47 (Kolyvan’, 1396), No.48 (Iur’ev, 1405), No.49 (all three, 1409). 126 E.g. gvnp No.67 (1436). 127 E.g. gvnp No.46 (1392, peace treaty), No.64 (1434, two-years’ truce). 128 E.g. gvnp Nos.36, 44, 45, 53, 56, 57, 58, 66, 68, 69, 71, 75.

516

chapter 16

start their own private wars, a course considered justified under certain circumstances.129 While treaties were generally concluded on behalf of Novgorod by the posadnik, together with other officials (as explained earlier on in this chapter), the opposite side was usually represented by envoys. In a few cases the Hanseatic treaties only concerned a specific group of merchants, either from abroad or from the German community in Novgorod (see below).130 Offers to send envoys or conclude treaties were occasionally made by the archbishop.131 Most of the treaties or communications with Hanseatic or other German parties are accompanied by a translation into Middle Low German, the medium of communication within the Hanseatic League. This also applies to most of the smaller number of treaties and agreements with the German Order, starting with the military alliance treaty of 1323, directed against the Lithuanians.132 The usual partner was the Livonian Landmeister in Riga.133 Relations between Novgorod and the Order did not seem to depart from the general pattern of relationships entertained between Novgorod and its immediate neighbours: a cyclical process of commerce, disputes, hostilities, and peace again. They do not bear out the traditional image (an anti-western and anti-Catholic stereotype) of the Order in Russian historiography as a permanently aggressive and malicious threat. In one case the bishop of Iur’ev (as opposed to the city authorities of Iur’ev) appeared as the treaty partner.134 129 Cf. I.E. Kleinenberg, “«Chastnye voiny» otdel’nykh novgorodskikh kuptsov s Ganzoi i Livoniei v xv v.”, Novgorodskii istoricheskii sbornik 3(13), 68–74. 130 gvnp No.68 (1439, an agreement between Novgorod and the German merchant community in Novgorod). 131 E.g. gvnp No.54 (1417, treaty proposal by the Novgorod archbishop to the three Baltic cities, Riga, Iur’ev and Kolyvan’). 132 gvnp No.37. N.A. Kazakova has argued that this text (as well as gvnp No.40) is not actually a treaty, but a unilateral statement; “Novgorodsko-nemetskie dogovory ili livonskie akty?”, Novgorodskii istoricheskii sbornik 3(13), 63–67 (see also Ianin, Akty, 87–88). This can be conceded, but the statement relates exactly what was in the treaty (the same goes for No.40, see Ianin, Akty, 90–91). See also N.A. Kazakova, “Nachal’nyi tekst novgorodskonemetskikh dogovorov xii–xv vv.”, Vspomogatel’nye istoricheskie distsipliny vi, 161–175, Leningrad, 1974 (not available to me). 133 gvnp No.53 (1417), No.59 (1420, with the Landmeister and the bishop of Iur’ev), No.60 (1421), No.72 (1448, with the Landmeister and the bishop of Iur’ev), No.73 (1448, between Novgorod and Pskov on one side and the Landmeister on the other, also on behalf of the archbishop of Riga, the bishops of Iur’ev, Oesel, and Kurland, and the city of Iur’ev). 134 gvnp No.78 (1474).

Novgorod and Pskov

517

A far more realistic threat was posed by the young and vigorous Lithuanian state which, in the course of the 14th century succeeded in extending its power over most of the Russian principalities which had made up Kievan Russia (see Chapter 17, on Western Russia). In the end the very real possibility of Novgorod becoming part of the western-oriented, Roman-Catholic empire of the PolishLithuanian rulers tilted the balance in favour of orthodox Moscow. Apart from a few incidental documents, a full peace treaty of 1440/1447 with Kazimir, prince of Lithuania, and a treaty of 1470–1471 with the same prince (by that time also king of Poland) are offered by gvnp.135 The frequent prehistoric visitors, not always peaceful, from S­ candinavia, were followed in medieval times by repeated incursions from Sweden, r­ eported by the Novgorod Chronicles. According to the latter, an “everlasting peace” was concluded with the Swedish king Magnus v Eriksson in 1323, “on the old terms”. The latter formula indicates that there were earlier similar treaties. The ­Russian text of the treaty is available, but does not contain a reference to previous agreements.136 Three years later a similar and more extensive treaty was concluded with the same ruler, who by then also served as king of Norway. The text of the treaty referred to Norway only and its application was apparently limited to that country.137 There was an earlier treaty with Norway in 1251, of which a fragment has survived, which defined the borders of a region of common tribute collection in the land of the Saami.138 The circumstances surrounding the conclusion of this treaty have been described in the saga of king Hakon the son of Hakon.139 After Pskov had gained its independence from Novgorod in 1348, the two cities occasionally appeared as allies in their foreign relations documents.140 135 gvnp Nos.70 and 77. The last treaty was apparently never signed and represented a last desperate attempt to ward off annexation by Moscow. It fell into the hands of Ivan iii who then used it to accuse Novgorod of plotting against him. 136 gvnp No.38. Ianin, Akty, 118 and 120, discusses two other treaties between Novgorod and Sweden (1468 and 1473, not included in gvnp; published in O.S. Rydberg (ed.), Sveriges traktater med främmande magtér jemte andra dit hörande handlingar, Volume iii, Stockholm, 1895, 292–293 (N 512/1) and N 517. 137 gvnp No.39, accompanied by a Latin translation. See also I.P. Shaskol’skii, “Dogovory Novgoroda s Norvegiei”, Istoricheskie Zapiski, 1945, Vol.14, 45–61, and id., “Russko-Norvezhskii dogovor”, Skandinavskii Sbornik, Vol.15, Tallinn, 1976, 63–72. 138 Ianin, Akty, 82. 139 Cf. T.N. Dzhakson, I.G. Konovalova, A.V. Podosin (eds.), Drevniaia Rus’ v svete zarubezhnykh istochnikov, Tom V: Drevneskandinavskie istochniki, Moskva, 2009, 168–170. 140 gvnp No.73 (1448), a comprehensive treaty between Novgorod and Pskov and an alliance of Baltic parties, headed by the Livonian Landmeister (also mentioned above); gvnp

518

chapter 16

Foreign Trade and Foreign Merchants As pointed out at the beginning of this chapter, Novgorod’s position as the foreign trade centre of medieval Russia was one of the main factors determining its uniqueness. From the legal perspective, two aspects are to be noted in this respect: the legal regime of Novgorod’s foreign trade, reflected especially in the commercial treaties with western powers, and the special status granted to foreign merchants residing in Novgorod. Already in 1190–1191, in the earliest known text of a treaty with the Hanseatic League, free passage of merchants was put forward emphatically as the first and obviously most important point of agreement.141 In the following similar treaty, of 1262–1263, the verb “to go” was replaced by “to trade”.142 In later treaties the standard formula became that the foreign merchant and the merchant from Novgorod were granted “free passage to come and to go back, by sea or by land, according to the old oath and this oath, according to the old charters and this charter, without chicanery.”143 The co-operativeness of authorities in respect of foreign trade, expressed in the free passage/free trade principle, can be traced back to the 10th century treaties with Byzantium.144 Long-distance trade had of course represented a significant contribution to wealth in Russia from prehistoric times. No special No.78 (1474, truce with the bishop of Iur’ev, concluded when Novgorod had already effectively lost its independence). 141 gvnp No.28: “First: Novgorod’s envoy and every Novgorodian will be allowed to go in peace to the German land and to the Gothic Coast; equally the Germans and the Goths will go to Novgorod without any trouble, not hindered by anyone.” 142 gvnp No.29 allowed the Novgorodians to trade without hindrance on the Gothic Coast; they apparently did not venture as far as the North German cities; the Germans, Goths and “the entire Latin tongue” were allowed to trade in Novgorod. Ianin, Akty, 82–84, dates this treaty in 1259–1263. 143 … chistyi put’ emy priezzhat’ i ot”ezzhat’ vodoi i goroi po staromu krestotselovaniiu i po semu krestotselovaniiu, po starym gramotam i po sei gramote, bez khitrosti, e.g. gvnp Nos.62 (1423), 67 (1436), 70 (1440–1447). 144 This point has been noted by several authors, in particular with regard to the duties of local authorities and the populace to be co-operative in respect of foreign merchants, especially in case of shipwreck (and the absence of the customary medieval ius naufragii, Germ. Strandrecht). See V.S. Pokrovskii, “Dogovor Velikogo Novgoroda s Gotlandom i nemetskimi gorodami 1189–1195 gg. kak pamiatnik mezhdunarodnogo prava”, Pravovedenie, 1959, No.1, 97–105; I.E. Kleinenberg, “K voprosu o sushchestvovanii v Novgorode Velikom x–xii vv. beregovogo prava”, Pravovedenie, 1960, No.2, 158–161; P.V. Savas’kov, “Normy mezhdunarodnogo prava v dogovorakh drevnerusskogo gosudarstva, zakliuchennykh s Vizantiei”, Vestnik Moskovskogo Universiteta, seriia pravo, No.4, 77–83; R.L. Khachaturov in his comments in PRoP I, 388–389.

Novgorod and Pskov

519

provisions were needed during the apogee of the Kievan empire when there was a central government in Kiev. With the rise of independent principalities it became an issue, because the imposition of various taxes became a useful source of revenue for regional rulers. The Novgorod-Tver’ treaties addressed this issue by limiting the amounts the prince was allowed to charge Novgorod merchants who traded outside Novgorod in the lands of the prince. After the establishment of the Mongol-Tatar overlordship, the khans imposed free passage for merchants on the territory controlled by them. This was done by khan Mengu-Timur in 1270; the words have been preserved in a charter issued by the Novgorod prince Iaroslav Iaroslavich to the city of Riga.145 The Novgorod-Tver’ treaties, beginning with the one from 1270, retained the limited tax the prince could impose within his own principality (outside Novgorod), but allowed Novgorod merchants to trade throughout the principality of Suzdal’-Rostov-Vladimir, “without limit, according to the tsar’s charter” (bez rubezha, po tsesareve gramote; at this time only the supreme rulers of Byzantium, the Holy Roman Empire, and Mongolia enjoyed the title of Caesar, tsar). Later treaties elaborated the free trade/free passage principle by adding complementary clauses. Both sides were usually guaranteed access to the local courts. Extra-judicial reprisals, such as preventing merchants from returning to their own towns, were forbidden. Although the last treaty with the Hanseatic League dates from 1450, the interest of the North German towns in the Novgorod trade had waned considerably at that time. Most of the later Hanseatic treaties are with the (German) towns of Riga, Iur’ev and Kolyvan’, collectively or individually. A quite remarkable feature of Novgorod as a centre of international trade was the presence within the city itself of semi-permanent colonies of foreign merchants, enjoying to a considerable extent an extraterritorial status. The oldest of these colonies was the Gothic Court for the merchants from Visby, centred around its own church of St. Olav and going back to the beginning of the 12th century.146 It was overshadowed during the following centuries by the German Court of St. Peter, founded around the end of the 12th ­century. 145 gvnp No.30, “The word of Mengu Timur to prince Iaroslav: «Give [free] passage to the German merchant in your land». From prince Iaroslav to the people of Riga, the great and the small, the merchants, and everybody: your road in my land is clear; whoever comes to me as a warrior, I shall deal with him myself; but for the merchant the road is clear in my land.” Cf. A.P. Grigor’ev, Sbornik khanskikh iarlykov russkim mitropolitam, Sankt-Peterburg, 2004, 19–21. 146 Cf. E.A. Mel’nikova, K predystorii Gotskogo dvora v Novgorode”, E.A. Mel’nikova, Drevniaia Rus’ i Skandinaviia. Izbrannye trudy, Moskva, 2011, 371–384 and ibidem, “O iuridicheskom statuse Gotskogo dvora v Novgorode v seredine xiii v.”, 385–395.

520

chapter 16

In the 15th century the Gothic Court had been taken over by the German merchants.147 The position of and the goings-on at the German Court were a prominent topic in the various Hanseatic treaties. The (draft) treaty of 1269 and the treaty of 1371 contained detailed rules about the rights of the German merchants in Novgorod and of the two foreign courts.148 But internal Russian treaties also recognized the importance of the German Court.149 The internal order of the Court of St. Peter was determined by a special law, called the Skra, originally established by the mother city of Lübeck and reissued six times in often much amended form (see the section on the Skra of Novgorod in Chapter 10). The later versions of the Skra were largely a product of the locally present merchant community and represented increasingly a codification of customs which had arisen locally.150 Some sections also had their origin in the treaties concluded between Novgorod and the Hanseatic League.151 The need to have such a law and its basic features were determined by the unusual circumstances in which the foreign merchants found themselves. Novgorod could be reached over land (carts or sleighs) or by ship. For a part of the year ice would prevent the water route from being used; for another part of the year the roads would be impassable. The result was that all voyages to and from Novgorod occurred in semi-annual waves and that for certain periods the German compound was intermittently uninhabited. The annexation of Novgorod by Moscow spelled the end of the Court of St. Peter. It was closed by Ivan iii in 1494.152 Later on, other foreign ­settlements 147 The treaty of 1392 with the Hanseatic League (gvnp No.46) still mentioned the separate participation of the Gothic Coast. The treaty of 1439 with the German merchant community in Novgorod (gvnp No.68) spoke of “both German courts”. 148 gvnp Nos.31 and 42. 149 The Novgorod-Tver’ treaties allowed the prince’s people to trade in the German Court, but forbad him to interfere with its operation. 150 The basic edition is W. Schlüter, Die Nowgoroder Schra in sieben Fassungen vom xiii bis xvii Jahrhundert, Dorpat, 1911. See also my “The Skra of Novgorod”, Feldbrugge, lmr, 261– 291. E.A. Rybina’s monograph on the foreign settlements in medieval Novgorod is devoted mainly to the history of the German and Gothic courts and contains a Russian translation of the 4th version of the Skra: Inozemnye dvory v Novgorode xii–xvii vv., Moskva, 1986. Further: M. Szeftel. “La condition légale des étrangers dans la Russie novgorodo-kiévienne”, Receuil Jean Bodin 10, 375–430, esp. 387–412 (also included in M. Szeftel, Russian Institutions and Culture up to Peter the Great, London, 1975). 151 In particular art. 97 of Skra iv which was a verbatim inclusion of the 1342 treaty (gvnp No.41). 152 Cf. N.A. Kazakova, “Eshche raz o zakrytii ganzeiskogo dvora v Novgorode v 1494 g.”, Novgorodskii istoricheskii sbornik 2 (12), Leningrad, 1984, 177–187.

Novgorod and Pskov

521

were in operation in Novgorod, but not much is known about them and their importance was in no way comparable to that of the German Court in Novgorod’s heyday.153 ii Pskov Pskov is one of the oldest Russian towns, located near the border with the present republic of Lithuania. The Primary Chronicle relates (under the year 903) that the Kievan prince Igor brought his wife Olga from Pskov. This already suggests that Pskov enjoyed a sufficiently independent position at this early moment. The suggestion is confirmed by the appointment of one of St. Vladimir’s numerous younger sons, Sudislav, as prince of Pskov around 1010–1015, while the more senior sons had been settled in more prominent principalities, first of all Novgorod. After St. Vladimir had been succeeded as grand prince of Kiev by his son Iaroslav the Wise, Sudislav fell out with his older brother and the latter imprisoned him in Pskov in 1036. Only after Iaroslav’s death (1054) was Sudislav set free by Iaroslav’s sons in 1059 and forced to become a monk. No successor to Sudislav was appointed, as the grand princes obviously intended to maintain full control of the North-West. Novgorod itself was usually assigned to the grand prince’s eldest son and successor. In this way Pskov became part of the territory of Novgorod, at that time still very much in the hands of the Kievan prince.154 Within the Novgorod republic it enjoyed the status of a borough (prigorod), albeit one with an exceptional position; alone among Novgorod boroughs, Pskov was entitled to have boroughs of its own.155 As Valerov pointed out, the term prigorod is actually inappropriate, because this term refers to a town founded by the mother-city and, moreover, the chronicles do not use it with regard to Pskov.156 According to Valerov, Pskov should rather be viewed as a member of an alliance of towns which also included Ladoga and which was headed by Novgorod. The common interest of the alliance was primarily to keep at 153 See Rybina’s work on foreign settlements in Novgorod, quoted above, 124–140. 154 Cf. A.V. Valerov, Novgorod i Pskov. Ocherki politicheskoi istorii Severo-Zapadnoi Rusi xi–xiv vekov, Sankt-Peterburg, 2004, 90–95. Most of the narrative concerning Sudislav is based on the Fourth Novgorod Chronicle. 155 On Pskov generally: A. Nikitskii, Ocherk vnutrennoi istorii Pskova, Sankt-Peterburg, 1873, and V.A. Arakcheev, Srednevekovyi Pskov: Vlast’, obshchestvo, povsednevnyi zhizn’ v xv–xvii vekakh, Pskov, 2004. A convenient summary of Pskov history in ch. 3 of I.D. Martysevich, Pskovskaia sudnaia gramota, Moskva, 1951, 37–48. See also Iu.G. Alekseev, Pskovskaia Sudnaia gramota i ee vremia, Leningrad, 1980, and id., Pskovskaia Sudnaia gramota. Tekst, kommentarii, issledovanie, Pskov, 1997 (not available to me). 156 Valerov, op. cit., 99.

522

chapter 16

bay the restless pagan neighbours, Finnish and Baltic tribes whose frequent inroads into Russian-held territory are reported in the Novgorod Chronicle (1042, 1069, 1113, 1116, 1123, 1130, 1131, 1133). In the constitutional revolution of 1136 Novgorod successfully enforced its claim to be entitled to invite and dismiss its own prince and, as related above (in the survey of Novgorod’s history), the Pskovians grasped the opportunity by receiving Vsevolod Mstislavich, the prince who had been rejected and arrested by the Novgorodians. When Novgorod, supported by several allies, attempted in the following year to force Pskov to submit, the people of Pskov stood firm and repelled the attack. Novgorod resigned itself to the new situation, Vsevolod Mstislavich died, and his brother Sviatopolk was accepted as prince of Pskov. The importance of Pskov as a trading centre grew as the commercial position of the entire North-West of Russia rose at the expense of the South. Becoming gradually more independent from Novgorod, Pskov finally reached full statehood through the treaty of Bolotov in 1348, in which Novgorod recognized Pskov as a “younger brother”.157 The sources for the history of Pskov are not as abundant as those for Novgorod. The various versions of the Novgorod Chronicle offer a reasonable amount of information, mostly on the external relations of Pskov. Chronicle writing did also take place in Pskov itself, the Novgorod Chronicle constituting one of the sources for the Pskov Chronicles.158 gvnp has 18 Pskov documents, 15 of which are from the 15th century (against more than 300 from Novgorod, from the 12th to the 15th centuries). For the legal historian the relative paucity of Pskov documents is compensated for by the availability of the Pskov Court Charter, the only comprehensive piece of legislation between the rp and the 1497 Code of Ivan iii. The Court Charter of Pskov as a legal source is discussed in Chapter 8; substantive provisions of the Pskov Charter are treated in the relevant chapters and sections. The government of Pskov was in the hands of three powers, the assembly or veche, the Gospóda (a council of leading citizens and boyars), and the prince. The archbishop of Novgorod was represented by his own lieutenant, who kept a number of judicial functions. The Gospoda of Pskov was an actually existing body, mentioned several times in the Pskov Charter (arts. 10, 18, 24–26, 29, 73, 106, 108 and 111), unlike the ‘Council of Lords’ of Novgorod, which existed only in the imagination of scholars. The mayor or posadnik of Pskov is well documented and in later years, as in Novgorod, former posadniki retained the title, while the incumbent mayor was 157 Nikitskii, op. cit., 105. 158 Cf. Valerov, op. cit., ch. 1 (13–88).

Novgorod and Pskov

523

known as the stepennyi posadnik. The tysiatskii appears to have been unknown in Pskov; some of his duties were apparently carried out by the sotskie (see arts. 12, 20 and 78 of the Pskov Court Charter). There are some indications that the Pskov boyars did not constitute a closed social class, as in Novgorod, but consisted of leading citizens of different social origin.159 As to the prince, what has been noted about the Novgorod prince also applied to Pskov. Although these cities can in some way be regarded as republics, their head of state was a prince. In other medieval Russian principalities state power or ‘sovereignty’ belonged to the prince, who was invariably a member of one of the Rurikid sub-dynasties. In Novgorod and Pskov this power was shared by the prince and the local authorities – veche, posadnik and other prominent citizens. A particular prince could be dismissed, but a prince could not be dispensed with in the view of the contemporaries. The best documented duties of the Pskov prince were his commanding of the armed forces and his judicial office. The former is illustrated mainly by the accounts of chronicles about princes leading the Pskov troops into battle; the prince as judge is one of the major themes of the Pskov Court Charter. According to this text, the Pskov judiciary consisted of three distinct branches: the prince’s court, the court of the posadnik, and the court of the (Novgorod) archbishop. While general jurisdiction in Novgorod belonged to the prince and the posadnik together, in Pskov the court of the prince had been given jurisdiction in the more serious civil and criminal cases.160 The court of the archbishop (in fact his namestnik) dealt with ‘church people’ (art. 100) and with certain other matters as well, while the general court of the posadnik possessed jurisdiction in the remainder of cases. The prince was entitled to receive fixed fees from most court cases. While retaining for a long time the right to dismiss its prince, Pskov’s independence with regard to the appointing authority (in principle the grand prince of Vladimir-Suzdal’) was not as great as that of Novgorod. The Pskov prince himself was generally more dependent on the grand prince and served as his lieutenant (namestnik), while in Novgorod the prince was normally a prominent member of the Rurikid house, often represented by his own 159 Arakcheev, op. cit., 53–58. 160 Cf. Iu.G. Alekseev, Pskovskaia Sudnaia gramota i ee vremia, Leningrad, 1980, 12–13. A very early example of a judgment charter by the prince and the posadnik jointly is gvnp No.348, concerning a border dispute between two monks and a group of peasants. The prince involved has been identified by Ianin as Aleksandr Nevskii and this fixes the date at 1240–1242; cf. A.D. Gorskii, Bor’ba krest’ian za zemliu na Rusi v xv – nachale xvi veka, Moskva, 1974, 36.

524

chapter 16

n­ amestnik. Pskov princes, especially after 1399 (see below), were mostly of lower rank and often recruited from the ranks of the non-ruling (service) princes, either from the Rurikid or from the Gediminid house, who had been accepted into the service of the grand prince of Vladimir. Although officially a city-state, Pskov, like Novgorod itself, extended over a vast territory. It covered the area between the lands of Novgorod and the lands inhabited by various Baltic peoples, all the way up to the Gulf of Finland. By virtue of its geographical position, Pskov was also in close and frequent contact with its western neighbours, Lithuania and the knights of the German Order. Additionally, there were intensive commercial contacts with more distant western and northern lands. The Hanseatic League for many years maintained an office in Pskov (German: Pleskau). The absence of a relatively empty hinterland prevented Pskov from indulging in expansionist policies, unlike Novgorod which was able to establish a vast semi-colonial empire in the Russian North. Notwithstanding the similarity in the legal and economic make-up of Novgorod and Pskov, the latter did not know large-scale landowning to the extent current in Novgorod. This lent a specific colouring to socio-economic and legal relations in medieval Pskov, as is evidenced by many provisions of the Court Charter of Pskov.161 For a long time Pskov had guarded its independence by playing its most powerful neighbours, the rulers of Moscow and Lithuania, against each other. When this policy finally became unworkable, it accepted the protection of the prince of Moscow in 1399. In a protracted rearguard action against the interference of the latter, Pskov struggled to hold on to as much as it could of its position and rights during the 15th century. The year 1462 was critical in this respect. Grand prince Vasilii ii had appointed prince Vladimir Andreevich162 as his lieutenant that year, without asking for the agreement of Pskov. When the grand prince died the same year, the citizens of Pskov acted quickly and dismissed the lieutenant. The new grand prince, Ivan iii, reached a compromise with Pskov: he promised not to appoint a lieutenant without the agreement of Pskov and Pskov promised not to dismiss a lieutenant without the permission of the grand prince.163 The next crisis arose in 1467, when a new lieutenant, prince Fedor Iur’evich Shuiskii, took up his office in Pskov. Until then, the local prince (at that time 161 Cf. Kliuchevskii, Kurs ii, 94–95. 162 This Vladimir Andreevich was the last grand prince of Rostov Velikii; his principality was formally absorbed in the Moscow state in 1474, but his appointment to Pskov shows that Rostov independence had already been lost in 1462. 163 Cf. Nikitskii, 240, 246–250; Martysevich, op. cit., 42–44; Cherepnin, Arkhivy I, 412–414.

Novgorod and Pskov

525

the grand prince’s lieutenant) had enjoyed the right to appoint his own representatives in only seven of the twelve Pskov boroughs (the boroughs were the principal towns in the Pskov territory). Now Ivan demanded for his lieutenant the right to appoint representatives in all twelve boroughs. Pskov was forced to give in. Several scholars believe that the enactment of the Court Charter of Pskov should be regarded as an attempt on the part of Pskov to define at that moment, as precisely as possible, the distribution of judicial authority between Pskov and the grand prince.164 See also the section on the Court Charter of Pskov in Chapter 8. iii

A Note on Viatka-Khlynov

The present city of Kirov, the capital of the Kirov oblast’, was known as Viatka before the Soviet era, a name derived from the neighbouring Viatka River and conferred upon the town in 1780. Before that it was called Khlynov. Karamzin mentions its founding in 1174 by colonists from Novgorod territory; the Viatka region, in the north-east of European Russia, was sparsely populated in medieval times (and still is), mostly by Finnish tribes. The settlers founded an independent republic and Novgorod, despite several attempts, was never able to establish its authority in this faraway corner of the Russian North. Khlynov remained independent until 1452.165 In 1469 it unsuccessfully tried to stay neutral in Ivan iii’s war with the khan of the Tatars in Kazan.166 The only other author (apart from Karamzin) who paid more than passing attention to Khlynov was Kostomarov, who observed: “There is nothing in Russian history more obscure than the fortunes of Viatka and its region.”167 According to another version, a fortified town called Viatsk was founded by a military expeditionary force from Novgorod in 1374. The settlers from Novgorod mixed with the not very numerous local population, Slavs from the Viatichi tribe and various Finnish elements. Viatsk constituted a de facto 164 M.F. Vladimirskii-Budanov, Khrestomatiia po istorii russkago prava I, 48; Nikitskii, 150; L.V. Cherepnin, A.I. Iakovlev, “Pskovskaia sudnaia gramota”, Istoricheskie Zapiski, Vol.6 (1940), 235–299. Later on, Cherepnin opted for the 1492 date, see Arkhivy i, 411–416. 165 Karamzin, Book i, Part 3, col.22–24. 166 Sergeevich, Drevnosti ii, 39–40, who refers to the involvement of the Viatka veche; his communications are based on the Voskresenskaia Letopis’ (psrl vii and viii). 167 N.I. Kostomarov, Severno-russkie narodopravstva, Sankt-Peterburg, 1862 (2 vols.), I, ­241–251, I have used the third edition (Sankt-Peterburg, 1860), where the chapter on Viatka is to be found at 233–243. There is also a modern reprint, Moskva, 2008. Kostomarov’s sources are a number of entries in several medieval chronicles.

526

chapter 16

i­ndependent republic, governed by a veche and elected elders, following the model of Novgorod.168 Several other small towns in the region were subordinate to Viatsk along the lines of a Novgorod prigorod. Princely power was weak and the princes were elected from Rurikid stock or from local Finnish tribal chieftains. The town remained independent until 1391, when it was destroyed by the Tatars. At that time the town was controlled by the princes of Suzdal’-Nizhegorodsk. In 1401 it came under the rule of the princes of Galich. The building of a citadel (kreml’) in 1457 occasioned the renaming of the town as Khlynov. In 1489 it was absorbed into the Muscovy state.169 What is undisputed is that Viatka-Khlynov was for centuries an independent entity inside the medieval Russian conglomerate. As such it is mentioned occasionally in the same breath as Novgorod and Pskov.170 168 Kostomarov, 237. 169 Cf. Sergeevich, Drevnosti ii, 49. See also A.P. Gorkin (chief ed.), Rossiiskaia istoriia, Moskva, 2006, s.v. “Viatskaia Zemlia”, and Bol’shaia Entsiklopediia Rossii, Moskva, 2008, 297 (­article on Kirov oblast’). 170 E.g. Kliuchevskii, Kurs ii, Lecture 23 (pp. 54–55); G. Vernadskii, Istoriia Rossii. Kievskaia Rus’, Tver’/Moskva, 2004, 220–221.

chapter 17

Western Russia

Historical Introduction

The ancient territory of the Eastern Slavs, essentially the river basins (­Western Dvina, Lovat’, Volkhov, and the Dnepr system) which connected, through portages, the Baltic and the Black Seas, had been enlarged by the early Kievan grand princes in several directions and had come to encompass the regions of Galicia and Volynia in the West and the tribal land of the Viatichi in the East. Additionally, the Kievan rulers were intermittently in control of the plains between the Prut and the Dnepr. Subsequently, the Kievan practice of assigning apanage principalities to leading male members of the Rurikid family resulted in considerable fragmentation of the Kievan realm. A strong Kievan grand prince, such as Vladimir Monomakh, would still manage to maintain a significant measure of control, but after the complete victory of the Mongol invaders in the period 1237–1242, it had become “every man for himself” among the Rurikid princes and it would be a century before the princes of Moscow would start their long campaign of eliminating their rivals. The greatest political-territorial transformations occurred in the West and were connected with the rise of Lithuania. The original tribal territory of the Lithuanians, roughly coinciding with present-day Lithuania, had begun to be enlarged under their prince Mindaugas († 1263)1 by the conquest of a few small Russian principalities, known as Black Russia (Chernaia Rus’), and bordering Lithuania in the south. In the same period the important old Russian principality of Polotsk, on the eastern border of Lithuania, had become increasingly dependent on Lithuania until it was fully incorporated in 1307 (it was briefly recaptured by Russia from 1563–1579, but re-incorporated only in 1772 at the first partition of Poland). The next step was the acquisition of the Russian principalities of Turov and Pinsk (south of Black Russia) during the reign of Gediminas (Russ. Gedimin), the founder of the Lithuanian dynasty (1316–1341). At that time the southern neighbour of Lithuania was the kingdom of ­Galicia-Volynia. The old Russian principalities of Galicia and Volynia had 1 Mindaugas was baptized in 1251 and crowned king of Lithuania in 1253, but Lithuania and its rulers remained pagan for more than century until the conversion of grand prince Jagaila in 1386. Starting with the latter, the grand princes of Lithuania were usually kings of Poland too (this became a strict rule in 1501 only) and did not claim a separate royal title for Lithuania.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_018

528

chapter 17

been united by prince Roman, a son of the Kievan grand prince Mstislav ii, in 1199. He was killed in battle in 1205 and after many years and much turmoil ultimately succeeded by his son Daniil in 1239. The latter emerged as one of the most powerful and successful Russian princes during the troublesome years of the Mongol invasions; he was also intermittently in control of the Kiev region. His international ambitions were highlighted when he accepted kingship from pope Innocent iv; he was crowned king of Galicia-Volynia in 1253. His son Lev and then his grandson Iurii succeeded him,2 but the latter’s sons Andrei and Lev fell in battle in 1324, and with them the only royal branch of the Rurikids became extinct. Neighbouring rulers fought long over the spoils, and in the end one of the sons of Gediminas, Liubart, acquired Volynia and the Kiev region for Lithuania, while the Polish king Kazimir iii annexed ­Galicia (1349). After the death of Gediminas of Lithuania in 1341 he was succeeded as grand prince, following the usual violent upheavals in the ruling family, by his son Algirdas (Olgerd, 1345–1377) who continued with even more fervour3 the expansionist policies of his ancestors. During his reign the principalities of Kiev, Chernigov, Pereiaslavl’, Novgorod-Seversk and part of Smolensk were added to the Lithuanian lands. In 1386 the son of Algirdas, grand prince Jagaila (Polish: Jagiełło), married the heiress of the Polish Piast dynasty, Queen Jadwiga, and was baptized. From then on Poland and Lithuania formed a personal union, two separate states with separate legal systems under a single ruler (also known as the Union of Kreva). In 1569 (the Union of Lublin), three years before the Jagiellonian ­dynasty died out with the death of Zygmunt ii August, the personal union was converted into a full union, where the two countries constituted a single state. This did not mean a merger of the legal systems; they stayed separate to a great extent. Foreign policy and the monetary system were the main common subjects.4 Part of the background of Jagaila’s Polish marriage was the feud with his cousin Vytautas (Russ. Vitovt), son of Algirdas’ brother Kestutis, who in fact held the position of ruler of Lithuania. Under Vytautas († 1430) the further 2 I am not sure whether Lev ever used the royal title. In the few charters cited below he presented himself as “prince Lev, son of king Daniel”. His son Iurii did use the title; cf. N. de Baumgarten, Généalogies et mariages occidentaux des Rurikides russes. Orientalia Christiana, Vol. ix.1, Roma, 1927, 50. 3 Karamzin, grudgingly admiring Olgerd and comparing him favourably with weak Russian contemporaries, often calls him khitryi (cunning), but also khishchnyi (rapacious) Olgerd, and iazychnik Olgerd (Olgerd the pagan). 4 Cf. I.N. Kuznetsov, V.A. Shelkoplias, Istoriia gosudarstva i prava Belarusi, Minsk, 2004, 27.

529

Western Russia

­expansion of Lithuania was energetically pursued. By the end of the 14th century the area between the mouths of the Dnepr and the Dnestr was controlled by Lithuania. A few years later (1404) the entire principality of Smolensk also ended up in Lithuanian hands. Of the twelve old principalities which traditionally (and not quite correctly) are considered to have made up the Kievan realm at its apogee (the times of St. Vladimir and his son Iaroslav the Wise) only Novgorod the Great, MuromRiazan’, and Vladimir-Suzdal’-Rostov remained with Russian (Rurikid) princes, ruling under Tatar-Mongol suzerainty. The Moscow princes were the descendants of a younger branch of the grand princes of Vladimir-Suzdal’. The town of Smolensk changed hands several times, it was taken by Vasilii iii of Moscow in 1514, recaptured by the Poles in 1618, and then by the Russians in 1654. With the growth of Muscovy’s power bits of the old Kievan territory (such as the Chernigov region, which was taken by Ivan iii in 1503) were repossessed by the Russian rulers; but it was only at the first Polish partition of 1772 that Polotsk and part of Galicia became part of the Russian empire. At the conclusion of the Polish-Lithuanian Union of 1569, the provinces of Kiev, Chernigov and Bratslav (Podolia) were assigned to Poland as Crown lands. Developments in this area in the following period were very much determined by the emergence of a new population, the Cossacks. Runaway serfs from Russian and Polish lands and other itinerants had started to move to the southern steppes (the “wild lands”, dikoe pole) in the 15th century where they founded semi-military agricultural settlements. The major communities in South Russia and Ukraine were the Cossacks of the Don and of Zaporozh’e (“beyond the rapids” downstream the Dnepr). The Zaporozh’e Cossacks were nominally under the Polish Crown, but had a great deal of practical autonomy under their own hetmans. In 1648 they rose up under their hetman Bohdan Khmel’nitskii against the Polish king. The next twenty years offered a complicated theatre of wars, peace treaties, shifting allegiances and new rebellions, in which not only Poland but also Muscovy was heavily involved. In the end, by the treaty of Andrusovo in 1667 the Dnepr was recognized as the border between Poland and Muscovy; Kiev itself was also ceded to Russia. The second partition of Poland in 1793 brought the entire Ukrainian territory of Poland-Lithuania under Russian control, while most of Galicia-Volynia was allotted to Austria.

...

These developments have been sketched in some detail because they give rise to several considerations affecting the way one may look at the law of medieval Russia.

530

chapter 17

The greater part of the territory of Kievan Russia, as has been pointed out above, became part of a state ruled by Lithuanian-Polish princes through an increasingly polonized aristocracy, a state where the majority of the population was ethnically East-Slavic and where the linguistic distinctions between Russians, Ukrainians and Belorussians were beginning to emerge. One could therefore argue that the study of medieval Russian law should primarily address itself to the law of this state, and not to an initially less important area located at the fringes of the then civilized world, the handful of principalities from which the Muscovy tsardom emerged. After the break-up of the ussr in 1991 Ukraine and Belarus came into being as independent and sovereign states. (This was in fact not the result of democratic decision-making by which lost independence was recovered, but of a coup-d’état, intended, among other things, precisely to prevent such decision-making. The coup leaders based the legitimacy of their acts on the totally spurious and hypocritical pronouncement of the Soviet Constitution that the ethnic Soviet republics constituted sovereign states.) But whatever the background, the outcome was that, after having been part of Russia (or a Russo-centric state like the ussr) for many centuries, Ukraine and Belarus were something they had never been before: states of their own, not under the control of an outsider government.5 It was only to be expected that in a hasty 5 Some modern Ukrainian historians are inclined to treat Cossack rule in the 17th and 18th century as a form of statehood; e.g. O. Hurzhii, Ukrains’ka kozats’ka derzhava v druhii polovyni xvii-xviii st.: kordoni, naseleniia, pravo, Kyiv, 1996. This is a matter of definition. Powerful hetmans such as Khmel’nitskii or Mazepa did indeed negotiate independently with foreign powers; from the point of view of legal history, however, Cossack rule cannot be considered as constituting a regular state. It lacked permanence and consistency, and did not offer a separate legal regime. Polish-Lithuanian law, and in other territories Russian law, continued to be in force. The Belorussian search for historical roots of political identity has led some historians to the view that modern Belarus can be considered the successor of the Lithuanian grand principality. One could point in this respect to the fact that modern Belarus covers about the same territory as the geographical centre of the grand principality and that a Slavic language which can be regarded as Belorussian or its forerunner was for centuries the state language of the Lithuanian realm. There are weighty politico-historical objections to be made against this view, but this is not the place for such discussions. As to the linguistic aspect, which also plays a role nowadays in the perception of some historians, it should be left to the linguists to decide whether certain medieval documents were written in Old-Russian, Old-Ukrainian or Old-Belorussian or even Old-Polish. For reasons of convenience I shall use the term “OldRussian”, without claiming any authority as a philologist. (The same point is made by M.E. Bychkova, Russkoe gosudarstvo i velikoe kniazhestvo litovskoe s kontsa xv v. do 1569 g., Moskva, 1996, 27 and 51.)

Western Russia

531

search for a national identity the past was appropriated and many dreamed of their own country as the true heir to the glory of Kievan Russia. In Ukraine, this position had already been developed before 1917 by the historian M.N. Hrushevs’kyi (Grushevskii in Russian), whose thesis was that Galicia-Volynia was the principal successor state of Kievan Russia.6 Hrushevs’kyi (1866–1934) then played a central role in the Ukrainian Rada after the October Revolution and in the transition to the sovietization of Ukraine. His historical views were totally unpalatable to the Soviets, but after the break-up of the ussr in 1991 the new Ukrainian regime raised Hrushevs’kyi to the status of a national hero. Without entering into this debate, one should first of all recognize the fact that a large part of what would later be regarded as Russian territory, together with the predominantly East-Slavic population of that territory, found itself for many centuries outside the entity which then and now was considered to be Russia. And then one may also recognize that this Russia represented and still represents an unbroken political and juridical continuity over a period of more than thousand years, something that cannot be said about the other territories. This is an important consideration in the study of the legal history of Russia.

The Law of the Lithuanian Principality and the Polish-Lithuanian Commonwealth

On the question of applicable law, two points emerge from the foregoing survey of the historical developments: there was a multitude of territories populated by Eastern Slavs and included in the territory of the Lithuanian state, and this inclusion did not happen at a single moment. We must (1) distinguish therefore between the individual territories and (2) look at the time of their inclusion. All of them had been part of the Kievan realm and had shared the same legal system, although some differentiation had already taken place as this realm was slowly dissolving. At the earliest stage, when the pagan and still mainly tribal Lithuanians had acquired control over the area of Black Russia in the 13th century, Russian customary law and the few elements of written Russian law existing at that time would obviously continue to be in force among the local population. As the Lithuanian state took shape and equipped itself with the necessary attributes of statehood, a process which was of course accelerated once the union with the more advanced kingdom of Poland had been 6 M.N. Hrushevs’kyi (Grushevskii), Istoriia Ukrainy-Rusi, 10 vols., published over a long period (1898–1937), covering the history of Ukraine (as the continuation of Kievan Rus’) until the year 1658.

532

chapter 17

concluded, the law created by the legislator and applied by the courts would become the dominant factor, although Russian law remained significant. The relative weight of Lithuanian and Polish law in the formerly Russian principalities was not the same everywhere and was subject to change during the centuries of Polish-Lithuanian domination. As indicated above, Galicia had been part of Poland since its incorporation in 1349, while most of the other principalities had been acquired by Lithuania before the union of 1386. Only Smolensk was added to the Polish-Lithuanian territory in 1404. Polish law was therefore hardly involved initially, but in the course of time its impact on the territories of the old Russian principalities increased through the inevitable influence Polish law had on Lithuanian law and on account of Polish preponderance in the administration of these territories. Pre-Lithuanian Russian Law in Western Russia A small number of legal documents from Western Russia in the pre-Lithuanian period survive. They fit the general pattern of Russian legal documents from this era. One of the earliest (1134) is a short charter from a subordinate prince in Galicia, Ivan Berladnik, granting certain fiscal privileges to Bulgarian merchants in his main market town, Malyi Galich.7 From the same province, but of a much later date, are the testament of prince Vladimir Vasil’kovich of Volynia († 1288) and a short charter from his cousin and successor as prince of Volynia, Mstislav Danilovich, whose elder brother Lev was the prince of Galicia. In his will the childless prince Vladimir left most of his possessions to his wife. The charter of Mstislav defined certain local taxes for the region of Brest.8 Lev of Galicia is represented by four short charters in which different properties, most or all of them in Central Ukraine, are donated to various religious 7 prp ii, 26 and 30–31. Ivan Rostislavich’s father (Rostislav Vasil’kovich) was a cousin of the ruling prince of Galicia at that time, VladimirkoVolodarich (according to V.V. Boguslavskii, Riurikovichi i Rus’. Ot Riurika do Smutnogo vremeni, Moskva, 2009, 165–166). De Baumgarten regards Ivan Berladnik as the son of Vladimirko’s brother Rostislav (N. de Baumgarten, Généalogies et mariages occidentaux des rurikides russes, Roma, 1927, 15). Berlad’ is in present-day Romanian Moldavia and Malyi Galich is close to the Romanian city of Galaţi. The date is not certain, it could very well be 1144. 8 prp ii, 27–29, 31–33; the charter of Mstislav also in rz i, 209–211. These texts have survived because they were included in the last (third) part of the Hypatian Chronicle, which is devoted mainly to events in Galicia-Volynia from 1199–1292. Their location in the Chronicle is also the ground for dating them around 1287 and 1289 respectively. Modern Ukrainian version of the 1205–1290 Chronicle text in O.S. Kucheruk (ed.), Halyts’ko-Volyns’ka derzhava xii-xiv st., L’viv, 2002.

Western Russia

533

entities.9 The virtual absence of 13th century documents from the Ukraine can be explained by the chaotic state of affairs which prevailed in the South Russian steppes for many years after the Mongol invasions of 1239–1240. There is more material available from the principality of Smolensk, also of course because it stayed independent much longer than Galicia-Volynia. The Church Statute of Rostislav Mstislavich of Smolensk of 1136 and a few related charters have been discussed elsewhere in this work in conjunction with the leading church statutes of Vladimir and Iaroslav. They are all fully in the mainstream of Russian law of the Kievan era. The so-called Pravda of Smolensk, in fact a treaty of 1229 between Smolensk and the Hanseatic towns on the Baltic Coast, together with the treaty between the same parties which is dated in the era 1230–1270, have been dealt with in Chapter 7. Polotsk occupied a special place among the Russian principalities. It had been conquered by St. Vladimir in 976, who killed the Viking prince Rogvolod (Rognvald) and married his daughter Rogneda. Polotsk was then given as an apanage principality to the eldest son from this union, Iziaslav. The latter predeceased his father in 1001 and, as was the custom, this resulted in a serious loss of status of his descendants in the Rurikid dynasty. They were excluded from succession to the Kievan grand princely throne10 and continued as a provincial dynasty in the North-West of Russia. Polotsk went more and more its own way, directing its attention mainly to its western and northern neighbours, Lithuania, the German Order and the Hanseatic ports on the Baltic Coast, and Poland. It was in the end, as noted above, absorbed by the expansion of Lithuania in 1307. A number of treaties concerning free trade with Riga and concluded on ­behalf of Polotsk are available for the period when Polotsk was part of ­Lithuania.11 They illustrate what has been observed by many authors: that the Lithuanian state knew a considerable degree of decentralization. The principality of Polotsk continued to function as a semi-independent state, ruled at first by an apanage prince from the Lithuanian (Gediminid) dynasty and later on by a governor appointed by the Polish-Lithuanian king/grand prince. From 9 10

11

Cf. M.M. Peshchak, Hramoty xiv st., Kyiv, 1974, 9–20. They all date from 1301–1302 or slightly earlier. Only Iziaslav’s grandson Vseslav ii usurped the grand princely dignity in 1068–1069. See also A.V. Rukavishnikov, “Nekotorye voprosy istorii polotskoi zemli domongol’skogo perioda”, D.M. Volodikhin (ed.), Russkoe Srednevekov’e. Istochniki. 2000–2001 gody, Moskva, 2002, 40–69. A.L. Khoroshkevich (comp.), Polotskie gramoty xiii – nachala xvi vv., I, Moskva, 1977, Nos. 4, 34–35, 37–38, 52a, 78, pp. 39–41, 94–97, 100–114, 134–139, 164–168.

534

chapter 17

the ­pre-Lithuanian period at least one of such treaties is known, concluded in 1265 by prince Iziaslav, the last Russian prince of Polotsk.12 Its conditions were generally like those from later periods and moreover the text itself referred to previous practice (“how it used to be in the time of the old princes”), so it is safe to assume that trade relations between Polotsk and the Baltic had been reasonably stable over quite a long period, notwithstanding the political changes. The 1265 treaty also showed that the principality of Vitebsk was subordinate to Polotsk. This brief survey of legal documents from Russian principalities before their incorporation into the Lithuanian state shows that these regions were squarely within the sphere of the law of Kievan Russia. The Law of the Grand Principality of Lithuania After the partitions of Poland, the vast archives of the Lithuanian grand principality ended up in Moscow. These collections, known as the Lithuanian Metrika (Litovskaia Metrika), are the main source of documents for the history of Lithuanian law, or rather the law of the Lithuanian state, because it included not only certain original Lithuanian elements but also a mass of Polish, Russian and German elements. One of the earliest surviving documents is a peace treaty concluded between five Lithuanian princes, sons and grandsons of Gediminas, acting apparently on behalf of their brother and uncle Algirdas (the grand prince), and Kazimir iii of Poland and duke Kazimir of Mazovia; its most reliable dating is 1352.13 The charter explicitly recognized that Galicia was Polish and Volynia Lithuanian. Lithuanian rule in Volynia was also confirmed by a treaty of 1366 between the king of Poland and a Volynian prince Dimitrii, in which the common borders were defined.14 A few years later, in 1371, there was an armistice between Lithuania and Muscovy, concluded on behalf of the Lithuanian grand prince Algirdas together with his brother Kestutis and prince Sviatoslav Ivanovich of Smolensk on one side and the Moscow grand prince Dmitrii Ivanovich and a string of subordinate princes on the other.15 Along with the treaties there is a considerable number of charters of the usual type, mostly concerning land grants, but also including deeds of sale and

12 13 14 15

Ibid., No. 2, 36–37. Ibid., 29–32. Ibid., 38–39. Ibid., 46–49; also ddg No. 6, 21–22 and sggd i No. 31, 52–53.

Western Russia

535

fiscal immunities.16 At least the earlier charters, dating from the period before 1386 (the conversion of Lithuania), must have been written by local East Slavic clerks. Their style and format are not very different from what was practiced in other Russian principalities. It is probably safe to conclude that Russian law continued to be alive in the Russian territories which had come under the control of Lithuania, until the Polish-Lithuanian union of 1386. Galicia, as mentioned before, had already been Polish since 1349. Polish law was quite developed at that time, although fragmented, as most of the component duchies clung to their own customary law; in 1347 the Statutes of Wiślica had been promulgated as a record of the customary law of Little and Great Poland.17 The best documented part of the development of Lithuanian law concerned the position of the landowning class, defined through a long series of general privilege charters. General land privileges were issued in 1387, 1413, 1432, 1434, 1447 (1457),18 1492, 1506, 1529.19 The contrasts with the roughly contemporary period of Muscovy Russia are striking. First of all, there was the matter of religious pluralism. Although the rulers were Roman-Catholic and Catholicism, with the polonization of the Lithuanian nobility, also obtained a foothold among the landowning class, the Russian-speaking population generally held on to Orthodoxy. Accordingly, the privilege charters addressed the respective rights of the two religious sections of the nobility. While the charters of 1387 and 1413 favoured the Roman-Catholic nobility, those of 1432 and 1434 raised 16 17

18

19

All to be found in the Peshchak volume, devoted to 14th century charters from the territory of modern Ukraine. Cf. H. Küpper, Einführung in die Rechtsgeschichte Osteuropas, Frankfurt a/Main, 2004, 272–273. Partial Russian translation of the “Complete Collection of Statutes of Kazimierz the Great”, of which the Statute of Wiślica constituted the major part, in V.M. Koretskii (ed.), Khrestomatiia pamiatnikov feodal’nogo gosudarstva i prava stran Evropy, Moskva, 1961, 751–765. A recent survey of the law and government of Galicia as part of the Polish kingdom is to be found in I.I. Boiko, Orhany vlady i pravo v Halychyni u skladi Pol’s’koho Korolivstva (1349–1569 rr.), L’viv, 2009. See also B.D. Grekov, “Obshchestvennyi stroi Galitskoi Rusi v xiv–xv vv.” and “Sud’ba naseleniia galitskikh kniazheskikh votchin pod vlast’iu Pol’shi”, both in B.D. Grekov, Izbrannye trudy iii, Moskva, 1960, 13–28 and 29–39 (also published in Izvestiia an sssr, ser. ist. i fil., 1944, t.I, No. 5, 195–210 and in Istoricheskii zhurnal, 1944, No. 12, 37–43). Russian text of the 1447 (1457) privilege in M.F. Vladimirskii-Budanov (comp.), Khristomatiia po istorii russkago prava, ii, Kiev, 1915 (5th ed.), 20–31. The 1447 charter was the most important of them all in completing the enumeration of the privileges of the nobility. Cf. V.I. Picheta, Vvedenie v russkuiu istoriiu, Moskva, 1922, 78; K. Von Loewe, The Lithuanian Statute of 1529, Leiden, 1976, 1–2.

536

chapter 17

the status of the Orthodox nobility to the same level. Secondly, Russian-style autocracy never took root. The grand prince (and the Polish king later on), in his election as well as in governing the country always depended on the cooperation of the great magnates. In time, the lower nobility (the shliakhta, Pol. szlachta) managed greatly to increase its status and influence and became the dominant political force, although the dichotomy between high and low nobility remained one of the characteristics of the Lithuanian state. The charter of 1387 granted the landowning class the right of free disposal of their landed estates, the charter of 1413 added the right to elect the grand prince, and the charter of 1447 the right for the landowner to judge his own subjects, as well as the right to emigrate.20 Thirdly, a much greater degree of regional particularism than in Muscovy was practiced. This was closely connected of course with the limited power at the disposal of the sovereign. Many provinces had been granted their individual charters in which the rights and privileges of the whole population of the province were spelled out. Such charters are known for Kiev (1507),21 Vitebsk (1503),22 Polotsk (1511), Smolensk (1505), Zhemaitia (North-West Lithuania, 1492) and Volynia (1501).23 The texts of several charters make clear that they represented in fact the confirmation of older charters now lost. The existence of separate legal regimes for different classes of persons also extended to the Jews, who constituted a significant part of the population of Lithuania since Jewish refugees from the pogroms in Western Europe had settled here during the reign of Kazimir iii the Great (1333–1370). Special privilege charters for the Jews were issued in 1385/1388, 1503, 1507 (for the Jews of Brest), 1514 (for all the Jews of Lithunania) and 1541.24 Even the Tatars were honoured with a special privilege charter in 1568.25 20 21

Cf. Kuznetsov, op. cit., 26. Text in Vladimirskii-Budanov, op. cit., 53–61. Unlike some other provincial charters (such as the one for Vitebsk) from the Polish-Lithuanian state, granted to the entire population, the Kiev charter was granted at the request of the “entire Kiev shliakhta”. VladimirskiiBudanov notes (p. 53) that its contents however conform to the general type of provincial charter, rather than to the typical privilege charter. The same goes for several other provincial charters. 22 Text in Vladimirskii-Budanov, op. cit., 44–49. 23 Text in Akty otnosiashchiesia k istorii Iuzhnoi i Zapadnoi Rossii I, Sankt-Peterburg, 1863, No. 36, 27–28. References to the texts of the Polotsk, Smolensk and Zhemaitia charters in Vladimirskii-Budanov, 50–52. Vladimirskii-Budanov (62–67) offers the text of a charter for Volynia from 1509, which is almost identical to the one from 1501. 24 Cf. V.I. Picheta, Vvedenie v russkuiu istoriiu, Moskva, 1922, 79; Küpper, op. cit., 201. 25 Picheta, op. cit., 79.

Western Russia

537

Magdeburg Law and the Urban Population in Poland-Lithuania Many medieval German towns were granted a certain amount of legal autonomy by the emperor or an intermediate ruler (prince, duke, bishop or count); this would normally involve both a measure of legislative as well as judicial freedom. Some towns adopted more or less comprehensive codes, ‘law-books’, while in other places the local law was to be found in a variety of public and private sources. The law of such a privileged town might then serve as a model for other towns. In such cases the ‘daughter’ would often accept the authority of the law of the ‘mother’ and in difficult decisions the authorities (judges, aldermen, etc.) of the mother town could be consulted. Entire families of urban legal systems emerged in this way. This expansion of the law of a particular town was not limited to the Holy Roman Empire but spread also beyond its borders. In Central and Eastern Europe the local laws of Lübeck and Magdeburg acquired great influence. Lübeck law was of particular importance in the area of the Baltic Sea, where it came as far as Novgorod, where the colony of German merchants had its own law based on that of Lübeck (the Skra of Novgorod). The granting of German urban law was generally advantageous to the inhabitants because of the freedom it involved for managing their own affairs. In Central and Eastern Europe the adoption of German (and in some cases Flemish) law was much promoted by the resettlement of German émigrés in these areas. In the Polish-Lithuanian realm the law of Magdeburg occupied the leading position. Magdeburg law did not consist of a single code or text, but of several official and private texts.26 During the second half of the 12th century Magdeburg law was received in a number of not too distant German towns (Stendal, 1160; Leipzig, 1156–1170; Jüterbog, 1174). The major expansion took place in the 13th century, when numerous towns in Brandenburg, Silezia and the adjacent Polish regions (Cracow in 1257, Gniezno in 1251) were granted Magdeburg law. Of particular importance were the grants to Kulm (Pol. Chełmno, 1231) and Neumarkt (Pol. Środa, 1235), because the laws of these towns themselves served as models for a great number of town laws in the Polish-Lithuanian

26

On Magdeburg law, see H. Conrad, Deutsche Rechtsgeschichte, I, Karlsruhe, 1962 (2nd ed.), 356ff.; R. Schroeder, Lehrbuch der Deutschen Rechtsgeschichte, Leipzig, 1898 (3rd ed.), 668– 670. M.M. Kobylets’kyi, Magdeburz’ke pravo v Ukraini, L’viv, 2008, offers a very full account of the penetration of Magdeburg law into the territory of present-day Ukraine, but also deals extensively with the origins and early expansion of Magdeburg law. A more succinct account has been given by T. Hoshko, Narysy z istorii magdeburz’koho prava v Ukraini xivpochatok xvii st., L’viv, 2002.

538

chapter 17

state, ­especially in Galicia.27 Neumarkt had itself received Magdeburg law through the intermediary of the law of Halle. The expansion continued further eastwards in Poland proper, Galicia, Lithuania and Belorussia during the 14th century (Warsaw in 1334, Lemberg/L’viv in 1356, Vilnius in 1387, Brest in 1390). In this phase Magdeburg law came to be adopted in regions where German settlers no longer constituted an important section of the urban population. The furthest extension was reached in the 15th and 16th centuries, when Magdeburg law penetrated further into purely Baltic and East Slavic territories (Kaunas in 1408, Slutsk in 1441, Polotsk in 1498/1499, Minsk in 1499, Kiev in 1506/1516, Vitebsk in 1597). The granting or adoption of Magdeburg law appears to have been not much more than a simple statement. The grant to Kiev was made in 1506 by the Polish king Alexander and confirmed by his nephew king Sigismund in 1516. It stated that the king “had conferred the German law known as Magdeburg law to the city itself and the citizens of Kiev, whether they were adherents of the Latin or the Greek or Armenian faith, in order that the citizens themselves and [the other] inhabitants of Kiev and their successors would in everything govern and defend themselves in such a way as [prescribed by] the law and customs of the aforesaid law of Magdeburg.”28 In a much older grant, by a Galician prince Iurii Troidenovich in 1339, to a local lord who held the office of advocatus (Germ. Vogt) of the town of Sanok in Galicia, similar expressions were used (“with full powers and jurisdiction according to German law, id est Magdeburg law”).29 The entire process of the penetration of Magdeburg law lasted for a very long time and was itself quite complex.30 As towns took over, or rather were allowed to take over, the law of another town, they adapted it according to their special circumstances. The whole system was held together by the legally fixed practice of appeal to the judicial bodies of the ‘mother’-town and ultimately to the courts of Magdeburg. Not only did the Magdeburg system lack uniformity, it was also far from comprehensive. It touched upon many subjects, without quite covering them: local government, contracts, torts, criminal law, procedure (criminal as well as civil), family law, inheritance law. Still, it clearly offered a workable set of legal tools, witness its survival over many ­centuries, 27 28 29 30

Cf. Kobylets’kyi, 279–310. Latin text and Ukrainian translation in Kobylets’kyi, 394–404. Id., 391–393. A special study of the penetration of Magdeburg law in the principalities of Polotsk and Vitebsk is M. Makarau, Ad pasada da Magdeburgii: pravavoe stanovishcha nasel’nitstva mestau Belaruskaga Padzvinnia u xiv – pershai palove xvii st., Minsk, 2008. This work also contains the texts of 16 Polish-Lithuanian charters granted to various Belorussian towns during the 1509–1648 period.

Western Russia

539

well into the period of the Russian empire when most of the territories of the Polish-Lithuanian state had been absorbed by the former. The last place where Magdeburg law survived on Russian soil was the city of Kiev, where it was abolished in 1835, three years after its application had been forbidden in the Ukraine.31 The Code of Kazimir of 1468 The so-called Code of Kazimir iv of 1468 is a short statute of which most of the 25 articles were devoted to various kinds of theft; additionally there are a few provisions concerning procedure, disputes concerning land, lost and found property, and a final rule concerning bridge building. In the past, Russian authors were inclined to characterize this Code as an offshoot of the rp, especially the Expanded Pravda, which also dealt with different types of theft and contained an isolated rule on bridge building. Several Lithuanian and Polish authors disputed this view and after the thorough study by I.P. Starostina the rp connection indeed looks weak.32 The Code may have been preceded by earlier comprehensive legislation, but nothing definite is known about such activities. According to Starostina, it is likely that the Code, ostensibly adopted in consultation with the leading noble officials of the Lithuanian grand principality, was originally meant specifically for the Lithuanian heartland, the provinces of Vilnius and Troki, but that its applicability extended later on also to the Russian provinces of the principality. This would fit the view of some Lithuanian historians, to which Starostina also subscribes tentatively, that the Code was based primarily on earlier Lithuanian customary law. The law was written in the official language of the principality, Old-Russian (Old-Belorussian), and used the accepted Russian legal terminology which went back to the rp. This, suggested Starostina, could explain why many authors in the past assumed the Code’s genetic link with the rp, without any serious comparison of the significantly different contents. The Lithuanian Statute of 1529 If “Code” is rather too grand a designation for the 1468 statute, the Statute of 1529 would be deserving of such a name. It is also known as the First L­ ithuanian 31 32

Kobylets’kyi, 378ff. I.P. Starostina, “Sudebnik Kazimira 1468 g.”, dg sssr 1988–1989, Moskva, 1991, 170–344. This almost book-length study also contained a new scholarly edition of the text. The main publication in the past was in Vladimirskii-Budanov, op. cit., 32–43, still most useful for its comments to the individual provisions.

540

chapter 17

Statute, because there are two subsequent versions, the Second Statute of 1566 and the Third of 1588 (i.e. after the Union of Lublin with Poland in 1569). It was issued by Sigismund (Zhigimont, Zygmunt) i the Old who reigned as grand prince of Lithuania from 1505–1548 (king of Poland, 1506–1548). Like all previous Lithuanian legislation the three Lithuanian Statutes were written in Old-Russian (or Old-Belorussian, as some prefer).33 The 1529 Statute was translated into Latin the next year. In the course of the last two centuries it has been published several times, also in Russian, Polish, Lithuanian and English translations.34 The most complete and modern edition is the Lithuanian one edited by S. Lazutka and E. Gudavičius.35 A shorter version of this edition, but provided with a Russian translation and a commentary, was published for a wider scholarly audience in 2004.36 Although an in-depth discussion of the 1529 Statute would be outside the scope of this work, a few observations are appropriate because of the relevance of the Statute and its two successors for the legal history of Russia. They were applicable for centuries on territories which later became part of the Russian state and they directly influenced Russian law. The first thing that strikes the reader of the 1529 Statute is its relative modernity. Art. 9 of its first chapter laid down that it applied equally to all subjects of the Lithuanian state, “whether poor or rich, and of whatever position or class”. Art. 7 of the same chapter stipulated that a person could be punished only for a crime committed by himself. The Preamble (Introduction) stressed that the granting of the rights and privileges defined in the Statute was in fact the confirmation of the rights and privileges granted by previous rulers, and that no distinctions between adherents to the Latin and the Greek faiths were to be made. The scope of the Statute, unlike the 1468 Code which mainly covered some criminal law matters, was very broad. There are thirteen chapters of which the first, entitled “Concerning the Person of the Sovereign” in the Table of C ­ ontents, 33

34 35

36

Von Loewe (op. cit., 13) in his introduction to his translation of the 1529 Statute wrote: “It was issued in a language peculiar to the Lithuanian chancery of that time. Nearly every East European nationality whose language uses the Cyrillic alphabet has at one time or another claimed this chancery language as the forerunner of its own.” The English translation by von Loewe has been referred to above (K. von Loewe, The Lithuanian Statute of 1529, Leiden, 1976). S. Lazutka, E. Gudavichius (eds.), Pervyi Litovskii Statut t.i Ch. 1 (Paleograficheskii i tekstologicheskii analiz spiskov), Vilnius, 1983; Ch. 2 (Faksimile Dzialyn’skogo, Lavrent’evskogo i Ol’shevskogo spiskov), Vilnius, 1985; T.ii, Ch. 1 (Teksty na starobelorusskom, latinskom i staropol’skom iazykakh), Vilnius, 1991. S. Lazutka, I. Valikonite, E. Gudavichius, Pervyi Litovskii Statut (1529 g.), Vilnius, 2004.

Western Russia

541

contained provisions which we would classify as constitutional law. The same could be said about the second and third chapters (defence of the realm and the rights and freedoms of the nobility). Chapters 4, 5, 8 and 10 (on the status of women and marriage, guardianship, ownership disputes concerning land, and encumbered estates) covered various civil law subjects. Chapter 6 dealt with judges and courts, and the remaining Chapters 7, 9, 11–13 with various criminal offences. Many subjects are evidently missing (e.g. contracts or torts) and the attempt at systematization looks very poor to a modern lawyer. Criminal law provisions not only appear in the chapters mentioned, but are strewn around all the others chapters. This is most easily explained by assuming that the Statute is to a great extent an accumulation of earlier and more narrowly focused statutes. For the 1468 Code this is obvious; several of its provisions return in the 1529 Statute. Since the 19th century most Russian authors have until recently stated casually that the rp was the principal source of the 1529 Statute.37 Modern authors reject this view.38 The parallels with the rp are superficial and concern mainly terminology (both texts, for instance, have the term golovnichestvo, “head money, wergeld”, as the composition payable to the close relatives of the person killed).39 Indeed anything more than a cursory inspection of the text of the 1529 Statute transports the reader into a very different legal world. The roots, the foundation, of the Statute are probably in Lithuanian customary law (and this may explain a certain typological similarity with the rp), but on this foundation an elaborate structure had been built by the legislation of the Lithuanian grand principality, mainly in the shape of privilege charters, and also by a large volume of court decisions, many of which can be found in the Lithuanian Metrika. The close relations with Poland and the existence 37

The leading Soviet legal historian, S.V. Iushkov, in his Istoriia (189): “The basic source of the [Lithuanian] statutes, drafted in the Russian language, was Russian feudal law, especially the Russkaia Pravda.” Von Loewe (op. cit., 6–12) identifies a number of parallels between the two texts, but notes that there is no obvious influence from other Russian legislation. 38 See e.g. I.P. Starostina, op. cit., and by the same author “K voprosu o skhodstve i razlichii zakonodatel’nykh pamiatnikov Velikogo kniazhestva Litovskogo i Russkogo gosudarstva v xv v.”, dg sssr 1987, Moskva, 1989, 92–99; Bychkova, op. cit., 76; Kuznetsov, op. cit., 48–49. This point of view has also been argued forcefully and extensively by Lithuanian scholars as Lazutka, Valikonite and Gudavichius (supra). 39 A recent study by S.V. Vasil’ev stressed that the terminological parallels are significant and go back to the era of the Russkaia Pravda, and reflect a common background in the law of the Eastern Slavs. Cf. S.V. Vasil’ev, Pskovskaia Sudnaia gramota i i Litovskii Statut. Opyt sravnitel’nogo issledovaniia terminologii zakonodatel’nykh pamiatnikov, Moskva, 2011.

542

chapter 17

of a princely chancery in Lithuania, staffed in part by officials and clerks who might have studied in Cracow (its university was founded in 1364), would undoubtedly have resulted in the penetration of Polish and West-European concepts and institutions. As stated above, the Statute looks surprisingly modern. The 1529 Statute was superseded in 1566 by a new Statute, based on its predecessor but offering a considerably revised, augmented and systematized text.40 The 1566 Statute was in its turn replaced in 1588 by the Third Lithuanian Statute. These two Statutes were prepared by special commissions (as was the one from 1529), established to produce texts which were more in harmony with socio-economic and political changes in the grand principality. The Third Statute remained in force in many territories after they had been incorporated into the Russian empire, in some instances well into the 19th century.

40

New edition by T.I. Dounar (a.o.), Statut Vialikaga kniastva Litauskaga 1566 goda, Minsk, 2003, with comments in Belorussian.

chapter 18

Rural Russia The presence of law in rural surroundings in medieval Russia is the theme of this chapter. The sources, as is to be expected, tell us more about what happened in towns or in the courts of princes. As long as life in the country went on as it had always done, it remained almost invisible. Looking at it from a legal perspective, one presumes that it was governed by custom, which in some cases might have solidified into customary law; in other words, certain customs would be expressed in explicit rules, generally recognized within the community. Only when such customary arrangements become juridified can one speak meaningfully about law. What is understood by “juridified” is that custom or customary law acquired sufficient legal relevance for it to be the subject matter of a legal dispute or legal regulation: it might be submitted to the judgment of a public authority (the prince, his officials, a town or village authority, a church official), or it might be expressed in a legal document ­(legislation or other public regulation, a contract, a will). Adopting such a concept of law, one can safely say that in the setting of early medieval rural Russia, law was not only, like other aspects of life at that time, almost invisible – it was hardly there. The sparse evidence, to which we shall return below, suggests that law emerged, like little islands of dry land in an area previously under water, at certain points where the usefulness of ­legal ­regulation had arisen. In an urban setting, the moment when it becomes too difficult to do without law occurs much earlier. A town cannot function ­without some forms of institutionalized public power; as a natural centre for crafts and trade, the density of commercial relationships also calls for formal rules. It is generally known in legal history that the emergence of law itself and its subsequent metamorphoses in the shape of major law reforms are almost always connected with important socio-economic changes. For the earliest period of Russian legal history one can at least identify one complex of factors that was of great relevance for the Russian countryside. The area populated by the Eastern Slavs had become politically unified under the princes of the Rurikid dynasty and this process was accompanied and supported by the formation of a new social elite. The adoption of Christianity, during the same period, introduced the Church, and somewhat later, the rise of monasticism, as separate factors within this complex.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_019

544

chapter 18

Land Tenure and Land Ownership

The Primary Chronicle offers a rough picture of rural conditions in ­pre-­Christian Russia: a tribal society, where tribal land co-existed with individual plots of families. This at least would apply to the more advanced Southern tribes, especially the Polianians. In the North, life in the dense forests would appear to have been more primitive. For a proper understanding of rural conditions the peculiar role of the early Russian town has to be kept in mind. As explained in Chapter 8, towns of various kinds had existed in Russia since prehistoric times. These towns presupposed the existence of a wider urban environment, economically connected with them, supplying at least food and then also trading goods (pelts, timber, wax, etc.). Beyond this environment there was, in the North, endless and mostly impenetrable forest, in the South, the steppe, and pustynia in the transition zone, as the Chronicle refers to it: a wild and empty place, ownerless, from the legal point of view, or at least from a modern legal point of view, which employs the concept of a person’s relationship with a particular piece of land. It is of course more realistic to talk about a person’s attitude towards a piece of land. The early Finnish and Slavic hunters in the forests of Northern Russia would probably regard the forest as an alien and awe-inspiring place where they would go to find prey; only when their ­hunting-grounds began to overlap with those of others, might some sense of ‘ownership’ emerge. For the nomadic herdsmen of the Southern steppe, the endless plains were the place where they lived and grazed their cattle; the appearance of strange herds would be felt as a threat to their livelihood. Only among sedentary agriculturalists could a more distinct sense of land ownership arise, because there would be specific fields worked by specific peasants and producing a specific crop. The basic feature concerning land in this era would still be that most of it was ownerless, in whatever sense, legal or psychological, one might assign to the term. Early Russian law still shows clear traces of the gradual emergence of ownership in a more modern sense, in particular in connection with hunting and bee-keeping, when some kind of exclusive claim on a specific part of the primeval forest first arose. One indication is the entry in the Primary Chronicle for 946/947 about Olga establishing hunting preserves in the newly conquered land of the Derevlians (see below), others are encountered in the rp in ­various rules against damaging or removing oak trees or other signs marking bee-­keeping, hunting or ploughing rights (art. 34, Short Pravda; arts. 70–73, Expanded Pravda). This, in very broad outline, would have been the situation preceding the formation of proto-historical Rus’. It began to change in the earliest historical times with the arrival of new players. The princes of the Kievan era differed in many ways from the old Slavic

Rural Russia

545

chieftains. Their following, the druzhina, was of mixed origin; along with Slavic members, there were certainly Varangians, and also persons with other ethnic backgrounds, such as various Turkic and Finnish elements, and possibly others. Such princes, as well as members of new elites including also clergy members, constituted a new presence in the Russian countryside in this era, although they would normally be found more often in and around the towns. An explanation of this new phenomenon would raise the question of historical causality, which is not the subject of this study. A certain awareness of it may contribute however to a better understanding of the topic of this chapter and in particular of the emergence of ‘large-scale landownership’ (krupnoe zemlevladenie), the not altogether felicitous term used especially by Soviet historians to denote the rural transformations of this period. All that can be done here is to point out how a number of important new factors were closely connected. All through the several centuries of its existence, Kievan Rus was plagued by incursions of Turkic steppe nomads; first the Pechenegs, until they were almost annihilated by Iaroslav the Wise in 1036, and then the Polovtsians. This was at least one of the main reasons towns needed a prince and his military power for their protection. The nucleus of this power was the druzhina, and its members had to be rewarded. The prince would derive income from his personal domain (as attested to by the rp); gradually, druzhina members also appeared as lords of estates, rather than as companions of the prince. The Church and its doctrine supported and legitimized princely power and received material support in exchange. The growth of larger estates required an increased work force; slavery continued to play a role, but economic hardship would also drive poorer elements of the rural population into positions of dependence. Large estates were, as a rule, better able to defend themselves and to weather difficult times. It is probably pointless to look for a single ‘efficient cause’ in this process. Once it got under way, the various factors indicated above (and others as well) reinforced each other.

Large-Scale Land Ownership – Feudalism?

In Russian historiography the process is usually referred to as the rise of large-scale landownership, which directs attention to the legal question of ownership of the land. This approach became completely dominant in Soviet times because of the importance of the question of the ownership of the means of production in Marxist ideology. Ownership of land by a small number of wealthy landowners, used to exploit the peasants who actually worked the land, was the central feature of feudalism as one of the major phases of

546

chapter 18

­ istorical development in the Marxist view. It was formulated by B.D. Grekov h in his work on Kievan Russia as follows. A classical definition of the feudal system was given by Stalin. The basis of the relations of production under the feudal system is that the feudal lord owns the means of production and does not fully own the worker in production – the serf whom the feudal lord can no longer kill, but whom he can buy and sell. Alongside feudal ownership there exists the individual ownership by the peasant and the handicraftsman of his implements of production and his private enterprise based on his personal labour.1 The Marxist concept is obviously much wider than the classical ones, based on the combination of fief-holding and vassalage, as it emerged in post-­ Carolingian Europe through the ritual of homage and fealty.2 In its application in the history of the Russian middle ages, the general Marxist concept, moreover, had to be augmented, in order to come to a satisfactory elucidation of Russian ‘feudalism’. This was done by the introduction of the concept of state feudalism, in which the state (in fact the prince) was the dominant owner of land and the source of the ownership of other ‘feudal’ landowners. State feudalism, accordingly, acquired great popularity as a theoretical theme for Soviet historians, without adding much (in my view) to a genuine understanding of what had actually happened.3 As has been said above, the application of the modern, absolute ownership concept is anachronistic, at least with regard to the rights concerning land in a medieval setting. Medieval landownership, to put it briefly, was not so much a question of the identity of the owner, but rather of identifying different layers of ‘ownership’, in other words, of the identities of the various categories of persons who enjoyed certain rights concerning the land in question. Marxist-­Leninist views on the feudal system, as proclaimed by Soviet ideology, recognized the stratified character of ownership in the middle ages, as well as the restricted character of the ownership rights of an individual owner, 1 B.D. Grekov, Kiev Rus, Moscow, 1959, 149. Original in Grekov, Kievskaia Rus’, 115. 2 Cf. M. Bloch, La société féodale, Paris, 1939; C. Stephenson, Mediaeval Feudalism, Ithaca n.y., 1942; F.L. Ganshof, Qu’est-ce que la féodalité?, Bruxelles, 1944; many later editions and translations. 3 The literature on this subject is vast, but probably of little interest now. When the transition to a market economy was in full swing in 1993, the Institute of Russian History of the Academy of Sciences published a collection of articles (only 300 copies, poor paper and typewriter print), which looked like a last attempt to keep the discussion alive; L.V. Danilova (ed.), Sistema gosudarstvennogo feodalizma v Rossii. Sbornik statei, 2 vols., Moskva, 1993.

Rural Russia

547

implied in this stratification.4 Instead of “ownership” (sobstvennost’) of land, ­zemlevladenie, is often used, a term which in its traditional legal meaning would refer to “possession of land” or “land tenure”, but in its more general meaning refers to “control over land”. The latter term often occurs together with the term “the use of land” (zemlepol’zovanie), which, from the legal point of view, is an even vaguer concept than zemlevladenie. In medieval sources, princes and noble landowners would commonly refer to votchina or otchina (“paternal heritage”) with regard to their own lands.5 Nowadays votchina is in general use in Russian historical terminology to refer to the main form of medieval (‘feudal’) landownership. The real question is to find out what legal roles various actors played in connection with land.

Princes as Landowners

The central role unquestionably fell to the prince, the Kievan grand prince at first and the multitude of princes in later years. The rights of others concerning land depended on or were connected with the rights of the prince; this applied to secular members of the elite (druzhina members, boyars), as well as to the Church (bishops and monasteries). Apart from being a source of landowning rights of others, the prince was usually also an important landowner himself. The first mention of the prince as landowner is found in the Primary Chronicle in the celebrated passage for the years 946–947, which relates the activities of Olga, the widow of grand prince Igor, after she had inflicted a crushing defeat on the Derevlians, who had killed Igor in 945. The story contains a wealth of information on the prince’s powers concerning land and therefore deserves to be quoted in full. She imposed on them a heavy tribute [dan’], two parts of which went to Kiev, and the third to Olga in Vyshgorod; for Vyshgorod was Olga’s city. She then passed through the land of Dereva, accompanied by her son and her retinue [druzhina], establishing laws [oustavy] and tribute [ouroki]. Her trading-posts [stanovishcha] and hunting-preserves ­[lovishcha] 4 Cf. Iushkov, Stroi, 116–117 and especially A.L. Shapiro, Russkoe krest’ianstvo pered zakreposhcheniem (xiv–xvi vv.), Leningrad, 1987, Ch. 3, 31–46. 5 Cf. L.V. Danilova, “Poniatie zemel’noi votchiny v srednevekovoi Rusi”, V.M. Vorob’ev, A.Iu. Dvornichenko (eds.), Srednevekovaia i novaia Rossiia. Sbornik nauchnykh statei. K 60-letiiu professora Igoria Iakovlevicha Froianova, Sankt-Peterburg, 1996, 254–278.

548

chapter 18

are still there. Then she returned with her son to Kiev, her city, where she remained one year. [947] Olga went to Novgorod, and along the Msta she established trading-posts [povosty=pogosty] and tribute [dani] and along the Luga imposts [obroki] and tribute [dani] and her huntingpreserves [lovishcha], boundary posts [znamiania] and trading-posts [povosty=pogosty] still exist throughout the whole region, while her sleighs stand in Pskov to this day. Her fowling preserves [perevesishcha] still remain on the Dniepr and the Desna, while her village of Olzhichi is in existence even now.6 Without getting into a full discussion of the passage, the following salient points may be noted.7 Olga was the only ruling grand princess of the Rurikid dynasty, acting as regent for her young son Sviatoslav. Shortly after her resolute and cruel treatment of the Derevlians she herself became a Christian, although the Kievan empire only accepted Christianity during the rule of her grandson Vladimir in 988. Whether the “laws” (ustavy) she established can be regarded as the first reported Kievan legislation is much debated. The importance of tribute (dan’) in the formation of the Kievan state was discussed in the section on “Tribute and inter-tribal relations” in Chapter 7. What concerns us here are the various forms of power exercized by the prince in respect of land. First of all, the land of the Derevlians had obviously been annexed and incorporated into the Kievan state, to apply modern terminology; Olga imposed an annual tribute (dan’) and other taxes (uroki) and established “laws”. She also reserved certain areas in Dereva as her own hunting-preserves. Although the capital Kiev (grad svoi) and Vyshgorod (grad Vol’zin) are both called ‘her’ cities, the context suggests that Vyshgorod was more of a personal apanage. The same applies to the village of Olzhichi, which bears her name and would not have been mentioned if she did not have special rights to it. The Chronicle makes an effort to point out that Olga’s real property activities in establishing fowling and hunting-preserves, boundary posts (of these preserves, presumably) and ­trading-posts were effective until the Chronicle itself was written down, more than a century and a half later. The reference to the village of Olzhichi in particular indicates that the Kievan prince and members of his family appeared as landowners at this early moment. It also implies that there were other landowners as well. It appears that the accent in respect of Olga’s rights concerning land was still more on hunting and gathering (bee-keeping) than on agriculture. 6 Translation (with minor alterations) of Cross/Sherbowitz-Wetzor, 81–82. 7 A fuller treatment in Froianov, KRse, 138–144; also in Froianov, Nachala, 374–378.

Rural Russia

549

During the following century, the sparse legal sources do not contain clear references to princely landowning, with one exception. The first part of the Short Version of the rp (the Oldest Pravda, or Pravda of Iaroslav, tentatively dated 1016) is almost exclusively concerned with relationships among Russians and Varangians in an urban environment; the Church Statute of Iaroslav (tentatively dated 1054) focuses primarily on sexual behaviour which was particularly objectionable to the Church and which had been assigned to ecclesiastical jurisdiction. Iaroslav’s father, St. Vladimir, had already conferred jurisdiction and tithes onto the Church through his Church Statute (some time between 980 and 1015, possibly 996) and the section conferring tithes mentioned the prince’s herds and harvest among the assets from which tithes would be paid and this of course implied that Vladimir owned land. Then, with the second part of the Short Version, the Pravda of Iaroslav’s Sons (1073, most likely), the prince as landowner appeared at the centre of the stage. The complex structure of the second part of the Short Version was discussed at greater length in Chapter 4 on the rp; in fact, only the first half is to be regarded as the Pravda of Iaroslav’s Sons, the second half consists of provisions of a later date, combined with the first half when the final compilation of the Short Pravda was accomplished. This first half (arts. 19–29) constituted a catalogue of fines (bloodwite), payable for the homicide of various officials and servants of the prince, plus a few related offences. This catalogue offered a fairly detailed picture of the organization of the prince’s domain and the persons employed by it. At the top of the list (art. 19) were the steward (ognishchanin) and the collector of fines (pod”ezdnoi).8 Although the exact meaning of these terms has been much debated, the dominant view is that the ognishchanin was the person who ran the estate as the prince’s representative and that the pod”ezdnoi was in particular concerned with receiving money on behalf of the prince.9 The importance of these officials is borne out by the fact that their killing entailed a doubling of the normal sanction of 40 grivna. A bloodwite of 80 grivna was also due (arts. 22–23) for the killing of the prince’s tiun or the senior stable master (koniukh staryi); the tiun was an official who could be entrusted with various responsibilities by the prince.10 8 9 10

“Steward” and “collector of fines” in Kaiser’s translation; Vernadsky has “bailiff” and “prince’s adjutant”. For a survey of the various views, see Baranowski, 251–255. Vernadsky translates tiun as “steward”; Kaiser, who uses “steward” for ognishchanin, renders tiun as “overseer”. While the ognishchanin appears only in the rp, tiun remained a frequently used title well into the 17th century.

550

chapter 18

Of the prince’s lower officials, the Short Pravda mentioned (art. 24) the village elder (sel’skii starosta) and the plough land supervisor; their bloodwite was 12 grivna. A bloodwite of 5 grivna was set for rank-and-file farm labourers, whatever their legal status: contract labourers (riadovichi, art. 25), ordinary (dependent) peasants (smerdy, art. 26), and slaves (kholopy, art. 26); however, the killing of slaves enjoying a position of confidence in the prince’s household (the wetnurse and the male tutor, the kormilitsa and the kormilichits) entailed the higher bloodwite of 12 grivna (art. 27). The list was completed by setting fixed fines for the killing of a horse belonging to the prince (3 grivna) or belonging to a peasant (2 grivna) and for the killing of various other animals (art. 28); art. 29 dealt with the abduction of a male or female slave (kholop or roba) and ordered the offender to pay the owner 12 grivna “for the offence” (za obidu, obviously on top of making good the loss caused). The entire complex of arts. 19–29 of the Short Pravda offers the outline of an extensive domain of which the prince was the lord and which was managed on his behalf by a hierarchy of officials and employees. This picture is made more detailed by the following part of the Short Pravda which is predominantly concerned with offences against the functioning of the agricultural enterprise of the prince. As mentioned earlier, almost all provisions of the Short Pravda reappear in the Expanded Pravda, in a different but still very recognizable form, and this applies also to the provisions referred to above.11 As a result of the editorial work during the final compilation of the Expanded Pravda, the logical connection between the blocks of provisions of the Short Pravda devoted to the management of the princely domain has to a considerable extent been lost in the Expanded Pravda. In addition to the members of the domanial personnel mentioned in the Short Pravda, the Expanded Pravda referred to the kniazh’ muzh (arts. 1 and 3), the prince’s man or agent (quite possibly the same person as the ognishchanin), the rural tiun (art. 13), and the zakup (art. 56ff.). The rural tiun (sel’skii tiun kniazh’) was of the same rank as the plough land overseer (ratainyi), with a bloodwite of 12 grivna, while the prince’s tiun (art. 1) retained the 80 grivna bloodwite. The zakup or indentured labourer is thought to have been the subject of a special enactment, subsequently included in the final redaction of the Expanded Pravda (arts. 56–62, to be discussed in more detail in the following section). 11

With the exception of art. 19 of the Short Pravda, devoted to the bloodwite for the ognishchanin, an official who virtually disappeared in the Expanded Pravda, save a passing mention in arts. 12 and 78.

Rural Russia

551

The general picture of princely landowning, produced by these provisions of the rp, is further concretized by a chronicle passage under the year 1146, referring to an armed conflict between two groups of Chernigov and Volynian princes, a common event at that time (the brothers Sviatoslav and Igor Ol’govich on one side, and the brothers Iziaslav and Vladimir Davydovich and the Volynian prince Iziaslav Mstislavich on the other).12 … they came and halted in the village of Mel’teko, from where they sent [a force] to seize the herds of Igor and Sviatoslav in the forest along the river Rakhna – some 3000 mares and 1000 horses; spreading out among the villages, they burned the courts and the grain stores. But this was not enough for them, inspired as they were by the devil; they went to Igor’s village where he had built himself a palace; there was a wealth of good things there in the storerooms, wine and honey in the cellars, and there was also such a great quantity of heavy goods, such as iron and brass, that they could not take it away with them. The order was given to place it all on carts and then they ordered to set fire to Igor’s palace, the church, and the wheat field on which there were 900 stacks … [in Putivl’, the other brother’s main village] they divided the [contents of the] palace of Sviatoslav Ol’govich into four parts, the cattle sheds and the storerooms, and all the stocks; there were 5000 pounds [500 berkovtsy] of honey and 50 large jars of wine in the cellars; they divided up the entire princely estate, including 700 slaves. Another concrete example of princely landowning from the same period is the 1150 Charter of prince Rostislav Mstislavich of Smolensk, endowing the newly established bishopric of Smolensk with a few villages, including the dependent local peasants, and parcels of land, specifically designated as “land of the prince” (kniazh uezd).13

12

13

Quoted from Iu.B. Got’e, Ocherk istorii zemlevladeniia v Rossii, Moskva, 2003, 13–14. (This work was published posthumously; Got’e was a Russian émigré scholar, who died in 1943). Got’e did not indicate which chronicle his quotation was taken from, apparently the Hypatian text of the Prim. Chr. (psrl ii, 331–332), see also Froianov, Nachala, 385, or Froianov, KRse, 156. Karamzin (Part ii, Ch. 12) has the same story in more or less the same words under the year 1146; in his footnote 296 (col.123 in the Primechaniia to Part ii) Karamzin quotes verbatim from the “Kievan Chronicle”. Tatishchev, in his Istoriia Rossiiskaia, Part ii, Ch. 18, under the year 1146, recounts the same story in similar words (I have used the 2003 Moscow edition, where the text is found in vol.2, 201). Art. 4 of the Charter (Ustavnaia gramota) of Rostislav of Smolensk, prp ii, 41. On the Charter, see the relevant section in Chapter 8).

552

chapter 18

The sources show without any doubt that the Rurikid princes in the Kievan era ‘owned’ land in the sense that specific tracts of land were at their disposal for exploitation in their personal interest and that they could donate or sell such lands. This is to be distinguished from other, vaster, territories which were also designated as belonging to them, but where they were only recognized as the rulers. Their rights as rulers would involve certain revenues (such as court fees), but other persons or entities (such as monasteries) would appear as the ‘owners’. Not all Rurikid princes were in fact ruling princes. Such non-ruling princes were little different from other landowners, if at least they had been granted lands of their own. This raises the question of the origin of princely landowning and of landowning in general, a subject that can only be dealt with in connection with non-princely landowning.

Boyars and Other Landowners

The legal framework of agriculture in Russia in pre-Kievan times is a matter of conjecture (and of customary law of course). Subsistence farming by peasant households can be assumed, but external sources testify to the existence of slavery, and a certain degree of social stratification (see the section on slavery in Chapter 19).14 That slaves were an object of trade and that the Russians were very active in the slave trade is made abundantly clear by the sources. Whether they also used slaves as an agricultural workforce at this time remains obscure. The Primary Chronicle (for 946) reports that the princess Olga, after defeating the Derevlians, slaughtered some of them and gave others to her druzhinniki. This passage demonstrates that Russians themselves could also be slaves to other Russians, but does not indicate whether they were employed to work for their masters or destined only to be sold on. Taking everything into account (the inescapable importance of agriculture, the existence of slavery, and the existence of a political and economic elite), the assumption that estates ­larger than a single family household existed, where a relatively wealthy master would control an agricultural economy of a certain size, employing slave ­labour, is reasonable. In modern terminology such a person would be considered a landowner. 14

Of the many testimonies, one of the most extensive is by Procopius of Caesarea, who lived during the first half of the 6th century, in his description of the wars with the Goths; see Drevniaia Rus’ v svete zarubezhnykh istochnikov, t.ii, Vizantiiskie istochniki (M.V. Bibikov, comp.), Moskva, 2010, 69–79. Slavery in Russia in pre-Kievan times is discussed in more detail by A.A. Zimin, Kholopy na Rusi, Moskva, 1973, 9–21.

Rural Russia

553

For Kievan times there is sufficient evidence to indicate that the prince was the basic source of the landowning of others. Among the various ways the prince would reward his followers, his druzhina, the granting of land was initially not the first option, but in time became more important. (For the main treatment of the druzhina, see Chapter 13 (on the Prince), section on the prince and his officials, sub-section on the druzhina.) The relationship between (the assumed) landowning by a pre-Kievan ‘noble’ and the landowning by the Kievan elite, derived from grants by the prince, has been and still is a much contested question in Russian historiography. Did the pre-Kievan elite disappear by being dissolved into the general population, did it survive as an independent landowning class along with the ‘new’ landowners from the druzhina, or was the druzhina perhaps recruited in part from the old Russian landowning class? And the answers to these questions may all be in the affirmative to some extent; in other words, the three options are not mutually exclusive.15 To be quite precise, there are two closely connected complexes of questions. The first one concerns the existence and subsequent fate of a pre-Kievan elite, the ‘landed boyars’ (zemskie boiary, lit. “land boyars”, or indigenous boyars), in the pre-1917 terminology. Did such a class indeed exist and, if so, what happened to it in the era of the first Rurikid rulers. Secondly, if it existed, did it own land? If it did, how did this group of landowners fare in the era of the first Rurikids? A variety of answers has been offered to these questions by successive generations of Russian historians. A survey recently presented by A.A. Gorskii offers a convenient summary.16 The following paragraph is based on Gorskii’s argument. Following the conceptualization of feudalism in West-European historiography of the 19th century, N.P. Pavlov-Sil’vanskii was the first major proponent of the theory of the emergence of a similar type of feudalism in Russia, based on the combination of noble landowning and vassalage.17 The first generation of Soviet medievalists, with B.D. Grekov as the undisputed leader, followed in this track, but used a Marxist concept of feudalism, in which the economic dominance of large-scale landownership was the decisive factor. Grekov put the beginning of Russian feudalism as early as the 9th century, while others (especially S.V. Iushkov) advocated a later date, in the 11th century. Grekov’s ­position 15 16 17

More on this problem: Froianov, Nachala, 392–399 (KRse, 166–177); M.B. Sverdlov, Genezis i struktura feodal’nogo obshchestva v Drevnei Rusi, Leningrad, 1983, 18–27. A.A. Gorskii, Russkoe Srednevekov’e, Moskva, 2009, 57–81 (Chapter 4: “«Feudalism»: the «Classical» Model and Reality”). N.P. Pavlov-Sil’vanskii, Feodalizm v Rossii, Moskva, 1988 (orig. Sankt-Peterburg, 1910).

554

chapter 18

was difficult to justify on the basis of the available evidence, but the other view ran into ideological difficulties. Soviet historians agreed on the existence of a Russian state already in the 10th century, but that would require the existence of a ruling class of landowners. One way out was suggested by L.V. Cherepnin, who formulated the theory of “supreme state ownership of land” as a special Russian variety of early feudalism.18 Most leading Soviet historians of the time followed Cherepnin. A more drastic solution was offered by I.Ia. Froianov who advocated the view that feudalism only became the basis of Russia’s socio-economic system after the invasions of the Mongols in the 13th century. Gorskii, who was well aware of modern Western criticism of the feudalism construct, continued his argument by proposing to abandon feudalism as a conceptual instrument for analyzing early medieval Russian society and to turn instead to realia, to the actual information provided by the contemporary sources. In this respect he pointed to the abundant references to the role of the druzhina, the retinue or Gefolgschaft of the Kievan prince in the chronicles; also, the numerous princely officials appearing in the rp were to be regarded as members of the druzhina. The early Kievan state system was based on and run by a corporation, the druzhina with the prince as its head. Druzhina members constituted the administrative machinery and served as officials at the court, managers of the prince’s estate, military commanders, envoys, judicial personnel, and lieutenants of the princes in peripheral towns and districts. They were rewarded principally by being allotted a share of the revenues they collected. When they were serving as the prince’s representative in a particular district, they would be entitled to a part of the material yields of local agriculture, hunting, etc. Once such positions became permanent and then also inheritable, large-scale noble landowning came into being. The unpopularity of this approach in the past was explained by Gorskii by reference to the old view, propagated by the Primary Chronicle, of the Scandinavian origin of the druzhina. In order to belittle the importance of such a druzhina, pre-revolutionary Russian historians invented the category of indigenous boyars as the main source of the Kievan landowning class. Soviet historians perpetuated this myth with certain modifications. There are a number of refreshing aspects in Gorskii’s approach (which is shared by other modern Russian historians), such as the rejection of the sterile feudalism discussion and the emphasis on the importance of the druzhina. In his denial of the existence of a pre-Kievan landowning boyar class ­Gorskii ­appeared to follow the view which was most explicitly put forward by Froianov,

18

In “K voprosu o kharaktere i forme drevnerusskogo gosudarstva”, Istoricheskie Zapiski, No.89 (1972), 353–408.

Rural Russia

555

who stressed the absence of any evidence for such existence.19 The opposite opinion was represented most clearly by Iushkov: “But all this cannot overturn the completely correct view expressed with such force by M.N. Pokrovskii, that the origin of the boyars is mainly the large landowners, outside the druzhina organization.”20 Froianov argued that there could be no doubt that the boyars belonged to the druzhina, and he referred to three authorities, Presniakov, Grekov and his teacher Mavrodin.21 As the druzhina members owed their allowances, including the lands granted them, to the prince, it would follow that this would also apply to boyars as druzhina members; there is no evidence of boyar landowning before the second half of the 11th century. Kievan boyars, like other druzhina members, were first and foremost princely servants and officials. It is possible, Froianov allowed, that they were the successors in this respect of the old tribal elites, which left the stage of history as a result of the breakdown of the tribal system and the emergence of a new social organization. There are several weak spots in Froianov’s argument. Presniakov agreed that there was no evidence of boyar landowning for the early period, but added that it was apparently very common in the 12th century and would probably have been in existence for quite a while then;22 Grekov merely noted that the most prominent members of the druzhina were recruited from the ranks of the boyars;23 and Mavrodin actually held that boyar landowning was based in part on the old tribal elites and in part on druzhina members becoming boyar landowners.24 All that remains of Froianov’s argument therefore is the absence of direct evidence for boyar landowning in the early Kievan period, a distinctly weak position in view of the general scarcity of sources for the period concerned.25 19

“Boyar landowning did not arise before the second half of the 11th century.”, Froianov, Nachala, 557 (KRsp, 79); less outspoken A.Iu. Dvornichenko, Rossiiskaia istoriia s drevneishikh vremen do padeniia samoderzhaviia, Moskva, 2010, 153 (“Boyar landowning was also modest.”). 20 Iushkov, Ocherki, 143; Iushkov does not offer a reference, but a relevant passage may be found in M.N. Pokrovskii, Russkaia istoriia v 3 tomakh, Moskva/Sankt-Peterburg, 2005 (orig. 1905–1914), i, 29. 21 Froianov, Nachala, 558 (KRsp, 81). 22 Presniakov, Kn. Pr., 246. 23 Grekov, Kievskaia Rus’, 344. Grekov anyway accepted the thesis of the indigenous boyars, and explained his views in Kievskaia Rus’, 126–129. 24 V.V. Mavrodin, Obrazovanie drevnerusskogo gosudarstva, Sankt-Peterburg, 2008 (2nd ed., orig. 1945), 220. 25 A fundamental and critical review of Froianov’s theories in M.B. Sverdlov, Obshchestvennyi stroi Drevnei Rusi v russkoi istoricheskoi nauke xviii–xx vv., Sankt-Peterburg, 1996, 287–301.

556

chapter 18

Boyars are indeed absent in the Short Pravda, but they are mentioned in the treaties of 911, 944 and 971 with Byzantium. Their absence in the Short Pravda is easily explained by the character of this document. Its first part (the Pravda of Iaroslav) dealt primarily with the particular problems which had arisen in Novgorod between Iaroslav’s druzhina and the urban population; its second part (the Pravda of Iaroslav’s Sons) with the management and protection of the prince’s domain. Neither of these had any connection with boyar landowning, if it had existed at that time. Boyar landowning is evidenced by the Expanded Pravda, but, as authors such as Presniakov had already pointed out, more or less in passing, as a common phenomenon. In art. 1 (which parallels arts. 1 of the Short Pravda) the tivun boiaresk (the overseer or steward of a boyar) was inserted in a list of persons entitled to increased compensation. The Short Pravda only knew the tiun of the prince, one of the higher princely officials. The tivun boiaresk returned in art. 66 of the Expanded Pravda, which demonstrates that this official did not belong to the class of freemen: testimony of a slave was not to be accepted, but if no free person was available to testify, a boyar’s tivun could be referred to. Arts. 90–95 of the Expanded Pravda dealt with inheritance law. The estates of boyars and druzhina members did not revert to the prince, as did the estates of peasants, but were inherited by the sons and, in the absence of sons, by the daughters. Nobody has doubted that “estate” (zadnitsa: “what is left behind”) referred first of all to land.26 The fact that boyars and druzhinniki are mentioned separately supports the view that these categories were not identical.27 The block of provisions in the Expanded Pravda dealing with zakupy ­(“indentured labourers” in Kaiser’s translation, arts. 56–62, 64) does not explicitly mention large estates, but the relationships between a lord and his z­ akupy as outlined by these rules suggest that the lord (gospodin) in question was more than just a well-to-do peasant. The rules on zakupy belong most likely to the original content of the legislation of Vladimir Monomakh and are usually dated at 1116; the institution of zakupy must have been well established by that time. In view of the general scarcity of sources concerning pre-Kievan and early Kievan Russia, the absence of direct evidence of boyar landowning is quite insufficient to assert its non-existence in that period. Although hunting and fishing were important activities, domestic grains constituted the basic food 26 27

Cf. Baranowski, 604–626. The distinction, admittedly, could also be explained by regarding the boyars as senior, and the druzhinniki as junior members of the druzhina. Curiously, none of the numerous commentators of the rp have paid any attention to the matter.

Rural Russia

557

source. The presence of agriculture combined with extensive social stratification makes the absence of boyar landowning very unlikely. The material (archaeological) evidence, especially from an early East Slavic settlement area such as the Smolensk region, supports this view. Here a considerable number of remains of fortress-like character were found, together with comparatively rich grave contents, indicating significant social stratification.28 The presence of local boyars in the 12th century in the Russian North, both in Novgorod and in the Rostov-Suzdal’ principality, is confirmed by the chronicles. The position of these ‘urban’ boyars was based on their landed wealth, and not on any close connection with the prince, as members of his druzhina.29 The most acceptable construction, based on the material available, is that boyar landowning existed on a considerable scale among the East Slavic population at least as early as the 10th century. With the ascent of the Rurikid rulers, the indigenous elite was partly absorbed by the new elite consisting of the prince’s druzhina. The prince rewarded his followers in various ways, and the assignment of estates was one of them. Ultimately, the two groups of aristocratic landowners merged, although the distinction was apparently still remembered when art. 91 of the Expanded Pravda was drafted. Intense debates about the nature of early Kievan society have been going on for a very long time (see the relevant section in Chapter 12) and the issue of boyar or large-scale landowning is a prominent element of it. Once the dust has settled, one may conclude that differences of opinion have often been exaggerated and that there is also consensus on many points. The real problem is perhaps to establish when large-scale landowning arose and how important it was at a certain moment, instead of arguing whether it was there or not. For legal history these questions are in any case less urgent than for general history. It is also most likely, as several authors have argued, that large-scale landowning had come into being long before it was evidenced by written sources and that its operation was based on custom and customary law.30 The existence of private landowning on a considerable scale, after the rules concerning zakupy in the Statute of Monomakh (beginning of the 12th century), is documented by private charters dealing with land transactions, at first

28 29

30

L.V. Alekseev, Smolenskaia zemlia v ix–xiii vv., Moskva, 1980, 124, 132–134. Cf. Iu.V. Krivosheev, “Kniaz’, boiare i gorodskaia obshchina Severo-Vostochnoi Rusi v xii – nachale xiii v.”, I.Ia. Froianov (ed.), Genezis i razvitie feodalizma v Rossii, Leningrad, 1988, 111–123. E.g. N.F. Kotliar, “K istorii vozniknoveniia normy chastnogo zemlevladeniia v obychnom prave Rusi”, P.P. Tolochko (ed.), Drevnie slaviane i Kievskaia Rus’, Kiev, 1989, 147–154.

558

chapter 18

a trickle in the 12th and 13th centuries, a sufficient number for the 14th century, and abundant quantities for the following era. The oldest items are not surprisingly from the Novgorod area and are connected with monasteries. Two of them concern Antonii Rimlianin (“Anthony the Roman”), the abbot (since 1131) of the monastery of the Mother of God, who is mentioned several times in the First Novgorod Chronicle (from 1117 to his death in 1147).31 In one of them he donated some land and a village which he had purchased from other owners to the monastery; in his last will he bequeathed some land to the monastery, together with the dependent peasants.32 These two documents are known from 16th century copies, prepared for the monastery in an ownership dispute. Several authors have therefore regarded them (especially the sale charter) as fakes, but nowadays their authenticity is more generally accepted.33 The probable date of the testament is before 1131 and of the sale charter between 1135 and 1147.34 In a similar document from 1181–1182, a prominent Novgorod official, Ivan Fomin, donated extensive lands around Lake Onega to the Murom monastery, on the condition that prayers for himself and his parents were to be said.35 From the beginning of the 13th century there is the gift charter of Varlaam, by which he donated various plots of land and the dependent peasants to the Khutinsk monastery.36 Later in the same century there is the testament of Kliment, a wealthy Novgorod burgher, who died childless and donated most of his estate (including several villages) to the Iur’ev monastery, making provisions for his wife.37 Later on in the 13th century (1257), from the other end of Russia and from a different source, a charter of Oleg Ingvar’evich, grand prince of Riazan’, granted 31

On Antonii Rimlianin, see N.A. Makarov, “Kamen’ Antoniia Rimlianina”, Novgorodskii istoricheskii sbornik, 2(12), Leningrad, 1984, 203–211. 32 Texts in gvnp Nos.102 (gift) and 103 (testament), 159–161; also in prp ii, 106–107. 33 Especially after V.L. Ianin, “Novgorodskie gramoty Antoniia Rimlianina i ikh data”, Vestnik Moskovskogo universiteta, Seriia istoriia, 1966, No.3 and V.F. Andreev, Novgorodskii chastnyi akt xii–xv vv., Leningrad, 1986, 93–96. 34 Andreev, loc.cit. 35 gvnp No.283 (284); such a gift charter (dannaia) is called a vkladnaia. Ivan Fomin was the ‘mayor’ (posadnik) of Slavno, one of the quarters of the Eastern (‘Commercial’) half of Novgorod, on the right bank of the Volkhov river. 36 gvnp No.104, 161–162, and prp ii, 108 (comments by Zimin, 113). Zimin, following Tikhomirov, prefers the date of 1211 (death of Varlaam), instead of around 1192, as proposed by Valk in gvnp. The charter is original, the oldest extant private document in Russia. 37 gvnp No.105, 162–162, and prp ii, 108–110 (comments by Zimin, 114). The charter has the form of a gift, made in compensation of certain debts to the monastery, but from the contents it is clear that it was in fact a last will.

Rural Russia

559

Ivan Shain (of Tatar origin) a piece of land.38 The Hypatian version of the Primary Chronicle includes under the year 1287 what purports to be the text of the last will of prince Vladimir Vasil’kovich of Galicia, who died without issue and left his property to his wife and to the monastery of the Apostles.39 In his last will he stated that one of the villages was bought by him from Fedor Davydovich for 50 grivna. In another charter from Galicia, from around the end of the century, Lev Danilovich, prince of Galicia, granted two brothers from Lithuania the village of Dobanovich with appurtenances.40 Such charters, in which a prince granted villages and lands to individuals, remain comparatively rare in the 14th century,41 while other documents concerning land deals are more numerous: sale charters, gift charters, testaments, etc.42 The great mass of such charters is from the 15th and 16th centuries. The compound result of this long sequence of documents is that a strong case is created for assuming that private landowning on a significant scale (boiarskoe zemlevladenie, ‘boyar landowning’) existed in Russia from the 10th century, i.e. from the beginning of the historical period of Kievan Russia. For the 14th century, boyar landowning in Novgorod (i.e. the enormous territory of Northern Russia, controlled by Novgorod) was discussed in Chapter 16. The remaining territory, mostly Eastern and North-Eastern Russia, ‘Suzdalia’, the grand principality of Suzdal’-Rostov-Vladimir, the nucleus of the Muscovy state of the following centuries, is best documented through Moscow sources (Western and South-Western Russia having become more and more under the control of the Lithuanian-Polish rulers). Under the Vladimir-Moscow grand princes, the landowning balance between the prince and the boyars shifted in favour of the former. One of the 38

39 40

41

42

asei iii No.347, 373. This is a very early example of a grant charter (zhalovannaia gramota), included in a grant charter from 1556 and known from an 18th century copy. Several authors have regarded it as fake, but the author of the comments in asei (I.A. Golubtsov), following Iushkov, accepted its authenticity. prp ii, 27–28. My source is M.M. Peshchak, Hramoty xiv st., Kyiv, 1974, No.2, 11–12, who refers to Akty otnosiashchie k istorii Iuzhnoi i Zapadnoi Rossii, t.ii, Sankt-Peterburg, 1965, No.60, 101. Peshchak indicates a date “before 1301”; as Lev, who did not style himself king of Galicia, but “son of king Daniil”, ruled Galicia from the death of his father in 1264, some date in the last third part of the century is most likely. Peshchak has several examples from Western Russia (present-day Ukraine), such as No.12 (27–28), issued by king Casimir of Poland (some time after 1349) as the local ruler, in Russian and in the Russian style. For instance, asei i No.2 (26–27, a sale charter from 1380–1417), No.3 (27, a gift charter from 1392); asei iii No.292 (316–319, a testament from 1393). Numerous summaries of such charters in Russkii Diplomatarii, Nos.1, 2, 7 and 9.

560

chapter 18

factors in this development was the circumstances of exploitation of the land, which were different from those in the old Kievan territories. The introduction of agriculture in formerly forested areas required the recruitment of immigrant peasants (more on this in the section below on the status of peasants in later centuries). The Moscow princes were dominant players in this process, which also allowed them to accumulate very considerable holdings themselves. These lands were tilled in part by the prince’s own dependent peasants, partly were they granted to landowners as a reward for service as military or civil officials. A detailed analysis of princely and boyar landowning in the principality of Moscow at the time of Ivan i Kalita (†1340) by A.A. Iushko showed that while the villages (and the surrounding land) owned by Kalita and his relatives were spread out across the principality, the principal boyar families possessed large estates along the periphery of the principality and smaller holdings in the vicinity of Moscow.43 This is explained by Iushko by the requirements of the boyar households in the city of Moscow itself; the villages nearby would provide food, while the faraway estates constituted the basic source of the boyar’s wealth.

Landowning by the Church and Monasteries

Ecclesiastical landowning mainly concerned two groups of owners: monasteries and cathedral churches (in other words, bishops, or bishoprics or eparchies, as they are usually called in the Orthodox Church). Its beginnings are more easily dated than those of secular owners, because the Church would of course only appear as a landowner after the baptism of Russia. At first, the Russian Church received its income from the prince, by being assigned tithes from all princely income. This constituted the core provision (art. 2) of the earliest Russian law on the Church, the Church Statute of St. Vladimir; its second main element was the granting of general jurisdiction (and the income generated by it) to the Church over ‘church people’ (not only the clergy, but all kinds of persons in some specific way connected with the Church) and special jurisdiction (in various kinds of cases specified in the Statute) over the general population. At a somewhat later stage, the princes began to assign villages and land to the Church, initially in a moderate way and in addition to what was apparently the main source of income (the various tithes). The earliest examples are from 43

A.A. Iushko, Feodal’noe zemlevladenie Moskovskoi zemli xiv veka, Moskva, 2003, 176–177.

Rural Russia

561

Novgorod. Vladimir Monomakh, grand prince of Kiev, died in 1125 and was ­succeeded by his eldest son Mstislav. The latter had (as was usual for the eldest son of the prince of Kiev) served as prince of Novgorod, but had already placed his own eldest son Vsevolod on the throne of Novgorod in 1117. With the death of Vladimir Monomakh, Vsevolod became the regular prince of Novgorod, until he was expelled by the population of Novgorod in 1137. The oldest Russian charter which has survived in the original is the gift of the village of Buitse to the Iur’ev monastery in Novgorod. The gift is in the form of an order of grand prince Mstislav of Kiev to his son Vsevolod to effect this transaction. The most probable date is 1130.44 From about the same time are two charters by which the same Vsevolod Mstislavich donated some rural property to the Iur’ev monastery.45 Somewhat later, Vsevolod’s brother Iziaslav Mstislavich, then grand prince of Kiev, possibly in 1148 during a visit to Novgorod which was without a prince at that time, granted the Panteleimon monastery the village of Vitoslavichi and other lands.46 (See also the section on princely and boyar landowning in Chapter 16.) That such grants were not a local Novgorod phenomenon is proved by a Smolensk charter from about the same period. In connection with the establishment of a new bishopric for Smolensk, the Smolensk prince, Rostislav Mstislavich (brother of the above-mentioned Vsevolod of Novgorod), issued a charter analogous to the first Church Statute of St. Vladimir, in which the income of the Smolensk church was precisely listed (see the section on the Smolensk charters of prince Rostislav and bishop Manuil in Chapter 6).47 Along with tithes from a large number of districts, several villages with their dependent population, together with other pieces of land, were donated to the cathedral church.48

44

45 46 47

48

gvnp No.81, 140–141; prp ii, 102 (comments by Zimin, 110–111). The chronological window is between 1125 (death of Vladimir Monomakh) and 1132 (death of Mstislav); the probable dating of 1130 rests on the Novg. Chr. which reports that Vsevolod visited his father in Kiev that year. gvnp Nos.79 and 80, 139–140; prp ii, 103–104 (comments by Zimin, 111–112). gvnp No.82, 141; prp ii, 104–105 (comments by Zimin, 111–112). There are various views on the exact date of the charter of prince Rostislav of Smolensk, but the year 1136 seems to be the most probable, as argued by Ia.N. Shchapov in Kniazheskie ustavy i tserkov’ v Drevnei Rusi xi–xiv vv., Moskva, 1972, 140–150. prp ii, 39–43 (comments by Zimin, 45–52); also in Ia.N. Shchapov, Drevnerusskie kniazheskie ustavy xi–xv vv., Moskva, 1976, 140–146. English translation in Kaiser, Laws, 52–55. French translation in M. Szeftel, A. Eck, Documents de droit public relatifs à la Russie médiévale, Bruxelles, 1963, 287–299.

562

chapter 18

The 13th century offers a modest number of charters, documenting the ownership of land by monasteries and bishops;49 for the 14th and 15th centuries such documents constitute a massive body. Church property was obviously not subject to inheritance and often remained with its owner for centuries.50 Additionally, literacy was concentrated in monasteries and cathedral ­chanceries and promoted respect for written texts. These two factors adequately ­explain the numerical preponderance of documents with ecclesiastical connections. Wills, deeds of sale, and other documents concerning the landowning of noblemen would most often fall into disregard, be forgotten, abandoned or destroyed once they were no longer considered potentially relevant. Those that survived are usually the ones that ended up in monastic and cathedral archives. The complex of early grants of villages to monasteries has been the subject of heated debates with Froianov and Shchapov as the protagonists. Froianov, in line with his general inclination to move the inception of what he termed ‘feudal land ownership’ to a comparatively late date, argued (against Shchapov) that the early grants, such as those mentioned above, did in fact not transfer the ownership of villages and agricultural land to specific monasteries, but merely provided them with income from such villages and lands.51 Moreover, Froianov rejected Shchapov’s views on the assignment of tithes from tribute (dan’) to the church; such assignments, he stated, did not take place, and, anyway, tribute should not be considered as a feudal institution, but as a much more primitive one. Shchapov replied in a measured way in his 1989 study of Church-state relations in Kievan Russia.52 The debate, as so often during the Soviet era, seems to have been mostly about terminology (which was of course a matter of great weight in Marxism-Leninism). Our understanding of developments is not really advanced by disagreements about whether the assignment of the village of Buitse in the early 12th century constituted a transfer of ownership from the prince to the monastery or rather something else. Contemporaries would not have understood such a dilemma. There was a village over which the prince exercized a certain measure of control which yielded certain revenues to him. This control was passed to the monastery, the revenues included. Shchapov drew attention to the considerable differences between landowning by bishops and other secular church institutions (e.g. local churches) on 49

Such as the ones referred to above from gvnp Nos.104 (the gift of Varlaam) and 105 (the testament of Kliment) or from prp ii, 27–28 (the testament of Vladimir Vasil’kovich of Galicia). 50 Cf. Ia.N. Shchapov, Gosudarstvo i tserkov’ Drevnei Rusi x–xiii vv., Moskva, 1989, 87–90. 51 Froianov, Nachala, 399–412, at 405–407; Froianov, KRse, 178–197, at 185–188. 52 Shchapov, Gosudarstvo, 151–157.

Rural Russia

563

the one hand and landowning by monasteries on the other.53 For monasteries, ownership and utilization of agricultural land was the major source of income, while bishops had important other sources of income (tithes, court fees, market fees; see Chapter 21). While a monastery was subordinate to the local bishop in general, it was fully independent as a landowner. This also applied to individual churches in towns or villages, in respect of their holdings, which would usually be much more modest than those of monasteries. Land ownership by the church and especially by monasteries (by far the largest contingent of ecclesiastical landowners) also differed significantly from land ownership by boyars and other private individuals. The ownership of the latter was normally connected with service to the prince; also, private land ownership was subject to the vagaries of genealogy. Estates would be split up among heirs, other families would take over. With regard to monasterial land, ownership was in principle immutable. As long as the monastery existed and held on to its estates, no change in ownership would occur. Although landowning by monasteries is documented, as pointed out above, from the first half of the 12th century, and grew gradually in the course of the 13th and 14th centuries, its development increased spectacularly in the 15th century as part of the spread of monasticism prompted by the foundation of the Trinity monastery by Sergii of Radonezh in the latter half of the 14th century (see Chapter 21). Several mutually reinforcing factors contributed to this development. The achievement of all-Russian hegemony by the grand princes of Moscow together with the eastward expansion of Muscovy opened up vast tracts of land suitable for exploitation, either for agriculture or for forestry. The stability of monasterial land ownership and its management by the monks had also proved to be more economically effective than other forms of landowning. The comparative wealth of monasteries had given them the means for the investments required by the exploitation of new territories. In the vast expanses of the Russian North and East the monasteries functioned not only as the major agents of agricultural development, but also as the de facto representatives of the state. For the Moscow grand prince, this set-up was preferable to the ‘feudalization’ of the new lands, assigning them to boyars and other landowners who might not have the means and the inclination to engage in the most productive use of the land. The legal framework of this development had its own peculiarities.54 The initial way of acquiring landed property, in the case of monasteries, was by 53 Shchapov, Gosudarstvo, 87–90. 54 The most extensive treatment of the legal aspects of the acquisition of land by the monasteries in A.A. Zimin, Krupnaia feodal’naia votchina i sotsial’no-politcheskaia bor’ba v Rossii (konets xv–xvi v.), Moskva, 1977, 189–207.

564

chapter 18

means of grants (zhalovanie). Such grants, made by the prince, were usually accompanied by additional privileges in the sphere of jurisdiction and taxation. The lands granted, together with the population settled on it, would often be excluded from the jurisdiction of the general courts in a number of specific instances (nesudimye gramoty); they could also be granted immunity from particular taxes (tarkhannye gramoty); see also Chapter 11. The monasteries in this way acquired the character of miniature states, ruled by the abbot. The TroitseSergiev monastery at one time was the biggest landowner in Russia, after the grand prince (the state) himself. Princely grants of land often accompanied the foundation of a monastery. In  time, however, lands acquired from other landowners became the chief source of the monasteries’ landed wealth. Acquisition was mostly on the basis of a gift or grant (vklad), with purchase and barter as additional means of enlarging the monasteries’ holdings. The large number of documents embodying such contracts offers a detailed picture of the various backgrounds of these contracts. The first thing to be kept in mind is that medieval man was concerned with looking after his interests not only in this life, but also, and even more, in the life hereafter. This could be done effectively by making sure that prayers would be said for the repose of his soul and a monastery was a good place to turn to; it would probably continue to function for a long time and praying for others was one of the basic duties of the inhabitants of the monastery, monks or nuns. Most landowners with sufficient wealth would therefore in their lifetime or upon death make some sort of gift to a monastery. This could be, for instance, a plot which for some reason was less valuable to the owner, barren or remote lands, isolated plots acquired by inheritance, etc. The monasteries accumulated in this manner a mass of disconnected bits of land, and that was where purchase and barter could come in as a means for rearranging and streamlining the ownership pattern. Of far greater economic importance to the monastery was another type of grant, the one made by a person who left his or her entire estate to the monastery. The most typical situation was where there were no sons or other obvious heirs, but other circumstances could also prompt a person to opt for this procedure. The disposition could be made when a person was reaching the end of his or her life, or when a person for other reasons did not want to continue to manage his/her estates; a childless widow might enter a convent and simultaneously grant her worldly goods to the convent. There could also be preponderant economic considerations for making over one’s goods to a monastery, for example when the gift was part of a more comprehensive package by which the donor would also enter the service of the monastery and continue to manage the estates he had made over. During the 15th and 16th centuries a new

Rural Russia

565

­ ractice arose by which the use of monasterial or church land was granted to p small landowners for a specific time or for lifelong use.55 The multitude of motives for making over land to a monastery, apart from the desire to create a spiritual ‘insurance’ for the life hereafter, offers a remarkable insight into the socio-economic dynamics of the times and has spawned numerous academic publications.56 The practice of transferring landed property to a monastery by means of a grant (vklad) was finally forbidden in 1580 by a decision of the Holy Council, dictated by Ivan iv the Terrible.57 Peasants Not surprisingly, the mass of the rural population was also the least visible. Such gaps in our knowledge are often filled by a priori constructs. The most common one is that before ‘feudalization’ set in, simpler societal forms, c­ haracterized 55

56

57

See M.S. Cherkasova, “Formy raschlenennoi sobstvennosti v votchine Troitse-Sergieva monastyria xv–xvi vv.”, A.A. Preobrazhenskii (ed.), Feodalizm v Rossii. Iubileinye chteniia, posviashchennye 80-letiiu so dnia rozhdeniia akademika L’va Vladimirovicha Cherepnina, Tezisy dokladov i soobshchenii, Moskva, 1985, 41–44. The basic collection of charters (1382–1505/6) concerning the land holdings and management of the Troitse-Sergiev monastery is in Vol.1 of asei and for the years 1505–1526 in S.B. Veselovskii (comp.), Akty Russkogo gosudarstva 1505–1526 gg., Moskva, 1975. Additional studies and materials: M.S. Cherkasova, Zemlevladenie Troitse-Sergieva monastyria v xvi–xvii vv., Moskva, 1995, also of L.A. Kirichenko, Aktovyi material Troitse-Sergieva monastyria 1584–1641 gg. kak istochnik po istorii zemlevladeniia i khoziaistva, Moskva, 2006. The same topic concerning the Simonov monastery in Moscow is dealt with by L.I. Ivina, Krupnaia votchina Severo-Vostochnoi Rusi kontsa xiv – pervoi poloviny xvi v., Leningrad, 1979. A.A. Zimin, Krupnaia feodal’naia votchina i sotsial’no-politicheskaia bor’ba v Rossii (konets xv–xvi v.), Moskva, 1977, is devoted to the Iosifo-Volokolamskii monastery. Other studies: N.A. Gorskaia, Monastyrskie krest’iane Tsentral’noi Rossii v xvii v. O sushchnosti i formakh feodal’no-krepostnicheskikh otnoshenii, Moskva, 1977; L.I. Ivina, Vnutrennee osvoenie zemel’ Rossii v xvi v., Leningrad, 1985 (monasteries in the Uglich, Galich and Vologda regions); G.N. Aiplatov, A.G. Ivanov, Monastyrskaia kolonizatsiia Mariiskogo Povolzh’ia. Po materialam Spaso-Iunginskogo monastyria Kosmodem’ianskgo uezda 1625–1764 gg., Ioshkar-Ola, 2000 (monastery in Mari republic); V.I. Ivanov, Monastyri i monastyrskie krest’iane Pomor’ia v xvi–xvii vekakh: mekhanizm stanovleniia krepostnogo prava, Sankt-Peterburg, 2007 (monasteries in North-Western Russia); M.M. Dadykina, Kabaly Spaso-Prilutskogo monastyria vtoroi poloviny xvi–xvii v. Issledovanie. Teksty, Moskva/Sankt-Peterburg, 2011 (Spaso-Prilutskii monastery near Vologda). prp iv, 527 (Ch. 13, art. 164 of the Svodnyi Sudebnik).

566

chapter 18

as familial-tribal (rodoplemennyi) or clan-familial (obshchinno-rodovoi), were dominant. The conclusion drawn from this is that in pre- and protohistorical times the Eastern Slavs lived in a society constituted by groups based on family ties and consisting of free men, tilling the communal land and tending their cattle. The available circumstantial evidence may then allow us to make corrections to this general picture. Foreign sources indicate that in the centuries preceding the baptism of Russia, the degree of societal organization was actually more complex. At that time the Eastern Slavs were seen to foot entire armies, commanded by dukes or princes (kniaz’ia) and able to take on the might of the Byzantine empire. Moreover, there were, along with free citizens, slaves, although their economic roles (as discussed above) are difficult to establish with certainty. In particular, the available sources are not very helpful is acquiring a clear picture of the situation in rural areas. Did the majority of the rural population consist of free peasants, were slaves attached to small peasant households, or were they mostly found on the domains of wealthy landowners? The information offered by chronicles and the sparse legal sources have been used by the proponents of various theories to produce divergent answers to these questions. The purpose of this section is to have a closer look at the rural population of medieval Russia and its composition. A more detailed discussion of the various aspects of the legal status of the common people, irrespective of their place of habitation, is to be found in Chapter 19. Slaves: Cheliad’, Kholopy The general question of slavery is discussed in Chapter 19. In the earliest ­(pagan) era slavery existed in its ‘classic’ form: the slave as a thing, a commercial item, when the slave trade and enslavement for commercial purposes constituted a major economic activity. The presence of slaves in the countryside, as part of the agricultural workforce, was a secondary phenomenon. The 10th century treaties with Byzantium are representative of this phase; in the rp a transition becomes noticeable when the importance of slaves as part of the workforce was increasing. This is probably reflected by the co-existence, in the oldest Pravda (Iaroslav’s Pravda), of the terms cheliad’ (arts. 11 and 16) and kholop (art. 17), the former suggesting primarily the slave as a commercial item, the latter, as a worker.58 The second part of the Short Pravda, the Pravda of 58

Baranowski, 240, notes the unique appearance of kholop in Iaroslav’s Pravda, without explaining it or referring to explanations by other authors. The only attempt at an explanation I found was in Zimin’s comments in prp i, 93, who suggested that cheliad’ had come to mean the entire mass of the ‘feudally-dependent’ population and that therefore

Rural Russia

567

Iaroslav’s Sons, only mentioned the kholop (arts. 26 and 29). As that text was directed mainly towards the protection of the prince’s domain and its management, it is obvious that the kholopy mentioned there were members of the rural population. Art. 46 of the Expanded Pravda referred to kholopy belonging to the prince and in addition also to kholopy belonging to boyars and monasteries. One may conclude therefore that in view of the presence of private landowning in the course of the Kievan era, slaves constituted a significant element of the rural population. Smerdy in the Short Pravda But what about other peasants, not being slaves? Their presence and even their numerical dominance in the countryside are often assumed on the basis of a general conception of Kievan Russian society, although the evidence is unimpressive. The smerd, mentioned three times in the Short Pravda (arts. 26, 28 and 33) and four times in the Expanded Pravda (arts. 16, 45, 78 and 90), is often regarded as the ordinary peasant of Kievan times. Art. 28 of the Short Pravda is of less importance in the present context (it deals with fixed compensation for damage to or loss of animals and mentions, among others, a horse belonging to the prince and a horse belonging to a smerd, valued at three and two grivna respectively). Art. 33 penalizes serious mistreatment (‘torture’) of a smerd or of higher princely servants without the permission of the prince; this suggests that the smerd mentioned in this provision was a peasant who belonged to the prince’s domain, not just any peasant, but this view is not uncontested.59 That the kholop of the rp was a slave is beyond doubt and that the smerd was not a kholop is made clear by art. 26 of the Short Pravda, one of its shortest provisions (“And for the smerd and for the kholop, 5 grivna.”), but also the object of much scholarly comment.60 It would be tempting to read the provision as covering the entire common population of the countryside, slaves and others, free

59 60

another term was required; this is all by itself unsatisfactory, but if one adds an observation made by Shchapov in his comments in rz i, 57, a solution compatible with my views emerges. Shchapov noted that the kholop of art. 17 of the Short Pravda had developed from a plain asset into somebody who was on the way to being a legal subject. This agrees with my suggestion that kholop referred in particular to a member of the (usually agricultural) workforce, who still possessed the status of a slave, but whose value as a worker overshadowed his value as a commercial item. See also A.A. Zimin, Kholopy na Rusi, Moskva, 1973,368–369. Cf. Baranowski, 302–305. Cf. Baranowski, 279–289. Like Baranowski, I concur with the majority view of modern scholarship, as outlined below.

568

chapter 18

or partially free peasants, but most modern commentators (since Presniakov and Iushkov61) reject this reading, for various reasons. Art. 26 is part of a long list of officials and persons connected with the prince’s domain, whose killing entailed the payment of fines of different amounts (bloodwite). The highest sums related to the killing of the prince’s highest officials (80 grivna), twice the amount of wergeld to be paid for the killing of an ordinary freeman (as set down by art. 1 of the Short Pravda). The killing of lower officials entailed a bloodwite of 12 grivna, and the lowest rate was 5 grivna. This list is followed, quite logically, by various fixed amounts for damaging the property (animals) of the prince. The entire context suggests strongly that the smerd of art. 26 was not just any ordinary peasant, but somebody of low status (same bloodwite as a slave), who was not a slave, and who was part of the system of the princely domain. This suggestion is reinforced by art. 33 of the Short Pravda, which directs that torturing a smerd (evidently in connection with the acquisition of evidence) without the prince’s permission entailed a fine of 3 grivna, while the same offence committed in respect of higher princely officials (ognishchanin, tivunits and mechnik) merited a fine of 12 grivna. Another reason advanced by several authors for not identifying the general peasant population of the era of the Short Pravda as smerdy is the relatively early disappearance of the term. Unlike kholop and kholopstvo, which still figure in the Code of 1649 of tsar Aleksei, smerdy had already become a rare occurrence in the 14th century.62 This may lead to the conclusion that the smerd of the rp was not an ordinary peasant, but referred to a specific legal institution which became obsolete in the following centuries. These arguments raise two new questions: What characterized the legal status of the smerd of the Short Pravda, apart from his not being a slave? And: What about the rest of the peasant population, those who were not slaves or smerdy on the prince’s lands? For the first question, the theories developed by Froianov are of particular interest. According to him, a careful reading of the chronicles shows that in the earliest historical period the prince made his round during the winter to collect a head-tax (poliud’e) among his own free subjects. The poliud’e must be distinguished from tribute (dan’, lit. ‘gift’), payable by subjugated foreign peoples (danniki). The original smerdy were members of non-Slavic (mostly Finnish) peoples, inhabiting the forested regions 61 Presniakov, Lektsii i, 190;Iushkov, Stroi, 287–305. Baranowski follows Iushkov’s argument on this point, 285. 62 They still appear in treaties between Novgorod and princes in the 15th century, but in formulas which have been taken over from old treaties; the term smerd was probably already obsolete at that time.

Rural Russia

569

into which the Eastern Slavs were gradually penetrating; they were also subject to tribute. At a later stage, prisoners-of-war were also settled as dependent peasants on the land of the prince, constituting a second source of the smerdy population.63 Although Froianov’s theories may satisfactorily explain certain obscure aspects of the sources, they also leave other matters in the dark. As we have seen (in the section on tribute and inter-tribal relationships), almost all Eastern Slav tribal complexes ended up as tributaries to the Kievan rulers in the period before Iaroslav the Wise. They had the status of danniki, but nobody would hold that the entire population of the Kievan realm, with the exception of the Polianians, consisted of smerdy. So, who then were the smerdy of the Short Pravda? The various Finnish ethnic components, mentioned in the Chronicle in this period (Chud’, Mer’, etc.)? Such a hypothesis is unsubstantiated. There were slaves (cheliad’) in those days, and they normally had their origin in the taking of prisoners, but the Short Pravda clearly distinguished them from smerdy. And when did slaves (former prisoners or their descendants) acquire the status of smerdy, which involved their recognition as persons with limited rights? A partial and tentative answer to some of these questions may be produced by combining the two views sketched above. The smerdy of the rp were primarily dependent peasants employed in the agricultural economy of the prince; later on they also appeared as a workforce on boyar domains. The extension of the territory controlled by the Kievan princes resulted in the rapid increase of princely domains, their potential for agricultural exploitation, and the concomitant need for an adequate workforce. Such a force could be recruited from the more defenceless sections of the population of the annexed territories. The Chronicle’s story of the treatment Olga meted out in 946 to the defeated Derevlian townspeople of Iskorosten’ offers a clue; some were killed, others taken prisoner, given away as slaves to her retainers, or left free and subjected to tribute. While in the past prisoners-of-war would be killed or sold as slaves and perhaps a few retained as household staff, the emerging new conditions made it more expedient to leave most of the rural population of newly acquired territories on their lands and expropriate part of the proceeds from their normal activities through the payment of dan’ (tribute). Some sections of this population, instead of being subjected to the more general regime of tribute payment, would have the harsher regime of becoming smerdy imposed 63 Froianov, Nachala, 437–450, and KRse, 233–250. In the main question (that smerdy represented a special category of the peasant population) Froianov followed Iushkov, but the two differ on what to them was an important point of Marxist scholasticism, the question whether smerdy were paying tribute or feudal rent.

570

chapter 18

on them. They would lose much of their freedom and most of them would presumably be employed on the land they used to till in the past. Once this system was in operation and had proved to be effective it could have been extended to former slaves and to members of non-Russian populations. Verv’, Liudi The two versions of the rp offer several pointers for answering the second question formulated above, concerning the status of ordinary peasants, not being slaves or smerdy. They both refer to communities of ordinary people as legally relevant actors. The Expanded Pravda is the more specific, especially where it deals with the verv’ (arts. 3–6, 19 and 70).64 Arts. 3–6 concern the liability of the verv’ for the payment of bloodwite for a homicide committed on its territory and/or by a member of the verv’. Without getting into a discussion of the substance of these provisions, one may conclude from these provisions that the verv’ represented a circumscribed local community consisting of the resident freemen.65 The term is found only in the Expanded Pravda, not in the Short Pravda,66 but arts. 7 and 8 of the Expanded Pravda use liudi (“the people”) where clearly the verv’ is meant, and arts. 19 and 20 of the Short Pravda use liudi in provisions which to some extent parallel art. 3 of the Expanded Pravda (in art. 20 only implicitly). This justifies the conclusion that liudi in the rp (at least in most provisions) is synonymous with verv’.67 The singular of liudi (liudin) appears only once, in art. 3 of the Expanded Pravda, where every commentator accepts the meaning of “ordinary freeman”. This confirms the idea that the normal position of a freeman is not that of an isolated individual, a citizen, but of the member of a local community. 64

65 66

67

The term also appears in legal sources of other Slavic peoples, e.g. the Statute of Polica in Dalmatia; see B.D. Grekov, “Politsa. Opyt izucheniia obshchestvennykh otnoshenii v Politse xv–xvii vv.”, Izbrannye Trudy, T.I, Moskva, 1957, 111–266. Verv’ also appears with the meaning of “rope” in the Primary Chronicle, and is the origin of the Modern Russian word for rope, verëvka. Kaiser translates it as “community”, Szeftel as “commune”, Baranowski as “Gemeinde”. See also Froianov, Nachala, 349–355 and Froianov, KRse, 22–32. Art. 20 of the Short Pravda directed that the bloodwite was to be paid by those “in whose «community» the head lies”. For «community», the Academic Copy has vi*r**i (the asterisks referring to erased letters), and the Archeographic Copy vernei. Most commentators and translators have regarded this term as equivalent or even identical to the verv’ of the Expanded Pravda. Instead of vernei or virnei (the most likely readings), one should then read vervi, and the rule would then closely parallel art. 3 of the Expanded Pravda. In the 944 treaty with Byzantium, liudi is used in the sense of “the whole population [of freemen]” (“prince Igor, his boyars, and the liudi of the whole Russian land”).

Rural Russia

571

The various rules about the liability of the verv’ for its individual members and for crimes committed on its lands allow us to achieve a more concrete visualization of it. It cannot have been very large, because this would have made it impossible to establish the individual contributions of its members; an upper limit somewhere around 100 individuals seems to be reasonable. The status of these ‘members’ would probably have been more or less equal, considering that they apparently contributed equally to the payments to be made by the verv’. The territory of the verv’ must have been circumscribed in some way, because of its liability for things happening on its territory. Art. 8 of the Expanded Pravda provided that if somebody did not contribute to the bloodwite system of the verv’, the latter would not assist him, apparently in a situation where the unwilling verv’ member had to pay bloodwite himself. This implies that there was an optional element in verv’ membership, although how exactly it operated is not clear from the text of the provision. This would agree with the assumption of many authors that the verv’ had developed as a continuation of older communities, based on close family ties (semeinaia obshchina) or wider connections of consanguinity (rodstvennaia obshchina), by including also unrelated neighbours, maintaining all the time its territorially defined aspect.68 The almost inescapable conclusion from all this is that the verv’ constituted the basic organizational form in which ordinary (free) peasants appeared in Kievan Russia.69 Smerdy in the Expanded Pravda Of the four provisions of the Expanded Pravda which mention smerdy, art. 16 closely parallels art. 26 of the Short Pravda70 and arts. 45 and 78 are related to 68 69

70

Cf. Froianov, loc. cit. Art. 13 of the Short Pravda dealt with the situation where a person recognized his own property (which he had in some way lost) in his own mir; this obviously meant: his own surroundings, his village, the place where he lived. It is the only time mir is mentioned in the rp, and its meaning is probably synonymous with verv’ in a territorial sense. Art. 16 of the Expanded Pravda added the female slave (roba) to the smerd and the kholop of art. 26 of the Short Pravda; the bloodwite for a female slave was six grivna, one more than for a male slave. A more serious potential divergence between the two provisions is in a reading which merges the smerd and the kholop as smerdii kholop, where instead of the noun smerd the adjective smerdii is accepted. The absence of spaces between words in most copies of the rp produces the following variants: Av”smerdeiv”kho[lo]pe (Short Pravda, Acad. Copy), Av”smerd’ivkholope (id., Archeogr. Copy), Azasmerdiikholop” (Expanded Pravda, Troitsa i Copy and most others), Azasmerd”ikholop (id., Obol. Copy of the 2nd half of the 15th century). A few authors read (and translate) smerdii kholop in the Short Pravda, but this is rejected by most authors. There is a much greater following for

572

chapter 18

but quite different from arts. 28 and 33 (resp.) of the Short Pravda. Art. 90 starts the long section on inheritance law, which is missing in the Short Pravda. Art. 45 of the Expanded Pravda, like art. 28 of the Short Pravda, set fixed amounts for theft or loss of various domestic animals; however, it did not mention the horse of the smerd, but stated at the end of the list: “these then are the fees the peasants [smerdom] are to pay [as compensation to the animals’ owners] when they pay a fine to the prince” (Kaiser’s translation). Much is unclear in this provision, but at least it distinguished clearly between the legal status of smerdy and of slaves, who were specifically exempted from paying such fines (prodazhi) to the prince by the following art. 46. Art. 78 of the Expanded Pravda dealt with the torture of a smerd (as mentioned above, this was probably torture for the purpose of acquiring evidence), as in art. 33 of the Short Pravda, but was specifically aimed at smerdy who committed such offences; it entailed a fine to the prince (3 grivna) and compensation (to the victim obviously); if the victim was an ognishchanin (princely official), the amounts were increased. Art. 90 provided that upon the death of a smerd, his estate escheated to the prince, but if daughters were still at home, they should be given a part of the property. All four provisions comfortably fit the view that smerdy were peasants who were dependent of the prince, who were part of the prince’s economy. Regarding smerdy as a general designation of peasants unnecessarily complicates the understanding of these rules. This does not mean that the socio-economic situation of smerdy remained unchanged during the period between the Short and the Expanded Pravda, but the exact consequences of certain trends are hard to identify and the main elements of the arrangement stayed in place.71 Smerdy in the Chronicles Smerdy appear occasionally in the chronicles and it is worthwhile comparing this information with the understanding of the term based on the rp. The first

71

this reading where the Expanded Pravda is concerned. The reading of smerdii kholop creates itself new problems; is he a slave who belongs to a smerd or is he a slave of a special category, similar in some way to a smerd? Without delving deeper into this matter, I associate myself with the more straightforward position of those who reject the reading of smerdii kholop (including the translations of Kaiser and Baranowski). I.I. Smirnov in particular has proposed detailed hypotheses about certain shifts in the position of smerdy in the course of the 12th and 13th century; “Problema «smerdov» v Prostrannoi Pravde”, Istoricheskie Zapiski, T.64 (1959), 255–302, and “K probleme «kholopstva» v Prostrannoi Pravde. Kholop i feodal’naia votchina”, Istoricheskie Zapiski, T.68 (1961, 238–270.

Rural Russia

573

time smerdy are mentioned in the Primary Chronicle is under the year 1071. Sviatoslav, one of the sons of Iaroslav the Wise, and at that moment prince of Chernigov, had sent his general Ian Vyshatich to the Beloozero region to collect tribute. The local people complained to the latter about two wandering sorcerers who had killed many women as a cure against a famine. Ian inquired whose smerdy the sorcerers were and when he learned that they were the smerdy of his own prince, he had them killed, even though they protested that he had no right to condemn them, insisting that they ought to be tried by Sviatoslav himself. Iushkov read this passage as an indication of the narrow interpretation of the term: the sorcerers were peasants who were attached to the domains of Sviatoslav.72 A less narrow reading (that they were just peasants) seems equally acceptable, although this does not quite answer the question of jurisdiction, which obviously was an issue. Sviatoslav clearly claimed certain rights in Beloozero, having sent his general to collect tribute, but the text suggests that this would not be enough for his general to exercize jurisdiction locally. Perhaps it was established that the sorcerers had come from lands fully controlled by Sviatoslav; the Chronicle text is silent on this point.73 In 1101, in one of the frequent episodes of war and reconciliation among the princes, one of the sides is instructed to return the slaves (kholopy) and peasants (smerdy) of the other side. This would rather speak in favour of the narrow interpretation. But an entry in the Primary Chronicle for the year 1103 goes in the opposite direction. The story relates how the princes Sviatopolk (then grand prince of Kiev) and his cousin Vladimir Monomakh met to discuss a campaign against the Polovtsians. Sviatopolk’s druzhinniki objected to a spring campaign, pointing to the damage it would do to the smerdy and their fields. Vladimir retorted that precisely in spring when the smerd would start ploughing, the Polovtsians would come, kill him, seize his horse, and carry off his wife, children and all his property. In the First Novgorod Chronicle smerdy are mentioned occasionally (e.g. 1169, 1193 and 1229) and a general reading as “peasants” or even “subjects” appears to be the most satisfactory. Zakupy and Other Dependent Peasants Along with the presumably numerous persons falling within the broad categories of smerdy, kholopy, cheliad’ and roby, the rp also mentions several other, more specific categories of rural dwellers. 72 Iushkov, Stroi, 294–295. 73 Cross and Sherbowitz-Wetzor simply translate smerdy as “subjects”. See also A.A. Zimin, Kholopy na Rusi, Moskva, 1973, 111–112.

574

chapter 18

Among the persons connected with the prince’s domanial household, listed in the first half of the Pravda of Iaroslav’s Sons, we find the contract labourer (riadovich, a person with whom a riad, a contract, has been concluded), in art. 25 of the Short Pravda and art. 14 of the Expanded Pravda. The Short Pravda specifically designated him as “the prince’s contract labourer”, which agrees with the original purpose of the list: the protection of the princely economy. The Expanded Pravda simply called him “the contract labourer”, and then added: “The same also applies to the contract labourer of a boyar”. These two short provisions show that along with ordinary slaves and smerdy (dependent peasants), the prince was already supplementing his labour force at an early stage with free peasants who were working for him on a contractual basis. At the time of the Expanded Pravda, boyars had also started to make use of this opportunity. The low status of the contract labourer was reflected in the same bloodwite assigned to his killing as for smerdy and slaves (5 grivna). Of much greater prominence were the zakupy (“indentured laborer” in Kaiser’s and Vernadsky’s translations), to whom a whole block of provisions in the Expanded Pravda is devoted (arts. 56–64). Most authors agree that this coherent complex is in fact a “law on the zakupy”, introduced by Vladimir Monomakh in 1113, the year he succeeded as grand prince of Kiev after the usual dynastic troubles and in a climate of great social unrest. Kiev had been the theatre of a popular uprising and the law on the zakupy was intended to address the most urgent grievances of the common people.74 A full explanation of the zakupy question is complicated by the fact that the Expanded Pravda is virtually the only source;75 the zakupy disappear as suddenly as they entered the stage, although similar arrangements are encountered in later centuries, but under a different name. The available material on zakupy is still substantial and allows a few conclusions which command general approval, although many aspects remain disputed. While the zakup could also be found in towns, he was typically a dependent peasant, and for that reason he is discussed here.76 The rules of the Expanded Pravda show that the zakup was in a relationship of great dependence on his master, while he was not a slave. He would become a slave when he stole from 74

Cf. Tikhomirov, Issledovanie, 204–211; A.A. Zimin, Pravda Russkaia, Moskva, 1999, 254; Froianov, Nachala, 450–460 (KRse, 251–266). 75 The zakup is mentioned in passing in art. 18 of the Court Charter of Pskov and in art. 30 of the Metropolitan’s Justice, which suggests that the institution survived for quite a long time, without leaving many traces. 76 Art. 57 mentions the roleynyi zakup, the “field zakup”; there are various interpretations (a peasant zakup vs. a domestic zakup, a zakup working his own field vs. a zakup working his master’s field, etc.). It still does not alter the fact that the zakup was basically a rural phenomenon. Cf. Baranowski, 515–517.

Rural Russia

575

others (art. 64) or when he ran away from his master, but if he left openly for a valid reason (e.g. to find money [secure a loan?], or to complain to the prince or to the court about his master) this result did not arise (art. 56). Several other provisions attempt to define to what extent the zakup was answerable for damaging his master’s property. He was obviously someone who entered the state of zakup as an indigent and who was provided with working animals and tools by his master (art. 57). The essential component of the relationship, however, was the kupa given by the master to the person entering his service as a zakup. This term is mentioned in arts. 57 and 59, but neither provision allows an immediate understanding of it. Most modern commentators regard the kupa as a loan to the zakup, consisting of money, land, animals, or other assets.77 The typical situation appears to have been a completely impoverished peasant, who had no other choice in order to survive than to accept whatever was offered to him. His term of service would last until the loan had been paid back. Art. 61 obliquely refers to this by freeing the zakup of all money debts (svoboda vo vsekh kunakh) if the master sold him as a slave; additionally, the master paid a fine of 12 grivna (to the prince). This understanding of the relationship based on the allowance of a kupa to a needy person permits a satisfactory and coherent explanation of the “law on zakupy” in the Expanded Pravda. The person entering zakupnichestvo was free, but gave up most of his freedom by becoming a zakup. The law protected him against serious maltreatment and abuse by his master. Art. 66 of the Expanded Pravda neatly demonstrates the intermediate status of the zakup; the provision dealt with the capacity to testify. Slaves were in principle excluded, but if no free man was available, a boyar’s steward (tivun boiaresk, obviously an unfree person) could serve. Zakupy could give evidence in cases of small value. The main question remaining unanswered is the nature of the pool from which zakupy were recruited. If smerdy is taken as a designation of the general peasant population (free and unfree), then the zakupy would be impoverished free smerdy. If smerdy is understood in a narrower sense of semi-dependent peasants connected with princes’ (and later on also boyar and monastery) households, then this category would probably not have been the source of new zakupy, inasmuch as they lacked sufficient freedom to enter into such a relationship. In either view, the prospective zakup would be a member of the free peasant population who would normally be included in a local ­community (obshchina, verv’). The emergence of the zakupnichestvo ­arrangement (obviously in the course of the 11th century) would then indicate that such ­traditional communities had weakened to the extent that they did not offer their indigent members the most elementary protection. Another possible r­ ecruitment pool 77

Cf. Baranowski, 519–522.

576

chapter 18

for new zakupy would be the category of persons who had lost their social anchor, either as members of a community or as protégées of powerful masters, the izgoi, once they were economically unable to carry on (on izgoi, see the relevant section in Chapter 19). Art. 61 uses the terms zakup and naimit as synonyms. Naimit means “hired person, hireling”; it returns only in arts. 39–41 of the Court Charter of Pskov. There is much similarity between the zakupy of the Expanded Pravda and the zakladniki, encountered in a range of treaties between Novgorod and the neighbouring princes of Tver’ in the period between 1264 and 1371.78 The basic rule on zakladniki in these treaties was that the prince of Tver’ undertook, on behalf of himself, his family and his boyars, not to accept indentured servants (Kaiser’s translation of zakladniki). What is implied is that Novgorod boyars employed persons who had temporarily abandoned most of their freedom in exchange for a loan. They were keen therefore to stem the flight of such persons to the adjacent territory of Tver’. Some of the treaties mention specifically the regions of Torzhok and Bezhitsy, bordering on the Tver’ principality. Several treaties provide more detail by directing that zakladniki from the ranks of (Novgorod) merchants should be returned to their ‘hundreds’, the organizational unit of Novgorod merchants, while the smerd should be returned to his pogost (rural settlement).79 In his comments Zimin80 refers to a (draft) treaty between Novgorod and the Polish king Kazimir iv of 1470–1471, in which the king undertook not to allow (certain dependent persons, as implied) to leave Novgorod territory, nor slaves (from Novgorod territory) to be handed over as a pledge or gift (a cheladi ne zakupati, ni darom ne primati).81 The words confirm the similarity of zakupy and zakladniki. The stipulations concerning zakladniki even survived the downfall of the Tver’ principality and were included in Novgorod’s treaties with Moscow, right down to the final one, the Korostyn treaty of August 1471.82 78

79 80 81 82

Treaties of 1264 (gvnp No.1, 9–10; prp ii, 134–135; English translation, Kaiser, Laws, 67– 68); 1266–1267 (gvnp No.2, 10–11; prp ii, 137–138); 1270 (gvnp No.3, 11–13; prp ii, 138–141); 1296–1301 (gvnp Nos.4–5, 13–15); 1304–1305 (gvnp No.6, 15–16; English translation, Kaiser, Laws, 69–71); 1304–1305 (gvnp No.7, 16–18); 1307–1308 (gvnp Nos.9–10, 19–22); 1326–1327 (gvnp No.14, 26–28; English translation, Kaiser, Laws, 72–74); 1371 (gvnp No.15, 28–30; English translation, Kaiser, Laws, 75–78). See Zimin’s comments in prp ii, 146–147, 152, 157. Loc. cit., 147. Text in prp ii, 247–251. Also gvnp No.77, 129–132. See also Cherepnin, Arkhivy i, 363–369. Zakladniki were included in the Novgorod-Moscow treaties of 1435 (gvnp No.19, 34–36); 1446–1447 (gvnp No.20, 36–38); 1456 (gvnp No.22, 39–41); 1471 (gvnp No.26, 45–48; prp ii, 251–255).

Rural Russia

577

A similar, but weaker category, in a socio-economical and legal sense, was the polovnik, mentioned in one of the Novgorod treaties with the grand prince of Tver’.83 Polovniki were poor smerdy who worked somebody else’s land in exchange for half (polovina) the harvest (comparable to Western sharecroppers).84 Izorniki, who appear in the Charter of Pskov, belonged to the same category as zakupy and zakladniki; they are discussed below.

Peasant Landowning

Above we looked at the various categories of peasants to be found in Kievan Russia. Such an overview was needed, in order to examine the question of peasant landowning (with all the reservations explained above, about using a modern ownership concept in dealing with the use of land in other historical settings). It needs no further argument to establish that slaves (kholopy, cheliad’), employed on the land of their masters/owners, would not appear as landowners in any reasonable sense of the word. For the smerdy, the situation is not as clear-cut. If one follows the more modern view that they were dependent peasants, working for the prince (and later on also for boyars and monasteries), one could imagine that they would still be in control of small parcels of land, granted to them to engage in small-scale agriculture for subsistence purposes.85 The fact that they could own horses (art. 28 of the Short Pravda) and that their estate escheated to the prince (art. 90, Expanded Pravda) indicates that they did run some kind of private farming enterprise, and that would be almost unthinkable without a piece of land which they were entitled to use. D’iakonov has drawn attention to the episode related under the year 1103 in the Primary Chronicle (and mentioned above).86 Whether smerdy is understood here as a general designation of peasants, or more specifically as dependent peasants on princely estates, the quotation confirms the view that smerdy ran their own farms. 83 84

85 86

The treaty of 1304–1305, gvnp No.7–8, 16–18. Cf. one of the sections written by V.F. Andreev (“Natisk feodal’nogo zemlevladeniia i krest’ianstvo v xiii v.”, 49–54) in Istoriia krest’ianstva Severo-Zapada Rossii. Period feodalizma, edited by A.I. Kopanev, Sankt-Peterburg, 1994, at 53. Polovniki appear in all three volumes of asei: i (Nos.237, 239, 420, 502, 585, 587, 591, 594), ii (Nos.29, 138, 290, 326); iii (Nos.28, 117, 190, 390). The parallel with the private plots of sovkhoz and kolkhoz farmers in Soviet times is inescapable. D’iakonov, 94.

578

chapter 18

In the view on zakupy outlined above, they were typically impoverished peasants who were forced by circumstances to give up most of their independence by entering the service of a master in exchange for a loan in kind or money. It is implied in this view that the community (obshchina) of which they were members was either unwilling or unable to alleviate their plight. If that was the situation, it would have been improbable that the typical zakup would have a piece of land he could call his own. This leaves the ordinary peasants, freemen who were neither slaves nor smerdy or zakupy. The few authors who consider their position agree that almost nothing is known about it. Abstract models then, as indicated above, are resorted to to fill in the blank spaces. Froianov invoked Marx, Engels, Morgan, and Scandinavian parallels.87 He offered one concrete pointer: the Chronicle’s statement, repeated twice, that “the Polianians lived by themselves”; one of the statements is augmented by the words “and ruled their rody, because before these brothers [the legendary founder of Kiev, Kii, and his brothers] there were Polianians and each lived with his rod at his own place, each governing his rod at his own place.”88 What can be read into these words with a certain amount of probability is that the Polianians were organized in rody, that these rody had their own territories, and that they were ruled by their own chieftains. It is unclear whether these rody were identical with the communities (obshchiny and later on the verv’), or whether the latter units were subdivisions of the rod. From the rp we know that the verv’ had its own territory. Freemen would then have been shareholders in the common land of whatever community could claim this land as its own; in addition they would most likely have been assigned plots of land for their own use. Although there is hardly any direct evidence for this, the elaborate rules on inheritance law in the Expanded Pravda put the emphasis on the small family (parents and children) and these rules were in no way restricted to members of the boyar class.

The Peasant Population in Later Centuries

There is a curious parallel between the history of medieval Russia and that of the North American continent in the era of the first European settlers. The simple explanation is that both evolved in similar physical conditions: a climate with harsh winters and hot summers, dense coniferous and mixed forests, the presence of a sparse indigenous population with a less advanced level of 87 Froianov, Nachala, 343–349; KRse, 12–21. 88 psrl i, cols.7, 9 and 12.

Rural Russia

579

c­ ivilization. The Eastern Slavs slowly penetrated the forests of European Russia, inhabited by dispersed groups of Finnish hunters and fishers; at first the trade in furs, honey and other forest products was the object, then farmers began to clear the forest and raise crops. The vast spaces of the northern half of European Russia began to be colonized, once the first towns had arisen. Novgorod’s semi-colonial empire encompassed the entire western part of this area, and the enormous but partly uninhabitable North as well, while the colonization of the eastern part was undertaken from the old towns in the Upper Volga and Oka region, such as Rostov and Suzdal’. One of the effects of colonization was that the bonds of blood relationship, which had been a prominent factor in the past in cementing rural communities, ceased to be so in the new peasant communities of the Russian North-East. This may have been reflected in the emergence of a new general designation for the peasant population, krest’iane (khristiane, as opposed to the autochthonous pagan hunters and fishers), to replace the former liudi (as well as smerdy). It is first encountered in a charter of 1391 in which the metropolitan Kiprian decided a dispute between Efrem, abbot of the Constantine monastery (near Moscow), and his peasants.89 Russian authors have paid considerable attention to the question of the peasant’s relationship to land (zemlevladenie) in post-Kievan times. Once general developments and tendencies can be recognized (such as those indicated in the previous paragraph), a more detailed description of the life of the peasant in the different regions (the Novgorod lands, the Suzdal’-Vladimir-Rostov region, the western regions, the area around Kiev, Tver’, etc.) can be attempted. During the dominance of Marxist-oriented historiography this approach was embedded in the framework of historical materialism. Ownership of ­(agricultural) land was considered the basic determinant of the feudal era, fuelling the antagonisms between the exploiting class of feudal landowners and exploited peasant masses. It would then be the task of the historian to map the course of the class struggle and to describe and analyze the interaction between the opposing classes. Espousal of historical materialism entailed acceptance of Marx’s ownership concept, which was essentially the classical 19th century ownership concept, applied to a comprehensive view of ­societal development. It induced many Soviet medievalists to agonize endlessly about whether peasants who were in some way dependent on somebody else were in fact owners. Such dependence could appear in many forms. They 89

prp iii, 423–425; asei iii, No.5, 17. The charter refers several times to the peasants as liudi or as siroty (“orphans”, a term typical of Eastern Russia), and only once, almost casually, as khristiane. This could suggest that krest’iane was a more colloquial designation, which only acquired official status later on.

580

chapter 18

may most conveniently be categorized along the way the dependence relation was expressed: through work done for a master, through payment in kind, or in ­money. Within these three main categories sub-categories arose, and also mixed forms. The principal form of the first category was barshchina (which survived into the 19th century): a peasant would be granted a plot of land for his own use, while he was obliged to work a certain number of days on another plot of the landowner. The second category is exemplified by the polovniki, a type of share-croppers, who had to hand over a particular part of the harvest to the owner of the land. The third category is usually referred to as obrok, a fixed annual sum to be paid to the landowner. Designating the opposite number of the peasant as the landowner is of course questionable. If the peasant were able to sell whatever right he was supposed to have in respect of his own plot – and this was normally the case at least with ‘black peasants’ (peasants on the prince’s land) paying obrok – he could be regarded as the owner of a plot encumbered with a particular obligation.90 Many Soviet authors who had concerned themselves with the subject, especially the more recent ones, noted in some way that the traditional ownership views were inadequate to deal with the question of peasant landownership in medieval Russia. One of the more perspicacious among them, A.L. Shapiro, additionally drew attention to the importance of customary law, which recognized the peasants’ rights in the lands they tilled.91 Whatever the shortcomings of the Soviet approach, it has undoubtedly yielded a wealth of useful material, but it has been of limited use from the point of view of legal history because of the paucity of more precise sources. Most of the latter have been mentioned above: the Court Charter of Pskov first of all, then the Novgorod-Tver’ treaties; for the important Suzdal’-VladimirRostov area (Suzdalia), the cradle of the future Muscovy state, there is a wealth of charter material (especially in the three asei volumes), but where legislation is concerned a few isolated provisions have to suffice, such as the muchdiscussed art. 57 of the Code of 1497 (the peasant’s quitting-time). The most elaborate and informative legislative source about the status of peasants is the Court Charter of Pskov, in its provisions on the izornik (arts. 42, 42a, 44, 51, 63, 74–76, 84–87, 93). One of the basic considerations to be kept in mind, with regard to the Pskov Charter as well as other contemporary sources, 90

91

Cf. A.D. Gorskii, “K voprosu o sushchnosti chernogo zemlevladeniia na Rusi v xiv–xv vv.”, A.M. Sakharov (ed.), Problemy razvitiia feodal’noi sobstvennosti na zemliu, Moskva, 1979, 25–54. A.L. Shapiro, Russkoe krest’ianstvo pered zakreposhcheniem (xiv–xvi vv.), Leningrad, 1987, 31–47, esp. 32.

Rural Russia

581

is that systematic legislation was not the object; most matters were covered by custom and customary law, legislation made up for what was considered lacking, because a particular question was not foreseen in customary law, or because the customary arrangement was considered inadequate. The extensive rules on izorniki in the Pskov Charter referred to an existing institution, familiar to the Pskovians, and only clarified a number of points which could give rise to disputes.92 From this body of rules one can deduce that the izornik was a peasant who had concluded a contract with a landowner (the master) which put him in a position not unlike that of a tenant. The izornik received the use of a plot of land, normally for an indeterminate period (cf. arts. 75a, 84–86), as well as pokruta (cf. arts. 51, 76). This is usually translated as a loan, but, although it could also comprise money, it referred primarily to whatever was essential to engage in agriculture: structures, implements, farm animals, seed corn, etc. (cf. art. 44). The rules imply, but do not express outright, that the izornik had to work for the benefit of his master (cf. arts. 63, 75a). The contract could be terminated by the master as well as the tenant, but only at the beginning of the Advent Fast (St. Philip’s Fast) on 15 November (art. 42); in such a case each party was entitled to one half of the harvest (art. 63). A money loan often accompanied or was included in the tenancy contract (cf. arts. 44, 85). When the izornik died, his wife and children were liable for his obligations to the master, provided there was a formal loan note (zapis’); otherwise the matter was to be decided according to Pskov custom (po pskovskoi poshline), cf. art. 85. The master of the izornik was a private landowner, so much is clear from the Pskov Charter. The same goes for the zakladnik, mentioned in the treaties between Novgorod and Tver’; his master was typically a Novgorod boyar. In the East, in Suzdalia and other regions, the situation was different. Largescale landownership by boyars and other wealthy persons certainly occurred, but the colonization process had been directed mostly by the princes and this 92

Iu.G. Alekseev devoted a long chapter to the izorniki in his Pskovskaia Sudnaia gramota i ee vremia, Moskva, 1980, 145–203; also: A.L. Shapiro, Russkoe krest’ianstvo pered zakreposhcheniem (xiv–xvi vv.), Leningrad, 1987, 146–157 (Ch. 11); a modern discussion, critical of Soviet approaches, is K.V. Petrov, “Dogovor «Izornika s gosudarem» Pskovskoi Sudnoi gramoty (rekonstruktsiia)”, A.Iu. Dvornichenko (ed.), Issledovaniia po istorii srednevekovoi Rusi. K 80-letiiu Iuriia Georgievicha Alekseeva, Moskva/Sankt-Peterburg, 2006, 113–126. Floria regarded the izornik as a temporary phenomenon of the transition period between early and developed feudalism and noted the appearance of similar figures in other European countries, B.N. Floria, “Pskovskii «izornik» i mazovetskii «kmet»”, V.L. Ianin (ed.), Feodalizm v Rossii. Sbornik statei i vospominanii, posviashchennyi pamiati akademika L.V. Cherepnina, Moskva, 1987, 134–141.

582

chapter 18

had allowed them (according to Iu.V. Got’e) to assume the position of supreme owner of much of the land available for agriculture.93 According to Veselovskii, such lands were mostly forested or uncultivated (‘wild’ or ‘black’), and their cultivation required considerable resources and for this reason the monasteries were prominent grantees.94 The land grants made by the Moscow princes were often not gratuitous and were then in fact sales of land. The princes also attempted to replenish their stock of usable agricultural land by themselves buying from private owners, or by confiscations.95 The prince’s lands (chernososhnye zemli) were tilled by ‘black’ peasants (chernye krest’iane) who paid dues to the prince’s agents and/or had to carry out a certain amount of work, but otherwise enjoyed a considerable measure of freedom. They had their own organizational structures, headed by villages elders (starosty and dobrye liudi – ‘good men’), who were involved in certain local government and tax collection tasks.96 The Code of 1497 mentioned ‘black’ peasants along with peasants subject to a private landlord (sel’skie krest’iane) in art. 63, concerning participation in litigation about land. Prominent ‘black’ peasants (belonging to ‘good people’ and having taken an oath, dobrye chernye krest’iane tseloval’niki) are also mentioned in art. 12 of the Code, as being on the same level as “boyars’ sons of good repute” (deti boiarskye dobrye) as character witnesses. The principal reference to peasants in the Code, as mentioned above, is in art. 57, “About the peasant’s quitting-time” (O khristianskom otkaze, lit. “refusal”). It provided that peasants could only quit, i.e. leave their village or region (volost’), once a year, in the week before and the week after the autumnal feast of St. George (Iur’ev den’ osennii), 26 November. They were obliged to pay for the use of the peasant’s household (the dvor, dwelling and appurtenances) the full sum of one ruble, if they had lived there for four years or more, and a reduced rate for shorter stays. As the peasant would normally leave in order to work for another landowner, a poor peasant could only leave if his new landlord were willing to pay this indemnification (pozhiloe).97 93

This theme is prominent in the views of Iu.V. Got’e, Ocherki istorii zemlevladeniia v Rossii, Moskva, 2003 (orig. Sergiev Posad, 1915) 41–45. 94 S.B. Veselovskii, Feodal’noe zemlevladenie v Severo-Vostochnoi Rusi, Tom i, Leningrad, 1947, 74–80. 95 Veselovskii, ibidem. 96 Cf. L.V. Danilova, “O vnutrennei strukture sel’skoi obshchiny Severo-Vostochnoi Rusi”, V.T. Pashuto (ed.), Rossiia na putiakh tsentralizatsii. Sbornik statei, Moskva, 1982, 6–17. 97 On pozhiloe, S.B. Veselovskii, “Iz istorii zakreposhcheniia krest’ian”, Trudy po istochnikovedeniiu i istorii Rossii perioda feodalizma, Moskva, 34–119, at 114–118; also in S.B. Veselovskii, Moskovskoe gosudarstvo xv–xvii vv. Iz nauchnogo naslediiia, Moskva, 2008, 217–302, at

Rural Russia

583

Combining art. 57 of the Code of 1497 with the information about izorniki from the Pskov Court Charter allows us a few tentative conclusions. The termination of a contract between a peasant and a landlord who provided the necessary plot of land (plus various other assets) would normally take effect at the end of the agricultural cycle, in late autumn. The position of the peasant weakened over time. The situation described in the Pskov Charter, however uncertain its precise date, reflected a relationship of greater equality; art. 57 of the Code of 1497 addressed a situation where the landowner needed a workforce and the legislator came to his aid by making it more difficult for a peasant to leave. The institution of Iur’ev den’, allowing peasants to leave their masters once a year, was abolished a hundred years later by Boris Godunov, who actually ruled Russia during the reign of tsar Fëdor Ivanovich, the son of Ivan iv the Terrible.98 More detailed studies of the status of Russian peasants during the 13th–15th centuries show that there were significant differences between the various regions. The general background was the expansion of cultivation, caused by improved agricultural methods as well as by the expansion of the land available for agriculture; this expansion entailed an increased need for a workforce and various solutions to cope with this need were put into practice. These solutions shaped the relationships between peasants and landowners and resulted in a great variety of contractual forms.99

Transactions Concerning Land

The gradually increasing flow of documents embodying transactions concerning land, starting with the 12th century charters of Antony the Roman, has been referred to above. If one looks at these documents with the eye of a

98

99

297–301. See also V.A. Arakcheev, “Krest’ianskii otkaz i poriad: issledovanie sotsial’nykh otnoshenii v russkoi derevne xv–xvi vv.”, S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, vyp.8, Moskva, 2004, 75–106. The peasants’ right to leave was abolished gradually; Ivan iv the Terrible had already forbidden it temporarily around 1580; then such “forbidden years” (zapovednye gody) became more frequent, until at last 1606 was the last “exit year” (vykhodnyi god), cf. S.B. Veselovskii, “Otmena Iur’eva dnia”, in S.B. Veselovskii, (Trudy), 34–119, at 51–53, and id. (Moskovskoe gosudarstvo), 217–302, at 234–235. This matter is discussed in considerable detail by A.L. Shapiro in the second part of the work quoted above (Russkoe krest’ianstvo …), entitled “Categories of the Peasant Population. The Right to Change [Place of Employment]”.

584

chapter 18

­modern lawyer, one can distinguish between public and private law transactions, public law ones being those by which the ruler (the prince) bestowed certain rights or imposed certain duties. Their general name is zhalovannye gramoty (“grant charters”). The private law ones can be divided according to tradition into unilateral and multilateral (esp. bilateral) transactions. Gifts and wills would form the first category, while the main types of bilateral transactions are sales and exchanges. The gift charter of Antonii Rimlianin described the outline of the donated land in considerable detail (“from the Volkhov River upstream along the Vitka brook to Liushchik, and from there to the cross, from the cross to the cattle pass, from the cattle pass to the alder tree, from the alder tree to the spruce wood, from the spruce wood to the Donets heights, and down along the Donets, which flows into the Derevianitsa, and the Derevianitsa flows into the Volkhov”). This example is often followed in later charters concerning rural land. Less common, but still occurring frequently, is an ­indication of the origin of the donor’s ownership, by referring to the way the property was acquired from a previous owner and, where applicable, the price paid.100 It is worth repeating that the picture produced by the available mass of documents is inevitably one-sided, because most surviving documents have their origin in monasterial collections. Medieval deeds concerning land and involving only secular parties have almost all been lost. It would not be too far-fetched to regard the 10th century Church Statute of St. Vladimir as the first example of a zhalovannaia gramota, because its central content was the granting of tithes and of jurisdiction over church personnel (and various categories of other cases) to the Church. The first surviving charter in which land is granted is from 1130, in which the grand prince Mstislav (son of Vladimir Monomakh) and his son Vsevolod donated the village of Buitse to the Iur’ev monastery in Novgorod (referred to above). In this charter, as in almost all subsequent ones of its kind, the land grant is accompanied by connected grants, in this case the collection of tribute (dan’), bloodwite (viry) and fines (prodazhi).101 Later, the right to collect certain fiscal duties was usually replaced by outright exemption from certain taxes; such grant charters came to be called tarkhannye (from Turkish tarkhan, a free person, not subject to tribute). The tax exemption was often accompanied by an exemption from 100 Such a reference is included in the gift charter of Antonii Rimlianin. 101 The same formula appears in the Church Statute of prince Rostislav of Smolensk of 1150 (recte 1136, see above) (prp ii, 39–42), an offshoot of the Church Statute of St. Vladimir and, like the latter, a mixture of pure statutory elements and a number of concrete dispositions.

Rural Russia

585

general jurisdiction (as in the original church statutes), nesudimye gramoty. (See also Chapter 11.) The 1130 charter of prince Mstislav also included the obligation imposed on the monastery to pray for the prince and his family, also after their death. This illustrates the difficulty in classifying Russian medieval charters by strict modern standards. Public and private arrangements are combined, the gift also involved fiscal benefits and contained elements of a last will. Along with gifts of land made by princes, which often contained ‘public law’ elements such as judicial and fiscal immunities, there were numerous gifts of land made by private landowners. The recipient was almost always a monastery or church. The oldest surviving private charter was mentioned above, the gift of land and the persons (slaves) attached to it by Varlaam to the SpasoKhutinsk monastery (around 1211). The various collections of charters from different Russian regions contain many such dannye from the 14th century and later periods. In most cases the donors stated that the gift had been made for the repose of the souls (v pominok dushi) of relatives and prospectively of the donor himself. In such a case the gift charter comes close to a true last will (dukhovnaia gramota, or rukopisanie, “handwritten document”). The destination of landholdings was usually the main topic of wills (dukhovnye). Normally, there would be no need to make dispositions about the fate of real property after the owner’s death because his children would inherit by virtue of intestate succession, whether on the basis of customary or statutory law. A will would be called for in special cases, to make provision for certain dependents (esp. wives, mothers, daughters) and/or where the testator had remained childless. The traditional rule from Roman law that intestate and testamentary succession could not be combined102 did not apply in Russia. The last will could therefore regulate certain specific matters, while for the rest the rules of intestate succession operated. Many of the available dukhovnye are of this type. The testator, leaving children, left for instance some property to his widow and instructed the children to honour this bequest. Most surviving wills (found in monasterial collections) contain bequests to monasteries or churches, usually with the instruction to say prayers for the soul of the deceased testator. When the testator died without issue, he or she often left the entire estate to a monastery, with some provision for a surviving widow (where she had not predeceased him). Wills are among the oldest available documents concerning land. The testaments of Antony the Roman (from before 1131) and of Kliment (13th c­ entury) 102 Nemo pro parte testatus, pro parte intestatus, moritur.

586

chapter 18

have been discussed above. See also the section on dukhovnye gramoty in Chapter 11, where various examples are cited. Wills of princes, especially of the grand princes of Moscow, constitute a special category because they combined elements of ordinary private wills with public law dispositions (see the section devoted to this topic in Chapter 13). Deeds of sale (kupchie) almost exclusively concerned land and are relatively numerous, although mostly from the 15th century and later periods. That land was bought and sold between private persons long before this time is testified to by the references in the charters of Antonii Rimlianin (12th century) to the origin of his ownership. There are several private deeds of sale from the 14th century in the land of Novgorod.103 See further the section on kupchie in Chapter 11. Exchange deeds (menovnye gramoty) were very close to deeds of sale and, like the latter, nearly always concerned real property. (Where movable good were exchanged or bought there was usually no need for written documentation.) See the section on menovnye in Chapter 11. Pledges were generally connected with money loans; where the property pledged was handed over into the possession of the creditor (movable property), there would not be a paper trail. The surviving pledge charters (zakladnye gramoty) therefore almost exclusively concern the pledging of real estate (mortgage). The subject is discussed at greater length in Chapter 11.

Local Government

The original sources offer almost nothing on the question of local government for the early Kievan period.104 Some of the leading authors have attempted reconstructions on the basis of parallels with urban government, or by deducing the existence of certain institutions from a general concept of early Kievan Russia, or by extrapolating backwards from what is known about later periods. Of these three approaches, the last is the least unreliable. It would indicate, among other things, that there were significant differences between urban and 103 gvnp No.106, 163 (after 1359); No.108, 164 (between 1389–1415). 104 Andreevskii, one of the leading 19th century authors on the theme of the history of local government in Russia, starts his study with a chapter on the lieutenant (namestnik), relying on kormlenie; although this was undoubtedly an ancient institution, information on it does not really become available before the 14th century. Cf. I.E. Andreevskii, O namestnikakh, voevodakh i gubernatorakh. Istoriia gosudarstvennogo upravleniia v Rossii (ix–xix vv.), Sankt-Peterburg, 1864 (1st ed.), reprint Moskva, 2014.

Rural Russia

587

rural administration. Starting from parallels with urban government is therefore the least promising approach. The different versions of the rp mention various princely officials in charge of different duties, but these provisions primarily concerned the management of the prince’s own domains. Of the judicial functionaries only a few can be considered to have exercized their offices throughout the territory ruled by the prince; the bloodwite-collector (virnik) and his assistants are a clear example (arts. 42 of the Short Pravda and 9 and 10 of the Expanded Pravda). The usual designation of a rural administrative unit is pogost, already mentioned in the Chronicle’s story of Olga’s campaigns against the Derevlians. There is some controversy about whether the pogost was first of all a financialadministrative unit or rather a rural trading-post.105 As the running of local affairs took place primarily at some local settlement, this would obviously also be the commercial centre. The 1136 Charter of prince Rostislav of Smolensk (referred to above) mentions 43 pogosti with the taxes payable by them, covering the entire territory of the principality. A much larger unit was the volost’, governed by a volostel’. In Kievan times a volost’ was usually equivalent to a dependent principality and its ruler would be appointed by the Kievan prince, generally from the circle of his close relatives: brothers, sons, cousins. The title of namestnik, lieutenant, is often used. “Land” (zemlia) has about the same meaning as volost’.106 A vivid picture of the organization of regional government is offered by the Statute of Dvina Land of 1397–1398.107 The peculiar circumstances of its enactment have been discussed in Chapter 8, but as it is one of the few early sources for our knowledge of regional government it cannot be neglected in the context of this section.108 The Statute does show that the prince would normally appoint a namestnik, from the ranks of his own (Moscow) boyars, or from local Dvina Land boyars The namestnik would receive his income primarily from court fees and fines; the administration of justice (both prosecution and 105 Cf. Iushkov, Stroi, 108–110. 106 Cf. V.M. Rychka,”Poniatie «volost’» i ego evoliutsiia v drevnerusskikh letopisiakh (na ­materialakh kievskoi zemli xi–xii vv.)”, A.A. Preobrazhenskii (ed.), Feodalizm v Rossii. ­Iubileinye chteniia, posviashchennye 80-letiiu so dnia rozhdeniia akademika L’va Vladimirovicha Cherepnina. Tezisy dokladov i soobshchenii, Moskva, 1985, 82–83. 107 Text with comments by A.A. Zimin and A.G. Poliak in prp iii, 162–164 and 185–197; also gvnp No.88 (144–146); text and English translation in Kaiser, Laws, 111–113. 108 To repeat: the Dvina Land boyars were shifting their allegiance from Novgorod to the Moscow grand prince. The latter granted them a local government charter which was unusually accommodating to their interests. The next year however, Novgorod r­ e-established its control over Dvina Land and the charter never became operative.

588

chapter 18

adjudication) was mostly in his hands.109 He was also entitled to receive certain commercial taxes and travelling allowances. All amounts were p ­ recisely determined. There was a possibility of appealing to the grand prince against excessive impositions, all of this being part of the kormlenie remuneration system (see the heading kormlennaia gramota in Chapter 11). He was assisted by various lower officials (dvoriane, podvoiskie, d’iaki, sotskie). Dvorianin, later the general designation for nobleman, still had the old meaning of “prince’s servitor”, a lower civil servant with general duties; podvoiskie were court officers, bailiffs; a d’iak (from Greek diakonos) was a clerk, a secretary. Although, in the case of the Dvina Land charter, these titles may represent more typically Novgorodian offices, they also appear outside the north-western part of Russia with perhaps a somewhat different content. The occasionally indeterminate nature of the office hiding under a certain title is most outspoken in the case of the sotskii. In the Dvina Land charter the sotskii is mentioned only in the singular; there seemed to have been a single sotskii for the whole of Dvina Land, a local official, not appointed by the Moscow grand prince and sufficiently important to be mentioned in the preamble. The sotskie are wellknown in Novgorod and Pskov sources; they were the heads of the ‘hundreds’, the sotni, middle-ranking urban officials; as such they also appear later on in Muscovy. They seem to have general administrative, as well as specifically judicial, duties. The sotskie, hundred-men, centurions, fit into the numerical hierarchy of tysiatskie (thousand-men, chiliarchs), hundred-men, and decurions (desiatskie). Older historians110 often regarded this system as ancient and traditional, going back to an era of military democracy, contrasting it with a ­newer system, introduced by the princes and consisting of appointed governors (posadniki) and lieutenants (namestniki) and their subordinate staff. Presniakov contested these views and argued that the numerical system was also dependent on appointment and approval by the prince, although he recognized its military origin.111 More recently V.A. Kuchkin enlarged on Presniakov’s view by showing that sotskie and desiatskie were actually an invention of the Kievan princes to address the problem of managing newly available arable land.112 109 Cf. V.D. Nazarov, “O proezdnom sude namestnikov v srednevekovoi Rusi”, dg sssr 1987, Moskva, 1989, 84–92. 110 Such as Vladimirskii-Budanov, Obzor, 98–99. 111 Presniakov, Kn. Pr., 165–190. 112 V.A. Kuchkin, “Desiatskie i sotskie Drevnei Rusi”, A.A. Gorskii & V.A. Kuchkin (eds.), Drevniaia Rus’. Ocherki politicheskogo i sotsial’nogo stroia, Moskva, 2008, 270–427. Desiatskie and sotskie are first mentioned in the Primary Chronicle (Laurentian text) under the year 996 (St.Vladimir carousing with his followers, including desiatskie and sotskie); Ian, son of Vyshata, is mentioned in 1089 as the commander of the Kiev ‘thousand’.

chapter 19

The Individual and the Family In medieval law the problem of sources is more pronounced than in the law of later periods. For that reason the first part of this work has been devoted to an examination of the sources of medieval Russian law. The law itself is the subject proper of the second part and in most instances we have looked for the presence of law in particular physical places: around the prince, in towns, in the countryside, around the Church and its monasteries, etc. In this chapter a different perspective is chosen: When and where did the individual person encounter law in his own life in medieval Russia? This question can be broken down into three separate ones: Concerning the legal status of the individual and in particular his or her being a member of a legally defined class of persons; What legal consequences were attached to being, not merely an individual, but the member of a family; How would law affect the individual once he became active outside the circle of his family? This chapter is devoted to the first two questions; the third question merits a separate chapter (the next).

The Legal Status of the Individual

Men and Women As the undifferentiated human being does not exist as such and can appear only as either a man or a woman, this most basic distinction underlies all other distinctions and invariably affects the legal status of the individual. Whenever legal history addresses itself to some aspect of the status of the individual, attention is almost automatically and unconsciously directed at the position of the male individual. Eventual differences in the position of women are then treated separately, almost as exceptions to the general rule.1 Such differences may be determined by all kinds of factors, but generally the dominant conceptions concerning relationships between the sexes in a given society will be the most significant determinant.

1 Art. 88 of the Expanded Pravda is exemplary in this respect. Somewhere in the middle of this legislative text, almost as an afterthought, the law directs that the killing of a woman will be judged in the same way as the killing of a man, but the bloodwite in this case is 20 grivna, half the bloodwite of a man.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_020

590

chapter 19

In this respect the adoption of Christianity was the all-important watershed in Russian history. Russian sources, especially the Primary Chronicle, and ­foreign sources to a lesser extent, offer information on male–female ­relationships in pre-Christian Russia. The picture is many-faceted. Polygamy and the forceful capture of brides occurred, but respectful treatment of female ­relatives is also mentioned. Exceptionally, women could reach positions of great power. Widows of important men in particular not only enjoyed great prestige, but could also act as their husband’s successors. This tradition survived the ­adoption of Christianity and remained in force in Kievan Russia. The most prominent example is the transitional figure of the famous princess Olga, who ruled for a decade after the death of her husband Sviatoslav in 945. That which can be reconstructed concerning the position of women in blood feuds also suggests that they were not without rights. Art. 88 of the Expanded Pravda has been mentioned. In a well-known episode recounted in the Chronicle (1071), Ian Vyshatich, the famous general of Sviatoslav Iaroslavich, ordered the boatmen from Belozero to avenge the killing of their mothers and sisters by magicians.2 The fundamental equality of all human beings before God belongs to the core message of the four Gospels. It is hard to deny that secondary teachings of individual early Christian authors also injected certain misogynist views, detracting from the original equality. At the same time, the traditional patriarchal order of pre-Christian Russia continued in many respects. At least three different strands can therefore be discerned in the male–female relationships of Kievan Russia. Part of the pagan heritage, irreconcilable with Christian doctrine, disappeared, and (a) the surviving elements were often adapted and transformed in accordance with (b) the new faith; the original simplicity and radicalism of the latter became overgrown in places by (c) the divergent views of churchmen. In the following sections, dealing with legal relationships within the family, the legal consequences of these various factors will be considered in more detail. They are of course most prominent in the legal regulation of marriage.3 2 Cf. S.L. Nikol’skii, “O kharaktere uchastii zhenshchin v krovnoi mesti (Skandinaviia i ­Drevniaia Rus’)”, dgve 1999, Moskva, 2001, 160–168. 3 The position of women in medieval Russia is dealt with most extensively in the works of L.N. Pushkareva: “Zhenshchina v srednevekovom Novgorode x–xv vv.”, Vestnik Mosk. Univ., seriia istoricheskaia, 1983 No.3, 78–89; “Pravovoe polozhenie zhenshchiny v Drevnei Rusi x–xv vv.: Voprosy prestupleniia i nakazaniia”, Sov. Gos. i Pravo, 1983 No.4, 121–126; “Imushchestvennye prava zhenshchin v russkom gosudarstve x–xv vv.”, Istoricheskie Zapiski, No.114 (1986), 180–224; “Women in the Medieval Russian Family of the Tenth Through the Fifteenth Centuries”, ­Clements, B.E.

The Individual and the Family

591

Literary works from the Russian middle ages, particularly those of a d­ idactic nature, provide a detailed picture of the prevailing attitudes concerning relationships within the family and between men and women. Prominent among these are the 12th century Questionary of Kirik (Voproshanie Kirika), a collection of 152 questions addressed by Kirik, a monk from the Novgorod monastery of St. Antony, to Nifont, the bishop of Novgorod,4 the 14th century Izmaragd (“Emerald”), consisting mainly of translations from Greek moralistic writings, and the 16th century Domostroi, a hugely popular work, offering practical directives with a strong moral content on many aspects of daily life.5 It may perhaps be superfluous to point out that from a modern point of view Russian society, before as well as after the adoption of Christianity, was strongly patriarchal; this found legal expression in a generally weaker position of women. Another, related, aspect of the relations between the sexes in Russia in these times was the virtual inevitability of marriage. The general assumption was that adult men and women would be married. The accepted exception during the Christian era was celibacy as an element of monastic life, for both monks and nuns. The selection of a spouse was primarily a family matter, especially for the parents (both of them). The wishes of the prospective spouses had to be considered and forced marriages not only were defective from the point of view of canon law, but could also entail sanctions against the parents (see below). But while an unmarried young man would generally be free, except in the choice of a bride, young women were much more dependent on their parents or their brothers (once the parents were deceased), and on their husbands after marriage. Once a widow, however, a woman’s independence was quite substantial, as numerous records of transactions by widows show. Also, a woman retained a separate property status, apart from that of her husband (this will be examined in more detail in the following section on marriage property). (a.o., eds.), Russia’s Women: Accommodation, Resistance, Transformation, Berkeley, ca, 1991, 29–43, also, under the title “The Woman in the Ancient Russian Family (Tenth to Fifteenth Century)”, in Anthropology and Archeology of Eurasia, Vol. 29, No.3 (1990–1991), 57–73. 4 On the Questionary of Kirik, see Ia.N. Shchapov, Vizantiiskoe i iuzhnoslavianskoe pravovoe nasledie na Rusi v xi–xiii vv., Moskva, 1978, 179–180; text of the Questionary in Russkaia Istoricheskaia Biblioteka, t.vi,, Sankt-Peterburg, 1880, cols.21–62, and also in PRoP i, 504–524, text and comments by Iu.V. Ospennikov. In his famous description of Muscovy, first published in Vienna in 1549, Sigmund von Herberstein offered a long excerpt from the Questionary of Kirik. Cf. S. v. Herberstein, Das alte Russland (transl. from the Latin by W. von den Steinen), Zürich, 1982, 97–103. 5 Many editions; I have used the 1994 edition of the Russian Academy of Sciences, Domostroi, V.V. Kolesov, V.V. Rozhdestvenskaia (eds.), Moskva, 1994.

592

chapter 19

A curious consequence of the obligatory character of marriage was the practice of forcibly removing women, and occasionally men too, from public life by putting them into a monastery or convent. In the Church Statute of Iaroslav, this was the standard punishment for a girl or woman who had seriously misbehaved (unmarried girl or widow who became pregnant, infanticide by a mother, entering a bigamous marriage, marrying outside the Orthodox Church, etc.). Compulsory consignment to a monastery was used occasionally to punish political opponents and get rid of them; it was a not uncommon fate for princes who could present a threat to a ruling prince, or for princes and princesses who belonged to a branch which had fallen into disgrace.

Legal Classes

The division of the population into legally defined classes, with specific rights and obligations, arose gradually in Russia and lasted until 1917. Class in this sense is to be distinguished from the much vaguer class in a sociological sense. Legally defined classes existed in many European countries and were denoted by special terms in most languages (German Stand, French état, Russian soslovie). Belonging to the highest class (princes) and the lowest (slaves) was circumscribed already at an early age; the arrival of Christianity introduced the e­ asily recognizable class of the clergy. The borders between intermediate groups, from aristocracy to the half-free were porous for a long time. The consolidation of a unitary Russian state under the grand prince of Moscow created the conditions for a more exact determination of the legal status of the different classes. This process was directed by the ruler, rather than produced as the result of a balance of power achieved through contestation and negotiation, as in Western Europe. Iu.G. Alekseev has demonstrated that it was especially Ivan iii whose domestic policies were directed at the creation of a state-centred social system in which the different classes all had their specific duties towards the sovereign.6 Princes Princes constituted a class of their own from the pre-Christian era and all through the Russian middle ages. The Chronicle reports how prince Oleg had

6 Cf. Iu.G. Alekseev, “K voprosu o sosloviiakh v Rossii XVXVIi vv. Nekotorye cherty soslovnoi politiki Ivana iii”, A.P. Pavlov (ed.), Gosudarstvo i obshchestvo v Rossii xv – nachala xx veka. Sbornik statei pamiati Nikolaia Evgen’evicha Nosova, Sankt-Peterburg, 2007, 65–81. See also Iu.G. Alekseev, Sudebnik Ivana iii. Traditsiia i reforma, Sankt-Peterburg, 2001, 431–436.

The Individual and the Family

593

Askold and Dir killed in Kiev (880–882), because they had arrogated p ­ rincely power while not even being of princely stock (kniazh rod). The narrative ­preceding the 907 Treaty with Byzantium mentioned “great princes” ruling different territories in Russia and being subject to the Kievan prince Oleg. Such princes were mentioned again in the 911 and 944 treaties. Under St. Vladimir all other princes were eliminated, but the apanage principalities he set up for his sons were the origin of the numerous principalities into which the Kievan empire fragmented in the subsequent period. They were invariably ruled by his descendants. With the proliferation of the Rurikid house many princes were left without a territory of their own, although they retained their title. The first non-Rurikid prince appeared only in 1408, when the Lithuanian prince Patrikii (a grandson of the founder of the Lithuanian dynasty, Gedimin) entered the service of grand prince Vasilii i of Moscow. The oldest legal sources paid a great deal of attention to the legal status of the prince. They often had a particular prince in mind, such as Iaroslav the Wise in the case of the oldest section of the rp, but the general intention was always to lay down a regime which would also apply to successors. The Church Statutes of St. Vladimir and his son Iaroslav the Wise are explicit on this point (arts. 19 and 58 resp.: “my sons, grandsons and great-grandsons”). The legal status of the prince is the subject of a special Chapter (13), to which we refer here. Boyars and Other Nobles In later times, especially during the more recent centuries, nobility was a legally defined status in Russia, involving specific rights and duties. As one goes back in time, the definition becomes less clear. In the earliest, Kievan period, the existence of a social elite can be observed, but there is no way to define it in a legally meaningful way.

Nobility

The presence of a social elite is a universal phenomenon in almost all forms of societies, except very small-scale ones (to avoid the possibly ­pejorative term of ‘primitive’). Additionally, many societies recognize the existence of a narrower category, called nobility, which as a rule is defined in legal terms. The backbone of such a definition is inheritability, or more precisely: a person belongs to the noble class if his/her parents were noble. National systems have offered all kinds of variations on this general principle. If inheritability would be the only criterion, nobility would attach only to families who could claim this status “from times immemorial”. This would cause the slow but inevitable dying out of a

594

chapter 19

nobility. Admittance of new members into an otherwise closed class is therefore usually allowed. This is invariably a sovereign prerogative, used ostensibly to reward the most meritorious, but, viewed dispassionately, often employed as a political tool. Under the influence of egalitarian views, promoted by the Enlightenment, inheritability of a status endowed with specific rights is now generally considered to be unfair, inasmuch as it would provide some with a more advantageous start in life than others. But until recently, n ­ obility was an accepted phenomenon in most European (and some Asian) states. In some of them it still exists, although governments have taken steps to do away with any but the most trivial legal differences with other classes. In Russia, nobility thrived until 1917, both the usual (inherited) kind and personal nobility (attached to specific civil or military ranks). The reason for examining the question of nobility in the Kievan era is not that it existed as such (it did not), but that the foundations for what later became the Russian noble class were laid in those times. In the discussion of landowning in Kievan times by boyars and other landowners, as well as in the section on the prince and his court and officials, the functions of the elite have been looked at from various points of view. Some of this discussion may be summarized here. A ruler (prince) was normally surrounded and accompanied by a group of followers, the druzhina. They were originally, i.e. in the pre-Christian era, his comrades-in-arms, with whom he undertook expeditions and raids to fight his enemies, collect booty, and capture slaves to be sold. They formed, as it has often been called, a corporation of which the prince was the central figure, if not the outright leader. It was held together by bonds of friendship and solidarity, rather than by one-sided personal loyalty to the prince. Personal ambition and qualities might move a person to seek membership. In a society which was still largely dominated by kinship ties and clan and family loyalty, the druzhina introduced new patterns of social adhesion. The presence of various non-Slavic elements in pre-Christian Russia, combined with the druzhina recruitment system, meant that the druzhina’s composition could easily be multi-ethnic. Under the first Christian Rurikid rulers (St. Vladimir and Iaroslav the Wise) something resembling an integrated polity, covering a huge territory, arose. The grand prince needed trusted and able men to carry out his wishes in distant parts. This caused the dissolution of the druzhina as the company in close physical proximity to the prince. At least to some extent, because some senior members would remain at the prince’s court and junior members would serve as the prince’s bodyguard. At that time, the growing number of druzhina

The Individual and the Family

595

­members had resulted in the emergence of two distinct layers, the senior members, often referred to as boyars in the sources, and junior members, consisting of various kinds of servitors of the prince. Although the importance of the druzhina in the politico-legal structure of Kievan Russia was recognized by most pre-revolutionary and Soviet historians, various factors contributed to it being played down. More recently, several ­Russian historians have characterized Kievan Russia explicitly as a “druzhina state” (druzhinnoe gosudarstvo).7 (See also the treatment of the druzhina in Chapter 13, section on the prince and his officials, sub-section on the druzhina.) The posting of senior druzhina members to distant places followed a pattern which already prevailed within the princely family itself. The ruling prince would assign his sons or younger brothers to rule as his representatives in the various provincial centres. Such a local ruler would rely for his upkeep, his income and the expense of maintaining a military force on various revenues to be collected locally. In time, the temporary office tended to become inheritable and the income of the ruler would depend increasingly on local estates assigned to him or acquired in other ways. The occurrence of the term “boyars” in the 10th century treaties with Byzantium is not to be taken as an indication of the existence of a special class at such an early date. Semantically, the 10th century “boyar” is identical to a magnate, or a grande – merely a person of great social importance.8 According to Zavadskaia, “boyar” was a literary loanword, used to refer to the “prince’s men” (kniazhi muzhi) as they were known in arts. 1, 2, 3 and 11 of the Expanded ­Pravda. In the older Short Pravda the ognishchanin is more or less equivalent to the kniazh muzh of the Expanded Pravda. The boyar turned up in later ­layers of the E ­ xpanded Pravda, arts. 46 (the boyar’s slave) and 91 (inheritance of a boyar), and also in arts. 1 (“or a boyar’s steward”) and 14 (“the same applies to a boyar’s contract labourer”), but these last two fragments have the appearance of being more recent insertions. In any case, all this would agree with the conclusion of Zavadskaia that before the beginning of the 12th century the term “boyar” did not yet refer to a distinct social group. Obviously, the inclusion of boyars in the final text of the Expanded Pravda implied that the term had acquired sufficiently concrete legal content. Zavadskaia’s theory is somewhat at variance with several provisions of the Church Statute of Iaroslav. If one accepts the elaborate argument of 7 E.g. N.F. Kotliar, Drevnerusskaia gosudarstvennost’, Sankt-Peterburg, 1998, 63–69. See also Feldbrugge, lmr, 140–145 (“Land Tenure, the Druzhina and the Nature of Kievan Rus”). 8 Cf. P.S. Stefanovich, Boiare, otroki, druzhiny: voenno-politicheskaia elita Rusi v x–xi vekakh, Moskva, 2012, 367–376; S.V. Zavadskaia, “«Boliarin»–«Boiarin» v drevnerusskikh pis’mennykh istochnikakh”, dg sssr 1985, 89–94.

596

chapter 19

Ia.N. Shchapov (the most prominent modern expert on this topic), the original core of this text is to be dated around the end of Iaroslav’s reign (between 1051 and 1054). A series of provisions belonging to this category, contains references to boyars, and even distinguishes between “great boyars” and “lesser boyars” (arts. 1–4, 7, 27, 42).9 This of course suggests that boyars already existed as a distinct category by the middle of the 11th century. Another lead is provided by the Chronicle entry for 1018, referring to the power struggle between Iaroslav Mudryi (the Wise) and his half-brother ­Sviatopolk, in the wake of the death of their father St. Vladimir in 1015. The people of Novgorod, in order to allow Iaroslav (who was their prince at that time) to collect a force of Varangians in Scandinavia, collected funds at the rate of 4 kuna from each freeman, 10 grivna from each elder, and 18 grivna from each boyar.10 This implies that boyars constituted a well-defined element of the urban population at this comparatively early date. Along with events in Novgorod in 1018, there are quite a few other occurrences from the same era (the reigns of St. Vladimir and of his son Iaroslav the Wise) indicating the presence of boyars as a distinct group. Usually, the relevant Chronicle entries mention boyars at the top of the list of elite categories: boyars, town elders, and others. Of particular interest is the entry for 996, which relates that Vladimir was wont to invite the boyars, the grid’, the sotskie and desiatskie and the important men (narochitye muzhi) every Sunday for a feast. The boyars and grid’ (see below) were part of the prince’s retinue (druzhina) and did not necessarily have a connection with the urban population of Kiev; the sotskie and desiatskie (see the section the officials of the Kievan prince in Chapter 13) and the “important men” (possibly the same as the town elders) represented the local citizenry.11 Stefanovich, in his monograph on the Kievan elite in the 10th and 11th centuries, described the boyars as constituting the highest social layer after the princes, characterized primarily by their closeness to the prince and their participation in government; boyar status soon tended to become inheritable and was connected with wealth, but these two features were derivative of their relationship with the prince and his government.12 9

Ia.N. Shchapov, Kniazheskie ustavy i tserkov’ v Drevnei Rusi xi–xiv vv., Moskva, 1972, 293–295; this is the so-called protograph of the Statute, reconstructed by Shchapov. 10 If the older rate of 25 kuna = 1 grivna is applied, this would result in a relationship of 4:250:450, suggesting a wide disparity in wealth in Novgorod. 11 See for all this, M.N. Tikhomirov, Drevnerusskie goroda, Sankt-Peterburg, 2008 (orig., Moskva, 1956), 129–135. 12 Stefanovich, Boiare, 553–556.

The Individual and the Family

597

One point that arises from the discussions concerning boyars in medieval Russia is that the meaning of the term developed and changed considerably over the centuries. From a rather general concept indicating high status, just below the prince himself (Greek άρχοντες), it became a more specific one which indicated the highest rank of service, enjoyed by a small number of persons around the prince. In our discussion of the emergence of boyar landowning we have looked at the question of the relationship between the Kievan druzhina and the “landed boyars” (zemskie boiare), assumed by several pre-revolutionary and Soviet historians to be rooted in the indigenous Slavic tribal elite. Although unambiguous direct evidence for the existence of private landowning by members of the early Kievan elite is lacking, the presence of such an elite is on balance more likely than its absence. In the course of the Kievan period this elite presumably merged with the new elite represented by the druzhina. Art. 91 of the Expanded Pravda which speaks twice and explicitly about “boyars and druzhinniki” possibly reflected a still living memory of these two different components of the Kievan upper class.13 The articulation of the nobility as a separate class was the result of a lengthy process, covering many centuries. Social differentiation within the circle of the prince’s companions and servitors was the first phase. This is already noticeable in the Short Pravda, at first dimly in its oldest part, the Pravda of Iaroslav, and then more explicitly in the Pravda of Iaroslav’s Sons. Art. 1 of the Short Pravda mentioned different princely officials, the gridin, the iabetnik and the mechnik.14 The Pravda of Iaroslav’s Sons offered a whole range of princely servants, from high-ranking ones, such as the ognishchanin, to ordinary slaves. The Preamble to this part of the Short Pravda mentioned Iaroslav’s three sons, as well as three other persons. They return in art. 1 of the Expanded Pravda where the three others are identified as the princes’ ‘men’ (muzhi). Their direct 13

14

Baranowski’s extensive survey of the literature on this provision offers no indication that anyone has paid attention to the curious formula of “boyars and druzhinniki” (­Baranowski, 616–620); only Stefanovich, in his recent monograph on the early Kievan elite, reviews the question at some length: Stefanovich, Boiare, 523–525. Several translations have been proposed for gridin, but most of them are covered by the safe formula employed by Kaiser, “junior member of the prince’s retinue” (see Baranowski, 181–182). If the gridin is usually supposed to have had primarily military duties, the iabetnik is considered to be mostly a civilian officer with general administrative duties (see Baranowski, 182–184). Most authors regard the term to be of Scandinavian origin; its actual origin would then be in Gallic ambactus. Less problematic is the mechnik, the ‘swordman’, an armed follower, a bodyguard, also often involved in duties connected with the prince’s court (see Baranowski, 184–185).

598

chapter 19

involvement in legislation is indicative of their high rank. The second part of the Expanded Pravda, the so-called Statute of Monomakh, has a comparable formula where it declares in the preamble (art. 53) that prince Vladimir called together his druzhina, naming the chiliarchs (tysiatskie, thousandmen, ‘mayors’) of the three main cities, as well as three others. This small group of persons, closely associated with the ruling prince, constituted the nucleus from which in subsequent centuries the highest class of boyars arose. The Church Statute of Iaroslav already knew the distinction of great (velikie) and minor boyars (men’shie boiare, in arts. 2, 4 and 7). Many legislative documents from the Kievan era were preceded by a preamble in which the legislator (the prince) announced that he had consulted with (his wife and relatives and) his boyars. In some cases they were even mentioned by name.15 The gridin (in art. 1 of the Short Pravda) or grid’ (in art. 1 of the Expanded Pravda) is the subject of one of the three parts of Stefanovich’s study of the Kievan elite. Among the junior members of the prince’s retinue, the otroki (lit. “youths” or “young men”), the gridi are regarded by the author as a private army in the pay of the prince. Their numbers were much greater than those of the boyars or the druzhinniki. According to Stefanovich, who pointed to several parallel developments in proto-medieval Western and Central Europe, they were employed especially during the reign of the first Rurikid princes, up to Iaroslav Mudryi, in the campaigns for the collection of tribute. With the establishment of the Kievan empire their role lost much of its importance and they gradually merged with the lower layers of the elite.16 With the proliferation of the Rurikid house, a growing number of princes without principalities of their own emerged. They would normally enter the service of a more powerful relative and then constitute a separate section of the class of great boyars (see the section on “service princes” in Chapter 14). The original equality of druzhina members initially found expression in their freedom to join and to leave. This right continued to be enjoyed by the Kievan boyars, who were entitled to leave their prince and enter the service of another prince. Once boyars came to be rewarded for their service with land grants and these grants tended to be inherited within the boyar’s family, the old system became untenable.17 The rise of Muscovy hegemony was 15

E.g. an immunity charter from Oleg Ivanovich, grand prince of Riazan’, from around 1371, mentions nine persons, one of them with a Tatar name, and two with their office (an okol’nichii and a chashnik); prp iii, 96–97. 16 Stefanovich, Boiare, 304–358. 17 Cf. P.S. Stefanovich, “Kniaz’ i boiare: kliatva vernosti i pravo ot”ezda”, A.A. Gorskii (a.o., eds.), Drevniaia Rus’. Ocherki politicheskogo i sotsial’nogo stroia, Moskva, 2008, 148–269;

The Individual and the Family

599

a­ ccompanied by increasing curtailment of boyar mobility, as documented by the numerous treaties concluded between the grand princes of Moscow and the princes of adjacent territories. While the quality of prince was unconditionally inheritable,18 the same did not apply to boyars. Sons of boyars would usually try to attain high offices, like their fathers and ancestors, and this resulted in the establishment of regular boyar families. Membership of such a family did not automatically involve boyar status; socially less successful members would still be known as “boyars’ children” (deti boiarskie); in the 15th century the deti boiarskie had come to constitute a genuine social class and were mentioned as such in legislation.19 The lower end of the boyar class was therefore not clearly defined and merged with the lower nobility. In the Muscovy state, the highest echelon of the boyar class was formed by the boiare vvedennye (the ‘introduced’ boyars) and the boiare putnye (the boyars who headed a put’, a department), both offices depending on appointment by the grand prince. In his discussion of the development of the Kievan upper class, D’iakonov has stressed the importance of the relative wealth of an individual. Junior druzhina members, he argued, contributed their personal loyalty and commitment to the prince, while boyars or the ‘prince’s men’ also brought their private armed supporters.20 The prince could elevate an individual to boyar status,21 and would presumably endow the new boyar adequately. When prince Vladimir Mstislavich proposed in 1169 to elevate his junior druzhina (the detskie) to boyar status in order to bypass his recalcitrant boyars, the plan failed because his means were inadequate.22 The milostniki, encountered in 12th century sources, possibly represented a special category of persons in the lower ranges of the elite. Tikhomirov has been the only author who has paid serious attention to them.23 The term m ­ ilost’

18 19 20 21 22 23

S.B. Veselovskii, “Ocherki obrazovaniia Moskovskogo boiarstva”, Moskovskoe gosudarstvo: xv–xvii vv. Iz nauchnogo naslediia, Moskva, 2008, 74–140 (at 80–92); Veselovskii’s paper on the boyars of Moscow was first published in S.B. Veselovskii, Issledovaniia po istorii klassa sluzhilykh zemlevladel’tsev, Moskva, 1969, 465–519. There are very few examples of Rurikid families losing or abandoning princely status, Tatishchev and Musorgskii being among them. E.g. in art. 21 of the Charter of Belo Ozero of 1488, prp iii, 173; rz ii, 195; Kaiser, Laws, 125. D’iakonov, 81–86. Vladimir did so in 992, see Prim. Chron. D’iakonov, 85. Mostly in M.N. Tikhomirov, “Uslovnoe feodal’noe derzhanie na Rusi v xii v.”, id., Drevnaia Rus’, Moskva, 1975, 233–239 (orig. in Akademiku Borisu Dmitrievichu Grekovu ko dniu

600

chapter 19

(“grace”, “favour”, “free gift”), from which milostnik has obviously been derived, is mentioned in art. 111 of the Expanded Pravda, which elaborates on the basic provision on slavery in art. 110. Art. 110 described the basic three forms of slavery and art. 111 added a few similar situations which did not lead to slavery: anyone who worked v dache (“for a gift”, i.e. for money), or po khlebe (“for bread”, i.e. for wages in kind), or po pridat”tse (“for an additional allowance”, the exact meaning is unclear) did not become a slave. The provision then continued by laying down that “the favour” (milost’) was to be returned when the full period agreed had not been served (ozhe ne dokhodiat’ goda, to vorochati emu milost’). There is no agreed reading of art. 111, neither of its general sense, nor of several of its crucial terms.24 Tikhomirov regarded the recipients of the milost’ (milostniki) as junior members of the retinue of a prince or a wealthy boyar, generally of unfree origin, who were employed primarily as armed followers. They were rewarded with money, arms and other valuables, and then also with land. In this way they became one of the precursors of the later dvoriane. Although in later years and up to the present day dvoriane has been the general term for nobles, its original meaning was ‘courtiers’, referring to princely servants below the rank of boyars, and appearing first in the Russian North.25 The 1264–1265 treaty between Novgorod and the grand prince of Tver’ makes this very clear by forbidding the prince, and “your princess, your boyars and your dvoriane”, to hold villages on Novgorod territory (art. 12). Dvoriane make an appearance in all the Novgorod-Tver’ treaties, in the Novgorod and Pskov Charters, and in the Charter of Dvinaland. In all these cases the dvorianin ­appears as a servant, an official, of the prince. They were recruited mostly from the pool of free persons under the prince’s control, but also from the lower stratum of the druzhina, such as the otroki (lit. “youths”) and detskie (id.), m ­ entioned in

24 25

s­ emidesiateletiiu, Moskva, 1952, 100–104); also id., Drevnerusskie goroda, Moskva, 2008, 124–125 (orig., Moskva, 1946), and id., Posobie, 110. Cf. Baranowski, 676–684. Cf. M.B. Sverdlov, “Dvoriane v Drevnei Rusi”, Ezhov, V.A. (ed.), Iz istorii feodal’noi Rossii. Stat’i i ocherki k 70-letiiu so dnia rozhdeniia prof. V.V. Mavrodina, Leningrad, 1978, 54–59. The earliest literary mention is in the Laurentian Copy of the Suzdal’ Chronicle in the description of the assassination of prince Andrei Bogoliubskii in 1175 (psrl I vyp.2, 369–370). An early example from a legal text is the 13th century treaty between Novgorod and prince Iaroslav Iaroslavich of Tver’ (usually dated 1264–1265), art. 20; see gvnp No.1, 10; prp ii, 136; Kaiser, Laws, 68. Even earlier is the term bozhie dvoriane (“God’s noblemen”), which obviously referred to the knights of the German Order, in art. 36 of the 1229 treaty between Smolensk and Riga (prp ii, 67). On dvoriane in the Vladimir-Suzdal’ grand principality, Iu. A. Limonov, Vladimiro-Suzdal’skaia Rus’, Leningrad, 1987, 150–173.

The Individual and the Family

601

the Expanded Pravda.26 Froianov observed that, although the use of dvorianin was originally restricted to the North of Russia, the collective dvor was used in Southern Russia to refer to all the court servants of a prince.27 In most of the other Novgorod-Tver’ treaties, dvorianin is interchangeable with slug (“servant”, cf. art. 7 of the 1264–1265 treaty with parallel formulas in a 1270 treaty, a 1304–1305 treaty, a 1307–1308 treaty, a 1326–1327 treaty, and a 1371 treaty).28 The ‘noble’ status of dvoriane (slugi) is confirmed by the fact that they, along with princes and boyars, were capable of holding ‘indentured servants’ (zakladniki), see e.g. art. 18 of the 1326–1327 Novgorod-Tver’ treaty, which expressly forbad them all to recruit zakladniki on Novgorod territory. In the majority of the sources the dvorianin appears only sporadically. The Code of Ivan iii of 1497 mentioned boyars and numerous government officials, but was completely silent about dvoriane. Instead, a profusion of officials is indicated by the name of their office. While the highest positions were reserved to the boyar class, officials of medium rank constituted the corps of dvoriane. They occupied posts in the general service of the prince (a dvorskii or steward, a volostel’ or rural agent, a lovchii or forest and hunting agent), in military service, and in the justice system (a tiun or sheriff, a pristav or bailiff, also nedel’shchik).29 Being a dvorianin depended primarily on the position ­occupied, not on birth. Nobility (dvorianstvo) in the sense of a closed class, ­defined by birth, therefore did not yet exist, and would appear in Russia only by the end of the 17th century. This is also illustrated by the fact that boyars could have dvoriane of their own. In fact, anybody who had a “court” (dvor), such as a monastery or an important local official, might employ servitors (not being rank-and-file peasants or workers) who would be called dvoriane.30 Freemen It would be unrealistic to view a medieval society, such as that of Kievan Russia, as consisting of a general population of ordinary citizens with a few additional special categories of persons, such as princes and nobles, clergy, and 26

In the view of Sergeevich, Drevnosti i, 497. D’iakonov (81) believed that unfree persons and even slaves (kholopy) could be elevated to the status of dvoriane. 27 Froianov, KRsp, 95–98 ; Nachala, 572–575. 28 The treaty of 1264–1265 (see previous footnote) was followed by similar treaties of 1266– 1267 (gvnp No.2, 10–11 ; prp ii, 137–138), 1270 (gvnp No.3, 11–13; prp ii, 138–141), 1304–1305 (gvnp No.6, 15–16 ; Kaiser, Laws, 69–71), 1307–1308 (gvnp Nos.9–10, 19–22), 1326–1327 (gvnp No.14, 26–28; Kaiser, Laws, 72–74), and 1371 (gvnp No.15, 28–30; Kaiser, Laws, 75–78). 29 Cf. I. Porai-Koshits, Istoriia russkogo dvorianstva ot ix do kontsa xviii veka, Moskva, 2003 (orig. Sankt-Peterburg, 1900), 48–52, 62–69. 30 Sergeevich, Drevnosti i, 499–500, offers many examples.

602

chapter 19

unfree persons. To be sure, it was preceded by a considerably more egalitarian type of society. This is reflected by the earliest phase of the rp, particularly by the first article of Iaroslav’s Pravda, defining the sanction for killing an ‘ordinary person’, the muzh. In the next phase, the Pravda of Iaroslav’s Sons, social differentiation was already more pronounced, and this tendency continued in the Expanded Pravda. Anyway, it has to be kept in mind that even in pre-Kievan (pagan) times the existence of slavery is well-documented, which implies that at that stage the mass of the population did not constitute a single block of persons endowed with more or less equal rights. The few authors who express the intention to describe the legal position of ‘ordinary people’, the middle class between princes and nobles on one side and the unfree on the other, abandon their effort almost immediately by starting to discuss the position of two specific groups, the merchants and the craftsmen.31 The closest one gets to a designation of the common people is the term chernye liudi, ‘black people’, or collectively the chern’. An early occurrence of the term is in the so-called Testament (Rukopisanie) of the Novgorod prince Vsevolod Mstislavich, which effectively constituted the guild charter of the merchants of the church of St. John the Baptist. It is dated around 1137.32 It provided for the representation of the well-to-do (zhit’i) and the common people (chernye) among the aldermen of the guild. The common people were represented by the Novgorod tysiatskii (the highest-ranking city official after the posadnik).33 In the Charter of Dvina Land (1397), the chernye liudi are mentioned in the preamble, in opposition not to the well-to-do, but to the boyars. This text indicates that ‘black people’ were not an exclusively urban phenomenon; moreover, they were free persons.34 They are mentioned occasionally in the 15th century, but after that the term becomes obsolete.35 One of the few clear pictures of social stratification is in art. 7 of the Church Statute of Iaroslav which set fines for parents who failed in their duty to find a husband for their daughters; great boyars paid 5 gold grivna, lesser boyars one gold grivna, well-to-do persons (narochity liudi) 12 (ordinary) grivna or 2 rubles, and ordinary people (prostaia chad’) one silver grivna of one ruble.

31 32

33 34 35

E.g. D’iakonov, 86–87; Iushkov, Stroi, 264–265. The church of St. John the Baptist in the court of Petriata, also called na Opokakh, was founded in 1127 (Novg. Chron.) and Vsevolod, son of Mstislav, grandson of Vladimir Monomakh, died in 1138. Text and comments in prp ii, 174–185. See also Iushkov, Stroi, 264–265. Kaiser translates chernye liudi as “taxpaying people”. E.g. in art. 7 of the Code of 1497; in the treaty of 1496 between the Riazan’ princes Ivan Vasil’evich and Fedor Vasil’evich (prp iii, at 281; ddg, No.84, at 335).

The Individual and the Family

603

The well-to-do people mentioned above (narochity liudi, and zhit’i liudi in Novgorod) are encountered in legal and general sources under various guises and it is difficult to determine the exact content of the various terms. “Good people” (dobrye liudi) are mentioned several times in connection with procedure, where they may be called upon as assessors or witnesses.36 But the Metropolitan’s Justice (art. 7) mentions the “good people” as a social class between the lesser boyars and the well-to-do (narochity) people.37 So possibly the “good people” represented the upper layer of the well-to-do people, not only at least reasonably well-off, but also enjoying sufficient social prestige, solid citizens, “good men and true”. This view is further corroborated by other sources confirming that reliability, based not only on wealth but also on respectability, was the decisive criterion for including somebody among the “good people”.38 The sources allow us therefore to distinguish between various categories of persons of different legal status and they may give some indication of what these differences consisted of. What they do not offer is a definition of these categories; what would make a person a boyar, or a member of the well-to-do citizenry. Perhaps no clear-cut definition existed and the borderlines between the adjoining categories were fluid, a situation not unknown in medieval Western Europe where well-to-do burghers could gradually attain noble status by adopting a ‘noble’ lifestyle. In the discussion on legal conceptualization in Chapter 1 we developed the view that legal concepts do not ‘pre-exist’, but are created, invented, in order to construct an appropriate legal framework to deal with particular issues. Modern views on the rule of law, civil rights, etc., require concepts such as “the citizen” or “society as the organic whole of all human persons within a certain territory”. Other legal cultures may get their business done without recourse to such ideas and the anachronistic application of our views to such cultures might not produce important new insights. We intend therefore to look in somewhat more detail at divisions which were en vogue in early medieval Russia. Most of them were connected with the different relationships within urban and rural situations; the legal status of specific groups or classes in either towns or the countryside has already been treated in the relevant chapters on towns (15) and rural Russia (18). What remains are those groups which straddle the urban–rural divide. They include 36 37

38

Pskov Court Charter, arts. 56–57; Novgorod Court Charter, art. 25; Beloozero Charter, art. 19. This provision is obviously based on art. 2 of the Church Statute of Iaroslav. In other provisions of this text narochity liudi appears, apparently as a synonym of dobrye liudi (e.g. art. 3). Cf. art. 4 of the ‘Testament’ (Rukopisanie) of Vsevolod Mstislavich (prp ii, 176), or the repeated references to dobrye liudi in the Smolensk Pravda (prp ii, 57, 58, 68, 70).

604

chapter 19

princes and nobles (discussed above in this chapter) and the various categories which could be regarded as the middle and lower (unfree) classes. The urban middle class would embrace at least merchants and free craftsmen (see also Chapter 15). From the earliest times on, the sources distinguish between merchants engaged in long-distance trade (called gosti), and local merchants (kuptsy). A merchant was generally a freeman, but the master of a serf or slave could of course instruct the latter to act for him in a commercial capacity. That this was a normal phenomenon is reflected in art. 117 of the Expanded Pravda, which deals with the situation of the slave trading in the market on his master’s orders and then becoming indebted. Unfree craftsmen, i.e. in the service of a master, were quite common. In Chapter 16 (on Novgorod) we saw that the boyars constituted a relatively closed group, as opposed to the merchants, who were defined by their activity and not so much by their descent. In Muscovy the boyar class was open to new members, elevated to that status by the grand prince (tsar). Rich merchants in particular, who were able to render material support to the prince’s projects, were obvious candidates and there are several examples of gosti (merchants engaged in foreign trade) being made boyars.39 In the countryside it would be more difficult to speak of a middle class. Its backbone would be formed by free peasants, united in the village community, but disposing also of individual plots of land. With the passing of time, however, peasant independence became more and more eroded until the typical peasant was attached to the land owned by a master (prince, lord, or church). This process evolved through the emergence of various categories of semi-free (or semi-dependent) peasants, such as the riadovichi (appearing already in the Short Pravda), the zakupy (in the Expanded Pravda and later), the zakladniki in the Novgorod region, the izorniki in Pskov, etc. Craftsmen, free and unfree, might also be found in the larger villages (e.g. a blacksmith). Izgoi or déclassés The izgoi is generally defined as a person who has been rejected by his own world (family, village, town, clan, etc.) and the term has survived to this day

39

Several members of the Golovín family, descended from Greek merchants on the Crimea who had migrated to Moscow in the 14th century, served as treasurers (kaznachei) to the Moscow princes, an office which implied boyar rank. Cf. V.B. Perkhavko, “Gost’ i boiarin velikogo kniazia”, A.N. Sakharov (ed.), Ot Drevnei Rusi do novoi Rossii. Iubileinyi sbornik, posviashchennyi chlenu-korrespondentu ran Ia.N. Shchapovu, Moskva, 2005, 191–203.

The Individual and the Family

605

with the meaning of “social outcast”.40 The izgoi appears only rarely in the sources, the main places being art. 1 of the rp (both versions) and the Church Statute of prince Vsevolod of Novgorod. This has not prevented the emergence of a very substantive body of literature.41 As almost all the leading historians of Kievan Russia formulated their own more or less comprehensive theories about this period, the modest data on the izgoi presented an opportunity for amplification on the basis of theoretical constructs. In art. 1 of the Short Pravda the izgoi is included in the list of persons for whose killing a 40 grivna wergeld is due, where he is placed between the first set of persons (ending with the prince’s bodyguard, the mechnik) and the man from Novgorod (slovenin). In art. 1 of the Expanded Pravda this part of the formula is almost identical. More information is provided by the so-called Church Statute of prince Vsevolod of Novgorod.42 This document is itself rife with obscurity, starting with its date and the identity of its ostensible author. One of its provisions defined “church people” (art. 6 in the prp, art. 17 in Shchapov’s edition). The definition indicated three categories of izgoi: an illiterate son of a priest, a slave (kholop) who had paid his way to freedom, and a merchant in debt (bankrupt). The definition then continued: “and we add a fourth form of being an izgoi ourselves: a prince who has become orphaned, and persons in monasteries, sick-wards, inns and pilgrim hostels.” The definition is part of a complex of rules about the legal status of the Church and “church people”; it dealt therefore with izgoi who had come under church jurisdiction and did not exclude the existence of other izgoi. Leaving aside the various theoretical frameworks which have been proposed for explaining the status of the izgoi, as well as the more fanciful solutions suggested,43 the general opinion remains that an izgoi was a person who for one reason or another had left or lost his normal social setting with the traditional rights and duties attached to it. A prince as well as a slave could become an izgoi. The phenomenon would occur especially in times of increased social friction and then the law would have to deal with individuals who no 40

41 42 43

Cf. Tikhomirov, Posobie, 149; Grekov, Kievskaia Rus’, 247–255; Iushkov, Ocherki, 119–124; Froianov, Nachala, 460–469. This interpretation is fully supported by etymological arguments, as pointed out by many authors. Discussed and summarized by Baranowski, 175–181. prp ii, 160–173; Ia.N. Shchapov (ed.), Drevnerusskie kniazheskie ustavy xi–xv vv., Moskva, 1976, 153–156. Also in Kaiser, Laws, 59–63 (who follows Shchapov’s numeration). As Vernadsky, in Vernadsky, Laws, 27, who suggests that the izgoi of art. 1 was a member of the princely retinue of Ossetian or Circassian origin.

606

chapter 19

longer fitted the traditional patterns. An izgoi who did not succeed in finding his footing would eventually join the growing reservoir of dependent persons, although originally the status of izgoi did not entail loss of freedom, as indicated by the wergeld allotted for his killing in the rp. Baranowski’s conclusion, at the end of his exhaustive review of the various viewpoints is worth quoting: From all these opinions concerning the izgoi one might conclude that the term does not denote a territorially or ethnically, but socially determined category. The izgoi are people who have been excluded from, or who have left their social community (village or town, family, social class) and who are initially without social, economic or legal roots, but then end up under the protection of the prince or of the Church, although not of boyars.44 The limited evidence from times after the rp suggests that the izgoi in fact merged with the mass of the dependent population. The charter of the Smolensk prince Rostislav Mstislavich (reliably dated 1137), in which the relations between the prince and the newly established bishopric of Smolensk were regulated, mentions the village of Drosenskoe with its land and its izgoi, donated to the bishop.45 Church People A formal characteristic of “church people” was that this distinction, unlike all others, cut across all other distinctions. In principle, one was born within a certain class and stayed in it until death. But members of all classes could become church people at some time in their lives. Even princes and princesses, when they felt the end of life approaching, would often become monks or nuns. Church people embraced not only the actual clergy (priests, deacons, monks, nuns), but also a host of other persons. The Church Statute of St. ­Vladimir, the earliest statute dealing with matters of Church and state, already offered a list of church people (tserkovnye liudi). Belonging to this category entailed all kinds of legal consequences and it will be more convenient to deal with this subject in more depth in Chapter 21.

44 45

Baranowksi, 181 (my translation, ff). Szeftel-Eck translate izgoi as déclassés, M. Szeftel. A. Eck, Documents de droit public relatifs à la Russie médiévale, Bruxelles, 1963, 31, 68. prp ii, 37–42, at 41. Kaiser, Laws, 51–55, at 54.

The Individual and the Family

607

Unfree Persons: Serfs and Slaves People traditionally regarded as free, such as nobles or merchants, may also be restricted in their freedom in a number of ways. Our modern concept of unfree people is probably based on the equally modern concept of the citizen as a person enjoying the full panoply of traditional personal rights. Unfree persons would then be those who lacked at least some of the most significant of these rights, such as the right to move around freely or to own and inherit property (especially land). At the lowest level are those who lack the capacity to enjoy any rights at all, in other words, who do not participate in legal traffic as persons – slaves in the strict sense, non-persons who are objects and not subjects of rights. Such a definition of slavery has the advantage of complete legal clarity. It is also not unrealistic, because slavery in this strict sense has occurred in various cultures, including an early phase in Russian history. Such slavery itself, however, has certain unrealistic features (quite apart from ethical considerations), because a slave, as a human being, inevitably relates to its surroundings in a way different from the closest comparable ‘object’, an animal. Even ‘classic’ slave-owning societies therefore had to address legal situations which could not arise with animals but only with slaves: liability for legal transactions concluded by a slave on the orders of his master; the use of slaves as witnesses; criminal offences committed by slaves, to mention only a few obvious examples. Strict slavery was therefore inherently unstable and liable to be eroded by the demands of daily life. As a result, it turns out that the borderlines between free and unfree, and between unfree persons and slaves, are rarely as clear as stipulated from the start. This certainly applies to medieval Russia where the measure of freedom enjoyed by all classes was probably more modest than in medieval Western Europe. There were various categories of dependent persons who found themselves somewhere between the fully-fledged slave and the freeman; most of these formed part of the peasant population and have accordingly been discussed in Chapter 18. Several of them occur already in the rp (e.g. smerdy, zakupy). In the countryside, the smerdy would probably make up the majority of the unfree population and they could be regarded as serfs. The Expanded Pravda contained a general recognition of the existence of non-slaves who were still in a position of dependence (art. 111) and this provision was included in the concluding part of the law, entitled “On Slavery” (see below). Slaves in Kievan Russia A precise legal definition of a slave in Kievan Russia is hard to give, as certain aspects of his legal status changed over time. By way of a general understanding we could start from the position that a slave was a person who depended

608

chapter 19

in most of these aspects on the will of a master, capable of buying and selling a slave.46 The existence of slavery among the Eastern Slavs in pre-Kievan times is well-documented by the works of oriental geographers. The earliest of these is a Persian, Ibn Rustah, the author of the “Book of Precious Records” (903–925), who supposedly visited Kiev and Novgorod himself. Like most oriental authors, he distinguished between Russes and Slavs. The Russes, he relates, would attack the Slavs and sell them as prisoners into slavery in southern lands. They themselves were used to treating slaves well. He is less clear about the Slavs, but the communication that their ruler would hand thieves over into the supervision of local rulers of remote areas suggests that they also knew slavery.47 A raiding campaign by Russes along the Caspian coast of present-day Azerbaidzhan, occurring around 912 and involving the capture of prisoners for the slave trade, is described by Al-Masudi, an Arab author who died in 956. This campaign had all the characteristics of a Viking raid and supports the view that the Russes of the Arab geographers were of Scandinavian origin.48 Al-Garnati, an Andalusian Arab author who visited Russia and Eastern Europe during the years 1050–1053, designated the population of Southern Russia as Slavs, without mentioning any Russes. These Slavs, according to Garnati, kept slaves and engaged in the slave trade.49 This information agrees with the knowledge we have from other sources that the Scandinavian element had by that time been absorbed into the general Slav population.50 46

47 48 49 50

R. Hellie, Slavery in Russia 1450–1725, Chicago 1982, although dealing with another period, discusses definitions of slavery at 18–21, 33–64, and 77–80, and these observations are of great relevance to the present topic, although he fails to come up with an unambiguous answer himself; in Russian pre-revolutionary literature slavery is discussed at length by Sergeevich, Drevnosti, 102–159; P.I. Beliaev, “Kholopstvo i dolgovyia otnosheniia v drevnem russkom prave”, Iuridicheskii Vestnik, 1915, kn. ix (i), 115–152; Vlad.-Bud., Obzor, ­386–401; among Soviet authors A.A. Zimin, Kholopy na Rusi (s drevneishikh vremen do kontsa xv v.), Moskva, 1973, is the principal work. Generally, Soviet scholars appeared to have been more interested in the ‘loan slavery’ (kabal’noe kholopstvo) of the 16th century and later times. T.N. Dzhakson, I.G. Konovalova, A.V. Podosinov (eds.), Drevniaia Rus’ v svete zarubezhnykh istochnikov: Khrestomatiia, t.iii: Vostochnye istochniki, Moskva, 2009, 47–49. Idem, 115–116. Idem, 143–144. The question of slavery among the Eastern Slavs is discussed in detail by I.Ia. Froianov in Rabstvo i dannichestvo u vostochnykh slavian, Sankt-Peterburg, 1996, 74–103. Froianov cavalierly assigns the Russes to the Slavic ethnic group, disregarding the clear distinction often made by oriental authors. Where the latter do not distinguish, they presumably refer to the entire population of the region in question, whether designated as Russes or

The Individual and the Family

609

The main information on slavery provided by the Primary Chronicle is that its existence was a common phenomenon during the 10th and 11th centuries and that the slave trade was an important economic activity. The Chronicle refers to slaves generally as cheliad’, a collective noun, and cheliadin, an individual slave.51 These terms were also used in the texts of the treaties with Byzantium, included in the Chronicle. The 911 and 944 treaties paid considerable attention to slavery, particularly of course to slavery issues arising in RussoByzantine relations. Art. 9 of the 911 treaty directed Russians resp. Greeks who came across Greek resp. Russian slaves in foreign lands to redeem them with subsequent reimbursement of the price paid, or of the going market price for a slave. Russian resp. Greek prisoners sold among the Greeks resp. Russians were to be ransomed for twenty gold pieces (bezants) – art. 11. A Russian slave who had run away or had been stolen or forcibly abducted could be redeemed by the Russians and the Greek authorities were obliged to co-operate in this procedure (art. 12). The slave’s testimony could be accepted in confirming the course of events.52 This is of interest, because in later sources the testimony of slaves was normally not taken into consideration. In the 944 treaty the question of runaway slaves was split. Art. 3 dealt with Russian slaves and art. 4 with Greek slaves, sheltering with Greeks or resp. Russians. If the slave of visiting Russians had fled and was discovered, he could be taken back; if he could not be found, the Russian (owner) had to confirm by oath (that his slave had run away), and then he would receive two silk cloths (pavoloki) per slave (from the Greek authorities presumably). It would be difficult for visiting Russians to hide a fugitive Greek slave; it is implied in art. 4 that such a slave was returned and the provision only looked at the special case when the slave had taken something with him (when he fled). If the property was undamaged, the owner was to pay the Russian two gold pieces.53

51

52 53

as Slavs. Where they do distinguish, Russes refer to the Scandinavian element, and Slavs to the Slavic element. This construction agrees with information from other sources and provides the most satisfactory explanation of the inconsistent nomenclature of the oriental texts. The term is etymologically cognate to chelovek (“man”, “human being”), chado (“child”, “offspring”), with many connections to the vocabulary of other Indo-European languages. See A.A. Zimin, Kholopy na Rusi, Moskva, 1973, 15–17. At least this is the reading put forward by Zimin in his modern Russian translation, prp i, 13. Kaiser’s translation (Kaiser, Laws, 6) is different. This is the reading of Kisterev, who disagreed with Zimin’s explanation in prp i. It raises more problems than it solves. See S.N. Kisterev, “Cheliadin v russko-grecheskikh dogovorakh x v.”, dgve 2002, Moskva, 2004, 200–213.

610

chapter 19

Cheliadin occurs in the rp, in both versions, where it co-exists with kholop (male slave) and roba (female slave).54 Art. 16 of the Short Pravda (and its much amended version in the Expanded Pravda, art. 38) removes any doubt about the cheliadin being a genuine slave, treated as a commercial item and not endowed with personal rights. These provisions were concerned with the involuntary loss of a slave by its owner and displayed some similarity with the procedure regulated in the treaties of 911 and 944. They involved a procedure called confrontment (svod), consisting in the reconstruction of the chain of possession between the original owner and the person in whose possession the slave was encountered. It would normally require the slave’s co-operation, and this is made explicit by art. 38 of the Expanded Pravda.55 Art. 11 of the Short Pravda is also reminiscent of the arrangements of the 911 and 944 treaties and dealt with the situation where a runaway slave was hiding with a Viking or Kolbiag. The terse formulation seems cryptic, but can easily be explained in the light of the origin of this part of the Short Pravda (discussed in the section on the Pravda of Iaroslav) and the more extensive formula of the corresponding provision of the Expanded Pravda (art. 32). The latter rule omitted the specific reference to a foreign possessor, prescribed a public announcement of the loss of the slave at the market place, granted the possessor a three-day period in which to hand over the slave to his owner, and allowed the owner to take back his slave together with a three grivna fine after three days. This procedure is presumably implied in the brief formula of art. 11 of the Short Pravda. The cheliadin is mentioned once more in passing in the Expanded Pravda (art. 99), in wording which again emphasizes the slave’s character as a commercial item (“the offspring of a slave or of cattle”, ot cheliadi plod ili ot skota). In the Short Pravda, the kholop makes his first appearance in art. 17 in a situation which mirrors the one described in art. 11 (the slave hiding with a Viking). A slave (kholop) who has struck a freeman and who then hides with his own master should be handed over for punishment, otherwise the master is to pay 12 grivna (to the injured person); if the injured person comes across the slave later on, he is allowed to beat (kill?56) him. Art. 26 set the wergeld for a kholop 54 55

56

On the legal aspects of slavery in medieval Russia generally, see E.I. Kolycheva, Kholopstvo i krepostnichestvo (konets xv–xvi vv.), Moskva, 1971, 202–240. In Kaiser’s translation: “… and this property is not cattle, so it is not possible to say «[I do not know] from whom I purchased [the slave]»; but [pursue the confrontment] on the [slave’s] word until the end …”. According to Zimin in his modern Russian translation, prp i, 82. This reading is confirmed by the parallel text of art. 65 of the Expanded Pravda which explicitly mentioned that Iaroslav had allowed the killing of a slave who had struck a freeman, but added

The Individual and the Family

611

at 5 grivna; this provisions is part of the long list of officials and servants of the prince; the wergeld was obviously to be paid to the prince. As has been discussed in the section on smerdy, this provision mentions smerdy and kholopy together, the wergeld for each of them being set at 5 grivna. The abduction of a male (kholop) or female slave (roba) entailed a payment of 12 grivna to the master, za obidu (“for the injury”, art. 29 of the Short Pravda). This payment came on top of the return of the slave or the payment of the slave’s value.57 Art. 16 of the Expanded Pravda corresponds to art. 26 of the Short Pravda (the 5 grivna wergeld for a smerd or a kholop), but added the female slave (roba), who merited a 6 grivna wergeld. The following provision (art. 17) set the wergeld for a tutor or a wet-nurse (of the prince’s household) at 12 grivna, adding “even if they be a kholop or a roba”. Art. 46 of the Expanded Pravda is the last article in a block of provisions devoted to theft and deals with theft committed by slaves (kholopy). Unlike other thieves, they were not fined by the prince, “because they are not free”, but their master paid twice the amount stolen to the complainant.58 The text referred to “slaves of princes, boyars, or monks”. In the later layers of the Expanded Pravda, following the Statute of Monomakh, which begins at art. 53, there are two main blocks of provisions, along with a few isolated provisions between them, which prominently concern the legal status of slaves. The first one starts at art. 56 and deals first with the indentured peasant, the zakup. It introduces a new concept in art. 61, the full slave (obel’nyi kholop), indicating a further differentiation within the class of unfree persons. The full slave is mentioned again in art. 63 (the master of a full slave who had abducted a horse was to pay 2 grivna to the injured party). Art. 65 has been mentioned above and offered a more detailed parallel to art. 17 of the Short Pravda (slave striking freeman). Art. 66 prohibited slaves from testifying, but allowed the testimony of a boyar’s overseer (tivun, obviously an unfree person) if no free person was available to give evidence; in minor cases the partially free zakup was allowed to testify. Art. 85 addressed this question somewhat differently. Such inconsistencies are caused by the character of the two versions of the rp: various more or less consistent legislative texts having that ­Iaroslav’s sons had replaced this sanction by financial compensation. See also B.A. ­Romanov, Liudi i nravy Drevnei Rusi, Leningrad, 1947, 52. 57 Zimin, op. cit., 100. According to Baranowski, 297, the 12 grivna fine was to be paid to the prince, but this reading is flatly contradicted by the text of art. 29 (platiti emu za obidu, “pay him for the injury”). 58 I have discussed the double-value fine of art. 46, a curious and unusual parallel with ­Roman law, in my “Roman Law in Medieval Russia”, in Feldbrugge, lmr, 59–128, at 113.

612

chapter 19

been amalgamated into a single longer text. Art. 85 concludes a block of regulations concerning different, mostly rural, disputes. It states that such cases are to be resolved through the testimony of witnesses. Although a slave cannot testify, a free person may rely on the word of a slave (kholop) and demand resolution of the dispute through trial by hot iron. If he lost the case, he had to pay the other party one grivna, for having relied on the word of a slave. In a similar manner, art. 89 contradicted art. 16 of the Expanded Pravda (which more or less repeated the much older art. 26 of the Short Pravda), prescribing a 5 grivna bloodwite (fine) for the killing of a male slave (of the prince) and 6 grivna for killing a female slave. Art. 89, the operation of which was not limited to slaves belonging to the prince, directed that the killing of a male or female slave did not entail bloodwite, but if it was done without cause, the offender was to pay compensation to the master of the slave and additionally a 12 grivna fine (prodazha) to the prince. Art. 98, part of a block of provisions concerning inheritance law, provided that if a freeman had children with a slave woman, the children (rob’i deti) did not inherit, but received their freedom, together with the mother, upon the death of the father. The second main block starts at art. 110 and is headed “On slavery”. This is the concluding part of the Expanded Pravda and it is generally regarded as a coherent regulatory complex for slavery at the time of its enactment. There is less agreement about the time of its enactment. Several authors have ascribed it to the legislative activity of Vladimir Monomakh (1113–1125), but other (later) 12th century princes have also been considered.59 In his posthumously published monograph on the rp, A.A. Zimin argued that its provisions go back to the 10th century, with certain modifications from the 11th century.60 The “Slavery Statute” (Ustav o kholopstve) of the rp opens with two provisions which contribute to the definition of what constitutes slavery; most of the remaining provisions deal with fugitive slaves. Art. 110 defined “full slavery” (obel’noe kholopstvo) by listing three origins of this status: a contract of sale, marrying a female slave, accepting employment as someone’s overseer (tivun) or steward. All commentators agree that there were several other origins of full slavery, such as being born into slavery or having been made a prisoner of war.61 The point of art. 110 is apparently to define the ways in which a person might enter slavery of his own will. For a completely destitute individual, accepting

59 60 61

A review of the literature is given by A.A. Zimin, Pravda Russkaia, Moskva, 1999, 255–276. Ibidem, 275. Cf. Baranowski, 671–676.

The Individual and the Family

613

the status of somebody else’s kholop could have been the only option to escape starvation. By regulating this process, art. 110 attempted to curb excesses. It appears that “full slavery” as regulated by art. 110 and mentioned in ­other provisions of the Expanded Pravda was actually slavery in the strict sense. There are no rules on ‘not-full slavery’ in the rp; one should think of various other categories of persons who were unfree or partially free, without being slaves, such as the zakupy, who were just a step above ordinary (full) slaves. The following rules of the Statute on Slavery (except art. 111) all concern full slavery.62 Most authors regarded sale, the first, most general and probably most widespread origin of full slavery, as covering self-sale into slavery.63 Among the conditions were the presence of witnesses and of the slave himself. A person who married a female slave was entitled to preserve his freedom by stipulating this in the contract (riad). The same possibility was available to the person who entered the service of a master as his steward or overseer. Art. 111 enlarged on the restrictions implied in art. 110 by listing various contracts which did not lead to slavery: working for money (a loan or a combination of a loan and wages), or for “bread” (upkeep), or something else put at his disposal (such as tools). If the worker does not work off his debt within the term agreed, he must return the loan.64 The status of such a person differed little from that of the zakup, and therefore, if he ran away before his debt had been paid, he would probably be covered by art. 56 of the Expanded Pravda, which provided that a zakup who ran away and was captured became a full slave.65 What these various arrangements illustrate is that the 12th century kholop was no longer a ‘classic’ slave, a commercial item which happens to be alive and able to speak, but a person with severely restricted rights, but a person nevertheless. The following rules of the Slavery Statute confirm this impression. Arts. 112–116 and 118–120 all concern the fugitive kholop and ‘supersede’ (so to speak) the older and much simpler rule of art. 32 of the Expanded Pravda, concerning the fugitive cheliadin, itself a modernized version of the even older rule of art. 11 of the Short Pravda. They suggest that runaway slaves were a common phenomenon and address various situations that could arise: penalizing assistance to a runaway slave (art. 112), rewarding somebody who captures 62 Cf. Baranowski, ibidem; Zimin, Kholopy na Rusi, 181–197. 63 Baranowski, ibidem. 64 On this topic, see Iu.G. Alekseev, “Stat’i o «vdachestve»”, Vspomogatel’nye istoricheskie distsipliny ix, Leningrad, 1978, 148–173. 65 Cf. Zimin in prp i, 186.

614

chapter 19

a runaway slave and penalizing him at the same time if he does not guard the slave properly (art. 113), the procedure for repossessing a slave who has fled to another town (art. 114), unwittingly aiding a runaway slave (arts. 115 and 116), unwittingly buying a runaway slave (art. 118), and liability of the master for ­actions of a runaway slave (arts. 119–120). The final provision of the Statute on Slavery (and of the Expanded ­Pravda), art. 121, dealt with the master’s liability for theft committed by his slave. The master had the choice between handing over the slave (together with his ­accomplices), or redeeming him. If the slave’s wife and children were not involved in the theft, they need not be handed over. Zimin had pointed to the incongruence of art. 121 and art. 46 of the Expanded Pravda. According to the latter rule, thieving slaves were judged by the prince’s court, while art. 121 ­allowed the ­victim of the theft and the slave’s master to settle the matter among themselves. This supports Zimin’s argument for an early origin of the Statute on Slavery.66 If one considers the provisions on the cheliad’ and kholopy (roby) in the rp, it is unmistakable that with regard to kholopy the accent appeared to be not so much on their value as commercial items as on their value as members of their master’s workforce. Combining this observation with the consideration that cheliadin was almost completely replaced by kholop as the designation of the slave in later documents, one could hypothesize that cheliad’ and cheliadin were used initially to refer to human beings as objects of the slave trade and kholop/roba as slave members of the work force.67 The two provisions on the cheliadin are included in the second part of the oldest layer of the Short Pravda (arts. 11 and 16), the Pravda of Iaroslav, from where they found their way into the Expanded Pravda (arts. 32 and 38). The kholop appears in the same part of the Short Pravda (art. 17), but also in its more recent layer, the Pravda of Iaroslav’s Sons (arts. 26 and 29). In any modern appreciation of slavery as a legal institution it is hard to distance oneself from ethical considerations based on Christian or humanist views on the value of the human person. Putting aside these considerations and looking at slavery from the point of view of legal ‘technology’, developments in early medieval Russia confirm our earlier conclusion that slavery as a legal institution is inherently unstable. The ultimate economic purpose of 66 67

Ibidem, 188. The semantic transformations of cheliad’ from early times to the 15th century are discussed by M.B. Sverdlov, “Ob obshchestvennoi kategorii «cheliad’» v Drevnei Rusi”, A.L. Shapiro (ed.), Problemy istorii feodal’noi Rossii. Sbornik statei k 60-letiiu prof. V.V. Mavrodina, Leningrad, 1971, 53–58.

The Individual and the Family

615

slavery is to put the slave to some economic use, either in domestic service or as a member of the labour force. Only in the intermediate stage, when the slave is being captured, transported and sold on the market, does he come close to being a purely commercial object, without any rights, a non-person. Once he has reached his destination this status cannot be maintained indefinitely and is gradually eroded by the dictates of daily life. The strict borders between slavery (being a non-person, without rights) and other states of dependency become blurred. It becomes possible to enter and exit slavery as part of a deal with a master. Slaves are no longer voiceless in law, they may under certain conditions appear as witnesses, etc. Once slave-trading has come to an end, for whatever reason, slavery is on the way out and is replaced by less extreme situations of dependency. The role of the Church is undeniable in this respect, at least in Russia, as demonstrated by art. 30 of the Metropolitan’s Justice, which condemned the killing of one’s own slave as an offence before God, admitting simultaneously that it was not homicide in the eyes of the secular law.68 Later Developments: From Slave to Serf The gradual dissolution of slavery in its strict original sense, evident already in the more recent layers of the rp, continued during the following centuries.69 This phenomenon had been noticed in pre-revolutionary literature,70 but became a prominent topic among Soviet medievalists, obviously because of its strong ideological associations. In the Marxist view, slave-owning societies were necessarily followed by feudal societies, with different sets of exploiters (slave-owners vs. feudal lords) and exploited (slaves vs. feudal serfs). For B.D. Grekov, the undisputed leader of this category of scholars in the Stalin era, the slavery/enserfment sequence constituted the central theme in his treatment of the later middle ages in his voluminous study on the history of the Russian peasantry.71 In later years, the monographs of Kolycheva and Zimin (already mentioned) were of considerable interest. 68

69 70

71

On the benign role of the Church in respect of slavery, see Zimin, Kholopy na Rusi, 239– 243; in standard Marxist fashion he explained this role by the Church’s interest in promoting feudalism, where there is no place for slavery. The transition from slavery to serfdom is the subject of a monograph by E.I. Kolycheva, Kholopstvo i krepostnichestvo (konets xv–xvi v.), Moskva, 1971. E.g. by Kliuchevskii, in a paper “Proiskhozhdenie krepostnogo prava v Rossii”, first published in Russkaia Mysl’, 1885, Nos.8 and 10, also in V.O. Kliuchevskii, Sochineniia, t.vii, Moskva, 1959, 238–317. B.D. Grekov, Krest’iane na Rusi s drevneishikh vremen do xvii veka, Moskva/Leningrad, 1946, Part 4 (549–943).

616

chapter 19

In the Donation of Varlaam from around 1211, the oldest private charter in Russia available in the original, a well-defined territory is donated to the Novgorod monastery of Spaso-Khutynsk, “with its slaves [cheliad’] and cattle”.72 But the 1229 treaty between Smolensk and Riga already went a step beyond the equation of slaves and cattle by recognizing the existence of the slave’s own property (in regulating unpaid debts between Russian and German merchants, in art. 7).73 The Church Statute of prince Vsevolod (discussed above in the section on the izgoi), tentatively dated to around the end of the 13th century,74 referred to the slave (kholop) who had bought himself free as one of the three sources of the izgoi status.75 This would represent another big step in the erosion of original slavery; not only might a slave have his own money, he could also, in principle, leave his status as a slave. The limited number of sources from the 14th century confirms this trend. Most of the treaties between Novgorod and the prince of Tver’, for example, stipulated that the Tver’ prince was not to hear complaints by Novgorod slaves against their masters, implying that slaves generally had a right to complain to the authorities about their masters.76 At the end of the 14th century the killing of a full slave by his master was still not a punishable offence, but it was condemned as being morally wrong (sinful) by the Church; art. 30 of the Metropolitan’s Justice has been mentioned above. Art. 11 of the Dvina Land Charter (1397) is quite similar: “If a master sins and strikes his own male or female slave and death results, the lieutenants are not to judge him and do not take any fees.” It is to be noted that art. 30 of the Metropolitan’s Justice strictly limited impunity to the killing of a full slave (polnyi cheliadin); the same provision added that the killing of a zakup (indentured labourer) or a hired labourer (naimit) constituted homicide. The latter at least is probably to be regarded as a slave, because art. 29 speaks of the cheliadinnaimit, the slave/hired labourer.77 The most powerful factor in the ‘humanization’ of the slave, his transformation from a commercial asset into a person possessing certain rights, was 72 73 74 75 76 77

prp ii, 108; gvnp (No.104), 161–162. prp ii, 54–71, at 60–61. Cf. Ia.N. Shchapov (ed.), Drevnerusskie kniazheskie ustavy xi–xiv vv., Moskva, 1976, 153. Art. 12 in the prp ii edition (164), art. 17 in Shchapov’s edition (157). Treaty of 1304–1305, art. 21, gvnp (No.6), 15–16 ; treaty of 1326–1327, art. 29, gvnp (No.14), 26–28 ; treaty of 1371, art. 27, gvnp (No.15), 28–30 ; also in Kaiser, Laws, 69–78. Iu.G. Alekseev discussed the exact meaning of cheliadin-naimit in the Metropolitan’s Justice in “Cheliadin-naimit Pravosudiia mitropolich’ego”, V.T. Pashuto (ed.), Rossiia na putiakh tsentralizatsii, Moskva, 1982, 41–48.

The Individual and the Family

617

the allotment of agricultural land to slaves. Again, as argued before, a modern ownership concept cannot be applied; the question to be asked in a medieval setting is not: Who owns this land?, but: Who can do what with this land? The transformation of the slave, looked at from a different angle, was also the ­localization of the slave; was he to be found somewhere around his master, as a servant of the house or living communally on the estate as a member of the work force (in other words, as a cheliadin, in the terminology of the rp), or did he live in his own dwelling with his family, working a plot assigned to him by his master? According to Iushkov, referring to the Testament of Antony the Roman and the Donation of Varlaam (mentioned above), the transition was already under way in the 12th century.78 Other authors are more cautious, but the settlement of slaves on land assigned to them individually in the 14th and 15th centuries is beyond doubt.79 The shift from the slave as an object of trade to the slave as an indispensable part of the agricultural labour force had a decisive impact on the legal aspects of slavery, although the origins of slavery remained the same as they had been in the era of the rp. Slaves were still bought and sold, but then together with the land they were attached to, by the person who was the owner of the land and at the same time the master of the slaves. For the vast majority of slaves the origin of their status was being born into a family of slaves; additional to this category were the persons who became slaves by marriage, under certain conditions (as explained above). Foreign prisoners of war could also become slaves (called polonianiki), and this applied in particular to non-Christians, such as Tatars and members of pagan Finnish tribes. Wars with Western powers and especially wars among Russian principalities would normally be ended by a peace treaty which would usually allow for an exchange of prisoners.80 There are examples however of persons from one principality being enslaved in another principality. Another source of slavery was conviction of a serious crime (e.g. repeated theft). Self-sale into slavery, as it had been known for centuries in Russia, continued well into the 16th century, but in changed circumstances. The typical situation in the past had been the indigent peasant who was forced to sell himself (with his family) to a master in order to avoid starvation. This situation also occurred regularly in later centuries, but, along with it, quite different c­ onsiderations 78 Iushkov, Ocherki, 61. 79 Cf. Kolycheva, op. cit., 97–99. 80 Examples of the situations referred to in this paragraph in Zimin, Kholopy na Rusi, 277–281.

618

chapter 19

might induce a person to change his status into that of a slave. This was connected with the increased variegation within the slave population. Talented and energetic slaves, serving in the household of a prince or boyar, were ­often able to rise socially by being entrusted with responsible positions in the administration of their masters’ estates.81 Eventually this category, or at least some of its members, approximated to the status of other less elevated members of the administration of the prince. They normally lacked the freedom to leave the service of their master. Such ‘court servants’ (dvorskie slugi or dvorskie liudi) were a far cry from the rank-and-file stradniki, slaves who had been supplied with a piece of land, agricultural implements and a dwelling by their masters in order to work for him.82 One of the merits of Kolycheva’s study (mentioned above) is that her detailed analysis of the extensive documentary material on slavery in the ­15th–16th centuries produced a vivid picture of the variegated composition of the slave population. One aspect was the difference in the development of the various categories of slaves; they grew and declined in different ways. For instance, a slave elite first emerged gradually; then, as it became more numerous and distinct, it was also depleted by the practice of princes and boyars to emancipate their servants (having the status of slaves) in their wills. Kolycheva characterized this category as slugi-ministerialy (servants-ministeriales), entrusted with civil or military offices by the prince. Among the civil offices one finds tiuny (stewards), dovodchiki (constables, bailiffs), pravedchiki (bailiffs, sheriff’s assistants), posel’skie (estate manager), kliuchniki (steward, estate manager, esp. of monastery), and especially d’iaki (clerks).83 The records show that it was not actually the office which bestowed elite status on a slave, but that a master would temporarily appoint one of his trusted slaves to a particular office. The same persons, in times of war, could serve in lower command functions (such as trubniki, trumpeters, sergeants). Between these various groups of ‘elite’ slaves and the ordinary slaves working the land there were intermediate groups, such as huntsmen, fowlers, cooks, bakers, etc.84 In the 15th century the authorities, in effect the Moscow government, ­assumed full control over the practice of selling oneself into slavery, known already in the Expanded Pravda. The standard form was a document called polnaia gramota (full charter), which mentioned the master, the person s­ elling 81 Cf. Zimin, op. cit., 283–290. 82 Zimin, ibidem. They were also known as slugi pod dvorskim, “servants subordinated to the court steward” (dvorskii), as opposed to slugi vol’nye (“free servants”). 83 Kolycheva, op. cit., 57–61. 84 Kolycheva, op. cit., 62–63.

The Individual and the Family

619

himself and his family members, the price paid, the witnesses present, and usually also the tax paid to the prince. A short excerpt (zapis’) of the polnaia was often drawn up for the authorities and large numbers of these from the end of the 15th century and later are available.85 Art. 66 of the Code of 1497 listed the legal origins of slavery: voluntary entry into slavery through the drawing up of a corresponding charter (polnaia); acceptance of the position of a village steward (tiun) or kliuchnik (no polnaia was required in such a case); or marriage to a slave. The family living with a person entering into slavery shared his fate. In a similar procedure, release from slavery had to be reported in a special document (dokladnaia gramota, a report) destined for the authorities. The practice was legislatively sanctioned by arts. 16–18, 42–43 and 66 of the Code of 1497, with a decisive role being assigned to the prince’s officials. The requirement of presentation of the manumission charter (otpustnaia gramota) to the boyar court could be avoided by the slave’s master writing out the charter himself (art. 42). Otherwise, manumission could only be effected by a boyar with full jurisdictional rights (art. 43). By that time, however, genuine slavery in its original sense had outlived its economic usefulness and the kholop had in fact become a serf rather than a slave: a person with undeniable legal status, but with restricted rights. It would generally be more attractive to a landowner to settle dependent peasants on his land and exact part of the proceeds from their labour, than having his fields tilled by slaves without any interest in their work apart from avoiding punishment.

The Individual as a Family Member

The Old-Russian Family In almost all societies that people nowadays would regard as ‘traditional’, ­family relationships are of the most fundamental importance to the individual. Medieval Russia was no exception in this respect. Some clarification of the family concept is however required. English, like most other languages, uses “family” in a narrow sense as “group of relatives who form a common household”86 and in a multitude of wider senses where blood relationship remains the binding element (the blood relationship traditionally also covers individual spouses, 85 86

See, for instance, asei iii, Nos.392–462, 410–446. This is the standard meaning of sem’ia in Russian, according to the dictionaries of Dal’ and Ozhegov-Shvedova, other relatives being covered by rod, itself a term with various connotations. Dutch has a similar pair of terms, gezin and familie.

620

chapter 19

but not their blood relatives). The family in a wider sense would embrace, for instance, the group constituted by grandparents, their children and spouses, and the grandchildren, but also a similar but larger group descending from great-grandparents. The small family consists typically of the parents and their minor children, all living together under the same roof, but it may include grandparents or other relatives. In some cultures grandparents live together with their married children and grandchildren in a large house; this would be a large family in the accepted sense, but it also satisfies the definition of the Russian sem’ia. The important point is that contrasting the small family with the large one, as is often done in Russian literature, is imprecise, because there are various transitional forms. This is a necessary introductory caveat to the most convenient survey concerning the Old-Russian family by Ia.N. Shchapov, entitled “The Large and Small Family in Russia from the 8th to the 13th century”.87 The topic was generally neglected by the leading Soviet authors; before 1917, Sergeevich devoted considerable attention to it in one of his major works, but this text, obviously a university lecture, represented for the greater part an erudite comparison between marriage systems in all kinds of ‘primitive’ cultures.88 Shchapov’s survey is based on opposing the small family (sem’ia), living together in a single dwelling, to the larger family (rod) consisting of a wider group of relatives. He demonstrated convincingly that the small family was the dominant form of social organization at the lowest level. The arguments for this view can be found in the Chronicle, and also in archeological data. With regard to the rod, he pointed to the gradual narrowing of the concept; at first it was similar to a clan or Roman gens, but later it referred primarily to the circle of persons who could claim particular rights on the basis of being blood relatives, in such cases as compensation for homicide or inheritance matters.89 The treaties with Byzantium of 911 (arts. 4 and 13) and 944 (art. 13) used the term blizhii or blizhiki for near relatives who might lay claim to the property of a deceased kinsman or the person responsible for the latter’s death.90 87

Ia.N. Shchapov, “Bol’shaia i malaia sem’ia na Rusi v viii–xiii vv.”, in Ia.N. Shchapov, Ocherki russkoi istorii, istochnikovedeniia, arkheografii, Moskva, 2004, 5–15. 88 Sergeevich, Lektsii, 456–468. The same goes for Vladimirskii-Budanov, Obzor, 402–409. 89 Shchapov (op. cit., 6) quotes the passage from the Chronicle (discussed in the section on “The Eastern Slav Tribes in the 10th Century” in Chapter xii) about the Poliane, where rod appears with obviously different meanings: “The Poliane lived separately and ruled their rody, because already before these brothers Kii, Shchek and Khoriv there were Poliane and they lived each with their own rod and in their own places, each ruling his own rod.” 90 Art. 13 (911) speaks of malye blizhiki; this is usually translated as closest or nearest relatives; it is unclear who belonged to this inner circle. Art. 99 of the Expanded Pravda does

The Individual and the Family

621

The term returned in art. 99 of the Expanded Pravda where the nearest relative is directed to take small children under his guardianship when the widowed mother remarries. An echo of the obsolete rod can be perceived in the first article of the Pravda of Iaroslav which limits the right to revenge a homicide to a precisely circumscribed group of close male relatives, by the same token excluding other members of the rod who presumably were entitled to participate in blood feuds in the past.91 By the end of the 12th century, according to Shchapov, the rod had ceased to be a factor of importance in legal relationships, with the exception of the ruling family of the Rurikids, where membership of the house remained an absolute requirement for occupying a princely seat. The advent of Christianity, as indicated above, entailed the abolition of some aspects of family life of pagan Russia (e.g. polygamy), acceptance and even reinforcement of other aspects (such as exogamy), and the transformation of yet other aspects (such as male–female relationships). The basic form of the small family in Old-Russian society, before and after the conversion of Russia, consisted of husband and wife and their children. It originated in marriage and on this point the differences between the two periods were very substantial. The pre-Christian marriage was a matter of customary law, but after the conversion this traditional set-up underwent a complete metamorphosis on account of the involvement of the Church. The rp has almost nothing on family law (with the exception of the long section on the law of inheritance at the end of the Expanded Pravda). This is fully understandable if one considers that it was largely a codification and amendment of customary law and that its character was purely secular. Art. 110 of the Expanded Pravda mentioned marriage of a freeman to a slave girl, without a special reservation of freedom, as one of the causes of full slavery (obel’noe kholopstvo). Marriage in Pre-Christian Russia Most of what is known about marriage law in pre-Christian Russia has to be derived from indirect sources, such as narratives in chronicles or inferences which can be made on the basis of legal sources from later periods.

91

not help, because it refers to a single person who is the closest relative, even if he would not belong to the inner circle of the malye blizhiki. Art. 1 mentions brothers, fathers, sons, and sons of brothers and sisters of the person slain. Commentators do not agree on whether uncles and first cousins, and perhaps grandfathers, should also be included. See Baranovski, 162–165.

622

chapter 19

The conclusion of marriage was surrounded by customs and usages which differed from tribe to tribe. The Poliane, relates the Chronicle, “observed a fixed custom, under which the groom’s brother did not fetch the bride, but she was brought to the bridegroom in the evening, and on the next morning her dowry was turned over.” The chronicler, who always exalts the Poliane and despises most other Russian tribes, then observes that the latter (the Drevliane, Radimichi, Viatichi and Severiane) had no marriages but abducted their wives and even practised polygamy. According to the few authors who have gone into the matter the actual truth is that symbolic abduction was an accepted marriage ritual which survived for centuries in parts of Russia.92 Zagorovskii, in his monograph on the history of divorce in Russian law, distinguished between three forms of marriage in pre-Christian Russia, genuine abduction, symbolic abduction, and contractual marriage, but added that the borderlines between these forms were fluid in the course of time.93 The contractual character of marriage was obvious. Even the chronicler, describing the lascivious customs of other Russian tribes, noted that “each took any woman with whom he had reached an understanding”. This is of course not enough to argue that the pagan Russians already observed art. 16(2) of the Universal Declaration of Human Rights.94 The contractual partners were the respective families, not the future spouses, but later sources demonstrate that some attention was to be paid to the wishes of the bridal couple.95 The dowry (pridanoe), as mentioned above, could also be accompanied by a gift from the other side, the bride-price. Both Zagorovskii and Sergeevich observe that direct evidence for such payment is thin, but still, they believe, such a custom was followed. The payment had a special name (veno) and is mentioned twice in the Chronicle in connection with royal weddings.96 In these cases payment of the bride-price was predominantly a diplomatic gesture, while normally it would constitute compensation for the economic loss of the bride’s family. As such, 92

A.I. Zagorovskii, O razvode po russkomu pravu. Issledovanie brakorazvodnogo prava v R ­ ossii, Khar’kov, 1884 (2nd ed., reprint. Moskva, 2011), 4–12; Sergeevich, Lektsii, 487–488. 93 Zagorovskii, op. cit., 21–22. 94 “Marriage shall be entered into only with the free and full consent of the intending spouses.” 95 Art. 30 of the Church Statute of Iaroslav punished the parents of a bride or groom who had been forced into marriage, in case the latter caused harm to themselves as a result. See also art. 47 of the Statute, which dealt with the opposite situation (parents preventing their children’s marriage). 96 In 988, when Vladimir after his baptism married the Greek princess Anna and returned the town of Kherson to the Greeks, and in 1043 when the Polish king Kazimir returned 800 prisoners to Iaroslav the Wise at his wedding with Iaroslav’s sister.

The Individual and the Family

623

the custom was very wide-spread both in the Slavic world and outside, and this would be another argument for accepting its existence in medieval Russia.97 The function of the dowry was to guarantee the wife a certain amount of financial independence, especially in the event of the husband’s death or other matrimonial difficulties (see further below in the section on marriage property). Polygamy in pre-Christian Russia is well-documented. The Chronicle entry about St. Vladimir before his conversion spoke of Rogned as his lawful wife,98 but also mentioned four other wives with their sons, who were undoubtedly considered legitimate; additionally he was supposed to have had 800 concubines. Women who had gone through the ritual of formal induction into the husband’s household were “inducted women” (vodimye zheny) and this granted them superior status over women with whom a less formal liaison had been established. Art. 10 of the Church Statute of Iaroslav the Wise implicitly forbad bigamy, by making a husband who remarried while still being married to another woman answerable in the court of the metropolitan, ordering him to go back to his first wife, and sending the second wife off to a convent. Marriage after the Conversion of Russia The law concerning marriage and everything connected with it, such as the family, the position of children, inheritance law, was more affected than any other branch of law by the adoption of Christianity. The fundamental difference between pre-Christian and Christian concepts of marriage, from the legal point of view, is that the former can be regarded as a contract, albeit one of a special nature, while in the case of the Christian marriage (as understood at least during the first centuries of Christianity) the contractual nature of marriage is heavily overshadowed by its religious aspect. The reason for this is that marriage, unlike numerous other questions on which the Christian religion holds an opinion, is described by Jesus Christ himself (Matt. xix, 5–9) in a direct response to a question of the Pharisees concerning the admissibility of divorce, or more precisely, of “putting away a wife”, unilateral dismissal.99 Marriage is described as a union between man and wife and the decisive words then are: “What therefore God hath joined together, let no man put asunder.” On the basis of these words the Church has not only held that divorce was not 97 Zagorovskii, op. cit., 15–21; Sergeevich, Lektsii, 489. 98 The Chronicle uses the term of “an inducted wife” (vodimaia zhena), although Rogned had in fact been taken by force after Vladimir had killed her father and brothers. 99 More or less the same statement is made in the sequel to the Sermon on the Mount, Matt. V, 32; see also Mark x, 7–12 and Luke xvi, 18, where the crucial words “except it be for fornication” are lacking.

624

chapter 19

allowed, but that it was actually beyond human power (including that of the Church) to bring it about (more on divorce below). The existence of a contract rests on a social convention, which to some extent is also a fiction (we pretend that something exists, knowing it does not): if certain matters have been agreed between parties and under certain conditions, then society itself, including the parties concerned, will act as if there was a contract. The Christian marriage, in its original sense, does not rest on such a convention, but on the conviction shared by members of the faith that something really exists (a lifelong bond, created by divine intervention and sanctioning the agreement between the spouses and raising it to another level). In the East as well as in the West, the adoption of Christianity has therefore been followed by the Church’s insistence on its right to be the judge of matrimonial affairs. In Russia, this claim was honoured by the secular power in the first and most basic piece of legislation on relations between the Church and the state, the Church Statute of Vladimir, who is also known as St. ­Vladimir, who introduced Christianity as the state religion in Kievan Russian. The nucleus of the original text of this statute is art. 9 which lists the subjects assigned to the jurisdiction of the ecclesiastical courts.100 The first item is rospust, which is usually translated as “divorce”, but which actually means “dismissal” or “repudiation” (of a wife), the standard manner of terminating a marriage in pre-Christian Russia. The following items also concern marriage and offences against it, and then more generally offences within the family, against sexual morality, and sorcery and related practices.101 100 According to Shchapov’s reconstruction of the archetype of the Statute of St. Vladimir, Ia.N. Shchapov, Kniazheskie ustavy i tserkov’ v Drevnei Rusi xi–xiv vv., Moskva, 1972, 120–121. 101 “And these are [the cases subject to the jurisdiction of] church courts: divorce; fornication; adultery; rape; abduction [of women]; [disputes] between a husband and wife over an inheritance; [cases which arise] if [a man and woman] marry within the prohibited degrees of consanguinity or spiritual relationship [which stem from acting as godparents for someone]; witchcraft; [making of] potions; [making of] charms; sorcery; magic; these three dishonors: [accusations of] fornication and [making of] poisons; heresy; fighting [in which a man bites another]; or [cases in which] a son beats his father or [if] a daughter [beats] her mother, or a daughter-in-law [beats her] mother-in-law; if brothers or children bring a suit over an inheritance; church theft; [cases in which] people uncover a [buried] corpse; [if some people] cut down a cross or carve [mutilate?] a cross on the walls; if [someone] leads cattle, or dogs, or fowl [into church] without good reason, or does anything else not fitting for church; or [if] two friends fight and the wife of one grabs the other by the genitals and crushes [them]; or [if] they catch someone with a four-legged animal [about to sacrifice it? committing bestiality?] or [if] someone prays [to a pagan god] beneath a grain-drying bin, or in a copse of trees, or by the water; or if an [unmarried] girl aborts a fetus.” Kaiser’s translation, Laws, 42–43.

The Individual and the Family

625

The list of art. 9 is innovative in the sense that it covers all kinds of behaviour which were probably current practice in pagan times and which the secular authorities were rather indifferent to. Assigning these offences to the church courts therefore did not constitute a great sacrifice in money or power for the prince. Art. 10 underlined that the jurisdiction of the church in these cases was exclusive; the prince, his boyars and the judges were explicitly forbidden to interfere. For additional authority art. 11 referred to the legislation of the Byzantine emperors and the canons of the seven ecumenical councils. The Church Statute of Vladimir’s son Iaroslav the Wise complemented the jurisdictional package covered by art. 9 of the Statute of Vladimir by providing penalties for most of the offences named in the latter and for quite a number of others as well. The great majority of the offences covered by the Statute of Iaroslav concern sexual misbehaviour or offences against the family; the amount of detail, or rather casuistry, is remarkable. Art. 14, for instance, deals with intercourse between a godfather and a godmother; other bizarre situations are arts. 24 (fornication with two sisters) and 28 (two brothers engaging in intercourse with one woman). Most offences are punishable by fines, to be paid to the metropolitan (of Kiev), but in a few more serious cases, such as rape or abduction, the fine to the metropolitan is combined with more serious punishment (kaznit’, which probably did not encompass execution) by the prince. The two statutes together present a clear picture of the kind of conduct within the family which the Church meant to combat and which was presumably to some extent prevalent in pre-Christian Russia. Art. 19 of the Statute of Iaroslav set a 12 grivna fine for the man who dismissed his wife, if they had been married through venchanie (i.e. a church wedding), and 6 grivna if they had not gone through this procedure. This shows that other marriage rituals were still being practised but that the church wedding was considered more worthy of respect. Art. 36 referred to such ancient practices by making it a punishable offence to go through the ritual of cutting the cheese for a maiden. According to Shchapov, the church-sanctioned ceremony penetrated only very slowly and by the end of the 11th century only boyars got married in church.102 Although exogamous marriage had already been the rule in pre-Christian Russia, the prohibited degrees were widened by the two statutes. They now also covered marriages between godparents and godchildren; the prohibited degrees of consanguinity went as far as descent from a common great-­grandparent 102 Ia.N. Shchapov, “Brak i sem’ia v Drevnei Rusi”, Ia.N. Shchapov, Ocherki russkoi istorii, istochnikovedeniia, arkheografii, Moskva, 2004, 16–22 (originally published in Voprosy istorii, 1970, No.10, 216–219).

626

chapter 19

(six degrees). Art. 20 of the Statute of Iaroslav forbad sexual relations between a Russian woman (and implicitly also marriage) and Jews, Muslims and persons of another faith (presumably Latin Catholics); the offender was liable to a 50 grivna fine to the metropolitan and the Russian woman involved was sent to a convent. According to Shchapov, the provision did not belong to the original text of the Statute of Iaroslav; in any case, its applicability to Latin Catholics can only have arisen after the Great Schism of 1054. Moreover, it has been noted that until the end of the 12th century marriages between Rurikid princes and princesses and West-European spouses were quite common.103 Presumably, their example was followed occasionally by persons of less elevated status. As mentioned above, marriage was traditionally an agreement between families, in which the parents’ role was decisive, although attention was paid to the views of the intended spouses (see arts. 30 and 47 of the Statute of Iaroslav). The parents were obliged to find a husband for their daughter, otherwise they had to pay a fine to the metropolitan, the amount depending on their social status (art. 7 of the Statute of Iaroslav). Marriages would normally be concluded between persons belonging to the same social class. Art. 110 of the Expanded Pravda has been mentioned above, providing that marriage to a slave girl without an explicit reservation of the groom’s freedom would lead to the latter’s full slavery. The opposite (a free woman marrying a slave) would probably happen only very rarely; it would also lead to the slavery of both spouses.104 Concubines of princes and boyars are mentioned in literary sources such as chronicles; marriages in such cases would usually be politically disadvantageous to the men. A duty to mutually support each other was implied in arts. 12–13, which forbad the abandonment of a spouse who became seriously ill, blind or suffered from a prolonged illness. Generally, however, the position of a married woman was subordinate. The Statute of Iaroslav contained provisions about a wife beating her husband (art. 42), a man beating another man’s wife (art. 44), or a son beating one of his parents (art. 45), but the husband and father was entitled to beat his wife or children with impunity. Several provisions (arts. 37–40) explicitly recognized the husband’s right to punish the members of his family.

103 A.V. Nazarenko, “«Zelo nepodobno pravovernym»; mezhkonfessional’nye braki na Rusi v xi–xii vekakh”, A.V. Nazarenko, Drevniaia Rus’ i Slaviane (=dgve 2007), Moskva, 2009, 269–283. A list of more than 80 Rurikid-Western alliances in N. de Baumgarten, Généalogies et mariages occidentaux des Rurikides russes du xe au xiiie siècle (Orientalia Christiana, Vol. ix-1, Num.35), Roma, 1927, 67–73. 104 Shchapov, Brak i sem’ia, 18.

The Individual and the Family

627

The church statutes which came after those of St. Vladimir and of Iaroslav the Wise offered their own peculiarities but followed the list of marital and sexual transgressions contained in art. 9 of the Statute of Vladimir, albeit in often abbreviated form.105 Dissolution of Marriage Nobody would dispute that marriage is dissolved by the death of one of the spouses. It is the dissolution of a marriage between living spouses that contrasts the situation in pre-Christian Russia with that after the conversion, but there are also considerable differences between the Eastern and Western approaches in this question. In pre-Christian Russia repudiation of the wife by the husband is well-­ documented in the chronicles. Whether other forms of divorce were p ­ ractised is a matter of speculation. The adoption of Christianity entailed major ­changes, on account of the Christian marriage doctrine. As explained above, the authority of the principal source of this doctrine is the direct and unambiguous statement of Christ himself, answering the Pharisees’ question concerning the permissibility of a man dismissing his wife (Matthew, xix, 3–6): “Therefore, let no man separate what God has joined.” But then, replying to further questions of the Pharisees, Christ continued: “I now say to you, whoever divorces his wife, except it be for fornication, and marries another commits adultery” (italics added, ff).106 Although the words were originally spoken in Aramaic, they have come down to us in Greek (μή έπί πορνείαι). Both elements of the formula raise questions. Is it a clear exception, implying that the indissolubility principle does not apply in the case of adultery, or is it more vague, implying perhaps that the principle itself could be relaxed under certain conditions? Πορνεία could also be read strictly, meaning adultery, or in a more general sense of lewd behaviour. Although translations use various terms such as “divorcing”, “putting away”, “dismissing”, “repudiating”, etc., the Greek verb is the same in all cases (άπολΰω) and this creates fewer interpretation problems. In the most liberal interpretation of the formula concerned, divorce could in principle be allowed where the exception of inappropriate behaviour 105 Art. 11 of the Smolensk Charter of prince Rostislav; art. 9 of the Church Statute of the Novgorod prince Vsevolod; art. 4 of the Church Statute of prince Lev Danilovich of Galicia. 106 The translations of Matthew are from the American Bible, except for the words “except it be for fornication”, where the American Bible has “(lewd conduct is a separate case)”, which in my opinion is too imprecise as a translation from the Latin (nisi ob fornicationem) or the Greek.

628

chapter 19

o­ perated. The Western Church has held (and the Roman-Catholic Church still holds) that the indissolubility principle is absolute and that adultery may only entitle the innocent party to seek a separation, but does not open up the possibility of remarrying. A biblical argument for this position is that the impossibility of divorce is confirmed by similar but much shorter reports of the words of Jesus Christ in the gospels of Mark (x, 11) and Luke (xvi, 18). The Eastern Church in principle agreed with this view,107 but reached different practical solutions, rooted in the practice of the slow implementation of the principle of indissolubility. During the first centuries after the emancipation of the Christian faith under Constantine the Great, the old Roman law concerning divorce remained in operation, with occasional amendments. In Western Europe, during the so-called Dark Ages, Germanic marriage law was followed, including its various arrangements regarding divorce. Only gradually did the Western Church in the course of the early middle ages succeed in establishing its dominance in this field and in eliminating divorce as a recognized legal institution. The main pragmatic approach in overcoming the human difficulties resulting from this situation was the use of the annulment procedure. If, after a marriage had been concluded, it could be proved that some condition considered as vital by canon law had not been met, the marriage could be declared void, meaning that it had never existed. In the world of the Eastern Church another method for dealing with these difficulties emerged. Byzantine law had never proceeded to a complete abolition of the traditional system of divorce, based on Roman law, but had introduced some amendments to bring about a certain rapprochement with Christian ideals. This approach could be justified in various ways. One obvious route was to appeal to the exception contained in Matthew’s version of Christ’s teaching: adultery and similar behaviour would then offer an adequate ground for divorce. Another way out would be to argue that the divinely established lifelong union could also be dissolved by God himself and that certain types of behaviour of the spouses might indicate that in fact the marriage had ceased to exist.108 A more sophisticated answer could be that Christ’s teaching presented a moral ideal and not a legal maxim. Some kind of legal procedure would conceivably be needed to deal with marriages which could no longer reasonably be sustained. There are many ethical demands in the Christian faith which are 107 Cf. Zagorovskii, 34–59. 108 Although this argument is in principle respectable, in practice it would lead to the total collapse of the prohibition of divorce: if you want a divorce, just behave badly and your marriage is over.

The Individual and the Family

629

not met by the faithful. Legal rules which cannot be observed should be abolished; to do the same with moral rules would be the end of civilization. The Eastern Church, as a result, adopted a more flexible and, one might say, pragmatic approach to divorce than the Western Church. The Russian Church added a twist of its own.109 The Statute of St. Vladimir (art. 9, quoted above) mentioned divorce as the first item assigned to the church courts; the Statute of Iaroslav the Wise went into greater detail. Wherever the list of art. 9 was taken over in later statutes (in amended form), divorce always took the first place, from which one might conclude that it was considered one of the most important, if not the most ­important, of the affairs assigned to the jurisdiction of the Church. Although “divorce” is the usual translation, the actual term was not razvod, but rospust: dismissal, rejection or repudiation. This illustrates the basic inequality between men and women which is encountered in the traditional legal systems of all Indo-European and Semitic peoples. Wives may leave their husbands, but husbands dismiss their wives. The Old-Russian divorce law was mainly directed towards the question of men repudiating their wives; the question of women leaving their husbands received less attention. If the Statute of St. Vladimir only mentioned divorce, albeit prominently, the Statute of Iaroslav the Wise dealt with it quite extensively. Its oldest and most basic rule is art. 4; it was discussed briefly above, in connection with the social stratification of Kievan society (it distinguishes between great boyars, boyars, prominent people, and ordinary people). It sets double penalties, fines, one to be paid to the metropolitan and an equal amount to the divorced wife, the rate depending on the rank of the man who dismissed his wife. The various manuscripts of the Statute offer different texts, but the reconstructed original text (according to Shchapov)110 has the formula bez viny attached to the repudiation, in other words the provision applied only when the husband did not have a just cause for dismissing his wife. This of course raises the question of what would constitute just cause; we shall return to this question below in the discussion of art. 53 of the Statute of Iaroslav. The penalty due to the wife (in the case of art. 4) is za sorom, for the insult. The total picture of art. 4 in its original version agrees with the one suggested by the oldest layer of the rp: personal injuries still had the character of an insult to the honour of the family. Art. 4 reflected the pre-Christian order where repudiation (by the husband) and departure (by the wife) as unilateral actions which terminate the marriage contract took the place subsequently occupied 109 A full treatment of this entire subject with Zagorovskii, 59–87. 110 In Kniazheskie ustavy i tserkov’, 293–296.

630

chapter 19

by divorce as a bilateral contract. This is an anachronistic approach of course; for contemporaries the old order was gradually replaced under the influence of the Church by new procedures. The following provision of the Statute of Iaroslav, belonging likewise to its original nucleus, is art. 10, which makes a husband who married a new wife without having been divorced from his first wife answerable to the metropolitan. The second wife is to be sent to a convent and the husband is to go back to his first wife. It demonstrates clearly that the new Russian church accepted divorce, but at the same time strove to outlaw bigamy. Later versions of the Statute included a provision (art. 11) dealing with the situation of a wife leaving her husband and marrying or living with another man; here the solution was different: the wife was not sent back to her husband, but instead was put into a convent, and her male partner paid a fine to the metropolitan. Arts. 12 and 13 are still part of the original nucleus of the Statute. They forbad divorce in the case of the blindness or a serious or prolonged illness of the other spouse. Art. 18 dealt with bigamy more directly. If in the case of art. 10 the husband had in fact separated from his first wife without a formal divorce and started to live with a second wife, art. 18 envisaged actual bigamy: living with two wives simultaneously. The verb used for marrying (vodit’) usually refers to ­pre-Christian marriage rituals; in any case, a priest would be forbidden to officiate at a bigamous marriage. The solution is roughly identical to that of art. 10: the man is directed to live with the first wife and the second wife is sent to a convent. But unlike art. 10, art. 18 specified the fine to be paid to the metropolitan (20 grivna), ordered the husband to marry the first wife “according to the law” (po zakonu), which probably meant that they had to conclude a church marriage, and threatened punishment if he treated his wife badly.111 Art. 19 looked at divorce (or rather “dismissal”) po svoei voli, which could mean “by his own wish” or “by their own wish”. The latter reading is to be preferred, as otherwise the rules of arts. 4 and 19 would clash; art. 4 set a minimum penalty of twice 12 grivna (for ordinary people) for the husband who repudiated his wife without just cause, and higher penalties for men of higher rank. Art. 19 set a fixed penalty of 12 grivna to the metropolitan for persons who were married in church (6 grivna if they were not married in church). The Church would surely not regard arbitrary divorce as being for just cause.112 111 This is the satisfactory interpretation given by Shchapov in his comments to the text of the Statute in rz i, 178 and 181. 112 So also Shchapov, op. cit., 176.

The Individual and the Family

631

Art. 19 therefore concerned a situation where the husband did not unilaterally repudiate his wife (without just cause), but where the spouses agreed to divorce. This would in principle be unacceptable to the Church, but, in accordance with the tolerant attitude of the early Russian church, the spouses could get away with it by paying a fine. The provision also documents the widespread survival of traditional (i.e. non-church) forms of marriage. Marriage within the forbidden degrees of kinship entailed a fine to the metropolitan and separation (razluchiti) of the partners (art. 17); in a modern view this would be an annulment, rather than a divorce. Arts. 37–40 concerned various offences by wives, which explicitly did not provide sufficient grounds for divorce (such as stealing from husband or father-in-law); they are part of later additions to the Statute. Art. 53 is the longest in the entire Statute and the only one with its own title: “And for these causes divorce a man from his wife”. It obviously constitutes a later addition and has clear Byzantine origins, although it is difficult to identify the immediate source. It lists six grounds for a husband to divorce his wife: 1) when the wife knew about plots against the ruler and did not inform her husband, 2) adultery, 3) when the wife was involved in plots against the life of her husband, 4) when the wife adopted a permissive life style, 5) when the wife went to pagan festivals, 6) when the wife was involved in the theft of her husband’s property (this is a summary; for details, see text of art. 53). The sixth point of art. 53 contradicts art. 37 of the Statute, which expressly dismissed a wife’s theft of her husband’s property as a ground for divorce. Of these grounds, the first is found in the section “On the dissolution of a marriage” in the Knigi Zakonnye (art. 4); the second one in the Ecloga (ii,14) and the Knigi Zakonnye (art. 5); the third one in the Ecloga (ii, 14), the Knigi Zakonnye (art. 6), and the Court Law for the People (s.33); the fourth one in the Knigi Zakonnye (arts. 7–8) ; the fifth one in the Knigi Zakonnye (art. 9). Additionally, the Ecloga (ii, 14) and the Court Law for the People (s.33) mention the case when the wife has become a leper. The Knigi Zakonnye are derived mainly from the Procheiron, the Court Law for the People is based on the Ecloga. The Ecloga and the Procheiron go back to new legislation of Justinian. Altogether, the Byzantine roots of art. 53 are obvious. The original source is Novellae 22 (Chapter 22) and especially 117 (Chapters 8 and 9), on which the divorce rules of the Procheiron (title 11) are based. The Procheiron reached Russia at least during the second half of the 13th century and perhaps earlier.113 113 The penetration of the Procheiron in Russia is the subject of a special study by Shchapov, “Prokhiron v vostochnoslavianskoi pis’mennosti”, Vizantiiskii vremennik, Vol.38 (1977), 48–58. See also my “Roman Law in Medieval Russia”, Feldbrugge, lmr, 59–128, at 91–93.

632

chapter 19

Later church statutes confine themselves to the mere mention of adultery as one of the cases subject to church jurisdiction. The Metropolitan’s Justice is the exception. It repeated the grounds of art. 53 in somewhat different words and added a seventh ground: if someone plots against the husband, and the wife, knowing about it, fails to inform him. The six grounds for divorcing a wife as found in art. 53 reappear in a rather obscure 15th century legal text entitled “On divorce”, known only from two publications by Shchapov.114 These texts (a short and a long version) reproduce in slightly different wording the 6-point list of art. 53, but the long version has an additional list of grounds for divorcing a husband. It includes serious mistreatment or plotting against the wife’s life, but also concealing the unfree status of the husband, or selling oneself into slavery. These grounds also have clear Byzantine origins. Shchapov is probably right in proposing that the list of grounds for d­ ivorce in medieval Russia was not standardized and that regional differences emerged.115 The various legislative sources are silent on the practical consequences of divorce, apart from the punitive payments mentioned in the Statute of Iaroslav. The dowry would most likely have to be returned; remarriage by ex-husbands is abundantly documented, but whether divorced wives actually concluded second marriages is not well known. In general, the permissibility of second and subsequent marriages depended on the guilt or innocence of the party involved; it was apparently more difficult for divorced women to remarry. Most authors agree that a canonically valid marriage could no longer be concluded after a fourth marriage.116 The Questionary of Kirik (see above) made clear (in art. 93) that a wife had the right to divorce her husband, at least when the husband did not carry out his marital duties. Although the Questionary was ostensibly nothing but a series of replies by the Novgorod bishop to questions posed by one of his priests,

114 Ia.N. Shchapov, “Novyi pamiatnik russkogo prava xv v.: Zapis’ «O razluchenii», Slaviane i Rus’”. Sbornik statei k 60-letiiu akademika B.A. Rybakova, Moskva, 1968, 375–382. The texts (a short and a long version) have also been published in Ia.N. Shchapov, Drevnerusskie kniazheskie ustavy xi–xv vv., Moskva, 1976, 204–207. These quite short texts, of Russian origin, are not to be confused with the much longer and older section on divorce in the Knigi Zakonnye, a Slavic translation of Byzantine texts. 115 Shchapov in his comments to art. 53 in rz i, 207. More extensively on the entire subject, Ia. N. Shchapov, Vizantiiskaia “Ekloga Zakonov” v russkoi pis’mennoi traditsii, Sankt-­ Peterburg, 2011, 78–83. See also Ia.N. Shchapov, Gosudarstvo i tserkov’ Drevnei Rusi x–xiii vv., Moskva, 1989, 112–113. 116 Extensively on the consequences of divorce, Zagorovskii, 201–239.

The Individual and the Family

633

it enjoyed considerable authority as a valid restatement of church law and continued to be included in collections of church law for centuries.117 Marriage Property The question of marriage property becomes relevant in the case of divorce and always in matters of inheritance. But while the advent of Christianity completely changed the institution of divorce, it had little effect on the property relations between spouses. The new faith placed hardly any obstacles in the way of the survival of traditional arrangements. Perhaps more than anything else, marriage property was a matter of customary law. This also makes it almost invisible to the legal historian. It can be reconstructed to some extent through incidental references in written laws, but there are very few coherent legislative fragments available. The earliest reference is in the 911 Treaty with the Greeks, where art. 4 (dealing with homicide) provided that the kinsmen (blizhnii) of the murdered man could appropriate part of the property of the murderer, as determined by law (po zakonu), but that the widow should take what was due to her po zakonu. “Law” in this case obviously meant “customary law” and all persons involved were clearly aware of what in such a case the widow was entitled to claim as hers. The interesting addition of the widow in the Treaty of 911 is absent in the parallel provision of the Treaty of 944 (art. 13). More clarity is offered by the Church Statutes of St. Vladimir and of his son Iaroslav the Wise. Art. 9 of the former lists the cases subject to church jurisdiction (the full list has been quoted above); these cases concern behaviour which may have been acceptable or legally irrelevant in pagan times, but which the Church was determined to combat. The one exception is the point translated by Kaiser as “[disputes] between a husband and wife over an inheritance”; as Shchapov has observed, such affairs should not be of interest to a church court. The preferred translation should be “property disputes between living spouses”.118 The point here is that the wife enjoyed a separate property status, which could clash with that of her husband. Similar provisions are found in other church statutes.119 A similar message is conveyed by art. 4 of the Statute of Iaroslav; it lists the compensation a husband is to pay his wife in the event of repudiation 117 Cf. Iu.V. Ospennikov in PRoP i, 504–524 (text and commentary). 118 Shchapov in his commentary to the Church Statute of St. Vladimir, rz i, 157; he refers to A.S. Pavlov, Kurs tserkovnogo prava, Troitse-Sergieva Lavra, 1902, 139. 119 Such as art. 9 of the Church Statute on Church Courts, Church People, and Trade M ­ easures of the Novgorod prince Vsevolod.

634

chapter 19

(­depending on the status of her father; if he was a great boyar – 300 grivna, a lesser boyar – one gold grivna, and so on); also, art. 31, fixes fines (to be paid to the bishop) and compensation, to be paid to the married woman herself by somebody who has called her a whore (the amount also depends on the status of her father). Arts. 12 and 13 stipulate that spouses are bound to support each other, especially in the event of serious illness.120 The maintenance duty returns in art. 18: a bigamist is to send his second wife to a nunnery, pay a fine to the bishop, and keep and maintain his first wife. The separate property status of spouses is also borne out by arts. 37–38, devoted to theft of her husband’s property by a wife; this is not a ground for divorce, but a fine has to be paid to the bishop. However, aggravated forms of theft by a wife are mentioned in art. 56 as the sixth cause for divorce (such as by acting in complicity with other thieves). The Pskov Court Charter (arts. 85–91) is the most explicit about the position of wives with regard to marriage property, but these provisions concern inheritance, testate as well as intestate, and will be discussed below. They confirm the relatively strong and independent financial status of married women, but also that of unmarried sisters remaining in the household. The Code of Ivan iii of 1497 did not deal with marriage property, but 15th century documents illustrate the general framework outlined above. Married women are mentioned occasionally as acting together with their husbands in acts of gift or sale. It is unclear whether the (real) property involved in such cases should be considered as being held jointly by the spouses, or whether it concerned the wife’s own estate (but see the following paragraph). Widows and nuns are regularly seen as donors or sellers of land and related rights.121 Women made their own wills, and the right do so was apparently not limited to widows. Not surprisingly, princesses are often actively involved personally in transactions concerning real property. The collection of princely treaties and wills in the archives of the Moscow grand princes (ddg) offers the wills of three princesses (one of grand princess Sofiia Vitovtovna, the wife of Vasilii i and the mother of Vasilii ii).122 120 The Metropolitan’s Justice (art. 8) allowed repudiation, by husbands as well as wives, of a spouse who had become blind or seriously ill. 121 E.g. asei i, Nos.64 (gift by a nun, 1428–1432), 119 (sale by mother and son, 1433–1447), 161 (sale by wife (widow?) and children, 1430–1450) and many others, all from the archives of the Troitse-Sergiev monastery; gvnp, Nos.119 (gift by wife, 1466–1467), 129 (gift by widow, beginning 15th century), from Novgorod. 122 ddg, Nos.28 (Elena Ol’gerdovna, widow of prince Vladimir Andreevich of Serpukhov, 1433) 57 (Sofiia Vitovtovna, 1451), 87 (Iulianiia, widow of prince Boris Vasil’evich of ­Volotsk, 1503).

The Individual and the Family

635

In conclusion and to return to what was observed at the beginning of this section, the dominant role of customary law in property arrangements between spouses must be kept in mind. The roles of husbands and wives, and of brothers and sisters, were defined not by any written law but by custom. When the legislator, dealing with other subjects, had occasion to pronounce himself also on some point of marriage property law, he would merely express what the normal routine was and what everybody already knew. The uncertainty concerning the status of marriage property, referred to in the previous paragraph, may therefore be caused by our own fixed ideas on such matters. Brides brought a dowry (pridanoe, but also called veno) into the marriage; clothes, jewelry, etc. would clearly remain the bride’s own; realty could probably not be disposed of by the husband without the wife’s cooperation. As to real property belonging to the husband, wives are often mentioned as co-donors, together with their husbands, in donation charters (dannye) concerning real property. If the husband had not made a will, the widow apparently had large powers over the entire estate. It would, however, be unrealistic to define the various practices in strict terms of ownership. The payment of a dowry (pridanoe) by the bride’s parents or other close relatives was clearly a normal phenomenon. Its primary purpose was not to strengthen the husband’s or the couple’s financial position, but to provide the wife with a measure of financial independence. The term veno is used occasionally to refer to some material input from the wife’s side, but the more common meaning is that of a bride-price, paid by the husband to the bride’s parents. Another meaning of veno is the payment of a sort of marriage tax by the bride’s family to their master or lord.123 Rights and Duties Within the Family Even in modern systems, the relationships between members of the nuclear family remain largely outside the sphere of law, and this was no different in medieval Russia. To get an idea of such relationships, didactic texts such as the Izmaragd or the Domostroi (mentioned in the beginning of this chapter) are more enlightening than legal texts. The law would step in only in extreme cases where all other means of dispute solving had failed. And then the church courts would represent the first port of call. The Church Statute of Vladimir referred disputes between husband and wife or between siblings or parents and children over inheritance matters, as well as violence within the family 123 This meaning seems to be present in the famous gift charter of the village of Buitse of prince Mstislav Vladimirovich from the 12th century; gvnp, No.81 (see the section on princely and boyar landowning in Chapter xvi).

636

chapter 19

to the church courts (art. 9). According to the Statute of Iaroslav, the same applied in a few extreme situations which have already been mentioned above (art. 30: parents who forced a child into a marriage, leading to (attempted) suicide; art. 47: parents preventing a marriage, with the same consequence; art. 45: a son beating his parents). Barring such exceptional circumstances, the law would leave the family alone. The few authors who have tried to construct a legal framework for intra-family relationships in medieval Russia do not get beyond generalities and speculative conclusions on the basis of ethnographic comparisons.124 Inheritance The Roman law adage Nemo pro parte testatus, pro parte intestatus moritur,125 or at least the idea behind it, has conditioned lawyers, ever since Romanist legal thought became dominant, to believe firmly that the law of inheritance consists naturally of two blocks, intestate and testate succession. The principle contained in the adage is, however, nothing more than an arrangement, and, generally speaking, a practical one; still, it would be perfectly feasible to have a functioning system of legal succession upon death where testate and intestate succession happily co-existed in a single concrete case. This preliminary observation is useful when discussing the various views on the law of succession in Kievan Russia. Nothing is known about the law of succession in pre-Christian Russia. Vladimirskii-Budanov pointed to the system of succession in the Rurikid dynasty (see Chapter 13) as a remnant of a previously universal system: property belonged to a community of relatives, so there was no genuine succession to specific heirs, there was in fact no inheritance law. In the earliest historical times, represented by the rp, a transitional system was in operation, where property could not be willed to somebody who was not already an heir, but the ‘testator’ could effect a certain division of his goods among his heirs (sons).126 The first reliable information comes from the 911 and 944 treaties with Byzantium. This information concerned primarily the Viking followers of the Russian princes, but it appeared to be applicable to the Slavic population as well, 124 See for instance Sergeevich, Lektsii, 500–511 or V.V. Momotov, Formirovanie russkogo srednevekovogo prava v ix–xiv vv., Moskva, 2003, 179–199. 125 “Nobody dies partly testate, partly intestate”, in other words: either there is a last will which covers the entire estate, or there is not and the law of intestate succession covers the entire estate. 126 Vlad.-Bud., Obzor, 460–461.

The Individual and the Family

637

as suggested by later sources. Either Slavic and Germanic law were similar on this point, or the Viking element had by that time already been sufficiently slavicized. Art. 4 of the 911 Treaty granted the (closest?) kinsman (blizhnii) of a murder victim a part of the property which the murderer would owe (as wergeld), “as defined by law” (po zakonu), which in this case referred to customary law. This rule expressed the same principle as embodied in the first article of the Short Pravda: that composition owed to the victim would be payable (as wergeld) to his closest relatives in the case of murder. Art. 13 of the 944 Treaty repeated this in different words. The law of succession was more squarely involved in art. 13 of the 911 Treaty, which dealt with the death of Russians (or rather Varangians) in the service of the Byzantine emperor. If such a person had not made a will, his property was to be turned over to his kinsmen in Greece, and if there were none of those, it was to be sent to Russia to his close relatives (malye blizhiki). If he had made a disposition, then the person to whom some property was willed was to take it.127 If this means (but an unprejudiced reading suggests it does not) that such a person would thereby become the universal heir of the de cuius, then one could assume that the Roman law principle of intestate and testate succession being mutually exclusive would apply. Several authors have speculated or theorized about the impact of Byzantine law on the inheritance provisions of the 911 and 944 treaties. Only after the conversion of Russia in 988 did one begin to be on firmer ground. The Church Statute of St. Vladimir, in its oldest part (i.e. from the decades immediately following the conversion), indicated the matters referred to the jurisdiction of church courts, and among them were disputes between husband and wife, and between brothers or children, over an inheritance (art. 9). In the same body of rules was art. 4 which informed us that “having opened the Greek nomocanon, we [i.e. prince Vladimir] found in it that it is not fitting for the prince, and neither for his boyars or his judges to judge [the following] cases and disputes”. Unfortunately, the prince did not tell his audience where he found this directive in the nomocanon.128 Since there were obviously no ecclesiastical courts in pagan Russia, we can only presume that the idea was of Byzantine origin. In any case, inheritance matters had undoubtedly become a subject for church jurisdiction.

127 The verbal form pisal (“wrote”) proves that such testamentary dispositions were in writing. 128 I have not found a single Russian author who has attempted to answer this intriguing question.

638

chapter 19

The rule of art. 4 of the Statute of Vladimir was taken over in somewhat altered form in the Church Statute of the Novgorod prince Vsevolod of 1135–1137: inheritance disputes between brothers or sons.129 The Short Pravda was completely silent on the question of inheritances. It is safe to assume that succession upon death was adequately regulated by customary law at that time, and, moreover, the focus of the Short Pravda was not on such questions. The important socio-economic shifts in the composition of the population in the following century, as well as the expansion of princely legislation, created a new situation. The Expanded Pravda has a body of provisions on succession, starting with art. 90 which, like some other provisions of the Expanded Pravda has its own heading (“When a smerd dies”), and ending with art. 106, dealing with various situations affecting estates of deceased persons. This complex belongs to one of the more recent layers of the Expanded Pravda. It shows that, although jurisdiction might belong (at least initially) to the church, legislative powers were retained by the state. Various authors, Sergeevich in particular, have claimed that Byzantine law had been an influential factor in the drafting of the inheritance provisions of the Expanded Pravda, but the evidence is extremely meagre.130 All that one might expect is that certain general ideas espoused by Byzantine law had some effect in Kievan Russia. The basic provisions are arts. 90–92. Art. 91, in contrast to art. 90 (death of a smerd), dealt with the death of boyars or druzhina members. The smerd of art. 90 had the original and most common meaning of a servile peasant on the prince’s land. Upon his death his estate reverted to the prince, but if he left unmarried daughters (“daughters in his house”), they received a portion of the estate. The estate of a boyar or druzhina member did not escheat to the prince, but his sons inherited; if there were no sons the daughters inherited. Together, the two provisions offer a general framework, albeit an incomplete one. It must be assumed that unfree people in general received the same treatment as the prince’s smerd, and that the rules covering boyars and druzhinniki were equally applicable to other free persons. Another unanswered question concerns the situation when the de cuius did not have any children, but brothers instead, or other close male relatives. The more ancient arrangements found in the 911 and 944 treaties, involving succession by “close relatives”, suggest that such 129 I am not sure whether the formula promezhi muzhem i zhenoiu o zhivote i o bezdetnom zhivote includes disputes about inheritances. See prp ii, 162–165 (art. 6) and Ia.N. Shchapov, Drevnerusskie kniazheskie ustavy xi–xv vv., M., 1976, 154–158 (art. 9); also in Kaiser, Laws, 59–63. 130 I have discussed Sergeevich’s allegations in Feldbrugge, lmr, 114–116.

The Individual and the Family

639

relatives could inherit in the absence of children. This is confirmed by the oldest surviving wills from the Kievan era. Kliment, a wealthy Novgorod merchant and landowner, left most of his estate to the Iur’ev monastery in Novgorod (represented by its abbot Varlaam), making provision for his wife, and adding “as I do not have a brother or a son”.131 Art. 92 has often been regarded as covering testamentary succession, as opposed to intestate succession as regulated by the two preceding provisions. This opposition, as argued above, may be anachronistic when applied to ­Kievan Russia. Art. 92 can also be viewed as complementing arts. 90–91 in another way: by going into greater detail, where arts. 90–91 only refer to children generally. Art. 92 then added that a person (the father, as a rule) could make a division of his property among his children; if no division was made, the children would receive equal shares. Following the system of arts. 90–91, “children” should most likely be read as “sons”.132 An unprejudiced reading of these opening provisions of the section on the law of succession in the Expanded Pravda leads to an overall view which is quite close to what had already been proposed by Vladimirskii-Budanov.133 The dominant idea was family property, managed, but not actually owned, by the pater familias. He could effect a division of the property, but not will it outside the family. He would normally be succeeded by his sons, but daughters were entitled to maintenance as long as they remained within the family. There was a duty (as we have seen above) to arrange a marriage for them and then they were entitled to a dowry. In the absence of sons, daughters could take their place. Other close male relatives (brothers, cousins, uncles) constituted the next echelon of heirs. This entire system applied only to free people. The series of provisions following arts. 90–92 offered further confirmation and illustration of this overall view. The disposition of art. 92 by which the division among the sons was effected is called a riad, a term which always refers to a bilateral act, a contract or agreement.134 This again strengthens the view that art. 92 does not deal per se 131 Dated before 1270, when Varlaam died. See gvnp No.105 (162–163), also prp ii, 108–110, 114 (comments by Zimin). 132 prp i, 180 (Zimin). For an extensive discussion of the whole matter, see Baranowski, 604–626. 133 Vlad.-Bud., Obzor, 460–472, esp. 460–461. A large number of scholars has contributed comments to art. 92. The main point of consensus is that it is the key provision of the section on the law of succession. As the whole debate has been ably and extensively related by Baranowski, there is no point in summarizing his survey here. 134 The 911 Treaty with Byzantium refers to itself as a riad; art. 14 of the Expanded Pravda deals with the riadovich, the contract labourer, and art. 110 mentions several riady in

640

chapter 19

with testamentary succession, as opposed to intestate succession, covered by arts. 90–91. It is of course quite possible that by the time the rule was included in the Expanded Pravda the disposition had in fact become unilateral and no longer required the approval of the heirs. The disposition can therefore be regarded as an embryonic testamentary disposition, although there was as yet no freedom to select heirs at will. And the mutual exclusion of intestate and testamentary succession of Roman law was still beyond the horizon. As a kind of afterthought, art. 92 also mentioned that some part of the estate should be left to the “soul” (dushi), which in fact meant to be given to the Church to pray for the soul. This appendix was undoubtedly included at the suggestion of church officials involved in the drafting and confirms the connections between the Church and inheritance law. Sergeevich (a proponent of the strict differentiation between intestate and testamentary succession) placed the riad in the context of the deathbed: the last wishes of the father, uttered in the presence of a priest, were sacred. This would support the possibility, accepted by most authors, of the riad being in oral form, and it would also explain the curious addition to art. 92 about the portion for the Church.135 The following provisions of the Expanded Pravda dealt with several special situations. The widow was to be given a portion of the estate; a husband could also assign such a portion to her beforehand (art. 93). When a widower remarried, the children of the first marriage would receive their mother’s property (art. 94). An unmarried daughter received nothing from the estate, but “her brothers give her in marriage as best they can” (art. 95). This would include the provision of a suitable dowry. The children of a concubine (of a slave-woman, rob’i deti), receive nothing from the father’s estate, but are freed by the father’s death, together with the mother (art. 98). Art. 99, the longest of the Expanded Pravda, offered a detailed set of rules to protect young children after the death of the father, in the event the mother remarried. The main element is the appointment of the closest kinsman as guardian; his duties and rights are defined. Art. 100 is very short and directs that the father’s house is inherited by the youngest son; similar provisions occur in many legal systems and have at least two advantages: a lower frequency of ownership changes and a longer expectation of care provision for the widow and other dependent family members.136 A widow who had undertaken to remain unmarried and then c­ onnection with slavery (see the section on slavery). Only art. 99 of the Expanded Pravda uses riad in the sense of regulation or arrangement. 135 Sergeevich, Lektsii, 552–553. 136 Zimin points out that the inheritance provisions of the Expanded Pravda distinguish between dom and dvor; both can be translated as house, but dom may also refer to the entire estate, while dvor is the actual house with the farmyard; prp i, 180.

The Individual and the Family

641

r­ emarried and squandered her late husband’s property was to compensate the children for all losses (art. 101). The widow was allowed to stay on her late husband’s property, sustaining herself on what she had received from her husband (art. 102, see also art. 93). Art. 103 stressed that the widowed mother was entirely free in the disposition of the portion assigned to her; she could also give it or leave it to whomever she wished; if she had not made any disposition, the property would be inherited by the person with whom she had lived and who had looked after her. If the mother was married twice, the two sets of children would inherit the estates of their respective fathers (art. 104). If a widowed woman remarried and the second husband had squandered the property of his stepchildren (what they inherited from their father), his son(s), upon his death, had to indemnify their half-brothers (art. 105). Art. 106 does not really add anything by repeating that a mother may give her property, to “a good son”, whether of a first or a second husband, or to a daughter who has looked after her, if “all the sons are bad”.137 Arts. 103 and 106 also make clear that widows can independently make testamentary dispositions. More generally, the authors of this part of the Expanded Pravda seem to have taken the trouble to strengthen the position of women, particularly married women and mothers. Art. 108 is part of a set of three provisions dealing with court fees, but is relevant for inheritance law. It set a fee of one grivna kun for the detskii (a court official of the prince) who settled an inheritance dispute which brothers had brought before the prince. This shows that church jurisdiction in inheritance matters, as stipulated by the Church Statute of Vladimir and subsequent legislation, was apparently not strictly observed. The contradiction between art. 108 and the Church Statute of Vladimir has been noted by several authors and various explanations have been given. The Statute of Vsevolod on Church Courts, Church People and Trade Measures (see the section on this Statute in Chapter 6) has a few additional provisions (considered to be of much later date) in some copies, devoted to the questions of the division of the estate where there were daughters along with sons, or third and fourth wives.138 Like the Expanded Pravda, the next major comprehensive legislative act, the Court Charter of Pskov, also contained a block of provisions devoted to inheritance law (arts. 84–91).139 In earlier parts of the Charter succession upon death is mentioned in passing, for instance in art. 14, which speaks about a 137 Detailed comments on arts. 93–106 and 108 as usual in Baranowski, 626–663, 666–669. 138 Text in Ia.N. Shchapov, Drevnerusskie kniazheskie ustavy xi–xv vv., Moskva, 1976, 154 and 158; see also Iu.N. Ospennikov, PRoP i, 482 and 486–488. 139 Art. 87 does not directly concern inheritance law.

642

chapter 19

“will [rukopisanie], properly written and deposited in the [Pskov] archive”. This formula implies that a last will could also be expressed orally. The inheritance provisions of the Pskov Charter are of a casuistic nature and more general rules have to be derived from them through extrapolation or in another way. Arts. 84–86 dealt with various consequences of the death of an izornik, a uniquely Pskov figure, a dependent peasant (on the izornik, see Chapter 18).140 The izornik had a contract with a landowner, who put a plot of land at his disposal for a certain length of time, usually accompanied by a loan of money and/ or farm animals or implements. The izornik was obliged to transfer a certain amount of the proceeds to the landowner and to pay back the loan. Arts. 84–86 indicate that the wife and children of the izornik would normally be his heirs, but that they were responsible for paying back the advance. ­Brothers and then kinsmen in general (plemia) are mentioned as subsequent heirs. The other provisions (arts. 88–91) apparently concerned the general population. Art. 88 showed that a married woman retained property of her own and that she could make a will. If she had not made a will, the husband had the use of her estate until he remarried. Presumably the estate would be handed over to the children in that case. The same apparently goes for a wife who survived a husband who had not left a will, according to the somewhat differently worded art. 89. Arts. 90 and 91 dealt with family quarrels over clothing and valuables left by the deceased and the way to prove a claim in such a case (this is in line with the general character of the Pskov Charter, which pays great attention to questions of proof and evidence). Art. 100 fits the same mould; it directed that a gift of movable or landed property to a kinsman, made in writing (through a gramota) before qualified witnesses (a priest or disinterested outsiders), was valid after the death of the donor, even if he had not made a proper will (rukopisanie). The wills of ruling princes constituted a special category. From a modern point of view one would say that in those deeds the public law aspect outweighed the private law one, although the testators were apparently not aware of such a distinction. In those wills princes would not only give instructions about their property (divide it among their sons, make provisions for their widows and daughters), but also designate a successor and make other 140 “Dependent agriculturist” (in Kaiser’s translation), “laboureur” (translation of SzeftelEck); on the izornik generally, see Iu.G. Alekseev, Pskovskaia Sudnaia gramota i ee vremia, Leningrad, 1980, Ch. viii (145–203) and K.V. Petrov, “Dogovor «izornika s gosudarem» Pskovskoi Sudnoi gramoty (rekonstruktsiia)”, A.Iu. Dvornichenko (ed.), Issledovaniia po istorii srednevekovoi Rusi. K 80-letiiu Iuriia Georgievicha Alekseeva, Moskva/Sankt-­Peterburg, 2006, 113–126.

The Individual and the Family

643

­arrangements concerning their governmental duties. One of the earliest surviving princely wills is that of Vladimir Vasil’kovich of Volynia, around 1287, who appointed his brother Mstislav as his heir, while providing his wife with certain estates for the duration of her life.141 The series of wills of grand princes of Moscow were discussed separately (see Chapter 13). 141 The text of the prince’s will has survived in the Hypatian Chronicle (psrl ii, col.902–904); also in prp ii, 27–28.

chapter 20

The Individual as a Legal Actor In the previous chapter on the individual and the family we looked first at the legal relevance of an individual’s existence per se, in particular his membership of a certain class and the legal status connected with such membership, and then at the legal relevance of being a member of a family, including such topics as marriage and divorce, children, and inheritance and succession. These questions affect, in a legal sense, all persons automatically, they do not have to do anything for it. The exigencies of human life also require almost all persons to become socially and economically active, to earn a livelihood. This normally involves entering into legal relationships with others, i.e., relationships liable to become the object of legal processes in cases where disputes concerning such relationships have not been solved in another way. As explained in the introductory chapter, legal relationships are not to be regarded as some sort of natural phenomena, arising all by themselves. They have been created, initially in an often amorphous process such as customary law, and then by a legislator or public official. This means that before there was actual law, somebody had to have a conception of what it ought to be. Numerous modern, technical legal concepts have been invented in recent times by legal professionals in order to cope with new types of conflicts. The most basic legal concepts have their roots in pre-legal times, and perhaps the most basic one is the contract. Any kind of social life requires a minimum of trust between participants, trust in particular that the other person will actually behave in the way he/she has indicated he/she will. As soon as the development of legal procedures has reached the stage that such procedures begin to be concerned with understandings, agreements, deals between people, the contract is born. When the deal is violated in some way, the law may provide remedies. Social life has always known ways to deal with individual behaviour that it considered unacceptable (for some, most, or all members of the social group). When such remedies are drawn into a legal system, an undifferentiated concept of a delict emerges. It is as yet undifferentiated, because no distinction is made between torts and criminal offences.1 The earliest version of the rp, as 1 One of the introductory chapters in PRoP i, by A.N. Fedorova, is entitled “The Character and Content of the Violation of Law in the Russkaia Pravda” (pp. 211–277). It is based on the consideration that the application of a modern distinction between public and private law to a

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_021

The Individual as a Legal Actor

645

well as numerous comparable legal systems of other civilizations, represents this phase; even homicide was treated as an insult to the family of the victim, to be wiped out; first by revenge, then by the payment of wergeld. As argued elsewhere, it is narrow-minded to regard simple, but in their time adequate, arrangements as ‘primitive’; such an approach becomes positively misleading if one views such ‘primitivism’ as ignorance of the ‘true nature’ of certain elements of the legal system, such as the distinction between public and private law, or between a crime and a tort (because such a ‘nature’ is itself a misconception). The third fundamental legal concept is ownership. It differs in several ways from the other two concepts, in that it does not seem to concern a relationship between persons. This difficulty is traditionally resolved in legal education by defining ownership as the relationship between a person and a thing, which is to be respected by all other persons. If one fitted this view into the personal relationship paradigm, governing contracts and delicts, then everything owned would be the object of a personal relationship between the ‘owner’ and every other person on the planet. Even if we were to limit the social universe to a small village of 101 persons, then, if we assume that everybody in the village owned 101 things, one million relationships would result. The matter can be reduced to more realistic proportions once we recognize that almost all such relationships are dormant and will always remain dormant. Legal ownership only ‘wakes up’ when it is contested in some way, and then we are not dealing with an owner and myriads of other persons, but with an owner and a specific person who in some way does not recognize the owner’s status. This is a relationship which is comparable to the one between contractual partners and the one between the person committing a delict and the victim. Another specific problem concerning ownership is that it is a concept which admits gradualism. One may argue about the content or even the existence of a contract or a delict, but for both concepts gradualism is irrelevant: a weak contract is still a contract and an insignificant delict remains a delict. The legally recognized powers of a person over a thing may however range from complete control to enjoyment so limited that it amounts to almost nothing. Also, legally recognized powers over a thing can be broken up into smaller parts and dispersed among any number of persons. In the classic, Roman law inspired view of most Western lawyers such situations are still handled through

legal system such as reflected in the rp is inappropriate. The author spoils the statement a bit (in my view) by adding that “in the early feudal conditions of Ancient Russia the different branches of law were insufficiently [my italics, ff] delimited” (211).

646

chapter 20

an ownership concept, which is then regarded as the mother rock from which other more limited rights have been split off. This may offer a practical method for handling the problem of multiple stakeholders in the property; it is still unrealistic, especially in the not uncommon case where the official owner is divested of almost all powers and rights regarding the thing. In a medieval setting, where different persons were often granted various rights regarding immovable property, the question concerning ownership can occasionally be unanswerable on the basis of contemporary views; in other words, the ownership concept itself may become fluid. Contracts Contracts in the legal sense, i.e., agreements between private parties which, if leading to disputes, could be settled through legal procedures, occur mostly in the commercial sphere, where at least one of the parties is engaged more or less professionally in commerce. For this reason most types of contracts to be encountered in Kievan Russia have already been discussed in the section on commercial law in Chapter 15: sales, barter, gifts, loans, hire, labour contracts, storage, carriage, and others. Some of these already made an appearance in the Expanded Pravda (art. 43 of the Short Pravda, the “bridge builders’ law”, urok mostnikov, implies a contract by which such craftsmen were engaged). It remains therefore to consider the topic of general principles of contract law; is anything to be found in early Russian law? The answer is mostly negative. The few authors who have paid attention to this question do not come up with much, and treat the matter in the traditional ‘pandectist’ way, i.e., they view contracts, along with delicts or torts, as the sources of obligations and consider therefore first the more general topic of obligations. One of the advantages of this approach is that it presents the information a modern lawyer might be looking for in a familiar format.2 But by imposing a modern conceptual frame on a legal system alien to these concepts, a serious anachronism is introduced and a better understanding of such a system may be thwarted. Of the pre-revolutionary authors Vladimirskii-Budanov has offered the most thorough treatment of the question, and his approach was eminently typical of the pandectists. He started with some thoughts on the general d­ octrine

2 The pandectist approach, regulating every topic at the highest possible level, also has the advantage of being logical and systematic; at the same time it can be very impractical.

The Individual as a Legal Actor

647

­concerning obligations,3 followed by sections on persons involved in obligations, the origin of obligations (contracts and delicts), the performance of contracts, the object of an obligation, and the various ways an obligation is terminated. As is inevitable in the pandectist approach, most of the chapter is actually about contracts (in general). Vladimirskii-Budanov observed, like most authors after him, that early Russian law did not clearly distinguish between delicts and criminal offences, and that delicts would therefore be discussed in Chapter 22. The observation, basically correct, is usually couched in somewhat condescending words: the simple people in the past were not yet aware of the fundamental distinction between civil and criminal law.4 Vladimirskii-Budanov’s treatment of the topic is however much less comprehensive than would seem from this brief survey. In essence, he related the main points of his contemporary views on obligations and contracts and then looked for examples from Russian legal history that could be fitted into his system. These examples were taken from sources from almost eight centuries and then presented as the law of obligations of old Russia. Although the overall picture resulting from this procedure was completely unrealistic, occasional points made by Vladimirskii-Budanov have retained their relevance. One is the tendency he described as obligations (or rather claims) to perform (do ut facias) being turned into rights in rem, the res in such a case being the person of the debtor. Examples are labour contracts leading to dependence of the worker (the zakup of the Expanded Pravda), or loan contracts leading to slavery (kholopstvo).5 Another valid observation concerns the tendency of the family to appear as co-debtor in various contracts.6 Iushkov, in his section on the general features of the law of obligations in the Kievan era, repeated most of the points made by Vladimirskii-Budanov, without the latter’s artificially imposed system (and also without quoting him).7 Sergeevich, in his long chapter on “Civil Law”, offered lengthy sections on marriage, the family, inheritance law, and ownership and related topics, but was completely silent on obligations.8 3 The first sentence is characteristic of his way of thinking: “A true understanding of the obligation as a right to [demand] an action of another person did not arise right away in history.” (italics in original, Vlad.-Bud., Obzor, 561). As there cannot be a “true understanding of the obligation”, it cannot arise either. 4 See for instance I.V. Petrov, Gosudarstvo i pravo drevnei Rusi 750–980 gg., Sankt-Peterburg, 2003, 256–257. 5 Vlad.-Bud., Obzor, 561. 6 Ibidem, 562–563. 7 Iushkov, Stroi, 422–424. 8 Sergeevich, Lektsii, Chapter 4.

648

chapter 20

The most recent and ostensibly quite comprehensive treatment of the matter in various chapters of PRoP i remains very much within the traditional confines adopted by 19th century scholarship. Delicts Above, the most basic legal concepts of contracts and delicts (also embracing crimes) were distinguished by the presence or absence of trust: a legal relationship can arise because parties trust each other sufficiently to reach an understanding concerning mutual behaviour (this may be an action or, conversely, abstaining from an action), or a legal relationship arises because one party acts (or fails to act) in a way which affects the interests of another party and which is contrary to what is expected from members of a particular society. The crucial concept in this distinction is the legal relationship, itself an abstract creation of the human mind. The topic can also be approached from a procedural angle. For the general public, law is the business of lawyers, and first of all courts. The appearance of an independent and (hopefully) impartial arbiter is one of the decisive moments in the emergence of law. In the absence of a judicial input, law becomes a mirage. The judge, in the view of the lay person, is the official who tells the person in his court that he has acted wrongly; the judge imposes a sanction, a penalty. Three situations can be distinguished, with correspondingly increasing ‘penalties’. If two parties appear before the judge with a disagreement about a contract, about property, the judge will say: A is right and B is wrong and I order B to pay A so much or do such and such a thing (B’s ‘penalty’). The second situation concerns the appearance of A stating that B has wronged him; if the judge agrees, he will ‘punish’ B by issuing a similar order. In the third situation the person of A (the victim) is pushed into the background by a public authority (the state), which considers the wrong done by B so serious that it will take over from A; if the judge agrees he will impose a genuine criminal penalty. The dividing lines between the three categories are more blurred in this approach and the use of an abstract concept such as a legal relationship is avoided. In this historically realistic approach the middle category is represented by delicts or torts. They overlap on one side with contracts, because nonperformance of a contract can also be treated as a delict, and on the other side with criminal offences, because a criminal offence almost always constitutes a delict at the same time. They differ from contracts and offences in their lack of concreteness; barter or sale is the basic contract and most other contracts can be viewed as modifications; homicide, personal injury and theft are the basic

The Individual as a Legal Actor

649

offences. There is on the other hand no basic concrete form of tort, any antisocial behaviour can be juridified as a tort. Most authors who have expressed themselves on the subject agree that the earliest layer of the rp represented an era when torts and crimes still constituted a single complex. In the virtual absence of a public power intervening in situations where it would consider its own interests affected, the victim and his kin were the only available actors to counteract wrongdoing. In the subsequent phases of the rp the prince and his court asserted themselves in many of such cases, where by the same token the victim himself had to be content with a more modest position or no role at all in the legal procedure aimed at redressing any wrongdoing. The first part of the Pravda of Iaroslav dealt almost exclusively with such situations. (As explained in Chapter 4, the Short Pravda consists of two main parts of which the Pravda of Iaroslav (arts. 1–18) is the elder; within this complex, arts. 1–10 constitute the oldest nucleus.) The first and most basic provision of this complex is art. 1, regulating the consequences of homicide. For a proper understanding of the importance of this provision, the background of this oldest layer of Iaroslav’s Pravda must be recalled once more. According to the nowadays most widely accepted view, this oldest registration of Russian law conformed to a pattern which is also encountered in the oldest legislation of other Slavonic and Germanic peoples: a moment of particular political tension led to the writing down of traditional customary law; the event would often be used to introduce certain modifications of the old order. In Russia, this event was the turmoil in Novgorod in 1015–1016, following the succession struggle among the sons of St. Vladimir, in particular Sviatopolk in Kiev and Iaroslav in Novgorod.9 Violent clashes between Iaroslav’s Viking druzhina and the Slavic population of Novgorod had forced Iaroslav to spell out the rights of both groups in a manner satisfactory to all. Art. 1 does so in considerable detail for homicide, while the following and much shorter provisions concern lesser offences against the person. The stylistic brevity of the rp has caused numerous problems in interpretation, particularly in art. 1 of the Short Pravda. My own translation of art. 1, which already implies a certain amount of interpretation, is as follows: If a man kills a[nother] man, [the following relatives of the murdered man avenge him:] the brother avenges the brother, or the son the father, or the father the son, or the son of the brother or the son of the sister [avenge their respective uncles]; if there is no one to avenge [the ­murdered man], 9 Related in detail in the Prim. Chr.

650

chapter 20

then 40 grivna wergeld; be [the murdered man] a Rusin: a bodyguard, a merchant, a steward, or a sheriff, or rather an izgoi or a [Novgorodian] Slav, his wergeld is 40 grivna. Among the many questions raised by this text, by far the most relevant in the context of this chapter concerns the payment of wergeld.10 The Russian text has 40 griven za golovu, 40 grivna “for the head”. Who is the recipient of this amount? If it is the prince, then it is a fine (usually called “bloodwite” in English translations); if it is the victim’s kin, it is genuine wergeld (Lat. ­compositio). Scholarly opinion is still divided about this question. As my translation indicates, I believe the wergeld theory has the better arguments. The first one is that the general course of development is the replacement of blood vengeance by wergeld, and then the conversion of wergeld into bloodwite, when public power takes over the handling of offences against the person. If Iaroslav wanted to discourage violence and revenge among the heterogeneous Novgorod population, the promotion of the acceptance of wergeld would be a more effective measure that taking the matter entirely into his own hands by imposing fines (bloodwite). A second argument is that in some of the following provisions of the Short Pravda (esp. art. 2) and other later Russian sources the victim of an injury is explicitly mentioned as the recipient of the amount indicated. This point is reinforced by the fact that a comparison with similar legislation from other Slavic and Germanic peoples yields the same conclusion. A famous entry in the Primary Chronicle under the year 996 (see below) proves that the payment of wergeld was an accepted practice at that time. If this line of reasoning is accepted, the earliest phase of the rp represents an era when homicide and other personal injuries constituted torts entailing, in a modern legal view, fixed damages. The following provisions of the Short Pravda defined fixed damages for lesser personal injuries. A comparison of the relative sanctions reveals that the seriousness of the injury was not measured in physical or economic terms, but in considerations of honour and status. Cutting off a moustache or a beard entailed a composition of 12 grivna, while the loss of a  finger only merited 3 grivna. Whichever interpretation is given to art. 1 of the Short Pravda, it should be borne in mind that it constitutes only a particular point in a long development. If we confine our attention to homicide, revenge (blood feud) was the oldest 10

For an extensive survey of the literature on this question, see my “Wergeld, Bloodwite, and the Emergence of Criminal Law”, H. Küpper, Von Kontinuitäten und Brüchen: Ostrecht in Wandel der Zeiten. Festschrift für Friedrich-Christian Schroeder zum 75. Geburtstag, Frankfurt am Main, 2011, 3–21.

The Individual as a Legal Actor

651

way of dealing with it, accompanied at an early stage already by the alternative of accepting compensation. As such, they (revenge and compensation) are mentioned in the 911 and 944 treaties with Byzantium (arts. 4 and 13 resp.). When public power (a prince) began to assert itself, it attempted to intervene in the process of dealing with the consequences of homicide; this could be done by discouraging revenge and promoting the alternative of accepting compensation, and subsequently also by diverting the compensation to be paid from the victim’s family to the state itself. Such an attempt is described in the Chronicle for the year 996.11 An intermediate point in this course of events is the appropriation of the usual compensation by the prince in the case members of his own personnel had been killed. This is the main topic of the Pravda of Iaroslav’s Sons. In the end, homicide is removed entirely from the private sphere, revenge is forbidden and the punishment of the offender becomes the monopoly of the state, although there still may be some provision for compensating the victim’s family.12 When this final stage is reached, the various torts described in the Pravda of Iaroslav are converted into criminal offences. Needless to say, medieval Russian law did not have and did not need an abstract concept of delicts. With the growth of central power, more and more conflicts would be drawn into the sphere of law. The various injurious actions defined in the Pravda of Iaroslav may be regarded as torts, by applying (anachronistically) our modern concepts. After they had been converted into crimes, torts seemingly disappeared from medieval Russian law; in fact, they existed only in the minds of lawyers of other times. The question of crimes and criminal law will be discussed in Chapter 22 Ownership Only a few of the Russian legal historians have paid attention to the general question of ownership in Kievan Russia,13 while the narrower question of 11

12 13

Vladimir’s plan to abolish vira (wergeld) and execute robbers, withdrawn on the advice of the bishops, who suggested that Vladimir could use the vira to buy horses and arms for his troops. This is a summary of the detailed argument in my paper mentioned in a footnote above. In particular Vlad.-Bud., Obzor, 492–501; Sergeevich, Lektsii, 518–529; Iushkov, Stroi, fairly comprehensive in other matters, completely disregarded the question. See also E.I. Kolycheva, “Traditsiia i zakonotvorchestvo v russkom srednevekovom gosudarstve xv–xvi vv. (Pravovye aspekty otchuzhdeniia sobstvennosti)”, N.A. Gorskaia, E.N. Shveikovskaia

652

chapter 20

­ownership of land has been and continues to be a topic commanding the interests of other historians as well. This of course makes good sense in view of the central importance of land ownership for the understanding of Kievan Russia. It has accordingly been treated extensively in Chapter 18. But within the framework of the present chapter the general question of ownership merits some consideration. A lawyer reared in the modern, Romanist tradition is inclined, mostly unconsciously, to look at ownership as an almost physical quality adhering to a material object. Looking at a bar of precious metal, he will ask: “Who is the owner?”, in the same way a physicist might ask: “Is this bar radioactive?”, and he might believe that some kind of (quasi-)scientific examination could answer his question, in the same way as the physicist would establish radioactivity. Ownership, however, does not reside in the physical world, but is an ­invented concept, which is then applied to the physical world. For what it is worth, the dominant concept of ownership, found in slightly different shapes in most modern legislations, embraces the full and exclusive power of the owner over a particular physical object (leaving aside the further complication of the metaphorical application of ownership to non-material things).14 Ownership in this sense is at the basis of most of private law. All other rights with respect to things have been construed as derivative of ownership and in the law of obligations ownership also occupies a central place; the transfer of ownership, for instance, is the basic purpose of the most important contract: barter/sale. It is not easy for a lawyer who operates in such an ownership-based legal universe to genuinely understand, to get inside, a world in which this framework did not function. In Chapter 18 we have attempted to sketch the slow emergence of graduated concepts of land tenure and land ownership. It took several centuries before the idea was accepted that a piece of land could be ‘owned’ in the modern sense: that a particular person would be exclusively entitled to use and exploit it, to sell, donate or bequeath it. This approach cannot be applied similarly to other objects of ownership: chattels, movable property. The dichotomy of movable and immovable things, a conscious human invention in its legal form, is itself grounded in physical reality. The allegedly unlimited powers of an owner to do what he likes with his property (barring specific legal prohibitions) are in fact severely limited in

14

(eds.), Predstavleniia o sobstvennosti v russkom obshchestve xv–xviii vv., Moskva, 1998, 6–38, at 6–7. See art. 544 Code Civil, art. 903 bgb, art. 209 Civil Code of the Russian Federation.

The Individual as a Legal Actor

653

respect of land, because it lies where it lies and there is not that much you can do with it, at least compared to things like clothing or furniture.15 In law, the borderline between movable and immovable property has of necessity been drawn sharply, but there is implicit recognition of the fact that in reality there is no clear borderline. For most categories of things located in the border area between the two kinds of property, the law (the legislator or otherwise the court) decides where something should go. Seagoing ships and aeroplanes, for instance, although eminently movable, are considered to be immovable in most legislations. If it took a long time before a clear concept of ownership of immovable property came about, the awareness of ownership of movable property has a much longer pedigree, not surprisingly. The 911 and 944 treaties with Byzantium discuss theft and this necessarily implied such ownership. Art. 13 of the Short Pravda is even more explicit in referring to the unlawful taking of the principal objects of such ownership: a horse, weaponry, clothes. Art. 18 mentions the destruction of weaponry or clothes by someone who is not the owner. The Pravda does not use such terms as ‘owner’ or ‘ownership’, but simply refers to somebody’s property as ‘his’ (svoe). The few authors who deal with ownership in general terms do so in the traditional way, i.e., they impose their conceptual framework on the rather disparate bits of information offered by early Russian legislation. Then they reach conclusions that the law of the Kievan era did not distinguish between ownership and possession, or about the various ways ownership could arise, etc.16 Vladimirskii-Budanov notes the valid point that the family (itself a not very precise concept) often appeared as the owner, rather than the person who was actually using the property. This can easily be accommodated in the view adopted in this work that ownership was a fluid and often unarticulated concept in early law. 15

In the post-Soviet debates about the privatization of land, a politician exclaimed that he would be horrified to see an American being allowed to buy the Ural mountains, whereupon an opponent retorted: “Are you afraid he would be carrying them home?” 16 Sergeevich. Lektsii, 518–529, offers a general essay on ownership in early legal systems, with little reference to Russian law. Vlad.-Bud., Obzor, 493–501, is more to the point and stresses the importance of the movable-immovable property dichotomy.

chapter 21

The Church and Monasteries The conversion of Russia, traditionally dated 988, the year of the baptism of the Kievan prince Vladimir Sviatoslavich in Kherson, one of the most fundamental turning-points in Russian history, also affected the legal system of the Kievan realm to its very foundations.1 Christianity was not an entirely new phenomenon in Russia at that time. The Primary Chronicle contains many references to earlier manifestations. The 911 Treaty between Byzantium and Kiev explicitly juxtaposed Christians (i.e. Greeks) and Russians (pagans), but the 944 Treaty already has several references to Russian adhering to the Christian faith. Somewhat later, probably in 948, the ruling Kievan princess Olga (Vladimir’s grandmother) visited Constantinople where she was baptized by the patriarch, a story told with great gusto in the Chronicle. But it was only the baptism of Vladimir which propelled the Christian Church to a central position in the politico-legal structure of the Kievan state.2 The acceptance of baptism from Byzantium and the subordination of the Russian Church to the see of Constantinople for many centuries were of decisive importance for the fate of Russia, up to the present day. On the other hand, it should be kept in mind that the conversion of Russia took place before the Great Schism of 1054 and that the Russian Church started life in union with the Church of Rome.3 In this chapter we intend to look first at the legal identity of the Church, in other words, what sort of subject the Church represented in the legal system, 1 Post-Soviet authors occasionally recognize this point; e.g. T. Fedorenko, “Vplyv khrystyians’ koho svitohliadu na pravosvidomist’ ta pravovu kul’turu Kyivs’koi Rusi (kinets’ x – persha tretyna xiii st.)”, Pravo Ukrainy, 2001, No.8, 114–116. 2 The story of Vladimir’s conversion and baptism is one of the major themes in the Primary Chronicle, told with much detail, most of it quite improbable. See the relevant chapter in J. Fennell, A History of the Russian Church to 1449, London/New York, 1995 (hereafter: ­Fennell), 35–44. Also R.G. Skrynnikov, Krest i Korona. Tserkov’ i gosudarstvo na Rusi ix–xvii vv., SanktPeterburg, 2000, 20–30. The general literature on the spiritual, political, international and socio-­economic factors affecting the Christianization of Russia is voluminous, and a reference to the usual handbooks and works of reference must suffice here. Among modern authors, the figure of Ia.N. Shchapov towers above all others; church and state relations, and ­Byzantine-Russian connections are among the main themes of his numerous books and articles. 3 Fennell, 97–104, gives many examples of the absence of wide-spread anti-Latin feelings in Russia until the stage had changed completely after the Mongol invasion.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_022

The Church and Monasteries

655

how it related to the state and what its organizational structure was. The next topic is the Church as a legal actor and concerns the jurisdiction of the Church: the particular class of persons (church people) subject to church jurisdiction, particular categories of cases and disputes assigned to church jurisdiction, and the role of ecclesiastical courts. Thirdly, there is the role of monasteries as separate legal entities; ecclesiastical and particularly monastic landowning was discussed separately in Chapter 18.

Church and State

In the modern secularized world, the on-going implementation of the principle of separation of Church and state has led to increasing ‘privatization’ of churches, and their being relegated to the sphere of private life and private law. Churches then become private legal persons, comparable to associations or cooperatives. But cultural and demographic realities are hard to deny and many European countries recognize in some way the special position of a particular religious denomination. This perpetuates to some extent the situation which prevailed well into the 19th century, when most countries recognized a state or at least an official religion (Roman-Catholic, Protestant, Anglican, Orthodox). In a more distant past, after Christianity had ousted paganism in Europe, its exclusive position (either Western/Roman, or Eastern/Orthodox) remained uncontested for centuries, until the Reformation necessitated new arrangements for the co-existence of different faiths in one country.4 For the young Christian churches, the eradication of paganism remained an urgent task for a long time. Russia was no exception in this respect. Pagan practices survived for many centuries in the Russian countryside.5 The earliest legislation concerning the Russian Church, the Church Statute of Vladimir, in its list of cases subject to church jurisdiction (art. 9) mentioned the following: witchcraft (ved’stvo), the making of potions (zeliinich’stvo) or charms (potvori), sorcery (charodeianiia), magic (volkhovaniia), cutting down a cross, praying under a grain-drying roof (ovin) or in a copse or by the water. The Church Statute of Iaroslav, a kind of penal code for offences in which the Church had a greater interest than the state, referred to many practices which were probably commonplace in pagan Russia, but some of them concerned particularly pagan practices, such as “cutting the cheese for a girl” (a wedding 4 Leaving aside the special question of the Jewish religion, which was tolerated in some countries and not at all times. 5 See the chapter on “Pagan Survivals” in Fennell, 73–90.

656

chapter 21

ritual, art. 36), or women engaged in making charms, witchcraft, sorcery or potions (art. 40), eating pagan (poganoe) food such as bear’s or mare’s meat (art. 50) or women going to pagan dances (igrishchi, art. 56, the fifth ground for divorcing a wife). The exclusive position of the medieval Church in Europe (whether Western or Eastern), the fact that Christianity was the religion of the state, the ruler and the population, meant that the relationship between Church and state became a matter of supreme socio-political importance. Such a relationship usually allowed or tolerated the presence of persons professing another faith; much would depend on local conditions. In Russia, the conversion of forestdwelling Finno-Ugrian peoples was never completed, but they did not constitute an ­important factor in the make-up of the political system. Foreign trade often implied the more or less permanent presence of foreign merchants, Latin Catholics from Western Europe, Muslims from the East and South. With the waning of the Mongol-Tatar overlordship in the 14th and 15th centuries, the Russians co-existed with Muslim Tatars in many parts of the country. The presence of Jewish communities has already been mentioned above.6 All this did not alter the position of Orthodoxy as the national religion of the country. Through the centuries, the Western and Eastern churches had developed different modes of co-existence with the state. Initially, the Roman emperors after Constantine the Great legislated without hesitation about matters concerning the internal organization of the church. Charlemagne and his successors followed this example in respect of the Church of the Frankish empire. In the process of European feudalization, bishops and abbots were preferable as feudal lords for emperors and kings, as they were prevented from setting up their own dynasties. This bound church dignitaries, who simultaneously acted as temporal rulers, more closely to the ruling monarch. The tension between Church and state, implied in this relationship, came to a head at the end of the 11th century in the Investiture Struggle between the pope and the emperor. The Concordat of Worms of 1122 reflected a compromise perpetuating the feudal subordination of church dignitaries in temporal matters, but excluding (at least in principle) the intervention of secular rulers in the election of the pope and confirming the latter’s exclusive right to appoint bishops, i­ntroducing 6 The state of the Khazars (a probably Turkic people which had adopted Judaism as its state ­religion) was overpowered by Sviatoslav, the father of Vladimir, in 965. There were J­ewish Khazar communities in Kievan Russia. In the 12th and 13th century numerous West-­European Jews settled in the Polish-Lithuanian state; after the partition of Poland in the 18th century they became Russian citizens and constituted the main component of Russia’s ­Jewish population.

The Church and Monasteries

657

thereby some of the elements which later contributed to the doctrine of the separation of Church and state. In the Byzantine empire, Church and state continued to work together in close harmony, the Symphonia of Church and state. One of the curious legal consequences of this arrangement was that church and state each acted as legislator, without a very strict demarcation between the respective jurisdictions.7 The Byzantine collections of canon law, usually going under such names as Nomocanon or Syntagma, also contained secular law which often had been taken from the Corpus Iuris and subsequent imperial legislation.8 Different versions of the Nomocanon eventually reached Russia, where they constituted the main vehicle for the reception of Byzantine law. A detailed examination of the process by which Byzantine law came to Russia was carried out in recent times by Ia.N. Shchapov in several pioneering works, especially “The Byzantine and South-Slavic Legal Heritage in Russia in the 11th-13th Centuries”.9 After the conversion of Russia, the hierarchy of the Russian Church consisted initially of Greek clergymen, but the Byzantine model of Church-state relations underwent significant alterations and adaptations to specifically Russian circumstances. The fundamental enactment in this respect was the Church Statute of Vladimir, of which the oldest part was issued shortly after Vladimir’s baptism.10 The three main points of this Statute were the conferring of tithes on the Church, of jurisdiction in certain categories of cases, and the definition of ‘church people’ (tserkovnye liudi). These three points together created a practical structure, providing the Church with the necessary material resources to enable it to operate in what was essentially a missionary context. This structure differed from its Byzantine counterpart, which did not know tithes, and from the systems in operation in Western Europe, in which the incorporation of bishops and abbots in the emerging feudal system was a central element. In terms of power relationships, a conspicuous feature of the Russian set-up 7

8 9 10

This tendency was most clearly present in the Epanagoge, a summary of the law, which appeared in 885/886 during the reign of emperor Basil i (867–886) and was strongly inspired by the famous and energetic patriarch Photius. The Epanagoge, with the most blatantly pro-church chapters removed, was the main source of the Procheiron (907/908), a text of considerable influence in Russia later on. The foundation on which the Epanagoge built was in the Corpus Iuris, where the respective domains of Church and state were briefly designated in the preface of Nov.6. I have discussed this matter in more detail in “Roman Law in Medieval Russia”, F­ eldbrugge, lmr, 59–128, at 70–79. Vizantiiskoe i iuzhnoslavianskoe pravovoe nasledie na Rusi v xi–xiii vv., Moskva, 1978. Art. 5 of the Statute mentions that Vladimir had consulted with his wife Anna, the sister of the Byzantine emperor; she died in 1011 according to the Chronicle.

658

chapter 21

was that the Church-state relationship appeared as a creation of the prince. It was the prince who granted the Church the revenues from his own estate and part of the jurisdiction which, without the grant, would have remained in his hands. The entire first part (arts. 1–8) of the Statute reads almost like a preamble, in which Vladimir explains how he came to his ostensibly generous grants to the Church. “Having opened the Greek nomocanon we discovered in it that the prince ought not to hold jurisdiction over these cases …” (art. 4, Kaiser’s translation); “And I, having consulted with my Princess Anna and with my children, have given these cases to the churches, to the Metropolitan, and to all the bishoprics throughout the Rus’ land.” (art. 5, Kaiser’s translation). Although these lines were undoubtedly conceived and written down by church representatives, perhaps by the metropolitan himself, the decision behind them was the prince’s. This decision deviated from previous practice, as it had to deal with the presence of a new actor, the Church, and the innovation may have required some explaining to circles around the prince. Once the step across the threshold into the Christian Church had been taken, the new institution had to be given the materials with which to function; Vladimir’s grant satisfied this demand and simultaneously bound the Church to its benefactor. The Church Statute of Vladimir was followed by the Church Statute of his son Iaroslav; the latter statute represented a natural elaboration and complement to the former. Together these statutes provided the foundation of the legal position of the Russian church. This was repeatedly and explicitly confirmed by several later rulers.11 The history of Christianity knows numerous instances of church leaders who, clearly motivated by a sense of spiritual and moral duty, did not shirk their responsibilities and spoke out and acted against secular powers; Russia has been no exception in this respect. But that does not alter the fact that the Russian Church has generally been less independent with respect to the power of the state. To put it in a perhaps oversimplified form, if the Western Church ultimately developed as an independent power, but within its own limited sphere, and the Byzantine Church as a close and more or less equal partner of 11

Some of the later church statutes refer to the early ones of Vladimir and Iaroslav; e.g. the Novgorod Statute of prince Vsevolod on Church Courts, Church People, and Trade Measures (in art. 14), prp ii, 160–161; also Ia.N. Shchapov, Drevnerusskie kniazheskie ustavy xi–xv vv., Moskva, 1976, 153–158; English translation, Kaiser, Laws, 59–63. Apart from that, there are also several “confirmation charters”, which confirm the continued validity of the statutes of Vladimir and Iaroslav; e.g. by the Moscow grand prince Vasilii i Dmitrievich of 1402 (Shchapov, Drevnerusskie, 182–184); by the Lithuanian grand prince (and king of Poland) Aleksander Kazimirovich of 1499 and 1502 (Shchapov, Drevnerusskie, 187–193).

The Church and Monasteries

659

the state, the Russian Church often appeared to be mostly the state’s department for religious affairs. Peter the Great formalized this status by replacing the patriarch by the Holy Synod, which was in fact controlled by the OberProkuror of the Holy Synod, the entire system fixed legally in 1721 by the Dukhovnyi Reglament (Spiritual Regulations).12 To correct this admittedly cavalier characterization one should add that major variations occurred in the course of the long history of the Russian Orthodox Church. The Church of the Kievan era was primarily concerned with the promotion of the new faith across the vast territory of the Eastern Slavs. As the Kievan state was gradually transformed into a loose amalgam of often independent and competing principalities, the Church attempted as a rule to maintain and balance its position. The rise of the grand principality of Moscow again changed the playing field. Although the general tendency of the policies of the metropolitans was undoubtedly supportive of the grand prince’s ambitions, the Church had its own separate interests, spiritual as well as material, to be looked after, and this would occasionally lead to tense relations with the grand prince. Moreover, the Church was not a monolithic body; there were at least three major categories of interested parties: the metropolitan (often a Greek appointee of the patriarch of Constantinople), the individual bishops, and the monasteries, some of which were among the wealthiest and most powerful landowners of the country.13

The Organization of the Church14

The Chronicle reports that the Greek princess Anna (the emperor’s sister) came to Russia in the company of priests to marry Vladimir, but is otherwise curiously silent about the initial organization of the Russian Church. This has 12

13

14

Text of the Dukhovnyi Reglament in V.N. Beneshevich, Sbornik pamiatnikov tserkovnago prava, Petrograd, 1915, Part ii (Petrograd, 1914), 94–155; also in V.A. Tomsinov (comp.), Zakonodatel’stvo Petra i, 1696–1725 gody, Moskva, 2014, 313–355. While Fennell generally attached less weight to ecclesiastical opposition to the policies of the grand prince, Borisov is more inclined to stress the independent course taken by several metropolitans during the formative period of Muscovy; cf. N.S. Borisov, Russkaia tserkov’ v politicheskoi bor’be xi–xv vekov, Moskva, 1986. For the history of Church-state relations in Russia, see also V. Val’denberg, Drevnerusskiia ucheniia o predelakh tsarskoi vlasti. Ocherki russkoi politicheskoi literatury ot Vladimir Sviatogo do kontsa xvii veka, Petrograd, 1916. This section is based mainly on Ia.N. Shchapov, Gosudarstvo i tserkov Drevnei Rusi x– xiii vv., Moskva, 1989, Chapter 1: “The Formation and Development of the Structure and

660

chapter 21

given rise to much controversy. Who was the first leader of the Russian Church? Was he a metropolitan or an ordinary bishop, or archbishop? Who had appointed him? Did he answer to the patriarch in Constantinople, or, as some have argued, to the Bulgarian patriarch in Ohrid? The most likely answer is that a Byzantine bishop, Feofilakt (Theophylactes), who had been involved in diplomatic contacts with Vladimir, was the first metropolitan, appointed by the patriarch of Constantinople.15 He was succeeded before 1018 by Ioann, who was followed in 1039 by Feopempt (Theopemptes), who is the first metropolitan named in the Chronicle. The next metropolitan Ilarion, unlike his three predecessors (Greek bishops appointed by the patriarch of Constantinople), was a Russian monk, appointed in 1051 by Iaroslav the Wise, “after assembling the bishops”, in the words of the Chronicle. This was not a revolutionary move, but rather a return to traditional Byzantine procedure, according to which the selection of the metropolitan was the responsibility of the bishops of the province, a procedure which had gradually been replaced by the patriarch assuming this responsibility.16 Anyway, after Ilarion, appointment by the patriarch of Constantinople remained the normal procedure and all metropolitans until the Mongol invasion were of Greek origin, except Klim (Kliment), elected by a majority at a council of bishops and appointed by the Kievan prince Iziaslav Mstislavich in 1147, when the patriarchal see in Constantinople happened to be in disarray. Klim’s appointment was followed by serious discord within the church hierarchy, which was finally resolved when a new Greek metropolitan, Konstantin, was appointed in 1155. In the Eastern Church a metropolitan was the head of a national church, enjoying a certain amount of power over the bishops of his territory. Very occasionally a bishop was honoured with the mere title of metropolitan. This was the case for a short period with the bishops of Chernigov and Pereiaslavl’.17

15 16 17

­ dministration of the Church”, 23–75. Appendices i and ii (191–214) offer lists of the A ­Russian metropolitans and bishops for the 10th-13th century. So Ia.N. Shchapov, Gosudarstvo, 192; also Fennell, 40. Fennell, 45. The three surviving sons of Iaroslav Mudryi (†1054), Iziaslav, Sviatoslav and Vsevolod, who succeeded him, had their capitals in Kiev, Chernigov and Pereiaslavl (respectively). This would explain the temporary metropolitanates in Chernigov and Pereiaslavl’; see A.V. Nazarenko, “Territorial’no-politicheskaia organizatsiia i eparkhial’naia struktura tserkvi v Drevnei Rusi (konets x–xi vek)”, A.V. Nazarenko, Drevniaia Rus’ i Slaviane (=dgve 2007), Moskva, 2009, 172–206, and also id., “Pereiaslavskaia mitropoliia na Rusi na rubezhe xi– xii vv. (dinasticheskaia i vneshnepoliticheskaia podopleka tserkovnoi geografii)”, T.N. Dzhakson, A.V. Podosinov (eds.), Kniga kartiny Zemli. Sbornik statei v chest’ Iriny Gennadievny Konovalovoi, Moskva, 2014, 192–211.

The Church and Monasteries

661

The first Russian city to receive a bishop after Kiev was Novgorod, possibly as early as 989. Within a few decades Belgorod and Chernigov followed; later in the course of the 11th century Pereiaslavl’, Polotsk and Vladimir-Volynsk received their own bishops. Peremyshl’, Turov, Galich, Smolensk, Ugrovsk, Kholm, Iur’ev, Kanev, Rostov, Vladimir (on the Kliazma), Riazan’ and Lutsk complete the list of pre-Mongol eparchies18 in Russia. Most episcopal sees coincided with the regional administrative centres, seats of ruling princes, which had often arisen in older tribal capitals.19 Until the Mongol invasions the metropolitans resided in Kiev and were known as the metropolitans of Kiev or as the metropolitans of Russia or the Russian metropolitans.20 Shortly after the fall of Kiev in 1240, a Russian monk, Kirill, was appointed to the Kiev see, but it was several years before he was officially installed. He led a rather ambulant existence, due to the turmoil of the times and often resided in Vladimir, the seat of the grand princes of Vladimir. He enjoyed a particularly close relationship with Aleksandr Nevskii (grand prince of Vladimir, 1052–1063). After the death of Kirill in 1281, his successor Maksim moved the metropolitan see from Kiev to Vladimir and adopted the title of metropolitan of all Russia.21 In 1325 metropolitan Petr moved the see again, this time from Vladimir to Moscow. Bishops were appointed by the Kievan metropolitan, as a rule, and not by the patriarch in Constantinople. The wishes of the local prince were an important factor, as the income of the Church depended on the revenues ­assigned to it by the ruler. The best documented is the appointment of the first bishop 18 19

“Eparchy” is the normal designation for a bishopric or diocese in the Eastern church. The small eparchies of Belgorod and Iur’ev in the vicinity of Kiev were part of the territory of the Kievan grand prince; their bishops served as administrators of the Kievan eparchy and as deputies for the metropolitan. In Western Russia (the principality of VladimirVolynsk), there were several eparchies (Vladimir-Volynsk, Lutsk, Ugrovsk and Kholm). Nazarenko, op. cit., 172, regards this as a consequence of the principle that the diocesan structure should follow the political organization of the state, as enunciated in Canon 17 of the Council of Chalcedon (451). However, the last sentence of this Canon merely states “If any city has been, or shall hereafter be erected by imperial authority, then let the order of the church parishes follow the political and municipal example.” 20 The varying titles adorning the Russian metropolitan have a complicated background, connected not only with his relationship with the grand prince (of Kiev and then ­Vladimir), but also with a wider network of relationships involving the Byzantine patriarch and emperor, as well as developments in Western Russia, where various metropolitanates were set up and dissolved (esp. in Galicia). See Fennell, Chapters 12 and 13, and also A.I. Pliguzov, “O titule «mitropolit kievskii i vseia Rusi»”, A.I. Pliguzov (ed.), Russkii feodal’nyi arkhiv xiv – pervoi treti xvi veka, v, Moskva, 1992, 1034–1042. 21 Shchapov, Gosudarstvo, 205.

662

chapter 21

of Smolensk, Manuil, in the first half of the 12th century.22 Art. 2 of the charter of prince Rostislav Mstislavich of Smolensk stated that the prince brought a bishop to Smolensk “[after] having consulted with my people, by the order of my holy father [Mstislav], who wished to create [a bishopric] in his lifetime here where previously there was no bishopric; so that I, [although] unworthy [and] sinful, [do hereby] establish the bishopric”.23 The confirmation charter by bishop Manuil referred to the establishment of the bishopric by prince Rostislav and the latter’s charter, but also to the Kievan (“Russian”) metropolitan Mikhail, who had “appointed” him (postavlenikom moim Russkim kir Mikhailom).24 The main topic of prince Rostislav’s charter is the detailed listing of the various sources of income assigned to the bishop. It illustrated the usual practice in which the local prince and also the local population played an often decisive role, while the official appointment, lending legitimacy to the new bishop, rested with the Russian metropolitan. This applied in particular to Novgorod, where the selection of the bishop depended very much on local preferences. Of all the medieval Russian bishops, the Novgorod bishop was the only one to enjoy the title of archbishop. This was, according to Shchapov, a mere question of titular eminence, without the normal immediate subordination of a Byzantine archbishop to the patriarch and corresponding exemption from the powers of the metropolitan.25 The administration of a medieval Russian eparchy embraced a wide variety of activities, requiring a more or less extensive bureaucracy. Much would depend on local circumstances. The eparchy of Rostov in the East of Russia covered an enormous territory, much of it sparsely populated by pagan Finnish tribes; the bishop of Rostov, initially at least, was the main representative of the Kievan prince, and missionary duties would have been prominent, along with general administrative responsibilities. In most eparchies, the bishop resided in a town which was at the same time the capital of the regional prince (e.g. Smolensk, or Polotsk); the Novgorod archbishop gradually assumed the function of ceremonial head of state of the Novgorod republic. The information on the episcopal bureaucracy is incidental and scattered and allows only a somewhat sketchy reconstruction. It seems that the general 22

For the complications surrounding the exact dating of the actual founding of the eparchy and the appointment of the first bishop, see the section on the Smolensk charters of prince Rostislav and bishop Manuil in Chapter 6. 23 Kaiser’s translation; in prp ii, 39, this is art. 1; Kaiser follows Shchapov’s later edition in Ia.N. Shchapov, Drevnerusskie kniazheskie ustavy xi–xv vv., Moskva, 1976, 141. 24 The title kir, from Greek kurios, “lord”, is unusual. prp ii, 43; Shchapov, op. cit., 145. 25 Shchapov, Gosudarstvo, 62–63.

The Church and Monasteries

663

administrative representative of the bishop was the bishop’s lieutenant (vladychnyi namestnik); clerical as well as lay persons are mentioned as the occupants of this office. Such lieutenants could serve as administrators in the diocesan capital, and also as episcopal representatives in other towns of the eparchy. Their duties also involved participation in criminal trials. Art. 8 of the Church Statute of Vladimir forbad the prince’s judges to adjudicate without the participation of the bishop’s lieutenant, where this was required.26 The Statute of Iaroslav mentioned the metropolitan’s lieutenant (volostel’ mitropolichii) as the regular judge of his court (art. 57). The tiun or steward, mentioned repeatedly in the rp as an official of a prince or a boyar (e.g. art. 1 of the Expanded Pravda), also appears in other sources as an estate agent, overseer, or business manager of a bishop. Other more specialized episcopal officials were the mytnik, the market overseer, and the desiatinnik, whose duties, as the name suggests, were in some way connected with tithes.27 The priesthood of the eparchy consisted of ordinary (secular) priests and deacons and the members of the kliros, comparable to the canons in the Western church. The kliros is often mentioned separately; their principal religious duty consisted in taking care of daily services in the local sobor, the church specifically designated for this purpose. In major towns, where the bishop had his residence, the local cathedral would be the sobor. In the largest towns, like Kiev or Novgorod, there would be several sobory. It seems that the appointment and material provision of the kliros were often made by the prince.28

Church Jurisdiction

The Church Statute of Vladimir (in its original shape) produced an outline of Church-state relations which remained a fundamental aspect of the legal system of Russia for many centuries. Its main points, as indicated above, were the establishment of tithes, the introduction of the Church (or rather the bishop) as a judicial actor, and the definition of “church people”. The last point may actually be considered as an elaboration of the second, because it provided a part of the definition of the jurisdiction of the Church. The practical background of 26

This particular rule represents a later addition to the Statute, because there were obviously no lieutenants, nor even bishops, at the time of the first enactment of it. Art. 109 of the Court Charter of Pskov mentions a case of mixed jurisdiction of the prince’s and the bishop’s lieutenants. 27 See Shchapov, Gosudarstvo, 69–73. 28 Shchapov, Gosudarstvo, 124–131.

664

chapter 21

it all was the need to equip the Church with sufficient material means to function. In his work on Church and state in medieval Russia, Shchapov therefore unites all such means in a single chapter: tithes, landowning by the Church, weights and measures, and church jurisdiction. If one adopts a legal, instead of an economic perspective, these different sources of income are of a widely divergent legal nature and are therefore better treated separately. Matters Assigned to the Church The alleged ground for conferring jurisdiction on the Church (as indicated above) was the Greek practice, which Vladimir had discovered when he acquainted himself with the Nomocanon (see art. 4 of the Statute). A similar reference is to be found in the Church Statute of Iaroslav, which in its first article relates that the Greek Nomocanon was consulted in the matter of conferring jurisdiction on the metropolitan and the bishops. This is a pia fraus, for several reasons. Vladimir surely did not consult the Nomocanon himself. The Slavonic Efrem version of the Nomocanon probably reached Kiev only during the reign of Vladimir’s son Iaroslav.29 Also, the cases referred to church courts in the Statute of Vladimir were normally dealt with by secular courts in Byzantium, and it is unlikely if not impossible that the practice referred to in art. 4 could be found anywhere in contemporary Byzantine legislation.30 The real reason for invoking the Byzantine roots of the innovation was most probably the wish to strengthen its legitimacy, hence also the express mention of the consultation of Vladimir’s wife, the princess Anna, sister of the Byzantine emperor Basil ii. What the newly converted Russian rulers actually did was to deviate from, rather than to follow the Byzantine model. This can be explained, as Shchapov has done convincingly,31 by considering the conditions prevailing in Russia at the time, a completely uneducated pagan population in the countryside and a legal system which was only taking the first steps in the direction of central legislation and written law, conditions which required an entirely different governmental approach from what would be appropriate in the Byzantine empire. 29 Shchapov, Vizantiiskoe, 95. 30 This question is overlooked by most Russian authors, except Shchapov who refers to it laterally when he points out, in his discussion of the Statute of Iaroslav, that the Russian division of jurisdiction differed from the Byzantine system by taking away an entire complex of cases from the secular courts and transferring them to the bishop’s court, while in Byzantium the secular court would deal with them and the Church would only get involved in a complementary fashion by adding church penalties to what the secular court had already imposed; Shchapov, Kniazheskie ustavy i tserkov’, 302–306. 31 Ibidem.

The Church and Monasteries

665

The initial list of cases handed over to the jurisdiction of the church, according to the reconstructed archetype of the Statute of Vladimir, was:32 And in all towns, and in villages and in settlements where there are Christians, I have given [to the Church]: divorces, fornication [smil’noe], adultery, abduction, rape, disputes between husband and wife over an inheritance, or if they are within a forbidden degree of consanguinity or spiritual relationship [godparent and godchild], witchcraft, dishonour[33], potion-making, heresy, biting [in a fight between men], if a son or daughter beats the father or mother, or if brothers have a dispute over an inheritance. In later versions of the Statute other wrongdoings were added (see the list in the section on “Marriage After the Conversion of Russia” in Chapter 19). The Church Statute of Vladimir’s son Iaroslav rounded off what Vladimir had started, by directing what was to happen when the cases referred to church jurisdiction occurred. It therefore has the appearance of a small criminal code. The various forms of misconduct identified in the Statute of Vladimir (also in the longer lists of more recent versions) resurfaced, together with a good many new forms, and the Statute indicated what kind of measure or penalty the metropolitan (or the bishop) was to impose.34 In accordance with the express purpose of providing the Church with income, the penalties generally consisted of fines. In a few cases an additional penalty could be imposed by the prince. These comprised abduction and rape (arts. 2 and 3), dishonouring a wife by repudiating her (without a valid reason, art. 4), seduction leading to a group rape (art. 8), adultery by the husband (art. 9), arson (arts. 15 and 49), shaving off somebody’s beard or hair (art. 32), participating in a pagan marriage ritual (“cutting 32 33

34

As suggested by Shchapov in Kniazheskie ustavy i tserkov’, 120–121. Urekanie: this is the term Shchapov uses in his reconstruction of the original text. In the church statutes of Vladimir and Vsevolod it appears in the formula “these three dishonours [urekaniia]: fornication [bliadnia], making poisons, heresy”. If urekanie in Shchapov’s reconstruction is read as bliadnia and taken to mean “visiting prostitutes” of “engaging in prostitution”, as specific forms of fornication, everything falls into place. In most copies of the so-called Expanded Version (to which the frequently used Archeographic Copy belongs) the metropolitan is mentioned as the judge; in the more numerous copies of the Short Version, the bishop. Nobody contests that ordinary bishops, along with the metropolitan, were the judges in the cases referred to church courts in Kievan times. In his reconstruction of the archetype of the Statute, Shchapov deliberately opted for the term “bishop”; Kniazheskie ustavy i tserkov’, 293.

666

chapter 21

the cheese”, art. 36). The reasons for the prince’s intervention in these cases were apparently diverse. The offences in arts. 2, 3, 4, 8 and 32 affected primarily the honour of the family or individual concerned and paralleled various provisions of the rp. Arson as defined in art. 15 (art. 49 was a mere repetition of art. 15), burning “a threshing floor or a house or anything else”, was also covered by the rp (burning a threshing floor, art. 83 of the Expanded Pravda) and probably did not envisage the acts of an individual arsonist, but rather an act of collective violence against the property of another family. Then it would also belong to the type of behaviour which could upset the peace and public order, like the other offences mentioned, and unlike the various forms of private sexual misconduct which made up the bulk of the Statute of Iaroslav. Why the prince should get involved in a husband’s adultery (art. 9) is difficult to explain, in light of the mores of the times. Perhaps this additional sanction was included at the insistence of the Church. The struggle against pagan rituals, in particular pagan weddings, would be a case in which the interests of prince and Church coincided. The Church wanted people to be Christians and behave accordingly; for the prince, paganism would be a factor resisting the territorial penetration and implementation of his power. If one views the behavioural complex, briefly indicated in art. 9 of the Statute of Vladimir and expanded and elaborated in the Statute of Iaroslav, as a coherent whole, its meaning is clear. The new rules were directed against certain excesses of a pagan life-style which were most objectionable to the Christian religion. The ideas behind it came therefore from Byzantium; much of the behaviour involved would not have upset the pagan Russians overmuch, or it would have been dealt with according to customary law. The new remedy, however, was very much a Russian innovation. This can be clearly illustrated by a comparison with the Ecloga, in particular its 17th Title, devoted to criminal law. The Greek clergy which had come to Kiev was of course familiar with the legal world reflected by the Ecloga and comparable Byzantine legislation; this was where they got their ideas from. Most of the wrongdoings described in Iaroslav’s Statute were found in some form in the Ecloga. But on two decisive points the Byzantine and Russian solutions diverged. In the Ecloga the penalty was imposed by the secular court, and not by the bishop; and the penalties in the Statute of Iaroslav consisted, as has been said, of fines, while the Ecloga’s penalties, and Byzantine criminal law in general, were more brutal (crucifixion, decapitation, cutting off the nose, the hand or the genitals, etc.). The strengthening of the power of the prince, especially after the establishment of the hegemony of Muscovy, together with the more thorough Christianization of Russia, rendered the original co-operation model between Church and state outdated. The usefulness of assigning a number of offences to the

The Church and Monasteries

667

jurisdiction to the Church dwindled as the Church acquired important other sources of income, and more and more jurisdiction was reclaimed by the state. The Smolensk Church Statute of prince Rostislav still contained a list of “bishop’s cases”, expanded in some ways and reduced in others (art. 11). The Church Statute of the Novgorod prince Vsevolod, in accordance with its general character, copied the list of art. 9 of the Statute of Vladimir (also in its art. 9). The Church Statute of the Galician prince Lev Danilovich (of 1301), which also represented a rephrasing of the Statute of Vladimir, reduced the cases reserved for the bishop to matrimonial matters (divorce, separation, annulment). The Code of 1497 still acknowledged “church people” as a separate jurisdictional category (art. 59), but was silent on the matter of exclusive jurisdiction of the Church in certain types of cases. See also the section below on “Church Courts”. Church People The jurisdiction of the Church was not exhausted by the generous package of cases referred to it by art. 9 of the Statute of Vladimir and its elaboration in the Statute of Iaroslav. In the later versions of the Statute of Vladimir, art. 16 listed the “church people” (tserkovnye liudi) and art. 17 then added: “They are the church people, those who do God’s work, the Metropolitan or bishop holds jurisdiction [in disputes] between them, whether [it be a case of] insult, or quarrel, or physical harm or inheritance.” (Kaiser’s translation). Art. 57 of the Statute of Iaroslav transmitted the same principle in a quite different wording.35 The Statute of Vladimir already envisaged the case when somebody, belonging to the “church people”, had a dispute with an outsider; in that case there was to be a common court (obchii sud, art. 18), obviously consisting of a secular and an ecclesiastical judge. So, not only had a certain category of cases been removed from the jurisdiction of the ordinary court, but also an entire category of persons had been made subject to a special church court. This category was defined in the Church Statute of Vladimir as “the abbot, the priest, the priest’s wife, their children, the monk, the nun, the deacon, the proskurnitsa [a woman who baked the bread for the divine liturgy], the slave freed by testament [zadushnyi chelovek].” This at least is the enumeration of Shchapov’s reconstruction of the original text. In the numerous later versions of the Statute the list was brought up to date by inserting additional categories: the abbess, the deacon’s wife, the sacristan, the 35

“And whatever goes on among monastery people and among church people, and in the monasteries themselves, neither the prince nor his rural judge [is to] interfere in that, and the Metropolitan’s lieutenants have jurisdiction over these [matters], and their escheated estates go to the Metropolitan’s lieutenant.” (Kaiser’s translation).

668

chapter 21

members of the kliros, the widow, the lame, the wanderer, the blind, the clerk, the prikladnik (church protégé), the proshchenik, the physician, the pilgrim, persons being cared for in monasteries, hospitals and refuges, persons who sew monks’ habits. While the meaning of most of these categories is sufficiently plain, the prikladniki and proshcheniki deserve some further comment. The prikladniki make an appearance in the list of church people in only some of the versions of the Statute of Vladimir. Iushkov is the only modern author who has paid serious attention to them. He came to the conclusion that they were to be regarded as persons who had voluntarily put themselves under the protection of the Church.36 Other authors who mention them do so usually in one breath with the izgoi, a category which also turns up among the church people, but was by no means confined to that (see the discussion of izgoi in Chapter 19). The term proshchenik suggests a person for whom something had been forgiven. According to one theory, this would be a person who had been healed miraculously and whose sins would have been forgiven simultaneously (an idea prominently present in the New Testament, whenever Jesus Christ heals somebody and adds: “Your sins are forgiven”). A strong argument in favour of this interpretation is that it was still current in the times of Herberstein at the beginning of the 16th century.37 Against it, Iushkov has argued that even princes, boyars and other important people could have been healed miraculously and that it would be implausible to assume that this would make them wards of the Church.38 He therefore preferred a more pedestrian interpretation; a proshchenik in his view was a person who had become a debt slave, but who was then absolved from the obligation to pay back the debt.39 In the Church Statute of Vsevolod the term proshchenik is replaced by pushchenik: somebody “who has been released”.40 The Church Statute of the Smolensk prince Rostislav explicitly referred (in art. 2) to ­pushcheniki 36 Iushkov, Ocherki, 116–118. See also Shchapov, Gosudarstvo, 103. 37 In his section devoted to “Who is subject to church jurisdiction”, Herberstein mentions “those for whom a saint worked a miracle”, S. von Herberstein, Das alte Russland, Zürich, 1984 (orig. Vienna, 1549) 126. Szeftel/Eck follow this interpretation with their translation of miraculé, M. Szeftel, A. Eck, Documents de droit public relatifs á la Russie médiévale, Bruxelles, 1954, 244. 38 Iushkov, Ocherki, 119; id., Stroi, 307. 39 Kaiser, Laws, translates “freed [debt] slaves”, leaving the question unresolved, following in the tracks of Grekov, Kievskaia Rus’, 255–257. Shchapov, Gosudarstvo, 102–103, is close to Iushkov in his views. 40 Szeftel/Eck, op. cit., 273, translate pushchenik here as libertin; Grekov, op. cit., 255, regards him as somebody released from slavery and having become a serf.

The Church and Monasteries

669

belonging to the prince himself, who were transferred by him to the newly established eparchy.41 This of course would be hard to reconcile with the miraculous healing theory. The general idea is clear: church people were not only the clergy and those who directly served the Church, but also persons who were under the care and protection of the Church. The Church functioned as the basic welfare agency; once you were being looked after by the Church, you were also subject to church jurisdiction. It is worth stressing that the medieval Church, in the East as well as the West, took on this responsibility because it considered it part of its vocation on the grounds of biblical injunctions. Simultaneously and additionally, this relieved the prince’s secular government of the need to direct extensive means towards the provision of welfare in situations (such as famines and droughts) where such provision would be politically desirable. It is undeniable that this division of labour between state and Church also had an additional advantage for the latter; it provided a legitimate reason for the Church to insist on being supplied with the means to carry out its tasks. This became an important issue in the internal church struggle during the reign of Ivan iii between the abbot Iosif Volotskii (see below in the section on monasteries) and the party of the nestiazhateli (from stiazhatel’stvo, “acquisitiveness, money-grubbing”), followers of Nil Sorskii, who deplored the accumulation of landed wealth by the Russian monasteries.42 Another attractive aspect of a broad definition of “church people” from the point of view of the prince could have been that, given his interest in the propagation of the Christian faith by a loyal Church, such a definition would allow a more effective penetration of the Church in different strata of society. Later secular legislation, as could be expected, tended to increase the restriction of the category of “church people”. They are not encountered in the Church Statute of the Smolensk prince Rostislav, while the Church Statute of the Novgorod prince Vsevolod took over the list from the Statute of Vladimir, with a few interesting amendments (art. 17). One of them concerned the izgoi and offered the most explicit pronouncement on this elusive category in medieval Russian legal sources (see the discussion in Chapter 19). Another charter containing a more restricted definition of “church people” is the Church Statute of the Galician prince Lev Danilovich (of 1301). The Code of 1497 reduced the “church people” to priests, deacons, monks, nuns, church guards, and widows dependent on the Church for their livelihood (art. 59).

41 42

prp ii, 39. See also R.O. Crummey, The Formation of Muscovy 1304–1613, London, 1985, 121–125.

670

chapter 21

Church Courts Church jurisdiction was the exclusive privilege of the metropolitan and other bishops. The oldest lists of “church people” always included the abbot and the abbess, along with all monks and nuns; there was no separate monastic jurisdiction. Art. 57 of the Statute of Iaroslav is quite unambiguous: “And whatever goes on among monastery people and among church people, and in the monasteries themselves, neither the prince nor his rural judge [is to] interfere in that, and the Metropolitan’s lieutenants have jurisdiction over these [matters], …” (Kaiser’s translation). A similar rule was included in the Metropolitan’s Justice (art. 38). In view of the large packages of jurisdiction entrusted to the Church, the bishop would normally not be able to act personally as a judge in routine cases, but little can be found in the sources about the composition and operation of church courts.43 The church statutes of Vladimir (art. 8) and Iaroslav (art. 57), as mentioned above, refer to the bishop’s lieutenant (namestnik or volostel’) as his judicial representative. The duties of the bishop’s tiun or steward also involved work in the bishop’s court. One can only assume that there must also have been lower officials such as clerks (d’iaki), bailiffs (pristavy) and other servants. The Court Charter of Pskov (art. 109) shows that the bishop’s court was ­fully alive at that time. It dealt with the bishop’s (in this case the archbishop of Novgorod’s) namestnik as judge in cases concerning priests, deacons, monks, nuns and proskurnitsy (see above), and in cases of litigation among such persons. In litigation between church people and outsiders, a mixed court was to be instituted (a rule already found in art. 18 of the Statute of Vladimir). If one accepts the theory that the Metropolitan’s Justice represented a small law code for the court of the bishop of Perm (see the section on the Metropolitan’s Justice), then it provides the most detailed view of the operation of the court of a bishop. It seems that in later years some of the most influential monasteries had acquired jurisdiction over their dependent people in certain cases. In a charter from 1337/1339 the Moscow grand prince Ivan Kalita granted the Novgorod Iur’ev (George) monastery limited immunity from the prince’s jurisdiction for certain lands held by the monastery in the region of Volokolamsk (a disputed area between Novgorod and Moscow), “and let the man from St. George judge the disputes between them”.44 43

44

Shchapov, who has a section on “Church Jurisdiction” (in Gosudarstvo, 97–107), does not mention the question and only remarks elsewhere (130) that there is no evidence of the clergy assuming judicial duties, except in the 15th and 16th century in South-West Russia. gvnp No.86, 143. See also Cherepnin, Arkhivy ii, 116 and Shchapov, Gosudarstvo, 121.

The Church and Monasteries

671

The existence of ecclesiastical jurisdiction and courts inevitably raises the problem of their relationship with ordinary jurisdiction and courts. This problem can be split into several more specific questions. Where is the borderline between the two jurisdictions? What happens when a case is subject to both jurisdictions? What about mixed courts? Shchapov is the only modern author who deals with these questions in some detail.45 One question has already been considered above; in a dispute between church people (subject to church jurisdiction) and other persons, the Statute of Vladimir (art. 18) ordered the setting-up of a joint court. But where church jurisdiction was established ratione materiae (according to subject matter) and not ratione personae (according to the status of the persons involved) the situation was more complicated. Shchapov identified two major points of overlap of the two jurisdictions, in inheritance questions and in criminal law. The various church statutes assigned inheritance questions to church courts, but the formulas are not identical. The Expanded Pravda contained a fairly detailed set of rules concerning succession (arts. 98–106). Shchapov suggested that in the event of overlapping jurisdiction parties had the option of choosing. I would be more inclined to believe that the solution would depend on practical conditions, such as the relative power of the two courts in a given situation, the availability of a court, etc. The most serious instances of overlapping jurisdictions had been taken care of by the Church Statute of Iaroslav through the insertion of the formula: “and the prince punishes”. These cases have already been mentioned above in our review of matters assigned to ecclesiastical jurisdiction. With regard to the abduction/rape complex (arts. 2, 3 and 8 of Iaroslav’s Statute), the overlap with secular legislation was small; the Short Pravda (art. 29) dealt only with the abduction of a slave woman, and this was seen as a property crime and not as an offence against morals. In two other cases the overlap was almost complete, the burning down of a threshing floor (art. 83 of the Expanded Pravda and arts. 15 and 49 of Iaroslav’s Statute), and cutting off a man’s beard (art. 8 of the Short Pravda, art. 67 of the Expanded Pravda, and art. 19 of the Statute of Iaroslav). In all these cases the prince’s penalty came on top of the bishop’s penalty. Other church statutes occasionally assigned additional cases to the bishop’s court. The Smolensk charter, for instance, granted the bishop jurisdiction in cases of murder through poisoning (art. 11, point 6). The same provision started with the statement: “And no one is to judge the bishop’s cases; the bishop 45 Shchapov, Gosudarstvo, 113–123. Of the older authors, Presniakov (Lektsii i, 117–118) can be mentioned.

672

chapter 21

­ imself judges them.”, and this is then followed by a list of cases, based on, but h differing from art. 8 of the Statute of Vladimir. However, point 6 of this list, devoted to abduction, provided that the prince (of Smolensk) or his mayor (posadnik) were to turn over half the money received by them (obviously in the form of a fine paid by the offender) to the bishop. Obviously, the list of cases reserved for the bishop was not to be taken too literally. The Eastern as well as the Western church has always maintained specific ecclesiastical jurisdiction in punishing violations of church law, along with and apart from criminal jurisdiction assigned to the Church by secular legislation. In present-day secular society (but not in Islamic societies) this is a matter of little concern to lawyers, as such church law is viewed as a species of private internal regulation of a private law corporate entity. It is up to the individual to subject himself to such jurisdiction; the state will not interfere, except where the exercise of such jurisdiction would be contrary to public order or other major public interests. This was different in the past, when the interpenetration of Church and state was much more pervasive, especially in Russia. For a treatment of this topic I refer to specialized literature.46 Church Legislation In Byzantium, as explained above, the Church operated in tandem with the state and accordingly displayed much activity in the field of legislation. In Russia, the situation was different and there was a more modest volume of church legislation. The Metropolitan’s Justice, however obscure its exact legal character, would be one of the obvious examples, if the above-mentioned theory concerning its origin were accepted. The first volume of the old collection of Beneshevich, containing the main historical documents concerning ecclesiastical law,47 consisted mainly of secular legislation affecting the church (such as the various princely church statutes) and writings of old church fathers, of no specific interest to the history of Russian law. Its last item was the “Answers of Metropolitan Ioann ii”, representing replies to questions of church law asked by the monk Iakov.48 Most of these concerned questions of a strictly religious nature, but some also touched upon topics of matrimonial law.49 The second 46 47 48 49

A recently republished textbook is N.S. Suvorov, O tserkovnykh nakazaniiakh. Opyt izsledovaniia po tserkovnomu pravu, Sankt-Peterburg, 1876 (reprint, Moskva, 2011). V.N. Beneshevich, Sbornik pamiatnikov po istorii tserkovnago prava, Petrograd, 1915 (Part i, Petrograd, 1914; Part ii, Petrograd, 1914). Also included, together with comments by Iu.V. Ospennikov, in PRoP i, 489–503. This was the Kievan metropolitan Ioann (1080–1089). Comparable in many ways to the Questionary of Kirik from the 12th century; see the ­section on “Men and Women” in Chapter 19.

The Church and Monasteries

673

volume contained among other things the iarlyki (charters) of the Mongol khans to the Russian metropolitans (see below) and 15th century regulations on the election and installation of bishops and other church personnel; most of the volume was taken up by the Spiritual Regulations (Dukhovnyi Reglament) of Peter the Great of 1721, which fixed the legal status and internal organization of the Russian Orthodox Church until the October Revolution. As pointed out above, the organizational forms of religious denominations are treated by most modern secular states as purely voluntary associations of citizens, governed by private law. Such organizations are free, within certain legal limits, to make their own rules and have their own ‘laws’. Individual members of such organizations are free to follow the organizational rules or leave the organization if they find such rules unacceptable. This arrangement was obviously inappropriate in the setting of medieval Russia, where the powers of the state and the Church were strongly intertwined. Legislation emanating from church authorities had to be regarded, in principle, as part of the national legal system in such a situation. However, much of it concerned matters of religious observance which nowadays would be regarded as lacking legal relevance and which even in a medieval setting had little legal content. The “Answers of Metropolitan Ioann ii”, mentioned above, offer one example, the “Questionary of Kirik” another (first half of the 12th century).50 Among the 101 questions asked by the priest Kirik and addressed to the Novgorod bishop Nifont, only a very few could be considered as having concrete legal consequences. In the answer to question 4 the bishop made clear that members of the clergy were prohibited from charging interest (on the basis of rules established by the 6th Ecumenical Council of 680). The answer to question 94 confirmed that women also had the right, under certain conditions to divorce their husbands. The Russian Church under Mongol-Tatar Rule The metropolitan Iosif is usually considered to have died when the Mongols took Kiev in 1240, although there are also reports that he had left the city beforehand.51 After a period of sede vacante for a few years, Kirill, a learned cleric at the court of Daniil Romanovich of Galicia (at that moment also holding the title of grand prince of Kiev), was elevated to the metropolitan see of Kiev (as already mentioned above). He held this position until his death in 1281 and emerged as one of the most influential figures in the turbulent times following the Mongol conquest. This was also due to the good relations he had been able to establish with the khan of the Golden Horde. The Mongols, who had not 50 Text and commentary by Iu.V. Ospennikov in PRoP i, 504–524. 51 Shchapov, Gosudarstvo, 204.

674

chapter 21

yet embraced Islam at the time of Chingis Khan and his immediate successors and who ruled an empire with a multitude of faiths, displayed considerable tolerance in the field of religion, provided their supremacy was recognized by the religious leaders. This would be expressed in prayers for the rulers and his family. In his iarlyk granted to Kirill in 1267 khan Mengu-Timur wrote: Chingis-Khan and the following khans, our elder brothers, spoke: «Let priests and monks, not seeing any kind of taxes whatsoever, pray to God for us and send up their good wishes for us» and gave them iarlyks. And now we, in accordance with the previous iarlyks, say: «Not seeing any kind of taxes whatsoever, pray to God for us and send up good wishes for us» and we gave this metropolitan the iarlyk.52 The general tax exemption for the church was confirmed by several successive khans (see the section on “Iarlyks of the Tatar Khans”). Another manifestation of the Mongol attitude towards the Russian Church was the establishment of a bishopric right in the heart of the Golden Horde, in its temporary capital of Sarai, in 1261, during the reign of khan Berke (1256– 1266), which also saw the introduction of Islam as the official religion of the Golden Horde. It was unquestionably advantageous for the leading Russian princes at that time to have a Russian or Greek cleric of considerable status present at the court of the khan.53

Other Sources of Church Income

For many centuries, the importance of the Church and its manifold agencies and representatives in the sphere of law stemmed largely from its landowning. Initially, however, church income was based not on land, but on other sources. The church’s prominent presence in the administration of justice has been discussed above in greater detail because of its special relevance from a legal point of view. But income from the activities of courts was not the only source of income during the early period of the Russian Church. This was already demonstrated by the Church Statute of Vladimir. Before it got into the 52

53

A.P. Grigor’ev, Khanskie iarlyki russkim mitropolitam, Sankt-Peterburg, 2004, 44. A different and much longer text, extensively doctored apparently by the metropolitan chancery in later years, in prp iii, 467–468. See the section on “Iarlyks of the Tatar Khans” in Chapter 11. Cf. R.G. Skrynnikov, Krest i Korona. Tserkov’ i gosudarstvo na Rusi ix–xvii vv., Sankt-Peterburg, 2000, 42.

The Church and Monasteries

675

specifics of the church’s jurisdiction, it granted the Church a tithe “from all the Russian land”, from the trade fees (market fees), and from the prince’s houses, herds, and grain (harvest); also 10 veksha from each case which came before the prince’s court. The grant was made specifically to the church of the Mother of God, founded by Vladimir himself in Kiev. Other church statutes and chronicles confirm that the grant of tithes was made, as a rule, to the local cathedral church (sobor), so in effect to the local bishop.54 Tithes were paid, first of all, from the prince’s income (from the prince’s house, his herds and harvest). They probably also extended to the annual tax paid by the general population in the form of the poliud’e.55 The market tax (myt), of which a tenth was assigned to the bishop, usually took the shape of the myt going to the church every tenth week (so, for instance, in the Charter of Vladimir and the Charter of prince Vsevolod). The tithe was not always 10%, but sometimes considerably more, 20 or even 50%.56 In the course of time, as other sources of church income grew in importance, several forms of tithes diminished or disappeared altogether. Although the Old Testament origins of church tithes are obvious, Shchapov considered it not unlikely that there were comparable impositions in pagan Russia.57 In a later addition to the Charter of Vladimir (art. 15), the supervision of weights and measures was entrusted to the bishops. The Church Statute of the Novgorod prince Vsevolod was specifically entitled “On Church Courts, Church People, and Trade Measures”. This matter is dealt with in the section on “Trade Regulation and Taxation” in Chapter 15. There are a few instances of entire towns having been assigned to a bishop. They were sometimes termed “tithe towns” (desiatinnye goroda). The meaning of the institution was probably not to make the town in question part of the bishop’s worldly territory (as would occasionally happen in medieval Western Europe), but rather to assign to the bishop the income which the prince would normally have derived from the town (such as fines, fees, etc.).58 A few sources of church income of secondary importance are discussed by Shchapov.59 Landowning by the Church was discussed separately in Chapter 18. 54 Shchapov, Gosudarstvo, 76–77. 55 Shchapov, Gosudarstvo, 78–79. 56 See Shchapov, Gosudarstvo, 82–83. 57 Shchapov, Gosudarstvo, 85–87. 58 Shchapov, Gosudarstvo, 88–90. 59 Shchapov, Gosudarstvo, 95–97.

676

chapter 21

Monasteries The origins of monasticism go back to the early ages of Christianity; monasteries were a prominent component of the Byzantine Church. They appeared in Russia after some delay. The Chronicle entry for 1037 mentioned that Iaroslav founded the monastery of St. George and the convent of St. Irene, but this should probably be read within the context of the narrative which extolled Iaroslav’s merits in promoting the work of the Church and which was inserted in the 1037 report. It also said that during his reign the number of monks increased and new monasteries came into being. Under the year 1051 the chronicler, himself a monk of the Crypt monastery, described the foundation of the Crypt monastery in much detail. From the story it is clear however that the actual foundation took place during the reign of Iziaslav, Iaroslav’s son and immediate successor upon the Iaroslav’s death in 1054. But the spiritual father of the Crypt community was the holy monk Antonii, whose religious activities apparently started in 1051, when he took over a crypt dug by another monk, Hilarion, who had been appointed metropolitan in that year. Antonii had declined to become the first abbot of the Crypt monastery and had appointed the monk Varlaam instead. After a few years Varlaam accepted an appointment as abbot in the monastery of St. Dimitrii, newly founded by Iziaslav. His successor Feodosii introduced the Byzantine rules of the Stoudion monks (on Mount Athos), and these rules were taken over by all Russian monasteries according to the Chronicle, which continues: “Therefore the Crypt Monastery is honoured as the oldest of all.” Whichever monastery should be considered the oldest,60 three relevant points emerge from this narrative with regard to the legal status of medieval Russian monasteries. One is that monasteries began to be founded during the reign of Iaroslav. The second one is that the Crypt monastery, whether or not it was in fact the oldest, enjoyed the highest status. And finally, although most early monasteries were princely foundations, this was not always the case.61 Most of the oldest Russian monasteries were located in the centre of the 60

61

More recently, A.Iu. Karpov, reviewing the literature on the foundation of the Crypt monastery, concluded tentatively that some time in the 1040–1050 period would be the most likely date. A.Iu. Karpov, “Kogda voznik Kievskii Pecherskii monastyr’?”, S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, vyp.1, Moskva, 1997, 5–23. The Iur’ev monastery, perhaps the oldest monastery in Novgorod, was possibly founded by Iaroslav the Wise (i.e. before 1054), although it is first mentioned in 1119; whether it actually was a princely foundation is uncertain. Cf. Shchapov, Gosudarstvo, 147–148, Fennell, 69. In his more recent survey of Novgorod history, Ianin opted for the traditional date of 1119; cf. V.L. Ianin, Ocherki istorii srednevekovogo Novgoroda, Moskva, 2008, 54.

The Church and Monasteries

677

­Kievan empire, not too far from the capital itself. A Russian study offers the following number of monasteries, founded during the first three centuries: 10th century: 7; 11th century: 18, 12th century (up to 1240): 16.62 The oldest Novgorod monasteries were founded at the beginning of the 12th century; Antonii “the Roman” (Rimlianin), a Novgorod boyar, founded the monastery which came to be called after him (Antoniev) in 1106. The George (Iur’ev) monastery was probably founded a few years later, but before 1119, by the Novgorod prince Vsevolod and the abbot Kir’iak (Cyriacus). The Iur’ev monastery soon became the premier monastery of Novgorod; its abbot (igumen) was the archimandrite of Novgorod from about 1200 and was deeply involved in the internal politics of Novgorod. Its relations with the prince became less strong over the years. The Iur’ev monastery was also one of the richest landowners; by being able to loan money to Novgorod citizens it was even able to increase its influence.63 The third oldest Novgorod monastery was that of St. Panteleimon, founded in 1134. Many more followed. In the following centuries, monasteries were mostly founded by energetic and charismatic churchmen, such as Sergii of Radonezh, the founder of the Trinity (Troitsa) monastery, which now bears his name (Troitse-Sergieva Lavra) in Sergiev Posad, in the middle of the 14th century;64 this monastery in time became one of the biggest landowners in Russia. Other monasteries were founded in subsequent years by monks from the Trinity monastery: the Simonov monastery in Moscow in 1370; then in Belozersk, by the abbot of the Simonov monastery, Kirill, in 1397, which became known as the Kirillo-Belozerskii. Kirill’s companion Ferapont then founded the Ferapontov monastery nearby (after 1408). The wealth of preserved charters from these monasteries is of great importance as a source for the legal history of the following centuries. Other 14th and 15th century monasteries which have left similar materials are the Spaso-Evfimiev monastery in Suzdal’ (founded around 1360), the Soltichinskii monastery near Riazan’ (founded around the end of the 14th century), the Solovetskii monastery in the Far North (founded in 1430), and the Troitskii Makar’ev monastery in Kaliazin (on the Upper Volga, 160 km north of Moscow, founded around 1434). Of singular importance was the monastery in Volokolamsk, founded in 1479 by Iosif Volotskii (1439–1515), not only because of the large number of surviving charters, but also because of the prominent role 62

B.V. Sapunov, “Nekotorye soobrazheniia o drevnerusskoi knizhnosti xi–xiii vekov”, Trudy otdela drevnerusskoi literatury, vol.11, Moskva/Leningrad, 1955, 314–332, at 320 (quoted from Fennell, 63). 63 Ianin, loc. cit. 64 Around 1380, according to some sources.

678

chapter 21

played by its founding abbot in shaping the relationship between the Church and the state in Russia.65 The main legal aspects of medieval Russian monasticism concerned the following matters: the place of the monastery within the organization of the Church and its relationship with the state (the prince); the internal organization of the monastery; the monastery as a legal actor. The last topic is of course intimately connected with the question of landowning by monasteries. As has been pointed out above, almost all early monasteries were founded by princes and princesses. Such monasteries were usually named after the baptismal saints of the princes concerned.66 Soviet medievalists occasionally felt obliged to explain to their readership that the practice was not primarily prompted by political calculations, but sprang from the conviction that earthly goods could be employed for securing salvation in the hereafter.67 The prince supplied the monastery with the material means to exist and the monks (or nuns) would pray for him and his family, especially after his death; he would often also be buried in his monastery. Several instances in the Chronicle demonstrate that the founding prince, and his successors after his death, would often take an active interest in the affairs of the monastery, particularly by appointing the abbot or abbess. It was not uncommon for princes to accept the skhima (strict monastic vows) on their deathbed and die as monks (a famous scene in the opera Boris Godunov). Monasteries, no matter how well connected, remained under the ecclesiastical authority of the bishop, although their material wealth might outstrip that of the local eparchy.68 The monastery itself was governed by the abbot (in a convent for nuns, the abbess) or igumen. When there were several monasteries in a town, the abbot of the most important monastery would normally be given the title of archimandrite and would be considered the head of the 65

66

67 68

The monastery of Iosif Volotskii is the subject of A.A. Zimin’s monograph, Krupnaia feodal’naia votchina i sotsial’no-politicheskaia bor’ba v Rossii (konets xv–xvi v.), Moskva, 1977. The famous Olga received the baptismal name of Elena, Vladimir took the name of the Byzantine emperor as his baptismal name in 988. Later on, princely charters often gave both the baptismal and the effective (vernacular) name of the prince. A conviction based, among other things, on Christ’s direct instruction, as expressed in Luke 16, 9. In later times, a few of the most important and venerated monasteries enjoyed the rank of a Lavra, which made them directly subordinate to the patriarch and later on the Holy Synod: the Kiev Crypt monastery (1599), the Trinity monastery of Sergii Radonezhskii (1744), the Aleksandr Nevskii monastery in St. Petersburg (1797), and the Uspenskii monastery in Pochaev in Ukraine (upon its forcible re-incorporation into the Orthodox Church in 1833).

The Church and Monasteries

679

monastic clergy of the town. The archimandrite would be one of the most influential persons in the town, even in places where a bishop was resident (such as Novgorod).69 As pointed out by Shchapov, the absence of specific monastic orders or congregations (such as Benedictines, Franciscans, etc.) is one of the distinguishing features of the Eastern Church, along with the absence of bishops and abbots serving simultaneously as secular rulers.70

Landowning by the Church

This topic was discussed in a special section of Chapter 18. 69

70

D.G. Davidenko, “Monastyri-arkhimandritii v gorodakh Severo-Vostochnoi i SeveroZapadnoi Rusi v xiv–xv vv.”, A.A. Gorskii (ed.), Srednevekovaia Rus’, 10, Moskva, 2012, 248–331. Ia.N. Shchapov, “Sobornye tserkvi i monastyrskie organizatsii v russkom gorode do xv v. Nekotorye osobennosti vostochnokhristianskikh tserkovnykh organizatsii”, Ocherki russkoi istorii, istochnikovedeniia, arkheografii, Moskva, 2004, 59–71, at 59.

chapter 22

Courts and Justice Introduction At the start of this chapter it is useful to recall what was said in the sections on “The Definition of Law” and “The Organization of this Work” (in Chapter 1). Law, in this work, is viewed as something that has not been around forever in human society. It emerged at certain times and in specific situations. As to time, we have looked at the Russian middle ages; the specific situations or ­locations that have been examined in some detail were the prince and his court, the towns, certain aspects of the family, the management of rural land, the Church and its monasteries, and a few others. At these locations, in our view, law, as a regulatory force, first manifested itself. Courts, or more generally the administration of justice, is the theme that ties everything together. The regulated settlement of legal disputes by an independent authority, recognized by society at large and operating permanently, is the most eloquent ­manifestation of the presence of law. In many cultures, the phase that may loosely be designated as early medieval is characterized by (among other things) the emergence of law in the usual sense of the term.1 This would at least apply to the vast complexes of Slavic and Germanic peoples in Europe (although not to the Ancient Near East and Greece and Rome). The earliest information on Russian law in its formative, embryonic phase is to be found in the 10th century treaties with Byzantium. These treaties attempted to offer solutions for disputes that could arise when the still predominantly pagan Russian (or mostly Viking) traders/marauders came into contact with sophisticated Byzantine society. Many of these solutions had their origin in the well-developed Byzantine law, but occasionally, especially in the more elaborate 911 and 944 treaties, reference was made to the “Russian law” (zakon russkii) or “Rus law”. A closer examination reveals that this Russian law did not refer to some written body of rules, but simply to what was customary among the Russian visitors (see the section on the Zakon Russkii in Chapter 3). The 911 treaty in particular shows that self-help was the normal manner of r­ ighting 1 I have explained my views in these matters more extensively in “Law’s Beginnings. Some Concluding Observations”, the closing chapter of F. Feldbrugge (ed.), The Law’s Beginnings, Leiden/Boston, 2003, 255–280.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_023

Courts and Justice

681

wrongs among the Russians; there are no indications that they were in the habit of referring disputes to a court-like authority. A century later, in the oldest layer of the rp, the Pravda of Iaroslav, this practice was still prevalent. The murdered man’s relatives were entitled to seek revenge or demand fixed compensation. For less serious injuries and insults the perpetrator had to pay fixed compensation to the victim. This first part of the Pravda of Iaroslav (arts. 1–10) presented a coherent and consistent catalogue for dealing with the most common disputes that could arise among a rough and warlike population; no role for any external authority is mentioned. Only art. 10 added a procedural element: a man who complained of having been pulled or shoved by another was to present two eyewitnesses, but a foreigner could take an oath instead. The second part of the Pravda of Iaroslav (arts. 11–18), which was generally more directed towards property disputes, was also silent about the existence and involvement of courts, but had a few provisions referring to procedures which could be viewed as rudimentarily judicial. Art. 14 forbad a person who recognized his lost property from just taking it back and instead ordered the persons involved to come to a svod (confrontment) where the possessor was to explain how he obtained the property. Obviously, such a svod would involve the presence of others who would have some role in determining who was the rightful owner. The next provision, art. 15, was even more explicit. A dispute about money owed was to be taken before an assembly of twelve men (an ­izvod), who apparently decided the matter. Art. 16 (retrieval of a stolen slave) also displayed procedural traits. (There is more on these matters in the section on commercial law in Chapter 15.) The central theme of the second main part of the Short Pravda, the Pravda of Iaroslav’s Sons (starting at art. 19), was the protection of the prince’s own personnel and property. The prince’s personnel ranged from the highest officials (the ognishchanin and the pod”ezdnoi) to slaves. The fine for killing a high-ranking official was twice that imposed for a freeman (80 instead of 40 grivna). There is general agreement that this fine (vira, translated as bloodwite) was to be paid to the prince.2 Damage to the prince’s property (livestock, 2 The principal argument for this view is that the catalogue of the Pravda of Iaroslav’s Sons runs smoothly from the killing of an ognishchanin (art. 19) to the killing of a slave (art. 26). As the prince was obviously the one who received the bloodwite of 5 grivna for the killing of his slave and there is no break in the list which would suggest that the arrangement changed its character, the bloodwite for the highest princely officials must also have been due to the prince. It is entirely possible that the relatives of the killed official could additionally claim wergeld (see below).

682

chapter 22

boats, beehives, border markers, etc.) was also punished by a fine, usually called prodazha (arts. 35, 36, 40). A special official, the virnik or bloodwite collector, was in charge of collecting the fines imposed. Although the Pravda of Iaroslav’s Sons did not explicitly mention the prince’s court, it stands to reason that there must have been some sort of judicial procedure for imposing fines. Art. 38 of the Short Pravda directed that a nocturnal thief could be killed with impunity, but if he was apprehended he had to be held in order to be taken the next morning to the kniazh’ dvor. This could be translated as “the prince’s court” (Vernadsky), but Kaiser’s “the prince’s residence” is to be preferred. The prince, if present at his residence, would exercize his judicial function there; if he was away, as would often be the case, some official of the prince might serve as judge.3 If the existence of the prince’s court is implied in various provisions of the Short Pravda, other contemporary sources are explicit. The Church Statute of St. Vladimir (Iaroslav’s father), in apportioning certain types of cases to the jurisdiction of church courts, spoke of the prince’s court as a common phenomenon. A famous locus in the Primary Chronicle (under the year 996) described how the bishops of the newly converted country exhorted Vladimir to abolish wergeld and instead to punish criminals “after an investigation” (no so ispytom) and use the fines collected for the upkeep of his army. In the Expanded Pravda the prince’s court is mentioned explicitly only once (art. 46) with the clear meaning of “the prince’s jurisdiction” (to which stealing slaves were subject), but quite a number of provisions referred to the prince’s judicial role: art. 35 ordered the horse thief to be handed over to the prince for punishment, arts. 37, 38, 45, 89 and 108 dealt with fines to be paid to the prince, art. 56 allowed a dependent peasant (zakup) who had been ill-treated by his master to appeal to the prince or to judges.

Humour in Legislation

Art. 37 of the Expanded Pravda, dealing with purchasing stolen property, provided for one particular case where “one party may mourn the loss of his property, and the other party the loss of his money”. A similar ­formula turns up in art. 39. Art. 74, listing fees for judicial officers, allowed some of them “either a sheep or a half-carcass of meat, whatever fills their stomachs”. Art. 29 dealt with the man bloodied and bruised in a fight and suing his opponent. If eyewitnesses confirmed that he himself had started the fight, then his bruises served as payment (to to emu za platezh’). This is in the same class as the Spottbusse in the Sachsenspiegel, such as “his shadow on the wall”, for the travelling musician ­(Sachsenspiegel, ­Landrecht, 45 §9). 3 This point is made by Vlad.-Bud., Obzor, 582.

Courts and Justice

683

To sum up these various indications, there may be much uncertainty and disagreement4 about details, but the general picture is clear. The prince intervened in the traditional dispute-settling process, first by putting himself forward as the injured party in offences regarding his personnel and property and demanding payment of the fixed indemnities to himself; this put in place a system of princely courts for the orderly despatch of cases where the prince was the claimant. Once the prince’s court was functioning, one of the parties in a dispute would usually have an interest in submitting his claim, or his rejection of a claim, to a body which had the power to enforce its decision. In other cases, where a dispute between private parties did not occur, but where the authorities (primarily the prince as the embodiment of the emerging state) were of the opinion that some act would be injurious to the public interest, the public powers could start court proceedings themselves. In the Expanded Pravda the two aspects which in a modern view would be characterized as “criminal” and “civil” were still mostly interwoven. A number of provisions offered material compensation for the victim and contained a fine for the prince at the same time. (e.g. arts. 36, 37 and 38: involuntary loss, esp. by theft, of property or a slave; art. 45: theft of livestock; art. 78: compensation for the victim of torture, and a fine; art. 89: killing a slave without cause; the owner received compensation, the prince a fine of 12 grivna). The Short Pravda did not know these double sanctions, which meant that uncertainty arises (for the modern reader) about the identity of the person to whom the financial sanction for a violation was due: the victim or the prince (unless of course the text itself provided a clear answer). Still, even where one assumes that the amount mentioned was to be paid to the prince, one would often expect that some kind of compensation would also be due to the victim or his heirs. The most compelling case is art. 19 of the Short Pravda, the killing of a high princely official (an ognishchanin or a pod”ezdnoi). It is generally accepted that the heavy 80 grivna amount is to be paid to the prince, but most authors hold that the usual compensation is also to be paid to the victim’s family. Art. 5 of the Expanded Pravda offers strong support for this view, as it dealt with a similar situation and then added that the killer, in addition to his contribution to the bloodwite, was to pay the golovnichestvo (“head money”) himself.5 4 I have discussed this question in some detail in my chapter on the rp in Feldbrugge, lmr, 32–58, esp. in the section on “Wergeld and Composition” (41–46) and more extensively in “Wergeld, Bloodwite and the Emergence of Criminal Law”, H. Küpper (ed.), Von Kontinuitäten und Brüchen: Ostrecht im Wandel der Zeiten. Festschrift für Friedrich-Christian Schroeder zum 75. Geburtstag, Frankfurt am Main, 2011, 23–44. See also G. Baranowski’s review of the first work in Zeitschrift für Rechtsgeschichte. Germanische Abteilung, 127 (2010). 5 An extensive discussion of the literature in Baranowski, 255–261.

684

chapter 22

The emergence of a regular court system, in the person of the prince and the officials appointed by him, can therefore be observed during the reign of the first two Christian princes of Kiev, St. Vladimir and his son Iaroslav the Wise, at the end of the 10th and the beginning of the 11th centuries. It is no coincidence that this development was accompanied by the emergence of the distinction between private and public law, the latter in the shape of criminal law, where public authority assumed the role of the injured party. Traditional and customary arrangements for settling disputes were still dominant in the oldest layer of the rp. Violence and physical injuries, along with the wilful damaging of property, were perceived mainly as offensive to the honour and status of a person and the family he belonged to. Reparation could be achieved by revenge or, generally, inflicting equal harm. In a later phase payment of compensation provided an economically more satisfactory substitute. Both revenge and compensation were still recognized in art. 1 of the Short Pravda. The establishment of the prince’s court led to the phased takeover of the traditional system of dispute settlement by the prince. The financial transfers from perpetrator to victim were redirected as payments of fines to the prince. This can be regarded as incipient criminal law; the victim had now disappeared from the equation. If there was genuine material damage, the victim could seek reparation through the court, provided he could substantiate his claim. Such cases were not essentially different from general disputes over what would be right between individual persons, where no significant public interest was involved; together, these constituted the subject matter of private (civil) law.

Secular and Church Courts

The parallel existence of two jurisdictions, secular and ecclesiastical, has been discussed at greater length in Chapter 21. This phenomenon, which appeared with the establishment of Christianity as the official religion in the Ancient World and in the newly baptized countries of Europe, remained dominant for centuries and still survives to some extent in several European countries. In medieval Russia, the form adopted was expressed mainly by the so-called Church Statute of St. Vladimir: the Church was granted comprehensive jurisdiction over “church people” and, additionally, general jurisdiction over certain types of cases (esp. marriage and family law, and criminal cases involving sexual mores). This jurisdiction was granted to the bishops, who exercized it through their own courts. The Russian system also allowed mixed jurisdiction (by secular and ecclesiastical judges jointly), where this was appropriate.

Courts and Justice

685

Apart from what had been granted to church courts, the prince’s court was the court of general jurisdiction. Routine jurisdiction would be handled by ­appointed officials. Such judges were already known in the Expanded P ­ ravda (art. 56, mentioned above, spoke of appealing to the prince or to judges). Although both versions of the rp name various officials connected with the administration of justice, they all appear to have special duties and none of them can be identified as a judge. The virnik was the collector of vira or bloodwite; the tiun an overseer or bailiff, the metel’nik and the mechnik were other court officers. Most probably the prince would entrust judicial office to ah ­ igh-ranking member of his inner circle, such as an ognishchanin or generally a “prince’s man” (kniazh muzh). One category of persons who undoubtedly served as judges was the posadniki, the highest-ranking officials. The posadniki were appointed as the prince’s lieutenants to major urban centres. Art. 20 of the Belozero Charter provided that the prince’s namestniki (lieutenants or agents) or their stewards (tiuny) were not to conduct court cases without the participation of (local) sotniki (hundred-men) and ‘good people’ (dobrye liudi). Whether this element of popular involvement in the administration of justice at a lower level was a special favour granted to Belozero is unclear; at least some authors regard it as a reflection of a more general custom.6 In Novgorod (and Pskov) the general system of courts was transformed on account of the great measure of independence these cities acquired in respect of the prince (see the section on posadniki in Chapter 16). Novgorod also had a special commercial court, of which the tysiatskii was the presiding judge. A laconic and brief provision in the Pskov Charter (art. 113) states that “A fraternity judges like a judge.” Such fraternities (brat’shchina, bratchina), constituting a survival of pre-Christian male societies, were mostly concerned with the organization of feasts for their members. The rule probably meant that the fraternity itself, esp. its ‘master of ceremonies’ (pirovoi starosta, art. 34) would deal with relatively minor infractions occurring during the feast.7 The institutionalized character of such feasts (piry) and fraternity meetings (bratchiny) is illustrated by the inclusion of a protective clause in numerous statutory and 6 L.V. Danilova, “O vnutrennei strukture sel’skoi obshchiny Severo-Vostochnoi Rusi”, V.T. ­Pashuto (ed.), Rossiia na putiakh tsentralizatsii, Moskva, 1982, 6–17, at 7–8. 7 Cf. Iu.G. Alekseev, Pskovskaia Sudnaia gramota i ee vremia, Leningrad, 1980, 60–62. See also S.V. Vasil’ev, “K voprosu o proiskhozhdenii i znachenii «bratchiny»”, A.Iu. Dvornichenko (ed.), Russkoe Srednevekov’e. Sbornik statei v chest’ professora Iuriia Georgievicha Alekseeva, Moskva, 2012, 295–306, and M.S. Cherkasova, “Kommentarii k 20-i stat’e Belozerskoi ustavnoi gramoty 1488 goda (o pirakh i bratchinakh v srednevekovoi Rusi)”, in the same work, 3­ 07–327; also V.V. Bovykin, Ocherki po istorii mestnogo samoupravleniia epokhi Ivana Groznogo, ­Sankt-Peterburg, 2015, 76–83 (“Pir na ves’ mir”).

686

chapter 22

grant charters with the standard formula: “and that whoever will come to these feasts and fraternity meetings without being invited and will cause any upheaval, he shall pay [a fine] without going to court”.8 The vastness of the country and the fact that the court of the prince (or in Novgorod the posadnik) had its seat in the capital town meant that some kind of assizes or travelling courts were inevitable.9 Several provisions of the Novgorod Court Charter dealt with the costs of travelling and sojourn of judges and judicial personnel. This subject retained its prominence in later legislation (the Codes of 1497 and 1550). Immunities A further differentiation in the court system arose in the course of the 14th century with the increase in land grants to ecclesiastical and secular landowners. In the grant charters (zhalovannye) of the late 14th and the 15th centuries, one encounters formulas in which the grantor (nearly always a prince) promised the grantee that the prince’s administrative and judicial officers would abstain from exercizing their office in the territory granted; the grantee was simultaneously given jurisdiction, sometimes without limitation, but usually with the reservation that the handling of serious cases (esp. homicide and robbery) would remain with the prince. The ancient church statutes may be regarded as the ancestors of such grant charters. The church statutes, such as those of St. Vladimir or the Novgorod prince Vsevolod Mstislavich (see Chapter 6), contained provisions in which the prince’s officials were forbidden from interfering in matters delegated to the church and, in particular, from entering church territory for the execution of their judicial duties. The income generated by jurisdiction (fines, fees, etc.) was explicitly included in such immunities. The connection of the immunity with a land grant implied that the immunity affected a particular territory, generally a village or several villages, even an entire region, but also uninhabited territories, such as forests, lakes, etc. Obviously, the broader the content of the immunity, the more the territory covered by it became an enclave where the authority of the prince was more restricted. The most important elements included in the immunities were jurisdiction and taxation. The grant charters 8 For a full enumeration of references, see Danilova, op. cit., 8. As an example, asei i, No.356, 262. On the figure of the ‘uninvited guest’, see A.L. Khoroshkevich, “«Nezvanyi gost’» na prazdnikakh srednevekovoi Rusi”, V.L. Ianin (ed.), Feodalizm v Rossii. Sbornik statei i vospominanii, posviashchennyi pamiati akademika L.V. Cherepnina, Moskva, 1987, 184–192. 9 Cf. V.D Nazarov, “O proezdnom sude namestnikov v srednevekovoi Rusi”, dg sssr 1987, Moskva, 1989, 84–92.

Courts and Justice

687

(zhalovannye) involved were known accordingly as nesudimye or tarkhannye (or l’gotnye, if a fiscal immunity was granted for a limited time only). Judicial immunity charters (nesudimye zhalovannye) were occasionally granted to secular landowners in later years, but not many of such charters have survived. Most of the surviving charters are from monasteries.10 The enjoyment of (limited) immunity of general jurisdiction meant of course that the landowner, monastic or secular, had to set up his own court. A.D. Gorskii, who wrote a special study on these private courts, pointed out correctly that the jurisdiction of church bodies (monasteries or eparchies) based on land grants, made by secular authorities, should not be regarded as church jurisdiction properly speaking.11 In other words, a bishop could have jurisdiction as a bishop but also as a landowner.

Procedure in the Russkaia Pravda

In the first section of this chapter we argued that the rp in its various versions showed an incipient distinction between criminal and civil law in providing both ‘private’ and ‘public’ remedies (compensation and fines) for violations of law. Such a distinction cannot be made with regard to procedure, as already noted by Sergeevich.12 The rp limits itself to the description of a few special procedures which display both public and private law features The most important of these is the svod or confrontment, known to both versions of the rp. Svod is mentioned explicitly in art. 14 of the Short Pravda and the corresponding art. 35 of the Expanded Pravda which is followed by more detailed regulation in arts. 36, 38 and 39 of the Expanded Pravda. It is also implied in arts. 11, 13 and 16 of the Short Pravda, which correspond with arts. 32, 34, and 38 of the Expanded Pravda. The essence of the confrontment procedure, which is obviously germane to a simple face-to-face society, is the appeal to the community to become involved in the settlement of a dispute, especially about ownership. The procedure is initiated by loudly announcing one’s claim (the zaklich) in the market, at least that is the description of art. 32 of the Expanded Pravda. Such a claim is of course preceded by the acquisition 10

Iu.G. Alekseev, “K voprosu o sudebnom immunitete v kniazheskikh gramotakh xii–xiv vv.”, Ocherki feodal’noi Rossii 8, Moskva, 2004, 10–28, mentions many examples, mostly from the collection of Riazan’ charters in asei iii, Nos. 309–391. 11 A.D. Gorskii, “O votchinnom sude na Rusi v xiv–xv vv.”, V.T. Pashuto (ed.), Rossiia na putiakh tsentralizatsii. Sbornik statei, Moskva, 1982, 25–35. 12 Sergeevich, Lektsii, 583.

688

chapter 22

of the necessary information, more commonly, recognition of one’s involuntarily lost property in the possession of another person. The cases covered in the rp concern involuntary loss of property, i.e. by loss or theft, and are limited to property that is recognizable by the owner: slaves (art. 11 Short Pravda, art. 32 Expanded Pravda), horses, livestock, weapons or clothes (arts. 13 and 14 Short Pravda, 35 and 36 of the Expanded Pravda). The owner who has lost such property and announced his loss in the market, and then recognized his lost property in his own community (mir), was allowed to take his property back and the temporary possessor must pay him 3 grivna for the offence (za obidu; arts. 13 sp and 34 ep combined). In this case no confrontment is required. A slightly different but similar procedure applied to the fugitive or stolen (abducted) slave (art. 11 sp and art. 32 ep). The provisions of art. 14 sp (and art. 35 ep) and art. 16 sp (and art. 38 ep) deal again with the loss of resp. property and of slaves and the resolution of the resulting dispute by the confrontment procedure. The original owner is directed not to take back his property or the slave, but to demand the new owner to come to the confrontment, where the latter will be asked to disclose the seller from whom he bought the slave; then the same procedure will be gone through with the earlier owner, until the third confrontment. If the question has not been resolved by then, the person appearing at the third confrontment will have to provide the old owner with a new slave and take over the slave the dispute is about. This slave presumably may assist him in identifying the first unlawful possessor of the slave. If the thief is found he has to pay all the losses, a 12 grivna fine to the prince, and the slave goes back to his original owner (see art. 38 ep). The relationship between the two complexes of rules (11 and 13 sp together with 32 and 34 ep, against 14 and 16 sp together with 35 and 38 ep) is somewhat confusing, considering that the confrontment procedure appears only in the second complex. It is explained more or less satisfactorily by Iushkov13 in the following way: the first complex concerns cases where the loss has been announced at the market (the zaklich) and the lost slave is not produced within three days or the owner only learns about his whereabouts after three days, as well as cases where the owner has announced his loss at the market and then finds his lost or stolen property within his own community. In all such cases the owner takes his property (or slave) back and receives a three grivna fine. In all other cases the confrontment procedure has to be gone through. It is generally limited to three successive confrontments; if this does not produce a thief or another person who had unlawfully acquired the property, the procedure ends. 13 Iushkov, Stroi, 515–517, following on the whole the short explanation by Vlad.-Bud., Obzor, 588–589. Also Sergeevich, Lektsii, 597–598.

Courts and Justice

689

The Expanded Pravda offers further detailed rules about confrontment within one’s own town and outside it (ep 36 and 39). The svod is also known in the Dvina Land Charter (art. 5) and the Belozero Charter (art. 12), where even ten successive confrontments are prescribed. While the svod displays aspects of both civil and criminal law, the other special procedure, mentioned only in the Expanded Pravda (art. 77), “following the trail” (gonenie sleda), is purely a matter of criminal procedure. The co-­residents of a fugitive thief are obliged to follow his trail until the thief is caught or the trail is lost on a major road or in a deserted place. Otherwise they must pay compensation for the theft and a fine.14

Procedure in Novgorod and Pskov

The relatively brief legislative materials which follow the rp offer only a few glimpses of the court procedures involved15 and one has to wait for the later sources from Novgorod and Pskov for more details. The Court Charters from these two cities are basically from the 14th century, although some parts may have an earlier origin (see the relevant sections in Chapter 8) and are, as indicated by their common denomination, primarily concerned with judicial matters. The Novgorod charter may originally have been of about the same length as the Pskov charter, but only the first part, which breaks off in the middle of a word in art. 43, has survived. In view of the fact that Pskov was closely connected to Novgorod for a considerable period there is reason to assume that their judicial procedures were quite similar. In view of the greater length of the Pskov charter it is convenient to discuss it first. Modern law is used to a systematic structure of a legal text: defining the terminology and the scope of the text, the emergence or establishment of the legal institutions and relationships covered, their mode of operation, the different ways they come to an end, etc. Older texts, especially medieval ones, usually adopt an associative approach: the most urgent question is treated first and this leads to other related questions; when the first subject is more or less exhausted, another prominent question is tackled, and so on. Matters of 14 Iushkov, Stroi, 517–518; Vlad.-Bud., Obzor, 590; V.F. Inkin, “«Gonenie sleda» v galitskoi obshchinnoi praktike xv–xviii vv. (Material dlia ob”iasneniia 77-i stat’i Prostrannoi Pravdy)”, dg sssr 1985, Moskva, 1986, 131–140. 15 The 1229 treaty between Smolensk and Riga, also known as the Smolenskaia Pravda (see the relevant section in Chapter 7), would be an example. It is generally close to the rp. Another example is the Dvina Land Charter of 1397–1398.

690

chapter 22

g­ eneral knowledge or not needing regulation are often passed over, even when they would have been mentioned in a more systematic approach. The two approaches are not exclusive; even in modern systematic treatment the associative approach can sometimes not be avoided. At any rate the Novgorod and Pskov Court Charters do not stand out by their systematic coherence. The Pskov Court Charter has the character of a manual for judges, at least the judges of the prince’s court and the judges of the posadnik; the archbishop’s lieutenant (namestnik) judged ‘church people’ (art. 109)16 and he is also mentioned in art. 2 where, along with the prince and the posadnik he is forbidden to retry cases tried by a (Pskov) court. Arts. 3–5 exhort the judges to judge fairly. Many provisions of the Pskov charter instruct the court to proceed in a certain way (reject a claim, impose a penalty, etc.) in certain cases. In such instances the provisions of what we would regard as substantive civil or criminal law have been disguised as procedural rules (see the section on the commercial law of Pskov in Chapter 15). Still, a considerable part of the charter is devoted to actual procedure. It is implicit in many provisions that a case could be started by two opposing parties presenting themselves at the court. A party unwilling to appear might be summoned by a bailiff (pristav); if he failed to appear the Pskov Council (the Gospoda) would issue a formal order (art. 25). The prince and Pskov each had their own bailiffs (art. 81). The bailiffs played a central role in the procedure preceding the trial, they presented summonses, examined certain matters, etc. (cf. arts. 37, 49–50, 57, 64–67, 76, 80, 84, 93, 98). The actual writing out of summonses, judgments, etc. was the work of the court clerk (pisets). Litigants were not allowed to bring other persons to the trial; an exception was made for people who were supposed to need help (women and children, monks and nuns, old or deaf people; see art. 58). There is a similar rule in the Novgorod Court Charter (arts. 5 and 42). Art. 54 deals with a procedure called izvod, reminiscent of the svod in the rp. Somebody suspected of theft was allowed to request the appearance of the person he claimed to have bought the disputed property from. The latter then became the new defendant. The original defendant became a guarantor for the new defendant. 16

This is the lieutenant of the Novgorod archbishop. His jurisdiction was limited to church people and did not extend (as in the older church statutes of St. Vladimir and Iaroslav the Wise) to certain matters (mainly marriage and inheritance questions) regarding the general population. A number of provisions of the Pskov charter cover inheritance law (arts. 85–86, 88–91, 94, 100).

Courts and Justice

691

Written documents played an important role in the law of Pskov and the Charter distinguished between several types, possessing varying evidentiary strength (see below under “evidence”). Of special value were documents deposited in the lar’, the Pskov archive kept in the Holy Trinity cathedral (arts. 14, 32 and 38). The Pskov Court Charter paid a great deal of attention to the various kinds of evidence; this will be discussed below. Although the Novgorod Court Charter is obviously destined for judicial usage, it does not have the clear appearance of a manual. Along with many similarities, several features distinguishing it from its Pskov counterpart stand out. The much greater size of the Novgorod territory is reflected not only in the greater attention devoted to court actions concerning land (arts. 12, 23, 24, 28, 29), but also by the grading of time-limits and fees according to distance (arts. 23ff., 36, 41). Possibly, the enormous size of the Novgorod territory also affected the speed of trials and the occasional need for postponements. Arts. 28ff. attempt to ensure the timely resolution of actions about land and these are followed by a series of provisions about postponements (arts. 30–32, and also 24 and 41). A procedure initially unique to Novgorod was the doklad, lit. the report. The main provisions are arts. 20–21 and 26 of the Novgorod Court Charter. They speak of the referral by the court of a decision to “reporters” (dokladchiki), who were to take a final decision. They met three times weekly in the archbishop’s palace in Novgorod. For a long time this was perceived as a form of appeal,17 but a recent study by Petrov argued that the Novgorod doklad (and its further development in the law of the Muscovy principality) should rather be viewed as the splitting up of a single trial into a first phase, where a report (doklad) was prepared on the basis of the court’s investigations, and a second phase where the case was decided by other judges on the basis of the report. This procedure was developed to deal with the practical difficulties of investigating and trying cases arising over a vast territory.18 The underlying idea was the overarching and exclusive judicial competence of the grand prince, which required the maintenance of effective central control over the administration of justice. During the second half of the 15th century, the reign of Ivan iii, the doklad procedure became a common feature. 17 18

By the commentators in prp ii, 235 and rz i, 314. K.V. Petrov, “Protsedura sudebnogo «doklada» v russkom prave xv-pervoi poloviny xvi v.: K istorii formirovaniia sudebnykh organov v Rossii”, A.P. Pavlov (ed.), Gosudarstvo i obshchestvo v Rossii xv – nachala xx veka. Sbornik statei pamiati Nikolaia Evgen’evicha Nosova, Sankt-Peterburg, 2007, 106–115.

692

chapter 22

Evidence19 While general procedure is dealt with somewhat haphazardly in the sources discussed above, evidence is a topic which appeared already in the earliest laws. The treaty of 911 with Byzantium showed the sensibility of the parties to the matter of evidence in one of its first provisions (art. 3), which provided (among other things) that a claim, in order to be recognized, should be supported by evidence. In such a case the defendant was to be allowed to rebut the claim by taking an oath.20 Art. 3 avoids using a specific term for “evidence”, although all translations suggest it does.21 The oath (rotá) is also mentioned in the treaties of 944 and 971. The Short Pravda introduced the eyewitness as a source of evidence in art. 2. If someone complained about having been beaten and he could show his injuries, he did not need an eyewitness to corroborate his complaint; if he did not bear any signs of the fight, he must produce an eyewitness (vidok). In the case of pulling and shoving, two eyewitnesses must be produced, but a Viking or Kolbiag could instead take the oath (art. 10).22 The eyewitness appeared again in art. 16, discussed already above in connection with the svod. In the third and final phase of this procedure (about the recovery of a stolen slave), the original owner could claim a new slave as a replacement for the one he lost from the third possessor of the stolen slave and the latter was then to attempt to investigate the case further “with an eyewitness” (pri vidotse). Although the stolen slave could of course assist in identifying the person responsible for the owner’s original loss, most commentators agree that the eyewitness in this case did not refer to the slave, who was generally unable to appear as a witness.23 Art. 30 of the Short Pravda repeats art. 2 in more or less the same words, but only the first sentence (about the appearance of a man who is bloody and beaten) and then uses a different term for “witness” (poslukh). Etymologically the difference between the two terms is clear: a poslukh is somebody who has heard something, a vidok somebody who has seen something. While the 19

Generally on this topic: G.M. Barats, “O sudebnykh dokazatel’stvakh po Russkoi Pravde”, Vestnik prava, xxxvi (1906), kn.2, 294–372; F. Gorlé, “La preuve judiciaire dans l’ancien droit russe”, Tijdschrift voor Rechtsgeschiedenis/Revue d’histoire du droit, xlv (1977), 67–94. 20 This at least is clear. The translation of the entire provision is quite uncertain. Divergent interpretations are given by prp i, 10 (Zimin), Kaiser (Laws, 5), and Cross/SherbowitzWetzor, Prim. Chron., 66. 21 Cross/Sherbowitz-Wetzor, Prim. Chron., 66 (“proofs”); Kaiser, Laws, 5 (“evidence”); Zimin, prp i, 11 (dokazatel’stva); Baranowski, 736 (Beweise). The original text is: da eliko iave budet’ pokazanii iavlenymi, da imeiut’ vernoe o tatsekh iavlenii. 22 A Kolbiag is unquestionably a foreigner, but his exact origins are much debated. 23 Cf. art. 85 Expanded Pravda and also Baranowski, 238–239.

Courts and Justice

693

p­ oslukh appears only in art. 30 of the Short Pravda, he appears more frequently in the Expanded Pravda, where the vidok turns up only three times. In one provision of the ep (art. 29) both kinds of witnesses occur. Many explanations for this terminological duplication have been proposed, none of them fully convincing in my view. One term could reflect a more ancient usage; or a difference between Kiev and Novgorod terminology. While the vidok is generally considered to have been an eyewitness who was able to testify about what he had seen himself, poslukh can also be translated as “character witness” or understood as somebody who has full knowledge of the case. Unfortunately, art. 29 ep (which is an elaboration of art. 2 sp, about the bloody and bruised man) does not offer a solution, because the two terms seem to have about the same meaning in this provision. The man who has been beaten but bears no outward signs must produce a witness (vidok, obviously to confirm that he saw that the attacker had beaten the complainant); but, as added by the second part of the provision (the innovation in respect of the corresponding provision in the sp), if the victim had started the fight “his bruises will serve as payment”, provided this course of events was confirmed by witnesses (poslusi, who could – as eyewitnesses – testify that they saw that the victim started the fight, or perhaps – as character witnesses – confirm that the victim was a notorious troublemaker).24 In the ep, where, as said, the poslukh is frequently introduced as a source of evidence, it is often unclear whether he is to be understood as an eyewitness or as somebody who on account of his status deserves credibility. The latter explanation seems to be preferable in the case of art. 18, where a person accused of homicide may free himself by bringing in seven poslukhi, or two if he is a foreigner. In art. 39, one of the provisions about the svod in the ep, the accused is to present poslukhi or the customs officer (mytnik) in order to confirm that he bought the disputed property; here the meaning of “eyewitness” would be more likely. In later sources (after the rp) the vidok disappears completely, and poslukh remains the only term for witness. In addition to witnesses (vidoki, arts. 29, 31 and 37, and poslukhi, arts. 18, 21,29, 39, 47–50, 52, 77, 85 and 110) and the oath (arts. 22, 31, 37, 47–49, 52, 109, 115 and 118), the ep also introduced the ordeal as a source of evidence (arts. 21, 22, 85–87). Arts. 21–22 represented an elaboration of the charge of homicide of art. 18. If the accused could not produce the required number of seven (character) witnesses, he was subjected to the ordeal by hot iron (art. 21).25 Art. 22 24 25

A more detailed review of the debate in Baranowski, 295–299. This is the usual reading of art. 21; according to Kaiser, Laws, 22, the ordeal is imposed on both the accused and the accuser and only in case the accused has in turn accused the accuser of the homicide.

694

chapter 22

extended the procedure to charges of theft; for less serious cases the ordeal by water was prescribed and for insignificant cases the accused would be allowed to affirm his innocence by oath. The Church Statute of Iaroslav, which is very detailed on all kinds of offences assigned to the jurisdiction of the bishop, is silent on the matter of evidence. Presumably the rules applicable in the secular court applied. The Novgorod and Pskov Court Charters developed the evidentiary system of the older laws. The former oath (rota), going back to pagan times, now appeared in the shape of the “kissing of the cross” (tselovanie kresta). It is mentioned frequently in the Novgorod Charter, where it represented the basic source of evidence.26 The Christian form of the oath was used not only as confirmation of a statement made during a trial, but also in swearing loyalty to one’s duty, such as in judicial office (arts. 4a and 13 of the Novgorod Charter), or to observe the Novgorod Court Charter (arts. 14–15).27 Where, as is usually the case, a trial is not merely about a point of law, two or more parties oppose each other with different accounts of what happened. This goes for both civil and criminal trials. As argued before, the differentiation between the two developed gradually in the past; a differentiation between the law and the facts is probably of even later date. All this implies that the statements of the parties about what happened were the basic source of information for the court. The statements can be confirmed by witnesses (directly by eyewitnesses, indirectly by character witnesses affirming the credibility of the statement made by a party), by oath (pagan or Christian), and of course by material evidence (hence the importance of the wounds and bruises in the case of the “bloody man”, krovav muzh). A next step during the early period when relationships were not yet expressed in written form, was the introduction of the ordeal. It appeared in the Expanded Pravda (as mentioned above). Although it is absent in the Short Pravda, its origins undoubtedly went back to pagan times, as a means to invoke divine help to discover the truth. At a somewhat later moment the judicial duel came to replace the ordeal as an evidentiary instrument.28 In the Novgorod and Pskov court charters the ordeal is absent. The Novgorod Charter does not directly deal with the duel, but mentions it twice in passing; art. 6, devoted to slander, which includes slandering somebody at the duelling field (pole), 26 The rota is still mentioned in art. 24 and also in arts. 34, 35, 99 and 116 of the Pskov Court Charter. 27 Generally on tselovanie kresta, H.W. Dewey and A.M. Kleimola, “Promise and Perfidy in Old Russian Cross-Kissing”, Canadian Slavic Studies, iii (1969), No.2, 327–341. 28 Cf. H.W. Dewey, “Trial by Combat in Muscovite Russia”, Oxford Slavonic Papers, ix (1959), 21–31 (mainly on later period).

Courts and Justice

695

and art. 33, mentioning a ‘duelling charter’ (polevaia gramota, perhaps a written document containing an agreement to settle the dispute through a judicial duel).29 In the Pskov Charter the duel, generally abbreviated as ‘the field’ (pole), is almost as important as the oath as a source of evidence. The Charter does therefore not only order the litigants to engage in a duel in a considerable number of cases, but also offers some general regulation in the matter of duels. Personae miserabiles (elderly, youthful, invalids, priests and monks) are allowed to hire a champion, while their opponents are not (art. 21). The failure to mention women in art. 21 is probably an omission. Art. 36, devoted to disputes about undocumented loans, directs a solution of the dispute through a duel and allows women, children, elderly persons, invalids, sick persons, monks and nuns to hire a champion. In this case the opponent is also allowed to hire a substitute to fight for him. Art. 37 adds more detail about the outcome of the duel: the winner received the sum at issue from the losing party. If the opponent was killed, the winner only received the dead person’s armour and other property he had on him. The losing party also had to pay a fine to the prince and a fee to the bailiff (pristav). Both Charters recognized the witness (poslukh) as a source of evidence, often in connection with the oath (Novgorod Charter arts. 22, 23, 35; Pskov Charter arts. 20–24, 27, 117). The higher level of sophistication of the Pskov Charter is also noticeable in the presence of a few general rules about the testimony of witnesses. A claim will fail if the witness upon whom the claimant relied did not appear in court or if the witness contradicted the claimant (art. 22). A witness for the defendant in a case of assault who is accused by the victim of having participated in the assault is unacceptable as a witness (art. 23). An unusual form of evidence, akin to the testimony of witnesses is mentioned in art. 9 of the Pskov Charter. In litigation about rights concerning land, a litigant may invoke the testimony of four or five neighbours to confirm the fact that the litigant has ploughed and possessed the land (or a stretch of ­water) for four or five years. The Pskov Charter’s character as a handbook for courts is most obvious in arts. 29–32, all of them describing various situations concerning money loans and instructing the judge about the procedure to follow and the decision to take. The growing importance of written documents begins to be observable in the Novgorod Charter and is fully visible in the Pskov Charter. The Novgorod Charter did not yet explicitly recognize written evidence, but referred a ­number of times to judicial decisions taking the shape of a written judgment (sudnaia gramota, arts. 7, 8, 11, 12, 33 and 34). Another judicial decision put down in writing is the postponement charter (srochnaia gramota, arts. 24, 30 29

The commentaries fail to enlighten the reader about the meaning of this term.

696

chapter 22

and 31), granted at the request of one of the parties to an action. Other official documents named in the Novgorod Charter are the somewhat puzzling duelling charter (mentioned above) and the obetnaia gramota of art. 39, which appears to be a default judgment issued against a party who failed to respond to a summons to appear in court.30 The doklad procedure was discussed above. It inevitably included a written report (doklad, mentioned in art. 21) which was sent up to the reviewing court. In the Pskov Court Charter written evidence has come to full maturity. Most attention is directed at doski, ‘uncertified notes’ (in Kaiser’s translation) and literally “boards” (in arts. 14, 19, 28–31, 36, 38, 61–61, 75, 92 and 103). Most of the provisions concerning doski deal with notes recording loans or, more generally, money debts. Such notes are obviously one-sided records of debts. If they are contested by the debtor their value as proof of the existence of the debt is limited, but not non-existent. Their value increases once they are supported by collateral in the possession of the creditor. In the text of the Charter the doski are occasionally opposed to the more significant zapisi (notes) or gramoty (charters). The value of the latter documents is even increased if a copy has been deposited in the official archives of Pskov, maintained at the cathedral of the Holy Trinity (mentioned in arts. 14, 32, 38, 50 and 82).31 A will could also be deposited there (art. 14). The growing importance of written documents, replacing the testimony of witnesses, inevitably raised the question of their authentication, in other words: how was one to know that the document really represented what it purported to be? The question is as old as written documents themselves. It came up already in the 971 Treaty between Byzantium and the Russians. In art. 4 of the Treaty prince Sviatoslav stated solemnly: “Take as truth that which we have here agreed with you, and which we have written on this parchment and sealed with our seals.” (Dewey’s translation). It is a matter of speculation what is meant here by “seals”, and this point is passed over by all c­ ommentators. ­After 971, the seal (pechat’) remained out of view for centuries, to reappear by the end of the 14th century and more widely in the 15th century.32 The Novgorod and Pskov Charters referred to seals as a means for authenticating a document (in arts. 8, 21, 24 and 30 of the former and art. 82 of the latter). The seal was to 30 31 32

A.A. Zimin, in his comments in prp ii, 242, regarded it as a special kind of bessudnaia gramota, a default judgment. See also S.N. Kisterev, “«Riadnitsa» v stat’iakh 32 i 38 Pskovskoi sudnoi gramoty”, Ocherki feodal’noi Rossii 4, Moskva, 2000, 71–84. Pechat’, the seal that is pressed down in hot wax, is derived etymologically from a root designating “heating”. It has been taken over in medieval German, where Petschaft has a similar meaning.

Courts and Justice

697

be affixed by an independent authority (judges, court clerks, public officials); the Dvina Land Charter of 1397–1398 mentioned the lieutenant (namestnik) as charged with sealing documents (art. 10). At the level of private charters (most of the extant ones from monasterial archives), abbots and monks in management positions were usually called in to supply the seal, but occasionally one encounters individuals who sealed documents in which they declared themselves as debtors or potential debtors.33 The Code of 1497 has been described, with some exaggeration, as an elaborate catalogue of court fees (and seal fees) concealing a fairly comprehensive code of law and this aspect is less prominent but still very visible in the Code of 1550. The importance of the fiscal aspect, i.e. the obvious purpose of court and seal fees to strenghten the state’s financial position, completely overshadowed the legal aspect of requiring an official seal for bestowing evidentiary value on a multitude of documents. In the Ulozhenie of 1649 Ch. 18 (On seal fees) the system of seal fees for almost all documents emanating from state agencies appeared in full maturity. The validity of such documents depended on their being sealed properly. The decisive role of seals lasted for a long time, until in the end the signature slowly began to complement the seal as an equally essential signal for indicating the authenticity of the document. But the signature never replaced the seal, which has survived in Russia until the present day. The question of seals has received almost no attention in Russian legal history, although it has been mentioned as a possible example of Byzantine influence on medieval Russian law.34 In the Code of 1497 the testimony of witnesses was still an important source of evidence, but most attention was directed towards various types of documents. The ordeal has disappeared, but the judicial duel is mentioned in a number of provisions (4–7, 38, 48, 49, 52, 68), presenting an elaboration of corresponding provisions in the Pskov Charter. The same goes for the oath in the form of kissing the Cross (arts. 12, 13, 46, 47, 48, 58). A particular example of the weight attributed to the oath can be found in art. 13 of the Code. If a certain number of credible witnesses35 assert that somebody is a thief, then, if there is no further evidence of a crime having been 33 34

35

E.g. prp iii, 52–53, in which Foma Danilov acknowledged the temporary possession of land, granted to him by the metropolitan (1461–1465). N.A. Soboleva, “K voprosu ob udostoverenii russkikh aktov v kontekste ­vostochno-rimskogo prava”, A.Iu. Dvornichenko (ed.), Issledovaniia po istorii srednevekovoi Rusi. K 80-letiiu Iuriia Georgievicha Alekseeva, Moskva/Sankt-Peterburg, 2006, 47–71. Five or six reputable petty nobles (deti boiarskie dobrye), who have sworn to the grand prince, or five or six good peasant tseloval’niki (cross-kissers).

698

chapter 22

committed, there will not be a trial, but the alleged thief must compensate the plaintiff (who started proceedings) for what he claimed to have lost. Evidence, in particular a confession, could be obtained through torture. It is already mentioned in art. 33 of the Short Pravda, which refers to the torturing of a peasant (smerd) without the prince’s permission (somewhat different wording in art. 78 of the Expanded Pravda). Reference to torture is made now and again, most explicitly in art. 14 of the Code of 1497, where torture to obtain evidence during a criminal investigation is prescribed in certain cases. The Code of 1497 shows increased sophistication in distinguishing with regard to the evidentiary force of various documents. As explained above, court judgments needed to be confirmed by a boyar judge and the court clerk’s signature in the course of a doklad procedure. Such a doklad was also required in the case of manumission of a slave by an otpusknaia gramota (cf. art. 17). Art. 18 added that a manumission charter without the boyar’s doklad or without the signature of the d’iak was invalid, except when it was fully written out by the slave’s master.36 The relative importance of various documents can be estimated by looking at the different fees due to the issuing authorities. Excursion: Witnesses in Church Courts In Chapter 2 the “Law Books” (Knigi zakonnye) were briefly discussed. Their main component is an Old-Russian translation of the Byzantine Farmer’s Law (Nomos Georgikos), supplemented by a translation of several chapters of the Procheiron. One of these is the Chapter on Witnesses (Glava o poslusekh), drawn from title 27 of the Procheiron, with some additions from title 14 of the Ecloga.37 The fact that this chapter survived not only in the Knigi zakonnye, but also in other collections indicates, as Kaiser has observed, that the chapter was used in ecclesiastical circles.38 A discussion of the law on the evidence of witnesses in medieval Russian should therefore not completely neglect this document. The Chapter on Witnesses, apart from more or less pious exhortations, contains a number of explicit rules about the evidence of witnesses. Hearsay ­evidence is not admitted (art. 6). Written depositions are allowed, but not in 36

The rule of art. 18 is repeated in slightly different words in art. 42, having regard to the courts of the lieutenants (namestniki). 37 The entire Old-Russian text of the Knigi zakonnye, together with a translation into modern Russian has been included in the edition of the Nomos Georgikos prepared by E.E. Lipshits, I.P. Medvedev and E.I. Piotrovskaia, Vizantiiskii Zemledel’cheskii zakon, Leningrad, 1984, 233–256; the Chapter on Witnesses at 254–256. English translation of the Chapter on Witnesses (from a different ms., with four additional articles) in Kaiser, Laws, 118–121. 38 Kaiser, Laws, li.

Courts and Justice

699

serious cases (arts. 8–9). Members of the same family may testify in one and the same case (art. 13), but a father may not testify for or against his son, and vice versa (art. 21). Many categories are generally excluded as witnesses: the poor, minors (under 20), prisoners (convicted and under investigation), convicted adulterers, slaves, the deaf and dumb, etc. (arts. 15–25). Some of these prohibited categories of witnesses reappear in the Metropolitan’s Justice, itself a short guidebook, primarily for use by a church court (see Chapter 8).

Criminal Law

Criminal Law in the Expanded Pravda In the first section of this chapter we pointed out that the emergence of something we would now regard as criminal law could be observed in the later phase of the rp, the Expanded Pravda. Punishment of misdeeds by public authority was not unknown in an earlier period, because the 944 treaty with the Greeks referred to punishment of offenders according to Greek law.39 The 911 treaty is less explicit, but its art. 3, an introductory provision to the following provisions on various crimes, presents a rough outline of a criminal trial (charge, presentation of evidence, examination of evidence, verdict) and this presupposes the existence of some sort of tribunal. The criminal law provisions are all contained in the 911 and 944 treaties and are devoted to homicide (art. 4/911 and art. 13/944), inflicting injuries (art. 5/911 and art. 14/944), and theft (arts. 6 and 7/911 and arts. 5 and 6/944).40 All of them made clear that the same rules would apply to Greeks and Russians. The homicide provisions appeared to represent the ancient Russian custom of revenge by family members, with monetary compensation of the family as a substitute; the killer could apparently be killed by the kinsmen of the victim, without interference by a court. The 911 treaty distinguished clearly between ordinary theft (art. 6) and robbery (art. 7, open theft with violence), although the punishment was the same: threefold restitution of the stolen value. This type of penalty (twofold or 39

40

Cf. R.L. Khachaturov, “Ugolovno-pravovoe soderzhanie dogovorov Kievskoi Rusi s Vizantiei”, Sovetskoe Gosudarstvo i Pravo, 1987, No.8, 125–128 and, by the same author, PRoP i, 393–405. Sergeevich devoted a special appendix in his Lektsii to the treaties with Byzantium; he regarded the regime as imposed by the treaties as heavily weighted in favour of Greek law, a point of view shared by very few other authors. See Sergeevich, Lektsii, 645–659, on the criminal law provisions.

700

chapter 22

t­ hreefold restitution) was well-known in Greek (and Roman) law; in Russian law, it occurred only once later on, in the Expanded Pravda (art. 46). In the 944 treaty the distinction between arts. 5 and 6 is unclear; it would seem that art. 5 also covered attempted theft. The penalty was reduced to twofold restitution. Art. 6 of the 911 treaty allowed the killing of a thief during the commission of his crime, but not if he did not resist arrest or afterwards (a similar, but not identical, provision in the rp, art. 38 Short Pravda, art. 40 Expanded Pravda). Striking a person with a weapon entailed a fixed penalty of 5 litra41 of silver (arts. 5/911 and 14/944). The oldest layer of the Short Pravda, the Pravda of Iaroslav, cannot very well be regarded as criminal law, because its main theme was the fixation of the customary manner in which parties would resolve their disagreements – by paying fixed compensations. Moreover, the compensation was obviously not meant to make up for economic losses, or inflict unpleasantness or pain upon one of the parties, but to restore the honour and reputation of the party who had suffered. The second part of the Short Pravda, the Pravda of Iaroslav’s Sons, can be viewed as the transition to the system of the Expanded Pravda: the compensation due for offences against the prince’s personnel was claimed by the prince himself and acquired the character of a fine (as mentioned above, the payment of bloodwite did not necessarily absolve the killer from the duty to pay compensation to the victim or his kin according to the traditional system). In the Expanded Pravda the prince’s right to impose a fine (or another penalty) was no longer limited to offences against his own personnel. This may rightly be regarded as the emergence of criminal law. The famous and much-disputed episode of 996, as related by the Primary Chronicle, is also to be brought to mind here insofar as it concerns the appearance of new concepts concerning crime and punishment. The bishops42 encouraged St. Vladimir to punish robbers, if only after a proper investigation (no so ispytom); they pointed out to him that he had been divinely appointed to reward the just and to punish the wrongdoers. The passage suggests that the interposition of the prince in dealing with socially disruptive acts took place with the full support of the young Russian church.43

41 One litra equaled about 327 gram of silver. 42 At that time only the bishops of Kiev and Novgorod, and perhaps other Greek bishops present at the court of Vladimir. 43 I have discussed the events of 996 in more detail in my chapter “Wergeld, Bloodwite, and the Emergence of Criminal Law”, in H. Küpper (ed.), Von Kontinuitäten und Brüchen:

Courts and Justice

701

The Short Pravda (with the exception of a few provisions) was inserted in the Expanded Pravda, but often in considerably amended form, and, which complicates understanding even more, it was broken up in the course of the editorial process of the Expanded Pravda into six-seven fragments which were inserted in the ep text without regard to the original chronological structure of the sp; art. 8 sp (pulling out somebody’s beard, from the oldest part, Iaroslav’s Pravda) returned for instance as art. 67 ep, well after the 11th century Statute of Vladimir Monomakh. Any provision which unambiguously refers to the prince as the institution imposing a sanction on a wrongdoer may justifiably be regarded as criminal law. This is precisely where the main difficulty lies in the interpretation of the often terse and abbreviated pronouncements of the ep, because in quite a few cases the terminology of the ep does not allow the unambiguous identification of the receiver of the amount mentioned. Where the text uses the term prodazha (“sale” in modern Russian), it almost always means “fine”. Where the payment order is accompanied by the words za obidu (“for the offence”, “for the injury”), payment to the victim or his kin is usually involved. In some of the early provisions of the sp (e.g. art. 2) the victim is clearly indicated as the receiver of the payment za obidu. In the second part of the sp, the Pravda of Iaroslav’s Sons, devoted mainly to offences against the prince’s officials and servants, the za obidu formula is often encountered, but as the payment is then to be made to the prince as the master of his own personnel, the za obidu payment here coincides with a fine. A few provisions (arts. 35, 36 and 40) do in fact omit za obidu and instead simply call the fine prodazha. These provisions then became dispersed, reappearing with numerous amendments in the Expanded Pravda, accompanied by new provisions which used a similar terminology. In some cases (arts. 23, 60 and 61) the two forms merged, for instance art. 23: “If somebody strikes [another person] with a sword, without unsheathing it, or with the hilt, then 12 grivna [as a] fine [prodazhi] for the offence [za obidu].” In this case the context indicates that the 12 grivna is paid to the prince, although the corresponding and almost identical provision of the Short Pravda (art. 4), which does not use the prodazha term, has the za obidu formula and it is generally accepted that this payment would go to the person struck. But art. 23 ep is in the company of similar provisions, all of them going back to similar provisions in the Short Pravda, and one of them (art. 28) is absolutely clear: a three grivna fine (prodazha), and one grivna kun44 to the Ostrecht im Wandel der Zeiten. Festschrift für Friedrich-Christian Schroeder zum 75. Geburtstag, Frankfurt am Main, 2011, 3–21, esp. 10–12. 44 The grivna kun (grivna of fur) or ordinary grivna was one quarter of the silver grivna.

702

chapter 22

victim himself. The payment of art. 23 ep is therefore to be regarded as a real fine (prodazha). The matter is further complicated by the traditional use of the dative in OldRussian to indicate the person who is obliged or ordered or in need of acting out the infinitive form of the verb. In the provisions of the rp one often finds such formulae as emu platiti (“[it is up] to him to pay”), although it could also be read as “to him [i.e. the injured party] [is] to be paid”. The context is usually sufficient to resolve the dilemma, but not always. Art. 34 ep, for instance, concerning the case where somebody has lost some property and then finds it again with somebody else, allowed the finder to take it back and then ordered a payment of 3 grivna (za obidu platiti emu 3 grivny). Zimin regarded the payment as a fine (to the prince), while Kaiser’s translation handed the payment to the original owner.45 All these caveats, however, do not undermine the basic fact that the Expanded Pravda contains a considerable number of provisions describing acts subject to punitive sanctions to be imposed by the prince and his appointed officials. Their ancestry – many of them go back to similar provisions in the Short Pravda, where the injured person or victim, instead of the prince, was the opposite party – explains the casuistic and unsystematic character of this catalogue of criminal offences. Homicide is often mentioned, but most provisions concern all kinds of special cases. There are occasional attempts at systematization. Somewhere at the tail end of the ep a rule concerning the killing of women is inserted (art. 88); such homicides are to be judged in the same way as the killing of a man, but the bloodwite (vira) is halved to 20 grivna. Along with this general rule there are several others regarding special cases of the killing of women (art. 16, killing a female slave – 6 grivna, against 5 grivna for a male slave; art. 15, killing a craftswoman – 12 grivna; art. 17, killing a wet nurse – 12 grivna). These rules concerned women in the prince’s service; in general, the killing of a slave did not entail the paying of bloodwite, but only of compensation (if the slave was owned by somebody else) and a fine of 12 grivna to the prince (art. 89). After homicide there is a group of less serious offences against the person, ranging from serious bodily harm (half the bloodwite of homicide – 20 grivna) to the relatively innocuous unsheathing of a sword without actually striking the opponent (one grivna). Most of these provisions go back to the Short Pravda. The next main complex of offences concerned different forms of theft and offences against property: slaves, weapons, livestock, clothes, provisions. 45

prp i, 124 and 153.

Courts and Justice

703

Among the other offences against property one finds the destruction of ownership signs and marks, illegal fishing and hunting, arson, among others. The fine was practically the only penalty available and this agrees with the circumstances surrounding the appearance of the prince as a substitute for the revenge- and rehabilitation-seeking victim. This substitution allowed the prince to strengthen the material foundation of his rule and it simultaneously confirmed his authority and suppressed social unrest. Physical punishment of offenders would have been less advantageous in the conditions prevailing in Kievan Russia. The one exception to this rule was the rare occurrence of potok and confiscation of all property (razgrablenie or razboi). This penalty, apparently of ancient origin and comparable to the Germanic Friedlosigkeit, threatened the robber who had killed somebody without cause during a robbery (art. 7),46 and the arsonist who set fire to the grain store (gumno, art. 83). Potok by itself is also mentioned in art. 35, the theft of horses. It is not entirely clear what is meant by it. The offender was robbed of everything he possessed, except his life. Perhaps he was sold as a slave or ejected forever from his community. His wife and children shared his fate.47 Art. 7 of the Expanded Pravda is part of a group of provisions beginning with art. 3, entitled “On homicide”, and ending with art. 8. The central theme of these provisions is the collective responsibility of the verv’ for the homicide of an important princely official (kniazh muzh) committed within their community. The verv’ in the ep is a relatively small and territorially defined community, having its origin in family relationships (see for a more extensive treatment the relevant section in Chapter 18). The basic provision is art. 3 which makes the members of a community in which the corpse of a victim of an unjustified attack (razboi) was found liable to pay the bloodwite, if they failed to find (and deliver) the killer. For the killing of an important princely official (kniazh

46

47

In view of the position of art. 7 within a block of rules concerning the killing of important princely officials, its applicability would most likely be limited to such an offence. “Robbery” (razboi) refers to an unjustified attack, a violation of the customary rules concerning the use of violence. A more extensive discussion in Baranowski, 345–347. Cf. prp i, 141–142, 175; rz i, 112. Zimin (in prp) regarded potok as an innovation introduced by the grand prince as a sign of “increasing class struggle”, in view of the fact that potok was absent in the Short Pravda. But these words were written in or before 1952 and reflect the Stalinist stereotypes of Soviet historiography of that period. Shchapov (in rz) returned to the view of potok as an archaic institution. See also Iushkov, Stroi, 490–491. Among the older authors Sergeevich alone defends the view (utterly unsubstantiated) that potok was of Byzantine origin, Lektsii, 405–407.

704

chapter 22

muzh) the bloodwite was 80 grivna (as in the Short Pravda), for an ordinary freeman (liudin) 40 grivna. Art. 3 ep reproduced art. 20 of the Short Pravda, with a few amendments. The following provisions (arts. 4–8) are missing in the Short Pravda and elaborated art. 3. Arts. 4 and 5 make very clear that collective liability for payment of the bloodwite was the leading concept. Art. 8 added a new factor to this by directing that somebody who did not contribute his share in the payment of bloodwite could not claim community support either in case of need. The underlying idea of collective liability for the payment of bloodwite may have been the pragmatic desire to ensure that the bloodwite was paid, either by the community itself, or by the killer, if his own people managed to locate him. Collective responsibility of the family or a larger local community, such as the verv’, for acts of one of their own by which some extraneous person was harmed, is a not uncommon phenomenon in early legal systems. It is called krugovaia poruka in Russian (circular or mutual responsibility) and it occurs in the medieval legislation of most Slavic peoples.48 It is reflected in several Russian proverbs, such as Vor voruet, mir goriuet (“The thief thieves, the mir mourns”).49 The two versions of the Russkaia Pravda, understandably for such an early piece of legislation, have next to nothing to say about general concepts of criminal law, such as different forms of guilt, criminal responsibility of minors or mentally handicapped persons, preparation and attempt, various forms of complicity, etc. One curious instance is the treatment of theft committed by several persons together. Arts. 31 and 40 sp and arts. 41–43 ep provided a fixed fine to pay for the theft of livestock or from a barn, whether there was a single thief or several. In the latter case each thief had to pay the amount set. Criminal Law in the Statutes of St. Vladimir and Iaroslav the Wise Offences against the person and against property were more or less a­ dequately covered by the Russkaia Pravda. Traditional institutions and procedures ­derived from pre-Christian customary law were taken over, amended and transformed in a newly emerging legal order in which judicial and then also legislative powers were gradually gathered in the hands of the prince. Offences against sexual mores represented a separate element in this process. The adoption of Christianity implied the acceptance of very different views on sexual mores. This was recognized at an early stage, when the Church Statute 48 49

Cf. I.M. Sobestianskii, Krugovaia poruka u slavian po drevnim pamiatnikam ikh zakonodatel’stva, Moskva, 2011 (3rd ed., orig., Khar’kov, 1888). Cf. Vlad.-Bud., Obzor, 110.

Courts and Justice

705

of St. Vladimir (in its art. 9) conferred jurisdiction in what could be termed sexual offences on the bishop. The plan of action of this provision was fully implemented by the Church Statute of Iaroslav, which was basically a criminal code for sexual offences. The Statute of Iaroslav, as the name indicates, is a secular statute defining offences (and civil disputes as well) to be tried by the metropolitan (at that time the only bishop in Russia, together with the bishop of Novgorod). There was no punitive discretion; the penalties were all fixed, at levels ranging from 240 grivna (=5 gold grivna) to 60 nogata (little more than 1 grivna).50 A closer inspection of the catalogue of offences reveals that one of the guiding ideas of the older layers of the rp also governed the scaling of offences in the Statute of Iaroslav. Assuming that society expresses its opinion of the relative social disruptiveness of human actions through criminal law, it is obvious that status and honour were the dominant considerations.51 The most serious offence (art. 4) was dismissal, by a great boyar, of his wife (a daughter of a great boyar); in this case the 5 gold grivna fine to the metropolitan was accompanied by even greater compensation to the wife (300 grivna) “for her dishonour” (za sorom ei). Rape and abduction of the daughter of a great boyar merited the same fine, and an equal sum (5 gold grivna = 240 grivna) as compensation (arts. 2–3). For the same offences regarding daughters of lesser boyars the metropolitan’s fine was 1 gold grivna (48 grivna), and for daughters of common people 12 g­ rivna.52 Calling a married woman a whore entailed penalties and compensation of the same levels, depending on her social status (art. 31). The catalogue of sexual offences in the Statute of Iaroslav is detailed and often casuistic. It includes not only ordinary adultery, but also sexual intercourse between a godfather and a godmother, between brother and sister, with Jews or Muslims, with a nun, with one’s daughter-in-law, with an animal, with two sisters, with a stepdaughter, with a stepmother, with one’s sister-in-law, by two brothers with one woman, with one’s daughter, bigamy, and a few others (but not homosexuality). The designation “sexual offences” has been used for the sake of convenience. The Statute did not target expressions of sexuality disapproved of by 50 51

52

See Appendix, “The Monetary System of Medieval Russia”. Many interesting observations concerning this theme were made by S.L. Levitsky in “Protection of Honour and Dignity in Pre-Petrine Russian Law”, Tijdschrift voor Rechtsgeschiedenis/Revue d’histoire du droit, xl (1972), 341–436, esp. 342–351. Between the lesser boyars and the common people, the “good” (dobrye) or “important” (narochitye) people are mentioned with a 2 rouble fine. It is agreed that the rouble is a later insertion; one would expect that originally a 24 grivna fine was set.

706

chapter 22

the legislator, but conduct permissible in a pagan society and condemned by Christian morality. The catalogue therefore included various other activities, unconnected with sexuality, such as different kinds of sorcery, pagan wedding rituals, fighting among women, men “fighting like women” (biting and scratching), among other things. Occasionally, in less serious cases, no fixed penalty is set and the punishment is left to the metropolitan. In a few serious cases, on top of the set fine to the metropolitan, the prince will punish additionally. Among such cases were the ones of arts. 2–4 (mentioned above), group rape (art. 8), adultery (art. 9), arson (arts. 15 and 49), shaving somebody’s beard of hair (against his will, art. 32), and pagan wedding rituals (art. 36). The punishment imposed by the prince would presumably exist of an additional fine. Two of the cases which involved the prince also figured in the rp: arson and ‘beard’ offences. The two provisions on arson in the Statute are differently worded, but basically identical and very close to art. 83 of the Expanded Pravda (burning a gumno, “threshing floor”, grain storage). Arts. 15 and 49 of the Statute of Iaroslav also mentioned the gumno, but additionally the house or “something else” (ili ino chto).53 In the Russian medieval economy, the destruction of the grain stores of an entire community represented an existential threat to a large number of people and this may explain why the legislator wanted to make sure that it was well covered by criminal law. The heavy penalty (40 grivna) was the same in all cases. Pulling out or shaving off somebody’s beard is regarded by most commentators routinely as an insult to the victim’s virility and as violence against the person.54 It is curious, however, that the offence has a long pedigree and that the sanctions imposed are unusually high. It occurs in the Short Pravda (art. 8), the Expanded Pravda (art. 67), the Church Statute of Iaroslav (art. 32), the Court Charter of Pskov (art. 117), and several other sources. In the first three the penalty is set at 12 grivna. Shchapov alone points to possible religious connections, such as the Semitic attitude expressed in Levit. 19, 27 (still alive in Islam).55 This of course could not explain the rule in the Short Pravda, which undoubtedly goes back to pagan times. But a traditional Russian attitude may have been embedded in the new Christian approach. Jesus Christ is almost without exception portrayed as bearded, and in Christian iconography, Eastern as well as Western, God invariably has a beard. Shchapov suggests, although not in so 53

They belong according to the most authoritative commentator, Ia.N. Shchapov, to later additions to the Statute. 54 References with Baranowski, 207–208. 55 In rz i, 184–185; “Nor shall you cut your hair roundwise; nor shave your beard.”

Courts and Justice

707

many words, that in the view of the Russian middle ages, as man is made unto God’s likeness, a man should have a beard. As the West had abandoned this strict approach, the Russian beard served as a confession of faith, and by the same token as an easy and practical way of telling Russian men from strangers. Byzantine inspiration for the Statute of Iaroslav is most likely, because the Greek clergy present in early Christian Russian must have been closely involved in its drafting. There are many similarities in the catalogues of punishable offences, as well as important differences. Byzantine influence seems to have been a matter of general orientation, rather than of taking over specific texts. The penalty system is fundamentally different. In Russia the penalties consisted generally of monetary sanctions, while Byzantine law (e.g. Title 17 of the Ecloga) excelled in physical punishment, from various forms of capital punishment to the cutting off of assorted body parts. Criminal Law in Later Centuries The Novgorod and Pskov Court Charters dealt with criminal law only tangentially. Art. 10 of the Novgorod Charter set a fine to be imposed on persons convicted of assault or robbery in connection with land deals; the fine depended on the status of the person convicted: 50 roubles for a boyar, 20 roubles for a well-to-do (zhitii) person, and 10 roubles for a poor man. The Pskov Charter ordered capital punishment for theft from the town fortress, theft of horses, arson and treason (art. 7), and also for theft committed for the third time (art. 8). A few other provisions refer to theft in connection with property disputes, without indicating what kind of penalty was to be imposed. Other legislative sources confirm the impression that the combined set of criminal law provisions of the Expanded Pravda and the Church Statute of Iaroslav offered an adequate toolbox to deal with the criminal law needs of medieval Russian society. In Chapter 21 we have already observed that part of the jurisdiction originally assigned to the bishop tended to be switched back to the prince. The 1229 treaty between Smolensk and the Baltic towns of the Hanseatic League (the Smolensk Pravda) contained a small number of criminal law provisions which were still very close to the rp, except that the amounts were expressed in silver grivnas (four times the value of the ordinary grivna). A few scattered criminal law provisions may also be found in the Dvina Land Charter (arts. 1, 2, 4, 6) and the Belozero Charter (arts. 10, 13, 14, 18). They were still well within the rp tradition, with the exception of a new offence, encountered in both sources (art. 6 of the Dvina Charter and art. 13 of the Belozero Charter): taking justice into one’s own hands (samosud). This is not what we would understand by it, but concerned the case where a thief was caught by the owner

708

chapter 22

of the stolen object and the latter allowed the thief to go, after paying a bribe, thereby robbing the prince’s treasury of the fine set by law. The only legislative text which stands out in respect of its criminal law content is the Metropolitan’s Justice (see the relevant section in Chapter 6). Most of its provisions are reminiscent of rules already encountered in the Statute of Iaroslav, which makes sense if one considers that it was apparently meant as a guide for a church court in a remote area of Russia. A few other rules can more easily be connected with the rp. The comparatively late date of origin of the Metropolitan’s Justice is reflected by several features: its explicit reference to the ‘City Law’ of Byzantium (the Procheiron) as the law regulating the penalty for murder, and the repeated occurrence of capital punishment and mutilation. Capital punishment was included for offending the grand prince (of Moscow; this in itself also proves a late date) and for (repeated) theft. The late appearance of capital punishment and mutilating penalties, both well known and frequently applied in Byzantine law, should not create the impression that the culture of medieval Russia was gentle in comparison with the rough mores of Western Europe. It would already be sufficient to point to the rules of the rp about vengeance or about the permissibility of killing the nighttime burglar “like a dog” (art. 40 ep, v psa mesto). The Statute of the Novgorod prince Vsevolod (on Church Courts, Church People, and Measures) ordered the person who had tampered with weights and measures to be punished “close to death” (blizko smerti, art. 15) and to beat brothers who had falsely accused a sister of fornication (to cheat her out of her parents’ inheritance) with stones (art. 25).56 The chronicles offer many examples of violent treatment of opponents and Russian legal historians, such as Sergeevich or Iushkov, have qualified this as proof of the existence of capital punishment.57 All that can be said against these views is that the taking of life as described in such episodes lacked the characteristics of a penalty imposed in the course of a formal trial. Sometimes it was plain assassination, in other cases violent reprisal against opponents. Mutilation as a penalty began to be applied first in ecclesiastical 56

57

The latter provision appears only in the Solovetsk copy of the end of the 15th century and is based on borrowing from the Kormchaia; cf. Ia.I. Shchapov, Drevnerusskie kniazheskie ustavy xi–xv vv., Moskva, 1976, 153–158; also Kaiser, Laws, 63. Cf. Sergeevich, Lektsii, 394 and 404; Iushkov, Stroi, 491–492. Both authors refer to the famous Chronicle episode of 996, where St. Vladimir is exhorted by the bishops to punish robbers. I side with those authors who translate the verb kazniti here not as “execute”, but as “punish”, which agrees with the rest of the text. See also on capital punishment in Russian legal history: S.V. Zhil’tsov, “Smertnaia kazn’ v prave Drevnei Rusi i iurisdiktsiia Velikogo kniazia v ego primenenii”, Pravovedenie, 1997, No.4, 47–52.

Courts and Justice

709

jurisdiction, although it was also used occasionally as a political tool, in particular to render competitors harmless.58 Criminal Law in the Code of Ivan iii of 1497 Under Ivan iii the expansion of the Moscow principality was reaching its final stage, in the sense that almost all Russian principalities which at one time had been part of the Kievan empire had been brought under the rule of the Moscow grand prince, with the exception of western and southern territories, which remained under Polish-Lithuanian control. The obvious need to introduce a measure of uniformity in the legal system of the new politico-legal entity was the main motive behind the enactment of the Sudebnik (Code) of 1497. It addressed itself mainly to the organization of the courts, the procedure to be followed, and the various payments to judges and other court officials. Substantive criminal law is often mentioned in the Code, but then mostly in passing, in connection with other topics. As pointed out in Chapter 9 (the Code of 1497), one of its main features was that it represented a combination of two closely related texts: a statute on the court of boyars and okol’nichie, and a statute on the urban court of the namestnik (lieutenant). The most important criminal law provision of the Code illustrated this duplication: art. 8 dealt with the boyar court, art. 39 with the court of the town namestnik; the contents are almost identical. These provisions ordered capital punishment for several serious crimes, which, as noted above, was an innovation in Russian law, but in other aspects they reflected ancient traditions. One of these was the survival of the civil law element, by allotting an important role to the victim of the crime. The penalty to be imposed consisted of two parts: capital punishment and compensation for the losses of the victim. If the culprit’s estate was insufficient to compensate the victim, arts. 8 and 39 stated explicitly that the culprit was then not to be handed over to the victim (as a slave, or for private revenge), but to be executed. If there was anything left over from the culprit’s estate, this would be divided between the boyar (judge) and his clerk (d’iak), in the ratio of 3:2 (two altyn against 8 den’gi). Secondly, the provisions showed that criminal law was also largely governed by customary law, in that there was no exhaustive list of crimes. The wording of arts. 8 and 39 made this abundantly clear. The crimes covered were “theft [tat’ba], or robbery [razboi], or homicide [dushegubstvo] or false accusation 58

Blinding in particular was supposed to render a person incapable of occupying a position of importance, such as that of a prince or a bishop. This custom was not limited to Russia alone, but occurred widely among Indo-European and Semitic peoples.

710

chapter 22

[iabednichestvo], or any other evil deed [ili inoe kakoe likhoe delo]”. The vague scope of these two provisions was further extended by making them applicable only to a “notorious criminal” (vedomyi likhii). The next provision (art. 9) further extended the applicability of capital ­punishment to persons (obviously slaves or serfs) who had murdered their masters, conspirators (zagovorshchiki), church thieves (sviatotattsy), arsonists, notorious criminals, and others (such as podymshchiki and golovnye).59 Theft without qualifying circumstances (being a notorious criminal, a repeated offender, church theft, etc.) was punished by public flogging with the knout, payment of compensation, and a fine. If the thief’s means were insufficient, he could be handed over in slavery to the plaintiff (art. 10). For a repeated offender capital punishment was mandatory, and the same regime as described in art. 8 applied (art. 11). Art. 12 (accusation of theft, without other evidence) was discussed above in the section on evidence. Art. 13 is a continuation of art. 12: if the charge of being a thief not only rests on the sworn statement of five or six good men, but is corroborated by the thief’s possession of the stolen goods, the death penalty applies. Apart from the widely available capital punishment, the Code (as noted above in passing) also knew the ancient penalty of a fine, of commitment to slavery, and of flogging.

Court Fees and Related Payments

Court fees are of course necessarily connected with the emergence of courts, of the adjudication of disputes by an independent and authoritative agency, equipped with the means to have its decision enforced. In our discussion of the different phases of the rp, in particular art. 1 of the Short and of the ­Expanded Pravda (dealing with homicide), the transition from compensation of the ­victim’s family by the offender (and his family) to payment of the same amount to the prince was explained; this transition took place through the intermediate stage of payment to the prince of compensation for the killing of his servants. In these and similar cases (infliction of all kinds of injuries and other offences against the person) the appropriation of the claim for compensation by 59

I refrain from translating podymshchiki and golovnye, as there is too much disagreement about these two categories.

Courts and Justice

711

the prince could be explained as a payment for the judicial services provided by the prince’s court. But very soon the compensation assumed the character of a fine, a punishment for a crime. Payment for the actual costs of the administration of justice occurred already in the rp, but in a less prominent way, for the first time in the second phase of the Short Pravda, the Pravda of Iaroslav’s Sons, in arts. 41–42. As a result of unfortunate editorial intervention at some stage, the extant version of art. 41 is difficult to understand at first glance. After much debate through the years, the established opinion now is that the provision concerned the distribution of the fines specified in the foregoing provisions and based on the rate of 1 grivna equals 25 kuna. The bulk of the fine went to the prince, but smaller amounts were set aside for the tithe (a later addition to the arrangement), for the mechnik (an official, sheriff, prince’s guard), and for the emets (another, or the same official, or perhaps the person or official agent who caught the culprit).60 Art. 42 contained the pokon virnyi (the law on the [payment of the] collector of the bloodwite), a separate part of the Short Pravda (see Chapter 4). As pointed out in Chapter 14, in this provision the kormlenie system appeared for the first time. Kormlenie (“feeding”) meant that an official of the prince was provided with food and lodging for the duration of his stay in a particular locality. Later, kormlenie could also be paid in money or equivalent services or goods. Kormlenie in art. 42 of the Short Pravda was of the original type (“the bloodwite collector gets seven buckets of malt each week, and also a ram or half a carcass of meat, [etc.]”), but it already allowed alternative payment (“or 2 nogatas”). On top of the detailed food rations (such as special fare on Wednesdays and Fridays, fast days), there was also a fixed money payment and provision was also made for horses. The entire package was not only elaborate but also calculated to cover the living expenses of an entire party for one week. The virnik (bloodwite collector) and his team were sent out when the killer (in a homicide case) or another culprit (in other cases where bloodwite was owed to the prince) had not been apprehended and the community where the homicide took place was liable for the bloodwite payment (see art. 20 of the Short Pravda). In such cases an official party (most probably armed), headed by the

60

See comments in prp i, 104; rz i, 63; full survey of different viewpoints with Baranowski, 318–324. The basic provision concerning the assignment of the tithe (10%) from all court fees received by the prince is in the Church Statute of Vladimir (arts. 3 and 13) and in all church statutes derived from it.

712

chapter 22

virnik, had one week to collect the bloodwite from among the community of the offender. Art. 9 of the Expanded Pravda reiterates the pokon virnyi of the Short Pravda in somewhat amended form; the money payments are different and along with the virnik and his deputy (otrok) the metel’nik is mentioned.61 Art. 10 of the Expanded Pravda represents a much amended version of art. 41 of the Short Pravda (distribution of the bloodwite). Art. 20 of the Expanded Pravda rounds off the regulation of the payment of bloodwite (vira) for homicide, by ordering both sides (the victim’s relatives and the killer) to pay a fee of one grivna in case the homicide charge failed; the accused had to pay an additional smaller sum (9 kuna). The foregoing paragraphs concerned payments to the prince (bloodwite, vira) due in cases of homicide (of the prince’s servants) or closely related offences. Where an ordinary fine was paid for a certain offence, the Expanded Pravda also prescribed additional payments to the court officers, both in the form of fixed money payments and in kind (art. 74). The further elaboration of the system of court fees is reflected in arts. 86 and 107–109 of the Expanded Pravda (representing later layers of the rp), which set out schedules of fees for administering the iron ordeal (art. 86), general court fees (art. 107), fees for partitioning estates (art. 108), and for administering oaths (art. 109). In some cases the fees for particular court officers are taken out of the sum total of the payment (fine, bloodwite) imposed, in other cases they are added on to it. The same system is found in the Court Charter of Novgorod. General court fees at 10% are taken out of the fine imposed (art. 8), while special payments are due to court officials who have to travel a long distance to discharge their duties (arts. 23 and 24). A special payment is also due for a judgment after litigation or a simple decision without litigation (art. 33). In the Court Charter of Pskov there are numerous provisions on court fees and fees for court officials, but, in accordance with the general character of the Charter (based on, and additional to customary law, which is assumed to be known), the regulatory system is haphazard. Art. 12 sets a general court fee (podsudnich’e) of 10 den’gi.62 Several provisions mention a special fee for the bailiff (pristav): art. 37 for his work in connection with judicial duels, arts. ­64–67 for various activities in criminal investigation, art. 93 for his involvement in the execution of the judgment. As in Novgorod, these fees are often 61 62

There is no agreement about the nature of the metel’nik’s responsibility, except that he is subordinate to the virnik; see Baranowski, 380–381. In Pskov 220 den’gi were equal to 30 grivna and to one ruble.

Courts and Justice

713

c­ onnected with the distance bailiffs have to travel to discharge their duties. Other provisions concern special fees for the court clerk (pisets), arts. 50 and 82–83, or for the guards (podverniki, art. 59; dverskie = dvorskie, art. 65). In the Dvina Land Charter court fees and related payments was regulated in arts. 8 and 10. Art. 8 is devoted mainly to the riding fee (khozhenoe) and other emoluments due to the lieutenant’s assistants for travelling to various points in the large territory. Art. 10 fixes the fees for all officials involved in issuing judgments. Art. 3 envisages a special situation: when a fight occurs during a (village) feast and the parties make up before the party is over, there are no legal costs; but when they make up afterwards, the lieutenants may claim their usual fee. The riding fee is also mentioned in the Belozero Charter (the Belozero principality was much smaller than Dvina Land), art. 16. Two provisions of the ­Belozero Charter (arts. 9 and 13) aim to protect the income from court fees against evasive action by the parties involved; art. 9 deals with situations where parties reach an out-of-court settlement; a court fee of one thirtieth of the sum in litigation is then due (one grivna for one ruble). Art. 13 is directed against samosud (taking justice in one’s own hands, i.e. capturing a thief with his loot and making a deal with him); there is a fixed fine of one ruble (art. 6 of the Dvina Charter is also directed against samosud). In Chapter 9 (on the Code of 1497, the Sudebnik of Ivan iii), Dewey’s words were quoted concerning the character of this text.63 Most provisions of this Code are structured as indications of court fees (“If such and such a case occurs and is tried, then the court receives so much, the bailiff so much, etc.”). As explained elsewhere, the Code consists of two more or less parallel parts, concerning the boyar court and the lieutenant’s court. Also, the main purpose of the Code seems to have been to introduce more uniformity into the judicial system of the newly emerged grand principality of Muscovy. The unification of the fee structure for the courts was an important aspect of this policy, if not the most important. The general court fee was set at two altyn per ruble for the judge and eight den’gi for the clerk (arts. 3 – for the boyar court, 38 – for the lieutenant’s court), to be paid by the losing party.64 There were all kinds of special fees for special activities, such as the issuing of documents (judgments, court records, 63

64

“The Sudebnik sounds disappointingly like a simple listing of court fees, or of payments to be made to victorious litigants”; H. Dewey, “The 1497 Sudebnik – Muscovite Russia’s First National Law Code”, American Slavic & East European Review, Vol.15 (1956), 325–338, at 325. In 15th century Moscow 200 den’gi were equal to 33.3 altyn and to one ruble.

714

chapter 22

e­ mancipation papers, etc.), riding fees for court officials, etc. The tendency to protect income from court fees against avoidance, observable in the Belozero Charter and earlier laws, was strengthened. A considerable variety of officials was on the receiving side of these various fees, not only judges (boyar and okol’nichii judges, lieutenants, and judges of the court of a prince), but also scribes (diaki, pod’iachie, and pechatniki), bailiffs (nedel’shchiki, pristavy), among other things.

part 2 Muscovy (until 1649)

∵

chapter 23

Introduction

(Grand) Princes (and Tsars) of Muscovy (All-Russia) since Ivan i

Ivan i Kalita (“Moneybag”; *?) 1327–1341, “Ivan Danilovich”, son of Ivan i Semën Gordyi (“the Proud”; *1316) 1341–1354, “Semen Ivanovich”, son of Ivan i Ivan ii Krasnyi (“the Handsome”; *1326) 1354–1359, “Ivan Ivanovich”, son of Ivan i Dmitrii Donskoi (*1350) 1359–1389, “Dmitrii Ivanovich”, son of Ivan ii Vasilii i (*1371) 1389–1425, “Vasilii Dmitrievich”, son of Dmitrii Donskoi Vasilii ii Temnyi (“the Blind”; *1415) 1425–1462, “Vasilii Vasil’evich”, son of Vasilii i Ivan iii (*1440) 1462–1506, “Ivan Vasil’evich”, son of Vasilii ii Vasilii iii (*1479) 1506–1534, “Vasilii Ivanovich”, son of Ivan iii Ivan iv Groznyi (“the Terrible”; *1530) (1534) 1547–1584, “Ivan Vasil’evich”, son of Vasilii iii, first tsar (Simeon Bekbulatovich, 1575–76, “grand prince of All-Russia”, appointed and dismissed by Ivan iv) Fëdor (*1557) 1584–1598, “Fedor Ivanovich”, son of Ivan iv Boris Godunov (* ± 1552) 1598–1605, brother-in-law of Fedor, elected Fëdor Godunov (*1589), 1605, son of Boris Pseudo-Dimitrii i (Iurii Otrep’ev, *?), 1605–1606, self-proclaimed Vasilii iv Shuiskii (*1552), 1606–1610 († 1612), elected “Seven Boyars” (Semiboiarshchina), 1610–1612 Mikhail Romanov (*1596), 1613–1645, elected, “Mikhail Fedorovich” Aleksei (*1629), 1645–1676, son of Mikhail, “Aleksei Mikhailovich” With the death of tsar Fedor in 1598 the Moscow dynasty descending from Ivan Kalita died out. During most of Fedor’s reign, the government had actually been in the hands of his wife’s brother, Boris Godunov, who then also succeeded Fedor in 1598. When Boris died suddenly in 1605, his son Fedor, aged 16, succeeded him, but he was overthrown and killed after six weeks by a pretender (reputed to be Iurii Otrep’ev) who claimed to be Dmitrii, son of Ivan iv and allegedly assassinated in 1591 with the connivance of Boris ­Godunov. This (first) Pseudo-Dimitrii was crowned tsar and ruled for one year, until he was ­overthrown in a plot organized by prince Shuiskii, who then ascended the throne as tsar Vasilii iv (1606). During his reign the second Pseudo-Dimitrii © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_024

718

chapter 23

(known as the “Thief of Tushino”) appeared; he operated in an alliance with the Polish king and controlled large parts of the Russian territory. Vasilii iv was forced to abdicate as the result of a palace coup in 1610. A few months later, the second Pseudo-Dimitrii, abandoned by the Poles, was killed. In the years 1610–1611 the Time of Troubles reached its lowest point and the country descended into chaos. Moscow was occupied by the Poles and there was serious talk of making the Polish crown prince tsar of Russia. In October 1611 the general awareness of the need for concerted action produced a groundswell of patriotic enthusiasm which spread from Nizhnii-Novgorod across the country, until Moscow was taken (where the Polish garrison surrendered in October 1612). In February 1613 the Land Assembly elected the young Mikhail Romanov as the new tsar. (For more details, see Chapter 30).

The Law of the Principality of Muscovy

In Chapter 1, certain general ideas on law, medieval law, and legal history, determining the approaches adopted in the following chapters, were outlined. A few additional remarks, specifically concerning the law of the Muscovy era, are made here. In the 19th century and until the present day, the dominant approach among legal historians, the Russians being no exception, has been to apply the dominant modern views on law and legislation, and on the organization of the legal system, to the description and analysis of legal systems of the past. In this work, instead, a pragmatic rather than dogmatic concept of law has been adopted and on this basis the sources and materials offered by the historical period itself have been examined. Russian law from the prehistoric period largely escapes investigation by reason of the absence of information. Materials from the earliest historical period merely allow us to sketch a few lines concerning the Zakon Russkii (the customary law of the Russians) preceding the Russkaia Pravda, Russia’s earliest written law. The 11th and the 12th centuries, the actual Kievan period, were for all practical purposes the formative era of medieval Russian law when law (as viewed in this work) began to appear here and there in Kievan society. The political and legal unity of the Kievan realm was already falling apart in the course of the 12th century, when at the same time the legal system which had begun to take shape in the 11th century was reaching greater maturity. The latter process continued in the following centuries, accompanied by a certain amount of diversification in the virtually independent principalities.

Introduction

719

With the ascent of Moscow, a new situation arose, characterized by four factors distinguishing Muscovy law from the law of the preceding period (the independent principalities). First, the imposition of the rule of the Moscow grand prince represented to some extent a return to the political unity of the Kievan realm (a consideration of which the rulers of Muscovy were keenly aware). Secondly, unification of the legal system was an almost inevitable concomitant of the new political unity. Thirdly, this legal system needed far greater sophistication than the relatively simple arrangements suitable for Kievan Russia and the numerous principalities which had succeeded it. And, fourthly, political developments in Muscovy had favoured the emergence of the predominant position of the monarch, in relation to the other principal political actors. These factors have to be kept in mind when one attempts to identify the sources of law in the Muscovy era. In line with the approach adopted in the first part of this work, we shall first engage in a survey of the sources of the law, and then enter into a discussion of the substance of the law. The concept of “sources of law”, especially in a medieval context, and the effect of such an understanding on the method of analyzing and describing medieval and more generally pre-modern law, has been elucidated at length in Chapter 2 and it will be sufficient to refer to these texts. Perhaps the most basic and down-to-earth observation is that in dealing with pre-modern law our sources are not only more limited than those concerning modern law, but that these sources are usually also defective. While a modern legal system is, at least in theory perfectly knowable (we have complete collections of the full statutory material, of the practice of the courts, and of legal literature at our disposal), pre-modern legal sources are always incomplete and often we do not know what we do not know. Two of the most important sources of medieval Russian law, for instance, the Court Charter of Pskov and the Code of Ivan iii of 1497, have come down to us in a single copy, more or less by chance. The period reviewed in the present part of this work covers the era between the Law Code (Sudebnik) of Ivan iii of 1497 and the Council Code (Sobornoe Ulozhenie) of 1649 of tsar Aleksei Mikhailovich, which marked an entirely new stage in the history of Russian legislation. The Sudebnik of 1497 of Ivan iii can be seen as a legal gateway: the road of earlier legal developments leads up to it, and it is the beginning of a new road. During the reign of Ivan’s son Vasilii iii the rounding off of the Muscovy territory was completed, and then under Ivan iv Groznyi, whose actual reign started in 1547, the work of bringing the legal system to a level required by the new circumstances was begun in earnest.

720

chapter 23

The surfeit of drama and horror surrounding the almost 37 years of the reign of Ivan iv and the sorry state of Muscovy which he left to his insignificant son Fedor in 1584 obscured the achievements of the first dozen years of this first tsar of Muscovy, achievements which especially affected the law. The impact of the numerous reforms introduced in this period far exceeded the changes brought about during the long reign of the tsar’s grandfather, Ivan iii; only the great wave of legislation under Peter the Great during the first 25 years of the 18th century had an even greater effect. The manner of conducting government business in Muscovy had grown out of the simpler arrangements of the past, when the prince would sit in his hall in the morning and, surrounded by his retainers, would deal with matters as they presented themselves: requests for favours and grants, disputes between important people, military affairs, dealing with wrongdoers, etc. There were still many traces of these arrangements in the practice of the Muscovy government. The tsar, in the fullness of his power, could decide matters on his own, and grants and favours to monasteries or individuals were normally made in the form of a zhalovannaia (grant charter) by the tsar (or before him, the grand prince) himself. In matters of importance it would often be opportune to act in concert with an inner circle of counsellors. In Chapter 31 the Boyar Duma was described as an informal group of prominent members of the court, without a fixed composition or a clear mandate. In Muscovy, the tsar’s council would usually, apart from a few trusted boyars, also include okol’nichie (the next rank after boyars), so-called Duma nobles (dumnye dvoriane, from the lower nobility), and Duma clerks (dumnye d’iaki). This council would sometimes act on its own, presumably in cases where the monarch for some reason did not want to be directly involved (routine matters, less important issues, civil and criminal cases, the elaboration of questions which had already been agreed in principle, etc.). When government business became increasingly complex, a further division of labour took place, in which certain topics were assigned to special ­departments (prikazy), each usually headed by a prominent boyar. These ­departments would in time also act on behalf of the government, in other words, issue general regulations concerning their area of competence (legislation), act as a judicial body for disputes arising within this area or for punishing offenders, and engage in various executive activities. The legislative activities of the prikazy were cloaked in the form of ukazy or prigovory of the tsar alone, the tsar and his boyars (the Boyar Duma) together, or the boyars (the Boyar Duma) alone. Very occasionally, when decisions of the highest importance were to be ­taken, a way to involve the most politically significant sectors of the p ­ opulation

Introduction

721

was devised.1 This would include the Church (represented by the metropolitan/ patriarch, the bishops and abbots: the Holy Council), the great nobles (boyars), middle-rank court officials and the secular landowners (the lower nobility or gentry), representatives from the urban merchants, etc. As this assembly became more institutionalized, it came to be known as the “Land A ­ ssembly” (Zemskii Sobor). An ad hoc joint meeting of the Church’s Holy Council and the boyars (the Boyar Duma) in 1549, in which the drafting of a new and comprehensive law code (the future Code of 1550) was approved, is generally regarded as the first manifestation of the emergence of the Zemskii Sobor. During the Time of Troubles (1598–1613), when there was often no effective government by a tsar, the Zemskii Sobor acted as the default ruler of the country. The acts of the Land Assembly, acting in concert with the tsar, were normally designated as ulozhenie, from the verb ulozhit’ (to lay down, to establish), for which no single translation is appropriate. The Ulozhenie of 1649 was a genuine code, but, for instance, the decree (ulozhenie) of 1607 of tsar Vasilii Shuiskii on peasants and slaves was a short enactment, prompted by persistent unrest among the dependent rural population.2 Most Land Assembly decisions were known as prigovory (decrees). A number of decisions affecting the legal position of the Church and especially the estates of monasteries was issued in the shape of council decrees (sobornyi prigovor), involving the tsar himself and the Holy Council, and, ­occasionally, the boyars as well.3 Decisions of the tsar alone were designated as ukazy (“decrees”, but more precisely “directives”), because the standard formula, at least in later years, was Velikii gosudar’ ukazal (“the Great Lord directed”). Joint decrees (prigovory) of the tsar and his boyars (the Boyar Duma), generally concerning more important matters, were preceded by the words Velikii gosudar’ ukazal i boiare prigovorili (“The Great Lord directed and the boyars decided”). Decisions of the boyars (the Boyar Duma) were also known as prigovory, which in modern Russian would mean “judgments”, but in Muscovy practice embraced all kinds of decisions, even the adoption of legislation. Beyond the various and numerous legislative texts mentioned above there were thousands of other documents relevant to an understanding of the law of the Muscovy era. First of all, there is quite a number of judgment charters (pravaia gramota or pravyi spisok) illustrating the practice of the courts, almost all of them in cases which we would designate as civil cases. Then there is a mass 1 A typical example would be the election of tsar Boris Godunov in 1598, PRoP III/2, 225–228. 2 prp iv, 586–589; zarg No.57, 75–76. 3 Several examples in the section on land ownership by the Church in Chapter xxxvi.

722

chapter 23

of legal documents (gramoty, charters) of all kinds, which have been described extensively in Chapter 11. In that description we disregarded the chronological boundary of Part 1, the Code of Ivan iii of 1497.4 While all other sources discussed in the first sections of both Part 1 and Part 2 can be connected with certain dates, the great mass of individual charters presents a continuum, running across the year 1497. Dealing separately with charters from before and after that year would lead to unnecessary duplication. In all of this it has to be kept in mind that the modern, strict distinction between legislative acts, executive or administrative decisions, and judicial decisions cannot be applied to the governmental practice of Muscovy. A decision of the tsar was to be regarded as an expression of the law; its format was of secondary importance. The Published Sources With regard to the written sources of the law of the Muscovy era, the situation is much more straightforward than in the foregoing era of Kievan and Medieval Russia. The grand prince of Muscovy and subsequently the tsar constituted the supreme source of law. As the administration of the state became more complicated, a more complex system of agencies with legislative and legal functions arose, but all of them operated in the name of the tsar and on the basis of his directives. Decisions and decrees of more than trivial importance would have been in writing and copies were kept in the various government departments, housed in the vicinity of the tsar’s residence in the Moscow Kremlin. Much has been lost, especially in the great fires of 1611, 1626 and 1812, but the surviving body of documents offers a consistent and fairly comprehensive narrative of the legislative history of the period. The main components of this body of documents will be discussed in separate Chapters (24–29), devoted to the law codes of 1550, 1551, 1589, 1606–1607 and 1649, to the various so-called statute books of the departments (prikazy), and to the decisions of the Land Assembly. Beyond these major landmarks there is a considerable treasure of shorter enactments, almost all of them dating from the beginning of the reign of Ivan iv to the enactment of the Code of Aleksei in 1649.

4 “Although the first part of this work is devoted in principle to the period preceding the enactment of the Code of Ivan iii in 1497, this cut-off date cannot be applied too strictly to the topic of charters. The life of the law in Russia continued after 1497 much as it had done before and the major collections of Russian charters usually run on into the 16th century or even the 17th century. All in all, the emphasis will be on the mass of 15th and 16th century charters.”

Introduction

723

Of the basic academic publications of historic Russian legislation (prp, rz and PRoP), the Pamiatniki Russkogo Prava offer a good and annotated edition of a considerable number of the more important enactments. The best collection is undoubtedly the volume on “Legislative Acts of the Russian State of the Second Half of the 16th and the First Half of the 17th Century”, published in Leningrad in 1988 under the general editorship of N.E. Nosov. It contains 345 items, from 1550 to 1649, including almost everything to be found in prp and other collections.5

The Reforms of Ivan iv

We explained earlier why the Sudebnik of Ivan iii of 1497 has been taken as the border post between the early period of the history of Russian law, what might loosely be identified as the “Middle Ages”, and the period of Muscovite Russian law, which culminated in the Ulozhenie of tsar Aleksei of 1649. The Muscovite era ended with the ascent to the throne of Peter the Great in 1689, but where legal history is concerned the Ulozhenie is a better cut-off point, because the entire volume of Russian law from 1649 on was collected, digested and consolidated in the 19th century in the Complete Collection of Laws (Polnoe Sobranie Zakonov) and the shorter Collection of Laws (Svod Zakonov), based on it. As related above, the first half-century after the adoption of the Code of 1497 was a relatively quiet period in the development of Russian law; the attention of the grand princes (Ivan iii died in 1506 and his son Vasilii iii ruled from 1506 until his death in 1534) was directed mostly towards safeguarding external security and dealing with the most urgent problems of the vastly expanded Russian territory. Large-scale legal reforms were undertaken during the first 10–15 years of the reign of Ivan iv, who was only four years old when his father died, and who was crowned tsar in 1547, at the age of 16. Within a remarkably short period a general law code was drafted and enacted (the Sudebnik of 1550); a similar code of church law (the Stoglav) followed the next year; local government was radically restructured (the zemstvo reforms); ­central ­government was greatly expanded (the organization of the prikazy); the Land Assembly (Zemskii Sobor) came into being as a body representing the most influential estates (Church, boyars, gentry, merchants, etc.); local communities and their 5 N.E. Nosov (ed.), Zakonodatel’nye akty Russkogo gosudarstva vtoroi poloviny xvi – pervoi p­ oloviny xvii veka. Teksty, Leningrad, 1988 (abbreviated zarg). There is a companion volume with comments (same title, but Kommentarii instead of Teksty), edited by Nosov and V.M. Paneiakh, Leningrad, 1987.

724

chapter 23

elected officers were entrusted with first-line responsibility for certain law enforcement functions (the guba reforms). There were also major reforms in the fiscal regime, including attempts to reduce the impact of immunities (tarkhany). It is not primarily the task of the legal historian to sketch the political and socio-economic background of legal reforms, the more so since in the case of the reforms of Ivan iv this topic has been treated in much detail by several general historians. But an awareness of the main features of such a background will unquestionably be helpful for a better understanding of the intentions of the legislators. A preliminary issue that arises in this respect is the relevance of the personality of Ivan iv himself. Two points are worth making. One is that the attempt to write him out of the story altogether is bound to fail. In the famous debate about the correspondence between Ivan iv and prince Kurbskii the argument has been put forward that Ivan iv was in fact a dim-witted, weak and ineffective ruler, to whom the authorship of the two letters to Kurbskii cannot be ascribed, letters which moreover must be regarded as forgeries. Whatever view one takes about the authenticity of the correspondence, the evidence of foreign visitors to the court of Ivan iv is unanimous in describing the first tsar as a forceful and intelligent monarch; and then there is also abundant domestic material to shore up this view. The second point, going in the opposite direction, is that there is also sufficient evidence to show that “the reforms of Ivan iv” started to some extent before he was born, were energetically pursued by the people who ran the government when he was a child, and, for the first decade of his actual rule, were to be credited primarily to the highly competent circle of advisors surrounding him, the so-called Chosen Council (Izbrannaia Rada), led by Aleksei ­Adashev. The son of Fedor, a wealthy member of the lower nobility who rose to the high rank of okol’nichii in the court of Ivan iv, Aleksei was recruited in 1547 by Sil’vestr,6 the spiritual advisor and confessor of the young tsar, to become part of the small team of intimate councillors at the court. Adashev is believed to have played a central and decisive role in the drafting of the Sudebnik of 1550. Of the leading pre-1917 historians, Kliuchevskii treated the different components of the early reforms of Ivan iv quite extensively in separate chapters, but failed to offer a comprehensive view. The Soviet era produced serious works, but these were to some extent hampered by an ideologically imposed framework: the era of Ivan iv and the successive regimes had been authoritatively (by Lenin) characterized as the period of the “monarchy with representation 6 At least according to Karamzin, viii, 63.

Introduction

725

of the estates” (soslovno-predstavitel’naia monarkhiia), an intermediate period between the ‘feudal’ period of the independent principalities and the period of the absolute monarchy (under Peter the Great and his immediate successors). This created an irresistible temptation for authors to look for what they were supposed to find and to disregard or misrepresent what could not be fitted into the framework. Nevertheless, the works on this period by outstanding scholars such as Nosov, Smirnov, Zimin and Skrynnikov overcame this handicap in most respects and retain their value.7 Two prominent ideas emerging from these and other works deserve to be highlighted. One is that it is probably futile to search for some over-arching policy which could explain the broad reach of the reforms of the period ending in 1560. There were numerous protagonists, all with their own interests and plans: the tsar, his entourage, the leading boyar families, the metropolitan and other bishops, the monasteries, the lower service nobility, the merchant class, and, with the exception of the tsar himself, all these parties were not homogeneous themselves and often consisted of rival factions. The policies that arose and were implemented were thus the result of ad hoc compromises between permanently shifting alliances, instead of the expression of a coherent and comprehensive view of the political and socio-economic situation of Muscovite Russia.8 A second factor to be considered is that the external policies of Russia were inextricably bound up with the internal reforms. Throughout these years Muscovite Russia was fully engaged in a struggle for its existence, surrounded by neighbours no less ambitious at the international level than Muscovy itself. If Muscovy could with some exaggeration be described as a war machine under the guise of a state, then this was not the result of an entirely free decision of its rulers. 7 What I have in mind especially are I.I. Smirnov, Ocherki politicheskoi istorii Russkogo gosudarstva 30-50-kh godov xvi veka, Moskva/Leningrad, 1958; A.A. Zimin, Reformy Ivana Groznogo, Moskva, 1960; N.E. Nosov, Stanovlenie soslovno-predstavitel’nykh uchrezhdenii v Rossii. Izyskaniia o zemskoi reforme Ivana Groznogo, Leningrad, 1969; R.G. Skrynnikov, Ivan Grozny, Moskva, Moskva, 1975. 8 Nosov, in the Preface to his study (p. 4), noted that he had called it Stanovlenie … and not Ustanovlenie …, what could perhaps have been expected, implying a diffuseness and incompleteness of the process. The translated title at the back of the title page said correctly “The Rise of the Elective Estate Institutions in Russia”, and not “The Establishment of …”.

Section 1 Sources

∵

chapter 24

The Code (Sudebnik) of Ivan iv1 of 15502

Introduction and Historiography

The Sudebnik of Ivan iv of 1550, also known as the Tsarskii Sudebnik (“the Tsar’s Code”), was the centrepiece of a wave of legal and political reforms which marked the early years of the reign of this prince. The church code known as the Stoglav and the numerous local government charters were other major components of these reforms and will be discussed in the following chapters.3 Modern scholarship about the Code (Sudebnik) of 1550 started with its rediscovery by Tatishchev in 1734.4 Several (manuscript) copies of the Code came to light during the remainder of the 18th century.5 At present, more than 40 copies are extant, most of them from the period between 1550 and 1649 (the Ulozhenie of tsar Aleksei).

1 Ivan iv is usually referred to as Ivan the Terrible. I shall avoid the epithet, for several reasons. Although Ivan’s conduct during the later part of his reign would justify it in the opinion of most people, it seems sensible to refrain from using a term which implies condemnation. Secondly, the Russian term of which “Terrible” is just one possible translation, is rendered more appropriately as “Awe-Inspiring” or “Stern” (compare the name of the capital of Chechnia, Groznyi, founded as the Russian fortress Groznaia in 1818 during the Russian campaigns in the North Caucasus). 2 The principal modern text editions of the Sudebnik of Ivan iv are: • B.D. Grekov (gen’l. ed.), Sudebniki xv–xvi vekov, Moskva/Leningrad, 1952, 141–177 (comments by B.A. Romanov, 181–340; text editor: S.N. Valk); • prp iv, 233–261 (comments by A.G. Poliak, 261–350); • rz ii, 97–128 (comments by S.I. Shtamm, 128–177); • PRoP III/1, 45–61 (introduction by N.G. Anan’eva, 26–44) English translation in H.M. Dewey, Muscovite Judicial Texts 1488–1556, Michigan Slavic Materials No.7, Ann Arbor, 1966, 47–74. 3 The standard work on Ivan’s reforms is A.A. Zimin, Reformy Ivana Groznogo, Moskva, 1960 (not available to me). 4 This text was published by G.F. Miller (Sudebnik Gosudaria Tsaria i Velikogo Kniazia Ioanna Vasil’evicha i nekotorye sego gosudaria i blizhnikh ego preemnikov ukazy, sobrannye i primechaniiami iz”iasnennye pokoinym tainym sovetnikom i astrakhanskim gubernatorom Vasil’em Nikitichem Tatishchevym, Moskva, 1786). It was also used by M.F. Vladimirskii-Budanov in his Khrestomatiia po istorii russkago prava, ii, Kiev, 1915 (5th ed.), 117–180. 5 The first printed book in Russia appeared in Moscow in 1563 (Ivan Fedorov, printer).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_025

730

chapter 24

With the oldest legislative sources of Russia, the Russkaia Pravda and the Church Statutes of Vladimir and Iaroslav, the large number of copies and the very considerable differences between individual copies and groups of copies made the search for the most correct text, the one that is presumably closest to the original protograph, one of the major scholarly challenges. This problem hardly arises in the case of the Code of 1550, because it can easily be established which copies are the most reliable, and the differences between them are insignificant. Most publications use one of two copies, both made very soon after the promulgation of the Code in 1550, and these two copies are very similar.6 As early as 1819, P.M. Stroev and K.F. Kalaidovich published a very satisfactory text of the 1550 Code on the basis of a comparative study of the then available copies; this text was published together with the only available text of the Code of Ivan iii of 1497, which had been discovered by Stroev two years earlier.7 During the pre-1917 era, there were several studies devoted to the 1550 Code,8 but the leading authors paid little attention to it. Kliuchevskii mentioned it more or less in passing in the context of his discussion of the first years of government of Ivan iv.9 Most authors dealt with it briefly, regarding it mainly as an updated version of the Code of 1497.10 During the Soviet era, several important publications contributed to a better understanding of the Code of 1550, although often distorted by the obligatory and inevitable Marxist-Leninist perspective.11 For many years the debate 6

The question of selecting the best copy is discussed extensively in the Introduction to the Code of 1550 in the Academy of Sciences edition, 112–131 (B.N. Grekov, gen’l. ed., Sudebniki xv–xvi vekov, Moskva/Leningrad, 1952). This edition used the copy (No.228) from the Likhachev Collection in the Leningrad section of the Institute of History of the Academy of Sciences. This text was then taken over in rz ii (97–120) and in PRoP III/1 (45–61). prp iv (233–261) used the copy (No.823) of the Undol’skii Collection in the State Lenin Library, considered to be less defective by A.G. Poliak, responsible for the introduction and commentary to the Code of 1550 in this volume. 7 K.F. Kalaidovich, P.M. Stroev, Zakony velikogo kniazia Ivana Vasil’evicha i Sudebnik tsaria ­Ioanna Vasil’evicha s dopolnitel’nymi ukazami, Moskva, 1819. 8 See the extensive and most recent historiographical survey by N.G. Anan’eva in PRoP III/1, 26–38, and an older survey by S.I. Shtamm in rz ii, 34–54. 9 Kliuchevskii, Kurs, Lecture xl. 10 E.g. S.F. Platonov in his chapter on the reign of Ivan iv, in the section on the years 1550–1554 (Lektsii po russkoi istorii, many editions and reprints); D’iakonov, 217–220; Vlad.-Bud., Obzor, 229–231. 11 See esp. Anan’eva’s apposite comment (op. cit. supra, 30): “After the revolution of 1917, new methodological foundations for legal history were adopted in the country, which were aimed at revealing that law and its evolution were conditioned by class. As a

The Code of Ivan iv of 1550

731

was dominated by two major figures, I.I. Smirnov and B.A. Romanov. Smirnov’s long paper in 194712 prompted a reaction by Romanov,13 and a few years later Romanov further elaborated his views in his commentary to the Code in the Academy of Sciences edition of the Codes of the 15th and 16th centuries.14 In the post-Soviet period, Anan’eva’s comments and introduction to the Code of 1550 have been mentioned above. These were followed by a discussion of the sources of the Code and its general character.15

General Historical Background and Character of the Code

The Code of 1550, like its predecessor of 1497, started with a long heading, ­almost a short preamble: “In the year 7058 [1550] the tsar and grand prince Ivan Vasil’evich of All Russia, together with his brothers and boyars, laid down this Code: How boyars and okol’nichie and dvoretskie and treasurers and clerks and all prikaz officials, and urban and rural lieutenants and stewards and all [other] judges are to administer justice”.16 The drafting process and the adoption of the Code of 1550 have been much debated among Russian historians, because even if one accepts the old and rather minimalist view that the 1550 Code was just an updated version of the 1497 Code, it is obvious that the latter text had been subjected to very significant editorial review. The preamble expressed this in its last sentence, where it made clear that the Code envisaged administration of justice in all its forms. The Code of 1497 had combined two more limited pieces of court legislation, that of boyars and okol’nichie, and that of urban and rural lieutenants, but was silent on other officials with judicial responsibilities.17 r­ esult, [a number of] studies appeared in Soviet times which artificially exaggerated the ­development level of class consciousness of the contemporaries of the Code of 1550 and attempted to establish manifestations of class struggle even in relationships which objectively had nothing to do with the relations between classes.” 12 I.I. Smirnov, “Sudebnik 1550 goda”, Istoricheskie Zapiski, No.24 (1947), 267–370. 13 B.A. Romanov, “Sudebnik Ivana Groznogo (po povodu issledovaniia I.I. Smirnova)”, Istoricheskie Zapiski, No.29 (1949), 200–235. 14 B.D. Grekov (gen’l. ed.), Sudebniki xv–xvi vekov, Moskva, 1952, 181–340. 15 Anan’eva, op. cit., 38–44. A short textbook on the Code of 1550 appeared in 2015: M.V. F­ edorov, Sudebnik 1550 g.: uchebnoe posobie, Moskva, 2015. 16 For a discussion of the duties of the various officials named in the preamble, see rz ii, 130–131. 17 If one accepts the dominant view that the last words of the 1497 preamble (“how boyars and okol’nichie are to administer justice”) did not actually belong to the preamble, but

732

chapter 24

The other differences between the 1497 and 1550 preamble formulas flowed from the different dynastic conditions. Ivan iii was said to have conferred with his children and boyars; he had five sons in 1497. Ivan iv was 20 years old in 1550, married but still childless, had been crowned tsar in 1547, and had one brother (Iurii, prince of Uglich, *1533) and several uncles and cousins. A significant parallel between the two formulas was the absence of the metropolitan and other church dignitaries. The adoption of the 1550 Code was only one of the major politico-legal events of the early years of the reign of Ivan iv.18 He had succeeded his father Vasilii iii at the age of four, upon the latter’s death in 1534. For the first few years the regency had been assumed with considerable success by his mother, Elena Glinskaia. After her death in 1538 prominent boyar clans, such as the Glinskii, Bel’skii, and Shuiskii princes and the Vorontsovs, competed with each other for government power, until Ivan officially took over at the age of 16 when he was crowned tsar on 16 January 1547 (he was born on 25 August 1530). One month later he married Anastasiia Iur’eva-Zakhar’ina, daughter of Roman and half-sister of Nikita, the ancestor of the Romanov dynasty. One of the young tsar’s first important actions reported in the chronicles was an address to a joint meeting of the Church council (the Holy Council) and a council of leading boyars on 27 January 1549, in which the boyars were reproached for having oppressed the lesser nobles (the deti boiarskie) and the peasants. Two days later the tsar and the councils decided that henceforth the deti boiarskie would be exempt from the jurisdiction of the provincial lieutenants, except in the most serious criminal cases.19 (This event is often regarded as the first appearance of the Zemskii Sobor, the Land Assembly.) The credit for the innovative policies of the first years of the reign of Ivan iv is to be attributed chiefly to the Izbrannaia Rada (“Chosen Council”), an informal inner circle of advisors, which emerged after the riots in Moscow which followed a devastating fire in 1547. The central figure of this circle was A.F. Adashev, a highly capable scion of the minor nobility, who was the virtual ruler of constituted the heading of art. 1, the first provision of the first part of the Code, which dealt with the courts of boyars and okol’nichie. 18 For a long time it was assumed (e.g. by Vladimirskii-Budanov in his Obzor, 229) that some time between the Codes of Ivan iii and Ivan iv a third sudebnik had existed (of Vasilii iii, son of Ivan iii and father of Ivan iv). The assumption was ultimately refuted by I.I. Smirnov in his 1947 study (op. cit. supra), although A.G. Poliak still regarded the question as unsolved in 1956 in his comments in prp iv, 231. The existence of a code of ­Vasilii iii does not seem to have any supporters anymore; cf. Anan’eva, op. cit., 31. 19 See prp iv, 575–576 (text), 590–592 (comments), cited from S.O. Shmidt, “Prodolzhenie khronografa redaktsii 1512 goda”, Istoricheskii Arkhiv, T.VII, 295–296.

The Code of Ivan iv of 1550

733

Russia until he fell into disgrace in 1560. The plans for reform were outlined by Adashev in a list of questions addressed by the tsar to the metropolitan in January 1550.20 The adoption of the Code in June 1550 was the next major step; but, as noted above, this was not effected by a resolution of the Land Assembly (which included at least the leadership of the Russian Church), but by the tsar, together with his “brothers” and boyars. Although the details of the Churchstate ­relationship in Russia during these years are not entirely clear, there were obvious tensions. These were also connected with internal problems in the Russian Church concerning monastic and ecclesiastical landowning between the followers of Iosif Volotskii and Nil Sorskii. Adashev did not succeed in drastically curtailing such landowning, but in a resolution of 15 September 1550, drafted as a statement by the metropolitan to the tsar, further extension of church ­jurisdiction and landowning was prohibited (see further the section on church ownership of land in Chapter 39).21 The Church’s approbation of the 1550 Code was secured the next year, in connection with the adoption of the Stoglav (see Chapter 25). In his address to the assembly deliberating the Stoglav, Ivan stated that he had laid down a Code (Sudebnik) the year before and that he was now submitting this Code for the assembly’s inspection, approval and signature.22 This brief summary of several politico-legal events of the first few years of the reign of Ivan iv points to a few general features which may help in elucidating the character of the Code of 1550. They suggest, first of all, that there were different interest groups whose support or at least acquiescence was relevant: the Church, boyars, and small landowners (lesser nobility). Secondly, a certain degree of tension between the tsar and his close collaborators on the one hand and the leading boyars on the other was undeniable. This was understandable, in view of the dominant role of boyar clans during Ivan’s minority. But beyond this factor rooted in the tsar’s personal experiences was the more general tendency towards centralization, observable in other late medieval European states, where the ruler had to search for a counterweight against the power of great magnates. In Russia, the lesser nobility, the small landowners, would be an obvious ally. The Russian Church, as a separate section of the political spectrum, did not represent a monolithic body at the time, when there were fundamental disagreements between theological currents, as well as practical 20 See prp iv, 576–580 (text), 592–595 (comments). 21 See prp iv, 580–581 (text), 595–596 (comments); zarg No.3, 30. 22 Text of the relevant part of Ivan’s address in Romanov’s commentary to the Code of 1550, B.D. Grekov (gen’l. ed.), Sudebniki xv–xvi vekov, 181.

734

chapter 24

divergences between the interests of the Church leadership and the powerful monasteries. In some ways the Church would be an ally of the tsar, in other ways a competitor, as the policies of the state began to demonstrate secularizing tendencies. The final outcome was that the initiatives towards centralization and legal unification as embodied in the Code of 1497 were taken up and reinforced, as expressed in no uncertain terms by the tsar in his allocution to the Stoglav assembly. The question of the personal input of the tsar himself in these developments is part of the wider problem concerning the personality of Ivan iv. This is of no direct relevance to legal history, but it does not do any harm to keep it in mind. Against the dominant judgment of contemporaries and historians, viewing Ivan as a forceful and talented (albeit increasingly unbalanced and ultimately insane) ruler, who exercized a decisive influence on the course of Russian history, there is the seriously argued minority opinion that he was in fact a weak and incompetent prince whose policies were determined by the able, ambitious, and usually unscrupulous people constituting his ever-changing inner circle.23 But beyond this problem one may readily concede that there is also some justification for the traditional Marxist view that it is not personalities who determine the course of history, but deeper and more comprehensive factors. The political re-unification of the Russian lands had been more or less rounded off under Ivan iii and the Code of 1497 was one of the expressions of this accomplishment. This then prompted new political and socio-economic developments which half a century later necessitated further adaptations of the legal system.

The Contents of the Code of 1550

The Code of 1550 is the first major piece of legislation where the numbering of the provisions is contained in the text itself. The number is 100, although it is often assumed that art. 100 was added soon after the adoption of the Code itself.24 This provision, further curtailing the jurisdictional rights of apanage princes, was obviously based on the Zapis’ o dushegubstve (usually referred to as the Homicide Law of Vasilii iii), a law immediately preceding the Code of 1497.25 23 24 25

See for a longer discussion of this issue: R.O Crummey, The Formation of Muscovy 1304–1613 (Longman History of Russia), London/New York, 1987, 143–147. Cf. Romanov, op. cit., 338–340; prp iv, 340–341; rz ii, 172–173. The same position had been taken already by Tatishchev. See the section on the Zapis’ o dushegubstve in Chapter 9.

The Code of Ivan iv of 1550

735

The importance of numbering is first of all in separating and identifying the individual legislative items. The absence of numbering in earlier legislation gave rise to endless discussions about which pieces of text formed a logical entity and where a new topic started. Secondly, numbering, and especially the round number of one hundred, demonstrated that the numbered text constituted an entity conceived as a more or less consistent whole, rather than an accumulation of diverse texts (as in several legislative texts from the past). ­Finally, numbering protected the integrity of the original text, because inserting new text or removing old text (as often happened, for instance with rp texts and the old church statutes) was made more difficult. The last problem was addressed by one of the last provisions of the Code, art. 98, to be discussed below. Our analysis of the Code of 1497 indicated that it consisted of an amalgamation of several series of provisions, each probably derived from earlier legislation, with the addition of a number of smaller groups of provisions and of more or less isolated individual provisions. The main elements were the decree on the courts of boyars and okol’nichie, the decree on the courts of urban and rural lieutenants (namestniki and volosteli), and the decree on bailiffs (nedel’shchiki). A prominent characteristic of the drafting technique was the associative approach: what a modern legislator would consider a logical and proper sequence of provisions was often interrupted by the 15th century draftsman going off on a tangent. Criminal law, for instance, was treated in several places in the 1497 Code. Very little is known about the actual drafting of the 1550 Code, but an examination of the text reveals an approach significantly different from the one taken in 1497. The Code of Ivan iv was drawn up as an integral text. At the same time it was viewed by the drafters themselves as an updated version of the Code of Ivan iii, as was expressed in the tsar’s allocution to the Stoglav assembly in 1551 where he described his new Code as a corrected version of the Code of his grandfather.26 The combination of these two factors (i.e. the 1497 Code as the starting-point, and the creation of a comprehensive and integrated regulation of the administration of justice) resulted in the breaking up and recombination of the constituent parts of the Code of 1497. Still, almost the entire Code of 1497 returned in the new Code, although little of the original sequence remained (the only missing provisions are arts. 44 and 47).27 26 27

Text in Romanov, op. cit., 181. Grekov (gen’l. ed.), Sudebniki xv–xvi vekov, 610–615 provides full comparative tables of corresponding provisions of the Codes of 1497, 1550 and 1589. A shorter table in prp iv, 345–347.

736

chapter 24

The remaining provisions from the 1497 Sudebnik were not only extensively reshuffled but often also heavily amended and expanded. Then there were 39 completely new provisions.28 One of the results of these operations was that the 1550 Code looked much less like a list of fees than its 1497 predecessor. The dominant drafting technique, still far from modern usage, was sliding from one subject into another. The Code started with a series of general provisions. Art. 1 demanded fairness from judges: bribes, personal favours or disfavours (personal vendettas) were strictly forbidden. Arts. 2 and 3 belonged together: a judge who intentionally (having been bribed) delivered a wrong decision was to pay a threefold (as against the sum at issue) fine and could be subject to further punishment (art. 3); a judge who delivered a wrong decision in error (good faith) was not fined, but the decision was to be overturned (art. 2). Arts. 4 and 5 then dealt with clerks taking bribes and art. 6 protected all judicial personnel against false allegations by ordering lying parties to be flogged. Art. 7 regulated in considerable detail the prevention of judges refusing to deal with cases put before them. Art. 8 contained the basic regulation of fees for judges and all other judicial personnel. As the judicial duel was one of the main procedures for producing evidence (along with the oath, the “kissing of the Cross”, krestnoe tselovanie), opting for a duel and then becoming reconciled was a major way of avoiding court fees. This explained the location of art. 9, devoted to this subject. But while the corresponding art. 4 (1497) was followed by three more elaborating provisions (arts. 5–7) and then continued with a series of provisions on serious criminal offences, the authors of the Code of 1550 ostensibly decided to have all rules on duels together here (arts. 9–17 and 19). Having dealt with duels, the legislator then resumed his treatment of general questions of procedure: refusal to testify as a witness (art. 18), how to deal with cases against several defendants together (arts. 20–21), and, as a special form of the latter situation: actions against urban or rural lieutenants, together with their agents (arts. 22–24). Other general topics (such as legal actions by foreigners, unfinished cases, etc.) were covered by arts. 25–31. In arts. 30 and 31 the bailiff (pristav) played a prominent role, and this probably induced the drafters to insert a new version of art. 33 of the Code of 1497 into the Code of 1550 as art. 32. This provision specifically forbad bailiffs to solicit bribes for themselves or on behalf of judges and other court personnel. The simple prohibition from 1497 was much strengthened by the threat of the public flogging (torgovaia kazn’) of the bailiff. Art. 32 (1550) used the same term 28

The calculations add up, because several provisions from the 1497 Code were merged in the 1550 Code.

The Code of Ivan iv of 1550

737

as art. 33 (1497), nedel’shchik, for bailiff. Scholars had usually assumed that the terms pristav and nedel’shchik were more or less synonymous.29 Pristav may have had a slightly more general meaning: bailiff, constable, court officer in charge of various executive duties, while nedel’shchiki were at least originally court officers who worked in teams and in weekly shifts (nedelia, “week”). From art. 34 on, up to art. 54, the Code of 1550 followed the sequence of its predecessor (arts. 15–36), with a few exceptions. These provisions dealt with various activities of the court of the grand prince (tsar) and other higher courts (of boyars, okol’nichie and others), as well as with the duties of the nedel’shchiki (the original decree on nedel’shchiki was in arts. 30–36 of the Code of 1497). Art. 46, on the riding-fees (ezd) to which bailiffs were entitled when travelling to sixty different towns, offers a clear picture of the territorial applicability of the Code; this provision represented an updated version of art. 30 of the Code of 1497. Art.54 corresponded with art. 35 of the Code of 1497, instructing the bailiff about what to do with thieves in his custody. The following provisions (arts. ­56-61) then took up the topic of theft and other serious crimes (regulated mostly in the beginning of the Code of 1497). This again illustrates the practice of the 1550 drafters to slide from one topic to another. The small number of provisions of the Code of 1497 on the courts of urban and rural lieutenants reappeared scattered through the latter part of the Code of 1550 (arts. 48, 60, 62, 64, 67, 71, 75 and 77), together with a range of new provisions dealing with such courts (arts. 63, 66, 68–72, 74–75). Of special interest are arts. 68, 69 and 72, mentioning the obligatory participation of elders (starosty) and ‘trusted persons’ (tseloval’niki, lit. “persons who had kissed the Cross”) in the courts of lieutenants. Such people had already made an appearance in art. 12 of the Code of 1497 as character witnesses against a person suspected of being a thief (a much expanded version of this provision returned as art. 58 in the Code of 1550). This form of popular participation in the administration of justice was part of a wider government policy to engage especially the rural population in the task of fighting robbery and theft in thinly populated regions. The main expression of this policy was the numerous gubnye gramoty which, beginning in 1539, granted the people of

29

Cf. for instance Cherepnin’s translation of the Code of 1497 into modern Russian in prp iii, 357–374. According to S.N. Kisterev, the terms nedel’shchik and pristav were more or less interchangeable, but nedel’shchik had a more recent origin; S.N. Kisterev “Nedel’shchik xv–xvi vv.: proiskhozhdenie termina”, A.Iu. Dvornichenko (ed.), Issledovaniia po istorii srednevekovoi Rusi. K 80-letiiu Iuriia Georgievicha Alekseeva, Moskva/Sankt-Peterburg, 2006, 127–139.

738

chapter 24

specific districts and regions the right to elect their own elders and trusted people to try brigands. This topic will be dealt with in Chapter 33. Art. 76 is one of the few provisions of the Code with its own heading: “On justice in cases of slavery” (A o kholopstve sud). This topic occupies the following provisions (arts. 77–83), the last one (art. 83) devoted to the hired labourer (naimit), whose position was only just above that of a kholop. Arts. 84 and 85 were also provided with headings (“On justice concerning land” and “On justice concerning ancestral estates”). This theme was continued by arts. 86 and 87 (about fences and boundary marks). The famous provision about the peasant’s quitting time, St. George’s Day (Iur’ev den’), art. 57 of the Code of 1497, appeared in much expanded form in art. 88 of the 1550 Code (see also Chapter 18, section on “The peasant population in later centuries”, and Chapter 35, section on “Peasants”). Arts. 90–96 were devoted to sundry questions of civil law (especially the sale of horses). The higher level of sophistication of the Code of 1550 was apparent in arts. 97 and 98, on questions of transition law. Art. 97 stipulated that the Code had no retroactive force and did not affect cases pending, but only new cases. Art. 98 directed that the decisions taken by the tsar and the boyars in cases not covered by the Sudebnik were to be appended to the Sudebnik. Art. 99 again stressed the prohibition of bribery, ordering that this prohibition be read out in public in Moscow, all towns of the Moscow principality, as well as those of Novgorod and Tver’, and in rural areas. Art. 100 has been mentioned above; it represented special legislation addressing the question of jurisdiction by apanage princes, included in the Zapis’ o dushegubstve (discussed in the Chapter 9). This legislation had already lost most of its relevance in 1550, because there were only two apanage princes left at that time, a younger brother of Ivan iv, Iurii, prince of Uglich († 1563), and a first cousin, Vladimir Andreevich, prince of Staritsa († 1569, poisoned on the tsar’s orders).

In Conclusion

A more detailed comparison of the two Codes reveals first of all that the Code of Ivan iv was based in principle on the Code of Ivan iii. As mentioned above, the entire Code of 1497 (with the exception of two provisions) was paralleled by corresponding provisions of the 1550 Code, constituting two thirds of the latter. A few provisions were taken over in almost identical form (e.g. art. 60 of the 1497 Code and art. 92 of the 1550 Code, heirs on intestacy: first sons, then

The Code of Ivan iv of 1550

739

daughters, then other relatives), but most corresponding provisions were considerably expanded in 1550, rather than amended. Most additions involved sanctions. While the old Code would be more inclined to restrict itself to regulating the conduct of officials and the fees to be paid for their various activities, the new Code added numerous rules about the consequences of the improper execution of or failure to carry out official duties. Lower officials, such as bailiffs, were, as a rule, to be flogged for all kinds of transgressions. Other additions to the old rules just added more detail and were presumably based on the practice of applying the 1497 Code. Another prominent aspect of the relationship between the two Codes was the obvious attempt by the 1550 draftsmen to bring more order into the rather haphazard accumulation of texts of different origins in the Code of 1497. This aspect, together with the changes indicated in the foregoing paragraph, made the Sudebnik of Ivan iv look more like a real code of law which, like so much medieval legislation, was conceived primarily as a guide for courts. Centralization, and more specifically the increase in the power of the tsar and his central bureaucracy, can be noted in numerous provisions of the Code. Nevertheless, it was not a one-way street because, as pointed out above, it was accompanied by a generous delegation of criminal jurisdiction (in cases of robbery and theft) to locally elected judges. The express purpose of this policy was to weaken the dominant power of rural lieutenants, an office usually in the hands of high nobles. Russian and Soviet legal historians have also stressed two related features of the 1550 Code which in their views were important for understanding its origin and operation. These were the advance of the lesser nobility (small landowners) as against the former dominance of the great nobles, holders of vast estates, and the crucial position of the Church, especially with regard to ecclesiastical landowning, in the triangular relationship with tsar and secular landowners. These points are valid, but the traces left by these developments in the 1550 Code were not particularly prominent. Ivan iv caused great devastation in the ranks of his boyars, but other classes suffered heavily too and the great nobles recaptured the commanding heights after Ivan’s death in 1584. As regards the relationship with the Church, the Code of 1550 had very little to say. This was in no way surprising as these questions were going to be dealt with in the following year in the Stoglav (see Chapter 25).

chapter 25

The Stoglav

Legal Relevance of the Stoglav

The Stoglav (“hundred chapters”) is, on the face of it, a very long and e­ laborate reply given by the Council (Sobor) of the Russian Church to a large number of questions posed by the tsar, drafted during an assembly which began in February 1551.1 It concerned a great many aspects of the Church’s activities and organization, many of them of little direct interest to the legal historian, a­ lthough often providing specific information on the religious convictions, ­political views, social relationships and mores, practicalities of daily life, etc. of the Muscovy state and society. When it comes to determining to what extent the Stoglav was relevant for the legal history of the Muscovy era, at least two introductory observations are appropriate. In Chapter 21 attention has been drawn to the peculiarities of the Church and state relationship in the Byzantine world, where the two had always lived closely together, almost intertwined. In the West, in many different modes, Church and state achieved a generally stable condition of relative separation, respecting each other’s autonomous spheres of authority. In Russia, the Byzantine concept of “symphony” of Church and state, where emperor and patriarch would either act together or each would freely concern himself with matters of Church and state, assumed a form in which the state handed over some of its powers to the Church, to be exercized independently, although it was implied that the Church would do so in harmony with the general policies of the state. The Church Statutes of St. Vladimir and of his son Iaroslav the Wise gave legislative expression to this peculiarly Russian solution for dealing with the Church-state relationship. The Stoglav conformed to this pattern, because it was the Church that was ostensibly acting as the legislator, but the guiding and supervising role of the tsar could be seen in many of its provisions.

1 Text in rz ii, 253–378; Introduction by N.S. Semiderkin and T.E. Novitskaia, rz ii, 242–252; Commentary by T.E Novitskaia, S.I. Shtamm and N.S. Semiderkin, rz ii, 403–498. Text also in PRoP III/2, 25–119; Introduction by T.Iu. Ampleeva, PRoP III/2, 6–25. An academic text ­edition, edited by G. Maniscalco Basile and A.V. Iurasov, was published in 2015 (Moskva/ Sankt-Peterburg), with a short commentary by E.B. Emchenko. © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_026

The Stoglav

741

Secondly, the Stoglav prompts an observation of a more philosophical nature, or at least one that concerns the definition of law (see also the relevant section in Chapter 1). A modern Western lawyer will automatically start from the secular point of view that law is something emanating from the authority of the state, either its legislative or its judicial agencies. Church law (canon law) in this view is no different from rules established internally by all kinds of private entities (societies, corporations, etc.). They are binding only on people who have joined such an entity and voluntarily submitted to its rules. Only to that extent can such rules be enforced through state mechanisms and become part of the legal system. In a setting of Byzantine inspiration, such a view would be untenable. Church law constituted a separate legal system, but it was integrated into and part of the general law of the state. As explained at greater length in Chapters 21 and 39, church law was connected with state law through two major channels. A very considerable part of the population (“church people”) was subject to church jurisdiction in all but the most serious criminal matters, and the entire population was subject to church jurisdiction in certain specific matters, mainly matrimonial and inheritance law. (Until the Napoleonic era, a similar order survived in most West-European states, where matters like civil status registration and most matrimonial law were the responsibility of the Church.) The Stoglav, however, brings to light another aspect which has not been discussed before. From the point of view of the Church, church law would probably be perceived as a coherent whole, bound together by a common purpose (the well-being of the Church for the salvation of the souls of the faithful, or something similar). For anybody concerned with the secular law of medieval Russia, however, some parts of church law (such as those mentioned above) would be of obvious practical importance, while other parts would be utterly irrelevant. This is something to be kept in mind when investigating the Stoglav, because much of it concerns matters of no interest whatsoever in the context of legal history. The problem is further aggravated by the curious literary style of the work, where often the little bits of meat of mundane regulations disappear in a thick sauce of religious exhortations, pious excursions and sometimes even complete sermons. The regulation of church jurisdiction and church courts as laid down by the Stoglav undoubtedly constituted an integral part of the legal system of Russia until it was superseded by the fundamental reforms of Peter the Great, in particular through the enactment of the Spiritual Regulations (Dukhovnyi Reglament) in 1720.2 By that time, the Stoglav had already long ago lost its status 2 Cf. the comments in rz ii, 248–249. The historiography of the Stoglav is treated extensively in the introductions of Semiderkin and Novitskaia in rz ii, 242–252, and Ampleeva, PRoP

742

chapter 25

as the most authoritative expression of the identity, role and powers of the Russian Orthodox Church. The Moscow Church Council of 1666–1667 had condemned many of the positions taken by the Stoglav.3 There are two principal versions of the Stoglav, a full and a short redaction. The commonly used edition is the so-called Kazan edition, based on several copies of both versions.4

The Enactment of the Stoglav

It was of course no coincidence that the Stoglav was passed by the Russian Church Council eight months after the enactment of the Code of Ivan iv.5 The Stoglav refers several times to the Sudebnik, most notably in Chapter 3, which contains the tsar’s address at the opening of the council. In the second part of this short speech the Sudebnik was the main theme; the tsar related how he had had it drafted the year before, with the blessing of the Church; now he was putting it before them for their inspection, blessing and signature. The Stoglav would appear to be the complement of the Code to regulate the affairs of the Church. That the actual agenda was set by the tsar and not by the Church was further made clear by the document’s structure: predominantly a series of authoritative answers by the Church to questions posed by the tsar.6 Where the drafting of the Code of 1550 was guided primarily by the young tsar’s chief advisor Adashev, a similar role in respect of the Stoglav, particularly in formulating the questions to the council, was played by the priest Sil’vestr Medvedev, in whom the tsar had boundless confidence at the time. In Chapter 24 reference was made to the tensions between the different interest groups: the tsar himself and the close circle around him, the great

3

4 5

6

III/2, 6–21. The basic monograph on the Stoglav is still D. Stefanovich, O Stoglave. Ego proiskhozhdenie, redaktsii i sostav. K istorii pamiatnikov drevnerusskogo tserkovnogo prava, SanktPeterburg, 1909. This was the council which robbed the former patriarch Nikon of his church dignities, confirming at the same time Nikon’s reforms, which had sparked the revolt of the Old Believers. Excerpts from the resolution of the council in Beneshevich ii, 77–88. Cf. E.B. Emchenko, “Stoglav i perspektivy issledovaniia drevnerusskoi leksiki”, in the academic edition cited above, 9–28, at 15–17. Most authors are of the opinion that, along with the tsar himself, members of the Boyar Council and other intimate advisors of Ivan iv also took part in the work of the council, without being explicitly mentioned in the document itself. Chapters 5 and 41 contained the tsar’s questions; 37 in Chs. 5, 32 in Ch. 41.

The Stoglav

743

boyars, the petty landowning nobility, and the bishops and monasteries, to mention only the most influential actors. The Stoglav is one of the main ­sources to throw light on the complex relationships. In different places (such as in another speech in Ch. 4) the tsar expressed his annoyance with the conduct of the boyars; at the same time he was critical of the behaviour of church personnel in several instances. He was concerned in particular with the growth of ecclesiastical and monastic landowning. The church council dealt with the tsar’s questions in a way that showed that the tsar might have set the agenda but did not completely control the outcome. The church fathers insisted in particular on holding on to their real property and on retaining the church’s numerous financial privileges, although concessions were made. The final product of their deliberations was decisions (called prigovory) which were quite obviously accepted as such by the tsar and, by implication, by the legal system of Muscovy.

The Contents of the Stoglav

As the name indicated, the Stoglav consisted of one hundred “chapters”, to which at the council meeting itself Chapter 101 was added.7 The parallel with  the Code of 1550 was evident. A few other chapters were added afterwards.8 The main reason for the round number was probably, as with the Code of 1550, the protection of the text’s integrity.9 As mentioned above, the majority of the chapters was of little or no relevance to secular law, such as directives concerning bell-ringing and church chant (Ch. 7), icon-painting (Chs. 27 and 74), or how to make the sign of the cross (Ch. 31), etc. A few council decisions were inserted by the church fathers without any clear connection with the tsar’s questions (e.g. Ch. 42, on whether the Alliluia should be sung twice or thrice). Of greater interest to the legal historian were the themes of land ownership, church jurisdiction and courts, matrimonial law, and fiscal privileges. 7 Almost all copies are preceded by a kind of table of contents, entitled The Tsar’s Questions and the Council’s Replies Concerning Many and Diverse Church Matters. In rz ii, 253–258; not in PRoP. 8 Text in rz ii, 378–379. 9 The original Stoglav document with the signatures of the church hierarchs has not survived, or at least has not been found, but the existence of contemporary and practically identical copies leaves no doubt about the text. Cf. the comments in rz ii, 242–244 and Ampleeva, op. cit., 7 and 14.

744

chapter 25

Only two Chapters (75 and 101) dealt explicitly with land ownership by monasteries and other church bodies, but they are among the most important of the Stoglav and they show that the Church was to a large extent successful in defending its position. Ch. 76 contained the prohibition of charging interest, well-known in medieval Europe. In Russia, however, it applied only to all church institutions and ‘church people’, and not to ordinary lay people. Church courts, church jurisdiction, and the procedure to be followed were the subject of a series of Chapters (53–67) and a few isolated provisions (Chs. 94 and 98). Much of the text of the chapters consisted of a wordy defence of the church’s position, invoking also the authority of Byzantine law. Art. 63 is a long paraphrase of the Church Statute of Vladimir. Chapters 18–24 were devoted to matrimonial law, most of them to the ­approach to be taken in respect of second, third and fourth marriages. Taxes to be levied on weddings were also a topic of considerable importance (Chs. 46, 48 and 69). The question of married priests who became widowers also merited a whole string of Chapters (77–81). One of the most curious themes in the Stoglav was the struggle against pagan survivals. This had been an important subject in the earliest ecclesiastical legislation in Russia, the Church Statutes of St. Vladimir and Iaroslav the Wise, in the 11th century. The tsar devoted no fewer than four questions to it (questions 24–27 in Ch. 41), and the council reacted in Chs. 92 and 93. The continuing vitality of all kinds of pre-Christian practices and rituals and the activities of various sorcerers, witches and magicians obviously represented a serious source of concern to both tsar and Church.10 As for the sources of the Stoglav, numerous texts included in kormchie represented the principal materials to which the tsar’s advisors as well as the council fathers had recourse. These texts themselves offered a great variety of sources: the Bible, writings of church fathers, resolutions of ecumenical councils, Russian texts, such as the Church Statutes of Vladimir and Iaroslav or the so-called Questionary of Kirik, etc. The recently enacted Sudebnik of 1550 was also used. Many questions were rooted in contemporary life in Russia, and the answers given by the council in the Church’s practice in dealing with the situations concerned.11 10 11

The point was mentioned already by Vladimirskii-Budanov (Vlad.-Bur., Obzor, 232); see also the comments to Chs. 92 and 93 in rz ii, 491–494. Cf. Ampleeva, op. cit., 20–21; Semiderkin and Novitskaia, op. cit., 248.

chapter 26

The Codes of 1589 and 1606–1607

The Code of 1589: Introduction

“The Code of tsar Fedor Ivanovich of 1589 is a legal monument regulating questions of procedural organization among the free peasant population of the North.” This is the opening sentence of the introduction to the chapter on this Code in the edition of the “Monuments of Russian Law” (prp).1 Its author, A.F. Kopanëv, had also written the much longer comments in the Academy of Sciences’ 1952 edition of the Codes of the 15th and 16th centuries.2 In the rz series, the Code of 1589 was not included. The author of the short introduction to the Code of 1589 in its most recent publication (PRoP), A.S. Smykalin, merely summarized Kopanev’s more substantive treatment of the Code.3 Before 1917, Vladimirskii-Budanov was the principal scholar who paid serious attention to the Sudebnik of 1589.4 Altogether therefore, Kopanev’s comments and the text of the Code itself are the main sources of information. The relative obscurity of the 1589 Code was also the result of its late discovery. It had been hidden for centuries in private collections, and only in 1899 did it end up in the archives of the Ministry of Foreign Affairs. It was then published the next year.5 During the next few years several more copies came to light and then it became obvious that there were two quite different versions of the same text, one called the Short Redaction, the other the Expanded Redaction. The Short Redaction is available in two copies, the Expanded ­Redaction in three. The principal questions surrounding the 1589 Code concern the

1 prp iv, 409. The chapter on the Code of 1589 consists of Kopanev’s Introduction (409–412), the text of the so-called Expanded Redaction (413–443), and Kopanev’s comments (444–483). 2 B.D. Grekov (gen’l. ed.), Sudebniki xv–xvi vekov, Moskva/Leningrad, 1952, 343–346 (Introduction), 417–562 (Commentary). Text of the Short Redaction on 349–365, of the Expanded ­Redaction on 366–414. 3 PRoP III/2, 120–126. Text of the Expanded Redaction on 126–144. 4 M.F. Vladimirskii-Budanov, “Sudebnik 1589 g. Ego znachenie i istochniki”, Izvestiia Kievskogo universiteta, 1902 (not available to me); a summary by the author in Vlad.-Bud., Obzor, 301–302. In 1922 A.I. Andreev published O proiskhozhdenii i znachenii Sudebnika 1589 g., Petrograd, 1922 (not available to me). 5 By S.K. Bogoiavlenskii, Sudebnik tsaria Fedora Ioannovicha 1589 g., Moskva, 1900.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_027

746

chapter 26

­relationship between these two versions and the character of the Code; in other words: what did it actually represent? The sparse literature concerning the Code often referred to its znachenie (meaning, significance, sense), suggesting that this was perceived as being in some way problematic. But before examining these questions it may be useful first to consider the contents of the Code in its two versions.

The Contents of the Short and the Expanded Redactions

The preamble to the Short Redaction is preceded, as were most copies of the Code of 1550, by a Table of Contents, consisting usually of the first words of the provision concerned, enough to indicate what the provision was about. The preamble itself relates how tsar Fedor Ivanovich, together with his advisors, established “this Code” (sei Sudebnik) on 14 June 1589. Art. 1, like its predecessors in the Codes of 1497 and 1550, enjoined judges to judge honestly and not to take bribes. Art. 2 followed the example of art. 4 in the same codes in warning court clerks to do their work honestly and without stealing or bribetaking. Arts. 3–6 had no parallel in the 1497 and 1550 Codes. Arts. 7–11 were based on different provisions of the Code of 1550, arts. 8–10 as well on provisions of the Code of 1497. From art. 14 on, up to art. 38, slightly more than half of the provisions (14) go back to provisions in the 1550 Code (8 of these also to the Code of 1497). The remaining provisions of the Short Redaction (arts. 39–56) showed no direct connection with either of the previous Codes. Art. 39 is preceded by the words “Judgment of the tsar and grand prince”; the following arts. 39–48 had been taken over with significant amendments from a Decree (“Judgment”) on Guba Affairs (Prigovor o gubnykh delakh) of 22 August 1556 by Ivan iv, devoted to procedure in the then new guba courts.6 The Expanded Redaction started with a preamble, which was then followed by a Table of Contents. There are significant differences between the preambles to the two redactions. Arts. 1–204 follow arts. 1–100 of the Code of 1550, retaining the sequence of the latter. Many of the 1550 Code provisions were split up and the Code of 1589 also contained a number of provisions absent in the Code of 1550. Most of these new provisions could also be found in the Short Redaction of the Code of 1589. Arts. 205–231 of the Expanded Redaction corresponded to the series of provisions in the Short Redaction (arts. 39–56), borrowed from the 1556 Decree on Guba Affairs. 6 prp iv, 363–370; PRoP III/2, 267–271.

The Codes of 1589 and 1606–1607



747

The Relationship between the Two Redactions and the Character and Sources of the Code of 1589

The question concerning the relationship between the two versions of the Code is obviously of decisive importance for a proper understanding of what the Code represented within the framework of Russia’s legal system in 1589. The first major contribution in answering this question was made by A.I. ­Andreev in his work mentioned above. Andreev defended the view that the Short Redaction was in fact an excerpt of the Expanded Redaction. Andreev’s views were rejected by Kopanev, who included a lengthy refutation of them in his comments on the preamble to the Code.7 A.A. Zimin, in his review of the publication in which Kopanev’s study was included, concluded that on balance the arguments in favour of an earlier origin of the Expanded Redaction were stronger.8 In his comments on the Code in prp iv, a few years later, Kopanev declared: “The final solution of the question concerning the relationship between the two redactions of the Code of 1589 will only be possible with the aid of new materials.”9 Be this as it may, a comparative examination of the two redactions would lead almost every knowledgeable but uninitiated reader to a conclusion close to that of Kopanev. Without a thorough evaluation of the arguments of ­Andreev and Kopanev, one has to reserve judgment. But the accumulation of arguments adduced by Kopanev is impressive and well-nigh persuasive. In the most recent study on this subject, Smykalin did not even bother to mention the point of view of Andreev and Zimin and took the earlier origin of the Short Redaction for granted.10 The scholars who expressed themselves on the Code of 1589, beginning with its first publisher Bogoiavlenskii, put forward various ideas with regard to its origin and character, derived from a careful reading of the text. According to Bogoiavlenskii, the Code represented a draft prepared in government circles and submitted to the tsar, but not officially enacted and put into operation. Kliuchevskii, who devoted a special study to the Code of 1589 immediately after it became accessible,11 held that the tsar’s decision of 14 June 1589, 7 8 9 10 11

In his study on the Code in Grekov, Sudebniki, esp. 234–242. A.A. Zimin, review of Grekov (gen’l. ed.), Sudebniki xv–xvi vekov, in Voprosy istorii, 1953, No.5, 113 (not available to me). prp iv, 412. PRoP III/2, 120–126. V.O. Kliuchevskii, Sudebnik tsaria Fedora Ioannovicha 1589 g. Po spisku sobraniia F.F. Mazurina, Moskva, 1900 (not available to me).

748

chapter 26

­ entioned in the preamble to the Code, was only an instruction to start work m on revising the 1550 Code. The text inspected by him, of what ostensibly was the new Code of 1589, was actually an unfinished draft which was still far from official approbation and enactment. Kliuchevskii’s view on the draft status of the Code was shared by ­Vladimirskii-Budanov, but he also came to the conclusion that the available text lacked any official character. It was, according to him, the work of a private person who wrote the draft on his own initiative.12 He also concluded that the author had some practical experience with legal matters and that the draft must have originated in Northern Russia. These points were adopted a few years later by M.M. Bogoslovskii, who, however, added a new twist. He assumed that the author had actually undertaken the work on instructions from above and that his draft had been approved, but that it did not achieve the official status of its 1550 predecessor, a comprehensive code of law, established by the tsar upon the advice of his council and approved by the Church.13 In his textbook on Russian legal history, the leading Soviet legal historian, S.V. Iushkov, mentioned the 1589 Code briefly, roughly following the path laid down by his predecessors. He was of the opinion that the Code had been compiled in the Russian North by a private author, on the basis of the 1550 Code, subsequent decrees, and the practice of the courts in Northern Russia.14 As matters stand, by far the most detailed and most extensively argued account of the origin of the Code of 1589, tying together many strands identified by his predecessors, is still Kopanev’s commentary to the preamble in the Academy of Sciences’ edition of the 15th and 16th century codes.15 Kopanev first of all agreed with earlier authors who had pointed to the region of the Upper Ust’ia River (a tributary of the Northern Dvina) as the place of origin of the Code. This was a thinly settled rural area and this would not agree with the presence of many urban elements in the text of the Code. Kopanev therefore argued that the Code was meant to apply to the entire Dvina area, where there were several significant urban centres (Arkhangel’sk, Kholmogory). Shortly ­before 1589 (probably within the 1584–1589 period) a statutory charter (ustavnaia gramota) had been issued for the Dvina region; its text is not known, but its existence is reliably documented. Other known statutory 12 Vladimirskii-Budanov, op. cit. supra. 13 M.M. Bogoslovskii, “Eshche k voprosu o Sudebnike 1589 goda”, Zhurnal Ministerstva narodnogo prosveshcheniia, December, 1905 (not available to me). 14 Iushkov, Istoriia, 254–255. 15 Grekov, Sudebniki, 417–442.

The Codes of 1589 and 1606–1607

749

c­ harters from this era granted the populations of specific areas a considerable measure of s­ elf-government, including wide-ranging judicial powers. Most of such charters concerned territories where noble landowning was less prominent and peasant communities as the basic form of socio-economic organization were the rule. This Dvina charter, according to Kopanev, would have amended some of the general arrangements of the Code of 1550 and this would have ­prompted the drafting of the Short Redaction of the Code of 1589 as a kind of appendix to the Code of 1550.16 The general idea would be that the Code of 1550 ­continued to be in force, except where it had been amended or superseded by subsequent legislation, in particular the (unknown) Dvina charter and the above-mentioned Decree on Guba Affairs of 1556. The Short Redaction contained therefore only amended provisions of the Code of 1550 and new provisions, especially arts. 39–56, based mostly on the Decree on Guba Affairs. Among the arguments put forward by Kopanev were the text of the preamble which clearly alluded to its character as an addition to the 1550 Code, and the fact that the sequence of the provisions of the Short Redaction followed the sequence of the 1550 Code. From all this one may safely conclude that the Short Redaction was meant as a practical and provisional guide to courts in Northern Russia. The Expanded Redaction, emerging soon afterwards, attempted to offer a more consistent solution for the requirements of these courts. It reworked the entire Short Redaction and the entire Code of 1550 into a comprehensive draft code. The preamble to the Expanded Redaction followed the format of the preamble to the Code of 1550 and claimed general applicability for the whole of Russia, but added that this would start on a day to be determined by the tsar. The Expanded Redaction was apparently never submitted to the tsar’s government, let alone formally approved. Nonetheless, it was used by the courts in the Russian North, even as late as 1640.17 It was part of the government’s policy to leave local administration and justice, especially in the North, to locally appointed and elected officials, and a home-grown code of law, based entirely on official legislation, would be acceptable within this framework. Although tsar Fedor Ivanovich made a solemn appearance in the preambles to both redactions, it is well-known that he was completely ineffective as a ruler. The actual government of Russia at that time was in the hands of Boris Godunov, the tsar’s brother-in-law and successor. 16 17

Ibidem, at 421. Ibidem, at 423.

750

chapter 26

The Composite Code of 1606–1607

The text of the Composite Code (Svodnyi Sudebnik) is known from a few ­copies dating from the first decades of the 17th century. It was in two ways the opposite of the Code of 1589: it originated within the government administration, and it was never actually applied. What the Codes had in common was that neither of them was ever officially enacted, as the Code of Ivan iv of 1550 was.18 In its origin, the Composite Code differed from its two predecessors in that it arose at a moment of great instability during the height of the Time of Troubles. Tsar Vasilii iv Shuiskii had been in power since the death of the First Pseudo-Dmitrii in May 1606. A year later his position had again become very precarious as a result of the rise of the Second Pseudo-Dmitrii. The completion of the draft of the Composite Code by the officials of the Moscow administration is usually considered to have occurred at some time during the second half of 1606 or the first three months of 1607.19 The literature on the Composite Code is very scarce, due no doubt to its character – it was essentially a complete reorganization and systematization of existing legislation and offered almost no new law. Its great innovation was that the most important legislation, beginning with the Code of 1550, had been brought together and reshuffled to produce something that was beginning to look more like a modern code of law. This innovation was expressed primarily in the orderly sequence of 25 thematic chapters, called grani, and provided with titles indicating the subject covered (except in the first two chapters, where the chapter headings are missing). Headings had appeared occasionally in a haphazard manner in earlier legislation, usually as an indication that the following provisions had originally constituted a separate enactment, before being included in a more comprehensive code-like text, but they did not reflect an attempt at systematization.20 Arranging a code of law according to a sequence of chapters was an approach which had been used in the First Lithuanian Statute of 1529 and in its subsequent versions (the Second Statute of 1566 and the Third Statute of 1588). The Lithuanian Statute was written in Russian and applied in large parts of ethnic Russian territory (see Chapter 17, on ­Western Russia). The drafters of the Composite Code would certainly have

18

Text in prp iv, 481–542; Introduction(479–481) and Comments (542–570) by A.A. Zimin; PRoP III/2, 177–220; Introduction (176–177) and Commentary (213–220) by A.S. Smykalin. 19 Zimin, op. cit., 480–481; Smykalin, op. cit., 176–177. 20 Such as the law on slavery, arts. 110–121 of the Expanded Russkaia Pravda; the Code of 1497 made frequent use of headings.

The Codes of 1589 and 1606–1607

751

been familiar with it and the idea of drafting a code of law along such lines may have been inspired by the Lithuanian example. The main problem encountered in the Composite Code is the identification of its various components, and this problem is quite manageable. The numbering of its 168 articles is initially confusing. It is not numbered through consecutively from 1 to 168. Chapter 1, for example has arts. 1–7, 28–29, 32, 61–64, 96–97, 128–138 and 161. Arts. 1–100 can easily be identified as arts. 1–100 of the Code of 1550, but generally in a slightly amended version.21 Arts. 101–168 are based on other earlier legislation. The sequence of the 1550 Code has roughly been followed; Chapter 2 has arts. 8–14, 30–44, 65 and 74 of the 1550 Code. From Chapter 3 on, the Composite Code follows the Code of 1550 more closely, although quite a few individual provisions of the latter have been lifted from their original context. The underlying concept was quite clear; provisions were grouped thematically. Chapter 3 could serve as an illustration of the editorial policies of the drafters. The chapter was entitled “On witnesses and on [duel] fighters and on false searches”. In a more modern approach one might say “On evidence”. It starts with arts. 15–19 of the Code of 1550, devoted to witnesses (art. 19 to participants in a judicial duel). This is followed by art. 98 (99 in the Code of 1550), because Ch. 3 deals with witnesses and art. 99 is at least in part about witnesses The remaining and much longer part of the chapter is taken up by arts. 101–115; these provisions constitute an incomplete copy of the Decree on Guba Affairs of 22 August 1556 (see the discussion of this Decree in Chapter 33) and deal with wrongful searches.22 About twenty-five similar insertions based on incidental legislation can be identified easily, because they are preceded by the words “On such-and-such a date the tsar and grand prince Ivan Vasil’evich decreed …”, or a comparable formula. The earliest decree is from 1552, the last one from 1 February 1606, and most of them are from the early part of the reign of Ivan iv, the 1550’s. Most of the decrees are known from other sources, and in such cases (as the Decree on Guba Affairs) one can establish whether the original decree has been taken over in toto or incompletely.23 Whether the Composite Code was used in the drafting of the Council Code of 1649 (the Sobornoe Ulozhenie) is a question which has not been thoroughly investigated. Most commentators restrict themselves to the observation that the drafters of the Ulozhenie had also consulted previous sudebniki, a fact which had been noted already in the preamble to the Code of 1649. 21 22 23

The numbers do not always correspond exactly; this is caused by the use of different c­ opies of the 1550 Code. prp iv, 363–370; PRoP III/2, 276–271. E.g. Decree of 5 (or 15) May 1555 on the Collection of Debts, prp iv, 36.

chapter 27

The Statute Books of the Prikazy The emergence and duties of the central government departments of M ­ uscovy, the prikazy, will be discussed in Chapter 31. This chapter will look only at the statute books of the departments as a source of the law, along with the law codes covered in the preceding chapters. The origin of the statute books is connected by most authors with one of the last provisions (art. 98) of the Code of Ivan iv of 1550: “And whatever new cases shall be [of a type which are] not provided for in this Sudebnik, when those cases are decided with reference up to the Sovereign, and upon sentence by all the boyars, such cases shall be appended to this Sudebnik.” (Dewey’s translation).1 The departments, which were just starting to assume a more definitive form in those years, would refer matters within their jurisdiction, if they were unable to decide them themselves, to the tsar and his council, and collect the decisions handed down for future reference. It is these collections which bear the name of ukaznye knigi (books of directives). This peculiar legislative practice affected mostly the work of a few of the numerous departments, and then also only a small number of these ukaznye knigi have survived. The oldest one is the ukaznaia kniga of the Treasury ­Department (vedomstvo kaznacheev, the central state chancery), covering the period from 1555 to 1560.2 Of greater importance are similar collections from the Brigandage Department, the Slavery Department, the Department for the City of Moscow, the Department of Roads, and the Land Department. One has to bear in mind that the emergence of the prikazy evolved gradually and was not the result of a conscious and comprehensive reform of the system of public administration. Consequently, the duties of the prikazy often overlapped. Moreover, new legislation was not published uniformly, but merely communicated to those governmental departments which were in need of the information concerned. These departments would then include such items in their ukaznye knigi. Other prikazy would, in principle, be ignorant of the contents of such collections. An event of great impact on the survival of the ukaznye knigi was the great Moscow fire of 3 May 1626, in which most of the prikaz archives, including their ukaznye knigi, were burnt. 1 H. Dewey, Muscovite Judicial Texts 1488–1556, Michigan Slavic Materials No.7, Ann Arbor, 1966, at 73. 2 Cf. prp iv, 353, 544; Vlad.-Bud., Obzor, 233; D’iakonov, Ocherki, 222–223. © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_028

The Statute Books of the Prikazy



753

The Statute Books of the Brigandage Department

The Robbery or Brigandage Department (Razboinyi prikaz, Razboinaia izba) emerged during the early years of the reign of Ivan iv as the central agency for combating the widespread lawlessness in the countryside caused by marauding bands. Its activities were preceded by the guba reforms, by which the responsibility for dealing with this problem had to a large extent been delegated to local agencies (see Chapter 33, on Guba Charters). Once the Robbery Department became active, it served as a co-ordinating and supervisory body. Its first known Statute Book covered the years 1555–1556 and contained five enactments concerning the substantive and procedural law for dealing with robbery and theft.3 The next available Statute Book covered the years 1616–1636, and a third one the years 1635–1648. The first item of the 1555–1556 Statute Book was a Decree (prigovor) on Matters of Robbery of 18 January 1555, constituting a brief general enactment on the investigation, prosecution and punishment of robbers. The 1616–1636 Statute Book contained 13 enactments, of which the first one, the Statute Book of the Robbery Department of 1616–1617, was the most ­important.4 It was clearly based on its predecessor from 1555 and r­ epresented a more or less comprehensive miniature code on the entire procedure for ­dealing with robbery, from investigation and prosecution to trial, sentence and execution. Its preamble referred to the preceding Statute Book of the Robbery ­Department, compiled under tsar Ivan Vasil’evich. This is unquestionably the Statute Book of 1555–1556 mentioned above, which apparently remained in force for sixty years. The third Statute Book contained 19 items, from the years 1635 to 1648, leading right up to the Code of tsar Aleksei of 1649. These 19 comparatively short enactments concerned all kinds of questions of detail in the prosecution and trial of persons suspected of robbery.5 The statute books of the Robbery Department are known as Ustavnye knigi (Statute Books), rather than ukaznye knigi (books of directives), as those of other departments which were merely chronologically arranged collections of directives, while those of the Robbery Department had undergone some 3 Four of them in prp iv, 353–370, the fifth (the Medyn’ Guba Directive), ibidem, 179–185 (see also Chapter 33, on Guba Charters); PRoP III/2, 263–271 (three items only). The 1555–1556 Statute Book had been discovered by A.A. Zimin, not long before its publication in prp in 1956; older authors such as Vladimirskii-Budanov and D’iakonov only speculated about its contents. 4 prp v, 188–220. PRoP III/2, 277–290 (five items only). 5 prp v, 221–239; PRoP III/2, 290–293 (four items only).

754

chapter 27

editorial processing, resulting, as noted above, in the creation of systematized legislation. These texts were an immediate source in the drafting of the Code of 1649.

The Statute Book of the Slavery Department

The Slavery (or Serfdom) Department had been in existence at least since 1571 but its only known Statute Book started in 1597 and ran on until 1608.6 This period coincided with the most chaotic part of the Time of Troubles. The full name of the department was Department of the Slavery Court (Prikaz Kholop’ia suda). The Statute Book contained five items of which the first one (of 1597) was by far the most important, as it outlined the scope of the Department’s powers. They covered all people who served, not only on state lands, but also with princes, boyars, other nobles, merchants, etc. “in slavery” (v kholopstve). Most attention was directed towards the kabal’nye liudi, people who served temporarily in serfdom, in exchange for a loan. The decree (prigovor) of 1597 and the following four enactments of the Statute Book illustrated vividly that the term slavery had actually become inappropriate, as the legal relationship between master and dependent peasant had evolved into something quite different from the classic slavery relationship.

The Statute Book of the Department for the City of Moscow

The literal translation of Zemskii prikaz would be “Land Department”, but in fact it was in charge of the taxation of the urban tax-paying (tiaglyi) population, other matters of urban government, as well as the handling of court cases concerning the urban population of Moscow, including cases of robbery and theft occurring in Moscow. The Statute Book covered the 1622–1648 period and consisted of 52 items. Many of these concerned day-to-day matters of city government, such as the building of a bridge, the prohibition of public fist-fights, etc. The competence of the Moscow City Department was in fact superimposed on the powers of other prikazy, and this resulted in the need for those prikazy to inform the Moscow City Department of various developments (new legislation, decisions, etc.) within those prikazy which required the attention of the Moscow 6 prp iv, 370–381; PRoP III/2, 271–277 (four items only).

The Statute Books of the Prikazy

755

­Department. Many of the items in the Moscow Statute Book reflected this peculiar relationship.7 Of the relatively few items of a general legislative nature, one of the most important was a decree of 1641 concerning peasants who had fled from their masters (dvoriane and deti boiarskie, i.e., small landowners) to lands owned by the state, boyars or the Church.8

The Statute Book of the Department of Roads

The only known Statute Book of the Department of Roads contained eight items, seven decrees (ukazy) and one report (doklad), all from the years 1627– 1628.9 Its legal relevance is modest, although the responsibilities of the Iamskoi prikaz were essential to the functioning of government in medieval Russia. It was in charge of the organization and management of the iamskaia gon’ba, the provision of transport for government officials, which included both means of transport (horses, carts, sleighs, boats) as well as personnel (coachmen, boatmen, etc.). It rested on the general duty of the local population to provide podvody (esp. horses and carts), a duty which was already known in Kievan times. The name iam (staging-post, and also the duty to maintain the iam system) was of Tatar origin (dziam, road) and the Iamskoi prikaz was split off in the middle of the 16th century from the central state chancery, the State Treasury.10

The Statute Books of the Land Department

The Land Department (Pomestnyi prikaz) was in charge of the supervision and state management of both hereditary (votchiny) and service (pomest’ia) estates. Like other prikazy, it also handled the litigation of cases arising within its area of competence. The origin of its Statute Book (1626–1648) was directly ­connected with the Moscow fire of 3 May 1626. Its first item was a report of 7

8 9 10

An important example is the 1628 Decree on Court Matters, included in the 1616–1636 Statute Book of the Robbery Department, which was transmitted to the Moscow City Department and included in the latter’s Statute Book a few weeks later. Cf. prp v, 208–211 and 342. prp v, 362–371; PRoP III/2, 299–304. prp v, 539–547. Cf. prp v, 535–538.

756

chapter 27

26 May 1626 in which the damage was described and an indication was given of what might be restored. Several items from the old statute books were still available in other places or had survived the fire. These categories were first included in the new Statute Book. They went back as far as 1587. The other main part of the Statute Book consisted of items from the period after 3 May 1626.11 One of the most significant and curious pieces of legislation was the ­Decree on Hereditary and Service Estates of 1636.12 The 14 articles of the D ­ ecree described particular legal questions arising in connection with estates; these questions were then answered in an advisory opinion of the Boyar Council, which was submitted to the tsar. In 13 cases the tsar decided as suggested by the boyars, except in respect of art. 2, where the boyars had abstained from advising because of self-interest. The tsar then decided in a manner favourable to the boyars.

11

12

prp v, 431–483; only the most relevant decisions have been included here (19 items). A list of the full contents of the Statute Book (112 items) in prp v, 526–531. PRoP III/2, 304–314 (8 items only). prp v, 470–477; PRoP III/2, 310–314; zarg No.134, 171–174.

chapter 28

Decisions of the Land Assembly (Zemskii Sobor) The joint meeting of the Holy Council and the Boyar Duma in 1549, where the desirability of a new and comprehensive law code was agreed upon, is usually regarded as the first manifestation of the supreme state agency which came to be known as the Zemskii Sobor, the Land Assembly or Land Council.1 Its composition varied over time, depending on the wishes of the tsar, and political and practical circumstances. Once the new Romanov dynasty became more firmly established after its foundation in 1613, the relevance of the Land ­Assembly gradually diminished until the need to convoke it had disappeared by the end of the 17th century. The legal status of the Land Assembly will be discussed later on in the appropriate place (in Chapter 31); what interests us here is whether the decisions of the Land Assembly are to be regarded as sources of the law of Muscovy. The answer must obviously be in the affirmative in the case of some of the most ­important legislative acts of the era, emanating from the Land Assembly; the Stoglav, approved by the Land Assembly of 1551, and the Code of 1649, the Sobornoe Ulozhenie (the “Council Code”). In most other cases2 the r­ esolutions were primarily of a political nature but did simultaneously have ­far-reaching legal consequences, such as the decision of 1 October 1653 to receive the Ukraine into the Russian tsardom.3 At the practical level, the significance of Land Assembly resolutions as sources of law is diminished by the modest number of usable texts. Many of the 57 Land Assembly meetings identified by Cherepnin are documented only by references in chronicles and other sources. The editors of the prp series judged only five texts worthy to be included and none of them consisted of an actual Land Assembly decision; they were only connected with such decisions and referred to the latter.4 Seven other texts were included in the rz series, of which

1 See N.E. Nosov, Stanovlenie soslovno-predstavitel’nykh uchrezhdenii v Rossii. Izyskaniia o zemskoi reforme Ivana Groznogo, Leningrad, 1969, 14–53. 2 The standard work on the Land Assembly is still L.V. Cherepnin, Zemskie sobory russkogo gosudarstva v xvi–xvii vv., Moskva, 1978. Cherepnin compiled a list of 57 meetings of the Land Assembly, from 1549 to 1683 (op. cit., 382–384). 3 rz iii, 450–458; PRoP III/2, 255–262. See also Chapter xxxii. 4 prp iv, 575–589.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_029

758

chapter 28

five contained the actual Land Assembly resolutions.5 To these five one can add the sobornoe ulozhenie (Council Decree) of 9 March 1607 of tsar Vasilii Shuiskii, concerning peasants and slaves.6 Four of these six are described briefly below. The other two concern the Council decree by which Boris Godunov was elected tsar in 15987 and the union with the Ukraine in 1653, mentioned above.

The Resolutions of 15 January 1580 and 20 July 1584

The issue of restricting the expansion of landowning by the Church and the monasteries had been prominent all through the reign of Ivan iv and continued to be so after his death in March 1584. The Land Council meetings of 1580 and 1584 were devoted to this problem and the government was to a large extent successful in its endeavours to raise legal barriers against further expansion.8

The Resolution of 9 March 1607

Prince Vasilii Shuiskii had come to the throne in 1606 in the turmoil of the Time of Troubles. In order to hold on to power he urgently needed the support of the large class of small landowners/noblemen. The purpose of the Land ­Assembly of March 1607 was primarily to undo some of the reforms of tsar Boris Godunov of 1601–1602, which had lightened some of the burdens of the peasant population. The 1607 Assembly made it more difficult for peasants to leave their masters and continued the trend towards complete enserfment of the dependent rural population.

The Resolution of 30 June 1611

The Zemskii Sobor of June 1611 took place at a time of the greatest confusion; tsar Vasilii Shuiskii had been forced to take monastic vows, the Poles were still 5 rz iii, 17–74 and 448–463. PRoP III/2, 221–262, republished the 5 + 7 texts from prp and rz, but without the valuable commentaries. 6 prp iv, 586–589; this meeting of the Zemskii Sobor was for some reason overlooked by Cherepnin who did discuss a February meeting of the Council, devoted to another topic (Cherepnin, op. cit., 156–157). The March meeting is well-documented, see prp iv, 601–602. 7 rz iii, 36–39 (text), 40–43 (comments); PRoP III/2, 225–228 (text only). 8 rz iii, 26–28 (text of 1580), 31–35 (text of 1584; also in PRoP III/2, 221–223. Comments: rz iii, 23, 28–31, 35–36. See also Cherepnin, op. cit., 120–125, 130–131.

Decisions of the Land Assembly

759

in Moscow, the Second Pseudo-Dmitrii had been assassinated, and the popular uprising under a Riazan’ nobleman, Prokopii Liapunov, was crumbling. The resolution of 30 June was a final attempt by Liapunov and his supporters to restore order.9 Although Liapunov was murdered by Cossacks three weeks later and the resolution achieved nothing, it represented, from the point of view of legal history, an ambitious initiative towards broad constitutional reform. The constitution of the assembly was also unusual as it did not have representatives from the Church and the Moscow citizenry (the merchants and craftsmen), but it did include various non-Russian elements, such as Tatar princes and nobles, as well as Cossack leaders. 9 rz iii, 43–49 (text), 51–62 (comments). Also PRoP III/2, 228–233 (text only). See also Cherepnin, op. cit., 172–179.

chapter 29

The Council Code (Sobornoe Ulozhenie) of Aleksei Mikhailovich of 1649 The Ulozhenie, the comprehensive legal statute enacted in the fourth year of the reign of the second Romanov tsar, Aleksei Mikhailovich, is rightly regarded as one of the most pivotal texts in Russian legal history. It reflects the entire previous legislative mass and its roots can ultimately be traced back as far as the Russkaia Pravda. By being the first Russian legislative act that was printed and then disseminated officially, it also inaugurated a new era in which the identification and legitimation of a document as valid legislation no longer presented the sort of problems which had characterized the previous era. When a governmental working group headed by Mikhail Speranskii proceeded to collect the entire body of valid and operational Russian law in 1830, the Polnoe Sobranie Otechestvennykh Zakonov (“Complete Collection of the Laws of the Country”), it took the Code1 of 1649 as the starting-point.

Historical Background

Time and again one may notice that major legal reforms are often triggered by events which suddenly induce governments to take action. Such events, bringing deep-seated tensions or basic problems to the surface, may then appear as the actual rationale of the reforms, although they in fact only accelerated their achievement. In the case of the Code of 1649, the Salt Riots of 1648 set in motion a development which culminated in the convocation of a Land Council or Assembly (Zemskii Sobor) in September of the same year. The adoption of the Council Code (Sobornoe Ulozhenie) in January 1649 was the major achievement of that Assembly. Tsar Aleksei had succeeded his father Mikhail in 1645 at the age of 16. The government was in the hands of a small coterie of boyars, of whom Boris Morozov­was the leader. In 1648, he married Anna Miloslavskaia the sister of the tsar’s wife, thereby becoming the tsar’s svoiak (wife’s brother-in-law). 1 There is an almost interminable debate among some Russian historians whether or not the Ulozhenie can be called a code or a codification. Almost all translations in other languages use the term “Code”.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_030

The Council Code of Aleksei Mikhailovich of 1649

761

Morozov­had increased the tax on salt in 1646, and when this had caused great unrest, the measure was withdrawn and replaced by other tax increases. These affected a variety of categories of the population and dissatisfaction became more widespread. Riots occurred in many towns and there were mutinies among military units. In Moscow itself, the matter got out of hand on the first of June 1648 when the houses of leading boyars were plundered and some of them were lynched by angry mobs. The young tsar himself had to plead with the rioters who finally calmed down after Morozov had been exiled and the convocation of a Land Council had been promised. Meetings of the Zemskii Sobor had often taken place during the previous decades and on 10 June the merchants and service people (sluzhilye liudi) from Moscow had presented a petition to the tsar to put an end to the corruption of the bureaucracy, call a meeting of the Land Assembly and proceed to the preparation of a new law code. The government lost no time and a zemskii sobor met soon afterwards.2 It resulted in a decree in which a meeting of the assembly in a new composition was convoked for 1 September. At the same time the tsar appointed a commission to prepare a collection and revision of the old sudebniki (law books) and other laws, in order that in future “law and justice would in all cases be equal to all” (sud i rasprava byla vo vsiakikh delakh vsem rovna). The underlying causes of the reforms were much more complex and the debate about them is by no means finished. As in the case of the Code of 1550 of Ivan iv, there were several interest groups, each having its own agenda. Russian society had become more complex in the century separating the two codes and especially the middle class, to use an anachronistic term for indicating the layer between the boyars and the dependent urban and rural population, itself consisted of a variety of categories with often conflicting aspirations: townspeople (big and small merchants, craftsmen, various kinds of civil and military officials), petty landowners, all kinds of military service personnel, etc. This factor was taken into account to some extent in the appointment of the members of the preparatory working group (see below).3 2 There is some confusion about the date; Cherepnin (L.V. Cherepnin, Zemskie sobory russkogo gosudarstva xvi–xvii vv., Moskva, 1978, 284–285) believed the meeting ended on or before 16 July, while other sources (e.g. zarg No.334) held that it started on 16 July (and was possibly finished the same day). 3 Several authors have dealt in depth with the events of June 1648 and the following months, as the prelude to the creation of the Ulozhenie. See especially M.N. Tikhomirov, “Sobornoe Ulozhenie i gorodskie vosstaniia serediny xvii veka”, M.N. Tikhomirov, P.P. Epifanov, Sobornoe Ulozhenie 1649 g. Uchebnoe posobie dlia vysshei shkoly, Moskva, 1961, 1–26; A.G. Man’kov, Ulozhenie 1649 goda. Kodeks feodal’nogo prava Rossii, Moskva, 1980, 39–52.

762

chapter 29

Historiography Historiography is like an endless stocking; every scholar adds his bit, which then becomes part of the permanent work-in-progress. Still, it may be helpful to say a few words about it. As explained above, the Ulozhenie was the centrepiece of Russian legislation and, as such, the foundation on which subsequent legislation rested. It was only after work on the Complete Collection of Laws had started in 1830 that incipient legal scholarship in Russia began to show a specific interest in the Ulozhenie itself.4 A considerable volume of literature on the Ulozhenie saw the light during the 19th century, every generation adding new perspectives, such as the political context of the Code, the question of its sources, the search for the most correct text, etc. The Ulozhenie, after its original and official publication in print in 1649, was republished a number of times; the last publication before the October Revolution was by M.K. Liubavskii.5 Soviet scholars continued to build on the extensive work of the pre-1917 generations, paying much attention of course to the “class” character of various factors, especially those connected with agriculture, landownership and the increasing enserfment of the peasant population. In the prp series, the whole of volume vi (1957) was devoted to the Ulozhenie; it had been prepared by a team from the Moscow State University, headed by K.A. Sofronenko. The texts of the 25 chapters of the Code were accompanied by comments on every individual provision. A few years later, Tikhomirov and Epifanov published a text edition of the Ulozhenie, provided with introductory studies on the 1648 riots (by Tikhomirov) and on the historiography of the Code (by Epifanov), as well as with several useful annexes (especially a detailed dictionary of the Code’s terminology).6 The Ulozhenie took up most of volume iii (1985) of the rz series (Akty Zemskikh soborov); the text of the Code was accompanied again by detailed comments;­the editorial team was headed by A.G. Man’kov; some of the team members had already taken part in the prp edition 18 years earlier. The ussr Academy of Sciences’ Institute of History oversaw the publication of the Ulozhenie in a new edition in 1987 (A.G. Man’kov, general editor).7 The Introduction characterized the work as “the first critical scholarly edition 4 The first monograph on the Ulozhenie was by V. Stroev, Istoriko-iuridicheskoe issledovanie Ulozheniia, izdannogo tsarem Alekseem Mikhailovichem v 1649 g., Sankt-Peterburg, 1833. 5 M.K. Liubavskii (ed.), Sobornoe ulozhenie tsaria Alekseia Mikhailovicha 1649 g., Moskva, 1907. 6 M.N. Tikhomirov, P.P. Epifanov, Sobornoe Ulozhenie 1649 g. Uchebnoe posobie dlia vysshei shkoly, Moskva, 1961. 7 A.G. Man’kov (general editor), Sobornoe Ulozhenie 1649 goda. Tekst. Kommentarii, Leningrad, 1987.

The Council Code of Aleksei Mikhailovich of 1649

763

of this major code of feudal law with extensive article-by-article commentaries”. This was not quite fair to the authors of the publications in prp and rz, but the 260 pages of the commentary in the Academy’s edition undoubtedly constituted a major contribution to scholarship on the 1649 Code. A.G. Man’kov, who had been intimately involved in several of the publications referred to above, was also the author of the most important monograph on the Ulozhenie to appear during the Soviet era.8 In more recent times (2014) volume III/3 of PRoP was devoted to the Ulozhenie. Two general introductory essays (by T.Iu. Ampleeva and Iu.N. Anuchina) were followed by the text of the Code and then by individual chapters on civil law, inheritance law, serfdom, criminal law, procedural law, and on execution of judgments. A comparable publication was by V.A. Tomsinov, in the series “Russian Legal Heritage” (Russkoe iuridicheskoe nasledie), who offered a long study of the 1649 Code, together with the text of the Ulozhenie.9 Most of the general studies mentioned above contain shorter or longer sections on the historiography of the Code of 1649.10 An English translation, together with the Russian text, is available as vol.3 in the Series i: Medieval Russia of The Laws of Russia.11 Less accessible are the German translation and introduction by C. Meiske. Like many of his colleagues from the German Democratic Republic, the author made a serious attempt to outdo his Soviet colleagues in ideological correctness, but once the narrative is stripped of its Marxist-Leninist shell, an informed and intelligent analysis of the Ulozhenie remains.12

Preparation and Enactment

The preamble to the Ulozhenie relates how the tsar, on the very first day the Land Council met (16 July 1648), had appointed a working group to collect 8 9

10

11 12

A.G. Man’kov, Ulozhenie 1649 goda. Kodeks feodal’nogo prava Rossii, Moskva, 1980 (2nd rev. edition, Moskva, 2003). V.A. Tomsinov, “Sobornoe Ulozhenie 1649 goda kak pamiatnik russkoi iurisprudentsii”, V.A. Tomsinov (ed.), Sobornoe Ulozhenie 1649 goda. Zakonodatel’stvo tsaria Alekseia Mikhailovicha, Moskva, 2011, 1–51. Esp. P.P. Epifanov, “Sobornoe Ulozhenie 1649 g. v istoricheskoi literature”,Tikhomirov & Epifanov, op. cit., 27–64; Man’kov, Ulozhenie 1649 g., 1980, 5–38; T.Iu. Ampleeva, “Diskussionnye problemy otechestvennoi istoriografii Sobornogo Ulozheniia”, PRoP III/3, 6–27. R. Hellie (transl. & ed.), The Muscovite Law Code (Ulozhenie) of 1649, Part 1: Text and Translation, Irvine, ca, 1988. C. Meiske, Das Sobornoe Uloženie von 1649. Beiträge zur Geschichte der UdSSR, No.9, Halle (Saale), 1985.

764

chapter 29

and re-arrange all the legislative material from the past, in order to prepare the drafting of a new code of law. The commission consisted of two boyars, the princes N.I. Odoevskii (chairman) and S.V. Prozorovskii, the okol’nichii prince F.F. Volkonskii, and the d’iaki (secretaries) G. Levont’ev and F. Griboedov. The July meeting of the Zemskii Sobor was apparently in the nature of a preparatory session. Its composition was restricted to the tsar, the members of the Holy Council (Osviashchennyi Sobor, the assembly of bishops of the Orthodox Church), and the tsar’s own council (Duma) of selected boyars, okol’nichie, and a few other councillors (Dumnye liudi). Its main business was the appointment of the drafting commission and the decision concerning the composition of the following meeting of the Land Council for the discussion of the new Code. For this occasion the Zemskii Sobor was to meet in enlarged form. In addition to the members of the Holy Council and the tsar’s Duma, the lower ranks of the Moscow nobility (stol’niki, striapchie, zhil’tsy, and Moscow dvoriane) were to be represented by two persons each; other major towns were each allowed two representatives of the lower nobility (dvoriane and deti boiarskie), except Novgorod (five representatives); lesser towns were given one representative (of the lower nobility) each; three representatives were to come from the great merchants (the gosti), and two each from the other two major merchant corporations (the gostinnaia and the sukonnaia sotnia), all of them from Moscow; one representative from the lower (free and taxpaying) urban population of each town. The enlarged Land Assembly met on 1 September 1648 in two divisions, the small Assembly (Holy Council and the tsar’s Duma) and a chamber consisting of the delegates of the lesser nobility and the urban population (called the “Answering Chamber”, Otvetnaia Palata). According to the preamble to the Code, a completed draft was submitted to the Council on 3 September 1648, testimony to the commitment and efficiency of prince Odoevskii and his colleagues.13 As no direct reports of the transactions in the two chambers of the Assembly have survived, there is still disagreement about the relative weight of each chamber’s input. The end result suggested that the interests of the lower nobility (the petty landowners) in particular had received much attention; some concessions were made to the urban participants, but in general they were less successful. The main work on the Ulozhenie was completed and confirmed by the tsar on 25 November 1648, but discussions on a few controversial points went on ­until

13

There are reports of veritable armies of clerks in the government departments (prikazy), employed in copying the decrees of their departments for the commission.

The Council Code of Aleksei Mikhailovich of 1649

765

the middle of January 1649.14 Then, on 29 January 1649, the entire Ulozhenie was read out in the two chambers and the delegates, as had been prescribed beforehand, placed their signatures on the scroll (svitok) containing the text. Most authors tacitly regard this procedure as the official confirmation and enactment of the Code, but Tomsinov has pointed out that a confirmation procedure had nowhere been provided; the Code was established by the tsar; the members of the Assembly had taken part as his councillors in the preparation of the text.15 According to the preamble, this scroll with the authentic text of the Ulozhenie was to be copied and then this manuscript was to be printed. This was effected in the course of April and May 1649, when a printed edition of the Ulozhenie was produced in 1200 copies. A second edition of 1200 copies, in which some real or perceived errors of the first edition were corrected, followed a few months later.16 The handwritten scroll with the signatures survived, its manuscript copy did not.17 In the preparation of the inclusion of the Ulozhenie as the first item in the Complete Collection of Laws (Polnoe Sobranie Zakonov, psz) in 1830, a new version was produced, based on a critical comparison of the texts of the scroll and the two 1649 editions. The psz edition was used in most of the later editions, but in 1961 Tikhomirov and Epifanov, in their university textbook on the Ulozhenie, presented the text of the second 1649 edition which for good reasons can be regarded as the most authentic one. Later scholarly editions have used either the psz text or the one proposed by Tikhomirov and Epifanov; the differences are not very significant.18

Overview of the Contents

The Ulozhenie differed from its predecessors, especially the Code of 1550, not only in its more modern and sophisticated process of preparation, enactment 14

See Man’kov, Ulozhenie 1649 goda, 1980, 49–50. N.B.: the September calendar still being in use in Russia at that time, the dates of 1648 and 1649 are often mixed up in Russian literature. 15 Tomsinov, op. cit., 8. 16 Cf. Man’kov, op. cit., 1980, 54; Tomsinov, op. cit., 9. 17 Hellie, op. cit., 235–352, published plates of the Preamble and the first two chapters, and of the reverse side of the scroll with all the signatures of the delegates. 18 For more detail, see the Archeographical Introduction by L.I. Ivina in the Academy edition, Man’kov (general editor), Sobornoe Ulozhenie 1649 goda, 1987, 10–14. ppr v and Hellie have the psz text, but the main other publications followed Tikhomirov and Epifanov (rz iii, the Academy edition of 1987, Tomsinov, and PRoP III/3).

766

chapter 29

and publication, but also in its internal organization. It consisted of a long preamble, setting out the drafting and publication procedure, and 25 chapters devoted to specific topics.19 The chapters contained articles, numbered consecutively in each chapter. The chapters differed sharply in length; the three longest Chapters (10: on the judicial process, 20: on the judicial process concerning slavery, 21: on robbery and theft) contained 510 of the total of 968 (or 967) articles. Chapter 2 (on counterfeiting) has only two articles, Chapters 12 (procedure in the courts of the patriarch), 23 (on musketeers, strel’tsy) and 24 (on atamans and Cossacks) only three. Although the organization of the material in thematic chapters was a great step forward (from the point of view of a modern lawyer), this did not mean that a more or less systematic coverage of the material was achieved or even envisaged. Russian authors of treatises on the Code of 1649 often present chapters on public, criminal and civil law, but such a framework is anachronistic, helpful as it may be to today’s reader. The sequence of the chapters of the Ulozhenie is associative, rather than systematic.20 After a first chapter on insults to God (blasphemy and disruption of the liturgy), the Code has two chapters on the honour and the personal well-being of the sovereign (Ch. 2) and on the maintenance of order at the court of the tsar (Ch. 3). The next two and very brief Chapters (4 and 5) concerned forgery of the tsar’s documents, counterfeiting his seals, and making counterfeit coins. Chapter 6 then went on with the regulation of foreign travel documents issued by the tsar or his provincial governors (voevody), and continued with a few more detailed rules about people living in disputed border areas around the Lithuanian and Swedish borders. Chapter 7 took up this theme in its preamble, which proclaimed solemnly (but not quite truthfully) that eternal peace existed between the tsar and his Polish, Lithuanian and Swedish neighbours.21 But then its first article contemplated what should happen if war broke out. The rest of the longish chapter (32 articles) is devoted to various aspects of military service. Chapter 8 (on the redemption military prisoners) is a natural extension. 19

20

21

The Composite Code (Svodnyi Sudebnik) of 1606–1607, which was in fact only a departmental draft, also had 25 chapters, but many chapters contained a single article only. Its scope was much more limited than that of the Ulozhenie and it can only have served as a source of inspiration for the latter Code in respect of the use of the chapter-article format. On this question, Meiske, op. cit., 22. A more positive evaluation in E.A. Zhelonkina, Zakonotvorcheskaia tekhnika v Rossii xvii–xix vekov, Moskva, 2015, who devoted a long section to the legislative technique of the Ulozhenie, 78–96. Chapter 7 is the only one with its own preamble, a leftover from its earlier life as a separate enactment.

The Council Code of Aleksei Mikhailovich of 1649

767

Chapter 9 (on tolls, ferry and bridge fees) stands more or less by itself. It concerned not only fees due to the tsar’s treasury, but all other similar fees to be paid to persons or institutions entitled to collect such fees. The main thrust of the chapter was in the identification of the person or institution responsible for the upkeep of a certain road or bridge, generally speaking the same as the one entitled to collect the fee for using the road or bridge. The state’s interest in maintaining a serviceable network of roads in a vast and increasingly centralized country with difficult climatic conditions needs no explanation. Chapter 10, the longest of the Code, has 287 articles and takes up about one third of the entire Ulozhenie. It is entitled simply O sude (on justice) and can be regarded as replacing the bulk of the Code of 1550 (which was very much centred on the activities of the courts). It constituted therefore almost a law code by itself, covering a great variety of topics, criminal as well as civil law. The following Chapters 11–15 are devoted to related and more specific aspects of the administration of justice; Chapter 11 to court cases involving peasants, Chapters 12 and 13 to courts of the patriarch and monasteries, Chapter 14 to the oath (as a means of producing decisive evidence), and Chapter 15 to the effect of cases that have been decided by judgments, settlements or arbitration. Chapter 20, on court cases concerning slavery, belongs to the same block of chapters but is separated from it by four quite different and long chapters. Chapters 16 and 17 deal, respectively, with service lands (pomestnye zemli) and with hereditary lands (votchiny), the two main categories of private landowning. Chapter 18, on fees for sealing documents, is connected with the two foregoing chapters as almost all documents referred to concern transactions about land. Chapter 19 is entitled “On townsmen”, but deals mostly with the ownership and taxation of urban holdings. The slavery Chapter (20) not only covered court cases concerning slavery, but was in fact a comprehensive law on many aspects of slavery (119 articles). Criminal law is the subject of Chapters 21 (on robbery and theft) and 22 (offences entailing capital punishment). The very brief Chapters 23 (on strel’tsy, musketeers) and 14 (on atamans and Cossacks) have already been mentioned above. The last chapter, 25, the Decree on (illicit) taverns (Ukaz o korchmakh), dealt not only with the unlawful selling of liquor, causing loss of revenue to the state, but also with the sale or use of tobacco, forbidden outright on pain of death by a decree of 1634. To return to a point made above, one has to keep in mind that the organizing principle governing the organization of the Ulozhenie resulted in the distribution of subject matter in a way that is often baffling to a modern lawyer. Criminal law, for instance, is the central topic of Chapters 21 and 22, but it appears

768

chapter 29

prominently in Chapters 1–5 (“offences against the state and ­public order”) and is present in almost all other chapters. The chapters on court procedure (especially Chapters 10–15 and 20), in line with previous legislative practice, contain much substantive law, both criminal and civil, clothed in procedural rules. Sources Excursion: The Impact of Foreign Sources In Chapter 2 (on Sources) we considered the question of what could be considered a source of law in a medieval setting. This question loses its importance once the law-making process becomes sufficiently sophisticated to produce rules with an unambiguous legal character. The Ulozhenie unquestionably satisfies this criterion. But “source” in legal history may also be given the meaning of legal materials which inspired, or contributed to, a particular law-making process. Sources in this sense were considered in Chapter 10 (on Foreign Laws), where the question of the impact of Byzantine or Mongol law was investigated briefly. Far more important, however, than foreign sources (in this particular sense) are domestic sources. The history of medieval law in Russia abounds with examples. The Short Version of the Russkaia Pravda was the principal source of the Expanded Version; the Russkaia Pravda continued to influence many later manifestations of legislative initiative. The Church Statutes of Vladimir and Iaroslav were the principal source for all subsequent church statutes. The Code of Ivan iv of 1550 was based mainly on the Code of Ivan iii of 1497, and so on. What happened in such cases was that the drafter of the new law had access to the text of an old law and consulted it; he could then decide to take over the old rule, amend it, or make an altogether new rule. The impact of the old rule is often discernible in the formulation of the new rule, most patently of course when the old text has been taken over verbatim. The relevance of domestic or foreign sources can also be much less visible and more uncertain when the similarity between the rules to be compared is less obvious. The fact that several laws deal with a similar situation need not imply a connection between them if the situation is relatively unspecific. For instance, almost all legal systems which concern themselves with market transactions address the question of the acquisition of movable property from somebody who is not the owner. It is only when the similarity between legal rules in different texts becomes very specific that probability calculus suggests

The Council Code of Aleksei Mikhailovich of 1649

769

that the texts must be connected, that they have a common origin or that one text has been the source of the other.22 Sources, as Indicated in the Ulozhenie Itself The question of the sources has been foremost in many studies of the Ulozhenie, both in the 19th century and in more recent times. The question cannot be considered resolved, although the main outlines are visible. The preamble to the Code relates how the tsar had ordered the drafting commission to extract relevant legal rules from canon law (“the rules of the Holy Apostles and the Holy [Council] fathers”), from the laws of Byzantine emperors, from the codes (sudebniki) of former (Russian) sovereigns, from the decrees of the tsar’s father (tsar Mikhail), from boyar decisions (boiarskie prigovory), and from rules which had not been included in the old law codes, sovereign decrees, or boyar decisions. This at least gives an impression of the kind of sources utilized by the commission. This impression is given more detail by 168 short handwritten notes (in very small script) in the margin of the scroll text, indicating the origin of the provision in two or three words.23 A closer examination however of these marginal pointers does not yield much. The frequent references to the Lithuanian Statute as the source of certain provisions are the least helpful. Because they do not cite chapter and verse, one has to scour the Lithuanian Statute for provisions which are more or less similar to the Ulozhenie provision to which the marginal note is attached. This search is usually in vain; one may find roughly parallel provisions, but without any close similarity. The closest parallels are to be found in part of Chapter 10 (arts.100–123) and Chapter 6 of the Lithuanian Statute, both of them dealing with the early stages of the proceedings before a court.24 Another possible connection, not mentioned in the marginal references, is the organization of the Ulozhenie in chapters and numbered articles, which is unlike anything in earlier Russian legislation and which could very well have been inspired by the similar organization of the Lithuanian Statute. There are a few marginal references to the Stoglav and they are also not very productive. Art. 1 of Chapter 22 of the Ulozhenie (homicide of a parent by 22

23 24

I have dealt with the topic of this Excursion in more detail in connection with the question of the influence of Roman law on medieval Russian law in “Roman Law in Medieval Russia”, Feldbrugge, lmr, 59–128, esp. 85–87. The text of these marginalia in Tikhomirov & Epifanov, op. cit., 421–423, and in Man’kov, Sobornoe Ulozhenie 1649 goda, 1987, 445–446. For instance, art. 105 of the Ulozhenie and arts.17–18 of the Statute, each dealing with misconduct in court, or art. 109 and art. 12 (failure of the plaintiff to appear in court).

770

chapter 29

a child, entailing capital punishment) and the following provisions (several other offences by children against their parents, usually punishable by beating with the knout), are accompanied by a reference to the Stoglav. This then must be Chapter 36 (On the punishment of one’s children); it provides, among other things, that beating one’s father or mother entails excommunication and death. Russian scholars, especially in more recent times, have been inclined to look for the immediate sources of Ulozhenie provisions in the legislation of Muscovy for the period preceding the Code’s enactment. This means in particular the Code of Ivan iv of 1550 and the legislation of the intermediate period, to be found mostly in the decree collections of the departments (the ustavnye and ukaznye knigi of the prikazy), and possibly also in the Composite Code of 1606–1607. This approach has been fruitful and has yielded the insight that indeed most of the Code of 1649 was derived from the large volume of legislation contained in the ustavnye and ukaznye knigi. The Code of 1550, very much oriented towards the administration of justice, was the starting-point for Chapter 10 (On courts) of the Ulozhenie, but not much more than that, because Chapter 10 alone was more than twice the size of the entire Code of Ivan iv. The connection is obvious nevertheless if one compares, for instance, the first articles of the 1550 Code and Chapter 10, or art. 2 of the 1550 Code and art. 10 of Chapter 10. A separate source revealed by modern studies is the chelobitnie or formal petitions addressed to the tsar by various interest groups during the restless period preceding the adoption of the Code. The exact wording of these petitions has usually been lost, but enough is known about their contents and purpose and it is generally accepted that the Ulozhenie was meant to meet at least some of the demands of certain sections of the population.

The Follow-up: Novellae or Novoukaznye stat’i

The text of the Ulozhenie itself, especially the preamble, other contemporary sources, as well as the significance of the Code as the starting-point for the Complete Collection of Laws in 1830 provide abundant proof of the Code’s pretention to reflect in an official and authentic manner the entire law of the Muscovy state. But this claim became untenable after a lapse of time and this caused the emergence of the Novoukaznye stat’i, comparable to the novellae of the Corpus Iuris. They were viewed explicitly as additions and complements to the Ulozhenie; legislation which introduced new institutions

The Council Code of Aleksei Mikhailovich of 1649

771

or inaugurated new trends would normally be in the form of a zakon or ustav (“statute”).25 In a wide sense, Novoukaznye stat’i refer to all subsequent legislation,26 but in practice a small number of decrees issued during the second half of the 17th century is envisaged.27 Also, the absence of a clear awareness of the separation of powers as we know it has to be kept in mind. The ‘government’, whether the tsar by himself, the tsar together with his council, or officials and institutions entrusted with governmental functions, would govern the country without making much distinction between issuing general rules, taking administrative (executive) decisions, deciding disputes submitted by parties, or trying criminal cases. 25

Literature on the Novoukaznye stat’i is not abundant; see, for instance, Vlad.-Bud., Obzor, 237–238; D’iakonov, Ocherki, 234–235; I.A. Isaev, Istoriia gosudarstva i prava Rossii, Moskva, 2006 (3rd ed.), 174. 26 According to Isaev, op. cit., 178, more than 1500 items, qualifying as novoukaznye stat’i in the wide sense, were adopted during the second half of the 17th century. E.A. Skripilev (ed.), Razvitie russkogo prava vtoroi poloviny xvii–xviii vv., Moskva, 1992, provides a detailed overview of the development of the various branches of Russian law during the one-and-a-half century after the adoption of the Ulozhenie. 27 The novoukaznye stat’i can of course be found in the Complete Collection of Laws (psz). The most frequently mentioned decrees are: 1667 (psz No.408), Novotorgovyi ustav (“New Decree on Trade”); also prp vii, 303–328; 1669 (psz No.441), “On Matters of Theft, Robbery and Homicide” (superseding most of Chapters xxi and xxii of the Ulozhenie); also prp vii, 396–434; 1676 (psz No.633), “On Service Estates” (amending Chapter xvi of the Ulozhenie); also prp vii, 57–71; 1676 (psz No.634), “On Hereditary Estates” (amending Chapter xvii of the Ulozhenie); also prp vii, 72–79; 1676 (psz No.644), “On Service and Hereditary Estates” (replacing in part Chapters xvi and xvii of the Ulozhenie and psz No.633 of the previous year); also prp vii, 79–85; 1676 (psz No.702), “On Hereditary Estates”; also prp vii, 86–88; 1680 (psz No.814), “On Hereditary Estates”; also prp vii, 94–97 1681 (psz No.860), “On Service and Hereditary Estates”; also prp vii, 97–100; 1684 (psz No.1074), Nakaz (Instruction) on the determination of estate boundaries; 1686 (psz No.1157), “On [certain urban] Households”.

section 2 The Law

∵

chapter 30

The Tsar During the first era of Russian legal history – what we have loosely designated as the middle ages – the prince was the central figure, although his role was subject to very considerable transformation. After several generations of pagan princes of Kiev, descendants of the alleged founder of the dynasty, Riurik, the first Christian rulers, St. Vladimir and his son Iaroslav the Wise, set the tone for their descendants. Ideally, the grand prince of Kiev would be regarded as the supreme ruler, with his younger brothers (and later on cousins) serving as subordinate rulers in the principalities assigned to them. This set-up, as could be expected, proved to be untenable as the dynasty grew in size, and, as a result, a loose conglomerate of principalities emerged in which the Kievan grand prince was at best a primus inter pares. Then the Mongol invasion and fall of Kiev in 1240 radically amended the system, without destroying it completely. The Mongol (Tatar) khan assumed the role of absolute ruler, however allowing Russian princes to hold on to their seats, provided they professed allegiance and observed the often heavy duties imposed on them (especially as regards taxation and military service). But as the hold of the Tatars gradually weakened and Russian princes were able to assert themselves more forcefully, the most powerful among them started to compete again for supremacy. The grand prince of Vladimir (later on of Moscow) came out as the winner in the end. During the long reign of Ivan iii of Moscow (1462–1506) all major rivals were eliminated, in particular Novgorod and Tver’. Throughout these developments, two factors remained constant: the political and legal system revolved around the figure of the ruling prince, and that prince would invariably belong to the house of Riurik. The victory of Muscovy and the concentration of supreme political power in the hands of the Moscow grand prince created a new situation which eventually was also reflected in the title of the ruler. In the Chapter on the Prince in Kievan Russia (xiii) the differentiation between various kinds of princes was examined. The most prominent ruling princes gradually became known as grand princes, and while some of the other princes were independent rulers, others ruled as apanage princes under a higher prince (usually a grand prince), and the least prominent princes, those without their own principalities, would generally have no other option but to enter the service of a more powerful cousin. In the course of the 14th century the grand princes of Moscow began

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_031

776

chapter 30

to style themselves “grand prince of all Russia”, and under Ivan iii this title was converted into “sovereign lord [gosudar’] of all Russia”.1

The Title of Tsar

In 1547, the young Ivan iv (Groznyi) was crowned tsar in an elaborate ceremony designed by the metropolitan Makarii and obviously inspired by the Byzantine coronation ritual. This official and formal adoption of a new title was the culmination of a long development.2 The term itself, derived from the Latin “Caesar”, had been used in previous centuries to denote the fullness of sovereign power, not in any way dependent on or subject to other powers. Only the emperors of Byzantium and of the Holy Roman Empire and the khan of the Mongols were regarded as rightful bearers of the title of tsar. A less restrictive usage of the term occurred in literary texts, where “tsar” and derivative forms (especially the verb tsarit’ and the adjective tsarskii) indicated an illustrious ruler.3 The grand princes of Moscow had for many years been edging closer to the title, for instance by presenting themselves as “tsar” in communications with foreign powers. The new title encapsulated several fundamental changes in the politicolegal structure of Russia. While there had in the past simultaneously been numerous princes and grand princes, there could only be one tsar, the supreme ruler. Also, the title implied that Mongol-Tatar suzerainty had become a thing of the past. The Russian Church consistently presented the tsar as the successor to the Byzantine emperor and Russia as the bulwark and refuge of Christian orthodoxy. The additional legitimacy the Rurikid dynasty had acquired through its being descended from St. Vladimir, who brought Christianity to Russia, was raised to a higher level by embracing the Byzantine “symphony” of emperor and Church acting in unison, which bestowed a sacramental quality on the dignity of the monarch. The uniqueness and exclusiveness of this position rendered obsolete the old concept of the ruling house as the ultimate repository of sovereign power. This, incidentally, facilitated the transition to a new dynasty at the end of the Time of Troubles. 1 E.g. in a treaty of 1494 with the Lithuanian grand duke Aleksandr (his son-in-law in 1495); ddg No.83, 329–332. 2 See also Vlad.-Bud., Obzor, 168–169. 3 Cf. Ia.N. Shchapov, “Dostoinstvo i titul tsaria na Rusi do xvi v.”, Ia.N. Shchapov, Ocherki russkoi istorii, istochnikovedeniia, arkheografii, Moskva, 2004, 138–144 (originally published in 1999). Shchapov also refers to W. Vodoff, “Remarques sur le valeur du terme «tsar» appliqué aux princes russes avant le milieu du XVe siècle”, Oxford Slavonic papers, Vol. xi, 1978, 1–42.

The Tsar

777

The wife of the tsar was the tsaritsa.4 Whether this title was retained when the tsar had died is not quite clear. Ivan iv left several wives who had been repudiated and sent to convents; his last (seventh and uncanonical) wife (­Maria Nagaia) also became a nun. The widow of Boris Godunov was assassinated together with her son, tsar Fedor, a few months after the death of Boris Godunov.­ The second wife (Evdoksiia Streshneva) of Mikhail, the first Romanov tsar, survived her husband by only a few weeks. The only widow who enjoyed the dowager-tsaritsa title for a considerable length of time was Nataliia Naryshkina who survived her husband tsar Aleksei Mikhailovich by 18 years. She was the mother of Peter the Great and died in 1694. After Peter the Great had taken the title of emperor in 1721, the title of tsar (and tsaritsa) of Russia lost its o­ fficial status. There was a symbiotic relationship between “tsar” and samoderzhets (“autocrat”, from Greek αύτοκρατωρ), both derived from the titles of the Byzantine emperor. While tsar was the official title of the Russian monarch, samoderzhets started its life in Russia in learned discourse and then penetrated gradually into the language of the state. After Ivan iv, official texts referred to the monarch as “the sovereign lord [gosudar’] tsar and grand prince of all Russia”. The resolution of the Land Assembly in which Mikhail Romanov was proclaimed tsar in 1613 had already added the samoderzhets title. In the following years it was frequently used in addresses and requests to the tsar and in the preamble to the Code (Ulozhenie) of 1649 tsar Aleksei Mikhailovich used it himself. It continued to be used in official documents and was retained by Peter the Great when he exchanged the title of tsar for that of emperor. The three empresses who ruled Russia during most of the 18th century (Catherine i, Elizabeth, and Catherine ii) styled themselves Imperatritsa i Samoderzhitsa Vserossiiskaia.

Autocracy and Public Law

If we take “public law” in its original sense (“the law that concerns the affairs of the Roman state”5) but in a more generalized form (i.e. referring to all states), it would be the law that regulates the state itself and its principal activities. In present conditions, a constitution is the normal instrument for laying down the most central and fundamental elements of public law. The constitution itself is 4 The term “tsarina” (or even “czarina”), current in ordinary English and in other European languages, is a perversion of the German Zarin (wife of the Zar), more or less like calling a female German prime minister the Bundeskanzlerina. 5 Publicum ius est quod ad statum rei Romanae spectat (Inst. Just. I.1.4 and Digest 1.1.1.2, both going back to Ulpian).

778

chapter 30

a fairly recent phenomenon on the legal scene. Its roots can be traced back to medieval times when circumstances induced competing political actors, such as monarchs, nobles, and towns, to conclude formal pacts expressing­a certain division of political power in legal terms. During the Age of Enlightenment the understanding that human beings were endowed with certain fundamental and inalienable rights, to be respected and protected by the state, and the marriage of the list of such rights with the statute that laid down the organization of the state itself then produced the modern constitution. This does not mean that public law in the above mentioned sense was fully absent during earlier periods. The organization and the running of the state in Kievan Russia was not a matter of despotic whim; much of it was embedded in tradition, custom and customary law. In the Chapter on the Prince in Kievan Russia (13) we examined the elaborate structure of customary rules and contractual relationships within the Rurikid dynasty, determining who would be eligible to rule, how succession among princes would take place, how princes were to behave among themselves, etc. The rise of the Muscovy tsardom and in particular the prominence of the Russian concept of autocracy (samoderzhavie) create serious difficulties in this perspective in dealing with the topic of public law during this era. Certainly, one could point to various branches of public law which undoubtedly functioned normally in those years. There was, for instance, a whole range of laws regulating local government or taxation. The law on the organization of courts and the administration of justice, a major subject within the field of public law, continued to receive special legislative attention during the 16th and 17th centuries. But at the core of public law, the regulation of the highest state agencies, a strange void opened up as the autocratic character of the government was more and more explicitly emphasized.6 One of the central problems of genuine autocratic rule, determination of the person or persons to be invested with autocratic power, is probably the most instructive in this respect. In legal terms this would come down to the law of succession to the throne. Vladimirskii-Budanov’s treatment of this question is illustrative of the approach adopted by the comparatively few authors who have paid attention to this matter.7 The two main ways of acquiring the throne of Muscovy, according to Vladimirskii-Budanov, were inheritance and appropriation (usvoenie). Both ways occurred in a variety of forms. He referred in 6 As expressed in art. 20 of the military code of law (Artikul Voinskii) of 1715: “His Majesty is an autocratic [samovlastnyi] Monarch who does not have to answer to anyone in the world about his actions”; prp viii, 325; rz iv, 331. PRoP iv, 372. 7 Vlad.-Bud., Obzor, 168–177.

The Tsar

779

particular to Ivan iv Groznyi, who displayed great imagination in abandoning and then repossessing his dignity. Of old, in the Rurikid dynasty, the elements­ of automatic intestate succession of sons and appointment by the father had always been combined. Under the immediate predecessors of Ivan iv the practice had been established that the eldest son was appointed successor to the throne and various arrangements were made for the other sons. Ivan iv not only appointed sons as successors, but also withdrew appointments; he abdicated once, and appointed an outsider (Simeon Bekbulatovich) as grand prince of Russia, retaining a smaller principality for himself, and then dismissed Bekbulatovich again. It is of course possible to fit all such actions into a legal framework, devised ex post facto, and then argue that such and such varieties of succession to the throne were provided by the law of succession of Muscovy. Perhaps things look neater in such an approach, but the simple fact remains that Ivan iv, in following his erratic course, was not in any way guided by rules of succession which were only invented afterwards by scholars. In Chapter 1 the position was taken that law can be defined in various ways and that these definitions are equally valid, because law, unlike the material world or phenomena such as language or the human psyche, is itself the product of human invention. If Vladimirskii-Budanov and other legal historians adopting the same approach wanted retrospectively to construct a law of succession to the throne in Muscovy, one cannot object that they were wrong, but only that the exercise is pointless, because such a law did not exist for contemporaries. It is more practical to limit ourselves to those rules which actually guided conduct in those days and then the conclusion has to be that at the heart of the public law of Muscovy was a black hole, filled conceptually by the idea of samoderzhavie: the will of the ruler, however unpredictable, was the basic determinant. This left in principle little or no room for law and the work of lawyers. But a large, late medieval state like Muscovy could not function without the administrative technicalities of local government, taxation, etc., and this allowed the retention or penetration of legal institutions into the field of public law. Succession In Kievan Russia, succession among ruling princes was governed by custom, based on several interconnecting ideas. The most basic one was that of the Rurikid house (or rather the descendants of St. Vladimir) as possessing the exclusive right to rule. The next one was the priority of age. This worked at

780

chapter 30

two levels: older generations enjoyed precedence, and within one generation precedence was given to the eldest brother. As the dynasty grew in size, the generational aspect lost its importance and sub-dynasties ruling their own principalities emerged. With the gradual elimination of rival principalities by the grand princes of Vladimir-Moscow, the position of the eldest brother everywhere gained strength. The adoption of the principle of primogeniture in inheriting the throne prevented the weakening of principalities by being divided among brothers. This adaptation of the traditional system of succession was achieved mainly through wills of ruling princes (see the survey in Chapter 13). As long as Tatar suzerainty remained an effective institution, the need to secure confirmation through the khan’s iarlyk constituted an intrusive factor in the Russian succession process. Although the waning of Tatar power is traditionally connected with the victory of Dmitrii Donskoi at the Sandpiper Field (Kulikovo Pole) in 1380, the three consecutive wills of his son and successor Vasilii i reflected the precariousness of the position of the Moscow grand princes.8 The first and third wills (of 1406/1407 and 1423) used the formula “if God gives my son the grand princely dignity”, while the second will of 1417 employed the more audacious words “and I bless my son Vasilii [ii] with my paternal heritage, the grand princely dignity”. One might speculate whether the long practice of Tatar confirmation would not have helped to promote the view, prevalent in later centuries, that the occupation of the throne was something that was not subject to higher rules, but to the will of the sovereign. In this respect, the practice of later Moscow grand princes of appointing prospective successors as co-rulers is to be noted. Vasilii ii appointed his eldest son Ivan [iii], then 8 years old, as co-ruler in 1448. Ivan iii did the same in 1500 with his son Vasilii [iii]. When Vasilii ii the Blind died in 1462, he had his succession arranged in his will of 1461.9 The grand princely dignity and a considerable part of his property were bequeathed to his eldest son Ivan, while four other sons each received an apanage (udel’noe) principality. Ivan iii survived his four brothers, of whom two died without issue. Ivan iii and the grand princes succeeding him saw to it that the apanage principalities assigned to the other two brothers (Andrei of Uglich and Boris of Volok) did not survive very long. The political and often also physical elimination of junior brothers, uncles, cousins and nephews by Ivan iii, his son Vasilii iii, and his grandson Ivan iv Groznyi was such a frequent phenomenon that one wonders whether the old idea of all male members of the dynasty having an at least moral claim to 8 Cf. ddg Nos.220–22, 55–62. 9 ddg No.61, 193–199.

The Tsar

781

­ articipate in the exercise of the princely dignity was still very much alive and p presented a threat to the exclusive rule of the eldest son. Ivan iii (*1440) died in 1506, and in his will of 1504 he had made the usual dispositions in favour of his eldest (surviving) son Vasilii, the new grand prince, assigning minor shares to his other four sons. But during his reign the normal course of events was interrupted by one curious initiative of Ivan iii. His eldest son Ivan (*1456) had predeceased his father in 1490, leaving a son Dmitrii (*1485). In 1497 there were rumours of a plot to kill the boy Dmitrii. The grand prince, believing that his eldest surviving son Vasilii (*1479) and his mother ­Sophia Palaeologa were involved, appointed his grandson as his heir and had him crowned in a ceremony inspired by the ritual of the Byzantine emperors. After a few years however Vasilii succeeded in being accepted again by his father and Dmitrii and his mother fell into disgrace. Both of them died in prison. One of the strange aspects of the incident from the point of view of the succession practice, was that the initiative of Ivan iii ran counter to the ancient custom of rejecting substitution in succession. The rights, or rather expectations, of a son who died before his father were not passed on to his own son. If your father happened to die before your grandfather you were just out of luck. Ivan iii overruled this principle, but then retracted his innovation. Still, it was a sign of things to come, because later on grand princes and tsars would appoint successors at will and then change their minds again, another indication of how the principle of autocracy would affect traditional arrangements. When Vasilii iii died in 1533, he left two sons, the elder, Ivan, four years old and the other a baby. The succession was arranged in the traditional way, Ivan was assigned the grand princely dignity and provision was made for Vasilii’s widow Elena Glinskaia, and the younger son Iurii.10 The government was left in the hands of his wife’s uncle, Mikhail Glinskii, and the Bel’skii princes.11 Soon after the death of the grand prince, his surviving brothers, Iurii (prince of Dmitrov) and Andrei (prince of Staritsa), were put in prison, where they died in 1536. The grand princess Elena, appointed as her son’s guardian by Vasilii 10

11

The testament of Vasilii iii is the only one missing from the collection of testaments of the grand princes of Moscow up till Ivan iv. According to Karamzin (t.vii, 100–103), Vasilii had his old will destroyed and a new one written, during his final illness. See also A.E. Presniakov, “Zaveshchanie Vasiliia iii”, Sbornik statei po russkoi istorii, posviashchennykh S.F. Platonovu, Petrograd, 1922, 71–80 (not available to me) and Cherepnin, Arkhivy i, 217–220. Vasilii called them his plemianniki (nephews); how exactly they were related is unclear to me. The Glinskii family were descendants of the Tatar emir Mamai (beaten by Dmitrii Donskoi at Kulikovo Pole in 1380) who had moved to Lithuania where they had received their title.

782

chapter 30

until Ivan would reach the age of fifteen, dismissed and imprisoned her uncle Mikhail and so took over the reins of government. After Elena’s death in 1538, in a foretaste of the Time of Troubles, the government was in the hands of competing boyar clans until Ivan iv was crowned tsar in 1547 upon reaching the age of seventeen.12 Under Ivan iv, as indicated earlier in this chapter, the regularity and predictability of the succession process suffered further inroads through the increasing dominance of samoderzhavie; while his father and grandfather had allowed themselves occasional breaches of the ancient succession customs, Ivan iv himself treated succession like he did anybody and anything else, as subject to every whim. The most auspicious part of the reign of Ivan iv was the beginning, coinciding with the years of his first marriage to Anastasiia, the daughter of the boyar Roman Iur’evich Zakharin, the ancestor of the Romanov dynasty; she died in 1560. Many important reforms were put in place and Ivan’s foreign and domestic policies were often successful. After 1560 Ivan’s reign was a succession of weird adventures, generally carried out with shocking cruelty. There are several theories attempting to reveal the motives behind Ivan’s behaviour. It would seem that at least the memory of his youth could explain the anxiety and insecurity underlying his deep suspiciousness. The first major manifestations appeared in the first four to five years after 1560; the trusted and competent advisors of the early years of his reign, Adashev and the priest Sil’vestr, were dismissed and then there were several purges in which prominent noblemen were exiled or executed. Late in 1564 Ivan iv announced that he would abdicate, being disillusioned by his advisors, his officials, the boyars, the leaders of the Church, and so on. He set up a kind of state within the state, the oprichnina (from oprich, apart, separate), with its own territory, lands, administration and army, to be ruled by himself. The remainder of the country, the zemshchina, was to be run by the Boyar Duma.13 The oprichnina then began a regime of terror which swept over the entire country in intermittent waves, until it was officially dissolved in 1572. From a legal point of view, the oprichnina represented a contradiction. It  appeared as a form of autocracy, reduced ad absurdum, a state of utter 12

On this period, see M.N. Tikhomirov, “Zapiski o regentsve Eleny Glinskoi i boiarskom pravlenii 1533–1547 gg.”, Istoricheskie Zapiski, t.46 (1951), 278–288; also in M.N. Tikhomirov, Russkoe letopisanie, Moskva, 1979, 167–183. 13 Karamzin, ix, footnote 137, offers a long quotation from the Aleksandro-Nevskaia Letopis’ (Aleksandr Nevskii Chronicle, see psrl 29, Moskva, 2009) which is probably very close to the actual text of the decree.

The Tsar

783

l­awlessness. On the other hand, it was embedded in the legal system of 16th century Russia. It was officially enacted by decree, which had beforehand been the subject of negotiations between the tsar and the representatives of the major political groups, perhaps in the form of a land assembly (zemskii sobor).14 Ivan had threatened to abdicate and that made his subjects agree with the introduction of the oprichnina. Eleven years later, in the autumn of 1575, the tsar formally abdicated and handed the title of grand prince of all Russia to Simeon Bekbulatovich, a Tatar prince and descendant of Chingis-Khan who had joined the service of the Russian ruler and accepted baptism. He had been given the khanate of Kasimov as his own principality.15 Ivan’s reasons were not completely clear; fear of a plot in Moscow apparently had something to do with the bizarre decision. The new grand prince was even less than a figurehead; Ivan iv acted openly as before as the ruler of the country. After eleven months the charade was over.16 The last will of Ivan iv of 1574 followed the format of the wills of his predecessors in naming his eldest son as his successor and making provisions for his wife and relatives.17 The succession was made even simpler by the death of the eldest (surviving) son Ivan in 1581, killed by his father in a rage. This left only Fedor (*1557), who became the last Rurikid tsar at the death of Ivan iv in 1584. (There was another son Dmitrii, one year old (born in 1583), of Ivan’s fifth marriage to Maria Nagaia, of doubtful legitimacy on account of the rules of canon law.18) 14 15

16 17 18

Cf. L.V. Cherepnin, Zemskie sobory russkogo gosudarstva xvi–xvii vv., Moskva, 1978, 100–105. The khanate of Kasimov (along the Middle Oka River) had been set in 1445 by Vasilii ii as a Tatar vassal state; it was used as an instrument in Russian-Tatar political relations and survived into the 17th century. See B.R. Rakhimzianov, Kasimovskoe khanstvo (1445–1552 gg.). Ocherki istorii, Kazan’, 2009 also, by the same author, “Russkie kniazhestva i nasledniki Zolotoi Ordy v xv v.: Nachal’naia istoriia Kasimovskogo khanstva”, A.Iu. Dvornichenko, A.V. Maiorov (eds.), Rossica Antiqua 2006. Issledovaniia i materialy, Sankt-Peterburg, 2006, 360–386; and V.V. Chernovskaia, Ot Romanova do Kasimova (iz istorii sluzhiloi tatarskoi znati), Moskva, 2014. Cf. K.V. Baranov, “Kogda zakonchilos’ pravlenie Simeona Bekbulatovicha”, Russkii diplomatarii iii, Moskva, 1998, 156–159. ddg No.104, 126–144 (elaborate pious excursions are largely to blame for the great length of the will). This Dmitrii, who had received the apanage principality of Uglich shortly after he was born, died in 1591, apparently as the result of a stab wound suffered during an epileptic fit. Godunov, however, was widely blamed and those rumours favoured the claims of the so-called First Pseudo-Dmitrii after the death of Boris Godunov.

784

chapter 30

There were serious doubts about Fedor’s ability to rule and Ivan iv had appointed a small group of nobles in his latest will as executors. The most prominent among them was the brother of Fedor’s wife, Boris Godunov. The latter acted as the actual ruler of Russia, until he also secured the succession after Fedor’s death in 1598. Although the evidence is not conclusive, there are several indications that the enthronement of Fedor was preceded and confirmed by a meeting of a land assembly.19 The succession of Boris Godunov was, in legal terms, the result of a decision of the Zemskii sobor, convened for the purpose of electing a new tsar.20 The resolution of the sobor pointed first to the will of Ivan iv, who allegedly had appointed Godunov not only as the protector of Ivan’s son Fedor, but also as the latter’s successor; then the resolution mentioned that tsar Fedor had also appointed Godunov as his successor; finally, it referred to the unanimous support from the clergy, the boyars, and all other sections of the population for Godunov as the only acceptable candidate. The veracity of these various statements may be less than complete, but they suggest that the legitimacy of Godunov was a highly sensitive question. For many centuries all ruling princes had been Rurikids (Mongol suzerainty apart) and this election concerned not just any principality, but the tsardom of Muscovy, which had absorbed all former principalities.21 The precedent set by Godunov’s election confirmed the de facto status of the Zemskii sobor as a kind of default ruler of Russia in the absence of a tsar. This status was of decisive importance during the following years of the Time of Troubles, until the ascent of the Romanov dynasty. The beginning of the 17th century was marked for Russia by a series of natural disasters, causing famines and civil unrest. Anti-government feelings coalesced around the figure of the (First) Pseudo-Dmitrii, a pretender who claimed to be the youngest son of Ivan iv (Dmitrii of Uglich, born in 1583 and supposedly killed in an accident, or murdered on the orders of G ­ odunov, in 1591). The Pseudo-Dmitrii enjoyed the support of Poland and of various 19

20 21

Cf. Cherepnin, Zemskie sobory, 126–128. This sobor took place shortly after the death of Ivan iv on 18 March 1584 and is not to be confused with the well-documented sobor of July 1584 (rz iii, 31–35; PRoP iii/2, 223–225). rz iii, 36–39; PRoP iii/2, 225–228. For a brief review of the most important aspects of the election of Godunov, see Ia.G. Solodkin, “Boris Godunov kak naslednik prezhnei dinastii (ob odnom aspekte obosnovaniia prav novogo gosudaria na tsarstvo v publitsistike rubezha xvi–xvii vv.)”, S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, vyp.15, Moskva/Sankt-Peterburg, 2012, 228–237. Also: Ia.G. Solodkin, “Priznavalsia li Boris Godunov sovremennikami zakonnym gosudarem?”, Ocherki feodal’noi Rossii, vyp.7, Moskva, 2003, 112–128.

The Tsar

785

d­ isaffected ­elements in Russia when he appeared on the scene in the summer of 1604. Boris Godunov died suddenly in April 1605, and in the ensuing confusion support for his son and successor Fedor (only 16 years old at the time) collapsed and little more than a month later the forces of the Pseudo-Dmitrii entered Moscow and the young tsar was murdered. The Pseudo-Dmitrii ruled as tsar for less than a year, when he was killed in his turn as the result of a plot by leading boyar families. His ascent to the throne had not been based on a decision of a land assembly but on military conquest. He was crowned tsar, however, in the official fashion. Prince Vasilii Shuiskii, one of the leaders of the boyar plot, was elected tsar then in May 1606 by a council of boyars, although most authors doubt that such an informal cabal could qualify as a land assembly.22 In any case, Vasilii’s four-year rule remained restless and insecure and his actual control over the Russian territory was limited. Within a year after the First PseudoDmitrii had been killed a new pretender appeared, claiming that Dmitrii of Uglich was still alive. This pretender, known as the Second Pseudo-Dmitrii, set himself up in the village of Tushino, near Moscow (hence his nickname “the Thief of Tushino”), where he established himself as tsar in the summer of 1608 and laid siege to Moscow. At that moment there were two parallel governments in Russia, each with its own tsar, court, boyar council, etc. The ‘tsar’ in Tushino even appointed his own patriarch.23 In July 1610 Vasilii Shuiskii was forced to abdicate and to accept being tonsured a monk.24 A group of seven boyars, headed by prince F.I. Mstislavskii, installed itself as a temporary 22

23

24

Cf. Cherepnin, Zemskie sobory, 153–154. The Shuiskii princes were descendants of Andrei Iaroslavich, a younger brother of Aleksandr Nevskii, and the founder of the line of grand princes of Suzdal’ and Nizhnii Novgorod. This was Fedor Nikitich Romanov, whose father Nikita was a brother of the first wife of Ivan iv Groznyi. Under tsar Boris Godunov the Romanovs, who had reached great prominence under Ivan iv and his son tsar Fedor, fell into disgrace and Fedor Romanov was forced to become a monk. He returned from exile in a remote monastery under the First Pseudo-Dmitrii, who made him metropolitan of Rostov. He left the camp of the Second Pseudo-Dmitrii in time and then headed the delegation which was sent to Warsaw in August 1610 for the negotiations with king Sigismund about the Russian succession. When these talks collapsed, he was taken prisoner by the Poles and spent the next nine years in Polish captivity, to return to Moscow in 1619, where his son Mikhail had in the meantime become the first Romanov tsar. Whether the deposition of Vasilii was formalized as a decision of the Zemskii sobor or whether it was the outcome of a conspiracy of boyars, successfully invoking the dissatisfaction affecting the common people, is a matter of dispute; cf. Cherepnin, Zemskie s­ obory, 160–167.

786

chapter 30

government.25 It declared tsar Vasilii Shuiskii as deposed and indicated that its main concern would be the election of a new tsar. In the same month the Thief of Tushino was defeated and killed. A land assembly, meeting in August 1610, decided to invite the Polish crown prince Władysław (*1595) to accept the Russian throne.26 This decision, however, was never implemented because of disagreements with Władysław’s father, the Polish king Sigismund iii Wasa. At that point the Time of Troubles had reached its nadir. Moscow was occupied by Polish troops and the government of the seven boyars had lost its grip of the situation. Various armed bands roamed the country. The year 1611 passed in a long sequence of private wars, shifting alliances and invasions by foreign armies. Novgorod was taken by the Swedes, Smolensk by the Poles. Russia seemed to be disintegrating completely. Recovery started in the provincial towns where the urban population took the initiative into its own hands. Foremost was Nizhnii Novgorod, where a charismatic merchant and local notable, Kuz’ma Minin, began organizing the citizenry in the autumn of 1611. He allied himself with prince Dmitrii Pozharskii, an experienced military commander and local landowner. The forces put in motion by these two leaders swept over the country and found ready support in many other regions. In October 1612 Moscow finally fell to the new national army of Pozharskii and Trubetskoi (the commander of a Cossack army which had joined Pozharskii’s forces). A new land assembly was convoked and began its deliberations in January 1613 in order to elect a new tsar. On 7 February 1613 Mikhail Romanov (*1596) 25

26

Fedor Mstislavskii’s father was Ivan Fedorovich Mstislavskii, one of the leaders of the government of the zemshchina, appointed by Ivan iv in 1564 at the beginning of the oprichnina. He was also appointed as one of the guardians of tsar Fedor by Ivan iv in his will in 1584. Fedor Ivanovich Mstislavskii was the head of the semiboiarshchina (the seven boyar’s rule) from 1610–1612. He reputedly turned down the offer to be elected tsar, although the Mstislavskii’s were closely related to the tsars. The mother of Ivan Fedorovich was a first cousin of tsar Ivan iv, she was the daughter of the grand princess Evdokiia, daughter of Ivan iii. But the Mstislavskii’s were Gediminids instead of Rurikids. This initiative was not as strange as it may look at first glance. The options were limited at that time and the Polish prince would have been required to embrace Russian orthodoxy and marry a Russian woman. The text of the treaty concluded with Poland has not been included in the major collections of Russian documents of legal history (prp, rz and PRoP). It was published in several 19th century collections; for more detail see Sergeevich, Drevnosti ii, 408–409, and Cherepnin, Zemskie sobory, 163–164, who both offer excerpts and further bibliographical references. See also R. Crummey, The Formation of Muscovy 1304–1613, London/New York, 1987, 226. Russian authors often describe the policies of the semiboiarshchina (the seven boyars’ rule) as treacherous.

The Tsar

787

was elected, the son of Fedor Nikitich Romanov, then in Polish captivity. The grounds cited for choosing Mikhail Romanov in the resolution of the Zemskii sobor were his family connections with the old dynasty.27 In settling on a poorly gifted boy as a compromise candidate, the various factions determining the outcome of the election avoided making a choice which would seem unfairly advantageous to one of them. The situation was fundamentally changed when Mikhail’s father, Fedor Nikitich (then patriarch Filaret), was released by his Polish jailers in 1619. The energetic and forceful Filaret ruled Russia officially together with his son, the tsar, but was in fact the decisive force, until his death in 1633. When tsar Mikhail died in 1645, he was succeeded without difficulty by his only son Aleksei, who, like his father, was 16 years old when assuming the dignity of tsar.

The Tsar’s Court

The court of a truly medieval or pre-medieval ruler was a significant locus of law, in that it was a place where law originated and was administered. This aspect of the princely court diminished with the growing complexity of government. The creation of law and the administration of justice were then located elsewhere. The court of the monarch continued and even grew as an organized entity, but its institutional relevance in legal history diminished, although it did not disappear, as demonstrated by the third chapter of the Ulozhenie of 1649: “About the Court of the Sovereign, that there will not be any misbehaviour or fighting by anyone in the Sovereign’s court”. The nine provisions of this chapter lay down heavy penalties for all kinds of fights, brawls, etc., in the tsar’s palace. The chronicles contain many stories about such happenings in the court of the Moscow grand prince. Most provisions distinguish between misbehaviour in the presence of the tsar, which attracted more severe punishment, or in his absence. Most of them also envisage situations arising in the tsar’s (Moscow) palace, but several provisions extend the protective regime of this chapter also to the surroundings of the tsar on his travels. 27

prp iv, 563–565; PRoP iii/2, 233–234. As mentioned above, his father was a first cousin of the last fully legitimate tsar, Fedor Ivanovich. It seems that in the view of the contemporaries the close genealogical links with the last Rurikid rulers were more important than the legitimacy provided by the resolution of the Zemskii Sobor; see M. Perrie, “Izbrannyi tsar’ i prirozhdennye gosudari: Mikhail Romanov i ego soperniki”, A.P. Pavlov (ed.), Gosudarstvo i obshchestvo v Rossii xv – nachala xx veka. Sbornik statei pamiati Nikolaia Evgen’evicha Nosova, Sankt-Peterburg, 2007, 233–246.

788

chapter 30

The old court ranks of boyars, okol’nichie, etc., as they existed under the Moscow grand princes, survived until the era of Peter the Great, who replaced them with an entirely new system in 1722, the Table of Ranks, which listed court ranks as a third category along with military and civil ranks. Still, the strict separation known in modern times between the royal court as a symbolic forum for state ceremonial and international representation of the state, and, on the other hand, the actual government of the state as realized in offices and courthouses, was unknown during the regime of the tsars. Emerging government departments, the prikazy, were initially located in the sprawling ensemble of the Moscow Kreml. The machinery of government as it started to blossom into an independent institution was run by courtiers, whose chanceries were in the immediate vicinity of the tsar’s residence. Their rise, organization and operation will be discussed in the next chapter.

chapter 31

The Tsar’s Government

A Boyar Duma?

In the earliest times, the prince would conduct his business (in which no clear distinction between government and the prince’s private affairs could be made) in the company of his druzhina, his comrades-in-arms, and out of this informal consultation grew the later practice of the prince deciding important matters after receiving the advice of his boyars. This was discussed in the first part of this work in Chapter 14, in the section on the Boyar Duma, and the controversies concerning the character of this body in Kievan and post-Kievan times continue when one investigates the role of the Boyar Duma in Muscovy. It is undeniable that in the course of the 16th century the participation of boyars in government became a regular feature, to the extent that it could be designated as an institution of the central government. What remains ­questionable is whether a “Boyar Duma” could be regarded as a comparatively independent body, functioning alongside the monarch himself. The view that this was indeed the case is widespread and goes back to Kliuchevskii who devoted one of his major works to the Boyar Duma, its history, its powers, its organization, etc.1 The controversy concerning the Boyar Duma provides an apposite illustration of the dilemma indicated in the section on Medieval History in Chapter 1. In order to understand more detailed topics, one requires some general understanding of the historical context. But such a general understanding has to be based primarily on knowledge of detailed topics. Kliuchevskii’s conceptualization of the Boyar Duma has imposed itself on the views of many historians, because it is neat, attractive, and generally consistent with the available facts. But the alternative view, put forward by Sergeevich, is also consistent with the facts, and it is simpler.2 Sergeevich argued that the autocratic power of the tsar, the samoderzhavie, constituted the ground rule. The tsar was free to delegate or 1 V.O. Kliuchevskii, Boiarskaia Duma Drevnei Rusi, Moskva, 1902 (3rd ed.), repr. Moskva, 1994. 2 Sergeevich, Drevnosti ii, 384–430; in this part of a longer chapter on the prince’s council (371–453) Sergeevich explained his own view on the Boyar Duma; in the following chapter (454–517) he argued against the views of Zagoskin, Kliuchevskii, Vladimirskii-Budanov and several other authors. The question has also been discussed by him more briefly in Lektsii, 269–279.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_032

790

chapter 31

to invite advisors, but this in no way restricted his freedom of action. It would therefore be misleading, from a legal point of view, to speak of the competence or (legal) powers of other public agencies. Sergeevich did not deny the almost permanent presence of advisors around the tsar, but rejected the existence of a clearly defined body in possession of circumscribed powers. The Chosen Council An independent action of a council of boyars could only occur under exceptional circumstances. Such circumstances arose several times during the Time of Troubles, when there was temporarily no functioning monarch. Another example would be the first years of the reign of Ivan iv, when on account of his youth actual political power and initiative were in the hands of a “Chosen Council” (Izbrannaia Rada), which was similar in its composition to a boyar council as it occasionally operated later on. The Council came into being in 1547 after the great fire of Moscow; this event provoked serious riots in Moscow,­ which deeply shook the young tsar. For many years after that he put his trust in a small group of advisors, headed by A.F. Adashev, one of the most talented ‘prime ministers’ Russia ever had. Among the other members of the Council were Sil’vestr, a well-educated and charismatic priest who also served as the tsar’s spiritual advisor, the princes A.M. Kurbskii and D.I. Kurliatov, and the d’iak (secretary) I.M. Viskovatyi who, together with Adashev, handled Muscovy’s foreign policy. After the death of his first wife Anastasia in 1560, Ivan iv lost faith in his council and all its members fell into disgrace.3 Although Russian historians have disagreed and continue to disagree about the institution of a Boyar Duma, it seems that everyone is willing to admit that Adashev’s council constituted the actual government of Muscovy, together with tsar Ivan iv, during the years following the events of 1547.4 There are also clear indications that this government, inspired most likely by the example of ­Poland-Lithuania, attempted to balance the powers of the tsar with those of the higher aristocracy. 3 Adashev died in prison, Kurbskii fled to Lithuania (from where he started his famous correspondence with Ivan iv), Kurliatov and Viskovatyi were executed, and Sil’vestr was sent to a monastery. 4 Zimin has published a list enumerating appointments of boyars during the 1550–1560 period, taking for granted that the persons mentioned on the list constituted the Boyar Duma. However, there was no mention of a boyar duma on the list, which merely gave the names of persons appointed during the active period of Adashev’s Chosen Council. The same source (the “Court Notebook”, Dvorovaia Tetrad’) also gave a list of okol’nichie appointed during the same period and nobody would suggest that there ever was a council of okol’nichie. Cf. A.A. Zimin, “Dvorovaia tetrad’ 50-kh godov xvi v. i formirovanie sostava Boiarskoi dumy i dvortsovykh uchrezhdenii”, Arkheograficheskii Ezhegodnik xii, Moskva, 1981, 28–47.

The Tsar’s Government

791

The unofficial designation Izbrannaia Rada goes back to the famous correspondence between prince Kurbskii and Ivan iv, where it was used by the former. Boyars, “All Boyars”, the Boyar Duma Turning to the documentary record now, the first observation should be that the Boyar Duma made its first appearance in the 19th century as a construct of historians. There are all kinds of indications from earlier sources of groups of prominent people serving as advisors to the ruler, but the closest one gets to something like a boyar council is the references to “the tsar’s council” (­ tsarskii sigklit) in chronicles and similar sources and occasionally in official documents, such as the preamble to the Council Resolution (Sobornoe ulozhenie) of tsar Vasilii Shuiskii of 1607, which mentioned that the resolution had been reached after consultation with the patriarch, the Holy Council, and the tsarskii sigklit.5 (The joint participation of the Holy Council and a council of dignitaries actually made the assembly qualify as a land assembly (Zemskii sobor), which is also suggested by its title of Sobornoe ulozhenie; see the following section.) The designation sigklit (sigklet, sinklet),6 unlike “boyar duma”, is regularly encountered in contemporary sources from the 16th and 17th century, where it referred generally to an advisory collective, serving the tsar, without any connotation of it being a body with specific powers or a fixed composition. The activities of a circle of advisors serving the prince are well-known from earlier periods. Such people already appeared in the preambles to the Pravda of Iaroslav’s Sons and of the Statute of Monomakh. The Testament of Monomakh, included in the Primary Chronicle, enjoined the prince as part of his daily routine “to sit and deliberate with your retinue”. For the following centuries evidence is scarce, but from the middle of the 16th century (the beginning of the reign of Ivan iv) the participation of boyars is well-documented. An interesting example from earlier times is a charter from the Riazan’ grand prince Oleg Ivanovich from around 1371, in which a village was granted to the Mother of God monastery in Ol’gova Sloboda. The prince mentioned that he acted with the blessing of the bishop of Riazan’ and Murom and after consultation with his boyars, and then added: “and the boyars who were with me were [nine names follow]”.7 5 prp iv, 586. 6 From Greek σύγκλητος, “something that has been called together, senate”. The term is used, for instance, in the correspondence between Ivan iv and Kurbskii, in reference to the Chosen Council. 7 The charter is mentioned by Sergeevich, Drevnosti ii, 379–380; full text in asei iii, No.322, 350–352.

792

chapter 31

The Code (Sudebnik) of 1550 is often mentioned as an indication of the existence of a boyar council, because its preamble related that the Code had been established by the tsar, “together with his brothers and boyars”. This formula was clearly inspired by the Code of Ivan iii of 1497, established by the grand prince, “together with his children and boyars”.8 At that time there was no sign of any boyar council, so the formula has little evidentiary value. There is a large number of decisions in which the participation of boyars is mentioned, dating from the century between the two Codes (of 1550 and 1649). Reference is made to “boyars” or “all boyars”, but not to a more specific “boyar council”. The distinction between decisions concerning specific disputes or ­requests (adjudication) and resolutions establishing general rules to be applied in future (legislation) is not made, as a modern lawyer would do. And even a modern observer cannot help noticing that the two categories often overlapped, when an individual case had been submitted, resulting in a decision expressed as a general regulation. The decisions of government departments (prikazy) were often taken in order to resolve a particular case or dispute and then at the end of the decision its effect was extended to all future similar cases. In Sergeevich’s view, the participation of boyars in decision-making was to be set against the background of the absolute supremacy of the power of the tsar. In principle, the tsar decided everything, and often enough he did not bother to consult any advisors. There are numerous decisions, of a regulatory nature as well as in individual cases, where the tsar is mentioned without any reference to boyar participation. The usual expression was tsar’ ukazal (“the tsar directed”). In most cases, the matter was presented to the tsar by a reporter, often a boyar or somebody of slightly lower rank (such as an okol’nichii). In more complicated cases, the tsar would surround himself with some trusted advisors, selected by himself. They usually included a few boyars and okol’nichie, d’iaki (secretaries, clerks, who wrote down everything and who were in fact often the real experts), and perhaps a few experienced and competent officials from the lower nobility (dumnye dvoriane). They were collectively referred to as “the boyars” and they could be asked to give an opinion about the report (doklad) that had been presented and/or to formulate the tsar’s brief decision in a more extensive manner. This decision then used such terms as tsar’ ukazal i boiare prigovorili (“the tsar directed and the boyars spoke/judged/ expressed themselves”).9 8 Ivan iv was still childless in 1550. 9 E.g. prp v, 237, a decision of 1647, taken on the doklad (report) of the okol’nichii B.I. Pushkin and two clerks.

The Tsar’s Government

793

As indicated above, among the questions decided by the tsar after hearing the opinion of (a few) boyars, review of decisions of various courts constituted a major proportion. In the course of time the practice emerged of a small number of boyars and d’iaki preparing cases to be reported to the tsar. As such committees acquired more experience, the tsar was increasingly inclined to leave the handling of routine matters entirely to them. In the second half of the 17th century this practice was consolidated in the appearance of the Raspravnaia Palata (Justice Chamber), also known as the Zolotaia Palata (Golden Chamber, from the place where it convened), as a more or less regular supreme court.10 The Code of 1649 already referred to the emerging practice in art. 2 of Ch. 10.11 This body, of course, is not to be confused with a Boyar Duma. (See further Chapter 38, on Courts and Justice.) A small number of decisions is reported as taken by the tsar “with all the boyars”. Several are from the first few years of the reign of Ivan iv, and Sergeevich observed that during these years Ivan’s principal advisors, Adashev and the priest Sil’vestr, attempted to bring about a system in which a boyar council would constitute a counterweight to the power of the tsar.12 An important decree on slavery/serfdom was issued in 1597 by tsar Fedor Ivanovich “with all boyars”.13 Tsar Fedor was the ineffective son of Ivan iv who ruled only in name, while in fact his brother-in-law Boris Godunov controlled the government. The decree formed part of Godunov’s policies towards the transformation of slavery into serfdom. These various circumstances may explain the format of the decree. Another special case is offered by a decree of 1603 of tsar Boris Godunov­and the tsarevich Fedor, “with all the boyars”, on manumitted slaves.14 Godunov’s parlous political position at that time, his patent eagerness to boost the status of his 16-year-old son Fedor, and the subject itself (the boyars were among the principal owners of slaves) may again explain the involvement of “all boyars”. What makes the formula of “all boyars” more puzzling is that its content is uncertain. It would of course include persons who had individually been elevated to boyar status, as often happened under 10 11

12

13 14

Cf. Sergeevich, Drevnosti ii, 439–450. Also Kliuchevskii, Boiarskaia Duma, 430–433. “Disputed cases which for some reason cannot be resolved in the prikazy [departments], are to be referred from the prikazy to […] the tsar […] and his […] boyars and okol’nichie and duma servitors. And the boyars and okol’nichie and duma servitors shall sit in the chamber and handle all the sovereign’s cases all together, in accordance with the sovereign’s decree.” prp iv, 363–370, a lengthy general regulation of 1556 on guba matters, including an instruction to append it to the Code of 1550; prp iv, 583–586, of 1555–1556, partial abolition of mestnichestvo system. prp iv, 370–374. prp iv, 375.

794

chapter 31

Ivan iv and his successors. But prominent members of leading princely families would probably also have been regarded as boyars. The boyars envisaged by the standard formula i boiare prigovorili (“and the boyars gave their judgment”) obviously included the few non-boyars (okol’nichie, Duma nobles and Duma clerks) who had taken part in the deliberations. In the conception of a Boyar Duma as a well-defined body this problem is easier to solve (“all boyars” would then be all members of the Boyar Duma). (See also the section on boyars in Chapter 19, and Chapter 32, on Territory and Population). In exceptionally weighty decisions, such as the adoption of the Codes of 1550 and 1649, the involvement of boyars would probably refer to anybody who could reasonably be considered to enjoy boyar status and who was present at the grand session concerned. The years of the oprichnina of Ivan iv, starting in 1564, added a special twist to the story of boyar involvement at the highest level of government. In the decree introducing the partition of the entire state (territory, government, administration) into two parts,15 Ivan regulated the affairs of his “special share” (the meaning of oprichnina) in considerable detail and assigned “the state of Muscovy, the army, justice, government, and all other national [zemskie] matters” cavalierly to his boyars, specified as “prince Ivan Dmitrievich Bel’skii, prince Ivan Fedorovich Mstislavskii and all boyars”. A number of boyars, however, had been selected by Ivan to be included in his oprichnina administration. Departmental officials (in the prikazy) were ordered to continue working as before and to report to “the boyars” instead of to the tsar, as had happened before. The boyars of the non-oprichnina part of the country (the zemshchina) were left free to decide the matters left to them, except in military and “important national [zemskie]” affairs, where they had to report to the tsar as before. Sergeevich did not use the term “boyar duma”, but accepted that there was a board of boyars which carried out the extensive duties entrusted to “the boyars”.16 On the other hand, regular government soon became impossible when a veritable regime of terror was unleashed in which most of the prominent members of the zemshchina administration were swept away. The short intervals during the Time of Troubles when there was no functioning tsar constituted an exception. Then of course only boyar judgments could be expected, especially during the short period of the semiboiarshchina (the seven boyars’ rule) from 1610 to 1612. 15

The actual text of the decree has been lost, but Karamzin (ix, footnote 137) has a very long quotation, taken from the Aleksandr Nevskii Chronicle (Aleksandro-Nevskaia Letopis’, psrl xxix), which has the appearance of being very close to the authentic text. See also Sergeevich, Drevnosti ii, 432. 16 Sergeevich, Drevnosti ii, 432–438.

The Tsar’s Government

795

On 17 August 1610 the boyar government concluded a treaty with the Polish commander-in-chief, hetman Stanisław Żółkiewski, concerning the succession of the Polish crown prince Władysław to the Muscovy throne. This treaty considerably restricted the rights of the monarch, who required the assent of boyars and duma members (dumnye liudi) in numerous instances. Again, there was no mention of a boyar duma, and the ruling band of boyars was obviously thinking of itself.17 To complete the picture the aspect of the prikazy (departments) has to be added. These departments, taking shape during the early years of the reign of Ivan iv, were headed by appointed boyars and were assigned specific government concerns. Occasionally, the tsar would delegate a complicated matter entirely to a group of boyars, with or without specific instruction on how to decide. These are the cases where one can speak of a boyar judgment (boiarskii prigovor).18 For legal history, the Robbery (or Brigandage) Department was of particular importance because it played a central role in the administration of criminal justice. It formulated new criminal law and also served as an appellate court.19 The tsar himself would occasionally be present and decide questions personally.20 Art. 98 of the Code of 1550 The last four articles of the Code of 1550 could be regarded as concluding provisions (art. 97 deals with retroactivity, art. 99 with the promulgation of the Code, and art. 100 is an appendix concerning jurisdiction of apanage princes), of which art. 98 is the most fundamental and also the one that has been the subject of endless disputes.21 It reads: “And whatever new cases will come up 17

18

19 20

21

The treaty was based on, but different from, an earlier draft treaty of 14 February 1610, between a group of leading boyars, who had taken the side of the Second Pseudo-Dmitrii against tsar Vasilii Shuiskii, and the Polish king Sigismund. Cf. Sergeevich, Drevnosti ii, 408, and L.V. Cherepnin, Zemskie sobory russkogo gosudarstva xvi–xvii vv., Moskva, 1978, 163–164. E.g. prp iv, 376, a decision of 1606, taken by the boyars of the Serfdom Department, with an instruction to add the decision to the (copy of the) Code (of 1550), as kept in the Department. A number of boyar judgments from the Razboinyi Prikaz in prp v, 201–202 (1619), 202–203 (1620), 203 (1624), 204–205 (1625), 205–206 (1628), 206–207 (1628), 217–220 (1636). E.g. prp v, 224–225 (1637). Apart from tsar Mikhail and the reporter okol’nichii M.M. Saltykov, the boyars prince I.B Cherkaskoi, F.I. Sheremetev, and prince Iu.Ia. Suleshev, as well as the Duma clerks I. Gavrenev and M. Danilov were reported to be present. This discussion is the topic of a special paper by I.Ia. Froianov, which summarizes the various viewpoints presented since Kliuchevskii; I.Ia. Froianov, “Kommentarii k stat’e 98

796

chapter 31

that have not been described in this Code, such cases shall be appended to this Code as they have been decided by the sovereign’s report and in accordance with the judgment of all boyars.” It is the last two terms in particular that have caused most problems. The words are z gosudareva dokladu i so vsekh boiar prigovoru. The adjectival form of gosudarev doklad allows the reading that the tsar was the one to whom the doklad was made or that he was the author of the doklad. Many authors have concluded that this provision implied joint decision-making (concerning additions to the Sudebnik) by the tsar and a council of (all) boyars, and that it therefore offered additional evidence for the existence of a Boyar Duma. Sergeevich accepted the conclusion that art. 98 restricted the tsar’s freedom to legislate by requiring the agreement of another power.22 He viewed the inclusion of art. 98 in the Code of 1550 as an attempt by Adashev and Silvester to bring about a constitutional reform which would introduce some kind of balance of powers, such as existed in other contemporary states, into the body politic of Muscovy. In practical terms, he felt, the position created for “all the boyars” by art. 98 would in fact be appropriated by the Chosen Council; in the end, however, the provision remained a dead letter, because it was rejected, as was the entire Chosen Council, by Ivan iv. In Conclusion The still dominant view is that there was an official body, the Boyar Duma, its members appointed by the tsar (presumably), which functioned concurrently with the tsar as co-legislator and as supreme court. This view goes back to Kliuchevskii and Vladimirskii-Budanov. All instances of boyar ‘judgments’ (decisions) referred to above are then regarded as manifestations of the activities of this boyar council, even though a boyar duma is never mentioned as such. Samoderzhavie, as a specific form of Russian autocracy, is however an undeniable fact and was explicitly recognized as such by contemporaries. The Boyar Duma is not only an invention of 19th-century historians, its supposed role in the government of Muscovy is also difficult to reconcile with Muscovy autocracy. And, moreover, how could a body whose composition was apparently completely dependent on the wishes of the tsar act as a more or less

22

Sudebnika 1550 g.”, A.Iu. Dvornichenko (ed.), Issledovaniia po istorii srednevekovoi Rusi. K 80-letiiu Iuriia Georgievicha Alekseeva, Moskva/Sankt-Peterburg, 2006, 145–155. Drevnosti ii, 404–408.

The Tsar’s Government

797

independent co-ruler? Application of Occam’s razor would clearly favour the approach taken by Sergeevich.23 Autocracies are affected by an inherent instability, because it is difficult to solve the inevitable succession problem in a satisfactory way. Unstable and even chaotic intervals are therefore a common phenomenon, and in such situations small cliques of prominent politicians will take control. But these intervals themselves are unstable and temporary because they are in fact power struggles in the process of selecting a new autocrat. In sum: 1. 2.

3.

4. 5.



A Boyar Council as such is nowhere mentioned in the sources. In certain cases a person’s status as boyar is clear (when he has been appointed as such, when he is a boyar vvedennyi or boyar putnyi); in other cases boyar rank may be assumed (e.g. members of the most prominent Rurikid families); other prominent noblemen (vel’mozhi) may customarily be regarded as boyars. All in all, the boyar class cannot be precisely defined. There is ample evidence that the formula boiare prigovorili (“the boyars advised/judged/decided”) usually referred to matters in which also other persons, not enjoying boyar rank, participated (okol’nichie, dumnye dvoriane, dumnye d’iaki). The tsar could decide matters alone, or he could do so in the company of advisors invited by him – an ad hoc Boyar Duma. When for whatever reason the autocratic decision-making process was stalled (absence of tsar, inability of tsar, etc.), a group of magnates would usually take control and constitute a temporary government, which could also be designated as a Boyar Duma. The Land Assembly (Zemskii Sobor)

The Land Assembly (Zemskii sobor) emerged in the middle of the 16th century, when the Old-Russian popular assembly, the veche, had disappeared everywhere. As explained in Chapter 15, the veche only survived the Mongol conquest in the Russian North-West, in particular in Novgorod and Pskov. But 23 Froianov, op. cit., 151, after a critical discussion of the principal viewpoints, concluded that the view of Sergeevich was to be preferred. Alekseev, U kormila, 276, also seems to belong to the agnostics, where the Boyar Duma is concerned.

798

chapter 31

after the subjugation of these territories under Ivan iii, veche meetings were thenceforth forbidden. Comparisons between the veche and the Zemskii sobor are a recurrent theme in Russian historiography and, of course, similarity cannot be completely rejected. Both bodies represented popular assemblies, but did they not have much more in common. It would be misleading to regard the Land Assembly as a kind of successor to the veche.24 The latter was intrinsically connected with a considerable amount of urban autonomy, especially in Novgorod and Pskov, and veches could generally be convoked by the population itself. The presence of the local prince was not required, although it was by no means uncommon. In Novgorod and Pskov the veche regularly dismissed the ruling prince. The Land Assembly, as it arose under Ivan iv, was a body which only functioned within a relationship of complete dependence of the prince (the tsar). Only in later years, especially during the Time of Troubles, might a situation occur when there was no tsar available, and then, depending on various factors, the Land Assembly would sometimes act on its own. Historiography The Land Assembly of Muscovy is a subject that has evoked much more resonance in the national history debate than the Boyar Duma. Whatever conception one embraces about the latter affects one’s view of the nature of autocracy in Muscovy, whether the monarch did in fact share power to some extent with the higher echelon of the aristocracy. The way one understands the Land Assembly has much wider ramifications, not only for the appreciation of samoderzhavie, but also for the idea of popular representation, the legitimation of political power, the impact of Orthodoxy (as opposed to the political culture of Western Europe), etc. The 19th-century slavophiles regarded the Zemskii Sobor­as an authentic Russian creation, radically different from the ‘estates’ of medieval­ Europe.25 Others then felt that it was in many ways comparable to West-European institutions.26 24 25

26

The slavophiles in particular were fond of this idea. The term Zemskii Sobor itself was coined by K.S. Aksakov (1817–1860) one of the founders of the slavophile movement. It was taken up by the legal historian I.D. Beliaev in his work Zemskie sobory na Rusi. Ot Ivana Groznogo do Ekateriny Velikoi, Moskva, 1867 (reprint of 3rd ed., Moskva, 2011). Pavlov-Sil’vanskii (1869–1908), in line with his general inclination to play down differences between medieval Russia and medieval Western Europe, was a strong supporter of this approach; cf. N.P. Pavlov-Sil’vanskii, Feodalizm v Rossii, Moskva, 1988, 133–138 (this publication combined Feodalizm v Drevnei Rusi, Sankt-Peterburg, 1907, and Feodalizm v udel’noi Rusi, Sankt-Peterburg, 1910).

The Tsar’s Government

799

In his posthumously published “Land Assemblies of the Russian State in the 16th and 17th century” L.V. Cherepnin provided an extensive overview of pre-revolutionary, Soviet and foreign writings on the subject.27 For the time being, Cherepnin’s study remains the most recent comprehensive monograph on the land assemblies,28 a successor to the major studies on this topic from the pre-revolutionary past by Latkin and Sergeevich.29 Among the works of Soviet authors, M.N. Tikhomirov’s lengthy study of the Land Assemblies of the 16th century (up to 1598) deserves to be mentioned.30 Among the most important studies by Western authors Torke’s work has been the most comprehensive.31 Other significant contributions were made by Szeftel, Stökl and Keep.32 The Definition and the Legal Nature of the Land Assembly In matters concerning the central institutions of Muscovite Russia certain questions of legal philosophy cannot be avoided in a determined interrogation of the information available. 27

L.V. Cherepnin, Zemskie sobory russkogo gosudarstva v xvi–xvii vv., Moskva, 1978, 5–47 (hereafter quoted as Cherepnin, Zemskie sobory). Cherepnin was brief in referring to Western scholarship, arguing “Certain observations of the authors mentioned deserve attention, but they mostly proceed from the results of the pre-revolutionary Russian bourgeois historiography”. Only H. Torke, Die Staatsbedingte Gesellschaft. Zar und Zemlja in der altrussischen Herrschaftsverfassung 1613–1683 (Leiden, 1974) was considered “a serious study”. 28 A modest number of more narrowly focused studies have appeared afterwards, notably Ia.G. Solodkin, “K istorii zemskikh soborov kontsa xvi v.”, S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, 11, Moskva/Sankt-Peterburg, 2007, 363–385. 29 V.I. Sergeevich, “Zemskie sobory v moskovskom gosudarstve”, V.D. Bezobrazov (ed.), Sbornik gosudarstvennykh znanii, ii, Sankt-Peterburg, 1875, 1–60, also in Sergeevich, Lektsii, 172–245; V.N. Latkin, Zemskie sobory v drevnei Rusi, ikh istoriia i organizatsiia sravnitel’no s zapadno-evropeiskimi predstavitel’nymi uchrezhdeniiami. Istoriko-iuridicheskoe izsledovanie, Sankt-Peterburg, 1885. 30 M.N. Tikhomirov, “Soslovno-predstavitel’nye uchrezhdeniia (zemskie sobory) v Rossii xvi veka”, M.N. Tikhomirov, Rossiiskoe gosudarstvo xv–xvii vekov, Moskva, 1973, 42–70 (hereafter quoted as Tikhomirov, Zemskie sobory). 31 Torke, op. cit. supra, who devoted a long chapter (Chapter 4: 119–215) to “Die moskauer Versammlungen”. 32 M. Szeftel, “La participation des assemblées populaires dans le gouvernement central de la Russie depuis l’époque kiévienne jusqu’à la fin du xviiie siècle”, Receuils de la Société Jean Bodin, t.25, Bruxelles, 1965, 339–365 (Ch. 2 on the zemskie sobory, 346–361). G. Stökl, “Der Moskauer Zemskij Sobor. (Forschungsproblem und politisches Leitbild)”, Jahrbücher für Geschichte Osteuropas, Neue Folge 8, 1960, 149–170. J. Keep, “The Decline of the Zemsky Sobor”, The Slavonic and East European Review, xxxvi, London, 1957, 100–122.

800

chapter 31

What has been noticed with regard to the Boyar Duma – that an institution comes into being by being given a name – equally applies to the Zemskii Sobor. The institution then exists in the world of ideas. Whether there is anything in the real world which relates to this idea is another question. In the case of the Boyar Duma the answer, in the view of some (including the present author), is cautiously negative. The tsar was usually surrounded by a group of counsellors, but the composition of this group was subject to the tsar’s whim and constantly changing; only in exceptional circumstances, when the figure of the tsar as the pivot of the political system was absent, might a temporarily stable team of boyars wield decisive influence on government. Although the Zemskii Sobor, like the Boyar Duma, received its name only in the 19th century, its existence in the real world is well-documented. The joint meeting of the Holy Council and an assembly of boyars, convoked by Ivan iv (or rather by the Chosen Council which guided the tsar during these early years of his reign) in January 1549, was followed by numerous similar meetings in the course of the 16th and 17th centuries. The composition of the meeting was usually enlarged later on, to include the lower service nobility, urban representation, and even peasants, but the presence of the highest dignitaries of the Church and the state remained a permanent and decisive feature.33 Inevitably, the question of the definition of the Land Assembly has attracted the attention of many scholars. This has resulted in serious disputes about whether a certain meeting of church and state dignitaries and representatives of various social groups was to be considered a zemskii sobor or not. “The question of the definition has therefore not been solved after 1917 in the Soviet Union.”, as Torke observed in 1974.34 This remark summarizes the misunderstanding at the bottom of the disputes. No authority exists which can impose a binding definition of something like the Russian Land Assembly. The question of the definition can therefore not be resolved, because there is no single correct solution. It all depends on the individual scholar’s preference. It is, however, possible to describe the Land Assembly in very general terms, in a way that is not quite adequate, but still acceptable to most scholars as a starting-point. Within this wide category one may then introduce finer distinctions narrowing down the subject. This will allow the selection of a number of meetings that satisfy the criteria and the rejection of others that do not. 33

A few Land Assembly meetings that took place under wartime conditions or in the field were conducted without participation of the clergy, the meeting outside Moscow in June 1611 during the siege of Moscow being the most conspicuous example. 34 Torke, op. cit., 127.

The Tsar’s Government

801

Individual preferences will then produce different lists, all of them “correct”, provided the criteria chosen have been applied consistently. One could suggest, by way of a general description, that the Russian Land Assembly of the 16th and 17th centuries would at least have been considered at the time as the representation of the country, by counting among its members the most prominent representatives of the Church and of secular society. Bodies satisfying these conditions appeared frequently during the period indicated, although the composition of the individual assemblies varied greatly. In the most recent Russian monograph on the Land Assembly, Cherepnin approached the definition question from a terminological angle. He pointed out that zemskii referred to matters of importance to the state or the whole country, and sometimes also to “civil” as opposed to “military” questions. A sobor, he continued, referred most often to an assembly of church dignitaries, in which also the prince or other secular personalities might participate. On the basis of these considerations he proposed that zemskie sobory in the fullest sense of the term would be assemblies (of church and secular dignitaries) dealing with matters of “grand policy”, of general interest to the state. Then there would be other assemblies, frequently also designated as zemskie sobory, which did not quite satisfy his description as they dealt only with military issues, or judicial questions, or where the assembly served to allow the tsar to address a wider public.35 Although terminology which only arose centuries afterwards may not be the most fortunate starting-point, Cherepnin’s approach is entirely workable. At the end of his study he presented a list of 57 assemblies of which some record has survived, adding several caveats. One concerned the uncertainty of the number, because several assemblies met repeatedly over a period of time. Some known assemblies were not included, because their only business was to act as a (political) court in a particular case, or they were called during a military campaign as a war council.36 The undeniable existence of the Land Assembly as a political institution with certain lasting characteristics still leaves the question of its legal nature, and the answer to this question depends to a great extent on one’s concept of law. The more pragmatic approach adopted in this work concurred with the view of Sergeevich on the Boyar Duma (that this body did not have a circumscribed composition and did not enjoy a clearly defined competence) and 35 Cherepnin, Zemskie sobory, 63–66. 36 Such as the trials of Adashev and Silvester in 1560 and of metropolitan Filipp in 1568, or an assembly in Vladimir in 1550 in connection with the war with Kazan’; cf. Cherepnin, Zemskie sobory, 89–91.

802

chapter 31

r­ esulted in the conclusion that the Boyar Duma could scarcely be regarded as a legal institution, although the activities of the officials surrounding the tsar would often have legal consequences. In the case of the Land Assembly this aspect is less troublesome, because its activities, rights and duties were in many respects outlined in advance by the tsar or by whoever was convoking an assembly. The Composition and Development of the Zemskii Sobor In his attempt to reach a definition of the Zemskii sobor, Cherepnin distinguished between various types, the distinction being based on the subject matter of the assembly concerned. Elsewhere in his work, he proposed another categorization, this time based on the manner of convocation: by the tsar; by the tsar at the request of the ‘estates’; by the ‘estates’ themselves during the absence of a tsar; for the purpose of electing a tsar.37 A third approach, also mentioned by Cherepnin, is by considering the composition of the assembly.38 From a politico-legal point of view, the composition aspect is indeed of at least equal weight as the subject matter of an assembly, and more important than the question of the manner of convocation. Almost all authors regard a meeting that took place on 27–28 February 1549 as the first Zemskii sobor.39 The main source for this assembly is a chronicle which related that the tsar received the metropolitan and the entire Holy Council, and a company of boyars, okol’nichie, and other high-ranking court officials (dvoretskie and kaznachei) in his palace.40 A brief summary of the transactions followed. The report then continued that the tsar, apparently on the same day, addressed the (representatives of the) lower nobility (voevody, deti boiarskie and dvoriane bol’shie). The second Zemskii sobor on Cherepnin’s list was the assembly where the Stoglav (see Chapter 25, on the Stoglav) was adopted. All information concerning the composition of this assembly has to be derived from the text of the Stoglav itself. The presence of the members of the Holy Council (metropolitan, bishops, abbots and a few others) and the tsar himself is mentioned of course, but the evidence for the presence of others is meagre and consists only of some passing utterances about the tsar’s relatives and his boyars. 37 Cherepnin, Zemskie sobory, 385. 38 Ibidem, 386. 39 Cherepnin, Zemskie sobory, 68–78; Tikhomirov, Zemskie sobory, 43–52. 40 The chronicle in question is the Prodolzhenie (Continuation) Khronografa, psrl xxii, Sankt-Peterburg, 1911, 528–529. Text also in prp iv, 575–576 and in B.D. Grekov (ed.), Sudebniki xv–xvi vekov, Moskva/Leningrad, 1952, 183. See also Cherepnin, Zemskie sobory, 68–78.

The Tsar’s Government

803

The assembly of January 1565 took place under the most dramatic circumstances.41 On 3 December 1564 Ivan iv had suddenly left Moscow, proclaiming that he had had enough of the traitorous behaviour of almost everybody and that he was carving out a principality for himself (the oprichnina). According to the chronicles, the church hierarchs, the secular notables (boyars, okol’nichie, lesser nobility, departmental officials, etc.) and the merchants and (other) Moscow burghers met in the metropolitan’s court, to consider the situation. This was one of the first manifestations of the emergence of something like the West-European estates in Muscovy. They each contributed their own deputations to a delegation to the tsar in Aleksandrova Sloboda. The trend continued in the following years, although there were still many zemskie sobory where only the church hierarchy and the high aristocracy were represented. Another significant aspect of the assembly of 1565 was that the Zemskii sobor appeared here for the first time as an actor all by itself, apart from the tsar. Although subsequent developments demonstrated convincingly that the Zemskii sobor was almost negligible as a potential opponent of the tsar, the precedent had nevertheless been set. Ivan iv died in 1584, after having reigned as tsar for 37 years, and was succeeded by his son Fedor. There are several communications, mostly from foreigners, about the succession procedure, but the picture remains confused.42 There was apparently a meeting of the Zemskii sobor in which Fedor was urged to accept the throne, but what was actually decided and how the assembly was constituted remains obscure.43 The succession of Fedor in 1598 by his brother-in-law Boris Godunov, on the other hand, is well-documented, not only by the extensive reports in chronicles and communications from foreigners, but especially by the texts of two official acts, the “Assembly Resolution on the Election of Boris Fedorovich Godunov as [the new] Tsar”, adopted by the Land Assembly some time between 17 February and 9 March 1598,44 and a “Confirmation Charter”, based on the Assembly Resolution and issued at a somewhat later date (July or August).45 41 Cf. Cherepnin, Zemskie sobory, 100–105. 42 Cherepnin, Zemskie sobory, 125–129; Tikhomirov, Zemskie sobory, 62–64. 43 The different theories and the sources they were based on are reviewed by Ia.G. Solodkin, who concluded that it is indeed more likely than not that the accession of Fedor was preceded by a meeting of the Land Assembly; Ia.G. Solodkin, “K istorii zemskikh soborov kontsa xvi v.”, Ocherki feodal’noi Rossii 11, Moskva/Sankt-Peterburg, 2007, 363–385, at 363–372. 44 Text of this Sobornoe opredelenie in rz iii, 36–39 and in PRoP iii/2, 225–228. 45 The Confirmation Charter is discussed by Cherepnin (Zemskie sobory, 137–143) and ­Tikhomirov (Zemskie sobory, 64–68), both referring to its publication in the 19th c­ entury series Akty sobrannye […] Arkheograficheskoiu Ekspeditsieiu (aae), t.ii, No.7, 23–24.

804

chapter 31

Although the political and legal aspects are both present in the Resolution, the former outweigh the latter. The situation the Resolution attempted to deal with was without precedent in Russian history. Tsar Fedor had died childless and without brothers or male cousins; he probably left the throne on his deathbed to his wife Irina Godunova, whose brother Boris had been the actual ruler of Russia for many years already. Boris was therefore in an advantageous starting-position from a political point of view; his legal claims, however, were weak. He did have the support of the patriarch (the Moscow metropolitanate had been elevated to a patriarchate in 1589). The solution adopted was to use the existing institution of the Zemskii sobor to bring about Godunov’s succession. A meeting, which normally would have been convoked by the tsar, was this time called by the patriarch. It embraced all the usual parties46 and was presided over by the patriarch. The Resolution listed several reasons why Boris Godunov would be the only acceptable candidate to be the new tsar. It pointed to his merits as leading counsellor of the late tsar, the fact (actually fiction) that he had already been preselected by Ivan iv and more or less appointed by Fedor, that he was the universal choice of all the delegates, that it was therefore his divine duty to accept the throne offered to him, etc. From the legal point of view, the main achievement was that the Resolution established a sort of customary right of the Zemskii sobor to elect a new tsar under certain conditions: when there was no legitimate heir and successor, and with the implied proviso that the tsar did not owe his position to the benevolence of the assembly, but to divine intervention, of which the assembly was only an instrument.

46

The Charter (text not available to me) was apparently a more elaborate version of the Assembly Resolution. The full listing of the officials requesting the succession by Godunov was as follows: “[with the blessing and prayers] of Iov, the most holy patriarch of Moscow and All Russia, of Varlaam, metropolitan of Great Novgorod and Velikie Luki, of Germogen, metropolitan of Kazan’ and Astrakhan, of Varlaam, metropolitan of Rostov and Iaroslavl’, of Gelasii, metropolitan of Sarai and the Don Region, and of all archbishops and bishops, archimandrites and abbots, and of all the monks, of the hermits and the desert hermits, the archpriests and the priests and the entire clergy, and of the full Holy Council; and at the request of the sovereign’s boyars, of prince Fedor Ivanovich Mstislavskii and all the sovereign’s boyars and okol’nichie, of the entire sinklit of the tsar, and all the sovereign’s generals, of the gentlemen [dvoriane], stol’niki, striapchie, zhiltsy, clerks [d’iaki], deti boiarskie, and the commanders and captains of the strel’tsy, and all service persons [sluzhilye liudi], of the great merchants [gosti] and the trading people, of the state peasants [chernye liudi], and of all the countless peasant people [narodnoe khristianstvo], from one end of the entire Russian state to the other”.

The Tsar’s Government

805

The Godunov precedent played a role in 1606 when, after the First PseudoDmitrii had been killed as a result of a boyar conspiracy, the victorious party was looking around for a new tsar. Prince Vasilii Shuiskii, who had been one of the principal opponents of Boris Godunov and had subsequently been one of the leaders in the overthrow of the Pseudo-Dmitrii, was accepted as the new tsar by the dominant boyar faction and other sections of the population supporting its side. The procedure leading to his election hardly deserved to be considered a Land Assembly, but an effort was made to make it look like a proper nationwide consultation. A semblance of legitimacy was conferred on his elevation by the fact that Shuiskii, unlike Godunov, was a genuine Rurikid.47 Four years later, Shuiskii’s reign ended in the same irregular and chaotic way it had started. Uncontainable riots in Moscow forced him to abdicate and according to some reports a meeting, at least resembling a Zemskii sobor, was organized which declared Shuiskii as having lost the dignity of tsar. The government of the country was entrusted temporarily to a council of seven boyars (semiboiarshchina) under the direction of prince F.I. Mstislavskii.48 One has to keep in mind that a large part of the Muscovy territory was at the time under the control of the Second Pseudo-Dmitrii, or rather of the Polish army supporting the latter. The semiboiarshchina soon entered into negotiations with the Poles, ultimately resulting in the invitation for the Polish crown prince to become the new tsar and the entry of Polish troops into Moscow. By the end of 1610 unrest in several parts of Russia increased, eventually leading to a nationwide movement known as the First National Levy (Pervoe zemskoe opolchenie). In the spring of 1611 a motley force, headed by a Riazan’ nobleman, P.P. Liapunov, the Cossack hetman I.M. Zarutskii and prince D.T. Trubetskoi, laid siege to Moscow. A Zemskii sobor was organized, which met in June. Its composition was unusual, because there was no participation from the clergy or from the urban citizenry, while on the other hand various new categories took part: “princes and mirzas” (i.e. princes from non-Russian Muscovy subjects), hetmans and Cossacks. This is to be explained by the circumstances: the meeting took place under wartime conditions.

47

48

Cf. Cherepnin, Zemskie sobory, 151–155. The text of the confirmation charter, if it ever existed, did not survive. The Shuiskii princes were descendants of Andrei Iaroslavich, a brother of Aleksandr Nevskii and the founder of the house of the princes of Suzdal’Nizhnii Novgorod. Cf. Cherepnin, Zemskie sobory, 160–167. This Mstislavskii prince was the son of Ivan Fedorovich, one of the appointed heads of the zemshchina in 1564, when Ivan iv set up the oprichnina.

806

chapter 31

The First National Levy soon fell apart after its leader Liapunov was assassinated by Cossacks (on 2 July 1611), but the Resolution of the Zemskii sobor of 30 June 1611 is one of the most interesting constitutional documents in Russian history.49 It entrusted the government to the three leaders mentioned above, making clear at the same time that supreme power rested with the Assembly. The government needed the consent of the Assembly for certain major decisions. Most of the Resolution was concerned with the question of recognition and attribution of landownership, either as inherited estates (votchiny) or as service estates (pomest’ia). The backbone of the forces consisted of dvoriane (lower nobility) and the many years of war and civil unrest had often ruined their estates or caused loss of ownership. The failure of the First National Levy soon led to the much more famous Second National Levy, launched by K.M. Ankundinov, better known as Kuz’ma Minin, a merchant from Nizhnii Novgorod. He enlisted the support of prince D.M. Pozharskii, an experienced military commander, and the movement spread over most of Russia, until Moscow fell into its hands in October 1612. The new regime set out to organize a Zemskii sobor for the election of a new tsar and this body met in Moscow in February 1613. The text of the ‘judgment’ (prigovor) of the Zemskii sobor of 1613, which registered the election of Mikhail Romanov as the new tsar, has been preserved.50 It was similar in many respects to the Resolution accompanying the election of Boris Godunov in 1598. Again, the unanimity of the choice of all sections of society received great emphasis.51 But also the family ties with the old and extinct dynasty were pointed out.52 According to some reports, there was an expectation among leading boyars that the new tsar, who was a pious and somewhat dim-witted young man of 17, could easily be manipulated, a factor which then worked in his favour in getting elected. The Zemskii sobor played a prominent role during the first six years of Mikhail’s reign, meeting at least once a year. After the release of patriarch Filaret by his Polish captors, the latter actually took over the reins of government from his son. Decisions were henceforth taken by 49 50 51

52

rz iii, 43–51 (text), 51–62 (comments). Text also in PRoP iii/2, 228–233. See also Cherepnin, Zemskie sobory, 168–179. prp v, 563–565; PRoP iii/2, 233–234. There was no mention of the patriarch in the resolution of the Zemskii sobor, but that is to be explained by the curious circumstance that the patriarch, first of all, was Mikhail’s father Fedor, who as patriarch Filaret was at that time a prisoner of the Poles, to return to Moscow only in 1619. While Boris Godunov was the shurin (brother of the wife) of tsar Fedor, Mikhail Romanov’s grandfather Nikita Romanovich was the shurin of tsar Ivan iv (brother of the latter’s first spouse, Anastasiia Romanovna Iur’eva).

The Tsar’s Government

807

“the sovereign tsar and grand prince Mikhail Fedorovich of All Russia and the sovereign’s father, the great sovereign Filaret Nikitich, most holy patriarch of Moscow and All Russia” and the Zemskii sobor retreated into the background, only to be called back when it was politically expedient. Filaret died in 1633. In the official acceptance judgment of the Zemskii sobor in 1613, the full title of Mikhail also included samoderzhets (autocrat) and once the dynasty became more established and more forceful monarchs appeared on the stage, the autocratic element increasingly came to the fore. This inevitably resulted in the erosion of the influence of the Zemskii sobor and its gradual obsolescence.53

The Administration

The Expansion of the Administration under Ivan iii and Vasilii iii In Chapter 14, on the Prince’s Government, the development of the government’s apparatus from Kievan times up to Ivan iii was outlined in its general aspects. The originally simple arrangement of a prince governing on a personal basis, with the aid of a few trusted men at his court and working through a small group of regional agents, on the basis of oral instructions, was gradually replaced by the emergence of a central administration, staffed by a considerable number of secretaries or clerks (d’iaki), and operating mainly through procedures in writing. The foundation for the increasing sophistication of the grand prince of Muscovy’s central administration was provided by two court departments in particular: the Treasury and the palace management, headed by the kaznachei (treasurer) and the dvoretskii (major-domo, butler) respectively. The separate activities of these officials and their staffs can already be observed during the reign of Vasilii ii the Blind († 1462) as the rudiments of the prikaz system of the following centuries. Other court officers with specific responsibilities also began to acquire their own staffs, reflecting the differentiation and increased sophistication of the governmental interests. The Departments (Prikazy) Under Ivan iv and His Successors54 Originally, the kaznachei (treasurer) was a court official in charge of the prince’s valuables, regalia, jewels, gold and silver, and money. Later on, i­mportant 53 54

See especially J. Keep, “The Decline of the Zemsky Sobor”, The Slavonic and East European Review, xxxv, No. 86, London, 1957, 100–122. Most of this section is based on D.V. Liseitsev, N.M. Rogozhin, Iu.M. Eskin, Prikazy Moskovskogo gosudarstva xvi–xvii vv. Slovar’-spravochnik, Moskva/Sankt-Peterburg, 2015.

808

chapter 31

d­ ocuments, such as treaties and the wills of princes, were also entrusted to the Treasury. This allowed the Treasury to develop as the prince’s chancery, with its own personnel, housed in the Kazennaia palata. The entire complex was first known as the Kazennyi dvor, but with the establishment of the prikaz (department) system the designation Kazennyi prikaz (Treasury Department) came in use. Later on, various specialized departments were split off, each headed by its own chief. The Treasury Department survived until 1700, when it was absorbed as a section in the Great Palace Department. It was headed by the kaznachei (Treasurer), an official of high rank, often a boyar or okol’nichii. The Treasury Department is not to be confused with the Revenue Department (Prikaz Bol’shogo prikhoda, also known as Bol’shoi prikhod), founded around 1555 and charged with the collection of several of the most important taxes (especially the iam). In the 17th century (at least as early as 1622) another department was founded, known as the Great Treasury (Bol’shaia kazna, or Prikaz Bol’shoi kazny), the main business of which was to serve as the central mint. It was merged in 1686 with the Revenue Department. The dvoretskii was the head of the prince’s household, responsible for the supply of food and for buildings. This then also involved supervision over the prince’s domains where the food and building materials came from. In the end the dvoretskii became the manager of the prince’s own estates in the name of the latter. This also included jurisdiction over the people working on the prince’s lands. The prince’s estates consisted not only of agricultural land and forests, but also of urban land and in fact a number of entire towns and several quarters of the city of Moscow itself. The dvoretskii, like the kaznachei, was a high official, usually of boyar or okol’nichii rank. The department headed by the dvoretskii was known first as the Palace Office (Dvortsovaia izba), but later on as the Great Palace Department (Prikaz Bol’shogo Dvortsa). It was itself the mother department for a whole range of specialized prikazy. It was transformed in 1724 into the Palace Chancery (Dvortsovaia kantseliariia). The development of the prikaz system was not the product of a purposeful government policy, but occurred more or less spontaneously. From the middle of the 15th century, the Moscow grand princes appointed trusted officials to take charge of specific problems and tasks as they arose. The gradual disappearance of independent principalities occasioned the establishment of ­special departments to deal with specific difficulties connected with the integration of these territories into the Muscovy state. Examples of such territorial departments (oblastnye prikazy) were the departments dealing with the affairs of Dmitrov, Nizhnii Novgorod, Novgorod, Riazan’, Staritsa and Kaluga, Tver’, and Uglich, all of them active during the first half of the 16th century

The Tsar’s Government

809

and abolished in 1566 (or earlier). With the further expansion of Muscovy and the acquisition of new territories, special prikazy were set up for Kazan’, the Kalmyks, the Ukraine (Little Russia), Smolensk, Riazan’, Siberia, and others. While these departments had a more or less permanent character, other prikazy were more in the nature of a commission, established to deal with a single issue. There was a whole series of prikazy entrusted with the collection of taxes or materials in kind for a specific short-term purpose. When the tasks of these prikazy had been fulfilled, they were discontinued.55 Some of the oldest prikazy, like the Treasury and the Great Palace Department, had their roots in the duties of ancient court officials. The prince’s stable master (koniukh staryi) was already mentioned in the Russkaia Pravda. In Muscovy this position was known as that of the koniushii, where it became the most prestigious court office (Boris Godunov occupied the post from 1584 until 1598 when he was elected tsar). The Stable Master’s Department (Koniushennyi prikaz), of which the koniushii was the head, was in charge of everything that had to do with horses: the tsar’s stables and horses; the stud farms, villages and fields where the tsar’s horses were raised, and the people who worked there; the provision of horses for the cavalry; the taxation of the horse trade. A special responsibility was the horse trade with the Turkic Nogai horse breeders, entrusted to the iasel’nichii (from iasli, crib, manger), who also acted as the koniushii’s deputy. After 1613, when the court office of koniushii was abolished (for political reasons), the iasel’nichii became the head of the Stable Master’s Department. Other departments in this category of the administration were the Armoury (Oruzheinaia palata, also know as Bronnyi prikaz), the Chamberlain’s Department (Postel’nii prikaz), and the Department of the Seal-Keeper (Pechatnyi Prikaz). The prince’s armourer (oruzhnichii) was originally the courtier who looked after the prince’s armoury, but as the head of the Armoury he was also responsible for the production and repair of the weaponry for the tsar’s guard troops and the Moscow garrison. This then came to include the craftsmen employed by the Armoury and the villages (slobody) where they lived, as well as manufacture related to the production of weapons (jewelry, tableware. etc.). The duties of the Chamberlain’s Department embraced the provision of and care for the apparel of the tsar and his family; it was headed by the chamberlain (postel’nichii).

55

E.g. the Prikaz for the Collection of Provisions for the Cossacks, active in 1613–1614; similar Prikazy for the Collection of Provisions for Foreign Soldiers (1632–1638) or for the Strel’tsy (1668–1679).

810

chapter 31

The seal-keeper, as the name indicates, affixed the prince’s (tsar’s) seal to official documents and in this way came to assume responsibility for a number of related activities. As Alekseev has pointed out, the official seal replaced to a certain extent the signatures of parties and witnesses as a means of authentication of a document.56 The increased importance of the seal is demonstrated by the attention paid to it in the Code of 1497 (arts. 1, 15–17, 22–25 40, 55) and the Ulozhenie of 1649, where the whole of Chapter 18 (71 articles) is devoted to it. The Pechatnyi prikaz (Seal-Keeper’s Department) came into being as an independent division of the Treasury. It acted as the depository for important state documents confirmed by the state’s seal. As these also included foreign treaties, the seal-keeper (pechatnik) was often the same person as the head of the Ambassadorial Department (the Posol’skii prikaz, the ministry of foreign affairs). A very significant aspect of the affixing of the seal was the payment of the prescribed fee, the stamp duty (the main point of interest in the two codes mentioned). The Pechatnyi prikaz controlled a network of regional offices for the collection of stamp duty, especially on deeds concerning real property. The prikazy mentioned above, which go back to ancient court offices (the Treasury, the Great Palace Department, the departments of the Stable Master, the Armoury, the Chamberlain and the Seal-Keeper), emerged gradually and can be traced back at least to the 15th century. Three other departments, although less ancient, appeared at least before the reign of Ivan iv. They are the Department of Estates (Pomestnyi prikaz), the Appointments Department (Razriadnyi prikaz), and the Robbery (or Brigandage) Department (Razboinyi prikaz). The Pomestnyi prikaz had its roots in both the Treasury and the Great Palace Department. It served as the administrative centre for the service estates (pomest’ia) put at the disposal of minor nobles in exchange for military service; it also kept track of their ancestral estates (votchiny), if they owned any. Its tasks included the registration of the dependent population on these estates, and, later on, the registration of transactions concerning the estates and their population and any litigation arising in this connection. The Appointments Department kept track of the entire service population and in particular of military appointments. The books it kept (razriadnye knigi) were of decisive importance in disputes concerning precedence and seniority between serving families (see mestnichestvo). The Razriadnyi prikaz was involved not only in military appointments, but also in many related matters, such as military training and logistics, the provision of equipment, etc. 56 Alekseev, U kormila, 150–153.

The Tsar’s Government

811

Although it was also concerned with civil service appointments, matters concerning military personnel were its prime occupation. The Robbery Department could be described as a ministry of criminal justice. Its emergence was closely connected with the guba reforms (see Chapter 33). In an embryonic state it was a commission of boyars overseeing the administration of justice, which had been transferred to local authorities during the first half of the 16th century. The prikaz itself was probably set up officially around the middle of the 16th century. Its first Statute Book was compiled in 1555 (see the relevant section in Chapter 27). Its competence extended, as indicated by its name, over robbery and related serious crimes, their investigation, trial and the execution of judgments. During the long reign of Ivan iv a considerable number of new departments arose, reflecting the administrative activism of his rule. Among the more important of these, the following should be mentioned. The Department for the City of Moscow (Zemskii prikaz) was probably connected with the emergence of the Robbery Department (Razboinyi prikaz). The activities of the latter were primarily concerned with the problem of banditry in rural areas. The Zemskii prikaz dealt with all law enforcement in the city of Moscow, but beyond that with most other questions of city government, including taxation of the ordinary (tax-paying) citizens (the tiagloe naselenie). The Posol’skii prikaz (Ambassadorial Department) was the equivalent of a ministry of foreign affairs. Its was based on personal and material contributions from the Treasury, the Great Palace Department, and the Seal-Keeper’s Department; its first known chief in 1549 was the d’iak I.M. Viskovatyi, one of the members of the Chosen Council and the virtual foreign minister of Ivan iv at the time. The head of the Posol’skii prikaz later also served as the head of a number of smaller separate departments. Initially, the Posol’skii prikaz was also in charge of the southern border regions, which included Cossack affairs. The Department was well-staffed with competent personnel, d’iaki, interpreters, cartographers, etc. Its archives and library were outstanding for the time.57 The Posol’skii prikaz is not to be confused with the Inozemskii prikaz (Foreigners’ Department), a specialized department responsible for the employment­of foreign troops (initially mainly Polish soldiers, hence its early designation as Panskii prikaz). It was in existence in 1588–1589, when Giles Fletcher visited Russia.58

57 58

The activities of the Posol’lskii prikaz during the Time of Troubles is the subject of a twovolume study by D.V. Liseitsev, Posol’skii prikaz v epokhu Smuty, Moskva, 2003. Giles Fletcher, Of the Russe Commonwealth, London, 1591; many later editions.

812

chapter 31

The Tatar khanate of Kazan’ was finally annihilated by Ivan iv when Kazan’ was taken in 1552. The entire government of Kazan’ was put in the hands of a special department, the Kazanskii dvorets (Kazan’ Palace); it was responsible for all matters, military, civil, fiscal, etc., and exempt from the jurisdiction of other prikazy. The territory entrusted to the Kazan’ Palace was large and included most of present-day Eastern (European) Russia, including the former khanate of Astrakhan’. Iamskoi prikaz could tentatively be translated as the Department of Roads (from Tatar dziam, “road”), although Department of Communications would be more to the point. Communications constituted an essential element in the effective management of the enormous territory of the Muscovy state. They were entrusted to a special service of messengers (the iamskaia gon’ba), supported by a network of staging-posts (iamy) all over the country. The service was originally attached to the Revenue Department, but from the middle of the 16th century a separate office (Iamskaia izba) is mentioned. The collection of the iam tax, originally the responsibility of the Revenue Department (Bol’shoi prikhod), was entrusted later in the 17th century to the Iamskoi prikaz. The Petitions Department (Chelobitnyi prikaz) arose around the middle of the 16th century, or somewhat later, and handled petitions to the tsar. This made it into something like the tsar’s personal chancery. In 1685 it was absorbed by the Vladimir Court Department. The Slavery Department (Kholopii prikaz) has been mentioned since 1571. It was in charge of the registration of persons entering slavery, sales of slaves, and manumission (freeing) of slaves, and also of prisoners-of-war serving as slaves. Litigation concerning slavery also belonged to the jurisdiction of the Kholopii prikaz. The Strel’tsy Department (Streletskii prikaz) has also been mentioned since 1571. The strel’tsy were the regular infantry of the Muscovy army. They lived in separate settlements (slobody) and their organization, equipment, and maintenance, as well as jurisdiction in most cases, were the main duty of the Strel’tsy Department. The Artillery Department (Pushkarskii prikaz) was probably founded in or around 1577; as suggested by its name, it was charged with all matters concerning the artillery: production of guns and equipment, fortifications, personnel, etc. A special type of department was the sudnyi prikaz, of which there were four. It represented the regular system of courts of Muscovy, although one has to keep in mind that many other prikazy enjoyed jurisdiction within their specific competences. The highest of the court departments was the Sudnyi Vladimirskii prikaz (Vladimir Court Department), which served as the a­ ppellate court for the other three court departments and as a court of first instance

The Tsar’s Government

813

(forum privilegiatum) for high officials. The second court department was the Sudnyi Moskovskii prikaz, and then the Sudnyi Riazanskii prikaz and the Sudnyi Dmitrovskii prikaz; the latter two were short-lived and absorbed by the other two court departments. In later times (after about 1664) there was also a separate court department attached to the Great Palace Department, which served as a supreme court for cases within the latter’s jurisdiction. The two main court departments went back to the end of the reign of Ivan iv († 1584); the Riazan’ and Dmitrov court departments were established about ten years later. Another type of specialized department was known as chetvert’ or chet’. Chetvertnye d’iaki (chetvert’ secretaries) were officials responsible for the collection of taxes in different parts of the country for the upkeep of the army. They were attached to various prikazy. During the reign of Boris Godunov several independent chetverti were set up, first the New and the Siberian chetverti (soon disbanded), and then the Novgorod, Vladimir, Galich and Nizhnii Novgorod, Kostroma, and Ustiug chetverti. Many more prikazy were established during the 17th century and many were also discontinued, either completely or by being merged with other departments. The prikaz system operated for a century and a half, from the middle of the 16th to the end of the 17th century. The names of about one hundred prikazy are known (many prikazy bore different names through the years). At any given moment, the average number of independent operational prikazy varied between 20 and 30. A prikaz system, similar but much more modest than that of the state, had been established by the Church. It consisted of a palace department, a treasury, and an appointments department.

Lower Officials

The higher levels of officialdom in the Muscovy state have been reviewed in the foregoing sections. At a lower level there existed an extensive body of officials, most of whom were residing in Moscow but available to be sent to the provinces on government business. In the Ulozhenie of 1649 four categories are mentioned frequently in the same breath, the stol’niki, striapchie, dvoriane moskovskie, and zhil’tsy. The stol’nik was originally somebody who served the palace table. They developed into a corps of officials to support high functionaries and ranked immediately under the officials with Duma rank.59 59

For an example, see prp iii, 98, a grant charter of grand prince Vasilii i of 1423.

814

chapter 31

Originally, striapchie were persons assisting or supporting parties in court proceedings.60 In the hierarchy of Muscovy officialdom they followed immediately after the stol’niki and were entrusted with various supportive duties, especially in connection with law enforcement. The next level was constituted by the gorodovye dvoriane, the lower gentry residing in or around Moscow, to provide a readily available military and civil support force. The zhil’tsy (lit. ‘inhabitants’) represented the lowest level of the Moscow gentry. They served as a pool from which the ranks of the city gentry (gorodovye dvoriane) could be augmented.61 Zhil’tsy is also used in another and more general sense of inhabitants of a particular locality and in that case membership of the lower Muscovy gentry is not implied of course. The Ulozhenie of 1649 has numerous provisions where the four categories of lower officials are mentioned together and where they have identical rights and duties. Mestnichestvo The specifically Russian system of service seniority, known as mestnichestvo, was explained in Chapter 14. It continued to be an important factor in the administration of Muscovy and was abolished only as late as 1682 during the reign of tsar Fedor, the son of tsar Aleksei and the elder brother of Peter the Great. Taxation War and Taxation The foregoing sections have dealt with the personal aspect of government, the persons and institutions who collectively constituted the government of Muscovy. Now it is time to look at the activities of the government, apart from administration of justice, which merits separate treatment within the framework of legal history. The most prominent concern of the ruler and his government was unquestionably warfare and this observation is valid for the strictly medieval as well as for the Muscovy period. The earlier Kievan princes were incessantly engaged in fighting off the incursions of various warlike steppe nomads, such as Pechenegs and Polovtsians. Then, the numerous principalities 60 61

As such they appeared in previous legislation, such as the Code of 1497 (art. 68), the Code of 1550 (art. 13), the Code of 1589 (art. 18). Cf. E.N. Gorbatov, “Materialy k istorii zhiletskogo razbora 1643 goda”, S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, 18, Moskva/Sankt-Peterburg, 2015, 224–358.

The Tsar’s Government

815

r­esulting from the fragmentation of the Kievan realm had to compete with each other for survival until the superior force of the Mongol empire made them all subjects of the khan. This did not end the rivalry between Russian princes, but only made it more complex. Once Tatar power had sufficiently weakened, the Moscow grand prince was able to subdue all other Russian principalities. This did not signal the arrival of peace, as Muscovy was surrounded by restless neighbours. The capital itself was repeatedly taken by foreign armies (Tatars, Poles) and, along with the Kazan’ Tatars and the Poles, Swedes, Crimean Tatars, Lithuanians, Hungarians, and others appeared from time to time on the Russian borders. The rulers of Muscovy were themselves also not devoid of expansionist aspirations. The effect of all this was that the entire governing process of Muscovy could be viewed as serving to facilitate the war machine. The basic orientation of this process also had a profound influence on the legal system; a major example would be the organization of landownership, designed to support a reliable supply of manpower to the armed forces. The most important condition for the upkeep of adequate military power, however, was a well-filled treasury, and taxation was the principal source. Much of the legislative efforts of the Muscovy period were directed at improving the internal revenue system. As noted, for instance, in the discussion of the Sudebnik of Ivan iii of 1497, this Code superficially looked like an elaborate catalogue of fees to be paid for using the court system. The Development of the Fiscal System This section will not attempt to draw a balanced picture of the fiscal policies of the Muscovy government during the 16th and 17th centuries.62 For one thing, this is not required in a general overview of legal history and, for another, the period concerned, which included the Smuta, the Time of Troubles, was for much of the time so chaotic that a balanced picture would be difficult to draw. Instead, it may be enlightening to point out several more or less permanent considerations, features and aspirations, producing a background for a survey of the most important developments of Russian tax law during the period concerned. One important new factor in the fiscal regime of Muscovy was the perceived need for the unification of tax law. Closely connected with this consideration was, secondly, the wish of the government to simplify, and where possible to 62

The reader is referred to general works on the history of Russian taxation, such as S.M. Kashtanov, Finansy srednevekovoi Rusi, Moskva, 1988, and S.A. Kozlov, Z.V. Dmitrieva, Nalogi v Rossii do xix v., Sankt-Peterburg, 2001 (2nd ed.), on which this section is based.

816

chapter 31

abolish, the complicated patchwork of fiscal immunities of which especially the Church and the monasteries were the beneficiaries. Thirdly, there were numerous attempts to expand the reach of taxation to include more sectors of the population. Fourthly, there was a noticeable drift away from direct and towards indirect taxation. The fifth and most general factor was the gradual transition to greater reliance on regular and irregular professional soldieries, who had to be paid for their services. Examples, mentioned above, were the strel’tsy and the Cossacks. The incorporation of the enormous territory of Novgorod could be seen as a qualitative, instead of a quantitative change in the enlargement of Muscovy. The need for new governmental approaches then became inescapable. One of the new measures was the introduction of the pistsovye knigi, official descriptions of landholdings, listing size, population, buildings, soil quality, etc. The first of such registers were compiled in the Novgorod region around the end of the 15th century.63 (They may have existed already during Novgorod’s independence, although there is no unassailable evidence.64) During the first half of the 16th century the practice was extended over most of the territory of Muscovy. The pistsovye knigi were compiled primarily for fiscal purposes, but constitute of course an important source for all kinds of other aspects. The size of plots was expressed in sokhi, which then became the unit for taxation. The sokha65 itself was variable, as it depended on the quality of the land to be ploughed. In the middle of the 16th century, the government of Ivan iv introduced the “great sokha” (bol’shaia sokha). The size of the great sokha depended on two factors: the quality of the land (good, moderate, or bad) and the quality of the user. Secular landowners (noblemen) were most favoured, church-owned land was in the middle, and ‘black’ lands (i.e. land owned by free peasants, peasant communities, or others) were most heavily taxed. Greater uniformity was also brought about by the widespread conversion of various duties and deliveries in kind into financial obligations. At the same time, this reform resulted in greatly increased fiscal income. The example of this innovation had been the transformation of kormlenie, the duty of the 63

64

65

The oldest pistsovye knigi of Novgorod, going back to 1495, have been published by K.B. Baranov in the first volume (Novgorodskie pistsovye knigi 1490-kh gg. i otpisnye i obrochnye knigi prigorodnykh pozhen Novgorodskogo dvortsa 1530-kh gg.), Moskva, 1999, of the series Pistsovye knigi Novgorodskoi zemli, edited by the same author. See K.V. Baranov, “Novye svedeniia o pervykh pistsovykh opisaniiakh Novgorodskoi zemli”, S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, vol.4, Moskva, 2000, 85–97, mentions 1482 as the first documented date for such registers. Sokha, the Central Russian plough, between the more primitive ralo and the more sophisticated plug, used in southern areas.

The Tsar’s Government

817

l­ocal population to provide various officials with all the necessities to carry out their functions. Kormlenie had gradually been converted into fixed money payments, until it was ultimately abolished altogether in the guba reforms of the first half of the 16th century (see Chapter 33). The government was less successful in its attempt to abolish the numerous and varied fiscal privileges. These had been granted in the past to landowners, usually in connection with the land grant itself. The beneficiaries were mostly monasteries, but also included other church entities as well as secular landowners. Some of the grants were of a temporary nature (so-called l’gotnye gramoty), but the permanent grant (tarkhannaia gramota) was more common and, of course, more of a disadvantage to the state treasury. Tarkhannye ­gramoty could concern immunity from all or most taxes, or from specific taxes. Fiscal immunity was often combined with judicial immunity, i.e. immunity from the state’s courts, except for the most serious crimes (so-called nesudimye gramoty). There had been several attempts to curb the practice of issuing tarkhannye gramoty, until in the end such immunities were forbidden altogether by art. 43 of the Code of 1550. This firm position, however, remained a dead letter, as Ivan iv continued to issue such gramoty when it appeared politically opportune. Only after his death in 1584, at a church council in the same year, did the Church concede to have the tarkhany temporarily discontinued. A few were still issued during the following years, but ultimately the practice which had favoured ecclesiastical landowners above secular ones became a thing of the past. The economic crisis which followed the long reign of Ivan iv and accompanied the Time of Troubles had a strong impact on fiscal developments. Rural poverty induced peasants to look for better opportunities elsewhere and landowners became impoverished by the shortage of their workforce. The Codes of 1497 and 1550 had allowed peasants to move from one landowner to another during two weeks in later autumn (around St. George’s Day, Iur’ev den’). This right had been restricted already by Ivan iv in 1581 by the introduction of “forbidden years” (zapovednye gody); under tsar Fedor (Ivan’s son and successor) the right was completely abolished and measures were taken to return fugitive peasants forcibly to their masters. (It was briefly reintroduced in 1601 by Boris Godunov.) In general, the succession of short-term rulers and governments during the Time of Troubles resulted, among other things, in often contradictory fiscal initiatives. After Mikhail Romanov’s accession to the throne in 1613 the situation became more stable; the economy of the country, however, was in a deplorable state and the government resorted to drastic measures. In 1614 the first imposition of “fifths” (piatiny or piatinnye den’gi) was introduced, a direct tax of 20%

818

chapter 31

on annual income (or on movable property; there is no agreement among authors). This type of taxation was applied many times in the course of the 17th century, but usually at a lower percentage. Regular tax for the maintenance of the army (streletskii khleb) was to be paid in kind, in fact rye, oats and other grain, and only in special cases was a ­monetary equivalent allowed. Among the other direct taxes, the ancient iam continued to be imposed for the maintenance of roads and the government’s communications network. A special tax introduced in the 16th century in order to redeem Russian prisoners-of-war who had ended up as slaves in the ­Tatar slave trade also remained in force. Together with these three main types of regular direct taxes, a whole range of obligatory burdens continued to apply: work on roads, fortifications, official buildings, fences, hunting preserves, etc. In many cases the duty to work could be paid off. In 1646 the government decided to replace the streletskii khleb and the payment of iam by indirect taxation through the introduction of a high tax on salt. This caused great unrest among the population, culminating in the “salt riots” (solianye bunty) of 1648–1650, which were an important factor in the process leading to the adoption of the Ulozhenie of 1649. The old taxes were restored.

The Army

Warfare, armed forces, and the preparation and financing of military activities constituted perhaps the most prominent concern of the Muscovy government, but there is not much direct legislative regulation of it. The basis of Moscow’s military might was in the class of sluzhilye liudi, “service people”. The bulk of it consisted of the lower nobility, the deti boiarskie (“boyars’ sons”) and other dvoriane, who had been granted land (pomest’ia), primarily in exchange for military service. The duty to serve in the army extended also to the higher nobility, in possession of inherited land (otchiny), such as boyars and okol’nichie, and even its highest echelon, the service princes (sluzhebnye kniaz’ia), descendants of formerly ruling princes, all of whom would strictly speaking also count as “service people”. While apanage princes were still around, their relationship with the ruling prince was determined by the elder-younger brother pattern; the usual contracts between such parties provided that the ‘younger brother’ had to participate in the wars of the ‘elder brother’, “– when I mount my horse, you will mount your horse with me”.66 66

E.g. ddg No.13, 37–39, treaty of 1390 between the Moscow grand prince Vasilii i Dmitrievich and Vladimir Khrabryi Andreevich, prince of Serpukhov and Borovsk. Vasilii i was a

The Tsar’s Government

819

The duty of service people implied not only personal service, but also the provision of a certain number of armed men from their own dependent servants. The main division of the service people was between those resident in or around Moscow (sluzhilye liudi moskovskie) and the others from the provinces (sluzhilye liudi gorodovye). Regional detachments from the latter would normally be on active service for a certain length of time on a rotation basis. When there was a major war afoot, more troops would of course be needed.67 Gradually, the need for a more regular standing army made itself felt. The appearance of firearms by the end of the 15th century probably influenced this development. Herberstein (who visited Muscovy in 1516–1517 and 1526–1527) reported to the emperor Ferdinand about the rare occurrence of such weapons among the Russians.68 They were apparently of the type called pishchal’, hence the designation pishchal’niki (arquebusiers), the known predecessors of the similarly armed strel’tsy (sing. strelets).69 In the middle of the 16th century the strel’tsy, organized in regiments, formed the core of the army. They were professional soldiers, recruited from the ranks of the free population and serving on the basis of contracts. Soon, however, the service became permanent and the status inheritable. Thus they joined the general category of sluzhilye liudi. They lived in separate suburban settlements, slobody. During the reign of Ivan iv their number grew to approximately 12.000, of whom about 2.000 were cavalrymen. Like the dvoriane, they were divided into Moscow strel’tsy (also known as vybornye strel’tsy) and provincial (gorodovye) strel’tsy. The Ulozhenie of 1649 devoted a short chapter to the strel’tsy (Ch. 23, 3 articles), the most important provision of which was that trials of strel’tsy (except in the most serious cases) and legal actions between strel’tsy were to be handled by the Streletskii prikaz. This department was also entrusted with the recruitment, equipment and management of the strel’tsy.

67

68

69

grandson of Ivan ii (the Handsome), the older brother of Andrei, the father of Vladimir Khrabryi; the latter still counted as the younger brother of Vasilii i. An indication of the full effective size of the Muscovite army (8–9.000 horsemen) is given by N.V. Smirnov in a study of the strengths of the Muscovite and Lithuanian forces in the battle at the Vedrosh River near Gomel’ in 1500 (in which infantry played a modest role); N.V. Smirnov, “Rekonstruktsiia sostava i chislennosti russkikh i litovskikh voisk v bitve na Vedroshe”, A.Iu. Dvornichenko (ed.), Russkoe Srednevekov’e. Sbornik statei v chest’ professora Iuriia Georgievicha Alekseeva, Moskva, 2012, 598–624. See also A.L. Khoroshkevich, “Russkoe voisko pervoi chetverti xvi v. po soobshcheniiu S. Gerbershteina”, A.A. Preobrazhenskii (ed.), Feodalizm v Rossii. Iubileinye chteniia, posviashchennye 80-letiiu so dnia rozhdeniia akademika L’va Vladimirovicha Cherepnina, Moskva, 1985, 93–96. After some time, the arquebuses were replaced by muskets.

820

chapter 31

The Streletskii prikaz, and several others, were mentioned above in the section on prikazy, and collectively they give an impression of the organization of the armed forces of Muscovy during and after the reign of Ivan iv. The oldest of them all was the Cavalry Department (Koniushennyi prikaz) which went back to the ancient court office of the prince’s stable master. The Armoury (Oruzheinaia palata), in charge (among other things) of weaponry, equipment, ammunition, etc., also went back to previous centuries. The Razriadnyi prikaz occupied a central position among the military departments, as it was the organizational centre of the mestnichestvo system, by keeping accounts of appointments of military commanders (voevody and others), in order to respect seniority claims (see the section on mestnichestvo in Chapter 14). The Artillery Department (Pushkarskii prikaz), like the Streletskii prikaz, has been known since 1571. This also agrees with Herberstein’s observation (half a century earlier) about the rudimentary stage of Muscovy’s artillery in his time. With the increasing importance of artillery, the artillery soldiery (pushkari) formed a special class of servicemen, comparable to the strel’tsy, living together in their own villages (slobody), and enjoying certain privileges. Apart from the regular army of Muscovy, auxiliaries from other nations also served in the tsar’s forces. The Inozemskii or Panskii prikaz, caring for the soldiery from various European countries, has been mentioned above. Its duties were many-sided; not only the obvious questions of recruitment and payment, but also the management of land set aside for the upkeep of foreign troops, questions connected with the religious affiliation of foreign soldiers (many of whom from protestant countries) and their personal status, etc. Auxiliaries from indigenous nations, such as Tatars and other Turkic (e.g. Bashkirs) or Finnish (e.g. Mari or Cheremisy) nations, were widely employed. This in fact was a continuation of older practices; Kievan and medieval princes were often reported commanding mixed forces of Russians and Turkic cavalry. The most important of all the auxiliaries were the Cossacks. Their early history is still a controversial topic, but at least since the 15th century they had been prominently present in Southern Russia (and much of present-day Ukraine), where they formed two large coalitions in the following century, the Don and the Zaporozh’e Cossacks. Ethnically, they were predominantly Russian, although there were undoubtedly significant Tatar elements among them. They generally acted as allies of the Moscow rulers, but insisted on their independence. They received payment and also land grants for their service. As they gradually got drawn into the organization of the Muscovy state, their status began to approximate that of other ‘service people’. During the Time of Troubles they often were a factor of decisive influence, especially during the chaotic years after tsar Vasilii Shuiskii. At that time the Don Cossacks were the concern of the Ambassadorial department (Posol’skii prikaz). Later on there

The Tsar’s Government

821

was a special­Cossack Department (Kazachii prikaz) from 1613 to 1643, until the Cossacks were sufficiently integrated to be subordinated to the Appointments Department. Ch. 24 of the Ulozhenie of 1649 is entitled “On Hetmans and Cossacks” and offers three articles, mainly on small suits. The higher command positions in the army, voevody, were initially reserved to the higher nobility (boyars and okol’nichie), in accordance with the mestnichestvo practice, but as the disadvantages of this approach became increasingly obvious, exceptions were made where this was considered desirable, at first with the proviso bez mest, i.e. that an appointment disregarding mestnichestvo rules would not upset the existing mestnichestvo hierarchy.70 Mestnichestvo was altogether abolished in 1680. The armies commanded by voevody (generals) consisted of regiments (polki)­under the command of a polkovnik (colonel). The regiment was divided into units of roughly one hundred men, and these into platoons of about ten men, commanded respectively by sotniki (from sot, 100) and desiatniki. There was also an in-between subaltern officer, the piatidesiatnik. The higher officers (polkovniki and sotniki) were invariably from the lesser nobility (dvoriane and deti boiarskie). The effective strength of the armed forces of Muscovy during the first half of the 16th century was between 40.000 and 100.000 men, according to the calculations of M.M. Krom, based on a broad comparative review of all available data. The number of voevody, commanding the forces, varied between 20 and 40.71 Russian soldiers who had become prisoners-of-war of a foreign power would either be exchanged at the end of hostilities or redeemed, provided the ransom could be agreed. The first approach was common between Christian powers,­ the second one applied in particular to Russian prisoners of Tatar rulers. A special tax, polonianichnye den’gi, was introduced in the first half of the 16th century to cover expenditure on ransoms. Ivan iv attempted to pass the bill on to the Church, but failed in this. In 1551, art. 72 of the Stoglav (“On the Redemption of Prisoners”) stated clearly that the tsar’s treasury was responsible. In the 17th century there was a special prikaz entrusted with the redemption of Russian prisoners-of-war, the Polonianichnyi prikaz, which itself was ­identical with the curiously named Department of Prikaz Matters (Prikaz prikaznykh del) Foreign prisoners-of-war in Russia were the responsibility of the Inozemskii prikaz (the Foreigners’ Department). 70 71

This was done by Ivan iv in 1550, see prp iv, 582–586. This decree also contained instructions about the command structure of an army in the field. M.M. Krom, “O chislennosti russkogo voiska v pervoi polovine xvi veka”, A.P. Pavlov (ed.), Rossiiskoe gosudarstvo v xiv–xvii vv. Sbornik statei, posviashchennyi 75-letiiu so dnia rozhdeniia Iu.G. Alekseeva, Sankt-Peterburg, 2002, 67–82.

chapter 32

Territory and Population In Chapter 17 on Western Russia we noted that only three of the old principalities which made up the Kievan realm remained in the hands of Rurikid princes after the invasion of the Mongols in the 13th century and the growth and expansion of the Lithuanian grand principality in the following centuries. All the western principalities became part of Lithuania, later on united with Poland, and only the principalities of Novgorod Velikii (the Great), VladimirSuzdal’-Rostov and Murom-Riazan’ were still ruled by the descendants of the Kievan grand princes, albeit under Tatar suzerainty. Still, from these modest beginnings a united Russian state eventually arose.

The Growth of the Principality of Moscow

In 1263 Moscow first appeared as a separate (apanage) principality within the grand principality of Vladimir. In 1276 it was granted by the Vladimir grand prince Dmitrii to his youngest brother Daniil (both sons of Aleksandr Nevskii). By the time of his death in 1303, Daniil had acquired the contiguous territories of Kolomna and Pereiaslavl’-Zalesskii. His eldest son Iurii succeeded him as prince of Moscow. He added the territory of Mozhaisk to Moscow in 1304 and attempted for many years to wrest the grand principality of Vladimir from Mikhail, prince of Tver’ (a distant cousin). After gaining favour with the Tatar khan, he finally achieved his goal in 1319, when Mikhail had been killed at the khan’s court in 1318 by Iurii’s servants. Iurii then was himself killed by Mikhail’s son Dmitrii Groznye Ochi (“the Fierce-Looking”) in 1325. The scale of Moscow’s expansion increased considerably under Iurii’s successor, his brother Ivan i Kalita (prince of Moscow since 1325, and grand prince of Vladimir since 1328). Ivan Kalita acquired control over large territories to the North of his Moscow base, the principalities of Kostroma, Uglich, Galich and Beloozero, although it is not entirely clear how these acquisitions were made. The principalities of Uglich, Galich and Beloozero were mentioned in Dmitrii Donskoi’s will of 1389 as the “purchases” (kupli) of his grandfather, and for this reason it was usually assumed that Ivan Kalita (Dmitrii Donskoi’s ­paternal grandfather) had bought them by paying the khan for the necessary

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_033

Territory and Population

823

patent (iarlyk).1 But K.A. Aver’ianov has argued persuasively that the territories of ­Uglich, Galich and Beloozero had in fact come to Ivan Kalita through the dowries of spouses of his brother Iurii, himself and his brother Afanasii (both brothers died without leaving sons).2 At that time (the first quarter of the 14th century) a Russian prince unquestionably needed the approval of the khan before being able to rule a principality, so Aver’ianov’s version complements, rather than contradicts, the traditional view. It seems, moreover, that the local princes of Uglich, Galich and Beloozero retained their positions for a while, until they died out or were expelled by their Moscow cousins later on during the 14th century.3 The reigns of Ivan Kalita’s sons, Semën the Proud (1341–1353) and Ivan ii the Handsome (1354–1359), saw some minor acquisitions, but were characterized by quiet consolidation rather than expansion. Then, under Ivan ii’s son Dmitrii Donskoi (*1350, † 1389), the formal incorporation of the large territories of Kostroma, Uglich, Galich and Beloozero was realized and other territories (such as the principalities of Starodub and Dmitrov) were added to the ­Moscow principality as well. At the end of his reign, Dmitrii Donskoi united the grand principalities of Vladimir and Moscow, which had been in the hands of his father, uncle, and grandfather. Dmitrii Donskoi had established unequivocal primogeniture for the succession and Moscow was ruled by a succession of six generations of fathers and sons after him (if one disregards the dynastic upheavals following the death of Vasilii i in 1425). Dmitrii Donskoi’s eldest son, Vasilii i, was granted the grand princely dignity of Moscow by his father (the first time this happened without seeking the approval of the Tatar khan), together with more land than had been allotted to his four brothers together. Both Dmitrii Donskoi and Vasilii i had been involved for many years in a feud with the grand princes of Suzdal’ and Nizhnii Novgorod (Dmitrii Konstantinovich and his kin). The third party in this feud were the Tatar rulers. The Golden Horde was experiencing major political convulsions at this time, when, along with the regular rulers, – the khans (especially Tokhtamysh), powerful warlords, such as Timur, Mamai and Edigei pursued their own interests. ­Russian princes, as well as their Tatar counterparts, all attempted to exploit 1 ddg No.12, at 36. 2 K.A. Aver’ianov, Kupli Ivana Kality, Moskva, 2001. As Aver’ianov pointed out, great-uncles were commonly called dedy, along with grandfathers. 3 The princes of Uglich were apanage princes of the princes of Rostov, and the princes of ­Galich and Beloozero were minor independent princes.

824

chapter 32

these permanently shifting relationships to their advantage. The princes of Nizhnii Novgorod were occasionally successful in laying hands on the grand princely seat of Vladimir, but in the end their Moscow cousins came out victorious. In 1392 Vasilii i received the khan’s iarlyk for Nizhnii Novgorod and several adjoining territories to the south-east of his domains. Other territories were acquired as well by the same prince, the largest of them Vologda, in the Russian North, so that by the time of his death in 1425 his principality had about doubled in size during his reign.4 The reign of Vasilii ii, the Blind (1425–1462), the son and successor of ­Vasilii i, was marked by vehement dynastic strife within the small circle of Dmitrii ­Donskoi’s grandsons and the territorial expansion of the Moscow principality remained modest. Vasilii ii’s son and successor, Ivan iii emerged as the longest reigning and probably the most successful of the Moscow grand princes (1462–1506). The grand princes of Tver’, also descendants of Aleksandr Nevskii, who for a long time had been serious contenders for the leading position among the Russian princes, had gradually been reduced to ‘younger brothers’ of the Moscow grand prince, and in the end the last Tver’ grand prince, Mikhail Borisovich, was deposed in 1486 and Tver’ became part of Muscovy. An even bigger prize was Novgorod, whose rule extended over the huge and largely uninhabited territories of Russia’s North, as far east as the Ural Mountains. The grand princes of Vladimir had for centuries exercized the right to appoint the nominal prince of Novgorod, but while Novgorod was strong and the powers of the Vladimir grand prince limited, this right was of little importance. Under Ivan iii this situation had changed and Moscow’s dominant position was used to push Novgorod more and more into a corner. The struggle had begun already under Vasilii the Blind who had imposed the unfavourable Iazhelbitsy treaty on Novgorod in 1456.5 A last desperate attempt to resist failed when Novgorod was beaten in the battle at the Shelon’ river in 1471. In 1478 it was formally incorporated into the Muscovy empire. The unification of the territory of Central, East and Northern Russia was then completed, the main exception being the grand principality of Riazan’ in the South-East. Its princes, however, had already lost all genuine independence by that time, having formally recognized the Moscow prince as their ‘elder brother’. Its last prince was deposed in 1520. 4 See also S.A. Fetishchev, “K voprosu o prisoedinenii Muromy, Meshchery, Tarusy i Kozel’ska k Moskovskomu kniazhestvu v 90-e gg. xiv v.”, A.P. Pavlov (ed.), Rossiiskoe gosudarstvo v xiv–xvii vv. Sbornik statei, posviashchennyi 75-letiiu so dnia rozhdeniia Iu.G. Alekseeva, Sankt-­ Peterburg, 2002, 31–39. 5 gvnp Nos. 22–23, 39–43.

Territory and Population

825

Initially, the Moscow princes, adhering to the traditional arrangement of assigning apanage principalities to their sons and younger brothers, had allowed such apanage princes a considerable amount of autonomy in the internal government of their principalities. But eventually the further expansion of the territory controlled by the Moscow grand prince reduced the efficacy of this arrangement. In particular, the integration of the republic of Novgorod with its huge territory and its own legal culture and customs demanded the replacement of the simple procedures for running a small principality6 by a much more sophisticated and elaborate governmental apparatus. Many of the reforms required were introduced during the reign of Ivan iii, with the Sudebnik of 1497 as the crowning achievement. Art. 30 of the Code of 1497 listed the riding-fees (ezd) to which bailiffs riding from Moscow to provincial towns were entitled. The 53 towns mentioned offer a detailed description of the territory of Muscovy in 1497. Under Vasilii iii, the son and successor of Ivan iii, the last nominally independent Russian principalities were absorbed by Muscovy (Pskov in 1510 and Riazan’ in 1521). Vasilii iii continued the westward expansion which had already started under his predecessors, in particular in attempting to recuperate territories with a predominantly Eastern Slavic (Russian) population that had originally been part of the Kievan empire. In several wars with Lithuania the old principalities of Chernigov and Novgorod-Severskii returned to Russia (still during the reign of Ivan iii in 1503); of special importance was the acquisition of Smolensk in 1514. Some of the gains were only temporary and were lost to Poland-Lithuania in later campaigns (Poland and Lithuania formed a union after 1569). The reign of Vasilii iii (1505/6–1534) was followed by the long reign of his son Ivan iv Groznyi (“the Terrible”, born in 1530, died in 1584). Until Ivan iv actually ascended the throne in 1547, the government was in the hands of competing boyar clans. The Code (Sudebnik) of Ivan iv of 1550 also contained a list of riding-fees for bailiffs, as did its predecessor of 1497. The main territories acquired since 1497 were added: the vast and remote territory of Viatka in the North-East, while the other six (Torzhok, Pskov, Smolensk, Ivangorod, Velikie Luki and Toropets) were in the North-West. After khan Tokhtamysh (†1406), the unity of the Golden Horde was definitively lost. Its principal successors were the khanates of Kazan’, of Astrakhan’, and of the Crimea. Under Ivan iv, Russia’s expansionary energy was ­primarily directed eastwards, while the western frontiers remained relatively stable. 6 The territory of the original principality of Daniil Aleksandrovich in 1276 was in the order of 18.000 sq km, somewhat smaller than Israel or the state of New Jersey and less than half of the present Moscow oblast’ (province).

826

chapter 32

­ fter almost a century of hostilities between Russia and Kazan’, Ivan iv took A Kazan’ after a long siege in 1552 and incorporated the khanate into the R ­ ussian tsardom. The same fate befell the khanate of Astrakhan’ four years later (1556).7 The khanate of the Crimea, which at that time had become a vassal of Turkey, survived until 1783. During the last years of the reign of Ivan iv Cossack detachments started the penetration and conquest of Siberia. Under Ivan’s successor and only surviving son Fëdor and the subsequent Time of Troubles (1598–1613), the western borders of Russia became unstable, and this situation continued during the reign of the first Romanov tsar Mikhail. The territories of Smolensk and Chernigov were ceded to Poland again in 1618. The Swedes also occupied large swathes of the Russian North-West (Novgorod and the surrounding area). Territorial acquisitions and losses were a constant phenomenon in following centuries as well, but, in respect of the history of Russian law, the establishment (or re-establishment) of a centralized state on a large and contiguous territory, as it was achieved under Ivan iii, was a fundamental determinant. The “Territorial Growth of the Russian Empire, 16th–20th Centuries” was the theme of a collective study which appeared in 2015. Individual chapters were devoted to the formation of the borders with the various contiguous states over a period of four centuries, up to the beginning of the 20th century.8

Muscovy and Western Russia

This chapter began with the observation that the Muscovy state was constructed on the modest base of a few Eastern Russian principalities, which the rulers of Lithuania-Poland had been unable to include in the enormous territory acquired by them by the middle of the 15th century. The grand principality of Lithuania was actually in several ways a Russian state; the 7 Ivan iv added “tsar of Kazan’” and “tsar of Astrakhan’” to his list of major titles: “tsar and grand prince of All Russia, Vladimir, Moscow and Novgorod, tsar of Kazan’, tsar of Astrakhan’, lord of Pskov, grand prince of Smolensk, Tver’, Iugria [Western Siberia], Perm’, Viatka and Bolgaria­[Middle Volga region], lord and grand prince of Nizhnii Novgorod, Chernigov, Riazan’,­Polotsk, Rostov, Iaroslavl’ and Belo Ozero”. 8 E.P. Kudriavtseva (ed.), Formirovanie territorii Rossiiskogo gosudarstva xvi – nachalo xx v. (granitsy i geopolitika), Moskva, 2015.

Territory and Population

827

official language was Russian and the vast majority of the population was Russian-speaking.9 This situation began to change when Muscovy slowly emerged as a major player in Eastern Europe, while the Polish-Lithuanian Commonwealth (the Rzeczpospolita) started its downward course until its final dissolution at the end of the 18th century. The entire process lasted for more than two centuries and knew many reverses. One aspect of it merits some consideration on account of its potential relevance for legal history. In Chapter 17 (on Western Russia), the history of the law of Lithuania and then Poland-Lithuania was summarized. Although initially some remnants of Old-Russian law survived, the introduction of the law of the Lithuanian grand principality as embodied in the subsequent versions of the Lithuanian Statute represented a significant break with the past. Later, Polish law and indirectly also medieval German (especially Magdeburg) law applied in many parts of the Commonwealth. Once territories changed hands and became part of ­Muscovy, Russian law applied again. Recently, the view has been advanced by Ukrainian historians that for some time a third player was also involved, the law of the Ukrainian hetmanate. This would have been the law of the Cossack state of the second half of the 17th century.10 The fertile plains of Southern Russia,11 which had been the heartland of ­Kievan Rus, became a no man’s land after the incursions of the Mongols in the middle of the 13th century, a place abandoned to nomadic invaders, marauding horsemen, bands of robbers and various fortune-seekers. It was ­surrounded by established states or at least coherent state-like entities such as the Polish-Lithuanian Commonwealth, the Muscovy grand principality and several Tatar successor states of the Golden Horde. As the occasion arose, they all attempted to turn the existence of the “Wild Place” or Dikoe Pole, as it was known, and its inhabitants to their advantage. 9

10

11

As noted in Chapter 17, I am not taking a position in the linguistic debate concerning the correct nomenclature of the language of the Lithuanian principality, whether it should be called Old-Belorussian, Old-Russian or anything else. See for instance O.A. Hurzhii, Ukrains’ka kozats’ka derzhava v druhii polovyni xvii–xviii st.: Kordony, naselennyia, pravo, Kyiv, 1996; S.O. Huseva, Istoriia derzhavy i prava Ukrainy, Odesa, 2000; O.O. Rafal’s’kyi, Pereiaslavs’kyi dohovir Ukrainy z Rosieiu 1654 roku, Kyiv, 2004. I use Russia here as a geographical and not as a political or legal designation: the area known in atlases as European Russia, the territory between the White Sea in the North and the Black Sea in the South. To speak of Ukraine in the present context would be anachronistic.

828

chapter 32

At least as early as the 15th century and perhaps earlier, the presence of communities of militarized settlers could be observed in this region, later to be known as Cossacks. The ethnogenesis of the Cossacks cannot yet be considered as completely resolved and this problem is made more complicated by its political connotation. Undoubtedly, the influx of runaway slaves and serfs from the Polish-Lithuanian Commonwealth and from Muscovy constituted a major factor. Other elements comprised Tatar and other Turkic horsemen and, more speculatively, remnants of the original inhabitants of the area. At any rate, the Cossacks of the 17th century identified themselves in the various documents as Russians and spoke an East-Slavic language akin to present-day Ukrainian. Of the several Cossack communities which arose in Southern Russia, from the Balkans to the steppes of Asia, the most important ones were the Zaporozhian host, which had its headquarters in a fortified camp at Sich, below the Dnepr Rapids (dneprovskie porogi), and the Don Cossacks. Although the territory controlled by the Zaporozhian Cossacks, the only relevant group in the context of this section, was part of the Polish-Lithuanian Commonwealth, the Zaporozh’e Cossacks enjoyed a large measure of autonomy on account of the geopolitical conditions of the area. Their military presence in a permanently exposed flank of the Commonwealth made them an irreplaceable ally. At the same time, the political dynamics of most European states in the 17th century favoured the strengthening of central royal power; accordingly, the Polish-Lithuanian rulers incessantly attempted to reduce the Cossacks to the status of loyal subjects. But the Cossacks, whose existence was based on personal freedom and ownership of land, could only accept integration into the social network of the Commonwealth, if they were granted a status comparable to that of the lower Polish nobility, the szlachta. This was something the Polish government was unable to offer, because Poland, unlike Russia, was not run by an autocratic ruler, but by a delicate balance between king, magnates and lower nobility. In the end, the Zaporozhian Cossacks rebelled under their hetman Bogdan Khmel’nitskii (Bohdan Khmel’nyts’kyi) and, ultimately,12 transferred their allegiance to the Muscovy tsar. The basic document in which the new relationship was expressed was the so-called treaty of Pereiáslav which was worked out during the 1648–1654 period, due to the ever changing political constellation in which not only the Cossacks and the tsar, but also the Polish king and the khan of the Crimean Tatars were involved. Judged by its form, the Pereiaslav treaty was not a genuine agreement between equal parties, but a request by the Zaporozhian Cossacks to be accepted by the tsar as his subjects with the 12

The road towards the agreement was by no means straight and took several years.

Territory and Population

829

simultaneous recognition of their existing autonomous self-government, followed by the tsar’s unilateral grant of most of the Cossacks’ requests.13 The Pereiaslav treaty led to a long-drawn-out war with Poland and only the peace of Andrusovo (1667) created a more or less stable situation, in which the land on the left bank of the Dnepr and the city of Kiev permanently became part of Russia. Although the union with, or rather incorporation of, the territory controlled by the Zaporozhian Host was attractive to Moscow, the great drawback was that it made war with Poland inevitable, as it would be in violation of the existing peace treaty with that country. This was why the Russian government had recourse to the most elaborate procedure at its disposal. The proposals of Khmel’nitskii were first submitted to a meeting of the Land Assembly in 1651. That body agreed on condition that first all possible diplomatic solutions would be investigated. When this did not produce a satisfactory result, a second meeting of the Land Assembly was convened, and on 1 October 1653 it solemnly aligned itself with the tsar’s decision to accept Khmel’nitskii and his host “under his high hand”.14 This was also the swan song of the Land Assembly (see Chapters 28, on the Land Assembly, and xxxi, on the Tsar’s Government). The autonomous status of the Zaporozhian Host came to an end in 1775 by a decree of empress Catherine ii.15 The period between 1648 and 1775 is of particular interest for Ukrainian historiography, because the Zaporozhian Host under its hetman, and therefore also known as the Hetmanate, is regarded by some as a state and by the same token as the forerunner of the Ukrainian Republic which emerged as a fully independent state after the break-up of the ussr. The acceptance of such a view would involve the existence of the usual paraphernalia of a state, including some kind of legal system.16 The discussion of this subject is burdened by strong emotions and great political interests, and if one tries to limit it to the question of the creation of Ukrainian law during the period concerned, several marginal observations may elucidate the problem. 13

14 15 16

Texts in Ukrainian in Rafal’s’kyi, op. cit., 210–216. Since there never was a genuine t­ reaty, there was also no authentic treaty text; the status of the various texts which, taken ­together, would embody the agreements reached between the Zaporozhian Cossacks and the tsar, is also disputed. Text of the 1653 resolution of the Land Assembly in rz iii, 450–458; PRoP iii/2, 255–262. Text in Rafal’s’kyi, op. cit., 246–251. This, for instance, is the position of Huseva, who presented an entire chapter entitled “The system of the organs of government and administration, and of justice, in the Cossack-hetman state (1648 to the end of the 18th century)”, op. cit., 80–117.

830

chapter 32

A first and preliminary one should be that the situation created by the 1648–1654 negotiations with Muscovy was anything but stable and permanent. Khmel’nitskii went back to the Polish side a few years later and subsequent hetmans transferred their allegiance successively to Moscow, the Crimean khan, the Polish king, the sultan of Turkey, and even to the king of Sweden in the 18th century. Also, the Cossacks never stayed united for long. For a long time the Zaporozhian Host had its headquarters at Sich, while the Hetmanate (Getmanshchina) covered the area to the north of it on the right bank of the Dnepr. Most of the Cossack hosts which had emerged in Southern Russia had been at least nominal subjects of Poland-Lithuania until 1648 and their status did not change much afterwards, except as regards the identity of their suzerain. Only during the short tenure of hetman Pylyp Orlyk (1710–1712) was complete independence proclaimed, but this proclamation was never realized; it did acknowledge the king of Sweden as the protector of the Zaporozhian Host.17 Other hetmans always asserted their status as loyal subjects of the tsar in their official statements. This goes in particular for their “universals” (universaly), administrative decisions concerning a wide variety of topics, taken by the hetman in his capacity as governor of the territory.18 As explained in Chapter 17, on Western Russia, Polish-Lithuanian law, and especially Magdeburg law, survived for a long time in the former Polish-Lithuanian territories incorporated into Russia, and the last remnants of this arrangements were abolished only in the middle of the 19th century. Initially, the Zaporozhian Host had retained limited rights to conduct foreign policy; in the course of the 18th century these rights were gradually withdrawn.­ Supervision of the Hetmanate’s foreign and domestic policies was entrusted to the Department of Little Russia (Malorossiiskii prikaz), established in 1662 and absorbed by the Department of Foreign Affairs (Posol’skii prikaz) in 1667. These departments were represented by Russian officials (voevody) at the headquarters of the hetman and of regional Cossack hosts (polki). 17 18

Text in Rafal’s’kyi, op. cit., 228–245. Cf. I. Butych (comp.), Universaly Ivana Mazepy 1687–1709, Ch. i, Kyiv/L’viv, 2002; I. ­Butych, V. Rynsevych (comp.), Universaly Ivana Mazepy (1687–1709), Ch. ii, Kyiv/L’viv, 2006; V. Rynsevych (comp.), Universaly Pavla Polubotka (1722–1723), Kyiv, 2008.

chapter 33

Local Government In a country the size of Russia, local government may refer to the management of public affairs at various levels below that of the central government. This chapter will look at the intermediate level, the regional or provincial, in other words. As the territorial subdivisions of Muscovy were inherently connected with the regional urban centres, provincial government was inseparable from the government of those towns. At the lowest, rural level, local government was closely connected with the aspect of land ownership and will be discussed accordingly in Chapter 36 (on Ownership).

Kormlenie as the Basis of the Traditional System

With the expansion of the Muscovy principality, the question of local (regional) government became a matter of increasing importance. During the foregoing era of the independent principalities, the modest size of most of them allowed the ruling prince to run the affairs of his principality with a few councillors from his residence. The principal exception was Novgorod, which controlled the huge territory of most of the Russian North. Novgorod did have a system for exercizing control in faraway places and it was discussed in the relevant section of Chapter 16 (on Novgorod). During the reign of Ivan iii (1462–1506) and that of his son Vasilii iii (1506– 1534), local government in the by then greatly expanded territory of the grand principality of Moscow continued to be exercized as of old; in regional centres far away from Moscow the grand prince was represented by his lieutenants, called namestniki in urban and volosteli in rural areas.1 Their position and 1 The namestniki were in charge of uezdy, districts with a prominent urban centre; in the 16th and 17th century there were from 60–100 of such districts. The district entrusted to the volostel’, a volost’, would be predominantly rural, but could contain small towns; there were several hundreds of such volosti. “Lieutenant” is a fairly precise equivalent of namestnik (“somebody who acts in the place of another person”); I have preferred it to the more unusual “vicegerent” as used by Dewey in his translations. A pre-1917 text, recently reprinted, still provides a convenient overview of the organization of local government in Russia through the ages: I.E. Andreevskii, O namestnikakh, voevodakh i gubernatorakh. Istoriia gosudarstvennogo upravleniia v Rossii (ix–xix vv.), Sankt-Peterburg, 1864 (1st ed.), reprint Moskva, 2014. See also T.V. Chernikova, Istoriia gosudarstvennogo upravleniia Rossii ix–xviii vekov (Part i of

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_034

832

chapter 33

­activities were financed by the resident population itself, on the basis of kormlenie, the ancient system by virtue of which officials were provided locally with everything they needed, food, housing, means of transportation, etc., most of which was replaced in later years by a monetary equivalent. The administration of a particular region, entrusted to namestniki (volosteli), was occasionally specified in a grant charter (zhalovannaia gramota) of a special type, called a “statutory charter on lieutenancy” (ustavnaia namestnich’a gramota). The Dvina Land Charter of 1397–1398 and the Belozero Charter of 1488 belonged to this category. The main component of the lieutenancy charters was the listing, often in great detail, of the korm to which the lieutenant and the different officials in his staff were entitled.2 The number of known lieutenancy charters is modest.3 With a few exceptions they are from the 1506– 1556 period. It has been suggested that the issuing of lieutenancy charters, meticulously defining what the lieutenants and their staffs were entitled to, was prompted by the rising abuse of kormlenie by the latter. The very short-lived Dvina Land Charter of grand prince Vasilii I Dmitrievich of 1397–1398 had its origin in the long-drawn-out struggle for supremacy between Moscow and Novgorod.4 The leading nobles of the vast Dvina region had changed their allegiance from Novgorod to Moscow and this prompted the Moscow grand prince to regulate the region’s government anew. The traditional arrangement of appointing a representative of the prince (lieutenant, namestnik or volostel’)5 to rule in the latter’s name was maintained; the remuneration of the namestnik and his staff was effected through the usual kormlenie system. But the Dvina Land Charter made various concessions to the Dvina nobles, as compared with the generally practised system of namestniki with kormlenie. Novgorod put an end to the Dvina rebellion in 1398. Ninety years later, in 1488, the government of Belo Ozero (or Belozero: White Lake) was organized along similar lines, although less generously in respect of

2

3

4 5

E.V. Okhotskii, V.I. Ukolova (eds.), Istoriia gosudarstvennogo upravleniia Rossii), Moskva, 2016, 174–176. For an early 16th century example, see S.B. Veselovskii (comp.), Akty russkogo gosudarstva 1505–1526 gg., Moskva, 1975, No.18, 26–27 (grant by Vasilii iii to a district in the Pereiaslavl’ uezd). prp iv, 222–223, lists 16 of such charters, including the 1397–1398 Dvina Charter and the 1488 Belo Ozero Charter; a new one was published by A.V. Antonov (“Ryl’skaia ustavnaia namestnich’ia gramota 1549 goda”, in A.V. Antonov (ed.), Russkii Diplomatarii, vyp.3, Moskva, 1998, 65–70). Ustavnaia gramota Dvinskoi zemle; see the section in Chapter 8. Namestniki were appointed as princely representatives in towns, volosteli in rural areas. In the Codes of 1497 and 1550 they are often mentioned in the same breath.

Local Government

833

local interests. Belo Ozero had been acquired by the Moscow grand prince in 1386 and was then granted as an apanage principality to a cadet branch of his family. In 1486 Ivan iii brought it back under direct Moscow rule. The Belozero Statutory Charter adopted the system of rule through a namestnik; it regulated kormlenie in much detail.6 As long as the lieutenant (urban or rural) did not give the grand prince any cause for concern and did what was expected of him, he enjoyed great independence in governing the territory assigned to him.7 His power was not monopolistic, there would be several princely officials, not reporting to him, active within the same territory, but their tasks would be more specific, such as the collection of a variety of taxes, specific military duties or police work, etc. The power of the namestnik or volostel’ was more or less universal, or at least relatively indeterminate. It would embrace general and especially economic administration (such as land management), public order, and general jurisdiction, except in a few of the most serious cases. The Code of 1497 of Ivan iii devoted a number of provisions to the judicial and law enforcement activities of the lieutenants and their specialized staff (sheriffs, constables, bailiffs, etc.). Kormlenie was meant to provide not only for the lieutenant ­personally, but also for the entire government apparatus of which he was the head. The differences between the namestniki and volosteli were mostly of a sociological nature. Pashkova’s detailed analysis has shown that the office of namestnik would usually confer greater prestige on the incumbent than that of the volostel’.8 Accordingly, a much greater number of service princes, boyars and other high-ranking officials was found among the namestniki than among the volosteli. The fact that the territory over which the namestnik was appointed, the uezd, was generally much larger than the volost’ run by the volostel’ was of course a major factor in the difference in status. It should be added that, while volost’ was a fairly distinct territorial unit, a district consisting of a number of villages, uezd had a less well-defined character. It usually referred to a territory which had enjoyed a degree of independence in the past as an apanage or an independent principality or in another way. This resulted in a total number of from 60 to 100 uezdy. This number included uezdy as sub-divisions of large 6 Belozerskaia ustavnaia gramota, see Chapter 8. 7 Cf. T.I. Pashkova, Mestnoe upravlenie v russkom gosudarstve pervoi poloviny xvi veka. ­Namestniki i volosteli, Moskva, 2000, 125. This section is based mainly on Pashkova’s work. 8 See the lists of namestniki and volosteli of the Moscow grand princes and other princes (­Appendices 1 and 2) from the second half of the 15th century and the first half of the 16th century in Pashkova, 131–185.

834

chapter 33

former principalities. These principalities were themselves occasionally also designated as uezdy.9 Another name for such territories was zemlia (“land”) and they resurfaced in the times of Peter the Great as “provinces” or “governments” (gubernii). The evidence from Riazan’, which survived as a nominally independent grand principality until 1521, suggests that the administrative system of namestniki and volosteli, maintained through kormlenie, operated, with minor differences, in all other Russian principalities which were successively absorbed by Moscow.10 The curious combination of relatively independent local government by lieutenants and its financing by means of the kormlenie system suffered from inherent defects which made it untenable in the end. Lax supervision by the central authorities made the temptation to exploit kormlenie and related impositions on the population as an instrument to accumulate private wealth almost irresistible. The Codes of 1497 and 1550, as well as other contemporary sources, offer some information on the staff assisting the lieutenant in the execution of his duties. Most officials mentioned are connected with the administration of justice, which is not surprising as this was the central topic of the Codes. The tiun, an officer already known in Kievan times, appeared as the ordinary deputy of the lieutenant. Dovodchiki and pravedchiki are usually mentioned together and are translated variously as bailiffs, constables, etc., belonging to the staff of a lieutenant.11 The dovodchik was probably the official who delivered the summons (dovod). Dovodchiki and pravedchiki did not receive korm, but a reward called pobory. They disappeared in the 17th century. Other officials served as members of the lieutenant’s staff, such as poshlinniki (tax collectors), obyshchiki (investigators), pristavy (bailiffs) and of course tiuny, but they are also encountered in other branches of the administration.

9

10 11

Art. 46 of Ch. xvii of the Ulozhenie directed that a particular rule for assigning land in the uezdy of Moscow, Dmitrov, Zvenigorod and Ruza was to be applied similarly in the uezd of Novgorod. The meaning was obviously that the law of the Muscovy heartland (the uezd of Moscow and the adjacent uezdy) was also applicable in the former territory of the Novgorod republic, of which the actual uezd of Novgorod was only a small part and which encompassed a number of uezdy. Pashkova’s lists contain many names of namestniki and volosteli from Riazan’ and other principalities. See also S.V. Strel’nikov, “K izucheniiu iuridicheskoi terminologii v srednevekovoi Rusi x–xvii vv. («pravda», «pravednik» i «nedel’shchik»)”, Ocherki feodal’noi Rossii 8, Moskva, 2004, 58–74.

Local Government



835

The Reforms of Ivan iv

The general significance and background of the reform policies of the first ten years of the reign of Ivan iv were discussed earlier (in Chapter 23). Accordingly,­ the inadequacy of the kormlenie system as the financial backbone of local government is not to be seen as the single factor that drove the reforms introduced during the reign of Ivan iv. The need to have a more efficient system of local government was connected with several other factors, such as the wish of central government to acquire more control over what went on in the periphery, the shifting balances between sections of the landowning classes (boyars, gentry, monasteries), serious social unrest in various parts of the country, military requirements, and of course fiscal considerations. The overall perspective remained the metamorphosis of Moscow from a small principality into a major European state. The Muscovy government had to deal with all these factors and the new political reality implied that its policies would be cloaked, at least in part, in legal enactments. This has to be kept in mind in examining the reforms of local government in the era of Ivan iv, because most of the measures taken concerned not only, and often not primarily, local government. One of the earliest manifestations of the new trends was the passing of the Belo Ozero Guba Charter of 1539 (not to be confused with the Belo Ozero Statutory Charter of 1488, discussed above). It took place under rather chaotic political conditions, shortly after the death in 1538 of the grand princess-regent Elena Glinskaia, the mother of Ivan iv (born in 1530), when the government was in the hands of quarrelling boyar clans and Muscovy was involved in several wars on its borders. Lawlessness was rife, especially in the North, sparsely inhabited by ‘black’ peasants, who worked on government lands without being subject to feudal masters. The Belo Ozero Guba Charter, looking outwardly like a grant charter, recognized the ineffectiveness of the prince’s agents in fighting robber bands controlling much of the countryside, and outlined a new system for dealing with the problem. It was issued in the name of tsar Ivan. The policy embodied in the reform was mentioned in an entry in the First Pskov Chronicle under the years 1540–1541, which stated explicitly that it represented a new departure.12 Guba Charters In the Muscovy era, the gubá was an administrative district, more or less synonymous with an uezd. In the guba charters the term uezd is frequently used, 12

Cf. prp iv, 174 and rz ii, 208. On the guba reforms, see also V.V. Bovykin, Ocherki po istorii mestnogo samoupravleniia epokhi Ivana Groznogo, Sankt-Peterburg, 2015, 156–186.

836

chapter 33

but the (elected) district officials were commonly referred to as guba elders (gubnye starosty). The legal relevance of the guba charters is especially in the light they shed on the emergence of a governmental apparatus, as well as in their impact on the development of the criminal law of Muscovy.13 The 1539 Belo Ozero Guba Charter was addressed to the population of the Belozero district (as mentioned above, originally an independent principality, but absorbed by Moscow in 1386), ostensibly as a reaction to its request to be allowed to deal with robbers and brigands itself. The main thrust of the charter was in granting the population its request and in regulating the main features of this innovation.14 Art. 1 contained the address, art. 2 had the character of a preamble. The latter provision related that the Belozero population had complained bitterly about the deprivations suffered at the hands of bandits and the ineffectiveness and even harmfulness of the activities of the officials sent by Moscow. The same rhetoric was later used by Ivan iv in introducing his Code of 1550. The reform initiated by the Belo Ozero Guba Charter changed the procedure in force until then, which was based on art. 39 of the Code of Ivan iii of 1497. This provision already contained elements which returned in the guba reform, in particular the central concept of the “known criminal” (vedomyi likhii). Art. 39 (1497) covered not only banditry, but also homicide, theft and “other evil deeds”; it seems that along with the defendant’s bad reputation some sort of other evidence was required. Such cases were tried by the namestnik (or, in rural areas, the volostel’). Art. 3 of the Belo Ozero Charter took jurisdiction in cases of banditry away from the lieutenants and transferred it to locally constituted courts. Although the charter was of regional applicability, other provisions (esp. arts. 4 and 5) indicated that the guba reform concerned the entire country. The judicial handling of bandits operating in organized gangs was taken away from the regular courts of the namestniki and volosteli, the tsar’s regional agents, and given to councils consisting of three or four literate and suitable minor noblemen (deti boiarskie, in fact: landowners) and five or six elders and

13

14

The major editions of selected guba charters in prp, rz and PRoP are accompanied by comments by A.G. Poliak (prp iv, 173–175, 198–226), V.M. Kleandrova (rz ii, 207–213), and Iu.V. Ospennikov (PRoP iii/1, 74–83). See also H.W. Dewey, “Muscovite Guba Charters and the Concept of Brigandage (Razboj)”, Papers of the Michigan Academy of Science, Arts, and Letters, Vol. li (1966), 277–288. Text in prp iv, 176–179; rz ii, 213–215; PRoP iii/1, 74–75; English translation in H.W. Dewey, Muscovite Judicial Texts, 33–34.

Local Government

837

prominent peasants (lutchikh liudei krestian, probably: well-to-do farmers). The councils were elected by a general assembly (art. 3) in which everybody from local princes to dependent peasants and craftsmen (excluding slaves) participated (a list in art. 1).The result of the election had to be reported to Moscow (art. 10). Art. 3 also stipulated that not only the bandits themselves, but also their accomplices (who sheltered bandits or hid stolen goods) were covered by the charter. Most of the remaining provisions of the charter were devoted to the procedures to be followed. In the conditions of 16th century Russia one should of course not expect the fair trial guarantees of the 21st century. The central concept remained the vedomyi likhii chelovek (notorious criminal); if the local people who constituted the court were convinced that they were dealing with a real bandit, he would have little chance of escaping the gallows. Torture was an almost obligatory part of the procedure, but only persistent denial of guilt by the defendant coupled with the lack of any other evidence and the existence of some real doubt about the charge might save his life; he would be put in jail then, to see whether new evidence would perhaps turn up. In most instances the procedure would end in capital punishment, accompanied by confiscation of property. This was to be used first for compensating victims, and then the balance was to be sent to Moscow. Everything had to be written up; the appearance of court documents was a significant element of the new legislation, explaining the requirement of literacy. Later on in the same year, a very similar charter was issued to the town and district of Kargopol’.15 In the following year, the town and district of Ustiug was the recipient of a charter in many ways identical to its predecessors,16 but the gubnaia gramota of the same year and addressed to the town and district of Sol’ Galitskaia, although similar in its content, was drafted differently.17 The key role in handling people suspected of being bandits was given here to the town commissioner (prikazchik gorodovoi), an elected official. 15

16 17

The most comprehensive collections of guba charters are to be found in 19th century publications, such as the Akty, sobrannye v bibliotekakh i arkhivakh Rossiiskoi imperii Arkheograficheskoi ekspeditsii Imperatorskoi akademii nauk (aae), the Russkaia Istoricheskaia Biblioteka (rib), or S. Shumakov, Gubnye i zemskie gramoty Moskovskogo gosudarstva, Moskva, 1895. Text in PRoP iii/1, 75–76. Text in L.I. Ivina (comp.), Akty feodal’nogo zemlevladeniia i khoziaistva. Akty Moskovskogo Simonova monastyria (1506–1613 gg.), Leningrad, 1983, No.64, 75–76.

838

chapter 33

There were altogether eight gubnye gramoty issued during the first few years (1539–1542), all drafted along the lines of the Belozero example.18 After a single guba charter from 1549, six new charters appeared in the following decade.19 These charters were designated as nakazy, reflecting their character as detailed instructions coming from above. The best known is the Medynskii gubnoi nakaz of 1555.20 The general set-up of the guba jurisdiction remained unchanged, but procedures were described more elaborately and less was left to the discretion or imagination of the local guba officials. The highest guba elders were not elected but appointed by name in the nakaz. Guba elders had to swear an oath in Moscow, the text of which listed their most important duties.21 The nakazy of the 1550’s concerned regions all over Russia. By that time the 1550 Sudebnik was in force; art. 60 referred explicitly to the exclusive competence of guba courts in cases of banditry. This provision was based on art. 39 of the Sudebnik of 1497, mentioned above. The increasing involvement of the tsar’s central government in the work of guba institutions required a more elaborate administrative structure in ­Moscow. Most authors are of the opinion that the start of the guba reforms was accompanied by the emergence of a special department. The 1539 charter of the Belozero guba mentioned prince Ivan Danilovich Penkov and his associates, to whom reports were to be addressed. The next year, the Ustiug guba charter said: “our boyars in Moscow to whom banditry cases have been assigned”. In the 1550’s the existence of a Brigandage (or Robbery) Department (Razboinyi prikaz) is well-documented. This Department was operational­at least as early as 1555. Its decisions were collected in a “Book of Directives” (Ustavnaia kniga); the first one known is from 18 January 1555, in fact a short general regulation on procedure in cases of banditry.22 On 26 November 1555 a similar regulation on procedure in cases of theft followed,23 and the next year (on 22 August 1556) a general regulation on procedure in matters subject 18 Two gubnye gramoty of 1541 to the Troitse-Sergiev monastery (itself not too far from Moscow) concerned some of the monastery’s extensive landholdings, mostly in the former principality of Tver’. 19 A list of guba charters, known at the time (1956), in prp iv, 223–224. 20 Text in prp iv, 179–185; rz ii, 218–223; PRoP iii/1, 65–68. 21 See prp iv, 186–188. On this second phase of the guba reforms, see V.V. Bovykin, Ocherki po istorii mestnogo samoupravleniia epokhi Ivana Groznogo, SPb., 2015, 279–312. 22 Prigovor o razboinykh delakh (“Judgment in matters of banditry”), prp iv, 356–360; PRoP iii/2, 263–265. 23 Ukaz o tatebnykh delakh (“Decree on matters of theft”), prp iv, 360–363; PRoP iii/2, 265–267.

Local Government

839

to guba jurisdiction was established.24 The activities of the Razboinyi prikaz made the granting of guba charters to specific regions superfluous, although a small number of them were issued during the remainder of the 16th century. Statutory Land Charters Lieutenancy charters, as the basic statutory regulation of the lieutenancy (including kormlenie) system, continued to be granted into the middle of the 16th century, when they were gradually replaced by another type, the “statutory land charter” (ustavnaia zemskaia gramota).25 The latter charter paralleled the guba charter in several ways, but its scope was wider. The similarity was most obvious in the first paragraphs of the two types of charters, referring usually to the initiative of the rural population in addressing the tsar to complain about the problems in their villages, the devastation caused by robbers, war, exploitation by the tsar’s officials, and the ensuing flight of a substantial part of the population; this narrative was then usually followed by the tsar’s reply in the form of an ukaz in which he prescribed a new approach. Where the guba charters usually contented themselves with just taking away certain sources of income from the lieutenants, the land charters summarily dismissed the namestniki and volosteli in most cases. The guba charter had transferred criminal jurisdiction in cases connected with banditry from the lieutenant to the elected guba elders, the land charter extended the involvement of the local elite to other matters as well. This elite was designated in the charters as “beloved leaders” (izliublennye golovy), to be selected from the “best people” (lutchie liudi). Village elders would constitute the core, but well-to-do merchants and, where available, landowning gentry, would also be eligible. Such persons, like guba elders, also had to swear a solemn oath (krestnoe tselovanie, hence their designation as tseloval’niki) in Moscow, that they would carry out their judicial functions without favours or bribery, and also that they would collect and deliver the annual tax (obrok) faithfully and on time.26 One of the earliest examples of a statutory land charter was the charter granted on 25 February 1552 by Ivan iv to the population of three districts

24 25 26

Prigovor o gubnykh delakh (“Judgment on guba affairs”), prp iv, 363–370; PRoP iii/2, 267–271. Lists of lieutenancy and land charters in prp iv, 222–225. Very occasionally (in 1584 and 1614), lieutenancy charters were granted after the middle of the 16th century. Oath formula in prp iv, 197–198.

840

chapter 33

(volosti) in the very vast North Russian Dvina province (uezd).27 Art. 1 of the charter contained the tsar’s address to the population, represented by three peasants mentioned by name, and art. 2 served as a preamble; the tsar took into consideration that the local population had suffered much from the lieutenants (volosteli) and their various agents, as well as from brigands, that many villages were deserted and that peasants had sought refuge by joining the workforce of monasteries, but that the officials continued to impose korm and other taxes on the remaining peasants. The main body of the charter then replaced the administration of volosteli and their agents with that of “best people”, ten “beloved leaders”. Although the charter repeatedly spoke of “elected best people”, the ten elders were in fact appointed by name in the charter. At the same time, korm and other taxes imposed by the volosteli were abolished. Their place was taken by an annual tax of one hundred rubles, the obrok, to be collected by the administration of the elders and paid directly to the tsar’s treasury. The replacement of lieutenants’ kormlenie by an annual tax can be conceived as a kind of buying off and it is therefore often referred to in the literature as otkup; the term is rarely encountered in contemporary sources. Other taxes in favour of the treasury and formerly collected by the volosteli were maintained, but their collection also became the duty of the ten elders. The other duties of the new administrators were defined quite generously: criminal jurisdiction, including investigation, prosecution, trial and the execution of judgments in cases of homicide, other serious crimes “or other evil deeds” (arts. 19–20), as well as the general administration of the district, which also included jurisdiction in most civil cases. The assignment of jurisdiction was repeatedly (arts. 4, 10, 17, 20, 21, 22) accompanied by the words “according to our Code” (po nashemy Sudebniku). This connects the charter and the reforms of which it was an early manifestation very clearly with the more general legislative campaign of the first years of the reign of Ivan iv and the Code of 1550. A very similar charter was granted one month later (21 March 1552) to the peasants of the entire district (uezd) of Vaga (in the present province of Vologda).28 Most of the surviving land charters are from the 1551–1561 period and most of them concern regions in Northern Russia where landowning by boyars and 27

28

Ustavnaia zemskaia gramota volostei Maloi Penezhki, Vyiskoi i Sury Dvinskogo uezda, prp iv, 188–197; rz ii, 227–234; PRoP iii/1, 68–74; English translation in H.W. Dewey, Muscovite Judicial Texts 1488–1556. Michigan Slavic Materials, No.7, Ann Arbor, 1966, 77–82. M.F. Vladimirskii-Budanov (comp.), Khrestomatiia po istorii russkago prava, ii, Kiev, 1915 (5th ed.), 269–292.

Local Government

841

other noblemen was less prominent. This explains at least in part why the need to replace the outdated administration by princely lieutenants, financially supported by the kormlenie system, was more urgent there than in other parts of Muscovy, where many administrative functions would informally be in the hands of the local elite.29 In financial terms, the reform granted a greater measure of self-government to the local population (or at least its upper echelons), but this was balanced by greater direct involvement of the central government (as indicated by several new procedures outlined in the individual charters), while the fiscal impact of obrok and other impositions to be paid to the treasury was considerable, but more or less fixed, as against the less calculable risks involved in being subject to the regime of the lieutenants. In all this it should be remembered that everything was certainly not as neat as one might make it look on paper. It has been noted above that kormlenie and the appointment of namestniki occurred not infrequently during the latter half of the 16th century.

The Abolition of Kormlenie

For a long time it has been generally accepted by Russian historians that kormlenie was abolished by a decree of Ivan iv, issued in 1555 or 1556.30 An official record of the enactment has not been preserved, but the Nikonovskaia Chronicle relates that tsar Ivan Vasil’evich (Ivan iv) issued a decree (prigovor) on kormlenie and service in the year 7064 (= 1556).31 The text communicated by the Chronicle is obviously not the genuine text of the decree. It consisted of the following six parts: an introduction describing how kormlenie functioned in the past; a record of the abuses that had arisen; a long digression on how a God-fearing tsar treats his people; a central part containing the tsar’s decision, consisting of a. the transfer of jurisdiction to local officials, b. the imposition of a tax (obrok) on towns and rural districts, and c. the making of alternative 29

V.N. Glaz’ev, Vlast’ i obshchestvo na iuge Rossii v xvii veke: protivodeistvie ugolovnoi prestupnosti, Voronezh, 2001, discusses the situation in the southern parts of Muscovy, where specific circumstances (constant threats of Tatar incursions, a different social composition of the population, etc.) had slowed down and amended the guba reform measures already implemented in other provinces. 30 E.g. Vlad.-Bud., Obzor, 209; S.V. Iushkov, Istoriia gosudarstva i prava sssr i, Moskva, 1950, 663; I.A. Isaev, Istoriia gosudarstva i prava Rossii, Moskva, 2006, 127. 31 The Nikonovskaia letopis’ takes up many volumes of the psrl; the text concerned is in Vol.13, Sankt-Peterburg, 1904, 267–269. Tatishchev reproduced this text with minor variations, V.N. Tatishchev, Istoriia Rossiiskaia, Part 4, 253–255 (1996 reprint of 1964 edition).

842

chapter 33

provision (also called kormlenie) for boyars and other servicemen, in accordance with rank and status; a final part was devoted to (military) service and its reward in the form of land grants to (noble) servicemen. Most commentators agree that the text incorporated in the Chronicle was inserted afterwards in the narrative because the reforms introduced by the government of Adashev were considered so important that they deserved to be mentioned.32 Some authors go a step further and argue that there was in fact never a decree in 1556 abolishing kormlenie, but that the Chronicle text merely summarized the most important reforms of the previous years.33

Voevody

A new twist was added more recently by a study on the voevody in the 17th century, the provincial governors who were to a great extent the functional successors of the namestniki.34 The central point of Enin’s study is summarized in the title of the book Voevodskoe kormlenie v Rossii v xvii veke (“Kormlenie of voevody in Russia in the 17th century”). Enin pointed out that the Nikonovskaia Chronicle (the only source) did not say that kormlenie was abolished, but merely that the namestniki and volosteli, the main beneficiaries of kormlenie, were replaced by a new type of official, who did not receive kormlenie. However, the simple fact that the assignment of kormlenie to voevody continued during the 17th century speaks eloquently in favour of Enin’s view that kormlenie was not abolished and that it constituted the principal source of income for the voevody. The voevoda was known as early as in the Primary Chronicle.35 As the word indicates (“one who leads the army”, comp. Germanic hartoghe, hertog, herzog), the voevoda was originally the military commander, the general, under the prince. 32 See the incisive discussion of the debate in N.E. Nosov, Stanovlenie soslovnopredstavitel’nykh uchrezhdenii v Rossi. Izyskaniia o zemskoi reformy Ivana Groznogo, ­Leningrad, 1969, 367–385. 33 This, in particular, was the view of Zimin, who returned repeatedly to the question; cf. A.A. Zimin, “«Prigovor» 1555–56 gg. i likvidatsiia sistemy kormlenii v Russkom gosudarstve”, Istoriia sssr, 1958, No.1, 178–182; id., Reformy Ivana Groznogo, Moskva, 1960, 422–437; prp iv, 599–601 (Zimin’s comments to the text from the Nikonovskaia Chronicle). 34 G.P. Enin, Voevodskoe kormlenie v Rossii v xvii veke (soderzhanie naseleniem uezda gosudarstvennogo organa vlasti), Sankt-Peterburg, 2000. 35 Such as Sveinald, the general of Ol’ga in 945, or Vyshata and his son Ian who were generals of Iaroslav the Wise.

Local Government

843

In the 16th century sources voevoda still had this meaning. In the 17th century the voevoda also appeared as a high-ranking civil official.36 In the Ulozhenie of 1649 the namestniki and volosteli have disappeared and the voevody, who are absent in the Sudebnik of 1550, are mentioned frequently. In a few cases (e.g. arts. 20(ii) and 21(ii), and 9(vii) and 26(vii)) the Ulozhenie explicitly indicated that military commanders were meant. They were also referred to as voevody v polku or voevody polkovye (regimental voevody, e.g. art. 149(x)). In most cases another kind of official is envisaged, and from the numerous details provided concerning his various duties it is obvious that the latter voevoda was actually the successor of the namestnik of the past. These voevody were known as voevody gorodovye. They were the general representatives of the tsar in the province (uezd) and, as such, they carried out manifold governmental duties, including judicial ones. Jurisdiction in serious criminal cases (homicide, theft, brigandage), assigned to guba elders, was excluded, except in provinces where no guba courts had been set up(art. 3(xxi)).37 “Governor” would be the most appropriate translation for voevoda gorodovoi. In the Ulozhenie such governors are usually mentioned together with their close ­assistants, their prikaznye liudi (chancery officers). The emergence of the civil governors could tentatively be explained as follows. In the main towns of the provinces (uezdy) and especially in the former capitals of principalities, there would usually have been a military presence of considerable strength. When the namestnik disappeared, the local commander was the natural successor as the agent of the prince. There are also indications that voevody would appear earlier or more frequently in regions subject to internal or external threats.38 Several provisions of the Ulozhenie demonstrate that payments for various administrative actions (sealing documents, granting permissions, etc.), which in the past had been assigned to the namestnik, were henceforth payable to the voevoda. This may have facilitated the continuation of kormlenie in favour of the governor and his staff. It goes without saying that voevody were appointed by the tsar. 36 37

38

E.g. prp v, 58–59, a sluzhilaia kabala (by which a loan debtor became the creditor’s serf), confirmed and sealed by the two voevody of Iaroslavl’. This was certainly not the only exception to the general jurisdiction of the provincial governors. Art. 9 of the Decree on the Search and Handing Over of [Fugitive] Peasants of 1641 provided that for a wide variety of offences committed by zakladchiki (dependent persons belonging to monasteries) jurisdiction belonged to the government department (prikaz) concerned, because governors apparently had claimed not to be competent in such cases; cf. prp v, 368. Cf. V.N. Glaz’ev, “Gorodovoe voevodstvo vtoroi poloviny xvii v.”, Ocherki feodal’noi Rossii 8, Moskva, 2004, 165–174.

chapter 34

Criminal Law and Procedure Introduction One of the results of the emergence of a unitary Russian state by the end of the 15th century was a great increase in the complexity, sophistication and professionalism of the legal system. The Code (Sudebnik) of Ivan iii of 1497 was in most ways a continuation of legal traditions going back to the Russkaia Pravda. The Council Code (Sobornoe Ulozhenie) of tsar Aleksei of 1649 was sufficiently advanced to serve as the starting-point for the wholesale modern codification of the 19th century. One of the indicators of this change was that in handling an individual’s responsibility for his own acts the law began to differentiate more clearly between criminal and civil responsibility. Still, to speak blithely of the criminal law of Muscovy, as many authors have done following Vladimirskii-Budanov,1 seems to be preposterous. Sergeevich, as always, was more keenly aware of the problems involved; he did include a chapter on criminal law in his Lektsii, but warned immediately that criminal law in medieval Russia meant something quite different from how it was understood in his time.2 The basic foundation of modern criminal law is the legality principle: only acts which have been defined as criminal by the law can subsequently be regarded as crimes. This means first of all that a legal definition is required and secondly that acts cannot retroactively be defined as crimes. A further consequence is that a criminal penalty may only be imposed after the commission of a crime has been established by a proper court. (This does not automatically preclude the imposition of administrative penalties.) These ideas, summarized in the Latin adage Nullum crimen, nulla poena, sine praevia lege poenali 1 Cf. Vlad.-Bud., Obzor, 333–335. The PRoP series has not only included the texts of the most important legal sources from Russia’s past (as did its predecessors, the prp and the rz), but occasionally added chapters on certain legal topics. There are chapters on the criminal law of the Code of 1497 by I.V. Popriadukhina, PRoP iii/1, 99–165, and by A.A. Rozhnov, PRoP iii/1, 227–260; on the Code of 1550 by I.G. Anan’eva, PRoP iii/1, 166–226, and by A.A. Rozhnov, PRoP iii/1, 261–280. The criminal law in the Ulozhenie of 1649 is treated by A.A. Rozhnov, PRoP iii/2, 304–354. 2 Sergeevich, Lektsii, 352–358.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_035

Criminal Law and Procedure

845

(“No crime obtains, no penalty can be imposed, without a previous criminal law”), only became widely accepted in the course of the 18th century. If we want to distinguish the criminal law of an earlier period as something separate from other branches of law, we need another criterion. The most obvious one is the role of public authority. In modern criminal law this role is completely dominant; state prosecution usually appears there as the opponent party to the party charged with a crime. The role of the victim of the crime is very much secondary in criminal procedure (in a limited number of cases prosecution requires the prior approval of the victim). In early times, such as the era of the Russkaia Pravda, the role of public prosecution was absent or insignificant; trials were basically between a plaintiff and a defendant, and civil and criminal law were hardly distinguishable. In later times, such as in the Muscovy tsardom, the state was already heavily involved in the prosecution of certain acts, considered highly reprehensible, and this allows us to speak of the criminal law of Muscovy, although this law was not as precisely circumscribed as modern criminal law. Compared to civil law, where a multitude and great variety of topics create a complicated playing field, the basic conceptual structure of criminal law is straightforward. Certain considerations are relevant to all criminal acts in general. They include: the applicability of the criminal law in time and space (such as the statute of limitation, territorial applicability), the act itself (time of commission, acting by omission, attempt and preparation, plurality of actors, etc.), the actor (age, questions of mens rea, accountability and insanity, error and mistake, etc.). All such questions are regarded as constituting the general part of criminal law. The special part then consists, in modern times, of the catalogue of criminal offences; such a catalogue was not absent during earlier times, but it was open-ended. The law would describe and indicate offences as the legislator saw fit, but this would not prevent the court from punishing acts considered as deserving criminal punishment. A third part of the criminal law would regulate penalties; this part is nowadays usually regarded as a division of the general part. The structure of the law of criminal procedure, regulating the application of the criminal law in individual cases, is even more transparent as it takes one in chronological order through the application process, from the moment the proper authorities have taken note of the fact that a crime may have been committed, through the identification of a suspect, the formulation of a charge and the institution of prosecution, the collection of evidence, conducting a trial and examination of the evidence, drafting and announcing the decision of the court, and the execution of the penalty imposed.

846

chapter 34

Criminal Law in the Codes of Ivan iii (1497) and Ivan iv (1550)

In Chapter 22, a short section was already devoted to the treatment of criminal law in the Code of 1497. Its discussion here may conveniently be combined with an overview of what the Code of 1550 had to say concerning criminal law, as all relevant provisions of the Code of 1497 reappeared in the Code of 1550, usually in amended and expanded form. Before looking in more detail at the content of both codes, a few general observations are pertinent. The first point to be stressed again is that the borderlines between civil and criminal law still remained quite hazy. This is especially noticeable in the Code of 1497. As mentioned earlier, this Code was structured primarily as a guide to higher and lower courts (the boyar courts and the courts of the local lieutenants) about the various fees to be exacted. Its arts. 4–7 dealt with the fees due in cases involving judicial duels. Arts. 6 and 7 referred to duels concerning loans (zaimy), assault, arson, murder, theft and brigandage. This casual combination of what we would regard as civil and criminal matters was retained by the Code of 1550, which otherwise made an attempt at a more systematized description of trials. Secondly, as already suggested by the first point, the editorial policy of the drafters of the two codes could be described as associative. In regulating judicial duels, the Code of 1497 happened to refer to theft and then began a series of provisions on how to deal with thieves and robbers. In its final provision (art. 68), as an afterthought, it then returned to duels. Any kind of systematic treatment of criminal law was therefore not to be expected in this approach. A third aspect of this approach was that criminal law subjects were, as a rule, treated in passing, not as the main topic. The principal thrust of the Code of 1550 was to impose clear operating directives on the courts and all judicial personnel. Serious violations of such rules were then often explicitly defined, with the penalties to be imposed in such cases. Finally, the range of offences covered by criminal law was indeterminate, as illustrated most clearly by art. 8 of the Code of 1497 and the corresponding art. 59 of the Code of 1550, which referred to several serious offences by name and then added “or any other such evil deed” (ili inoe kakoe likhoe delo). In the same vein, the codes mentioned several kinds of penalties, but the record showed that different penalties were also applied and, in any case, the text of the codes repeatedly referred to the grand prince (tsar) as the one who was to determine what the penalty was going to be. The concept of the “notorious criminal” ­(vedomyi likhoi chelovek), encountered in the provisions concerning theft and similar offences and also prominent in the guba charters (see ­Chapter 33), fitted effortlessly into this approach.

Criminal Law and Procedure

847

Russian authors often discussed the criminal law of the two codes through an anachronistic imposition of modern systematization: crimes committed by officials, crimes against property, economic crimes, crimes against the state, etc. Similarly, the traditional Russian method of systematization of the topics of the general part was usually followed: the subject of the offence (age, sex, social position, etc.), the subjective aspect (intent and negligence, insanity, etc.), the object of the offence (the protected interest, as the organizational criterion for the special part of the criminal law), and the objective side (the criminal act or omission, attempt and preparation, perpetrators and accomplices, plurality of perpetrators, recidivism, etc.). If we start from the available texts, a less orderly picture emerges. As a result of the drafting characteristics described above, it was unnecessary to regulate most of the topics of the general part. Because criminal liability did not rely on the presence of a precise definition of the offence, no special mention of, for instance, attempt or complicity was required. Certain topics would turn up, but it would be unrealistic to recognize a more comprehensive understanding in such instances. The “notorious criminal” was nowhere defined and has given rise to much debate; he could doubtlessly be regarded as a recidivist. The drafters of the codes obviously never intended to regulate topics such as homicide, offences against the person or against property, which just turned up in the text in a casual fashion. Only two categories of offences attracted the special attention of the drafters and were treated more or less elaborately: theft and related offences (robbery, etc.), and offences committed by judges and law enforcement personnel in the course of conducting trials. As regards theft (including also robbery or brigandage), both codes distinguished between first and repeated offenders. The Code of 1497 ordered the execution of a person caught stealing a second time (art. 11). This also applied to a person caught with stolen goods for the first time, but reliably identified as a notorious criminal (art. 13). These rules were taken over into the Code of 1550 (arts. 56 and 52), but in a much more elaborate form, describing the procedures to be followed in much detail. The prominence of theft and brigandage can be explained by the prevailing lawlessness in many remote parts of the vast country. If the various fees to be paid in the course of the judicial process were the central theme of the Code of 1497, the Code of 1550 was above all concerned with the regulation of trials and everything connected with it. This shift was most clearly demonstrated by a series of provisions right at the beginning (arts. 3–11). These provisions generally followed the opening provisions of the Code of 1497, but added sanctions: a judge or a member of the law e­ nforcement

848

chapter 34

personnel who violated the prescribed procedures made himself subject to punishment. Not surprisingly, bribery figured prominently among the offences for which judicial personnel could be held liable (arts. 3–5, 8–11, 32–34, 42, 53–54). Offences against the person received little attention. Art. 25 (1550) included assault among other serious offences. Insults and other actions inflicting dishonour were discussed in Chapter 36 (on Civil Law) as a form of delict, because the penalty in such cases was private, financial compensation. Homicide was mentioned occasionally in the same breath as theft and robbery, as one of the most serious crimes, but was not dealt with separately. A few odd offences, some of them with a long pedigree, turned up in both codes, e.g. the ploughing up of boundaries (art. 62, Code of 1497; art. 87, Code of 1550), encountered already in similar words in the Short Pravda (art. 34) and the Expanded Pravda (art. 72). While capital punishment and various forms of corporal punishment were rare in earlier periods, the 16th and 17th centuries saw a big rise in their application. The Code of 1497 ordered capital punishment in cases of theft, robbery (brigandage, razboi), homicide (dushegubstvo), false accusations (iabednichestvo) and “other evil deeds” in art. 8, adding then in art. 9 the murder of one’s master, conspiracy (kramola), theft from a church, kidnapping slaves (golovnaia tat’ba),3 and arson; art. 9 also mentioned the podymshchik as somebody deserving the death penalty, but the meaning of this term remains obscure.4 Capital punishment was also included in arts. 11, 13 and 39, but these provisions did not further widen its reach. The list remained essentially unchanged in the Code of 1550 (arts. 52, 56, 57, 59–61).5 The standard mode of execution was by hanging; important people were usually beheaded, but other, often more gruesome methods were also used. The principal form of corporal punishment was flogging. The Code of 1497 prescribed it twice, in art. 10 for a thief as first offender; this was called torgovaia kazn’ (punishment on the market place) and was to be carried out with the knout; and in art. 62, ploughing up boundaries, which was also to be ­punished by flogging with the knout. In the Code of 1550 flogging with the knout was also ordered for court clerks (pod”iachie) who had been bribed to falsify j­ udgments 3 This interpretation is disputed; cf. prp iii, 381–383. 4 See the review of the various interpretations in rz ii, 70–71 and also Dewey’s footnote 2 in H.M. Dewey, Muscovite Judicial Texts 1488–1556, Michigan Slavic Materials No. 7, Ann Arbor, 1966, 10. Most likely, the podymshchik was somebody who was attempting to raise trouble, initiate an uprising, etc. 5 Art. 58 added that the swindler (moshennik) was to be punished as a thief.

Criminal Law and Procedure

849

or who had committed other irregularities (arts. 5 and 28) and persons who had falsely accused judges and judicial personnel of perverting justice (art. 6). In a great many other cases public flogging was ordered, without mentioning the knout. The Ulozhenie of 1649 distinguished explicitly between flogging with the knout (leather thongs attached to a handle) and with batogi (a bundle of sticks). The former procedure was reserved for more serious cases and regularly resulted in the death of the culprit. The mentioning of flogging in the Code of 1550 without the addition of “with the knout” may therefore refer to the lighter form of flogging. Other penalties included incarceration, often for an indefinite period, branding (for thieves and arsonists), chopping off a hand (for thieves), and fines. The Code of 1550 was the first legislation which made mention of prison as a form of punishment; it could be imposed in many cases which were still not considered sufficiently serious to have the culprit executed. The Ulozhenie extended the use of prison to an even larger number of crimes.6 The Guba and Land Charters Guba charters were discussed in the relevant section in Chapter 33 (on Local Government). The guba reform was inaugurated during the childhood of Ivan iv when the government issued the Belo Ozero Guba Charter in 1539. A whole series of similar decrees appeared during the following decades. The main purpose of the guba reform was to deal more effectively with bands of robbers, active in many rural areas. Justice in such cases was taken out of the hands of the local lieutenants and given to elected, and later appointed, local elders. Art. 60 of the Code of 1550 took account of this procedure in its list of capital offences to be tried by the urban or rural lieutenant (theft, homicide, or other evil deeds), by adding “excepting brigandage”. The latter offences were to be tried by the guba elders who were to judge robbers “according to the guba charters of the tsar and grand prince, as it is written in them”. In other words, brigandage continued to be tried in the established way, even after the Code of 1550 had been adopted. For further details, see the section referred to above. The statutory land charters (ustavnye zemskie gramoty) were similar to the guba charters, but more comprehensive in their scope. They appeared

6 See T.I. Pashkova, “Tiuremnoe zakliuchenie v zakonodatel’stve Moskovskoi Rusi”, A.P. Pavlov (ed.), Rossiiskoe gosudarstvo v xiv–xvii vv. Sbornik statei, posviashchennyi 75-letiiu so dnia rozhdeniia Iu.G. Alekseeva, Sankt-Peterburg, 2002, 82–98.

850

chapter 34

­somewhat later and continued to be issued for a longer period.7 Like guba charters, they were applicable in specific regions, most of them in the Russian North.

Criminal Law in the Council Code (Sobornoe Ulozhenie) of 1649

Most of the 25 chapters of the Ulozhenie contained criminal law provisions, viz. provisions which defined specific acts as entailing criminal penalties. The death penalty was in fact to be found in 11 chapters. One should not pretend therefore that criminal law was treated in a systematic and coherent way.8 On the other hand, if one were to compare the treatment of criminal law in the Ulozhenie with the way it had been covered by the Codes of 1497 and 1550, ­certain steps in the direction of more coherence could certainly be observed. Several (relatively short) chapters of the Ulozhenie were devoted to specific criminal law topics. Chapter 1 dealt with blasphemy and related offences affecting the Church; Chapter 2 with offences against the person of the monarch (major offences against the state, in a modern perspective);9 Chapter 3 with offences against the order of the tsar’s palace; Chapter 4 with forgery and counterfeiting of official documents; Chapter 5 with counterfeiting by mintmasters; Chapter 25 with the illegal sale of liquor and tobacco. The most important innovation, where criminal legislation was concerned, was the inclusion of two long Chapters (10, “On the Judicial Process”, and 21, “On Matters of Robbery and Theft”), together making up 40% of the content of the Ulozhenie. The Chapter on the Judicial Process As with most parts of the Ulozhenie, this chapter bore the traces of a compilation of heterogeneous components. It started with a series of provisions (arts. 1–26) concerning the general duties of judges and court personnel; much attention was paid to bribery in various forms. This part was an elaboration of similar but much shorter sections in the Codes of 1550 and 1497. After a 7 The oldest known is the statutory charter granted to the peasantry of Plës, in 1551; the last one known is the tsar’s charter granted to the region of Ust’iany (in the Novgorod province), in 1622. 8 As in the chapter on criminal law according to the Council Code of 1649 in PRoP iii/3, 304– 355 (sections by A.A. Rozhnov). 9 Cf. D.A. Savchenko, “Otvetstvennost’ za gosudarstvennye prestupleniia po Sobornomu Ulozheniiu”, in PRoP iii/3, 355–383.

Criminal Law and Procedure

851

while it entered into a description of the proper conduct of a trial and of the people taking part in it. Then followed the lengthy treatment of dishonour and the fines set for it (arts. 27–99). As these fines were in fact compensation for the person who had been offended and not criminal penalties, this part of the chapter was discussed in the section on injuries in Chapter 36 (on Civil Law: Ownership). After a long series of rules regulating primarily the payment of various judicial fees, arts. 133–135 concerned situations where the threat to kill somebody had been carried out; this would lead to the imposition of capital punishment, the standard penalty for homicide, if no extenuating circumstances obtained. In a number of cases compensation and damages to the injured person (as a civil remedy) were accompanied by a fine or other penalty to be determined by the tsar; art. 136 offered an example: the victim of assault or robbery could sue the offender and, if the latter was found guilty, the tsar would also impose a penalty. In arts. 137–143 and 145 the activities of the bailiff (pristav), the central figure in pre-trial procedures, were the main topic. These provisions were followed by arts. 144 and 146–148 dealing with nedel’shchiki (commonly also translated as bailiffs).10 Corrupt behaviour by a nedel’shchik was punished by flogging with batogi, and, in the event of recidivism, by flogging with the knout and dismissal (art. 146). Wrongful acts (obidnye dela) committed by higher officials (boyars, okol’nichie, stol’niki and Moscow dvoriane) would entail at least financial consequences for them, and additionally any penalty to be determined by the tsar (arts. 149–151). In the following parts of this chapter specific criminal offences turned up incidentally, such as those referred to in arts. 182 and 186–188, bringing legal actions in bad faith, with the intention to inflict harm on other people, and in arts. 198–202, various acts of violence against other people. From art. 203 on the list continued, but then acts causing harm to other people were considered in what we would understand as a civil law perspective, in other words, they did not entail criminal punishment, but some kind of compensation for the damage inflicted. Art. 216 was devoted to unlawful interference with a device for trapping birds (ptich’ia privada). Art. 217 then went on by defining more serious and malicious interference with such devices, and this turned 10

Several commentators have pointed out that the duties of the pristavy and nedel’shchiki were similar, but not quite identical. Arts. 144–145 create the impression that the nedel’shchik received a higher “walking fee” (khozhenoe) in some cases than the pristav. See prp vi, 152, and A.G. Man’kov (ed.), Sobornoe Ulozhenie 1649 goda. Tekst, Kommentarii, Leningrad, 1987, 201–202.

852

chapter 34

the act into a criminal offence, entailing flogging with batogi. This provision was the first of a great variety of acts, most of them defined as criminal offences, to be punished by penalties ranging from fines to capital punishment (in the case of arson, art. 223). Although this list was interrupted several times by procedural and civil matters, it continued until the final part of the chapter (until art. 287), where most of the provisions addressed all kinds of rural misconduct. The following Chapter 11 dealt with court cases concerning peasants, but most of it was devoted to the enforcement of serfdom and the problem of fugitive serfs. The Chapter on Robbery and Theft The inclusion of this chapter was in part to be explained by the separate treatment of robbery in the past, when, in the course of the guba reforms, it was taken out of the hands of the urban and rural lieutenants and made the responsibility of special courts, elected and subsequently also appointed from among prominent local people. As robbery was usually accompanied by homicide and other violence against the victims, such offences were added to the robbery package in the Ulozhenie, and another factor which strongly affected the regulatory system of Chapter 21 was the central role assumed by then in the administration of justice by the Robbery Department (Razboinyi prikaz) and the Land Court (Zemskii prikaz). These elements were reflected in the opening provisions of Chapter 21. Arts. 1–2 laid down that robbery, theft and homicide in the city of Moscow were to be handled by the Land Court (the principal municipal authority in the city, entrusted with police, judicial and fiscal responsibilities), while the Robbery Department would be the competent authority for all other places (the Moscow­ uezd and the provinces). The old guba jurisdiction survived in the provincial towns, where elected guba elders and tseloval’niki (prominent citizens), acting under instructions from the Robbery Department, would exercize judicial duties in the cases assigned to the latter (art. 3). Robbery, theft and homicide were to be understood as a general indication, not a precise definition of the matter regulated in Chapter 21. Many of its provisions widened its reach, to the extent that Chapter 21 could almost be understood as an embryonic criminal code covering the more serious offences against property and against the person. Swindlers (moshenniki) were equated to thieves (art. 11). Various forms of complicity were described in arts. 59–65 and elsewhere. The chapter also dealt with related, less serious offences, such as providing shelter to felons (art. 20), failure to apprehend felons and deliver them to the Robbery Department, where this would have been possible (art. 15), private

Criminal Law and Procedure

853

settlements between thieves and people who had been robbed (art. 31), and others. Such offences were usually punished with a fine. Unintentional killing, during a fight or while drunk, entailed lighter punishment (arts. 69–71). Death was the standard penalty for repeated robbery, homicide and for repeated theft. The manner of execution was left to the court; hanging was the usual method, but more painful methods were also employed.11 Then came flogging with the knout; in more serious cases it could be qualified as “merciless” (bez poshchady), and also “on the rack” (na kozle) or “around the market place” (po torgom). Next there was flogging with sticks or thin rods (batogi). Prison would sometimes be imposed for a fixed period (three years for a first conviction of robbery, after having been beaten with the knout), and at other times would be left to the discretion of the tsar. An ear or a hand could be cut off as additional punishment. Fines constituted the lightest form of punishment; where the case remained unresolved, the suspect was often required to post a bond.

Criminal Law and the Church; Offences against Morals

In the first part of this work, in Chapter 21 (on the Church and Monasteries), we have noted that after the introduction of Christianity in Russia the Church assumed primary responsibility in combating behaviour, not considered particularly reprehensible in pagan times, but condemned decisively by the Church. The basic sanction was the imposition of church penalties, although the church statutes of the princes provided additional punishment by the state in a few more serious cases. This approach, which was based on Byzantine practice but had assumed a very different form in Russia, continued in later centuries. (In Byzantium, Christian sexual mores were enforced by the state; penalties were ferocious, compared with the relatively light ones imposed by the Russian Church; see Chapter 17 of the Ecloga.) What are known nowadays as offences against morals or sexual offences were almost absent in the law of Muscovy. Obviously, the prevailing attitude of the legislator was still that sexual behaviour per se was not a matter of great interest to the state, unless it also affected other interests. Only two special types of rape were covered by the Ulozhenie. Art. 30 of Chapter 7 (On Military Personnel) dealt with homicide, plunder, rape and other serious misconduct 11

Cf. S.V. Zhil’tsov, “Ocherki smertnoi kazni v tsarstvovanie Alekseia Mikhailovicha”, PRoP iii/3, 400–414.

854

chapter 34

by military personnel during a campaign; homicide and rape were then punished by death. If somebody entered a house by stealth with the intention of doing something shameful to the mistress of the house (nad gospozheiu kakoe durno uchiniti) and her servants or slaves did not defend her or even assisted the intruder, then all of them (the intruder and the guilty servants) were to be punished by death (art. 16 Chapter 22). In a similar manner, prostitution itself did not constitute an offence, but a prostitute who was guilty of killing her child or of having it killed was to be executed (art. 26 Chapter 22). The foregoing provision (art. 25) made it an offence punishable with flogging with the knout to procure women for prostitution; this provision could be seen as the first sign of a more active involvement of the state in the sphere of sexual offences. The general principle remained that sexual offences were a matter for the Church. Art. 80 of Chapter 20 (Justice Concerning Slaves) directed that an unlawful act (bezzakonie) with one’s slave girl, resulting in a pregnancy and then leading to an official complaint by the girl to the tsar, was to be dealt with by the officials of the Church. Sodomy was only mentioned in the Stoglav (­Chapter 33) and incurred church penalties.

Criminal Procedure

Criminal procedure can be regarded as an offshoot of civil procedure. The emergence of courts, as independent agencies for solving conflicts between parties, was a decisive step in the genesis of law (see Chapter 1 where these questions were developed at greater length). Initially, courts were set up by the ruler (public authority, the prince, the ‘state’) as an instrument to curb the disorder caused by private parties attempting to settle their disputes in any way they saw fit. It was also obvious that courts could be used additionally for other interests of the rulers: to extend their own influence or to derive financial profit (by charging court fees, etc.). Eventually, the ruler not only provided judicial services, but also began to join disputes as a party in his own right, when he felt ‘public’ interests were also involved. This can be viewed as the moment when criminal procedure arose, together with criminal law itself. Of course, this moment did not occur at a specific time in history, it happened with increasing frequency, until the combination of civil and criminal elements within a single procedure became a common phenomenon. This was the situation in the setting created by the Codes of 1497 and 1550. In the Ulozhenie of 1649 there were still a number of provisions (especially in Chapter 10, on courts and justice) which dealt with unlawful behaviour by ordering damages to the plaintiff/victim and, simultaneously, by imposing a criminal penalty (usually

Criminal Law and Procedure

855

a fine, or flogging).12 The long block of provisions of arts. 100–123 of Chapter 10 regulated in considerable detail how a civil action should be started, and in the course of considering the numerous eventualities that could arise, it also dealt with misbehaviour by one of the parties, including insulting, injuring or even killing the judge; there were no references, however, to any special procedures to be followed in such cases. Apparently, the court handling the principal ­action – the civil case – would also take care of the criminal aspects. Judicial organization gradually became more complex in the century and a half after the Sudebnik of 1497. That Code was still based on a simple two-level procedure: lower courts in provincial centres and the boyar court in Moscow. Bypassing the general jurisdiction of the boyar court, the grand prince or one of his children could reserve the right to judge particular cases (art. 21). With the emergence of the departmental system, two government departments, headed by boyars, came into being as specialized criminal courts. At the same time, the old practice of granting (judicial) immunity charters did not lose its validity and many monasteries, but also hereditary landowners (votchinniki), continued to enjoy the right to criminal jurisdiction, except in the most serious matters. The picture became further complicated by the local government reforms shortly before and during the early years of the reign of Ivan iv. The guba reforms transferred jurisdiction in cases of robbery and related crimes from provincial lieutenants (namestniki) to locally elected or appointed guba elders, and further reforms, embodied in the so-called statutory land charters, entrusted the judicial handling of almost all crimes to local officials. Where these special jurisdictions had not been instituted, jurisdiction remained with the regional government’s representative, the governor (voevoda). See also on judicial organization: Chapter 38 (on Courts and Civil Procedure). Criminal procedure emerged in its own right in Chapter 21 (robbery, theft and related serious crimes) of the Ulozhenie of 1649. One would look in vain in this chapter for an orderly description of the procedures to be followed, but certain elements were mentioned in passing. As stated above, two government departments were designated as the central agencies in handling the offences covered by the chapter, the Robbery Department (Razboinyi prikaz) and the Land Court (Zemskii dvor or Zemskii prikaz). The former department was in charge of robbery and connected offences and theft, outside the city of Moscow, the latter with theft and homicide in Moscow city. Outside ­Moscow, j­urisdiction was exercized by guba courts (guba elders together with tseloval’niki), acting under instructions from the Razboinyi prikaz. Where no 12

The example of art. 136 of Chapter 10 had been mentioned above.

856

chapter 34

guba courts were active, provincial governors (voevody) or officials of the Razboinyi prikaz were competent (arts. 1–3). The actual scope of Chapter 21 was in fact wider than suggested by these provisions. Art. 1 spoke about “robbers who rob and kill people, and thieves who steal” outside the city of Moscow, and art. 2 about “thieves who steal and engage in all kinds of homicidal matters” in Moscow. Subsequently, the chapter also included a great variety of offences connected with homicide, robbery and theft, such as aiding and abetting robbers and thieves (e.g. arts. 20, 40, 57), buying an unmarked horse (art. 52), and others. Then art. 72 covered intentional homicide in a general formula, without limiting it to homicide committed by robbers or thieves. In practical terms therefore Chapter 21 covered the bulk of all serious crime, with the exception of what one could describe as crimes against the state, which were already covered in large part by Chapter 2 of the Ulozhenie. Procedures, in fact criminal investigations, could be initiated by petitions from interested parties or by government officials themselves. In accordance with the general concept of guba jurisdiction, particular emphasis was given to the active role of the population; several provisions expressed the general duty of members of the public who were in a position to apprehend offenders or at least to inform the authorities to act accordingly. The basic responsibility for starting a criminal investigation was given to guba elders, wherever guba courts were in operation (art. 5); otherwise the provincial governors would be in charge while in Moscow itself the Robbery Department (headed by a boyar assisted by an okol’nichii) would also handle investigations. The activities required during the pre-trial phase were conducted by b­ ailiffs and their helpers. As mentioned above, Chapter 21 referred to pristavy and nedel’shchiki, without any clear distinction, although the historical origins of the two offices were different. Their activities included the gathering of all potentially useful information and this is usually referred to as sysk (search) or obysk. It embraced, among other things, the hearing of victims and potential suspects; the apprehension and arrest of the latter; the questioning of suspects; the ordering of torture where this was prescribed by the law; the imposition of a bond on suspects or other people involved in the case; impounding stolen property. Art. 161 (one of the longest in the Ulozhenie) and the following provisions were devoted to a special type of investigation called poval’nyi obysk (approximating a general investigation or general inquiry), where an indeterminate and possibly large number of people was to be questioned in the context of an action, most often a criminal case.13 13

Cf. Man’kov, Kommentarii, 205–206; T.Iu. Ampleeva, “Ugolovnoe sudoproizvodstvo v Moskovskom gosudarstve”, PRoP iii/1, 321–340, at 332.

Criminal Law and Procedure

857

Quite a few provisions of Chapter 21 were directed at preventing bailiffs from abusing their position, by accepting bribes or other unwarranted payments, granting favours to suspects, exercizing insufficient supervision, etc. Serious infractions could result in heavy punishment and dismissal (as mentioned above). The chapter had next to nothing to say about the trial itself. Presumably, the investigative phase would go on until there was adequate evidence, but the Ulozhenie also continued the practice which had already existed under the earlier guba reform, where there was insufficient evidence to convict, while at the same time serious suspicions remained. The suspect could then end up in prison, awaiting the appearance of fresh evidence. Another option would be to release him on his bond. Convictions under Chapter 21 would often entail capital punishment. The Ulozhenie established a waiting period of six weeks dlia pokaianiia (for remorse) after the judgment of the court (art. 34). Later on this period was shortened. Robbers and thieves would have an ear cut off (left ear for the first offence, right ear for the second offence, arts. 9–10), after having been flogged with the knout. They were then handed a document about their status by the court clerk and banished to a remote place. In modern times, criminal proceedings consist of a legal dispute before a court between one party, representing public authority and charged with the prosecution of crimes, and a defending party, charged with the commission of a crime. In earlier times, including the era of the Muscovy tsardom, a clear division of labour between the court and public prosecution had not yet arisen. The office of state prosecutor (prokurator) was created in Russia only in 1722 by Peter the Great. Various parties could therefore appear in a prosecutorial role in Muscovy: the person who had suffered personal or material damage from the crime could still, as in earlier times, act as a plaintiff; officials could speak up about matters within their powers; the court itself, in the course of its investigation of the case, could actively interfere. In the case of guba elders and leading members of the Razboinyi prikaz the combination of judicial and prosecutorial responsibilities is obvious. Evidence The modern distinction between accusatorial (adversarial) and inquisitorial proceedings is sometimes applied in analyzing the historical development of procedure, especially criminal procedure, in Russia. In accusatorial proceedings the main role belongs to the parties, the activity of public power (whether the court or a public prosecutor) is more restricted. Such proceedings were and still are, as adversarial proceedings, the prevailing model for civil law ­disputes.

858

chapter 34

In Muscovy, the gradually increasing ambitions of public power were manifested in its ever more prominent role in criminal procedure, with a correspondingly reduced role of the victim and his private interests.14 In the matter of evidence in criminal procedure, this inquisitorial tendency had considerable impact in that some forms of evidence disappeared or lost significance, while other forms became more important.15 The most obvious example was the judicial duel, a common device for producing evidence in the Code of 1497 and still available in the Code of 1550, but absent in the Ulozhenie. A more inquisitorial form of proceeding in criminal cases received a powerful boost from the institution of a special procedure for dealing with “notoriously evil persons” (zavedomo likhie liudi). Of course, this development was inherently connected with the gradual growing apart of civil and criminal proceedings. The major political and socio-economic dangers of wide-spread banditry could obviously not be combated by the private activities of individual victims, but required concerted action by the state itself. The concept of the notoriously evil person was the central element in this campaign. The legislative history of this term can be traced back to the Code of 1497 where art. 13 allowed the execution of a person characterized as a “known thief” (tat’ zavedomoi) by five or six persons who had sworn an oath to that effect. In the corresponding provision of the Code of 1550 (art. 52) the identification of the suspect as an evil person (likhii chelovek) was to be established during the investigation (obysk), no specific procedure was prescribed. The most common method was the “general inquiry” (poval’nyi obysk), where a large number of members of the neighbourhood concerned were questioned, but other methods were also possible, such as the suspect’s confession that he had robbed people before. In Chapter 21 (robbery and theft) of the Ulozhenie the “evil person” was a common feature, but had become almost a synonym for recidivist in the crime of robbery or theft. Whichever way it was established, the suspect’s subsequent confession, usually under torture, would normally provide complete proof of the fact. If the suspect did not confess, he could escape a capital sentence provided the evidence against him was considered insufficient; he would then be imprisoned until he was released on a bond (see e.g. art. 38 of Chapter 21). The inquisitorial inclination of the Ulozhenie was especially noticeable in the prominence of torture as a means of producing evidence, viz. a confession. 14

15

On this topic, see N.G. Anan’eva, “Pravonarusheniia i iuridicheskaia otvetstvennost’ po Sudebniku 1550 g.”, PRoP iii/1, 166–226, at 207–215 (“The peculiarities of the process according to the Sudebnik of 1550”). Cf. Anan’eva, op. cit., 21–226 (“Evidence according to the Sudebnik of 1550”).

Criminal Law and Procedure

859

Even where thieves or robbers were caught in the act or still in possession of the stolen goods (polichnoe) and had confessed, they had to be tortured. Traditional ways of producing evidence, such as the evidence of witnesses or written documents, retained their importance throughout the period reviewed. The main witness in criminal cases was often the victim, who then appeared in the law or in legal documents as the “plaintiff” (istests). The general term for a witness who could produce evidence by testifying to what he had observed himself was called a poslukh; another kind of witness was a poniatoi, somebody who was required to be present at some official act (such as a search). The most important written documents to be used as evidence were the reports which had to be written down by court clerks at various stages of the preliminary proceedings, such as the first interrogation of a suspect, the interrogation under torture, the execution of a search, the seizing of property, etc.

chapter 35

Civil Law: Persons This chapter builds on Chapter 19 (the Individual and the Family, sections on the Legal Status of the Individual and on Legal Classes); certain general considerations expounded in those sections will not be repeated here. This applies in particular to the most general one, the absence of the abstract idea of the human person, endowed with inalienable rights, as it was expressed most clearly during the Age of Enlightenment in its major legal monuments, connected with the American and French Revolutions. The absence of this idea manifests itself in the legal treatment of women and men as basically different categories and also in the prominence of the idea of legal classes of persons, where the accent is almost exclusively on the differences in their respective status instead of on the features common to all persons. There are many varieties of the modern concept of equality, but at least the idea of all people being born equal, as expressed in many major pronouncements concerning human rights, was not germane to the understanding of medieval and Muscovite Russia, where one was born a peasant, a boyar, a prince, etc. To some extent, this understanding survived until 1917, because official documents (such as passports) continued to indicate to what class a person belonged. There was nevertheless an element, not of the equality of all human beings, but of a basic commonality, and this was derived from Christian values and particularly from the writings of St. Paul. The Apostle was not a M ­ arxist and did not advocate or reject any particular type of society, but insisted that certain basic rights and duties were attached to all persons. He did not condemn slavery, but admonished masters to treat their slaves humanely, and slaves to serve their masters honestly. These ideas undoubtedly had an impact on ­Russian society after the adoption of Christianity.

The Legal Status of the Individual: Men and Women

The impact of the dominant view on the relationships between the sexes on law in Russian history was discussed in the opening section of Chapter 19. This impact continued unabated during the era of Muscovy Russia. Before dividing up society into different classes of persons, the most basic division between women and men was made, entailing numerous legal consequences. Such

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_036

Civil Law: Persons

861

­consequences were of course immediately and prominently visible in matrimonial and inheritance law, but they also affected property law and then public law as well, for instance in answering the question which members of a dynasty would have the right to rule. Certain traditional features of the Russian approach to women’s rights are more clearly visible in the Ulozhenie, because of the degree of detail in its more extensive regulation. The lesser legal powers of women were balanced to some extent by the more generous protection afforded them by the law. Ch. 10 art. 99, for example, perpetuated the old tradition of double compensation for insults against honour where women were concerned. Art. 185 of the same chapter granted procedural privileges to widows and unmarried young women (and boys under 15) who were summoned as defendants in court proceedings. Widows constituted a separate category. Once the husband, whether a landowner or the head of a family of serfs or slaves, had died, the family lost its legal representative and the widow stepped into his place, insofar as the circumstances and views of Muscovy society allowed this. This is especially noticeable in Chs. 16 and 17 of the Ulozhenie, dealing with service and hereditary estates respectively. Two considerations shaped the fairly detailed regulation of these topics, the government policy directed towards maintaining service and hereditary estates as a steady source of military manpower, and the derivative policy of assuring especially the petty landowner a measure of social welfare and security for his widow and family. Ch. 16 art. 58 is revealing in this respect. It dealt specifically with the situation in which the widow of a serviceman had been granted his service landholdings jointly with his children and the children failed to look after her (not feeding her, not paying her respect, or even expelling her from the house). In such a case, upon the widow’s request, the tsar would grant her service landholdings for maintenance out of the ­husband’s estate. Generally speaking, the Ulozhenie appeared to have special regard for the protection of the regular family and its members. Fourth wives (considered uncanonical) and concubines enjoyed little or no protection. Also, peasant wives and children would usually share the fate of the husband as head of the family (many examples in Ch. 11 are on court cases concerning peasants).

Legal Classes

Belonging to a legal class was in principle a question of birth. By being born in a family of princes, boyars, merchants, serfs, slaves, one would automatically become a member of that particular class. The major exception was that part

862

chapter 35

of the clergy which embraced monks and nuns (bishops and high church dignitaries were recruited exclusively from monastic ranks). By becoming a monk (or nun) one would ‘leave the world’, including the class into which one was born, and assume a new name. Forced entry into a monastery was often used to dispose of a political opponent in a non-violent way (although such “monks” were sometimes later quietly assassinated). Widows of princes would often become nuns, especially if it appeared desirable to get them out of the way (such as the repudiated wives of Ivan iv).

The Sovereign and His Family

The legal status of the tsar as sovereign belonged overwhelmingly to public law and was discussed in Chapter 30. But in a survey of the legal characteristics of the civil status of various classes of persons in Muscovite Russia, the tsar must be mentioned, because he was outside all other categories. His position in civil law was very much determined by its autocratic aspects, in particular by the principle that the tsar was answerable to nobody for his acts. This allowed Ivan iv to be married six times after the death of his first wife, in blatant violation of the Church Code (Stoglav, Chapters 23–24), solemnly adopted under his own supervision in 1551.1 In older Russian legislation, such as the Russkaia Pravda, much attention was paid to protecting the prince’s property, especially his own estates. In the Ulozhenie of 1647, the emphasis was on the person and the dignity of the tsar, allotted a prominent place in Chapters 2 and 3.2 The dominance of the autocratic principle implied that the concept of the state (as owner of state property) was completely overshadowed by the idea of the sovereign and all-powerful ruler. There is little to be found on the status of the tsaritsa, but her closeness to the tsar would probably assimilate her status to that of her husband. 1 Chapter 23 described re-marriage after divorce as an offence that was to be forgiven, a third marriage as a crime, and a fourth marriage as a disgrace: “living like a pig”. The first three wives of Ivan iv died, the following three were repudiated and sent to a nunnery, therefore Ivan’s last marriage to Mariia Nagaia was uncanonical. She was the mother of Dmitrii, prince of Uglich, born in 1583 and assassinated in 1591, but re-appearing at least three times (as Pseudo-Dmitrii i, ii and iii) in 1605–1606. 2 Chapter 2, “Concerning the Sovereign’s Honour, and How to Safeguard the Sovereign’s WellBeing”; Chapter 3, “Concerning the Sovereign’s Court, in Order That There Will not be Any Disorder and Misconduct by Anyone in the Sovereign’s Court”.

Civil Law: Persons

863

The widow of the tsar (or of a ruling grand prince in the previous era) was a case apart. The Moscow grand princes usually made generous provision for their widows by assigning very considerable landholdings to them. In the sphere of public law, everything depended on the political and especially dynastic circumstances prevailing at the death of the monarch. If for some reason an obvious, undisputed and competent successor was not available at the time, the widow could step in as regent. Sofiia Vitovtovna (1371–1453) was an outstanding example. The daughter of the Lithuanian grand prince Vitovt, she married Vasilii i in 1391 and assumed the regency upon his death in 1425 in favour of their only surviving son Vasilii ii (*1415).3 Left in Moscow in 1451 during a siege by a Tatar army, she successfully co-ordinated the defence of the capital at the age of 80. Elena Glinskaia (†1538) was another effective regent for her son Ivan iv, who was only four years old when his father Vasilii iii died in 1534. The regency of mothers, however, was factual rather than official; so much is at least clear from the regency of Elena Glinskaia (1534–1538), when public documents emanated from the child-grand prince Ivan, instead of the regent.4 As from the reign of Ivan iii, the eldest son of the grand prince, and later on the tsar, began to appear in official documents (treaties and grand princely charters) as co-signatory, along with the main signatory (the grand prince or tsar) himself, on whom all the rights included in the document concerned were conferred.5 Princes As discussed in several chapters of the first part of this work, the abundant proliferation of the Rurikid dynasty in medieval Russia developed into a decisive factor in shaping Russian history. It was uncontested that the right to rule belonged to the house of Rurik, or rather the descendants of St. Vladimir. Collectively they constituted the princely class in Russia. In time, a threefold division arose. There were princes who ruled their own more or less independent territories, together with their immediate families, wives, children, grandchildren and, if no direct heirs were available, their brothers. The second category was formed by the apanage princes, younger sons or brothers of the ruling princes 3 Cf. I.G. Ponomareva, “Kto upravlial Moskovskim velikim kniazhestvom v 1425–1432 gg.?” A.A. Gorskii (ed.), Srednevekovaia Rus’ 9, Moskva, 2011, 167–196. 4 See for instance Nos. 41, 44–45, 50–51, 53–55, L.I. Ivina (comp.), Akty feodal’nogo zemlevladeniia i khoziaistva. Akty Moskovskogo Simonova monastyria (1506–1613 gg.), Leningrad, 1983. 5 Numerous examples in ddg.

864

chapter 35

who had been assigned apanage principalities, where they enjoyed considerable independence in domestic affairs. The least prominent were the service princes, who did not have their own principalities, but had entered the service of one of the grand princes, generally the grand prince of Vladimir and Moscow. During the long reign of Ivan iii (1462–1505) this system was gradually transformed through the operation of three factors. The grand principality of Moscow had absorbed almost all the other independent principalities and the grand prince (later on tsar) of Muscovy emerged as sovereign of the entire country, “grand prince of All Russia”, as his major title proclaimed. Secondly, the grand princes of Moscow, who had had many bad experiences in the past with ambitious brothers and cousins, operating from their own apanage principalities, successfully reduced the status of apanage principalities and ultimately did away with them altogether. Thirdly, the admission of foreign princes into Muscovy service put an end to the Rurikid monopoly of the title. Most of these princes were descendants of the royal house of Lithuania (Gediminids) and were easily integrated into the fabric of the high bureaucracy of Moscow;6 among the others, the descendants of Chingis-Khan and other Tatar princes were the most numerous. Conversion to the Christian faith was an obvious precondition. The result of this process was that the apanage princes virtually disappeared. The above mentioned Dmitrii of Uglich, youngest son of Ivan iv, was granted the apanage principality of Uglich upon his birth in 1583 and the practice was discontinued afterwards. Outside the family of the grand prince (tsar), there was no longer place for the numerous princely families, except in the service of the ruler. The princes, all of them service princes now, merged with leading boyars and other high officials to form the new military and bureaucratic elite of the state. This of course explains much of the prominence of the special system of mestnichestvo at the time. This merger, however, did not mean that the status of prince was lost. Of all the social classes in Muscovy, the princely class was the most clearly defined: the great number of Rurikid families, whose ancestors had ruled part of the country in the past, and a much smaller number of expressly recognized and admitted foreign princely families. 6 The reverse movement also occurred: Russian princes who entered the service of the Lithuanian grand prince; prince Andrei Kurbskii who fled Ivan iv in 1564 being a notable example. The last remaining notionally independent grand prince of Riazan’, Ivan vi, also found refuge in Lithuania in 1520; see S.I. Smetanina, “Novyi dokument o prebyvanii riazanskogo kniazia Ivana Ivanovicha v Litve”, Russkii Diplomatarii vi, 14–16.

Civil Law: Persons

865

Although the new arrangement meant a certain diminution in status for most princely families, the material advantages were often considerable. For many of them a precarious existence as ‘sovereign’ of a minute territory, which was perennially at risk of being swallowed up by a more powerful neighbour, was abandoned in favour of becoming a well-endowed magnate, close to an illustrious monarch. The lists of high offices from Muscovy show that for most of the time about half of the most influential and lucrative positions (as military commanders and provincial administrators) were in the hands of members of princely families.7 The formative process of the new elite of Muscovy, through the absorption of princely families of various origin and their partial merger with the different strands of the boyar class, has been documented meticulously by A.A. ­Zimin in his posthumously published work on “The Formation of the Boyar ­Aristocracy in Russia in the Second Half of the 15th and the First Third of the 16th Century”.8 Zimin, who subscribed to the dominant theory on the Boyar Duma, defined the entry of new princely families into the upper level of the Muscovy aristocracy by their offspring becoming members of the Boyar Duma. For those (like the present author) who are inclined to side with Sergeevich on this issue, Zimin’s investigations retain their full value, as long as “Boyar Duma” is not considered as a formal institution with a fixed membership, but as a label which generally refers to the highest level of the Muscovite aristocracy, from which the tsar drew most of his intimate collaborators and councillors. As has repeatedly been observed, a Boyar Duma as such is nowhere mentioned in contemporary documents; a fortiori, there has never been any mention of the tsar appointing somebody at a certain date to become a member of the Boyar Duma, persons already holding high rank, such as okol’nichii, were merely­ raised occasionally to boyar status. All we have is reports of the tsar deciding something in his council chamber, with a few high-ranking noblemen (boyars) being present. The composition of this group changed over time and this then was taken by Zimin and scholars on his side as an indication of appointments to and dismissals from the Boyar Duma. On this basis, Zimin, at the end of his study, offered a table of the numerical strength of the Boyar Duma during the 1501–1538 period.9 7 See, for instance, the lists of namestniki in T.I. Pashkova, Mestnoe upravlenie v Russkom gosudarstve pervoi poloviny xvi veka, Moskva, 2000. 8 A.A. Zimin, Formirovanie boiarskoi aristokratii v Rossii vo vtoroi polovine xv – pervoi treti xvi v., Moskva, 1988. 9 Ibidem, 290–291.

866

chapter 35

Boyars and Other High Nobles

The figure of the boyar in earlier times was discussed in Chapter 14 and in Chapter 19. The lines drawn in those sections can be continued when we come to the Muscovite era. The boyar class remained unclearly circumscribed, as before. When a person was defined as a boyar in a contemporary text, we may assume the correctness of the statement. Under Ivan iv, appointment as a boyar occurred regularly, but this did not mean that there were no boyars outside the category of appointed ones. Some of the more extensive princely families, such as the Shuiskiis or the Obolenskiis,10 produced considerable numbers of highranking military and civil officials, generally regarded as boyars, and this, unofficially, conferred boyar status on the entire family. Zimin himself designated many non-princely families as boyar families; foremost among them were the old Moscow boyar families of Protas’evich, Ratshich, Kobylin, Saburov and Pleshcheev.11 The boyar class of the 16th and 15th century grew out of the boyar class of the past, but certain characteristics were transformed. The main cause of this change was the introduction of the appointment of boyars, itself one of the many manifestations of the increasingly autocratic nature of the regime. The tsar surrounded himself with trusted advisors and helpers, the category conceptualized by Kliuchevskii and his followers as the Boyar Duma, although it was actually a company of undefined composition, consisting of persons who happened to be available and whom the tsar felt like consulting. There was unquestionably a nucleus of courtiers who were regularly present and formed a sort of cabinet. Most of them enjoyed boyar rank, others had been granted the next lower rank of okol’nichii, and there were also some lower nobles (dumnye dvoriane) and secretaries (dumnye d’iaki). The boyars among them were designated as boiare vvedennye (introduced boyars, i.e. into the inner circle around the tsar). This title, obviously, depended on appointment. Most of the introduced boyars were recruited from the service princes, others from families traditionally regarded as boyars. Occasionally, noblemen of lower rank would be elevated personally to boyar rank. Persons of non-princely rank 10 11

The Shuiskii princes descended from the grand princes of Nizhnii Novgorod, the Obolenskii princes from the princes of Chernigov. The entire second part of Formirovanie is devoted to what Zimin called “untitled aristocracy in the Duma” (netitulovannaia znat’ v Dume), with chapters on the oldest boyar families, boyar families of the end of the 14th and the beginning of the 15th century, and the entry of other boyar families into the Duma in the course of the 15th and the beginning of the 16th century.

Civil Law: Persons

867

were a­ ppointed only as boyars after they had first served as okol’nichie. Princes, however, considered such a career move as below their dignity (they were all descendants of ruling princes). As a result a new hierarchy arose among the princely families: those that served regularly as (appointed) boyars, and those that were less successful (but served for instance as okol’nichie).12 The dichotomy between the select group of appointed boyars and boyars in general is abundantly clear in the legal texts, especially in the Ulozhenie of 1649. Where boyars are mentioned in the Ulozhenie, it is mostly in the context of the jurisdiction of boyars’ courts; such boyars belonged to the narrow category of the tsar’s more intimate councillors. But in a considerable number of provisions, especially in the long Chapter 20 (Sud o kholopakh, Jurisdiction in cases of slaves), the boyar is just the landowner who is the master of a slave.13 The boyar in the narrow sense (the councillor of the tsar) was closely connected to another high official, the okol’nichii.14 The okol’nichie represented the next rank after the boyars. Originally, there may even have been only one okol’nichii at the court, in charge of the day-to-day management of the grand prince’s court.15 Later on, there were several, but the number of okol’nichie remained relatively small and the rank could only be attained through appointment. There were always several okol’nichie among the intimate councillors of the grand prince (tsar), members therefore of the Boyar Duma in the view of the majority of scholars. Princely families contributed a significant proportion of the total of okol’nichii appointments. One of the principal responsibilities of boyars (in the narrow sense) and okol’nichie was judicial service in the capacity of superior court justices. This is the central idea of the codes of 1497 and 1550. In the composition of the upper class (what could be called the high nobility) genealogical and appointment factors were combined. The dignity of prince was determined exclusively by descent.16 Boyars, as explained above, were originally a vaguely defined hereditary class of magnates below ­princes, but under Ivan iv and his successors, the boyar rank was granted by the tsar. 12

13

14 15 16

The view on the development of the boyar class explained here is close to that of Sergeevich who put forward his ideas in a much more detailed and documented form in his chapter on the “Introduced boyars” (boiare vvedennye) in Drevnosti i, 432–457. In the Index of Hellie’s edition and translation of the Ulozhenie, the distinction is made explicitly between boyar as an indication of rank and boyar as the master or lord of serfs or slaves. See generally, Sergeevich, Drevnosti i, 459–466. Cf. Zimin, Formirovanie, 19–20. The first person to become a prince, not by birth, but by sovereign elevation, was Men’shikov in 1707.

868

chapter 35

Once princes also became the beneficiaries of such appointments, the social gap between princes and the old boyar class became less pronounced. Okol’nichie ranked immediately below boyars and their rank was based exclusively on appointment. The high nobility consisted therefore of five distinct groups: princes who had also been appointed as boyars, other princes (many of them serving as okol’nichie), appointed boyars, other members of families traditionally regarded as boyars, and appointed okol’nichie (most of them recruited from princely or boyar families).17 The title of dvoretskii, originally also a courtier with specific responsibilities (the general management of the princely court), developed similarly to that of okol’nichii, in that it became a designation of high rank.18 The dvoretskie belonged to the restricted pool from which the most important appointments were made, together with boyars, princes, okol’nichie, Duma nobles, and Duma secretaries.

Lesser Nobles: Boyars’ Sons and Dvoriane

The Church Statute of Iaroslav the Wise had already distinguished (in arts. 4, 5 and 7) between great and lesser boyars. Art. 4 of this Statute was the obvious source of art. 7 of the Metropolitan’s Justice’s. The latter provision confirmed what was known from other sources: that at the socially lower end of the boyar class there was no clear boundary to separate boyars from non-boyars. In the course of the 15th century the deti boiarskie appeared as a separate category of free persons. The term means “boyar’s children”, but as the references in legal texts are generally to a class of persons employed as military servants, “boyar’s sons” is more appropriate.19 Sergeevich connected the emergence of the deti boiarskie with the loss of the boyars’ original freedom of choice to change their allegiance from one 17

18 19

A numerical analysis of the known heads of departments (prikazy) for the entire period of the 16th and 17th century yields 262 boyar princes, 251 other princes (about half of them simultaneously serving as okol’nichie), 176 (appointed) non-princely boyars, 251 okol’nichie (about half of them princes), 94 dvoretskie, 112 Duma nobles (dumnye dvoriane), and 214 Duma secretaries (dumnye d’iaki). The numbers are indicative only (overlaps, double appointments, etc.) and based on D.V. Liseitsev, N.M. Rogozhin and Iu.M. Eskin, Prikazy Moskovskogo gosudarstva xvi–xvii vv. Slovar’-spravochnik, Moskva/Sankt-Peterburg, 2015. See Sergeevich, Drevnosti i, 466–477. Syn boiarskii is found occasionally, e.g. in art. 40 of the 1497 Sudebnik, and also several times in the Ulozhenie.

Civil Law: Persons

869

prince to another.20 In any case, it was obvious that the offspring of a boyar who enjoyed little status and wealth could not all hope to retain boyar status, because the estate of a father would generally have to be divided among his sons.21 The deti boiarskie were mentioned in legal documents in at least as early as 1433, in a treaty between the Moscow grand prince Vasilii Vasil’evich and his distant cousin Vasilii Iaroslavich, prince of Serpukhov.22 They appeared frequently in a similar context, i.e. in treaties regulating the relations between the grand prince of Moscow and his apanage princes, where the parties defined the rights and duties of their “boyars and deti boiarskie”, especially those who had their estates in the land of the other prince. The Sudebnik of 1497 mentioned them several times, but more or less in passing. In art. 12 they appeared as character witnesses in cases of theft, where their status was roughly equal to that of wealthy and prominent peasants (dobrye chernye krest’iane tseloval’niki). Arts. 38 and 40 offered a more favourable impression of their status, where they appeared, along with boyars, as judges. These provisions returned in amended form in the Code of 1550 (arts. 58, 62 and 65). Additionally, arts. 26 and 81 of the Code of 1550 also referred to deti boiarskie; art. 26 set fixed fines for offences against honour (bezchestie), the amount depending on the status or class of the injured person; the deti boiarskie were at the top of the list and were followed by great merchants (gosti bol’shie), ordinary merchants, (free) town dwellers, etc. The list illustrated the comparatively high status of the deti boiarskie.23 Art. 81 was part of the block of provisions on slavery and forbad the enslavement of deti boiarskie. In the Ulozhenie of 1649 deti boiarskie occurred frequently; of particular importance is Chapter 16 (on service lands, o pomestnykh zemliakh), and also Chapters 10 (judicial process) and 17 (on hereditary estates, o votchinakh). The chapter on service lands made it abundantly clear that deti boiarskie formed a class which was granted landed estates in exchange for service, military service first of all. Its first article was devoted to service land grants in the Moscow province (uezd).24 A boyar (vvedennye boiare only, presumably) was 20

21 22 23 24

In 15th century treaties between the grand prince of Moscow and apanage princes the deti boiarskie, along with full boyars, often still enjoyed the right of shifting their allegiance from one prince to another. Cf. Sergeevich, Drevnosti i, 393–397. ddg No. 27, 70. The apanage princes of Serpukhov were the descendants of a younger son Andrei of Ivan i Kalita; the two Vasilii’s of the treaty were third cousins. The provision did not mention the higher classes of princes, boyars, etc. The Moscow uezd was defined by an ukaz of 3 October 1550 as an area around Moscow with a radius of 60–70 km; this would result in a territory in excess of 10.000 km3 (1 mill. ha). Cf. prp v, 485.

870

chapter 35

entitled to 109 ha (200 chetverti); for others the allotments were smaller in accordance with rank. The lowest category was the Moscow service men called zhil’tsy, mounted grooms (stremiannye koniukhi), and the hundredmen (sotniki) of the musketeers (strel’tsy), who would receive 27 ha each. Other lower officials, including deti boiarskie, who had their estates elsewhere, were mentioned last; they were entitled to an allotment in Moscow province equal to 10% of their provincial estates. Military service of boyars’ sons was implemented through verstan’e, the annual registration of them for service. If they did not go through this procedure, they were neverstany (see e.g. Chapter 16, art. 33, and Chapter 18, art. 69). In most provisions of the Ulozhenie the deti boiarskie are mentioned in the same breath as provincial gentry (gorodovye dvoriane). Many provisions of Chapter 16 either implied or made it explicit that deti boiarskie were primarily active or retired servicemen, while dvoriane embraced more widely non-­military officials as well. Another factual distinction was that most deti boiarskie resided outside Moscow province, as provincial landowners, while dvoriane were explicitly divided into provincial gentry (gorodovye dvoriane) and Moscow dvoriane (resident in Moscow province); the latter were of higher status and more generously endowed.25 Otherwise, dvoriane and deti boiarskie were in most cases subject to the same rules. The first four provisions of Chapter 20 (on slavery) threw an unexpected light on a seemingly paradoxical phenomenon: deti boiarskie who voluntarily entered slavery. At the basis of such behaviour could be both economic ­calculations (impoverished servicemen without, or with insufficient, landed ­property) and the wish to avoid arduous and lengthy military service. The ­legislator’s attitude to this phenomenon was on the whole negative, allowing it only in exceptional cases. At the lower end of the spectrum of the deti boiarskie were those who were too poor to afford the proper equipment for military field service. They were called to arms only when the towns where they lived were under siege (osada), hence their designation as osadnye deti boiarskie. They received a small plot of 20 chetverti (about 10 ha) for their services.26 The Ulozhenie also distinguished between deti boiarskie of old ancestry (izstari prirodnye) and other deti boiarskie, but only in Ch. xvii art. 37, in connection with buying land and turning it into ancestral land (votchina). 25 26

Special provisions concerning provincial dvoriane, e.g. Ch. xvi, arts. 1, 3, 13, 16, 45; idem on Moscow dvoriane, Ch. xvi 1, 39, 43, 45–46. A.V. Antonov, “Ukaz o pomest’iakh osadnykh detei boiarskikh”, A.V. Antonov (ed.), Russkii diplomatarii, vyp.7, Moskva, 2001, 381–383, according to whom the relevant decree was issued between 1591 and 1594.

Civil Law: Persons

871

As the deti boiarskie and to a somewhat lesser extent, the dvoriane in general provided the backbone of the armed forces, the government had an interest in preventing the depletion of the warrior class. The Ulozhenie demonstrated this not only in its unwillingness to allow an individual nobleman to adopt servile status, but also in a more positive way by promoting the assignment of estates to all servicemen (including even boyars) who had (too) small estates or none at all (malopomestnye and bezpomestnye, see arts. 13, 18, 20 and 39 of Chapter 16). Most of the various ranks of service personnel (princes, boyars and lesser nobles) were also present, although obviously in much smaller numbers, within the organization of the Church. The Ulozhenie has a number of provisions devoted to this particular aspect. In the short Chapters 12 and 13 one repeatedly comes across deti boiarskie subject to the patriarch or other high dignitaries and to monasteries; Chapter 10 (on the judicial process), arts. 95 ff., dealt with penalties for dishonouring deti boiarskie and other servitors in the service of church hierarchs or monasteries. See also Chapter 39, on the Church. Deti boiarskie appeared frequently in the last chapter of the Ulozhenie, Ch. xxv (Statute on korchmy).27 This statute stood in a long line of measures to combat illicit distilling and imbibing. The main consideration of the government was probably financial, in order to protect the state monopoly on spirits, but it has been demonstrated that public health and morality considerations also played a role.28 The involvement of deti boiarskie was twofold: as officials within the law enforcement agencies; and, curiously, as masters who were allowed to distribute certain quantities of spirits among their personnel. See also Chapter 34 (on Criminal Law).

Clergy and Church People

It will be more convenient to discuss this category in Chapter 39 (on the Church).

Townspeople in Moscow and Elsewhere

While the Codes of 1497 and 1550 contained hardly any specific provisions concerning townspeople, the Ulozhenie had a long chapter on the subject (­Chapter  19, 40 articles). Its immediate background was the urban riots in ­previous years, particularly the Moscow uprising in the summer of 1648, which 27 A korchma is a disreputable tavern, a pothouse, speak-easy, shebeen, etc. 28 See especially the comments in rz iii, 438–439.

872

chapter 35

deeply upset the young tsar Aleksei himself (see Chapter 29). Although the composition of the urban population during the 16th and 17th centuries is well known from other sources, the Ulozhenie is the principal source for determining the legal status of the various components of the population of Moscow and the provincial towns. Moscow itself was of course exceptional from this point of view because, being the capital and the normal place of residence of the tsar, it was also the abode of most of the country’s elite, princes and boyars connected with the court, other courtiers and public officials, military officers, etc. Parallel to the governmental elite, there was the leadership of the Russian Church, patriarch, other church dignitaries, together with a considerable number of people belonging in one way or another to the church organization. Most of the other components of the urban population would be found, albeit in smaller numbers, in other towns as well. Merchants were an important segment, followed by all kinds of craftsmen. Wealthy people often maintained large households, including private agricultural estates, and this implied the presence of dependent personnel employed in working these plots. Professional soldiers, especially the musketeers or strel’tsy, lived in their own suburban settlements. Slaves were encountered at all levels. In some towns foreigners constituted a significant part of the population. Herberstein, who visited Muscovy during the reign of Vasilii iii in 1517 and 1526, reported on the city of Moscow in the chorography (“description of a region”) section of his famous work.29 He noted that Moscow looked even bigger than it really was, “because every large house has gardens and farms”; blacksmiths and other craftsmen who used fire lived in long stretches of houses, separated from the main part of the city by fields and meadows; foreign soldiery was housed in separate settlements on account of the more liberal liquor laws applicable to them. Apart from the Kremlin, which constituted a small town by itself, the city was not walled and did not have a clear boundary. Posadskie liudi The term posadskie liudi referred to taxpaying townspeople who, together with ‘service people’ (sluzhilye liudi, military and civilian servants of the government), made up the bulk of the urban population.30 The entire Chapter 19 of 29 30

On Herberstein, see the box in Chapter 9. Cf. A.G. Man’kov (ed.), Sobornoe Ulozhenie 1649 goda. Tekst. Kommentarii, Leningrad, 1987, 293. Most authors discussing the relative numbers of the posadskie and sluzhilye liudi refer to Ia.E. Vodarskii, “Chislennost’ i razmeshcheniie posadskogo naseleniia v ­Rossii vo vtoroi polovine xvii v.”, in Goroda feodal’noi Rossii, Moskva, 1966, 279, which

Civil Law: Persons

873

the Ulozhenie is devoted to them.31 According to the definition offered by P.P. Smirnov, posadskie liudi, as they appeared in the Ulozhenie, were part of the urban population, primarily engaged in trade and crafts and living on state lands; they were subject to state taxes and duties, carried out certain fiscal services,32 and were not free to leave their place of residence (posad) and the community (obshchina) connected with it.33 The emergence and identification of posadskie liudi as a distinct component of the urban population are supposed to have taken place during the second half of the 15th century,34 in a process that could be considered as completed by the middle of the 16th century.35 The posad, as the place where the posadskie liudi lived, was generally located around the walled city itself. The Ulozhenie itself only contained an implicit definition of posadskie liudi. Its main concern was clearly to establish and maintain a reliable source of fiscal income from a sufficiently numerous and financially resilient section of the urban population. As indicated above, the immediate background to the legislative implementation of this policy was the outrage of the taxpaying townspeople, expressed in violent riots in 1648 and evoked by the existence of numerous tax-exempt ‘freedoms’ (slobody) within the urban area, granted to a multitude of clerical and secular landowners. The merchants and artisans of these slobody were not affected by most forms of taxation applicable to similar inhabitants of other parts of towns. The population of the tax-exempt urban districts was known as the belomesttsy, the inhabitants of belye mesta (“white

put the first category at about one third and the second one at well over a half of the urban ­population. See also M.G. Bulgakov, “Gosudarstvo i posad po Sobornomu Ulozheniiu 1649 g.”, D.V. Danilova (ed.), Sistema gosudarstvennogo feodalizma v Rossii. Sbornik statei, Moskva, 1993, 165–179. 31 The most important comments to this chapter are by Man’kov, op. cit., 293–309; by E.G. Baskakova, prp vi, 315–326; and by V.M. Kleandrova, rz iii, 375–384. 32 Esp. through the franchise (otkup) system, by virtue of which the collection of certain customs duties and the sale of liquor could be assigned to a private person against payment of a fee. 33 P.P. Smirnov, Posadskie liudi Moskovskogo gosudarstva, Kiev, 1912, and P.P. Smirnov, Posadskie liudi i ikh klassovaia bor’ba do serediny xvii veka, tt.1–2, Moskva/Leningrad, 1947. As quoted from Man’kov, supra, apparently from the first part of the Soviet edition of Smirnov, 182–183. 34 Man’kov, op. cit., 293. 35 Cf. V.A. Arakcheev, “K voprosu o stanovlenii sosloviia posadskikh liudei v pervoi polovine xvi veka”, A.Iu. Dvornichenko (ed.), Russkoe srednevekov’e. Sbornik statei v chest’ professora Iuriia Georgievicha Alekseeva, Moskva, 2012, 445–452.

874

chapter 35

places”).36 It constituted a heterogeneous group, and this perhaps explains why legal sources refer to them only in connection with posadskie liudi.37 The main reform introduced by the Ulozhenie was the abolition of the taxexempt status of the slobody and thereby of the slobody themselves. Art. 1 of Chapter 19 contained a sweeping prohibition of urban slobody, except those established for the benefit of the tsar himself. The following provisions further elaborated on the transfer of various categories of merchants and craftsmen to the general pool of posadskie liudi. Art. 11 and several following provisions dealt with the question of different categories of sluzhilye liudi who, apart from their basic military duties, were allowed to engage in commercial operations, people like musketeers (strel’tsy), Cossacks, etc. They were not included among the posadskie liudi, but were liable to pay a special tax on their enterprises and shops. Another set of provisions was aimed specifically at preventing the draining of the pool of posadskie liudi. The basic provision was art. 19 which tied posadskie liudi, both in Moscow and in the provincial towns, to their place of residence at the time of the adoption of the Ulozhenie.38 Within this series of rules one special sub-group was devoted to the problems raised by marriage between members of the taxpaying townspeople and outsiders (e.g. arts. 21–23). Other rules concerned the position of (temporarily) unfree people (such as zakladchiki), or townspeople who joined military units. The burdens (tiaglo) imposed on posadskie liudi consisted primarily of fiscal duties, but also included the duty to provide labour in specific cases. In exchange for these burdens, the Ulozhenie granted them a virtual monopoly as shopkeepers, small traders, franchise holders (otkupshchiki), and craftsmen; their main competitors were certain lower level groups of the service people (see below), who then were subject to similar fiscal duties. There are occasional references to three levels of posadskie liudi, high (luchshie), middle (srednie), and junior (molodchie), but these groups were apparently not strictly defined. Strel’tsy, Cossacks and Comparable Categories Strel’tsy (musketeers, the core infantry force of the Muscovy army), and Cossacks, the most important and numerous auxiliary forces, were discussed in  more detail in the section on the Army in Chapter 31 (on Government). 36 37 38

In Moscow, the area around the Kremlin and the adjacent Kitai-gorod, and within the present Sadovaia circular road, was known as the White City. In the Ulozhenie only in Ch. x, art. 269 and Ch., art. 39. Cf. Man’kov, op. cit., 304.

Civil Law: Persons

875

The  short Chapters 23 and 24 (three articles each) of the Ulozhenie, devoted respectively to strel’tsy and Cossacks, concerned only certain legal actions ­involving them. Strel’tsy and Cossacks served on the basis of a contract and constituted the main segment of the wider category of persons serving the state on the basis of a contract, the sluzhilye liudi po priboru or pribornye sluzhilye liudi. In the Ulozhenie they were often mentioned together with similar groups of service people, such as the pushkari (gunners), zatinshchiki (fortification gunners), draguny (dragoons, mounted infantrymen), etc. As a socially intermediate group between the higher levels of the service people (deti boiarskie and ­higher) and the mass of posadskie liudi, the pribornye sluzhilye liudi were allowed to engage in artisan and commercial activities, provided they paid the established taxes. Unlike the posadskie liudi, they could avoid taxation by abstaining from such activities.39 The musketeers occupied a special and more privileged position among the contractual service people. This found expression in a number of provisions of the Ulozhenie (e.g. art. 124 of Ch. 10). Merchants The clear distinction between gosti (merchants engaged in foreign or longdistance trade) and kuptsy (other merchants) which had existed since Kievan times, continued through the ages and also found expression in the Ulozhenie of 1649. Both terms turned up in legislation from the intermediate period, such as the Dvina Land Charter of 1397–1398 (art. 14, gost’) and the Statutory Charter of Belozero of 1488 (art. 7, gost’, art. 8, kupets), in statutory land charters40 and in numerous other legal documents. One has to bear in mind that kupets had the meaning not only of “merchant”, but also of buyer in general (pokupatel’ in modern Russian). In the Ulozhenie, however, the distinction was amended and refined in several ways. First of all, while Kievan gosti were both foreign merchants and Russian merchants engaged in long-distance trade (i.e. not only foreign trade, but also trade with distant Russian regions), in later years, gosti referred to Russian merchants engaged in foreign trade, unless foreign merchants were explicitly 39 40

Cf. A.G. Man’kov, Sobornoe Ulozhenie 1649 goda. Kodeks feodal’nogo prava Rossii, Leningrad, 1980, 146. Such as the statutory land charter of several districts of the Dvina province of 1552, prp iv, 190 (art. 6).

876

chapter 35

envisaged, as for instance in art. 55 of Ch. 18 of the Ulozhenie which dealt specifically with gosti from foreign lands (among whom English and Dutch merchants occupied a privileged position). Secondly, further distinctions arose within the category of kuptsy. Prominent, wealthy merchants could be appointed by the tsar as members of the Gostinaia sotnia (“Merchants’ Guild”), a commercial corporation, which arose during the latter part of the 16th ­century.41 Slightly less prestigious was the Sukonnaia sotnia (“Clothiers’ Guild”), of about the same period. Thirdly, while in the past the qualification of merchants as gosti or kuptsy was a statement of fact, it acquired a more s­ pecific legal character in the time of the Ulozhenie, because gosti and members of the other two categories of prominent merchants were appointed as such by the tsar.42 The number of gosti was usually quite small (in the order of 20); the number of members of the other two groups varied, but was generally somewhere between 100 and 200.43 The legally relevant nature of the d­ istinctions between the three categories of prominent merchants was recognized in the very adoption procedure of the Ulozhenie, where the Preamble indicated that the gosti were to appoint three deputies, and the other two groups two deputies each, to the assembly adopting the Ulozhenie. Although originally the two privileged merchant guilds, as well as most of the gosti, were to be found in Moscow itself, members of these groups also settled in many other towns.44 The Ulozhenie did not have a special chapter to deal with merchants, but the numerous dispersed provisions offer a more detailed picture of the peculiarities of the legal status of the various categories. Art. 94 of Ch. 10, specifying the fines to be paid to a member of a particular category for dishonouring such a person, is of particular interest because it offers the most elaborate survey of the different groups and their place on the social ladder. This rule is part of a very extensive series of provisions covering dishonour fines for almost all kinds 41

42

43 44

More on the Gostinaia sotnia in N.B. Golikova, Privilegirovannye kupecheskie korporatsii Rossii. xvi – pervoi chetverti xviii v., T.1, Moskva, 1998. See also S.N. Kisterev, “Struktura Gostinoi sotni vo vtoroi polovine xvi – pervoi polovine xvii veka”, Ocherki feodal’noi R ­ ossii 16, Moskva/Sankt-Peterburg, 2013, 231–272, and V.B. Perkhavko, Srednevekovoe russkoe kupechestvo, Moskva, 2012, 184–199. On the middle category, the “Moscow trading people” (torgovye liudi moskvichi), see I.P. Kulakova, “«Moskvichi torgovye liudi» kontsa xvi – nachala xvii v.”, L.A. Timoshina (ed.), Torgovlia i predprinimatel’stvo v feodal’noi Rossii. K iubileiu professora russkoi istorii Niny Borisovny Golokovoi, Moskva, 1994, 85–92. Cf. Man’kov, Sobornoe Ulozhenie. Kodeks feodal’nogo prava Rossii, 209–210. L.A. Timoshina, “Rasselenie gostei, chlenov gostinoi i sukonnoi soten v russkikh gorodakh xvii v.”, paid particular attention to the expansion of these categories in the towns of Velikii Ustiug, Vologda, Nizhnii Novgorod and Murom; Timoshina, op. cit., 117–151.

Civil Law: Persons

877

of people. Art. 94 covered the merchant class first of all, followed by other members of the urban population and various categories of dependent peasants. The list was headed by members of “the distinguished Stroganov family”, followed by the gosti, the senior, middle and junior members of the Gostinaia sotnia, and then the senior, middle and junior members of the Sukonnaia s­ otnia; after them a multitude of various urban residents were mentioned. A transitional category between merchants and peasants was that of the “trading peasants” (torgovye krest’iane); they will be discussed below. The Stroganov Family The Stroganovs, who had been granted the rare title of “distinguished family” by the tsar in 1610, occupied a unique place in the social hierarchy of Muscovy, a place that was also recognized in law.45 In Ch. 10 of the Ulozhenie, arts. 27–99, an elaborate tariff of dishonour compensation is spelled out, from 400 roubles for a boyar insulting a metropolitan, to one rouble at the lowest level (insulting ordinary peasants and slaves). A member of the Stroganov family was considered worth 100 roubles in this scheme, equal to the archimandrite of the Troitse-Sergiev monastery or the tsar’s confessor. The Stroganov family belonged originally to the merchant class (they were raised to barons and counts in the 18th century), and their prestige rested on their enormous fortune, acquired mostly by the exploitation of salt mines and employed by them to finance projects of great interest to the government (such as the exploration of Siberia). In exchange they were the recipients of extensive favours and immunities, which resulted in their almost vassal status as the semi-independent rulers of vast estates.46 45

46

The concept of a “distinguished citizen” (imenityi grazhdanin) resurfaced in 1785 in the decree “On the rights and privileges of the Russian Empire”, where art. 132 gave a definition of the distinguished citizen; it embraced citizens with a background in urban government, persons with academic degrees, artists, wealthy merchants, and bankers. Cf. V.A. Tomsinov (ed.), Zakonodatel’stvo imperatritsy Ekateriny ii. 1783–1796 gody, Moskva, 2011, 52–89. See, for instance, a grant charter of Ivan iv of 1564 to Grigorii Stroganov, in which vast tracts of land along the Kama River were assigned, both for the manufacturing of guns and for the mining of salt; V.I. Lebedev a.o. (eds.), Khrestomatiia po istorii sssr, T. I, Moskva, 1951, No. 116, 355–356., or a very generous immunity charter of tsar Fedor in 1591 for territories in the Perm region to Maksim Stroganov and two of his uncles; cf. Russkii Diplomatarii vi, 190–195. See also N.I. Nikitin, “Formirovanie vostochnykh granits Rossii (konets xvi – nachalo xx v.)”, E.P. Kudriavtseva (ed.), Formirovanie territorii Rossiiskogo gosudarstva xvi – nachalo xx v. (granitsy i geopolitika), Moskva, 2015, 201–241, at 204; and A.V. Zhukova, Dvorianskie i kupecheskie rody Rossii, Rostov-na-Donu, 2008, 308–317.

878

chapter 35

Peasants In Chapter 18 (on Rural Russia in Kievan times), the comparatively late appearance of the term krest’ianin (also khristianin, orig. “Christian”) at the end of the 14th century was noted, as the most general designation of “peasant”. Its currency increased in the course of the 15th century and the Code of Ivan iii of 1497 used it in one of its most crucial provisions, art. 55, the peasants’ quittingtime around the autumnal feast of St. George (26 November, Iur’ev den’). The essence of this provision was taken over by art. 88 of the 1550 Code of Ivan iv, and by art. 178 of the 1589 Code.47 In the Ulozhenie of 1649, the krest’ianin appeared in most chapters and was mentioned in 111 provisions.48 It is implied in all these provisions that the peasant, as a general rule, was dependent on somebody else, who put land and other assets at the peasant’s disposal to engage in agricultural production. The free farmer, working his own land and operating as an agricultural entrepreneur, was an exception (see below: svoezemtsy). The original legal basis of the activity of the krest’ianin was a contract with the landowner, called a poriadnaia, itself a version of a naemnaia (a contract of hire). Such contracts were usually concluded orally; few written poriadnye have survived.49 In the conclusion of the poriadnaia the peasant was invariably the weaker party, subject to more onerous conditions. This would then allow further restrictions of his freedom in future, especially by forbidding him to terminate the contract before he had paid off his debts to the landowner. In the course of time, when the indebted peasant died and was succeeded by his children, the attachment of the peasant family to the land allotted to it would become permanent. This was the origin of the division of dependent peasants into newly arrived ones, novoporiadchiki (who had concluded a poriad with the landowner), and long-term residents, starozhil’tsy (see below).50 Restricting the peasant’s freedom to move from one master to another, to a short period in late autumn (when agricultural work had come to a standstill) had gradually been introduced during the 15th century, and the Code of 1497 confirmed and consolidated an existing practice.51 The restriction was 47 48

The so-called (draft) Composite Code of 1606–1607 repeated art. 88 of the 1550 Code. According to A.G. Man’kov, “Pravovoe polozhenie krest’ian po Ulozheniiu 1649 g.”, V.A. Ezhov, I.Ia. Froianov (eds.), Iz istorii feodal’noi Rossii. Stat’i i ocherki k 70-letiiu so dnia rozhdeniia prof. V.V. Mavrodina, Leningrad, 1978, 141–148, at 141. 49 Sergeevich, Drevnosti iii, 327–329. An example of a poriadnaia from 1599 in prp iv, 71–72. 50 See M.A. D’iakonov, Ocherki iz istorii sel’skogo naseleniia v Moskovskom gosudarstve xvi–xvii vv., Moskva 1898 (2nd ed., reprint Moskva, 2011); Grekov, Krest’iane, 711–734. 51 See for instance a grant charter of prince Mikhail Andreevich of Verei and Belozersk to the Ferapont monastery, in which the Iur’ev den’ rule was included; asei ii No. 326, 307–3089 (which gives the date as 1455–1467) and prp iii, 93 (1454–1455).

Civil Law: Persons

879

known to the Court Charter of Pskov, the latest drafting phase of which is dated to 1462–1471, in a slightly different form (art. 42, St. Philip’s Fast Day, 14 November). The, ultimately successful, attempt to tie the peasant to the land worked by him was fuelled by the urgent need for an adequate agricultural workforce, without which landowners would not be able to fulfil their military duties towards the state. This applied in particular to the owners of pomest’ia, service estates, who had been endowed with them for the specific purpose of supplying military service. The abolition of the Iur’ev den’ was effected through a longdrawn-out process of alternating “exit years” and “forbidden years” (vykhodnye and zapovednye gody), the first time probably when peasants were forbidden to leave their masters in 1581, at the end of the reign of Ivan iv.52 An inevitable consequence of this prohibition was the flight of peasants to find employment under more favourable conditions elsewhere. This could also include joining Cossack units somewhere in the vast steppe area to the south of Muscovy. The next step taken by the government, prodded especially­by small landowners, was the decree of 24 November 159753 on fugitive peasants.54­This decree, adopted shortly before the death of tsar Aleksei when actual power had passed to his brother-in-law Boris Godunov, was ambivalent in a political and socio-economic sense. It again allowed the vykhod, the legitimate exit of the peasant on the basis of the St. George’s Day rule, but also introduced the concept of the fugitive peasant (beglyi krest’ianin) who had deserted his master in another way. Landowners whose peasants had run away could have them returned, but this right was limited to peasants who had run away during the five years before 1597 and the demand for whose return (sysk) had been made during that period. This period, called urochnye gody, was shortened or extended several times in the following years. It constituted a sort of statute of limitations, because a demand to return the peasant would be fruitless if the peasant had absconded outside the urochnye gody.55 In that case he would remain with the landowner whose peasant he had become in the meantime. But in the opposite case (demand for return covered by the rule on urochnye gody) the new master would not receive any 52

53 54 55

The text of the decree on zapovednye gody has not been preserved, but Grekov has presented a detailed argument for accepting that the decree was issued in 1580 and that 1581 was the first ‘forbidden year’; Grekov, Krest’iane, 849–861. The exact date is given, to avoid confusion with the decree of 1 February 1597 on service slaves (o sluzhilykh kholopakh), about which more in the following section on slavery. zarg No. 48, 66–67; prp iv, 539–540 (a somewhat different text, as art. 166 of Ch. 24 of the Composite Code). Cf. D’iakonov, Ocherki, 347–356.

880

chapter 35

reimbursement.56 The urochnye gody were abolished by Ch. 11 (arts. 1–2) of the Ulozhenie. In 1607 the entire institution of Iur’ev den’ was definitively abolished by tsar Vasilii Shuiskii.57 This so-called Council decree (Sobornoe ulozhenie) also contained instructions on how to deal with peasants and slaves who had deserted their masters and homesteads during the previous years. It completed the process of enserfment (zakreposhchenie) of the Russian peasant, summarized in the sarcastic saying: “There, granny, is a St. George’s Day for you!” (Vot tebe, babushka, i Iur’ev den’!).58 It is to be noted that, although the Iur’ev den’ practice did not affect slaves (who had no right anyway to leave their masters), the provisions of the 1607 decree concerning fugitive peasants explicitly covered slaves as well. In the Ulozhenie of 1649, the peasant was tied to the land and had become a serf, in the same way as the posadskie liudi in towns were not allowed to leave. Ch. 11 of the Ulozhenie (Sud o krest’ianekh, “The judicial process concerning peasants”, 34 articles) was therefore mainly concerned with measures to keep the peasant at his homestead or to bring him back when he had run away. The lengthy first article was devoted to fugitive peasants of the tsar’s own villages (“palace villages”, dvortsovye sela) or of state lands (“black districts”, chernye volosti). Their status was to be established on the basis of the cadastral registers (pistsovye knigi), drawn up in 1626 and later records, and then they were to be transported back to the villages they came from and to their old allotments, together with their families and property, from wherever they had settled. The following article regulated in similar but not identical fashion the fate of peasants who had fled from hereditary or service estates (votchiny and pomest’ia). No statute of limitations applied to the right forcibly to return fugitive ­peasants. One of the foremost commentators of the Ulozhenie,

56 57

58

Cf. Grekov, Krest’iane, 866–875; D’iakonov, Ocherki, 344–345. prp iv, 586–589; zarg No. 57, 75–76. On the complicated history of the presently available text, see V.A. Arakcheev, “Sobornoe ulozhenie 9 marta 1607 g.”, A.P. Pavlov (ed.), Rossiiskoe gosudarstvo v xiv–xvii v v. Sbornik statei, posviashchennyi 75-letiiu so dnia rozhdeniia Iu.G. Alekseeva, Sankt-Peterburg, 2002, 98–115. See on all this especially S.B. Veselovskii († 1952), “Otmena Iur’eva dnia”, Trudy po istochnikovedeniiu i istorii Rossii perioda feodalizma, Moskva, 1978, 34–53; also in S.B. Veselovskii, Moskovskoe gosudarstvo: xv–xvii vv. Iz nauchnogo naslediia, Moskva, 2008, 217–236. For a more recent review of the continuing debate on enserfment: V.A. Arakcheev, “Iz istorii zakreposhcheniia v Rossii: prikreplenie k tiaglu v kontse xvi – nachale xvii b.”, Ocherki feodal’noi Rossii 5, Moskva, 2001, 39–69.

Civil Law: Persons

881

A.G. Man’kov, called art. 1 of Ch. 11 “the major and most radical norm of the Code”.59 Most of the following provisions elaborated on the principles contained in the first two provisions. Man’kov has pointed out that the leading concern was to tie the peasant to the land, not to his master. The master was not allowed, for instance, to move his serfs from one plot to another (arts. 30–31). A similar concern, at the basis of several provisions of this chapter, was the maintenance of a sufficiently numerous workforce. This concern was served first of all by maintaining the integrity of the peasant family; wife and children would follow the peasant wherever he went, along with the family’s movable property. Many provisions attempted to solve the various problems caused by peasant daughters marrying outsiders. It goes without saying that serf status was inherited by the serf’s children. Peasant children who denied their parents were subject to torture to establish their status (art. 22). The permanent threat of the depletion of the peasant workforce on the estates of the tsar and the government and the private landowners is of course to be explained by the political and socio-economic circumstances as they developed following the reign of Ivan iv. Even before the oprichnina (1564–1572) the guba charters and statutory land charters reported about the departure of peasants from the lands to turn to the safety of monastery estates (see the relevant sections in Chapter 33, on Local Government). The oprichnina caused great devastation all over the country and during the Smuta, the Time of Troubles (1598–1613), chaos often became complete. Destitute and desperate peasants would seek refuge by attaching themselves to a monasterial workforce, or would join one of the numerous bands of brigands roaming the countryside. In this perspective it is fully understandable that the Ulozhenie did not pay attention to the probably academic question of peasants fleeing their monasterial masters. The peasants attached to monasteries and other ecclesiastical landowners constituted a very considerable section of the total dependent peasant population. The legal framework of their relations with their landowners was an underexposed subject in historiography, until the publication of N.A. Gorskaia’s study in 1977.60 59 Man’kov, op. cit. (in the Mavrodin Collection), 142. See also Man’kov’s monograph on enserfment, one of the most detailed and thorough studies on the subject: Razvitie ­krepostnogo prava v Rossii vo vtoroi polovine xvii veka, Moskva/Leningrad, 1962. 60 N.A. Gorskaia, Monastyrskie krest’iane Tsentral’noi Rossii v xvii v. O sushchnosti i formakh feodal’no-krepostnicheskikh otnoshenii, Moskva, 1977. More work on this topic was done

882

chapter 35

Bobyli The Ulozhenie and contemporary charters contain frequent references to a class of people called bobyli; they are almost always mentioned along with ordinary dependent peasants (krest’iane). They appear for instance in the abovementioned provisions concerning fugitive peasants. Russian historians have not yet reached complete agreement about the status and social position of the bobyli. “Persons who, usually on account of the absence of means of production, lived with a feudal master. They were not subject to general taxation [tiaglo] and worked only for their master.”61 Grekov defined the bobyl’ as a person dependent on his master, with whom he had concluded a contract which obliged him to pay an annual rent (obrok) and to perform specific tasks in exchange for being given a living, consisting possibly of a place to live or a plot of land.62 D’iakonov was inclined to regard bobyli primarily as landless peasants.63 Sergeevich pointed to the differences between Novgorod and Moscow bobyli.64 The latter were much worse off than the former, but their dependent relationship with their master was personal and ended with the death of the master. In the end, in the Ulozhenie, the position of bobyli became identical to that of dependent peasants. Svoezemtsy Svoezemtsy is the term used to denote persons having their own land. Sergeevich paid a lot of attention to the svoezemets,65 but in Soviet times such a person constituted an unpopular subject, as he did not fit into the Marxist order of things.66 Grekov mentioned him in passing in his massive work on the peasant in Russian history and tended to view him as the lowest category of the exploiting class of landowners.67 afterwards, such as V.I. Ivanov, Monastyri i monastyrskie krest’iane Pomor’ia v xvi–xvii vv.: mekhanizm stanovleniia krepostnogo prava, Sankt-Peterburg, 2007. 61 prp vi, 175, commentary by O.I. Chistiakov. 62 B.D. Grekov, Krest’iane na Rusi s drevneishikh vremen do xvii veka, Moskva/Leningrad, 1946, 734–759, at 755. See also the critical discussion of Grekov’s views in A.L. Shapiro, Problemy sotsial’no-ekonomicheskoi istorii Rusi xiv–xvi vv., Leningrad, 1977, 1819–208. 63 M.A. D’iakonov, Ocherki iz istorii sel’skogo naseleniia v Moskovskom gosudarstve xvi–xvii vv., Moskva, 1898 (2nd ed., repr. Moskva, 2010), 206–240. 64 Sergeevich, Drevnosti iii, 132–142. 65 Sergeevich, Drevnosti iii, 7–14. 66 An interesting parallel exists, the Soviet counterpart, the edinolichnik, the peasant working individually, without being a member of a collective; he was recognized in Soviet law, but ideologically he was considered a leftover from a less advanced era. 67 Grekov, Krest’iane, 484–486, 503–504.

Civil Law: Persons

883

Sergeevich first of all made clear that the svoezemets was primarily a Novgorod phenomenon. During Novgorod’s independence any free person could engage in agriculture, and Sergeevich noted that the svoezemtsy included merchants, craftsmen, other urban inhabitants, and peasants as well. The svoezemets could work his land himself, with his family, but could also have people working for him. If he was a successful entrepreneur, hired a larger workforce and bought more land, his status would of course approximate that of the hereditary landowner (votchinnik), and in that respect Grekov had a point.68 After Novgorod had lost its independence, the land of svoezemtsy was sometimes taken away and granted to Moscow landowners. It would appear that the layer of svoezemtsy was gradually becoming thinner, its most successful members merging into the class of small, noble landowners, its lower levels being absorbed in the mass of dependent peasants.69 Zakhrebetniki were free peasants without land of their own, who worked as hired hands for other peasants; a similar category was the podvorniki, free peasants who worked for others (peasants or landowners) on the basis of a contract, either on the land or in the household (dvor, hence the name) of a master.70 Even if, as in Soviet times, the political and socio-economic conditions were not beneficial to the survival of a significant contingent of independent farmers, practical considerations usually prevented the complete disappearance of individual agricultural entrepreneurs, small independent farmers. There will always be remote and isolated patches of agricultural land, able to support just one peasant family. Other Categories of Peasants The principal contingents of Russian peasants in the 16th and 17th centuries were those working for the state, for the Church or for private landowners. State peasants were first of all those working the tsar’s personal estates, the palace lands (dvortsovye zemli), hence their designation as palace people, peasants or servants (dvortsovye liudi, krest’iane or slugi). Some of the palace lands were in the hands of the tsar’s wife, the tsaritsa, his mother and other close relatives. An even more important and numerous group was the ‘black’ 68 69

70

Sergeevich has an example of a Novgorod svoezemets with possessions of a number of villages in several Novgorod provinces, Drevnosti iii, 91–92. Cf. A.A. Selin, “Genealogicheskaia i istoriko-geograficheskaia zametka o svoezemtsakh”, A.Iu. Dvornichenko (ed.), Issledovaniia po istorii srednevekovoi Rusi. K 80-letiiu Iuriia Georgievicha Alekseeva, Moskva/Sankt-Peterburg. 2006, 338–346. Cf. Sergeevich, Drevnosti, iii, 145–147.

884

chapter 35

peasants (chernye krest’iane or chernye liudi), attached to ‘black’ lands (chernye zemli). Such lands were originally wild and uncultivated (dikie zemli) and were then taken into cultivation by the state, which populated them with peasants recruited from elsewhere. Among the peasants working on land belonging to churches and monasteries monasterial peasants were the most numerous, but along with the big monasteries the Moscow metropolitanate (later on patriarchate) and the archbishopric of Novgorod were among the biggest landowners in Muscovy times. The main division among private landowners was between owners of hereditary estates (votchiny, hence votchinniki) and of service estates (pomest’ia, pomeshchiki). Some hereditary estates belonging to leading princely families were very large, resulting in great numbers of dependent peasants. Dependent peasants may also be categorized, not according to the type of estate they were attached to, but by looking at the origin of their dependence and the resulting nature of the relationship with their masters. Various peasant categories occurring in Kievan Russia have already been reviewed in Chapter 18: smerdy, zakupy, zakladniki, izorniki (in Pskov), and others. The term smerdy, as noted in that chapter, was gradually replaced by other general terms referring to dependent peasants, such as krest’iane or liudi. The zakladniki (or zakladchiki) probably represented a newer version of the zakupy from the Russkaia Pravda, impoverished people who had accepted a position of dependence in exchange for a sum of money or equivalent assets. The izorniki were known to the Court Charter of Pskov and were a local manifestation of similar dependence. The zakladchik continued to be mentioned occasionally in the following centuries and made a brief reappearance in the Ulozhenie (Ch. xix, arts. 13 and 18), where he was a taxpaying urban resident who had left his place of residence to work for a landowner to repay a loan. In accordance with what has been said above about the government’s interest in preserving the urban tax base, the Ulozhenie ordered the forced return of such “pawn-slaves” (in Hellie’s translation) to their home towns without compensation for their masters. To move the topic to a more general level, the institution of the zakladnik can be viewed as one more illustration of the general background of the gradual enserfment of large sections of the population – widespread impoverishment forcing people to enter a state of dependence in exchange for some measure­of safeguarding of their livelihood. Initially, such a move would often have been temporary, until debts were paid off. In time, when it turned out to be impossible to pay, the status could become permanent. In this sense they are encountered in the Ulozhenie (Ch. 10, arts. 234, 235, 237; Ch. 17, arts. 50–51). At a time when peasants generally still enjoyed a certain measure of mobility,

Civil Law: Persons

885

starozhil’tsy were already considered as being attached to the land worked by them. They were on the other hand regarded as a reliable source of information on matters concerning boundaries and similar questions. Often they also constituted the trusted core of the landowner’s workforce.71 The dependence of the peasant could be expressed in various ways, but there would obviously have to be some kind of transfer of value from the peasant to his master: money, work, services, produce, etc. On this basis various categories of dependents arose. The most common form was the payment of an annual sum, the obrok, which offered the landowner a steady source of income. Originally, obrok was defined as a fixed quantity of produce. Where yields varied, a system which gave the landowner a fixed share could be preferable to him; this was often set at half the crop, a polovina, and such peasants were called polovniki.72 Peasants who had accepted dependent status on the basis of money loaned to them were sometimes referred to as serebreniki (from serebro, silver). The exact nature of their relationship with the landowner remains a matter of debate.73 Serebreniki were probably most often beholden to monasterial landowners, because monasteries generally had more money at their disposal than secular landowners.74 According to Grekov, serebreniki either paid interest on the loan or worked for the creditor; the latter was the more common case. Unlike the ordinary ­dependent peasant, the serebrenik was not subject to state taxes (tiaglo).75 Barshchina usually represented a more onerous form of dependence for the peasant. It consisted basically of the duty to work for the landowner, but could assume different forms. Most commonly the peasant had a certain plot allotted to him for the needs of his family, while he had to work a fixed number of days on the landowner’s land. The actual work was occasionally ­replaced by a money payment (usually called obrok), but this arrangement 71 72

Cf. Grekov, Krest’iane, 622–644; D’iakonov, Ocherki, 339–341. A.L. Shapiro, Russkoe krest’ianstvo pered zakreposhcheniem (xiv–xvi vv.), Leningrad, 1987, 108–126. 73 See Grekov, Krest’iane, 644–659; Sergeevich, Drevnosti i, 243–244. 74 An even more specific category of monasterial peasants is discussed at length by D’iakonov, the monastyrskie detenyshi (monasterial wards), originally probably orphans whose parents were monasterial peasants or servants, and who were initially employed exclusively in farm work. Adult and impoverished peasants would occasionally adopt the same status. Cf. M.A. D’iakonov, Ocherki po istorii sel’skogo naseleniia v Moskovskom gosudarstve xvi–xvii vv., Moskva, 1898 (2nd ed., repr. Moskva, 2011), 295–321; Grekov, Krest’iane, 695–711. 75 Grekov, Krest’iane, 660–678.

886

chapter 35

was often u ­ nfavourable for the landowner, who would therefore be inclined to steer clear off it. Apart from the payments and services the peasant owed the landowner, there were various duties to the state, consisting again of financial impositions and obligations to contribute in kind or by participating in work. (See also the section on taxation in the Chapter 31, on Government.) For the ‘black’ peasants, employed on state lands, this meant that they paid the state in its position of landowner, as well as of sovereign. The entire fiscal burden imposed on the peasant by public authorities was often referred to as tiaglo (burden); its main components were the old general tax (dan’) and an additional tax introduced later (primet), the iam (a tax originally exacted by the Tatars), and various duties to participate in public works (sometimes replaced by money payments).76 The peasant (krest’ianin), as discussed above, was understood as a person directly employed in farming, i.e. raising crops and cattle. Along with genuine farmers and farm workers there could also be other persons, especially in larger villages, engaged in crafts and trades supporting the work on the farm: carpenters, blacksmiths, potters, etc. Such people were called nepashennye liudi (“non-agricultural persons”) as opposed to the actual agriculturalists (pashennye liudi). They were mentioned separately in the cadastral books (pistsovye knigi);77 their legal status was, generally speaking, the same as that of pashennye liudi.78 Trading Peasants Peasants who did not work the land but derived their income from commercial activities were known as trading peasants (torgovye krest’iane). They were the subject of specific legislation in the 18th century, but their emergence could be observed in the Ulozhenie, especially in Ch. 19, devoted to townspeople. The main concern of this chapter was to ensure as far as possible the maintenance and increase of the tax-paying urban population (the tiaglye liudi). For that reason there was a number of rules concerning peasants who had settled in Moscow and other towns either temporarily or permanently. The general tendency was either to send them back to where they came from, or include them in the tax-paying urban population. Such peasants would mostly be e­ mployed 76 77 78

Cf. Shapiro, op. cit., 96–107. See for instance S.B. Veselovskii (comp.), Akty pistsovogo dela 60–80-kh godov xvii veka, Moskva, 1990, No. 40, 183–184. Few authors pay attention to the distinction; one of them was Sergeevich, Drevnosti iii, 129–130.

Civil Law: Persons

887

as craftsmen or merchants, unless they worked as servants to regular citydwellers. Art. 17 of the chapter was the most explicit; it directed that peasants who had come to town to sell their wares were free to do so, but only at the market and from their carts or boats; they were not allowed to have shops or stalls. Other contemporary sources and 18th-century legislation made it clear that there were in fact peasants who did not own land and whose main occupation was commerce. As such (nepashennye krest’iane) they were similar to bobyli and not subject to the impositions in kind and money exacted from ordinary peasants; they paid only the lighter tax called vyt’. They often lived together in “trading villages” (torgovye sela).79 Slavery Slavery, as explained in the relevant sections in the Chapters on Rural Russia (18) and on the Individual and the Family (19), had been a feature of Russian society from the beginning of history. The last part of the Expanded Pravda (arts. 110–121) was entitled “On Slavery” and its provisions were the basis of all subsequent regulation, up to Ch. 20 (119 articles) of the Ulozhenie of Aleksei of 1649.80 A fundamental transformation of the institution of slavery remained hidden underneath this remarkable legislative continuity. The long process of enserfment of the peasant population in combination with the increasing variegation of the slave population resulted in the end in the dissolution of the latter and the absorption of most of it in the dependent class of serfs.81 The year 1718 is conveniently regarded as marking the abolition of slavery, following Kliuchevskii.82 In that year Peter the Great announced a poll-tax (podushnaia podat’) on all male subjects, removing the major distinction between 79

80

81

82

A special study of such trading peasants is V.R. Tarlovskaia, Torgovlia Rossii perioda pozdnego feodalizma (Torgovye krest’iane vo vtoroi polovine xvii – nachale xviii v.), Moskva, 1988, who refers to the not very rich literature on the subject. This was a central consideration in the chapter on the legal status of slaves in the work on slavery and serfdom by E.I. Kolycheva, Kholopstvo i krepostnichestvo (konets xv–xvi v.), Moskva, 1971, 202–240, esp. 202–206. See generally, V.M. Paneiakh, Kholopstvo v xvi – nachale xvii veka, Leningrad, 1975, and by the same author: Kabal’noe kholopstvo na Rusi v xvi veke, Leningrad, 1967, and Kholopstvo v pervoi polovine xvii v., Leningrad, 1984. In a long study “Podushnaia podat’ i otmena kholopstva v Rossii”, V.O. Kliuchevskii, Sochineniia, vii, Moskva, 1959, 318–402, first published in Russkaia Mysl’, 1885. The actual implementation of the reform took several years.

888

chapter 35

slaves and all other persons, the fact that slaves were not subject to general taxation (tiaglo). The legal structure of slavery remained, as noted, quite stable over the centuries. One became a slave by being born to slave parents or by marrying a slave, or by voluntarily entering slavery. The two main ways of effecting the latter were by selling oneself into slavery or by accepting appointment to certain low offices which entailed slavery status (especially tiunstvo, being a village steward). Foreign prisoners-of-war constituted a special category. Slavery could be ended by the slave’s master (through manumission, by will, etc.); or, if slavery was conditioned by a loan from the master, by the slave himself paying off all debts. Through the ages, the general tendency was to introduce ever more formalities into these processes and increase the government’s grip on the acquisition and loss of slavery status. This was the position in 1497, when the Code of Ivan iii set out several detailed instructions on how to proceed on this point. The following century and a half of legislation reflected the important ­socio-economic shifts occurring during that period. This is a question of general history, and here one can point only to the development of state-managed agriculture on ‘black’ lands (chernye zemli), the gradual enserfment of the peasant population, violent political upheavals and natural disasters (famine, plague, etc.), resulting in widespread impoverishment and demographic imbalance, etc. Most of the incidental decrees affecting the status of slaves eventually found their way into the long chapter on slavery in the 1649 Ulozhenie. Among the most significant legislative acts of the period the following could be mentioned. A decree of 30 November 1558 provided more detailed rules about the procedure for returning fugitive slaves to their masters (a major topic in the Ulozhenie).83 A decree of 15 October 1560 directed that debtors who had accepted slavery status on the basis of an unpaid money loan (kabala) were to be released from slavery after the debt had been paid and should not be turned into full (polnye) or reported (dokladnye) slaves.84 The important decree of 1 February 1597, adopted during the reign of Boris Godunov, amended the rule of the 1560 decree in the sense that slave status ended with the death of the creditor, and not with the paying of the debt, 83 84

Text to be found in the Composite Code, Ch. 12, arts. 149–150; prp iv, 515. Text in Composite Code, Ch. 12, art. 162; prp iv, 517. Reported slaves were persons who had entered slavery on the basis of a report in which their wish to become a slave had been expressed. For an example, see prp iv, 67–68, a dokladnaia gramota from 1588.

Civil Law: Persons

889

as in the past. The creditor’s heirs did not even have a claim concerning the unpaid debt.85 The decree of 16 August 1603 was adopted during difficult circumstances when famine was raging. It allowed slaves who had been turned out by their masters to apply for manumission papers with the Slavery Department (Prikaz Kholop’ego Suda).86 Further decrees were directed at fine-tuning the status of slaves. The overall strategy was to prevent major upheavals in the legal status of slaves; they were not to be allowed to leave their masters in droves, but it was also considered undesirable that large contingents of newcomers should reinforce the ranks of the slaves. In the Ulozhenie of 1649, as mentioned, an entire long chapter was devoted to slavery. The most noticeable aspect of this long chapter was the government’s keen interest in maintaining control of entry into and exit from the status of slavery. This implied that becoming a slave was in some situations attractive to free persons. Increased government control over slavery was also expressed in the central role allotted to the government body entrusted with slavery affairs, the Slavery Department (Kholopii Prikaz). Voluntary slavery on the basis of a loan contract (kabala, kabal’noe kholopstvo, limited service slavery in the terminology of Hellie) claimed most of the legislator’s attention. The question of fugitive slaves also remained an important topic. The first three articles of Ch. 20 were indicative of the main trend, in that it was henceforth expressly forbidden to receive boyars’ sons (deti boiarskie) into slavery and transitory measures for those already in slavery were announced. Fugitive slaves, their forced return, and various related topics were covered by arts. 4–16. The normal way to enter limited service slavery was by concluding a contract, which had to be registered at the Slavery Department. If a person had entered slavery without a contract and had served for more than three months, his status became permanent and the Slavery Department would issue the contract (art. 16). The following provisions dealt with all kinds of special situations which could arise in this context. The prospective slave had to be at least 15 years old (art. 20). A slave who had been taken abroad as a prisoner and was subsequently released (or had fled) and returned, became free (art. 34). 85

86

Text in the Statute Book of the Slavery Department, prp iv, 370–374; also in the Composite Code, Ch. 12, art. 165, prp iv, 517–521; and in zarg No. 47, 64–66. See also V.M. Paneiakh, Kholopstvo v xvi – nachale xvii veka, Leningrad, 1975, Ch. 2 (72–145). Text in prp iv, 375; zarg No. 52, 71–72.

890

chapter 35

S­ imilarly, slaves who had been expelled by their masters (as would happen in times of famine) regained their freedom (art. 41 and following). Arts. 61ff. looked at the ways slaves could be handed over to new masters through wills, dowries and gifts. Arts. 69ff. regulated the different legal positions of Russian, Western (i.e. baptized, Roman-Catholic), and unbaptized (mainly Muslim) slaves. Tatar slaves were apparently a common phenomenon, because they were the subject of a number of separate provisions (arts. 97–100 and 117–118). Arts. 80ff. were devoted to the various family law aspects of slavery. Authors generally agree that the increased predominance of limited service slavery, in combination with the gradual enserfment of the originally free population (especially the peasants) in the end resulted in the fading of the borders between the two classes. When the (male) slave population was also subjected to the poll-tax under Peter the Great, the last significant distinction between slaves and serfs disappeared. The Ulozhenie of 1649 was in many ways a prelude, for instance in establishing practically the same regime for fugitive serfs and slaves. The gradual dissolution of slavery was also facilitated by the variegation occurring within the slave class, where a kind of slave elite arose, entrusted with positions of responsibility (see also the relevant section in Chapter 19).87 The tiun and the kliuchnik were mentioned as early as the Russkaia Pravda, where acceptance of appointment as a tiun or kliuchnik entailed slavery status unless this had been specifically excluded in a contract (riad, see art. 110 Expanded Pravda). Although both terms are usually translated as “steward”, the kliuchnik was the ordinary steward (“the man with the keys”), the general estate manager. The functions of the tiun (“sheriff”) were often more varied and included in particular various administrative and judicial duties, up to those of a lower level judge.88 Anybody who was not a slave himself could be the master of a slave; there are a few examples, mostly from the Novgorod region, of (dependent) peasants having a slave.89 Zadvornye liudi A decree (boyar judgment) of 14 October 1624 mentioned zadvornye liudi, persons, obviously slaves, who did not live in the master’s dvor.90 Although the 87 88 89 90

This is one of the main topics in the work by Kolycheva, quoted above. Cf. Sergeevich, Drevnosti iii, 144–145. Ibidem, 143; Sergeevich’s examples are from the Novgorod cadastral books (pistsovyie knigi). prp v, 203; zarg No. 138. 121–122.

Civil Law: Persons

891

master of a slave was normally liable for damage caused by his people, the decree directed that slaves living outside the master’s household were to be personally responsible. They were able to assume this responsibility because they enjoyed the use of their own plots and a private income. Kliuchevskii was the first to draw attention to this category of slaves in his paper on the poll-tax.91 Later, D’iakonov analyzed the position of the zadvornye liudi in more detail.92 In time the zadvornye liudi became a transitory category between slaves and serfs. The essence of the decree of 1624 was taken over in the Ulozhenie (Ch. 21 art. 68). Foreigners If one compares the conditions determining the status of foreigners in ­Russia, as they were during the period of Kievan Russia and the following era of the independent principalities, and as they prevailed in Muscovy, certain basic differences are obvious. Muscovy had replaced a multitude of semi-states; at the same time its foreign contacts had changed character. In the West there were the late medieval European states, while in the East and South Muscovy had an uneasy and mostly warlike relationship with the successor states of the fragmented empire of Chingis-Khan, most of them Turkic (Tatar) and at least superficially islamized. Wars with Lithuania and Poland were also frequent, but in the meantime relations were often close, although not exactly cordial. In the 17th century Sweden had emerged as the hegemonial power in Northern ­Europe, resulting in regular collisions with Russia. West European powers figured mainly as trading partners: the Hanseatic League, England, the N ­ etherlands (both Flanders and later especially the Dutch Republic). The Codes of 1497, 1550, 1589 and the Composite Code contained only sporadic references to foreigners.93 Only the Ulozhenie of 1649 reflected many of the features indicated above. 91 Kliuchevskii, Sochineniia vii, 379–402. 92 D’iakonov, Ocherki iz istorii sel’skogo naseleniia, 241–294; also briefly in D’iakonov, Ocherki, 394–397. See also V.A. Arakcheev, “Dvorovye i zadvornye liudi: k issledovaniiu terminologii perepisnykh knig 1640–1670-kh gg.”, A.P. Pavlov (ed.), Gosudarstvo i obshchestvo v Rossii xv-nachala xx veka. Sbornik statei pamiati Nikolaia Evgen’evicha Nosova, Sankt-Peterburg, 2007, 316–323. 93 E.g. art. 58 of the Code of 1497, arts. 36–37 of the Code of 1589.

892

chapter 35

Foreigners in Muscovy were mostly either merchants (visiting or resident) or employed in the service of the state, especially as mercenaries. The two categories were mentioned separately in, for instance, Ch. 18 art. 63, concerning service estates assigned to foreigners. Arts. 13–14 of Ch. 16 made clear that the government had set aside special service estates for foreigners. Merchants, in accordance with a tradition that went back to the treaties with Byzantium and later the Smolensk Pravda, enjoyed to some extent a more benign treatment. Their claims against Russian counterparts were privileged (Ch. 10 art. 260) and they ranked in many respects with higher level officials. As such, for instance, they were not subject to paying state tolls and ferry fees (Ch. 9 arts. 1–2). Deserting foreign mercenaries were subject to the same severe punishments as Russian deserters (Ch. 7 art. 9). The most important provision concerning foreigners was, in principle, Ch. 10 art. 1, which provided among other things that the judicial process was the same for foreigners as for Russians. In the section on slavery we have already referred to the distinctions made in respect of slave-owning between Russians, baptized foreigners, and unbaptized ones (Ch. 20 arts. 70–71). Among the Western nations, Poles, Lithuanians, English and Dutch are occasionally mentioned specifically in the Ulozhenie as subject to certain special rules. Tatars and several other indigenous non-Russians appear frequently in the Ulozhenie and then also a distinction is made between baptized and unbaptized persons. Two aspects are important for understanding their position. Firstly, they could not be considered as foreigners, people who had come from another country and who were staying in Russia for a limited period (foreigners who stayed permanently would in time be assimilated to native Russians). Secondly, it would be an anachronism to ask at which moment Tatars (or comparable categories of persons) had become Russian citizens, as the latter concept was not available at the time. They constituted a section of the population­ of Muscovy, subject to the tsar, which had its own characteristics, just like ­Cossacks, ‘black’ peasants, strel’tsy, etc. Undeniably, the basic direction of government policy towards the Tatars was assimilation and ultimately absorption into the mass of the Russian population. But the actual political course varied strongly, depending on the governmental requirements of the moment. Certain strands became prominent, and then faded into insignificance. Land ownership was always an important factor and was used by Moscow to draw the Tatar elite into the network of the state. Consequently, Tatar troops were frequently employed in Muscovy’s wars with foreign powers. Baptism and then marriages with Russians represented a fast

Civil Law: Persons

893

and effective means of assimilation. Russian absolutism, with its pronounced theocratic aspects, was in principle not well disposed towards Islam, but repressive treatment alternated with considerable tolerance and even indifference, as would be suggested by enlightened opportunism.94

Legal Persons

The concept of the legal person is a product of more recent legal thought. Collectivities, such as the Dutch and English East India Companies began to act as if they were real physical persons, and the law gradually started to adapt itself to this new phenomenon. Nonetheless, collectivities as entities having rights and duties, such as the verv’ (the village community) in the Russkaia Pravda (art. 20 Short Pravda, art. 3 Expanded Pravda) appeared very early on. Later, one finds the merchant guild of St. John (Ivanskoe kupechestvo) in Novgorod, the main subject of the so-called Testament (Rukopisanie) of prince Vsevolod Mstislavich (see Chapter 6). The commercial law of Pskov (see the relevant section in Chapter 15) knew the institution of siabrenichestvo, a form of commercial partnership, although too little is known about its exact nature to consider this association of siabry as a separate legal entity. For modern lawyers, the distinction between legal persons in public and in private law is essential, but in a setting such as medieval Russia this distinction loses its sharpness, as has been pointed out repeatedly in this work. Commercial corporations, not unlike the guilds in Western Europe, often enjoyed regulatory and public executive powers and could operate simultaneously as commercial actors. The Ulozhenie recognized the existence and legal relevance of the two highest merchant corporations in Moscow, the Merchants’ Guild (Gostinaia sotnia) and the Clothiers’ Guild (Sukonnaia sotnia). 94

A.I. Nogmanov, Samoderzhavie i Tatary. Ocherki istorii zakonodatel’noi politiki vtoroi poloviny xvi–xviii vekov, Kazan’, 2005, describes and evaluates the legislative treatment of the Tatars from a modern Tatar point of view.

chapter 36

Civil Law: Ownership and Obligations It would perhaps have been odd to give this chapter the title “Things and ­Obligations”, although it would have been more appropriate. Things, parts of the material world, have been there long before human feet trod the earth. Ownership is something that human beings invented afterwards, although ­Roman law thinking appeared to regard it as part of the material world, of nature, so that ownership became a quality inherent to a thing, like its chemical properties. Since the reception of Roman law in most of the Western world, ownership, and the concepts derived from it (possession, usufruct, etc.), have always leant heavily on Roman law thinking. Russian legal thought in the 19th century and well beyond that era adopted this approach wholeheartedly. For Marx and his followers, this ownership concept, in its full 19th-century Romanist splendour, was fundamental in constructing their understanding of human history and society. What this chapter is about is the way a legal system, in casu the legal system of Muscovy, expressed and regulated in legal terms how human beings were expected and required to handle things. Modern lawyers and legal historians are accustomed to describing this matter in the terminology they are used to, employing concepts such as ownership, possession, etc., as if they were preordained, instead of themselves the product of historical development. We shall follow this traditional method, hence the title of this chapter. Within this framework, for instance, 19th-century authors have pondered the question when Russian law became aware of the ownership-possession dichotomy.1 Sergeevich pointed to the occurrence of naezd (noun) and naezdit’ (verb) in art. 10 of the Novgorod Court Charter, where is had the meaning of “inroad”, “raid”, and the resultant taking of land. The judge was instructed in such cases to decide first the question of the naezd, and then the question of to whom the land belonged.2 More to the point would be another example, quoted by Sergeevich, from the Pskov Court Charter, where kormlia (lit. “feeding”) 1 As if the dichotomy was there already, waiting to be discovered. In my approach, the question ought to be: When did it become relevant, useful, to start distinguishing between owners and possessors?. 2 Sergeevich, Lektsii, 524; naezd also appears in the Metropolitan’s Justice (art. 15) and in other contemporary sources. Kaiser translated it as “assault”, which is debatable because this term already implies unlawfulness.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_037

Civil Law: Ownership and Obligations

895

appears twice (in arts. 72 and 88) with the meaning of lifelong possession and use by a beneficiary, of property inherited by somebody else.3 Another fundamental aspect of the law of things is the distinction between movable and immovable things. This distinction, however, can be regarded as pre-existing and not as something invented by man. Of course, the terminology referring to it went back at least as far as the Romans, but it can easily be understood that, quite apart from what we call it, there is an essential difference between individual things and the earth itself. Individual plots can be marked off and assigned in some way to specific users, but they remain attached to the rest of the globe and are in principle indestructible. In a society of nomadic huntergatherers ownership of land is meaningless, but individual members would carry around their personal belongings in some kind of satchel. In early legal systems, such as the Russkaia Pravda, ownership of land is, as we have seen, a very hazy subject at best, while the rp has many specific provisions concerning personal property, i.e. movable things. In the Ulozhenie of 1649, various forms of land ownership are treated in detail and at length; almost no attention is paid to movable property as such, but the concept is very well known and turns up in most chapters. It is termed zhivoty4 and occurs usually in a criminal law setting, for instance where an offender’s belongings are confiscated, or where a reward or compensation is to be paid from the guilty person’s belongings.5 The distinction also affected other branches of law, such as taxation (where special taxes on land co-existed with taxes on all kinds of movable assets, and particularly on transactions concerning the latter) or criminal law (theft and other offences against property almost always concern movable assets). In the setting of the Muscovy state, questions of ownership of land and related issues were of the utmost socio-economic and political importance, and therefore they should be discussed first.

Ownership of Land

The ideas about the character of the ownership concept, developed above, are of immediate relevance when we consider the question of the ownership of 3 Sergeevich, ibidem. Art. 72 concerned establishment of such a relationship by will, art. 88 the more specific case of a wife, dying intestate, who left an estate. In the latter case the husband enjoyed the lifelong possession and use of the estate. Sergeevich suggested the provision had been taken over from Ecloga ii art. 7. 4 As the plural of zhivot, “life”, with the meaning of “belongings”. 5 E.g. Ch. 2, art. 15: the person who brings in or kills a traitor is to receive a reward from the latter’s belongings; Ch. 21, arts. 9, 12, 14 and others: a thief’s belongings are to be divided among his victims.

896

chapter 36

land in the Muscovy era. As will be demonstrated, different categories of persons regarded as landowners existed, each of them characterized by specific sets of rights and duties concerning “their” lands, while none of them would satisfy the Romanist definition of the full owner. Land belonging to the state, in fact the grand prince or the tsar, enjoyed a somewhat separate status. For other ownership of land the principal ­division was between service and hereditary or ancestral estates (pomest’ia and votchiny or otchiny). Within this division it would still be necessary to distinguish between categories of owners, mainly boyars (including princes and high nobility), lower nobility (dvoriane) and assimilated categories of serving officials, merchants6 and other urban landowners, various categories of landowning peasants, and ecclesiastical landowners (secular, such as ­bishops and other clergy members, and monastic owners – the most important category). The objections to using ownership of land in a broad, non-Romanist sense may to some extent be avoided by introducing “land tenure” (more or less equivalent to Russ. zemlepol’zovanie, “land use”), but that of course entails new definitional problems. Legislation The Code of 1497 mentioned ownership of land mainly in passing; the rather traditional arts. 61 and 62 were devoted, respectively, to fences and boundary marks. Art. 63, entitled “Justice Concerning Land” (A o zemliakh sud), was of more importance, as it introduced a fixed period for the limitation of litigation about land (three years).7 The provision returned in expanded form in art. 84 of the Code of 1550, where it was followed by the principal land law innovation of that Code, art. 85, “Justice Concerning Ancestral Estates” (A v votchinakh sud), the text of which probably derived from a special enactment adopted during the 1497–1550 period. The second half of the 16th century yielded a number of decrees dealing with various aspects of land law; especially the early years, coinciding with the 6 Although ownership of land by merchants and other non-noble urban categories was in principle not excluded, various legal and practical obstacles made it generally unattractive. For a detailed discussion of this topic, see L.A. Timoshina (ed.), Torgovlia i predprinimatel’stvo v feodal’noi Rossii. K iubileiu professora russkoi istorii Niny Borisovny Golikovoi, Moskva, 1994, and esp. Golikova’s own contribution “Formy zemlevladeniia i zemlepol’zovaniia gostei i gostinoi sotni v kontse xvi–xviii v.”, 23–56. 7 Previously, various periods of limitation were encountered in different statutes, e.g. three years in the Metropolitan’s Justice (art. 22), four of five years in the Court Charter of Pskov (art. 9), and other periods. The heading of art. 63 suggests that its origin was a previous separate enactment.

Civil Law: Ownership and Obligations

897

first part of the reign of Ivan iv and the activities of the Adashev ­government, were productive in this respect (relevant individual enactments will be discussed below). Although it is possible to identify several consistent legislative trends in the era preceding the Ulozhenie of 1649, their effects were often contradictory, due to the chaotic circumstances of the Time of Troubles. The Ulozhenie incorporated what was lasting and made a qualitative jump ahead by offering two long chapters, on service lands (Ch. 16, O pomestnykh zemliakh, 69 articles) and on hereditary estates (Ch. 17, O votchinakh, 55 articles). These chapters did not contain a systematic treatment of the subject concerned, as modern legislation would, but constituted a collection and elaboration of past decrees on various relevant topics supplemented by a few new rules. The underlying structure of the regulatory complex is not made explicit, but can be derived from the more detailed rules. Lands Owned by the State In a state like Muscovy, the person of the monarch and the state as a legal entity cannot be viewed as wholly separate institutions. Still, in the matter of land ownership, a clear distinction existed between the tsar’s private estates and the general pool of state land. The peasants living and working on the tsar’s private estates were known as “palace peasants” (dvortsovye krest’iane) and they lived in dvortsovye sela (palace villages). Palace peasants and villages are mentioned frequently in the Ulozhenie; the status of palace peasants was in some ways more privileged than that of ordinary dependent peasants. The origin of palace lands was generally within the sphere of private law, to use an anachronistic term. Such lands had originally been acquired by the monarch’s ancestors as a share in an inheritance, or as the result of barter or sale. The private estates were used by the Moscow grand princes after Ivan ­Kalita to endow younger brothers with apanage principalities; also the tsaritsa and the dowager tsaritsa owned very considerable estates. At the time of the Ulozhenie, the palace estates were also employed as a source from which service estates could be distributed (e.g. Ch. 16, arts. 46–47).8 The acquisition of genuine state lands would normally be a matter of public law; they encompassed new territories acquired by conquest or cession, undeveloped or ‘wild’ lands, of which there was no shortage in medieval Russia, etc. Once these lands had been populated by peasants who then cultivated them, the lands became known as ‘black lands’ (chernye or chernososhnye zemli) and 8 On this subject generally, see E.I. Indova, Dvortsovoe khoziaistvo v Rossii. Pervaia polovina xviii veka, Moskva, 1964.

898

chapter 36

the peasants as ‘black peasants’ (chernye liudi, chernye krest’iane). Such lands were especially widespread in the North, while they had almost disappeared and turned into service and hereditary estates in Central Russia by the end of the 16th century.9 Service Estates The terms pomest’e and pomeshchik occurred as early as in the 15th century, with the meaning of “service estate” and, respectively, the person endowed with such an estate, as opposed to the hereditary estate (votchina) and its owner (votchinnik).10 The pomeshchik appeared in art. 63 of the Code of 1497 (mentioned above) and in its successor, art. 84 of the Code of 1550. Granting land in exchange for service had been practiced regularly in Russia’s past, but was apparently governed by custom (see Chapter 18). The origin of service estates was most probably in the conditional land grants made to medium and lower level servants, free as well as unfree, of princes. The basic condition of the grant was the service to be performed by the grantee, as an estate manager, an administrative or judicial official, in a military capacity, etc., and the grant would consequently be withdrawn when the service was no longer performed, for whatever reason (death, incapacity, old age, dismissal, malperformance, etc.). In time, the grant would become inheritable, provided a suitable successor was available, because such an arrangement was advantageous to both sides.11 The practice received a major boost when Ivan iii relocated a large number of Novgorod boyars to other parts of Russia, after Novgorod lost its independence in 1478, and distributed their lands to Muscovite servicemen. U ­ nder Ivan  iv, the expansion of the pomest’e system became one of the principal policy instruments. The duties towards the state, imposed on landowners (pomeshchiki as well as votchinniki), were laid down in a decree of 1555–1556, the text of which has been lost (see further below). 9

10 11

A.I. Kopanev, “Zakonodatel’stvo o chernom krest’ianskom zemlevladenii xvi–xvii vv.”, V.A. Ezhov (ed.), Iz istorii feodal’noi Rossii. Stat’i i ocherki k 70-letiiu so dnia rozhdeniia prof. V.V. Mavrodina, Leningrad, 1978, 125–132, at 131. Also: A.D. Gorskii, “K voprosu o sushchnosti chernogo zemlevladeniia na Rusi v xiv–xv vv.”, A.M. Sakharov (ed.), Problemy razvitiia feodal’noi sobstvennosti na zemliu, Moskva, 1979, 25–54. In modern and 19th century Russian, pomest’e and pomeshchik simply mean “country estate” and its owner. See S.V. Rozhdestvenskii, Sluzhiloe zemlevladenie v moskovskom gosudarstve xvi veka, Sankt-Peterburg, 1897, 2–44. This is one of the most important pre-1917 studies of land ownership in Russia.

Civil Law: Ownership and Obligations

899

At the end of the Time of Troubles, the Land Assembly on 30 June 1611 a­ dopted a decree, which, after appointing a temporary government,12 dealt extensively with the numerous difficulties which had arisen in the matter of service estates. Many of the innovations introduced in this decree found their way into the legislation of the first Romanov tsars and so into the Ulozhenie.13 Like other important departments, the Department of Service Estates (Pomestnyi Prikaz) maintained its own statute book (see the relevant section in Chapter 27). The principal item concerning service estates was the Decree on Hereditary and Service Estates of 17 December 1636; most of its 24 articles were devoted to service estates.14 The contents of the long Chapter 16 of the Ulozhenie were derived from the mass of legislation adopted since the reign of Ivan iv. The central idea, permeating the entire chapter, was that military service, essential for the survival of the Muscovy state, was to be secured by granting land to servicemen, so that they would have the means to carry out their duties. The first article is eloquent in this respect, because it laid down the size of land grants to be made to all levels of service officials.15 The largest allotments were assigned to boyars, okol’nichie and other high officials, many of whom would already be owners of ancestral estates. For lower ranks, such as dvoriane and deti boiarskie, the service estate, the pomest’e, would usually be the main source of income. The interests of the latter two categories of service people were clearly foremost in the minds of the drafters of the chapter on service estates; they are mentioned in almost every article. The effect of Ch. 16 art. 1 was limited to the Moscow district (uezd), a comparatively small area.16 The reasons for this limitation were to be found in the provision’s history. Ivan iv had already found it desirable to have a sufficient number of resident servicemen in the Moscow district, who could be

12

13 14 15 16

Text in rz iii, 43–49; PRoP iii/2, 228–233; the government was entrusted to the three most important military leaders, D.T. Trubetskoi, I.M. Zarutskii and P.P. Liapunov; see the ­section on this decree in Chapter 28. Cf. A.G. Man’kov (ed.), Sobornoe Ulozhenie 1649 goda. Tekst. Kommentarii, Leningrad, 1987, 282. Text in prp v, 470–477; PRoP iii/2, 310–314; zarg, No. 234, 171–174. The grants were expressed in chetverti (slightly more than 0.5 ha, or 2.7 acres), from 200 chetverti for boyars to 50 chetverti to zhil’tsy and comparable ranks. The surface of the Moscow district (uezd) was roughly in the order of 6.000/7.000 km2, with Moscow at the centre; it consisted of about 30 volosti, later on also known as stany. See K.A. Aver’ianov, “Moskovskie stany i volosti xiv–xvi vv.”, dg sssr 1987, 114–122 (map at 116).

900

chapter 36

­ obilized at short notice.17 This objective was achieved by granting them m pomest’ia around Moscow. The relative scarcity of land required more detailed regulation of this matter.18 More elaborate arrangements were made under Ivan’s son Fedor.19 Outside the Moscow uezd, land grants for pomest’ia would as a rule be much larger than those around Moscow.20 One of the prime concerns of the government was obviously to prevent ‘leakage’ from the national reservoir of service land, the sum total of land available for assignment as service land and land already assigned as such. Arts. 2–7, which dealt with the exchange of service lands, must be seen in this light. It would often be mutually advantageous for landowners to exchange land. This was allowed, but arts. 2–7 envisaged various situations which could arise and made sure that no service land would be lost in such deals or that its quality would deteriorate. Another general feature observable in these provisions, and many other provisions of this chapter as well, was the obligatory involvement of the Service Land Department (Pomestnyi Prikaz) which processed the ­exchange requests and registered the permissions granted. Many provisions testified to the government’s concern to engage the pomest’e as the main instrument to ensure genuine commitment from the lower service classes. The effectiveness of this policy would depend not only on enabling the serviceman to carry out his military duties, but also on various accompanying measures, calculated to safeguard his interests in old age or infirmity, and the interests of his family members (cf. arts. 8–11, 13, 16–24, 30–34, and others). In line with the haphazard regulatory approach of the Ulozhenie (an edited accumulation of previous enactments, interspersed with a few afterthoughts), the essential connection between service and the granting of a pomest’e, a simple fact of life for contemporaries, was only expressed in passing in a number of provisions,21 demonstrating that service land could be taken away when the holder of the land for some specific reason was unable or unwilling to render the service required. Only a few provisions came closer to something like a general rule. Art. 33 made it clear that when sons of the holder of a service 17 18 19 20

21

A decree of October 1550 provided for the relocation of one thousand deti boiarskie to the Moscow uezd and adjacent districts; prp iv, 581–582; zarg, No. 4, 30–31. Man’kov (ed.), Sobornoe Ulozhenie, 253. Only fragments have survived; the decree was issued in 1586/1587; prp v, 434–435; zarg, No. 44, 63. Cf. the commentary (by A.P. Kopanev) in N.E. Nosov, V.M. Paneiakh (eds.), Zakonodatel’nye Akty Russkogo Gosudarstva vtoroi poloviny xvi – pervoi poloviny xvii veka. Kommentarii, Leningrad, 1987, 14–16. E.g. in arts. 9–10, 12, 22, 25, 28, 33, 37–38, 42–44, 47–48, 68–69.

Civil Law: Ownership and Obligations

901

estate died before they had received a service rank, their wives and daughters received only a small maintenance allotment. The original basis of the service estate was a grant by the grand prince (tsar).22 In the normal course of events, a son would succeed his father as holder of the estate. When there were several sons, they were customarily entitled to roughly equal shares (cf. art. 34). Art. 34 also implied that the division could be made by the father, provided the division was fair. Otherwise the matter would be corrected by the authorities upon the request of the disadvantaged party. Many other provisions imply or state outright that service estates were included in the estate upon the death of the owner. Inherited service estates (the most common form) must be distinguished from hereditary estates (votchiny), to be discussed below. The succession system applicable to service estates is better understood if it is not viewed as something static. Originally, the grant was personal; succession by a son would therefore need a renewal of the grant. The government had of course a strong interest in perpetuating the service relationship, and this interest coincided with the family interests. This made succession by a son almost inevitable, and so it came to be regarded as a question of customary law. This was the situation at the time of the Ulozhenie. When a son who was suitable as a successor was absent, his place could be taken by a male relative without service land or with insufficient service land. This required a petition and a grant (see art. 13). If no such relatives were available, the land was to be granted to local dvoriane or deti boiarskie without land. While the land (and connected rights and assets) were of course defined in the grant charter (zhalovannaia gramota), the service which the grantee had to provide was left to the discretion of the tsar. It would, as a rule, be military service. The exact nature of the appointment would to a large extent depend on the outcome of the mestnichestvo system (see the relevant section in ­Chapter 31). Along with personal service, any landowner, whether pomeshchik or votchinnik, was obliged to contribute men from his own lands to serve in the army. This had been regulated in more detail by the Decree on Service (Ulozhenie or Ukaz o Sluzhbe) of 1556 (or 1555).23 According to this decree, a landowner had to supply a fully armed and equipped horseman for every 100 chetverti 22 23

Examples explicitly mentioning that the grant was made for past and future service: prp iv, 106 (1523), 110–111 (1551). The full text is not available, but the main contents of the decree have been transmitted together with other important acts of legislation from 1555–1556 in chronicle texts. See prp iv, 586, and especially zarg, No. 11, 36, and the commentary volume of the latter publication (N.E. Nosov, V.M. Paneiakh, eds.), 32–34.

902

chapter 36

(about 54 ha) of good land in his possession; for longer campaigns two extra horses had to be provided. Whether the holder of a service estate was to be regarded as its owner is a matter of definition. He certainly did not enjoy the full panoply of rights associated with the classical concept of ownership. Although he could leave the service estate to his sons, this was a duty, rather than a right. The impermissibility of selling or mortgaging the pomest’e is implicit and occasionally explicit in the Ulozhenie; exchanging it was allowed, as mentioned above, but only against a similar service or hereditary estate and after receiving permission following a request to the Service Land Department. Through the ages, however, the position of the pomeshchik was strengthened. While originally the temporary possessor of a certain parcel of land of which he enjoyed the proceeds as long as he did actually deliver the service required, the pomeshchik gradually came closer to being the owner of an ancestral estate; during the last decades of the 17th century, the sale or mortgaging of a pomest’e was allowed or tacitly tolerated in more and more situations, until finally the difference between ancestral and service estates was abolished in 1714.24 During the period of Muscovy Russia and after the subjugation and abolition of the Kazan khanate, the integration of a considerable non-Slavic population, with its own social hierarchy, became an urgent concern for the Moscow government. The chapter on service estates devoted a number of provisions to the matter of lands owned by Tatar princes and nobles and the interplay with Russian service estates (arts. 41–45). Also, the increasing permanent presence of foreign (Western) servitors of the tsar required special regulation (see esp. art. 14). Hereditary or Ancestral Estates25 In Chapter 18, on Rural Russia in the Kievan era, the existence or at least emergence of boyar landowning in that period was discussed. This, unquestionably, 24

25

Decree (imennoi ukaz) of 23 March 1714, “On the manner of inheriting movable and immovable property”, V.A. Tomsinov (ed.), Zakonodatel’stvo Petra i. 1696–1725 gody, Moskva, 2014, 117–121. See also N.P. Pavlov-Sil’vanskii, Gosudarevy sluzhilye liudi, Moskva, 2001 (orig. Sankt-Peterburg, 1898), 182–186. Generally, on this topic, see S.B. Veselovskii, Feodal’noe zemlevladenie v Severo-Vostochnoi Rusi, Moskva/Leningrad, 1947, 74–110. Veselovskii also presented a detailed picture of the life of a typical landowner as the manager of a complex economy, at a time when the differences between pomeshchiki and votchinniki were already fading, in Votchinnik i ego khoziaistvo v xvii veke, Moskva/Leningrad, 1929 (based on the personal papers of the stol’nik A.I. Bezobrazov, executed in 1690 for his involvement in a plot against tsar ­Peter). A comparable study of a large estate is D.I. Petrikeev, Krupnoe krepostnoe khoziaistvo

Civil Law: Ownership and Obligations

903

was the origin of the core of the hereditary or ancestral estates (votchiny or otchiny) in Muscovy: land that had been owned by certain families “from time immemorial”. The qualities and peculiarities of this type of ownership were generally known and could be regarded as part of customary law. H ­ istorically, such votchiny preceded pomest’ia, but for an understanding of the role of votchiny in Muscovy the institution of service estates had to be explained first. In time, the grand prince assumed the right to grant land to his servitors, not as service land with all the restrictions attached to it, but as an ancestral estate, which made the grant more valuable. Moreover, in certain situations it would also become possible to sell an ancestral estate, for instance when the entire clan (rod) of the last owner had died out. As a result, ancestral or hereditary estates appeared in three different forms in the Ulozhenie: the old ancestral estates which had been in family ownership “forever” (rodovye votchiny), hereditary estates granted for service (vysluzhennye votchiny, or votchiny za sluzhby dannye), and bought estates (kuplennye votchiny).26 This threefold distinction permeated the entire Chapter 17 of the Ulozhenie, devoted to ancestral estates (55 articles). As a special legislative subject, votchiny appeared first in the Code of 1550, where art. 85 was entitled A v votchinakh sud (Justice Concerning Ancestral Estates). The origin of this long provision was most likely a previous special enactment.27 The cardinal concept of this provision was vykup (redemption), the right of family members to redeem or buy back family land which had been donated, sold, left or mortgaged to an outsider. One may assume that initially the retention of the land belonging to the extended family or clan was felt as an urgent moral duty, expressed in the recognition of a wide-ranging right of clan members to buy back land which had left the family pool. Art. 85 of the Code of 1550 then attempted to regulate this right in a more precise manner, restricting it to some extent by the same token. The descendants of the person

26

27

xvii v. Po materialam votchiny boiarina B.I. Morozova, Leningrad, 1967. O.A. Shvatchenko, Svetskie feodal’nye votchiny Rossii v pervoi treti xvii veka, Moskva, 1990, contains extensive numerical data on votchiny, their size, location, owners, etc. In this chapter, as well as in Chapter 37 (on Family Law and Inheritance), an attempt has been made to translate the general category of votchina as hereditary estate and its three subdivisions as “ancestral estate” (rodovaia votchina), “(hereditary) estate granted for service” (vysluzhennaia votchina), and “bought estate” (kuplennaia votchina), but this approach cannot always be followed because the ancestral estate was the basic form of the hereditary estate and, both in English and in Russian, the two are often confused. This is not only suggested by its heading, but also by its insertion in a block of provisions going back to the Code of 1497. Cf. the comments by A.G. Poliak in prp iv, 328–332 and also by B.A. Romanov in B.D. Grekov (ed.), Sudebniki xv–xvi vekov, Moskva, 1952, 297–319.

904

chapter 36

who had sold or otherwise disposed of family property were denied the right of redemption, as well as those family members who had acted as co-signatories or witnesses to the relevant documents. An estate that had been bought could be converted into an old ancestral estate by the owner leaving it to his children. As long as ancestral ownership remained limited to lands which had been held in such ownership by a particular family (clan), ancestral and service estates constituted two strictly separate categories. This started to change ­under the reign of Ivan iv when the practice of granting new hereditary (ancestral) estates began to take hold. A decree of 1573 allowed the sale of vacant pomest’ia, withdrawn by the state, as ancestral properties to boyars, lower nobility (sluzhilye liudi), prominent merchants and other persons, but not to monasteries.28 It also happened frequently that the tsar granted land in the usual way to military and civilian servitors, as a reward for service, but with the specific proviso that the land was granted as ancestral land. Such grants were much sought after, because they not only enhanced the status of the grantee, but also implied more extensive rights concerning the land than those granted to ordinary pomeshchiki. This new policy significantly enlarged the pool of votchina land. It enabled the tsar to reward meritorious servitors and simultaneously fill his coffers. The rights of the owners of such vysluzhennye votchiny (hereditary estates acquired through service) were usually more restricted than those of owners of genuine ancestral estates, but still far wider than those of owners of service estates. In some cases, however, the tsar would grant the new owner of such an estate more extensive rights than those enjoyed by the owner of an ordinary ancestral estate. The legislation concerning these vysluzhennye votchiny was collected in a single enactment in 1627, known as the Stateinyi spisok (a list consisting of articles),29 which constituted a major source for Ch. 17 of the Ulozhenie (especially in the first part, up to art. 16). The third category of hereditary estates, bought estates (kuplennye votchiny), had a double origin. Previously, as indicated above, owners of ancestral estates had the right to sell their estates, although this right was restricted by the rules concerning redemption (vykup). As the right of redemption tended to become more restricted, the owner’s freedom to sell increased. Along with this, the state made more land available for sale as hereditary land by appropriating land in various ways (derelict land, new land, expropriated land).

28 29

zarg, No. 38, 56–57; also in prp v, 461–463, where it appears as an insertion in a decree of 1628, amending the 1573 decree. zarg, No. 161, 133–136 (and also No. 86, ibid., 93–93); prp v, 453–460.

Civil Law: Ownership and Obligations

905

The Decree on Hereditary and Service Estates of 1636 was mentioned in the previous section; this decree also had a few provisions on hereditary estates (arts. 1, 2, 13). In the section on service estates it has been noted that the Ulozhenie of 1649 was an important milestone in the development of this institution, but by no means the finishing line. The same could be said about hereditary estates. Rather than looking at Ch. 17 as a set of rules for regulating the subject, attempting to identify lines of development underlying the chapter may be a more productive approach. A first observation, suggested by the first block of provisions (up to art. 16), is the growing approximation between old ancestral (rodovye) and granted (vysluzhennye) hereditary estates, which generally received the same treatment. In fact, granted estates seemed to assume the status of old ancestral estates and share in the careful protection which the Ulozhenie still afforded the latter. The legislator made an effort to keep estates within the family, even in the female line. Bought hereditary estates, on the other hand, offered the owners certain advantages, because of the greater freedom allowed in handling them. This gave rise to the curious practice, referred to in art. 8, of people buying old (rodovye) or granted (vysluzhennye) ancestral estates from members of their own family or clan, converting these estates by the same token into bought estates. The opposite, converting bought estates into old ancestral estates, had been allowed by art. 85 of the Code of 1550 (mentioned above). Another theme which manifested itself in several provisions was the interaction between hereditary and service estates, almost watertight compartments in the past. The granting of service land as hereditary land under Ivan iv had made the first breach, but the Ulozhenie added several new openings between the two. Art. 9 provided that the government could sell service lands as hereditary lands by a decree signed by the tsar30 and the same article added that service lands could be sold as hereditary lands by their holders, but only after they had obtained a signed decree from the tsar. Art. 47 ordered the sale of vacant and derelict service lands to lower nobility (dvoriane and deti boiarskie) as hereditary lands. A result of the breaking down of the barriers between hereditary and service lands was that a person could simultaneously be entitled to hereditary and service lands. In later years this became a common phenomenon, especially in the case of members of the higher nobility (boyars, okol’nichie, etc.).31 30 31

The terminology of the imennoi ukaz (a decree with the tsar’s signature, lit. “a named decree”) is frequently used in the Ulozhenie. Owners of hereditary land who did not simultaneously have service land constituted a very small minority within the entire group of owners of hereditary land; cf. G.V. Abramovich in Man’kov (ed.), Sobornoe Ulozhenie 1649 goda, 270.

906

chapter 36

As in the previous chapter on service lands, state registration was given an important and often decisive role; it was carried out by the Service Land Department (Pomestnyi Prikaz); see for instance arts. 34–36. The policy directed at reducing the volume of landowning by monasteries, prominent since Ivan iv, was noticeable in many provisions of Ch. 17. Although the general tendency of the chapter was to increase the scope for transactions affecting hereditary property, monasteries were often expressly excluded as beneficiaries of the sale, gift, mortgaging or exchange of ancestral property. The great factual improvement in the position of at least some unfree persons is evidenced by art. 41 in which the drafters of the Ulozhenie found it necessary to state explicitly that slaves of boyars or monasteries could not buy ancestral estates or possess them on the basis of mortgage.32 These various points have been indicated because they also represented the starting points for continued developments during the second half of the 17th century and in the reign of Peter the Great. If one may question the ownership character of the right of a pomeshchik, the holder of a service estate, there is less reason to do so in the case of the owner of a hereditary estate. From a legal point of view, however, hereditary ownership had its own peculiarities. Along with the right of the actual owner of the property, there was a much more diffuse right, enjoyed by other family and/or clan members, a kind of ownership by default; this right itself was graded; closer relatives had a stronger position. The family members of the “owner” of a service estate did not have such a right. Furthermore, the right of common ownership of the heirs was explicitly recognized by art. 13. The concept of hereditary ownership of land illustrates the approach adopted in this chapter, that the absolute Romanist concept of ownership is unsuitable for explaining ownership relations in a medieval setting. The owner of a hereditary estate was, at least ideally, the manager of property belonging to a family; when his management impinged on the residual rights of the family, for instance if he were to sell or bequeath family land in a way unacceptable to the family, the transaction could be invalidated. Princes as Landowners After the principality of Riazan’ had been absorbed into the Muscovy state in 1521, all remaining princes were in some way subject to the grand prince of Moscow. Many of them continued to be owners of vast tracts of land, their votchiny, although the latter tended to be broken up into ever smaller estates. 32

“Slaves” is the reading given by some, such as G.V. Abramovich in Man’kov (ed.), Sobornoe Ulozhenie 1649 goda, 280, to boiarskie liudi and monastyrskie slugi.

Civil Law: Ownership and Obligations

907

The Code of 1550, as related above, had a single provision on votchiny, of which the regulation of the right of redemption (vykup) was the main component. A year later, in 1551, a so-called council decree (sobornyi prigovor) was issued, of which the restriction of real estate ownership by church bodies (especially monasteries) was the main subject (we shall return to this topic in the next section), but it also affected the ownership of votchiny by lay persons, and especially by princes.33 It referred specifically to the princes of the houses of Suzdal’, Iaroslavl’ and Starodub, who apparently had already been forbidden by a decree of Ivan iii to sell votchiny or donate them to monasteries. In 1562 the prohibition was extended to all service princes and their freedom in disposing of their ancestral estates was further restricted.34 Violation of the tsar’s instruction would in most cases lead to the expropriation of the estate concerned. The legislation fitted into Ivan’s general policy of reducing the political power of the service princes, who constituted the wealthiest and most powerful section of the boyar class. This legislation, specifically concerned with votchiny belonging to princely families, showed that service princes were legally in a less favourable position than other votchinniki. Church Lands The question of land ownership by boyars and princes has to be viewed in connection with the government’s approach regarding land ownership by monasteries and other church agencies (mainly the patriarchate and the bishops). The new policies adopted by the Adashev government during the first years of the reign of Ivan iv were of decisive importance in this respect. The government’s first priority was to ensure its military capabilities, in view of the ­permanent external threats to national security. In furthering its aims, the government had to deal with three major interested parties: the Church, the higher nobility (princes and boyars), and the lower nobility (dvoriane and deti boiarskie). The last category, the mainstay of the country’s military power, was the government’s natural ally; the interests of the higher nobility were mixed, and the Church, as, collectively, the wealthiest landowner (after the tsar/state), 33

34

zarg, No. 5, 31–33; see also the comments in the commentary volume of zarg, 17–19. The text is also included, with minor variations, in the Composite Code, Chapter 13, arts. 119–125, prp iv, 523–524. zarg, No. 36, 55–56; commentary volume, 56–58; text also included with minor variations, in the Composite Code, Chapter 14, art. 163, prp iv, 529–531. See also zarg, No. 37, 56, a council decree from 1572, which dealt with similar subjects; commentary volume, 58–59; Chapter xiv, art. 163, prp iv, 531.

908

chapter 36

was the most obvious target of the government’s acquisitive inclinations. On the other hand, it was not an easy prey, on account of its socio-political position in the setting of those days, coupled with its enormous wealth. Adashev and Ivan iv were able to reduce the economic power of monasteries and other church agencies to a considerable extent, but when the first Romanov tsar ruled a hundred years later, together with his father who happened to be the patriarch, the Church continued to be a formidable political agent. The main routes available to monasteries to accumulate landed property were discussed in the section on church landowning in the Chapter 18, on Rural Russia. The first steps taken by the Adashev government during the early years of the reign of Ivan iv were the attempt to stop the further extension of monasterial landowning. (The so-called secular church agencies (patriarch/ metropolitan, bishops, local churches) also appeared as landowners, but apart from the patriarchate itself, they were very much of secondary importance in this respect, compared to the monasteries.)35 Shortly after the adoption of the Code of 1550, the freedom of secular landowners to donate (bequeath, mortgage, etc.) ancestral land to monasteries was limited to one half of the estates, although they remained free in respect of bought hereditary estates.36 Then, in a decision of 15 December 1550 in the form of a council decree (sobornyi prigovor), ostensibly taken by the tsar in concert with all leading church dignitaries, an attempt was made to deal with the vexing problem of the numerous monasterial “freedoms” (slobody) in towns, enjoying extensive judicial and ­fiscal immunity.37 Of far greater importance was the council decree of 1 May 1551 which seriously curtailed the power of the higher clergy and the monasteries to acquire landed property.38 Its main point was that the sale of ancestral land to church entities without the permission of the tsar was forbidden. The traditional testamentary bequest of ancestral land to a monastery retained its validity, but the right of family members to redeem such land was also maintained, unless it was excluded. Service and ‘black’ lands which had ended up in the hands of monasteries on account of unpaid debts of deti boiarskie or peasants were 35

36 37 38

The land registers for 1678 gave the following numbers: 97.934 homesteads (dvory) owned by 395 monasteries and churches (sobory), 7.128 owned by the patriarch, 11.595 owned by eight bishops. Quoted from S.B. Veselovskii, Feodal’noe zemlevladenie v Severo-Vostochnoi Rusi, Moskva/Leningrad, 1947, 330. zarg, No. 1, 29. zarg, No. 3, 30; prp iv, 580–581. Also included in somewhat different words, in the Stoglav, Ch. 98. zarg, No. 5, 31–33; included in the Composite Code in Ch. 13 as arts. 119–122, 125.

Civil Law: Ownership and Obligations

909

to be returned. There are, however, indications that the decree was enforced during the first few years, but that its effectiveness was much reduced in later years.39 In the course of the following years there were several amendments and additions to the main lines as set out by the decree of 1 May 1551, such as the decree of 15 August 1557, which spelled out in more detail how and when ancestral estates which had been sold or bequeathed to monasteries could be redeemed by the relatives of the former owner.40 The decisive turnaround was the council decree (sobornyi prigovor) of 15 January 1580.41 The importance of the decree was reflected by its solemn form as a council decree, taken by the tsar and his boyars together with the church leadership. It was confirmed by another council decree in 1584, which additionally put an end to the fiscal privileges of the clergy.42 The political background to these decrees was that a significant part of the ancestral lands belonging to boyar families had been ceded to monasteries during the years of the oprichnina of Ivan iv which had hit the boyar class particularly hard. At the same time, the government was eager to get its hands on landed property to satisfy the needs of its servitors, especially the lower noble class. The decree categorically prohibited the acquisition of land by the monasteries in the future, but on the other hand, as a concession to the monasteries, guaranteed the status quo regarding property relations; the monasteries were allowed to keep what they had acquired in the past.43 If the owner of ancestral land sold his estate to a monastery, his family was entitled to buy it back. If there were no family members entitled to redeem the property or if they were unable to put up the money, the tsar was supposed to buy the estate. This procedure invalidated the intended effect of the decree in practice, because during the following decades of the Time of Troubles, neither boyars nor the tsar himself were usually in a position to find the necessary funds. The ensuing situation was legalized by a decree of 27 August 1622 which ruled that votchiny acquired by monasteries after the decree of 1580 would remain forever with the monasteries if no request for redemption had been filed in the meantime.44 This favourable treatment of monasteries lasted while the father of tsar 39 40 41

42 43 44

zarg, Kommentarii, 19. zarg, No. 22, 444–45; prp iv, 524. zarg, No. 40, 57–59; comments by A.I. Kopanev in the accompanying volume, N.E. Nosov, A.I. Kopanev (eds.), zarg, Kommentarii, Leningrad, 1987, 60–62. The decree was also included in the Composite Code in Ch. 13 as art. 164. zarg, No. 43, 61–63. zarg, Kommentarii, 60–62. zarg, No. 122, 114–115; prp v, 439–441.

910

chapter 36

Mikhail Fedorovich, the domineering patriarch Filaret (†1633), was alive. After his demise it was abolished and Ch. 17 (on votchiny) art. 42 of the Ulozhenie related at length its own legislative history, concluding with a repeated prohibition on the acquisition of votchiny by monasteries and avoiding the loopholes left by the decree of 1580. The sale, mortgaging, gift or bequest of a votchina, whether truly ancestral, granted for service, or bought, to a monastery would result in the confiscation of the estate without compensation; the tsar would then grant it to somebody else. This provision is also the most important one on monastic landowning in the Ulozhenie, which otherwise had little to say on this subject. The patriarch, as a landowner, had occupied a special position since tsar Mikhail had granted his father, the patriarch Filaret, a separate eparchy as a patriarchal province by a decree of 20 May 1625. The grant encompassed full judicial immunity; in other words, the lands involved and the clergy and dependent population living on it were in all things (barring homicide and robbery) subject to the patriarch’s own jurisdiction. The patriarchal province constituted a state within the state and had its own government departments (prikazy) and administration. Many of its privileges were withdrawn by the Ulozhenie of 1649 after Filaret’s death.45 The sources indicate that land acquired by monasteries retained its original character of votchina or pomest’e. Monasteries themselves would occasionally grant land belonging to them as pomest’ia or votchiny to private individuals, although church rules forbad the change of ownership of real property owned by the Church. Peasant Landowning The step-by-step abolition of the right of the dependent peasant to leave his master’s service (the abolition of the autumnal Iur’ev den’, St. George’s Day), as explained in the section on “The peasant population in later centuries” in Chapter 18, tied the bulk of the peasant population to the place where they lived and worked for a landowner. To that extent, there could be no talk of peasant landowning in Muscovy. 45

The special patriarchal province is mentioned by G.V. Vernadskii, Istoriia Rossii; Moskovskoe gosudarstvo, Ch. 1, Tver’/Moskva, 1997, 283–284, and by the same author in P.A. Sorokin, N.P. Poltoratskii (eds.), Na temy russkie i obshchie. Sbornik statei i materialov v chest’ Prof. N.S. Timasheva, New York, 1965, 79–94, at 84. A.G. Man’kov mentioned the matter in passing in A.G. Man’kov (ed.), Sobornoe Ulozhenie 1649 goda. Tekst. Kommentarii, Leningrad, 1987, 241. The province comprised numerous monasteries (such as the TroitseSergiev and the Novodevichii) and more than 40 towns and districts (uezdy).

Civil Law: Ownership and Obligations

911

The dependent peasant, on the other hand, had usually been assigned an allotment which he worked with his family; from the proceeds he had to pay an annual rent (obrok) to his master, or he had to work for a certain amount of time for him (barshchina), but otherwise his position was not very different from that of the svoezemets, the peasant who worked his own land independently. As a numerically insignificant section of the peasant population, the svoezemtsy have left hardly a trace in the legislation.46 The main features of the position of the dependent peasant, as expressed in the Ulozhenie, were (a) the fact that he was tied to his allotment; he could not leave it or exchange it for another of his own free will; (b) the unity of the peasant family, of which the pater familias was merely the representative; and (c) the exclusivity of the peasant’s enjoyment of his allotment; it was to some extent his own. The Ulozhenie referred to the allotment as the peasant’s zherebei (his lot, his share; e.g. Ch. 11 art. 1). In the central area of Muscovy, most of the peasant population found itself in a state of dependence on a master, the feudal landowner, as he used to be called by Soviet historians. That is to say, they worked on the votchiny of boyars and other landowners, on the service estates of those who had been granted such lands, on monastery and other church lands, or on the tsar’s private estates, the palace lands (dvortsovye zemli). A smaller number lived and worked on so-called ‘black lands’ (chernye zemli; see above, and more extensively on this topic: the section on “The peasant population in later centuries” in Chapter 18, on Rural Russia). In the northern half of Muscovy ‘black peasants’ constituted a far more significant part of the population. The tsar would unquestionably be recognized as the supreme owner of such lands, but the ownership relationships concerning black lands were considerably more favourable to the resident peasants. The written law is almost silent on this subject, but there is a wealth of other documentary evidence in the form of various kinds of charters, indicating the fairly extensive rights enjoyed by black peasants in respect of land. A great deal of work was done during the Soviet era in elucidating the status of black peasants.47 In line with the Marxist approach, which subscribed to a particular 46

47

S.B. Veselovskii is one of the few authors who examined the question of landowning by svoezemtsy, in Feodal’noe zemlevladenie v Severo-Vostochnoi Rusi, Moskva/Leningrad, 1947, 203–216. See in particular: N.N. Pokrovskii, Aktovye istochniki po istorii chernososhnogo zemlevladeniia v Rossii xiv – nachala xvi v., Novosibirsk, 1973; and also, A.I. Kopanev, “Zakonodatel’stvo o chernom krest’ianskom zemlevladenii xvi–xvii vv.”, V.A. Ezhov (ed.), Iz istorii feodal’noi Rossii. Stat’i i ocherki k 70-letiiu so dnia rozhdeniia prof. V.V. Mavrodina,

912

chapter 36

version of a rigidly Romanist ownership concept, the work of Soviet historians appeared to be centred on the question whether or not the Muscovy peasant, and especially the peasant living on black lands, was the owner of the land worked by him. Three main positions can be distinguished. One was that land could only be owned by the state or by feudal lords, which could be accompanied by collective peasant possession of the same land. Another group of scholars held that a form of free peasant ownership existed on black lands. According to a third and intermediate view, the situation of black lands should be conceived as a form of two-level ownership, by the tsar and by the peasant community.48 In his review of the legislative position of black peasants A.I. Kopanev pointed to art. 63 of the 1497 Code of Ivan iii, which regulated the statute of limitations in litigation about land. The provision mentioned actions between various kinds of landowners, such as boyars, monasteries, pomeshchiki, etc. It also mentioned black peasants and sel’skie krest’iane (apparently independent peasants who owned their land). This indicated, in Kopanev’s view, that black peasants were regarded as the owners of their land.49 The provision returned in amplified form in the Code of 1550 (art. 84). In the Code of 1589, which was probably drafted with a particular view towards the situation in Northern Russia (where black lands were still common at the time), the ideas underlying the 1550 Code were worked out in greater detail in arts. 163–167; the following provisions of the 1589 Code made clear that ownership itself of black lands occurred in two forms: common ownership of the village community and personal ownership of the black peasant.50 Other publications by Kopanev produced data on a huge number (more than 1.800) of charters documenting transactions concerning land conducted by black peasants in the course of the 16th century.51 Most of these transactions involved the sale of land. Leningrad, 1978, 125–132; A.D. Gorskii, “K voprosu o sushchnosti chernogo zemlevladeniia na Rusi v xiv–xv vv.”, A.M. Sakharov (ed.), Problemy razvitiia feodal’noi sobstvennosti na zemliu, Moskva, 1979, 25–54. 48 See, for instance, N.A. Gorskaia, “Obshchinnyi sobstvennik v russkoi derevne xvi–xvii vv.”, N.A. Gorskaia, E.N. Shveikovskaia (eds.), Predstavleniia o sobstvennosti v rossiiskom obshchestve xv–xviii vv. Problemy sobstvennosti v obshchestvennom soznanii i pravovoi mysli feodal’noi epokhi, Moskva, 1998, 39–50. 49 Kopanev, op. cit., 127–128. This aspect has been neglected by almost all commentators of the Code, who directed all their attention to the procedural aspect of the statute of limitation. 50 Ibidem, 130. 51 A.I. Kopanev, Krest’ianstvo Russkogo Severa xvi v., Leningrad, 1978, 12–18. Hundreds of such documents are to be found in the published archival funds of the Solovetskii

Civil Law: Ownership and Obligations

913

Kopanev’s views on ownership of land by black peasants were sharply criticized by some of his Moscow colleagues, in particular by A.D Gorskii who ­devoted a long paper to the refutation of Kopanev’s ownership thesis.52 ­According to Gorskii, Kopanev had neglected the ownership definition of Venediktov (the leading civil law scholar of the Stalin era), as well as Lenin’s pontifications in this field. A more realistic approach started to prevail in later years. In a collective study on ownership perceptions in Russian society from the 15th to the 18th centuries, E.N. Shveikovskaia drew attention to the debate preceding the adoption of the Code of 1550, in particular to the questions addressed by Ivan iv to the Church Council preparing the Stoglav (see Chapter 25).53 In the twelfth question the tsar announced his plan to have all land described and measured, summing it up: “the land of myself, the tsar and grand prince, of the metropolitan, the bishops, the monasteries, and the church [lands], [the land] of princes and boyars, ancestral and service lands, land of black peasants and of obrok [paying peasants], new clearings and wild lands, empty villages, and all kinds of zemetskie [privately owned] lands, no matter whose they are”.54 The list suggested but did not prove that black peasants were considered the owners of their land. The same idea is also encountered in several earlier guba charters, such as those of Belozersk (1539), Kargopol’ (1539), and Medyn’ (1555) (see Chapter 33), where the opening provision related the entire social hierarchy of persons to whom the charter was directed, and where the black peasants were named last in the line of landowners, to be followed by all kinds of professional specialists (dog-keepers, huntsmen, fowlers, bee-keepers, fishermen, etc.). The clearest official recognition of the right of black peasants (and also posadskie liudi) to buy and sell and mortgage their land was a decree of 12 May 1624 which allowed such transactions, with the reservation that land could

52 53

54

­ onastery, the largest landowner in Northern Russia: A.I. Kopanev, N.E. Nosov (eds.), m Akty Solovetskogo monastyria 1479–1571 gg., Leningrad, 1988, and A.I. Kopanev, N.E. Nosov (eds.), Akty Solovetskogo monastyria 1572–1584 gg., Leningrad, 1990. The 1979 paper quoted above. E.N. Shveikovskaia, “Krest’ianskoe zemel’noe vladenie kak ob’ekt pravosoznaniia v seredine xvi–xvii vv. (zakonodatel’stvo i real’nost’)”, N.A. Gorskaia, E.N. Shveikovskaia (eds.), Predstavleniia o sobstvennosti v rossiiskom obshchestve xv–xviii vv. Problemy sobstvennosti v obshchestvennom soznanii i pravovoi mysli feodal’noi epokhi, Moskva, 1998, 51–86. Text in prp iv, 576–580. The relationship between these questions to the Church Council, transmitted through a ms. from the Volokolamsk monastery, and other pronouncements made by Ivan iv at the same session in February 1549 and transmitted by other sources is not quite clear.

914

chapter 36

only be sold to tax-paying (tiaglye) buyers and not to monasteries.55 The decree was addressed to the entire population of the North-Russian district (uezd) of Ustiug and invalidated a decree of a few years before which had forbidden all transactions concerning land by black peasants.56 If one disregards the conceptual battles and inspects the evidence, the rich archival materials, especially from the cadastral registers (pistsovye knigi), yield a detailed picture of the way black peasants were involved in determining the legal fate of their lands. They unquestionably did regularly sell, mortgage, exchange, donate or bequeath their lands, like other landowners. There were, no doubt, various restrictions on these transactions, but the same could be said about the owners of votchiny or pomest’ia. Whether black peasants were to be regarded as landowners is therefore merely a question of definition. They certainly behaved like owners in many ways. Slaves as landowners seems to be a far-fetched idea, but Veselovskii devoted an entire chapter to this topic. He pointed out that from the 15th century onwards, emancipation of slaves by last will was a very common occurrence, a fact that contributed to the gradual merging of the classes of slaves and serfs. And also, before slaves were actually emancipated, whether during their master’s lifetime or by will, they often were already in charge of plots of land ­assigned to them, where they behaved as de facto owners, more or less like ordinary peasants.57 The ultimately futile debate about peasant ownership or possession of land in Muscovy has overshadowed a related and more significant question, already referred to in passing above: the relationship between individual (or rather family) peasant landownership and the corporate rights of the peasant community. A more recent study by N.A. Gorskaia has shed more light on this question.58 In Gorskaia’s perception, the rights of the individual peasant (family), whether conceived as ownership or mere possession, were embedded in the rights of his rural community (obshchina, and also volost’). In Central Muscovy, where black peasants had almost disappeared and peasants were attached to the (palace) estates of the grand prince, or to ancestral or service 55 56 57 58

zarg, No. 134, 119–120. Cf. zarg, Kommentarii to No. 134, 151. S.B. Veselovskii, Feodal’noe zemlevladenie v Severo-Vostochnoi Rusi, Moskva/Leningrad, 1947, 217–230. N.A. Gorskaia, “Obshchinnyi sobstvennik v russkoi derevne xvi–xviii vv.”, N.A. Gorskaia, E.N. Shveikovskaia (eds.), Predstavleniia o sobstvennosti v rossiiskom obshchestve xv–xviii vv. Problemy sobstvennosti v obshchestvennom soznanii i pravovoi mysli feodal’noi epokhi, Moskva, 1998, 39–50.

Civil Law: Ownership and Obligations

915

estates of secular or ecclesiastical landowners, the vitality of the obshchina was boosted by its indispensable role in the management of agricultural production, and particularly in the distribution of land among the peasant families. Additionally, in Northern Russia, many of the powers exercized by landowners in Central Russia, black peasants exercized themselves through their elected elders. But in both cases the practical possession of the land was first of all the responsibility of the obshchina, which would assign plots to peasant families, depending on the number of working members, the availability and quality of the land, and other factors. Within this system, the individual peasant families enjoyed considerable freedom in engaging in transactions concerning the land allotted to them, provided the overall economic and fiscal interests of the obshchina were guaranteed. In this way, the obshchina also served as a protective umbrella for its members, while its managerial function was required to maintain the economic and fiscal vitality of the landowner’s estate. Gorskaia emphasized that this peculiarly Russian system was dictated mainly by natural conditions, viz. the often poor quality of the soil and the short growing season. The result of this was an almost permanent shortage of labour during the productive season and the need for an efficient and flexible assignment of land and labour. This then was the background for an unstable and permanently developing concept of land ownership.59 The Peasant Community as a Legal Actor What has been said above indicates that the peasant community possessed certain characteristics usually ascribed to a corporate legal entity, a legal person. One could describe it in modern terms as a co-operative. There were no explicit legal rules regulating its operation and the applicable customary law can only be reconstructed by a detailed analysis of documentary material. The fluidity of the borders between private and public law, which has been pointed out repeatedly before, also demonstrates itself in this case, because the village community represented not only a non-voluntary co-operative of its members, but also the lowest chain in the system of local government. This was quite obvious in the “black lands”, where local government at the lowest level was in the hands of the local community; but also in regions where the peasants were dependent on a private landowner (monasterial or secular), the 59

Gorskaia quotes from a study by L.V. Danilova (not available to me): “… not only the actual ownership relationships, but also the concept of private ownership of land itself did not suddenly appear, but went through a process of establishment and development in accordance with the formation of estates [sosloviia], classes and the state.” L.V. Danilova, Sel’skaia obshchina v srednevekovoi Rusi, Moskva, 1994, 103.

916

chapter 36

local peasant community usually had a share in local government, depending on local conditions. The community expressed itself through its general assembly (mirskoi skhod); it was involved in the distribution of the tax burden among its members; it bore collective liability (krugovaia poruka) in certain cases (see Chapter 22, on Courts); and it exercized simple judicial duties in respect of its members.60 Obligations While, as we have seen above, property law constituted a prominent topic in the law of Muscovy, at least as far as land ownership was concerned, it had little to say about other aspects of ownership. A similar situation existed in the law of obligations, the law regulating general principles of obligations, and obligations based on contract or on a non-contractual cause, such as delict.61 The various codes were obviously aware of the existence of the concepts of different basic contracts, such as purchase and sale, loan, pledge, etc., but one would look in vain for coherent treatment of the subject of obligations, or even only some of its major aspects, the way land ownership was discussed in great detail in the Ulozhenie of 1649. Most commentators on the law of Muscovy have dealt with this problem by just disregarding it. Sergeevich is a good example. In his chapter on civil law he offered long sections on family law, the law of things (veshchnoe pravo), and the law of succession, but not a word on what modern lawyers would regard as the heart of civil law: obligations.62 The main exception in this respect is Vladimirskii-Budanov, who devoted twenty pages to the law of obligations in his textbook.63 This was an extraordinary feat, considering there was almost nothing to go on, and it is worth having a brief look at his modus operandi, because it was typical of a particular way of looking at legal history, a way that is still very much alive at present. Vladimirskii-Budanov’s approach was based on a set of ideas, some of them outspoken, while others were implied only. The idea of linear progress ­pervaded 60

See esp. L.S. Prokof’eva, Krest’ianskaia obshchina v Rossii vo vtoroi polovine xviii – pervoi polovine xix v. (na materialakh votchin Sheremet’evykh), Leningrad, 1981, 127–163. 61 Obligations ex lege, such as fiscal obligations, are sometimes included as well by Russian authors; obligations based on torts (delicts), however, are also based on the law, so there is no need for a three-partite division. Cf. Iu.N. Anuchina, in PRoP iii/3, 238. 62 Sergeevich, Lektsii, 454–579 (civil law). 63 Vlad.-Bud., Obzor, 561–580.

Civil Law: Ownership and Obligations

917

his thinking about law; law got better and more sophisticated as time went on. In his introductory observations he remarked: “The Muscovy era made a step forward in getting closer to a true understanding of obligations.” This quotation also pointed to another basic idea: that there existed “true” (istinnye) legal concepts; legal history then was the story of the quest for these true concepts. Once they had been discovered (and the Romans had already discovered most of them) and revealed, legal history entered a new phase; when lawyers had a correct understanding of the law, they could develop it further on the basis of such an understanding. Vladimirskii-Budanov did not describe and analyze the law of obligations of Muscovy as he found it – there was not much to find – but superimposed his conceptual framework concerning the structure of the law of obligations on the law of Muscovy and particularly on what could be found in the Code of 1550, the Ulozhenie of 1649, and also the Pskov Court Charter. This framework actually represented the dominant view of academic lawyers in late ­19th-century Russia, but in the eyes of Vladimirskii-Budanov and many of his colleagues it was also “true” and, in a sense, eternal. He started his exposition by considering general principles, in line with the pandectist tradition of Russian civil lawyers. Who were the persons involved in obligations? What about the status of third parties? How did obligations arise? What did the law have to say about the performance of contracts (the most important source of obligations)? How did obligations end? In scattered provisions of the legislation examined by him, he would find that the Russian legislator was aware of certain aspects of the ‘true’ nature of the law of obligations, but still ignorant of other aspects. The second part of his chapter was devoted to the contract system of Muscovy and the preceding era, as far back as the Russkaia Pravda. The texts of the laws, as well as an abundance of other documents, such as charters, demonstrated without a shadow of doubt that contracts resembling barter (exchange), sale, gift, loan, deposit, bail, employment, and hire were known. The implicit presumption of Vladimirskii-Budanov was that the casual mention of such contracts having been concluded was a manifestation of the existence of an underlying legal system regulating contracts. As such a regulatory system could not be found in the available written legislation, it was supposed to consist of customary law. There certainly are numerous instances of customary law co-existing with or preceding statute law emanating from an authoritative legislator. And undoubtedly customary law accompanied frequently occurring transactions, such as the sale of land or of merchandise, during the Muscovy era. But several caveats should be expressed. First of all, there is little point in introducing

918

chapter 36

c­ ustomary law into the debate when we have no way of knowing what it looked like or whether it even existed. Reference to customary law in such cases is a testimonium paupertatis. Secondly, custom becomes customary law when it is generally accepted that it ought to be followed and when courts are then ready to enforce it. Some of such customary law, particularly concerning the contract of sale, found its way into statute law, where the Ulozhenie laid down certain requirements for the validity of specific contracts. Another point of criticism of the perspective adopted by VladimirskiiBudanov is that a modern, Roman law-based categorization of different contracts is less relevant in the setting of late medieval Russia, as will be shown in more detail below. Vladimirskii-Budanov’s approach was recently revived in the chapter on the law of obligations in the PRoP volume dealing with the Ulozhenie of 1649.64 The undeniable merit of this chapter was that it brought together the most important Ulozhenie provisions referring to various contracts. As already pointed out in Chapter 9 (on the Ulozhenie), much of its content was based on the very considerable volume of legislation of the preceding century, the long reign of Ivan iv, the subsequent Time of Troubles, and the reign of the first two Romanov tsars, Mikhail and Aleksei. There is no need therefore to deal separately with the more important statutes of this period, because the most relevant of them found their way into the Ulozhenie. Contracts As may be clear from the text above, the discussion of the law of obligations is inclined to be concerned mostly with contracts. 19th-century and also modern jurisprudence tends to start the treatment of contract law with a review of certain general considerations, such as conclusion, form, performance and termination of contracts, the effect of mistake and error, or of compulsion or fraud, etc. In her section on public law regulation of transactions and contracts, Anuchina pointed to a number of provisions in the Ulozhenie which suggested that the drafters were aware of such considerations.65 This was a far more cautious approach than Vladimirskii-Budanov’s construction of a coherent “general part” of Muscovy’s law of contract, on the basis of occasional and disparate provisions, with the gaps filled in by some hypothetical customary law. 64

PRoP iii/3, 238–261, by Iu.N. Anuchina; although the chapter was entitled “The law of obligations and contracts in the Council Code”, it consisted of a long section on types of obligations and a shorter one on public law regulation of transactions and contracts. 65 Anuchina, op. cit., 258–261.

Civil Law: Ownership and Obligations

919

The only question to which the Ulozhenie proposed a more or less comprehensive solution concerned the form of contracts. Art. 245 of Ch. 10 and the following provisions, taken together, prescribe the written form for almost all contracts of considerable value (v bol’shikh delekh, art. 250). This comprehensive solution was arrived at more or less by chance; the drafting method of the Ulozhenie was predominantly associative. The provisions preceding art. 245 were about legal actions concerning ancestral estates. Art. 245 also mentioned such estates, as well as loans, and the documents required in such cases. The following provisions (arts. 246–261) were all about loans and the way the necessary documents were to be prepared, until the focus of the drafter shifted away from loans to debts. Sometimes the requirement was merely that the contract had to be in writing, but often witnesses were necessary and the involvement of officials, especially the ploshchadnye pod’iachie, the town square scribes. The predilection for written contracts, particularly those concerning real property, reflected primarily the state’s interest in maintaining control of economic operations and had been expressed in previous legislation. A decree of 7 June 1635 (or earlier) already contained an instruction to the courts not to allow legal actions, unsupported by documents, concerning all kinds of loan debts.66 Among contracts, the ones directed towards the transfer of ownership were the most prominent: gift (gratuitous transfer), sale (transfer for money), barter (transfer in exchange for ownership of something else). Under the socioeconomic conditions prevailing in Muscovy, the legislator’s attention was directed primarily towards the regulation of contracts concerning real property. The transfer of ownership of chattels (movable property) would in almost all cases be effected by the actual transfer of the property concerned, which did not require detailed regulation. In the case of real property, the law of Muscovy reflected its paramount importance for the government. As explained above, the position of the lower nobility, the mainstay of the regime, was defined by its dependence on service estates granted by the tsar. The position of the higher nobility, princes, boyars and other high-ranking aristocrats, depended primarily on their ancestral (inherited) estates, but in most cases they had also been endowed with service estates. The Ulozhenie therefore paid a lot of attention to service and hereditary estates, especially in its Chapters 16 and 17. Most provisions in these chapters were actually concerned with transactions concerning estates. Although the Ulozhenie did not offer specific regulations on contracts of sale, gift or ­exchange of real property, numerous relevant rules were included in these two chapters. 66

zarg, No. 226, 166–168; also in prp v, 221–223.

920

chapter 36

The dominant feature in most of these rules was what one would nowadays view as their public law aspect. The different contracts concerning the ownership status of service and ancestral estates were made subject to all kinds of conditions and reservations, most of which were intended to implement and protect the government’s policies. Foremost among these was the maintenance and expansion of a reservoir of service estates, adequate to support a vigorous class of landowners (pomeshchiki), constituting the backbone of the country’s military might. Other policies would flow from this general one, such as the concern for the well-being of the landowner’s family or the persistent but not always successful policy of restricting monasterial landowning. Many of such questions have already been reviewed in the sub-sections on service and hereditary estates (in the section on ownership in this chapter). In modern Western legal systems the idea (or fiction) of freedom of contract is dominant and this freedom is usually restricted only by serious considerations of public order and welfare and by urgent concerns for protecting the weakest. In Muscovy, freedom of contract, at least with regard to most types of real property, was severely limited, to the extent that at least initially only certain transactions concerning certain types of land were allowed. The emphasis was therefore on the law of property, not on the law of obligations. The system could be enforced by a rigorous registration procedure, entrusted to the Service Estates Department (Pomestnyi prikaz). During the latter half of the 17th century, the strictness of Muscovy’s real property law was relaxed; owners of service estates acquired a legal status which did not differ much from that of the owners of ancestral estates, the limited contractual freedom with regard to landed property was gradually expanded. Along with the basic contracts affecting transfer of ownership (exchange, gift, sale), the Ulozhenie mentioned many others, again without providing definitions or detailed regulation. Mortgaging real property (zaklad) was often mentioned in the same breath as sale, with similar prohibitions applying. Zaklad could also be used with regard to movable property, in the sense of pledge. It would then usually, but not necessarily, accompany a loan (zaem). The loan contract happened to be extensively regulated in Ch. 10 of the Ulozhenie (devoted to court procedure). In a long and rather rambling sequence of descriptions of all kinds of legal actions, art. 245 (already mentioned above) dealt with the case of a loan debtor dying while an action about his debt was going on. This prompted the drafters to review various situations occurring in cases of loans. The list continued in a haphazard fashion until art. 259. In accordance with the strong preference of the Ulozhenie for the written form, loans of money or other things had to be expressed in writing, a zaemnaia

Civil Law: Ownership and Obligations

921

kabala (art. 246). The following provisions (arts. 247–250) gave more details on the procedure to be followed. Art. 255 contained a sweeping prohibition on charging interest on money loans. In Kievan Russia, such a prohibition had applied only to clergymen (see the section on Commercial law in the Expanded Pravda, in Chapter 15, on Towns). The loan kabala is to be distinguished from the service (sluzhilaia) kabala, a loan contract by which the debtor became the slave of the creditor until he had paid back the principal and the interest. This contract (termed “limited service slavery contract” in Hellie’s translation) was also regulated in fairly detailed fashion in the Ulozhenie in its Ch. 20. Such contracts were registered in the Slavery Department (Kholop’ii prikaz). The contract of hire was mentioned sporadically in the Ulozhenie, with regard to the hire of movable property (such as a horse; see Ch. 10, art. 274), or of labour (such as that of a guard; see Ch. 10, art. 275), or of land (tenancy, in other words; e.g. Ch. 16, arts. 43 and 45, concerning service lands granted to Tatar and other baptized Turkic landowners). The most significant provision was Ch. 11, art. 32 (in the Chapter on Peasants) which laid down that peasants and bobyli (landless peasants) could hire themselves out as labourers, with or without a written contract. Their employers were directed not to issue documents (such as sluzhilye kabaly) which would impinge on the free status of such labourers; when the agreed upon labour had been completed the workers were to be released without any restraint. The contract of poklazha (storage, safekeeping, deposit), known already in the Russkaia Pravda (Expanded Pravda, art. 49), was mentioned in passing in various places in the Ulozhenie (e.g. Ch. 18, arts. 39 and 47), without any further details. Ch. 10, arts. 189–192 are an exception. They were devoted to the special situation of military personnel (sluzhilye liudi), stationed in provincial towns, who had left their equipment and other property with local inhabitants while away on duty. The obligatory written form of the contract did not apply to them. The following provisions also dealt with relationships concerning property temporarily and voluntarily in the possession of somebody who was not the owner. Art. 193 simply mentioned the possibility of suing artisans for the property handed over to them to work on. Arts. 194–197 were mainly devoted to pledge (zaklad). Art. 194 directed that if property handed over as a pledge or left in storage was stolen or perished in a fire, while other property (of the person who was in possession) remained intact, the owner was granted a trial. If other property had also perished or had been stolen, the person who had been in possession of the goods had to declare the matter to his neighbours and report it to the authorities. Art. 195 concerned only safekeeping; if the goods

922

chapter 36

left in safekeeping had been sealed and locked and the keeper subsequently opened and inspected the goods, the owner was entitled to restitution of the value of the goods that were missing. Arts. 196–197 provided more detailed regulation on the contract of pledge. The pawn note (zakladnaia kabala) could contain a stipulation that failure to redeem the pawned item on the agreed date would transform the pawn note into a deed of sale (kupchaia). Art. 196 was silent on the question of what happened to the original debt. It stands to reason that it would be extinguished, once the pawn had become the property of the creditor. If a horse or another animal, given as a pawn, perished, the creditor received half the debt due to him, provided he could not be blamed for the animal’s death (art. 197). One of the most frequently mentioned institutions in the Ulozhenie is poruka, where money or other valuables were put up to guarantee that a person would honour an obligation (to appear in court, to perform a contract, to refrain from some action, etc.). It embraced the contract of bail, where a third person guaranteed the creditor that the latter’s debtor would fulfil his obligation (this is called poruchitel’stvo in modern Russian law, see art. 361 of the Civil Code of the Russian Federation).67 In the Ulozhenie the identity of the poruchitel’ (the person putting up the bond) is not defined, and in most cases it appeared to be the debtor himself. In the few cases where the poruchitel’ was obviously a third person, poruka appeared as a separate contract, comparable to modern poruchitel’stvo (e.g. Ch. 21, art. 92). The written form was explicitly required in most cases of poruka (poruka s zapis’mi). Another contract which, like bailment, accompanied a primary contract or at least obligation, was the settlement (mirovaia), a transaction by which latent or existing disputes about obligations were dissolved and replaced by a new agreement. Muscovy law always had reservations about such settlements because they tended to deny court fees to the state.68 One particular type of settlement with an interesting legislative history received considerable attention in the law of Muscovy: the settlement between a thief and the person from whom he had stolen. Such a settlement had already been forbidden by art. 6 of the Dvina Land Charter (1397–1398). This prohibition was taken over in the Belozero Statutory Charter of 1488 (art. 13). In the voluminous legislation on robbery during the first decade of the reign of Ivan iv, the emphasis was rather on the compulsory character of the procedures for dealing with thieves 67

In the English translation of the Russian Civil Code by P.B. Maggs poruchitel’stvo is called “suretyship”. Other current translations are “guaranty” and “bail”. 68 See e.g. art. 9 of the Belozero Statutory Charter, arts. 4 and 5 of the Code of 1497, and arts. 9 and 10 of the Code of 1550.

Civil Law: Ownership and Obligations

923

and robbers; this would generally imply the impossibility of making private deal with them. But a decree of 1646 still explicitly prohibited settlements with robbers without the involvement of the court.69 Art. 31 of Ch. 21 of the Ulozhenie declared private settlements with robbers null and void and ordered those ­engaging in such transactions to be fined. The above survey of the principal contracts treated in the Ulozhenie and other major legislative sources corroborates the criticism made before of the approach of Vladimirskii-Budanov and other authors. It is unrealistic to impose one’s own system of categorizing contracts in a significantly different historical setting. Contracts of the Muscovy era are to an outside observer often like the aurora borealis, changing shape while we look on. The sluzhilaia k­ abala, ponderously, but not without reason, translated by Hellie as “limited service slavery contract”, is a good example. It can be perceived as a sale (selling oneself into slavery), as a contract of employment, as a pledge accompanying a loan, etc. Pledge itself, as we have seen above, could be transformed into a sale. The absence of an absolute and unequivocal ownership concept also made it more difficult in many cases to construct sharp distinctions between contracts. Non-contractual Obligations Modern civil law systems having their roots in Roman law know a variety of obligations where the cause is not a contract. Delicts (unlawful acts causing damage) constitute the most significant category by far. The most frequently encountered other non-contractual obligations are unjustified enrichment and the related condictio indebiti (payment of a non-existent debt, or to somebody who is not the creditor), unauthorized actions in the interest of a third person (negotiorum gestio), and the public announcement of a reward or of a competition. Quite apart from the obligations that could arise on the basis of one of these events are the multifarious obligations imposed on private persons directly by public law, such as fiscal obligations. It is entirely possible to search for similar obligations (both private and public law obligations) in the law of Muscovy and even to find a few. But, as already argued in the beginning of this section, the exercise would be largely irrelevant because the conceptual and doctrinal structure which supports modern categorization did not exist in Muscovy. Public and private law were inextricably intertwined; the borderlines between criminal and civil law were fluid. These conditions were perfectly illustrated by the contents of the major codes of 1497 69

Decree of 9 June 1646, zarg, No. 312, 215.

924

chapter 36

and 1550 and especially by the most elaborate and comprehensive one of 1649 (the Ulozhenie). The organization of the last into 25 chapters was ­undoubtedly a great improvement, but its main chapters were not individually devoted to certain branches of law, as would be done in a modern law code, but to themes: service and ancestral estates, the urban population, court cases in general, court cases concerning peasants, court cases concerning slaves. All sorts of questions, concerning criminal, civil, procedural, administrative, etc., law, could then come up in the individual chapters. Delicts (Torts) Unlawful acts causing damage (delicts or torts) constitute one of the core topics of modern civil law. Although criminal offences are by definition unlawful and often cause harm or damage to private parties, they differ from delicts by being explicitly designated as criminal acts by the law. This characteristic is often summarized by the so-called nulla poena principle: “No crime obtains, no [criminal] penalty can be imposed, without a previous criminal statute” (Nullum crimen, nulla poena, sine praevia lege poenali); see also Chapter 34, on Criminal Law. The present form of this principle emerged only gradually and, at any rate, was unknown in Russia during the Muscovy era. Then, inevitably, the borderline between criminal acts and torts was blurred. If we nevertheless want to make the distinction, we could reasonably regard an act which was prosecuted and punished by public authority as a criminal offence. Acts which did not elicit a punitive reaction by a public authority, but which caused harm to private parties, could be assigned to the category of delicts, assuming of course that the injured party could claim some sort of unlawful or improper behaviour by the party which had caused harm. One of the key concepts in the border area between delicts and criminal offences was bezchestie (dishonour). One of its earliest appearances was in art. 2 of the Dvina Land Charter, where it referred to insulting a boyar or causing him bodily harm. It returned in more elaborate form in art. 26 of the Code of 1550, where it again referred to insults and the infliction of bodily harm, but the scope of the provision was widened; it covered middle ranking officials (deti boiarskie) and a variety of persons of lower rank, down to peasants. In all cases bezchestie implied not only the dishonour itself but also the fixed compensation to which the dishonoured person was entitled. In the Ulozhenie, bezchestie appeared in many chapters, but most abundantly in Ch. 10 (the judicial process). Arts. 27–99 of that chapter constituted a vast expansion of art. 26 of the 1550 Code. The last sentence of art. 26 was in fact the beginning of this entire section of the chapter; it stated (in Hellie’s translation): “If someone injures the honor of someone in some way, compile

Civil Law: Ownership and Obligations

925

a decree for the dishonor [as follows]:”.70 It is worth noting that these introductory words implied a wide concept of dishonour, not just verbal insults. In the following provisions, however, dishonour, with only a few exceptions, was regarded as a verbal attack on somebody’s honour or status (many provisions contained the word slovom – “by word”). The length of the section was due mostly to the extreme detail provided in dealing with church dignitaries whose honour had been affected. After the patriarch, the metropolitans, archbishops and bishops, who were mentioned collectively, the abbots (archimandrites and hegumens) of 49 monasteries were listed one by one, and then all sorts of lower ecclesiastical functionaries followed, ending with provincial priests and priests without posts (art. 89). Most of the remaining provisions dealt with dishonouring lay persons, starting with boyars and okol’nichie, down to peasants and slaves. The provisions of this section set fixed amounts to be paid as dishonour compensation, ranging from 400 rubles for insulting a metropolitan, to one ruble for the lowest ranks. The compensation went to the person affected by the insult and was not a fine to be paid to the state. The monetary compensation for offending church dignitaries and other monks was to be paid only by the highest level of officials, those of Duma rank (boyars, okol’nichie, and other Duma members); lower officials, from striapchie down, were imprisoned after having been whipped. The compensation system for insulting secular priests (down from archpriests – protopopy) apparently applied to all offenders, irrespective of their social status. The compensation system for insulting lay persons was similar, but much simpler (arts. 90–99). A notable aspect of it was that dishonouring somebody’s wife or unmarried daughter entailed much higher compensation (art. 99). With regard to peasants, slaves, and persons of low status generally, the text of art. 94 suggests that verbal insults were irrelevant; bezchestie of such persons consisted in assaulting, maiming and injuring them physically in any way. In many other chapters of the Ulozhenie, bezchestie in the sense of dishonour compensation was mentioned, referring to all kinds of improper behaviour where apparently a criminal penalty was not required and compensation to the person dishonoured was considered adequate. Some of the cases covered were disturbance of the peace at the court of the tsar (Ch. 3, arts. 2 and 5), the same, committed by a service man in a military camp (Ch. 7, art. 32), non-observance of an arbitration decision in a civil case (Ch. 15, art. 5), and others. In other cases the dishonour compensation to the victim was added to  the criminal penalty imposed (e.g. Ch. 21, arts. 55–56, falsely accusing a person of theft). 70

A budet kto kogo chem obezchestit, i za bezchestie chiniti ukaz.

926

chapter 36

Apart from dishonour, a great variety of unlawful acts causing damage to private parties were referred to in Ch. 10 of the Ulozhenie, all of them expressed in a procedural perspective. “When somebody enters a petition about …”, followed by a description of some kind of injury or unlawful action from which the petitioner had suffered. The last part of Ch. 10 in particular (starting from about art. 203) described a great variety of acts causing damage and established guidelines for dealing with them.71 Occasionally, when the behaviour of the person committing such an act was especially outrageous, criminal sanctions were brought into play, but the standard approach of the law was to set out the damages or compensation to be paid to the injured part. In the perspective adopted in this section (delicts are acts, not punished by a public authority, but causing harm to private persons), the various rules of Ch. 10 concerning bezchestie and other unlawful acts affecting other persons came closest to legislation concerning delicts.

71

For instance, art. 206 (loan debtor who has wasted what had been entrusted to him); art. 207 (unlawful violence or infliction of wounds, etc.); art. 208 (causing a neighbour’s field to be trampled); art. 209 (keeping one’s neighbour’s cattle and starving them to death); art. 210 (driving another person’s animals into one’s own yard), and many more similar actions.

chapter 37

Civil Law: Family Law and Succession This chapter builds on Chapter 19, on the Individual and the Family (sections on the legal status of the individual and on legal classes) of the first part of this work; certain general considerations proposed in those sections will not be repeated here. This applies in particular to the most general one, the absence of the abstract idea of the human person, endowed with inalienable rights, as it was expressed most clearly during the Age of Enlightenment in its major legal monuments, connected with the American and French Revolutions. The absence of this idea can be observed in the legal treatment of women and men as basically different categories and also in the prominence of the idea of legal classes of persons, where the accent is rather on the differences in their respective status than on the features common to all persons. These topics, as they manifested themselves during the Muscovy era, were also discussed in C ­ hapter 35, on Civil Law: Persons, and the present chapter will therefore limit itself to family law and the related subject of inheritance and succession. Sources During the Muscovy era, the arrangement based on the Church Statutes of St. Vladimir and his son Iaroslav the Wise continued to be the foundation of Russian family law. The essence of this arrangement was that the state had transferred the main responsibility for the regulation of family (and inheritance) law to the Russian Church. The implications were that church law was called upon, in principle, to provide the necessary regulation, but that at the same time such law was indirectly also the law of the state. Russian rulers always felt free to intervene in this area, whenever they perceived the need to do so. The Church might resist when it deemed such intervention detrimental to its rights and interests, and a compromise solution was often the result, but on the whole the balance of power would be in favour of the prince. If one approached the question of legislative competence in Muscovite family and inheritance law from a modern constitutionalist’s point of view, one could establish that it was based on state law (the old Church Statutes), which had proclaimed the general applicability of church law but retained the state’s right

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_038

928

chapter 37

to intervene legislatively; it did so frequently in Muscovite times, although the Church itself could also act independently in a legislative manner.1 A further complicating factor was that relationships between spouses and family members constituted an area where custom and customary law played a greater role than in other fields of law.2 This had been the case in the preChristian era and the Church Statutes were therefore innovative and almost revolutionary, because they represented the penetration of an external agent (the Church) into a field that had been left to more or less spontaneous social organization. In its efforts to inculcate Christian values and morals, the Church had to reckon with the existence of a body of rules enjoying the support of the population. The Church’s policy was therefore not to put in place an entirely new system of norms, but to embrace what was acceptable, forbid what was unacceptable (such as bigamy), and amend what could be maintained in a different form. As a result, one looks in vain for anything like a coherent regulation of family law in medieval Russia. The major written sources are to be found in ordinances and instructions emanating from the Church, with occasional superimposed state legislation. Underneath it all was a large body of traditional arrangements, generally known to the population, but only subject to reconstruction through an assiduous investigation of all kinds of narrative and moralistic sources (such as the Domostroi).3 The entire complex could be compared to the geological structure of a mountain range, where old formations are covered in most parts by newer strata which in turn are overlain by volcanic deposits. An important consequence of this is that the legislative sources provide a partial and probably one-sided picture of the reality of the actual legal relationships within the family.4 The peculiarities of the Russian Church-state relationship implied that church legislation was also in many cases to be regarded as secular law. This 1 E.g. a decree of the metropolitan of March, 1561 (or earlier), in which unsigned and unsealed last wills were declared valid, under certain conditions; zarg, No. 35, 53–54. 2 Cf. N.S. Nizhnik, “Brachno-semeinye otnosheniia v Moskovskom gosudarstve (xv – pervaia polovina xvii vv.)”, PRoP iii/2, 315–393, at 342. 3 A popular guide on many aspects of married and family life, with a strong religious-moralistic orientation. It is often ascribed to the priest Sil’vestr, the spiritual father of Ivan iv and a prominent member of the young Ivan’s ‘cabinet’, the Chosen Council (Izbrannaia Rada). It continued to be a source of great authority until the reforms of Peter the Great. There are many editions, I have used the edition of the Russian Academy of Sciences, edited by V.V. Kolesov and V.V. Rozhdestvenskaia, Domostroi, Sankt-Peterburg, 1994. 4 This aspect is a prominent motive in Nizhnik’s treatment of the subject; see esp. Nizhnik, op. cit., 350–370 (sections on personal and property relations between spouses).

Civil Law: Family Law and Succession

929

applied in particular to the Stoglav (see Chapter 25), the principal source for family law from the era of Ivan iv. It was enacted in 1551 by a Church Council, but under the guidance and with the active participation of the tsar. Many of its one hundred chapters were based on previous church regulations. The remaining sources of church law on marriage and family matters offer a rich variety, as regards their origin and authority. The different kormchie5 themselves consisted of widely heterogeneous documents and then there were the letters and sermons of prominent churchmen, incidental resolutions of church councils, etc. In view of the relationship, explained above, between the Church and the state in Muscovy, it stands to reason that the state did not enact a coherent set of rules on marriage and family law. In the Code of Ivan iii of 1497 the subject was mentioned only in passing in the provision on full slavery (art. 66), listing the causes of full slavery. These causes included marriage (of a free person) to a slave. This provision reappeared in much expanded form in art. 76 of the Code of Ivan iv of 1550. Inheritance law turned up in art. 60 of the Code of 1497, where in the absence of sons, a daughter was allowed to inherit her father’s personal and landed property. The corresponding provision in the Code of 1550 (art. 92) was almost identical. There is also a long provision (art. 85) in the latter Code, the “law on hereditary estates” (v votchinakh sud), and questions of marriage, family and inheritance were obviously intimately involved in such a subject. Of greater interest is the Code of 1589. As explained in more detail in Chapter 26, it was actually applied in large parts of Northern Russia, although it was probably never officially enacted. It elaborated on the summary provisions of its predecessors on the marriages and families of slaves (arts. 137–138), on family law aspects of the law on hereditary estates (arts. 163–167),6 and on intestate succession (arts. 190–193). Incidental state legislation from the century between the Code of 1550 (and the Stoglav) and the Ulozhenie of 1649 made no significant contribution to matrimonial law, but there was a mass of decrees concerning the transfer of real property and succession to such property, and very often these ­decrees ­inevitably concerned relationships within the family. Many of these decrees were absorbed later on in the Ulozhenie of 1649. The Ulozhenie adhered to the traditional pattern of secular legislation in that it did not contain specific regulation of marriage, family and inheritance 5 On kormchie, see the relevant section in Chapter 2. 6 These provisions were an adaptation of the (long) art. 85 of the Code of 1550; cf. B.D. Grekov (ed.), Sudebniki xv–xvi vekov, Moskva-Leningrad, 1952, 524–527 and prp iv, 465.

930

chapter 37

law, but it did offer specific rules in a number of chapters, such as those on courts and on hereditary and service estates.

The Family

Family relations in Muscovy encompassed a panoply of interpersonal situations, based either on common ancestry or on marriage. The basic distinction was between the sem’ia and the rod. These terms are frequently used in legal texts. The sem’ia itself appeared in two main forms: the small and the large family. Ideally, the small family would be a husband and wife and their children living at home. The standard type of the large family would be grandparents, their children and their spouses, together with the grandchildren. Various transitional forms could occur. A family, for instance, could comprise unrelated persons, such as domestic personnel. The rod (clan, Lat. gens) were the legitimate descendants (male and female) in the male line of a common patriarch, simply, but not quite correctly, the persons identified by a common family name, provided the name was sufficiently unique. During the Muscovy era such names gradually came into use for boyar families.7 The main legal relevance of the rod was that its members had certain claims on ancestral lands (see Chapter 36). Marriage For both the sem’ia and the rod marriage constituted the legal origin. For the small family (the sem’ia) this is obvious, but the coherence of the rod was also 7 The Románovs were an example. They were the descendants of the fifth and youngest son of Andrei Kobyla, a Moscow nobleman in the middle of the 14th century. The descendants of this son (Fedor Andreevich), in order to distinguish them from the numerous other Kobylin descendants, were known as Koshkiny, from their father’s nickname Koshka. They gradually moved up in the Muscovite hierarchy and a grandson of Fedor Koshka reached boyar rank: Zakharii Ivanovich Koshkin. Some of his descendants did equally well, others became okol’nichie, the next lower rank. One of the latter was Roman Iur’evich-Zakhar’in, a grandson of Zakharii Koshkin. Two of his brothers became boyars; Roman’s son Nikita Romanovich Iur’ev occupied the less prestigious position of dvoretskii, but Roman’s daughter ­Anastasiia was the first wife of Ivan iv. This propelled Roman’s descendants, henceforth known as ­Romanovs, to the highest level of the Moscow aristocracy. Nikita’s daughter Irina married tsar Boris Godunov and Nikita’s eldest son Fedor was one of the most prominent boyars during the Time of Troubles, the father of the future tsar Mikhail Romanov, serving for many years as patriarch of the Russian church. Cf. A.A. Zimin, Formirovanie boiarskoi aristokratii v Rossii vo vtoroi polovine xv – pervoi treti xvi v., Moskva, 1988, 175–190 (Kobyliny).

Civil Law: Family Law and Succession

931

based on the marriage of the first ancestors and the marriages of their descendants. The pre-Christian marriage of the Slavs was discussed in Chapter 19. In Muscovy times the Christian transformation of marriage had become dominant, although many pagan survivals could be observed. The most effective instrument for the assimilation and integration of the Christian marriage into Russian culture was the Church’s appropriation of the conclusion of the marriage. This found expression in the enforcement of a number of conditions.8 In Kievan times church weddings were limited mainly to members of the aristocracy, but in Muscovy the Church required everybody, down to slaves, to adhere to church rules in this respect. Nevertheless, other, customary forms of getting married survived well into the 17th century in peripheral regions.9 According to the Stoglav (Ch. 18) the minimum age for marriage was 15 for boys and 12 for girls. Earlier age limits were sometimes mentioned in kormchie, based on Byzantine law. An upper age limit for getting married, although occurring in Byzantine sources, did not achieve wide acceptance in Russia. Both prospective spouses had to be unmarried; the Church obviously did not countenance bigamy. This rule, on the basis of its Byzantine origin, assumed a more elaborate form in Russia. The Eastern Church, unlike its Western sister, had not fully excluded divorce and allowed remarriage after divorce, and of course also after the death of one of the spouses. In both instances, however, a person could get married only three times. Fourth and further m ­ arriages did occur, but they were considered invalid and the offspring would be illegitimate. The prohibition could not always be enforced against powerful men; Ivan iv is the best known example. A third condition was that the future husband and wife were not related. Three kinds of relationships were relevant in this respect. First of all blood relationships, secondly so-called spiritual relationships, and thirdly relationships through marriage. Of these the first category was the most important. Forbidden degrees concerning marriages are encountered in most cultures, but the Russian Church adopted the strict rules applicable in Byzantium. This meant that marriages between relatives up to the sixth degree were forbidden (e.g. marriages between second cousins). Within comparatively closed social groups, peasant communities as well as high aristocracy, this prohibition could easily be perceived as onerous and its strictness seems to have been alleviated occasionally by ecclesiastical indifference. The rules also applied to children born out of wedlock. 8 Cf. Nizhnik, op. cit., 320–341; M.K. Tsaturova, Russkoe semeinoe pravo xvi–xviii vv., Moskva, 1991, 6–20. 9 Cf. Nizhnik, op. cit., 320–322.

932

chapter 37

Spiritual relationships were mainly based on the ties between godparents and godchildren.10 These ties were considered to prevail over relationship by blood. The godparent was the spiritual father or mother of the godchild and ranked as a brother or sister of the godchild’s parents. The system of degrees, as applied to blood relationships, was then applied correspondingly, but with certain limitations. Marriage created svoistvó between the two families: relationship through marriage. The prohibition up to the sixth degree applied in principle to persons connected by svoistvo, but in practice it was sometimes difficult to establish and enforce (e.g. my nephew wants to marry the niece of my spouse). Russian canon law did not allow marriages between (orthodox) Russians and members of other Christian denominations (at first only Latin Catholics, after the Reformation also protestants); a fortiori, marriages with Muslims were outlawed although they were known in regions with a significant Muslim (Tatar) population. The bridal couple needed the blessing (i.e. approval) of their respective parents. At the same time, the officiating priest had to make sure that the future spouses were acting of their own free will and without constraint. The two requirements were often difficult to reconcile. Marriages were generally arranged by the parents of the couple, and the young people were, as a rule, socially, economically and mentally ill-equipped to resist. As pointed out in Chapter 19, marriage was considered the sacred duty of every grown-up person, unless one opted specifically for life as a monk or a nun.11 Persons dependent on a master, such as slaves and serfs, needed his permission to get married. This rule also applied to military personnel in certain cases (permission of the military superior was required). The solemn performance of the wedding ceremony according to the rules of the Church, venchanie, included the presence of witnesses (precluding secret marriages) and was preceded by the betrothal, obruchenie, more commonly known as sgovor (deal, understanding). This institution was rooted in Russian custom, but was also known in Byzantine law. Ch. 1 of the Ecloga was devoted to the betrothal, Ch. 2 to marriage. Obruchenie was effected through a religious ceremony and was regarded as a sacrament by the Church; sgovor was concluded by the parents of the couple at a meal which included certain formalities.12 The betrothal, which could take place before the prospective spouses 10

Some other situations also could give rise to similar obstacles, such as the relationship between godparents themselves. 11 It also happened that people were forced to enter a monastery or convent. 12 Nizhnik, op. cit., 345–347.

Civil Law: Family Law and Succession

933

had reached the required age for marriage, fixed the agreement between the two families involved concerning the future wedding and usually also about the wedding date; it regularly included an agreement about the dowry (pridanoe). A betrothal could be broken off by one of the parties, but this would involve the payment of compensation.

Relations between Spouses

Relations between spouses concern a multitude of questions and property relations are only part of them. Personal (non-property) relations are of no great interest to secular law, except in the case where they have become so bad that the question of divorce arises.13 Property relations, on the other hand, affect the interests of third parties as well, and will more readily require legislative or judicial intervention. The situation was completely different from the ecclesiastical point of view. The Church used its authority to induce the faithful to live in a way becoming to Christians. Two points stand out in the marriage policies of the Russian Church during the Muscovy era. The first one was the strong emphasis on the dominant position of the husband and father. The implementation of these views depended very much on the actual circumstances. Peasant women, for instance, were in charge of a considerable share of the agricultural workload, and this could yield them a position of near equality. The situation of the wives of merchants or craftsmen could be relatively favourable for similar reasons.14 The worst off were the wives of aristocratic husbands. In the course of the 16th century they were increasingly consigned to the terem, separate women’s quarters, which they would leave only rarely.15 The second point concerned the Church’s negative attitude towards any sexual activity. In this respect the Russian Church was more extreme than her sister in the West. This attitude also affected marital cohabitation, the one activity that was not forbidden and was in fact one of the basic duties of the married couple.16 13

14 15 16

For further discussions concerning personal relations between spouses, see Sergeevich, Lektsii, 469–471; Nizhnik, op. cit., 350–365; Tsaturova, op. cit., 36–45; Vlad.-Bud., Obzor, 436–438. See V.B. Perkhavko, Srednevekovoe russkoe kupechestvo, Moskva, 2012, 331–338. This aspect is treated by Nizhnik, supra; also Tsaturova, supra. Nizhnik (363–364) gives numerous examples. For instance, a curtain had to be drawn before the icons in the couple’s bedroom when intercourse took place, marital cohabitation

934

chapter 37

Moving now to the main topic of this section, we refer to what was stated in Chapter 36, on Ownership: that our modern concepts, derived from Roman law, are not always the most suitable for achieving a good understanding of the legal reality of Russia in times past.17 In the eyes of contemporaries, what husbands and wives did with the goods they possessed was not perceived in terms of property: “who owned what”. Such relations within the family were governed by custom, itself subject to gradual transformation by all kinds of societal factors. One of these was the increasing interest of the state for which the upkeep and strengthening of the country’s military potential was the overwhelming priority. This had fuelled a prominent concern for the welfare of the owners of service estates (pomest’ia). If one looks at the considerable body of known legislation from the century between the Code of 1550 and the Ulozhenie of 1649, more than half of it was directed at the maintenance and long-term vigour of the entire complex of service estates. Hence the great attention given to the problems of runaway serfs and slaves and of transactions endangering the overall volume of service estates and their size. Within the basic distinction between real and movable assets considered to belong to a couple (or one of them), one could discern at least the following sets: goods belonging to either the husband or the wife and brought into the marriage; the bride’s dowry (pridanoe); the assets assigned by the husband at the conclusion of the marriage as veno (a guarantee for the repayment of the dowry, should this be required); assets acquired during marriage. Overlying it all was the idea of clan property, especially relevant for real property. This meant that both husband and wife could be the effective owner of assets which under specific circumstances could be claimed by a family member (see the section on ancestral estates in Chapter 36). Most authors agree that the major part, or at least a large part, of the couple’s assets were held by them in common. This concerned in particular the goods acquired during marriage, the pridanoe and the veno, and other goods the spouses had contributed at marriage for the common good of the household.18

17

18

was allowed only on Mondays, Tuesdays and Thursdays; the couple had to go to church the next day and confess their sins; etc. This is aptly demonstrated by the difficulties experienced by older Russian legal historians, struggling to describe the matrimonial property regime in Muscovy; see for instance Vlad.-Bud., Obzor, 439–449 (section on “Property relations of spouses” in the chapter on the history of Russian family law), and also Sergeevich, Lektsii, 478–481. See Vlad.-Bud. and Sergeevich, supra, as well as Nizhnik, op. cit., 365–370; I.A. Isaev, “Grazhdanskoe i semeinoe pravo”, in V.S. Nersesiants (ed.), Razvitie russkogo prava v xv – pervoi polovine xvii v., Moskva, 1986, 151–156; Tsaturova, op. cit., 20–26; D.P. Naidenova, “Imushchestvennye otnosheniia v sem’e xvi v.”, in A.N. Sakharov (ed.), Ot Drevnei Rusi k

Civil Law: Family Law and Succession

935

Personal assets, such as clothes, jewelry or weapons, constituted a special category. The dowry or pridanoe has attracted most attention, both because of its intrinsic legal particulars, as well as because of its personal and socio-economic importance within the framework of matrimonial property relations. The contents of the pridanoe were agreed upon before marriage, as one of the main points of the sgovor, the secular aspect of the betrothal. They were defined precisely, as a rule, in a written document, the riadnaia zapis’ (“note of agreement”). The pridanoe would generally consist of movable assets; only exceptionally, among the wealthy, real property could be included, and then usually in the form of a village with its lands and its dependent population. Some parts of the dowry would be destined for the personal use of the wife (clothes, etc.), but transactions concerning parts of the pridanoe were concluded by husband and wife together, sometimes through a formula such as “with the consent of my wife nn.”, or otherwise by the two spouses together. Altogether, as also noted by Sergeevich,19 practices concerning the pridanoe were not uniform and varied locally and also over time. Return of the dowry where the betrothal did not lead to a marriage was a firm rule of customary law.20 As to the fate of the dowry after the dissolution of the marriage by the death of one of the spouses, the most direct and relevant legislative statement is art. 1 of Ch. 17 of the Ulozhenie (on hereditary estates). It directed, among other things, that a childless widow would receive one quarter of the movable property, as well as her dowry. The last few words should not be taken to imply that widows with children had no right to their dowries.21 According to Isaev, a widow was entitled to hold on to a third part (the veno) of the entire mass of the couple’s assets until the heirs of the husband had restored the dowry to her.22 The widow’s claim for return of the dowry was regarded as privileged above all other claims.23 Divorce would also entail return of the dowry.24 Where the written law was concerned, the husband’s position in managing the common household was undoubtedly stronger, although most important transactions were customarily concluded by the couple jointly. Moreover, the husband could not unilaterally dispose of goods specifically assigned to his ­novoi Rossii. Iubileinyi sbornik posviashchennyi chlenu-korrespondentu ran Ia.N. Shchapovu, Moskva, 2005, 238–245. 19 Op. cit., 478–479. 20 Nizhnik, 366–367. 21 This also appears to be the view of Nizhnik, 367. 22 Isaev, op. cit., 153, who refers to Sergeevich, Lektsii (without page). 23 Nizhnik, 367. 24 Ibidem.

936

chapter 37

wife. As indicated above, the actual relationship between the spouses in this area varied among the social classes, between different regions of the country, over time, and, ultimately, depended also on the personalities of the individuals involved. Several authors have noted that in the course of the two centuries of the Muscovy period (1500–1700) the emphasis shifted from the dominance of common control (ownership, if you like) of the bulk of the marital property to the preponderance of a regime of separate estates. In the latter situation the bulk of the property belonged to, and was managed by, the husband alone, while the wife was allowed a smaller estate reserved for herself.25

Dissolution of Marriage

The main cause of the marriage being dissolved is always the death of one of the spouses. The other cause in Muscovy was divorce. In Chapter 19, on the Individual and the Family, the position of the Eastern Church with regard to divorce was explained. One also has to keep in mind that the entire matter was covered by Church jurisdiction, exercized in some respects by the local priest but mostly by the bishop.26 Annulment Divorce (razvod) is to be distinguished from annulment (priznanie brak nedeistvitel’nym). If it came to light that a marriage which ostensibly had been concluded suffered from essential defects, the marriage was to be annulled. As a result the marriage was considered never to have existed and its legal consequences disappeared. This would affect in particular the children born from such a union, who would be regarded as illegitimate. According to Tsaturova, a marriage was to be annulled for one of the following reasons: if at least one of the prospective spouses had not reached the required age; if at least one of them was already married at the time; if at least one of them had already been married three times; if they were blood relatives or related by marriage (svoistvo) in one of the forbidden degrees.27 Tsaturova added that in real life it was often impossible or highly undesirable to annul all marriages which were defective for one of the reasons indicated. For instance, as has been referred to 25 26

27

Cf. Vlad.-Bud., Obzor, 442–449; Nizhnik, 366. The most important text on divorce in Russian legal history is still A.I. Zagorovskii, O razvode po russkomu pravu. Issledovanie brakorazvodnogo prava v Rossii. Ot epokhy drevnikh slavian do vtoroi poloviny xix veka, Khar’kov, 1884 (2nd ed.), Moskva, 2012 (reprint). Tsaturova, 90.

Civil Law: Family Law and Succession

937

above, the catalogue of forbidden degrees was unrealistically extensive; also, it would be unreasonable to annul a marriage arranged by the parents, consecrated by a priest, and resulting in offspring, when the bride was a few months short of the required age.28 Failure to observe other basic requirements for getting married, such as receiving the blessing (approval) of the couple’s parents, would not lead to annulment.29 Divorce The principal ground on which the Church would allow divorce was adultery. Various additional conditions had to be satisfied. A precise list of other grounds for divorce cannot be given, because the ecclesiastical sources diverged on many points. Also, the lists of grounds applicable to men and women were not identical. This was based, in the case of adultery, on the idea that the wife’s adultery was an insult to her husband, while the husband’s adultery was an insult to the husband of his lover.30 Consequently, consorting with a prostitute did not constitute adultery, although it was an offence which was punishable by the Church (usually with a fine). Strict proof of adultery was required; the statement of one of the spouses was insufficient. Adultery also required the offender to be of sound mind; and sober. Divorce would not be granted when the adulterer had been forgiven, either explicitly, by a written document, or by the continuation of marital cohabitation. Initially, the priest who had celebrated the marriage was considered competent to pronounce a divorce, but this procedure was outlawed later and priests who contravened this prohibition were penalized. The local bishop was the only proper authority. Among the most frequently encountered grounds for divorce, apart from adultery, are the following: Plotting an attempt on the life of the other spouse; The disappearance and permanent absence of one of the spouses; Conversion of one of the spouses to another religion; An incurable disease of one of the spouses;31 Systematic abuse of one of the spouses by the other; 28 29 30 31

Nizhnik, 374–375, provides many other examples. Cf. Nizhnik, 375. Nizhnik, 377. See D. Kaiser (Kaizer), “Ravod, ser’eznaia bolezn’ i supruzheskaia liubov’ v Rossii v xvii v.”, A.N. Sakharov (ed.), Ot Drevnei Rusi k novoi Rossii. Iubileinyi sbornik, posviashchennyi chlenu-korrespondentu ran Ia.N. Shchapovu, Moskva, 2005, 260–267.

938

chapter 37

Extreme neglect or mismanagement of the common household; High treason by one of the spouses; Entry into a monastery or nunnery; Insanity; Congenital physical inability of the husband.32 The list was not exhaustive; new grounds emerged through interpretation or by invoking other ecclesiastical texts, other grounds would fall into disuse. The husband’s protracted absence as a prisoner-of-war could justify a ­divorce, but a wife would be expected to follow a husband who had been ­sentenced to prison or exile. Divorce by mutual consent was not allowed, although there are examples of successful attempts to overcome this obstacle.33 The main avenue for bypassing the Church’s prohibition of divorce by mutual consent was the continuing vitality of the traditional institution of rospust, evolving from unilateral repudiation to the joint decision to terminate the marriage.34 This was done by drawing up a divorce letter (razvodnoe pis’mo), at first by a priest, and, when this practice was forbidden, the secular authorities would certify such documents. The legal consequences of divorce35 depended on the innocence or guilt of the divorced person. An innocent party would, in principle, be allowed to enter a second or third marriage. In practice, marriage after divorce was common, regardless of the question of guilt. A guilty husband would be obliged to return the dowry and to turn over to the wife the pre-marital gift (the veno) he had assigned to her. Additionally the wife would receive a part of the husband’s estate equal to one third of the veno. A guilty wife lost the right to her dowry and her claim on the veno; additionally she had to pay the husband an amount equal to one third of the dowry. It cannot be denied that the entire field of divorce in Muscovy presented a scene of confusion, if not chaos. This was caused by the multiplicity and changing nature of the grounds for official divorce by the Church, in combination with the continued practice of informal divorce, by the simple means of a divorce letter. Children would be assigned, as a rule, to the innocent party, but the (ecclesiastical) judge could decide otherwise. The father remained responsible for the maintenance of his children. 32 33 34 35

For abundant detail see Zagorovskii, op. cit., 88–201. See Nizhnik, 388–389; Zagorovskii, 188–190. Cf. Nizhnik, 391–392. Zagorovskii, 201–239 (Chapter 4 on legal consequences of divorce).

Civil Law: Family Law and Succession



939

Parents and Children

The principle of absolute autocracy at the basis of the organization of the state in the era of Muscovy – the tsar being responsible to God alone – was reflected in the legal structure of the Russian family; or was it the other way round? Complete parental power and authority determined the legal position of family members. As the husband also enjoyed a position of strong dominance over his wife, the family was ruled by the father as the tsar ruled Russia. Consequently, children had hardly any defensible legal position as long as their father was alive. They could be sent to a monastery or a nunnery and even be sold as slaves. In the section on slavery in the Code of 1550, art. 76 defined the exceptions to the rule that parents could sell their children into slavery, without making the rule itself explicit, but there is no doubt that the rule existed and was frequently applied in practice. In the course of the 17th century, according to Isaev, the practice was gradually replaced by parents placing children in service for a limited period; children could also be given as pawns for the debts of their parents.36 Their choice of a marriage partner was determined by their parents, in fact by their fathers. The right to inflict physical punishment was almost unlimited; even when this would result in the death of the child; the penalty was one year in prison (Ulozhenie, Ch. 22, art. 3). The disciplinary powers of the parents were backed up by the state, as described in art. 5 of the same chapter of the Ulozhenie. If parents complained about almost any misbehaviour of their children (not honouring them, slandering them, not feeding them, etc.) to the tsar, the children were to be punished severely: “beating mercilessly with the knout”. An official complaint to a court by a child against a parent was to be turned down and was also punished by the knout (art. 6). The few authors who discussed the topic of the legal relations between parents and children pointed to the lack of interest of the state and to the permissiveness of the Church in leaving matter to customary arrangements. These can be found in sources such as the Domostroi, which strongly encouraged ­fathers to discipline their children, especially their sons, in the harshest manner possible.37 The few provisions in the Ulozhenie which touched upon matters concerning legal relations within the family fit this pattern. The fate of the peasant family was inextricably bound up with that of the father (Ch. 11, arts. 1, 3, 9–10). After the father’s death, the wife and children were liable, as a rule, for his 36 Isaev, op. cit., 155. 37 Cf. Nizhnik, 370–372; Tsaturova, 46–53.

940

chapter 37

debts (Ch. 10, arts. 132, 203, 207, 245). If the father had been found guilty of treason and his family members had been aware of this, they were equally subject to the death penalty (Ch. 2, art. 5). While the husband was allowed to inflict on his wife physical punishment, which occasionally might cause her death, the Ulozhenie reserved one of its harshest penalties for wives who had killed their husbands: they were to be buried alive and denied all food and drink until death resulted (Ch. 22, arts. 14–15). Guardianship and Curatorship There is almost nothing in the written law of the era to enlighten us about guardianship (opeka) and curatorship (popechitel’stvo). It is generally accepted that guardianship over minor orphans existed. A close (male) relative appeared to have been the usual choice. In the scholarly literature there is no consensus about the supervising authority; according to the Ecloga (Title vii) it was the Church, according to the Procheiron the state.38 Guardianship ended when the young person came of age (15 years). Curatorship could be established over adults needing assistance in managing their affairs (especially widows and unmarried women). It is mentioned (not in so many words) in art. 10, Ch. 16 of the Ulozhenie, which dealt with widows and unmarried (young) women (devki) who had surrendered the service lands assigned to them temporarily for their maintenance to persons who in exchange had to feed them and find husbands for them. If such curators were negligent in their duties, the estates were to be returned to the women concerned. The provision was based on a decree of 1620–1622 which identified the curators as rodimtsy, indicating that relatives were appointed as curators.39 Illegitimate Children The contents of the few rules concerning illegitimate children were determined by the fundamental factor of the family law of Muscovy – that marital status was the standard for all adult men and women, unless they had accepted celibacy as part of monastic life. This meant that along with married women there were women who had been married (widows or divorced women) and young women who would get married, and for all these women the families concerned would be looking for husbands, unless they were too old (and would enter, or be despatched to, a nunnery). Theoretically, there was no room for prostitutes or concubines (who would most likely be married anyway). 38 39

Cf. Tsaturova, 53–56. zarg, No. 110, 155.

Civil Law: Family Law and Succession

941

The problem could have been left to custom and social control, were it not that relations with concubines and prostitutes would often produce offspring. The principal provision dealing with this question was art. 280 of Ch. 10 of the Ulozhenie. It is part of a long set of rules dealing with all kinds of torts; art. 280 was devoted to insults and specifically to calling somebody a whore’s son (vybliadok). This merited two-fold compensation (bezchestie). But if it was shown that the person insulted was in fact a vybliadok, no compensation was due. The same paragraph defined who was a “whore’s son”: somebody born of a concubine, irrespective of whether the father was not (yet) married, married or a widower. Such a person could not be considered legitimate and was excluded from inheriting his father’s service or ancestral estates. Legitimation by subsequens matrimonium (subsequent marriage of the father and the concubine) was explicitly excluded. As already noted above, children from fourth and further marriages were considered illegitimate (Ch. 16 art. 15). Infanticide by a prostitute, or by an accomplice, entailed a capital sentence for both (art. 26, Ch. 22).

Inheritance and Succession

In the first part of this work, the law of succession upon death was discussed in the relevant section in Chapter 19. The Expanded Pravda contained a more or less coherent set of provisions (arts. 90–95 and 98–106), and this was followed by the Court Charter of Pskov, which dealt especially with the estate of the izornik (dependent peasant, known only in Pskov; arts. 84–87) but also with inheritance law in general (arts. 72 and 88–91). The Codes of 1497 and 1550 were silent on this matter, except for a single short provision (art. 60 and art. 92, virtually identical) stating that a daughter, or otherwise the next of kin (blizhnii ot ego roda) could inherit her father’s estate in the absence of sons. That the traditional arrangements had gradually become in need of reform was suggested by the Composite Code of 1589, which repeated art. 92 of the 1550 Code in more elaborate form and then added several new provisions (art. 190 and the following arts. 191–193). During the intermediate period between the Code of 1550 and the Ulozhenie of 1649, a considerable number of decrees, affecting the law of inheritance was issued. The modest number of authors who discussed the inheritance law of the Muscovy era proceeded from the traditional Romanist division of intestate and testate succession. Little attention was paid to the fact that from times immemorial inheritance law had been a matter of customary law and that the

942

chapter 37

legislator intervened only occasionally where a correction of the existing arrangements was considered necessary. Although authors did sometimes recognize that the simultaneous application of intestate and testate succession in a single case was a common occurrence, inheritance law was described as consisting of two separate blocks of rules.40 This often created a picture of great confusion. Transparency is much improved by observing what happened in reality. The first thing then is to establish that the Muscovy law of inheritance ­addressed itself almost exclusively to the politically and economically pre-eminent subject of the estates of the serving class, the minor nobility. When the landowner died, he would be succeeded by his son(s), who would be able to continue to run the estate and carry out the service duties (mostly military service). That was the basic principle and everything else was directed towards achieving the same goal in case this principle could not operate directly. The estates of the service class consisted of the two main categories of land: estates granted as pomest’ia (conferring inheritable possession, conditional upon serving in a military or civil capacity) and votchiny (ancestral or hereditary estates). The latter estates were subdivided into genuinely ancestral estates (rodovye votchiny), estates that had been granted as votchiny (vysluzhennye votchiny), and estates enjoying votchina status when they were bought (kuplennye votchiny). These distinctions were of decisive importance in shaping the inheritance law of Muscovy, because the government’s policies towards these types of estates were not the same in all cases. The purpose of the pomest’e system was to maintain a strong and reliable source of military power, and this purpose required that the volume of pomest’e land was kept at a healthy level and that it remained in the hands of landowners capable of providing military service. The pressure to attain this was eased only when, in the course of the 17th century, the use of hired foreign troops began to assume greater prominence. The official attitude towards hereditary land was generally favourable, as long as it promoted stability of tenure. Fragmentation into too many small plots was discouraged. The status of bought votchiny was similar to that of genuine ancestral estates (rodovye votchiny), but the landowner who had bought a votchina usually enjoyed greater freedom in disposing of it than he would enjoy with regard to genuine ancestral land. Vysluzhennye votchiny (granted for service) occupied an intermediate position between pomest’ia and ancestral estates. As noted in Chapter 36, the overall tendency of the law concerning landed property during the Muscovy era was gradually to approximate service 40

E.g. Iu.N. Anuchina, “Nasledstvennoe pravo po Sobornomu Ulozheniiu 1649 goda”, PRoP iii/3, 262–291, at 262.

Civil Law: Family Law and Succession

943

e­ states to hereditary estates, until they were merged into a single category in 1714. This tendency was also reflected in the rules concerning the inheritance of land. Secondary considerations affecting the development of the law of succession were the changing attitudes with regard to the treatment of women (wives, widows and daughters) in a variety of situations (the presence or absence of sons and other potential male heirs, the marital status of daughters, etc.), and also the increasing tendency to exclude monasteries as recipients of estates belonging to secular landowners. The mostly unwritten inheritance law of the past was gradually expressed legislatively, amended and made more detailed during the century leading up to the Ulozhenie of 1649, where it was covered mainly in Chapters 16–17, dealing with service and hereditary estates. The principal source for Ch. 16 was the decree of 17 December 1636, commonly known as the Decree on Hereditary and Service Lands, issued in the form of a list of articles (Stateinyi spisok), in fact 14 separate short decrees.41 The principal source for Ch. 17 was the Stateinyi spisok of 3 December 1627, also known as the Decree on Ancestral and Granted (vysluzhennye) Lands, consisting of 9 separate points.42 Succession of Service Estates As a consequence of the ambiguous ownership status of a service estate, its inheritability was restricted. As noted in Chapter 36, the normal state of affairs was that the son would succeed as pomeshchik on the death of his father. If there were several sons, the father could make a division among the sons, even excluding some of them and directing them to petition the tsar for another pomest’e. If such sons were dissatisfied with the estates received, they could ask the tsar to bring about a new and more equal division by redistributing the entire fund of service land assigned to the individual sons (Ch. 16, art. 34). The tsar, or in later years the Service Estate Department (Pomestnyi prikaz), was closely and decisively involved in the fate of the service estate, because all important changes had to be reported. In any case, it was out of the question that a pomest’e could be freely disposed of by will. The normal way of succession to a pomest’e illustrates once again that modern or even old Roman concepts are inadequate for a correct description. The  son succeeded the father, but not as owner, because the father himself was not the owner. The rights and duties connected with the pomest’e were ­inseparable, the son was simultaneously entitled and obliged to succeed the father, barring exceptional circumstances. Art. 69 of Ch. 16 (its last provision) 41 42

zarg, No. 234, 171–174; prp v, 470–477; PRoP iii/2, 310–315. zarg, No. 161, 133–136; prp v, 453–460.

944

chapter 37

is revealing in this respect. It dealt with a son who had feloniously (vorovski) mortgaged his pomest’e or sold his ancestral estate in order to avoid the military service connected with his estates. In such a case both the son and his contractual partner were punished. The son was to be beaten “without mercy” (bez poshchady) and sent back to the army, but his estates were returned to him; the contractual partner lost his money.43 Widows were generally provided with an income from part of the pomest’e. Initially, these maintenance allowances were granted by the tsar as he saw fit, but in the Ulozhenie they were finally fixed in accordance with the service record of the deceased husband (Ch. 16, arts. 30–32). This lifetime allowance was called prozhitok.44 The allowance was stopped at the widow’s death, remarriage, or entering a convent (art. 16). If there were no service estates nor bought estates available, a widow would be granted an allowance from the ancestral estates or the estates granted for service (vysluzhennye otchiny), in order to provide a prozhitok (Ch. 16, art. 16). Unmarried daughters are mentioned along with their mothers as recipients of a prozhitok after the father’s death in arts. 10, 11, 17, 20, and 30–33. Arts. 30–33 indicate that a daughter’s prozhitok was normally one half of the mother’s ­allowance. It ended when the girl reached the age of 15 years (art. 11). When the father’s estate was unable to provide a maintenance allowance, escheated (vymorochnye) pomest’ia were a preferred source from which maintenance service landholdings could be assigned (art. 13). The rationale for the system of maintenance allowances for wives and daughters was that they were unable to provide the service for which the service estate had been granted. If sons and other male relatives could qualify as ‘heirs’ to the estate, women could not. Succession of Hereditary (Ancestral) Estates45 In the matter of succession in hereditary estates (votchiny),46 the written law was much more elaborate and explicit than the sparse provisions on succession 43 44

45 46

Cf. A.G. Man’kov (ed.), Sobornoe Ulozhenie 1649 g. Tekst. Kommentarii, Leningrad, 1987, 268–269. For a detailed study of the prozhitok, see K.V. Petrov, “Nekotorye vidy zemel’noi sobstvennosti v sisteme russkogo prava do nachala xviii v. Prozhitok”, A.P. Pavlov (ed.), Rossiiskoe gosudarstvo v xiv–xvii vv. Sbornik statei, posviashchennyi 75-letiiu so dnia rozhdeniia Iu.G. Alekseeva, Sankt-Peterburg, 2002, 115–154; Petrov regarded prozhitok as a form of service ownership (sluzhilaia sobstvennost’). One of the few authors who discussed this question was S.V. Veselovskii in his Feodal’noe zemlevladenie v Severo-Vostochnoi Rusi, Moskva/Leningrad, 1947, 46–55. In this section, votchiny is translated as hereditary or ancestral estates; such estates were subdivided into rodovye votchiny (also translated as ancestral estates, or as old or genuine

Civil Law: Family Law and Succession

945

in service estates. It was the subject of Ch. 17 of the Ulozhenie, and this chapter itself was based on extensive previous legislation. The most important item in this respect was a decree of 3 December 1627, itself consisting of a collection of nine decrees devoted mainly to a detailed regulation of various questions concerning ancestral estates and estates granted for service (rodovye and vysluzhennye votchiny).47 The basic rule of succession to ancestral estates was of course that the son(s) would inherit, but this rule was not prominently expressed anywhere, in accordance with the legislative practice of the time. Ch. 17 dealt mostly with situations arising when no sons or daughters were present. Then (old) ancestral estates and estates granted for service would be passed to brothers, cousins and further (male) members of the family, according to who was closest to the deceased owner; the surviving wife would receive one quarter of the movable property and her dowry, and retain her rights to the bought ancestral estates (art. 1). If there were daughters, but no sons, the daughters inherited ancestral estates and estates granted for service (arts. 2 and 4).48 These lands would then pass into another family, if the daughter married and had children. If the daughter died childless the estates would return to the original family, although more distant relatives were excluded.49 Additionally, owners of ancestral estates could donate or will such estates to unmarried female family members (last paragraph of art. 1). The general principle that daughters could inherit in the absence of sons had already been laid down in the Codes of 1497 (art. 60) and 1550 (art. 92). When sons had inherited the father’s ancestral and other estates, unmarried daughters were entitled to a maintenance allowance from the service estates; if the sons then died without issue, the daughters would inherit the ancestral estates. The same applied to married daughters and sisters, but then a special decree of the tsar was required.50

47 48 49

50

ancestral estates), vysluzhennye votchiny (estates granted as ancestral estates, or granted for service), and kuplennye votchiny (bought ancestral estates). zarg, No. 161, 133–136; prp v, 470–477. Based on a decree of 1628, zarg, No. 180, 145 (decision only); prp iv, 464–465 (full text). Details in a decree of 9 October 1572, zarg, No. 37, 56; prp iv, 531–532. It concerned intestate succession. Succession based on a will in collateral lines of the same family was the subject of a decree of 15 January 1562 (zarg, No. 36, 55–56; prp iv, 529–531). These two decrees formed the text of Ch. 14 of the Composite Code (art. 163), entitled “On ancestral estates of princes”. The decrees dealt only with the succession among service princes, but its rules could possibly also be applicable to succession among other sections of the landowning classes. Almost all text of the lengthy arts. 1 and 2 was derived, with minor alterations, from the decree of 3 December 1627, zarg, No. 161.

946

chapter 37

With regard to ancestral estates that had been bought, the owner was quite free in disposing of them. If he had not made any disposition, a surviving and childless wife would inherit a bought estate (arts. 1–2). She could freely dispose of it, also in the case there were children and it had been left to her in her husband’s will (art. 6). After these more or less basic provisions, the chapter continued in a casuistic manner with the treatment of all kinds of special situations affecting succession, such as the consequences of widows remarrying, special grants of ancestral land for specific occasions, disagreements between joint heirs, the sale or mortgaging of ancestral land, the possibility of redemption (vykup) by family members in various situations where the owner had sold or otherwise disposed of ancestral land,51 the acquisition of deserted lands (porozhnye z­ emli), etc. The increased involvement of the authorities, represented by the Service Lands Department (Pomestnyi prikaz), is a conspicuous feature in the chapter on hereditary estates. The standard formula did not say that a certain person inherited or was the heir, but that the property was granted to him. It stands to reason that the Service Lands Department was in charge of assigning service lands, but its intervention was also required in the succession of ancestral estates. This would be a mere formality in the case of sons inheriting from their fathers. But in other cases provisions in this chapter appointed certain relatives as heirs by granting them the right to petition the Department to assign them the estate. Art. 41 of Ch. 17 provided that dependent persons, serving boyars or monasteries (boiarskie liudi and monastyrskie slugi), were not to buy ancestral estates or possess them on the basis of mortgage. Anyone reporting a violation of this rule would be rewarded by being assigned the property. In Soviet times this provision was usually interpreted as an expression of the class character of landownership as something reserved for the ruling class.52 Reading the provision more carefully already suggests something else. The prohibition extends only to the persons serving boyars and monasteries and not to the much larger contingent of dependent persons who were servants of the state in some ­capacity. The exact meaning of the provision remains unclear.53 Although Ch. 17 is very elaborate on many aspects of inheriting ancestral estates, it is silent on a great many other aspects of the law of succession, such 51 On vykup, see also Veselovskii, op. cit., 24–35. 52 Cf. for example prp vi, 274. 53 See also Man’kov (ed.), Sobornoe Ulozhenie, 280, where it is suggested that in some cases the operation of the provision could be avoided by entering the service of the tsar.

Civil Law: Family Law and Succession

947

as inheritance law among other classes of the population or the succession of movable property. The latter topic is mentioned a few times in passing. In such cases the material value involved was usually modest and the matter could be left to customary law. Russian authors generally limit their attention also to the questions covered by Chapters 16 and 17 of the Ulozhenie.54 Monasteries and the Law of Succession Art. 43 of Ch. 17 contained a comprehensive prohibition on acquisition of service or hereditary estates by the Church, which also covered the possibility of monasteries, churches, and church functionaries inheriting such estates. The background to this rule was extremely complex and can be understood only in the much wider framework of the development of Church-state relations in Muscovy. The question will therefore be discussed in Chapter 39, on the Church. 54

E.g. Vlad.-Bud., Obzor, 479–488 (“The law of inheritance in the Moscow state”); Sergeevich, Lektsii, 572–579.

chapter 38

Courts and Justice; Civil Procedure

Courts in the Period after the Sudebnik of Ivan iii of 1497

The starting-point for a discussion of the court system of Muscovy should be the situation created by the Code (Sudebnik) of Ivan iii of 1497, as explained in Chapter 9. This Code consisted basically of an amalgamation of two parallel enactments on the administration of justice, one concerning the (higher) courts of boyars and okol’nichie, the other devoted to the (lower) courts of regional officials, the urban and rural lieutenants (namestniki and volosteli). At the same time the Code made clear in several provisions that the jurisdiction of boyars, okol’nichie and regional lieutenants was not comprehensive. Art. 21 spoke directly of the courts of the grand prince himself and of his children (adult sons and possibly also brothers who had been assigned their own apanage principalities) and other provisions referred more obliquely to the grand prince’s own jurisdiction. The autocratic character of ruling made it unnecessary or even undesirable to regulate this jurisdiction by law. The picture is made even more complex by the existence of other secular courts. One significant category, not mentioned in the Code of 1497 but still making an appearance in the Code of 1550 (art. 100), was the court of a dependent (udel’nyi) prince, ruling a formerly independent principality, subsequently incorporated into the Muscovy realm. Also, the Code of 1497 did not refer to the phenomenon, diminishing but still existing, of landowners who had been granted lands with the addition of full or partial judicial immunity (through a zhalovannaia nesudimaia gramota). This implied that the landowner (who could also be, and often was, a monastery) could set up his own court. The half century between the Codes of 1497 and 1550 saw the emergence of a new system of local government, and the reform of the court system was one of its central elements. This matter was treated extensively in Chapter 33, on Local Government, and it will be sufficient here to summarize those elements of the reform which concerned the court system. One of the principal objectives of the reform was to counteract more effectively the lawlessness and brigandage afflicting many rural areas, especially in the North of the country. The existing regional administration, headed by lieutenants (namestniki and volosteli) deriving their income mainly from ­kormlenie, had proved incapable and often unwilling to take adequate measures. The answer of the government of the infant Ivan iv was to transfer

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_039

Courts and Justice; Civil Procedure

949

­important powers, including jurisdiction, to locally elected (and later appointed) officials. This was effected through the issuing of special charters to individual regions (guby) in which the duties of the guba administrators, who also acted as the guba courts, were described. These duties would henceforth also include jurisdiction in cases of banditry (rozboi) and related offences. The guba court consisted of three or four minor noblemen/landowners (deti boiarskie) and five or six prominent peasants. They had to be literate, as everything was to be written up by a court clerk (d’iak). The first guba charter was issued to the region of Belozero in 15391 and a modest number of others from the following few years is known, all to more remote regions. After a few years a somewhat different approach was taken. The regulations concerning the organization of regional courts became more detailed; these charters were therefore known as gubnye nakazy (guba instructions); they were addressed to individual regions in various parts of the country. At the same time a new type of charter appeared, known as a statutory land charter (ustavnye zemskie gramoty), embodying a more comprehensive regulation of regional government. Most of these are from the 1551–1556 period. In the statutory land charters the lieutenants were usually dismissed completely and the jurisdiction of the court of the guba elders was defined more loosely; after mentioning brigandage and homicide, the charters often included a blanket formula such as “other evil deeds”. At the same time they often also contained the reservation that guba justice should be administered “according to our Sudebnik”, which undoubtedly was the Code of 1550. This Code, in art. 60, maintained the jurisdiction of the lieutenants’ courts, but added: “If someone is brought in for robbery or if evidence is offered in court that he is known as an evil bandit, then the lieutenants are to hand him over to the guba elders. And the guba elders are not to interfere in any way in the ­jurisdiction of the lieutenants, except in cases of robbers. And they are to judge thieves in accordance with the guba charters of the tsar and grand prince, as it has been written in them.” In any case, although the jurisdiction of the guba courts was not defined with great precision, its existence was beyond doubt. The Belozero guba charter of 1539 indicated “our boyar prince Ivan Danilovich Penkov and his assistants” as the person to whom the guba elders had to report, and this is taken as the first indication of an embryonic form of what was to become the Brigandage (or Robbery) Department (Razboinyi prikaz). This department served not only as the central regulatory agency for criminal law 1 prp iv, 176–179; rz ii, 213–215; PRoP iii/1, 74–75. For a list of other guba charters, see Chapter 33.

950

chapter 38

in general, but also as a court of appeal in criminal cases. It was itself of course subordinate to the tsar himself who could always act as a supreme court. In the century between the Code of Ivan iv and the Ulozhenie of Aleksei (1550–1649) the courts of the regional and local administration continued to co-exist with the courts of the guba elders, although, as explained in the Chapter on Local Government, the urban and rural lieutenants (namestniki and volosteli) were gradually replaced by military governors (voevody).

Courts in the Council Code (Sobornoe Ulozhenie) of Tsar Aleksei of 1649

More than half of the Ulozhenie of 1649 was devoted to courts and the procedures to be followed by them: Chapters 10 (On the Judicial Process, 287 articles), 11 (On the Judicial Process for Peasants, 34 articles), 12 (On the Judicial Process for the Patriarch’s Officials and Peasants, 3 articles), 14 (On the Oath, 10 articles), 15 (On Cases That Have Been Decided, 5 articles), 20 (On the J­ udicial Process for Slaves, 119 articles), 21 (On Cases Concerning Robbery and Theft, 104 articles), 23 (On Musketeers, 3 articles), 24 (On Atamans and Cossacks, 3 articles), 25 (On Illicit Taverns, 21 articles). Where courts were concerned, the Ulozhenie maintained (as on other topics) the court structure developed in the past, incorporated more recent amendments, and introduced a number of innovations. Chapter 10 constituted the centrepiece of the amalgam of chapters which dealt with the administration of justice in its various shapes. This was not spelled out explicitly, but it is to be inferred from numerous provisions, especially those which formed the first part of the chapter. The general principles of the administration of justice, as explained in the first part of Chapter 10, were obviously applicable to the special courts mentioned in other chapters. By the same token, the Ulozhenie undoubtedly, but without stating so explicitly, perpetuated the system outlined by its predecessors (the Codes of 1497 and 1550), according to which the provincial governors (namestniki and later on voevody) and their assistants acted as the general courts in the provinces, while the boyars, okol’nichie and a few other high officials charged with judicial duties constituted the general courts in Moscow itself. The entire first part of Ch. 10, up to art. 27 (the beginning of the extremely detailed regulation of penalties for dishonouring church dignitaries and lay persons), dealt with general questions concerning the functioning of courts. Art. 1 defined the principles of the administration of justice and as such was the much expanded successor to art. 1 of the Code of 1550, which in its turn

Courts and Justice; Civil Procedure

951

rephrased art. 1 of the Code of 1497. A description of the manner in which a judge was to exercise his office had already been expressed in art. 3 of the Court Charter of Pskov and an echo of that provision was still audible in art. 1 Ch.  10 of the Ulozhenie.2 Together with the principle of the impartiality of courts, art. 1 set out the principles of equality before the law and of the equal rights of foreigners in the courts of Muscovy. The proclamation of these principles was followed by the more general exhortations that the powerful should not enjoy special regard and that it was the duty of the court to deliver the person wronged from the hands of the unjust. Art. 2 (Ch. 10) acknowledged the judicial supremacy of the tsar, in the same breath as that of his council (boyars, okol’nichie, and other members of his Duma), charged with dealing with cases that could not be resolved by the prikazy. The following provisions were directed at safeguarding and fostering the principles of art. 1. Art. 3 allowed the parties to challenge a judge for ­partiality, but only before or during the trial, not afterwards (art. 4). Previous legislation (the Codes of 1497 and 1550) had restricted itself to the mere declaration of judicial impartiality, without providing for any sanctions. Art. 5 (Ch. 10) of the Ulozhenie corrected this omission. Judges found guilty of favouritism were to pay three-fold compensation to the person wronged and a fine to the tsar. ­Additionally, all such judges were deprived of their rank and lower judges were also to be punished with the knout. Arts. 7–22 elaborated on art. 5 by regulating all kinds of special situations, such as judges committing errors without evil intent (bez khitrosti), bribery and related offences committed by court clerks and their assistants (d’iaki and pod”iachie), false accusations of bribery against judicial personnel, tampering with court records, filing patently slanderous actions, etc. Chapter 10 of the Ulozhenie, unlike its predecessors, did not deal specifically with the traditional division between the central Moscow courts and the provincial courts. It mentioned the latter in passing, as in art. 6 which simply stated that the rule of art. 5 also applied to provincial judges. It has to be kept in mind that the jurisdiction of the provincial courts was severely restricted by 2 The Pskov Charter warned the court not to abuse its position to exact revenge or show favouritism (sudom ne mstitsia ni na kogo, a sudom ne obchitis’), the Code of 1497 used a similar formula (A sudom ne mstiti, ne druzhiti nikomu), as did the Code of 1550 (A sudom ne druzhiti i ne mstiti nikomu). The Ulozhenie offered a much longer formula: “[the court] shall not of its own accord add or remove anything from the records of the case out of friendship or out of enmity, nor favour a friend or harm an enemy, nor favour anybody in any matter for whatever reason” (a svoim vymyslom v sudnykh delakh po druzhbe i po nedruzhbe nichego ne pribavliati, ni ubavliati, i ni v chem drugu ne druzhiti, a nedrugu ne mstiti, i nikomu ni v chem ni dlia chego ne noroviti).

952

chapter 38

the existence of several separate jurisdictions. Criminal cases were mostly the responsibility of the Brigandage Department and, in the provinces, of the guba courts. Other prikazy, such as the Slavery Department (in most matters concerning slaves), and the Department for Service Estates (the Pomestnyi prikaz, for disputes concerning land) handled cases within their jurisdiction. While the provisions surveyed hitherto had the upholding of judicial impartiality and in particular the combating of bribery as their central theme, arts. 23–26 envisaged another perennial and seemingly ineradicable defect of the administration of justice in Muscovy: bureaucratic inertia, volokita (procrastination, red tape). Judges were required to turn up for work, even on Sundays and holy days in exceptional cases. Art. 20 appeared to be designed to protect the tsar and his personal staff from excessive involvement in the work of the judiciary. While the supreme judicial powers of the tsar were an essential element of autocracy and the tsar consequently had the power to overturn any judicial decision, it was not allowed to petition the tsar directly about court cases; such petitions were to be directed to the competent departments (prikazy). Only if the department decided negatively was the petitioner allowed to approach the tsar himself. Violations of this procedure were punished by flogging with sticks (batogi), or, for high-ranking persons, by imprisonment for one week. Below the tsar and the Boyar Council serving as a supreme court, the judicial departments acted as the central Moscow courts. These departments were mentioned only a few times in passing in the Ulozhenie.3 The principal one was the Vladimir Judicial Department (Vladimirskii Sudnyi prikaz), emerging around the end of the rule of Ivan iv. It served as the ordinary court for the higher echelons of the Muscovy aristocracy and for the population of a great number of subordinate towns and of the vast territory of the former Novgorod republic. Additionally it served as the appellate court for the other judicial departments. The most important of these was the Moscow Judicial Department (Moskovskii Sudnyi prikaz), which arose at about the same time as the Vladimir Department. The Moscow Judicial Department handled cases of the lower Moscow nobles and of their dependent peasants and slaves. Third in rank was the Riazan’ Judicial Department (Riazan’ was the last independent Russian principality incorporated into Muscovy) and fourth in rank the Dmitrov Judicial Department (Dmitrov was an apanage principality ruled by a cadet branch of the Moscow grand princes).4 3 Ch. xvii, art. 33; Ch. xviii, art. 31; Ch. xx, art. 4; Ch. xxi, art. 49. 4 Cf. D.V. Liseitsev, N.M. Rogozhin, Iu.M. Eskin, Prikazy Moskovskogo gosudarstva xvi–xvii vv. Slovar’-spravochnik, Moskva, 2015, 181–199.

Courts and Justice; Civil Procedure

953

Special (Secular) Courts Several chapters devoted to special themes referred in passing to judicial functions of specific departments (prikazy). Other chapters contained clear provisions assigning judicial duties to such prikazy. An example of the first category in Ch. 10 is the Service Land Department (Pomestnyi prikaz), which was not only the central agency for the registration of service lands and the peasants attached to such lands, but was also entrusted with the decision of various disputes which had arisen in connection with service lands and dependent peasants; similarly, the jurisdiction of this department was mentioned repeatedly in the chapters on service estates and on hereditary estates (Chs. 16-17). Another example is the casual mention of the Lower Volga towns in art. 20 of Ch. 13. Territories which had formerly belonged to the khanates of Kazan’ and Astrakhan’ had been placed for all administrative, military, financial and also judicial matters under a special department, the Prikaz of the Kazan’ Palace (Prikaz Kazanskogo dvortsa). This situation lasted from the middle of the 16th century until 1709, when a regular Kazan’ province (guberniia) was set up.5 A similar special jurisdiction created for a specific category could be found in Ch. 23 of the Ulozhenie, providing that criminal and civil cases involving musketeers (strel’tsy) were to be handled by the Musketeer Department (Streletskii prikaz). Chapter 25 of the Ulozhenie (the Statute on Illicit Taverns) granted comparable jurisdictional powers to the Taverns Department (Kabatskii prikaz, or “New Quarter”, Novaia Chetvert’ in the terminology of the Ulozhenie), which however did not function as such for very long.6 By far the most important prikaz with judicial functions was the Brigandage Department (Razboinyi prikaz, after 1683 Sysknoi prikaz, “Investigation Department”), initially the central agency for supervising and regulating the struggle against robbery and related types of professional crime and having its origin in the guba reforms discussed in the Chapter 33, on Local Government. In the end the Brigandage Department evolved into the central department for dealing with serious crime. It was abolished in 1701 in the course of the Petrine reforms. Other prikazy were also charged occasionally with judicial powers within the sphere of their jurisdiction. Arbitration Courts Art. 5 of Ch. 15 had a separate heading: “On the Arbitration Process” (O treteiskom sude). The long provision constituted a brief but comprehensive treatment of 5 Ibidem, 74–79. 6 Ibidem, 71–73.

954

chapter 38

the subject. According to Man’kov, it was based not on past legislation but on customary law and represented new legislation.7 The most significant feature of the arbitration procedure as regulated in this provision was that it was fully integrated into the official court system. The procedure was initiated by a memorandum, signed by the parties, binding them to abide by the decision of the arbiters. If a party did not live up to its promise, the arbiters would receive the dishonour compensation to which they were entitled and a fine was to be paid to the tsar. The parties would, as a rule, each appoint one arbiter. If the two arbiters failed to agree, the case was referred to the competent department (prikaz). Guba Courts The establishment of guba courts was one of the principal innovations of the reforms during the early period of the reign of Ivan iv. They were discussed in the section on these reforms in Chapter 33, on Local Government. Dealing with robbery and theft, the subject of Ch. 21 of the Ulozhenie, was the main responsibility of the guba courts. In the city of Moscow itself, where no guba court was active, those cases were handled by the Moscow Department (Zemskoi dvor). Most of the 104 articles of Ch. 21 were devoted to the regulation of the procedural aspects of prosecuting and trying cases of robbery and theft. Only a few provisions at the beginning of the chapter mentioned the constitution and jurisdiction of the guba courts (arts. 1–6). The judges, called guba elders (gubnye starosty), were to be elected from the ranks of those minor noblemen (dvoriane) who were for some reason excused from serving in the army; they had to be literate. In towns where no such dvoriane were available, the next lowest category of servicemen, deti boiarskie, was eligible. All free taxpaying residents of the town and surrounding region were entitled to participate in the election. The guba elders were assisted in their judicial tasks by sworn assistants (tseloval’niki – persons who had kissed the Cross, i.e. taken an oath) and clerks. In regions where no guba courts had been set up, jurisdiction in cases of robbery and theft reverted to the general court, i.e. governors (voevody) and prikaz officials. The guba courts were abolished in 1702 in the course of the Petrine reforms. Private Courts The existence of private jurisdictions based on grants of full or partial judicial immunity had gradually become an anachronism in Muscovy. Art. 153 of Ch. 10 7 In A.G. Man’kov (ed.), Sobornoe Ulozhenie 1649 goda. Tekst. Kommentarii, Moskva, 1987, 250–251.

Courts and Justice; Civil Procedure

955

of the Ulozhenie was clearly intended to put an end to the practice. It forbad the granting of immunity charters to landowners and ordered the confiscation of such charters found in private possession. The wording of the provision suggested that it was directed especially against individual landowners and not so much against monasteries or bishops. Immunity charters continued to be issued to the latter after 1649.8 Church Courts See Chapter 39, on the Church and Monasteries.

Court Officials

Muscovy courts generally consisted of several judges. This would apply of course to the Boyar Duma when it functioned as a supreme court, but also to many other courts. The prikaz was headed by a boyar or other person with Duma rank (okol’nichii, Duma dvorianin, or Duma d’iak), who decided cases together with three or four appointed associate judges (Ulozhenie, Ch. 10, art. 23). The guba courts were formed by the guba elders (starosty, usually three) and their associates, the tseloval’niki, three or four but sometimes more. With the much less prominent provincial courts of the voevody, the situation is less clear. The voevody were the functional successors of the namestniki and ­volosteli and the Code of 1550, without being very specific, seemed in many provisions to allow the latter officials to act as single judges. Ampleeva, however, states as a fact that the voevody, at the time of the Ulozhenie, acted as judges in consort with several associate judges, who would be one rank lower than the v­ oevoda himself.9 The exact relationship between the voevoda as presiding judge and his associates remains a matter of debate. Lower-ranking ­local judges, such as tiuny, probably followed the pattern set by the court of the voevoda. In the Code of 1497 of Ivan iii the court clerk or secretary (d’iak) had already emerged as a prominent procedural actor, especially on account of the importance attached in this Code to written court records. The increased weight 8 Ibidem, 203. 9 T.Iu. Ampleeva, “Izmeneniia v organizatsii suda i pravosudiia po Sobornomu Ulozheniiu 1649 g.”, PRoP iii/3, 400–414, at 404–405; according to Ampleeva, the sons of the voevoda were frequently appointed as associate judges with their father. Much of this paper is based on F. Dmitriev, Istoriia sudebnykh instantsii i grazhdanskogo sudoproizvodstva ot Sudebnikov do Uchrezhdenii o guberniiakh, Moskva, 1859.

956

chapter 38

given to written documents was also one of the notable characteristics of the Court Charter of Pskov, the principal predecessor to the Sudebnik of Ivan iii. In the Code of 1550 of Ivan iv the d’iak was mentioned along with the boyars and other high-ranking officials as one of the judges (arts. 1ff.). This line was continued in the Ulozhenie. At the same time the court secretary was mentioned frequently as the person responsible for court records. Much of the actual record-keeping was in the hands of the assistants of the d’iaki, the pod’iachie. In lower courts the court clerk was often referred to as d’iachek. Scribes in prikazy and administrative departments were designated as pistsy. The actual execution of judicial business was carried out by a staff of officials. At the head of this staff was the pristav or bailiff, an official with considerable authority. In the Ulozhenie, the duties of bailiffs were regulated in particular in arts. 137–148 of Ch. 10. The Ulozhenie used the terms pristav and nedel’shchik seemingly indiscriminately when referring to bailiffs in these provisions. As pointed out in Chapter 34, on Criminal Law, the functions of these officials were historically different but had become almost identical at the time of the Ulozhenie. The Codes of 1497 and 1550 also mentioned, along with the nedel’shchik, officials designated as pravetchiki and dovotchiki. The pravetchiki were apparently bailiffs attached to the court of the namestnik in the provinces, while the nedel’shchiki, who worked in teams, were primarily attached to Moscow courts.10 The dovotchik was charged in particular with serving summonses. The bailiff had various judicial servants and police officers under his command, to assist him in his duties, such as investigating crimes, arresting suspects, serving summonses, conducting searches, escorting prisoners, carrying out capital sentences and inflicting corporal punishment, etc.

Civil Procedure

The primary focus of the Sudebnik of 1497 of Ivan iii was on the unification of court fees and related expenses. The text dealt with all kinds of situations in which courts, court clerks and scribes, bailiffs and other supporting staff were entitled to certain payments. The structure of the Code was determined to a considerable extent by a chronological perspective. In his mind, the drafter went through the consecutive phases of a trial, from the first steps taken by a plaintiff to the execution of the court’s judgment. In the course of this process, all kinds of side issues could come up and be dealt with. As a result, the 10

Cf. prp iv, 273.

Courts and Justice; Civil Procedure

957

modern lawyer may be baffled by a seemingly chaotic hotchpotch of civil and criminal elements. It would be pointless therefore to look for some description of the law of civil procedure, although a careful collection of individual items would allow one to put together a general outline of a civil action under the Code of 1497. A more detailed picture emerged in the Code of 1550, thanks also to its greater length and less emphasis on court fees. But only the Council Code of 1649, the Ulozhenie, reached a degree of systematization in which some of the main aspects of civil procedure could be treated coherently.11 Arts. 100–123 of Ch. 10 (on Courts) covered many aspects of the early phase of a civil action, while other questions of civil procedure, evidence in particular, were treated in arts. 154–178. Additionally, there were several other, shorter sequences of provisions concerning procedures in civil actions. Civil proceedings were initiated by a document, called pristavnaia pamiat’, in which the plaintiff was to state his claim, including its precise amount (art. 100). This document was to be signed by the court clerk (d’iak), who was forbidden to sign if the amount claimed was not stated clearly. It was then delivered by the bailiff (pristav) to the defendant.12 The defendant would then post a bond on himself (that he would appear for trial). At the trial the plaintiff would present a request of claims (iskovaia chelobitnaia); failure to specify the amount claimed would lead not to rejection of his claim, but to an order by the court to correct the request (arts. 101–102). Arts. 103–104 gave further directions about corrections and amendments in the pristavnaia pamiat’ or the iskovaia chelobitnaia. The long text of art. 105 was concerned with improper behaviour by the parties during trial, ranging from impolite words to killing people present at the trial. This provision was one of the numerous examples of criminal law rules being inserted in complexes dealing with other matters. Art. 105 has often been considered as one of the clearest examples of the influence of the Lithuanian Statute, where similar subjects were regulated in its chapter on courts. Indeed, if one compares this section of Ch. 10 of the Ulozhenie (arts. 100–123) with Ch. 6 11

12

K.D. Kavelin, at the time attached to the law faculty of the university of Moscow, published a remarkably astute survey of the Russian law of civil procedure as it operated between 1649 and the 1775 legislation on provinces (gubernii): Osnovnye nachala russkogo sudoustroistva ot Ulozheniia 1649 g. do Uchrezhdeniia o guberniiakh 1775 g. (Moskva, 1844, repr. Moskva, 2010); most of it concerned the pre-Petrine period (1649–1696), 1–75. Pristavnaia pamiat’ may be read as “memorandum to be delivered by a pristav”, or as “memorandum in which a claim is presented”, because the verb pristaviti is also used in the provisions of Ch. x in the sense of “to present a claim”. See Man’kov, op. cit., 193.

958

chapter 38

of the First Lithuanian Statute of 1529 (or the Statute of 1566), one is struck by the numerous and often close parallels, although the similarity never suggests direct borrowing. It is well-known that the Moscow drafter had access to the Lithuanian text (written in Old-Russian/Old-Belorussian) and used it as a source of inspiration. The following provisions (arts. 107–123) considered all kinds of situations that could arise during the trial (absence of one of the parties, postponements and continuances, surety bonds, etc.). When the trial was over, the parties had to post surety bonds (stavochnye poruchnye) that they would not leave ­Moscow before judgment was announced (art. 123). Surety bonds generally played a major role in enforcing the parties’ observance of procedural requirements. When the surety bond had been posted by a guarantor and the debtor, after losing his case, failed to pay back the bond, he had to pay a fixed fine of three roubles per month to the guarantor, on top of the principal (art. 155). This provision is part of a second batch of civil procedure rules (arts. 154–178), starting with the rule that a plaintiff who had lost his case or who had settled with the defendant, and who then brought an identical action against the defendant, would be punished by being flogged with sticks (batogi); additionally he had to pay indemnities to the defendant (art. 154). The next series of articles (156–160) was devoted to various procedural incidents requiring specific steps and investigations. Arts. 161–162, both of them extremely long, dealt with the procedure known as “general investigation” (poval’nyi obysk), in which a great number of people were to be interrogated on certain questions in dispute (see the section on “evidence” in Chapter 34, on Criminal Law and Procedure). The much shorter arts. 163–164 and 167 concerned the same subject. The ‘narrative’ of the Ulozhenie then moved to the treatment of all sorts of questions concerning the evidence of various kinds of witnesses, where it is not always clear whether reference is then to the evidence provided by the general investigation, or to witnesses’ evidence in general. Other points of the law of civil procedure turn up incidentally in other parts of Ch. 10. The question of appellate procedure assumes a different character in a system in which modern principles concerning the stability of judgments prevail. The point indicated above (about punishing a person who brings an identical action after having lost his case) illustrates this. Modern legal systems impose strict rules about the permissibility of appeals; the Ulozhenie was much more tolerant in allowing parties to pursue their aim in acquiring a decision in another court. Bypassing intermediate judicial instances was forbidden only in respect of directly approaching the tsar (discussed above). Art. 2 of Ch. 10 recognized the tsar as supreme judge, insofar as prikazy could send cases up to

Courts and Justice; Civil Procedure

959

him by means of a report (doklad) about their inability to solve a particular dispute. The Oath The whole of Chapter 14 of the Ulozhenie was devoted to the oath as a decisive procedural event in both civil and criminal law.13 Anybody, including slaves, over 20 years of age, could take the oath (“kiss the Cross”); foreigners were to swear according to their own religion (arts. 1 and 3). The kissing of the Cross was surrounded with solemnity and the Ulozhenie laid great stress on its sanctity (“Violating the oath by kissing the Cross is the most evil thing of all”, art. 10). Curiously, the penalties for false oaths described in this chapter were ecclesiastical, but there was a reference to Byzantine law, which ordered the tongue of the person swearing falsely to be cut out, and also to the penalties indicated in Ch. 11 of the Ulozhenie. Art. 27 of the latter chapter (swearing a false oath in a matter of a stolen slave) imposed a most severe penalty: being flogged with the knout in the market place for three days, imprisonment for one year, and a version of mort civile: being deprived of all credibility in all matters and of the capacity to sue anybody in court. The Church’s attitude towards the traditional oath (kissing the Cross) was increasingly negative, mainly because of the fear that such oaths would often be sworn lightly. When secular powers eventually reached the same conclusion, implying that the oath represented an unsatisfactory means of producing evidence, the oath disappeared as a procedural tool.14 13

14

The origin of some of this chapter was in a decree of 17 November 1628 in which twelve separate decisions concerning procedural questions were combined. See N.E. Nosov (ed.), Zakonodatel’nye akty Russkogo gosudarstva vtoroi poloviny xvi – pervoi poloviny xvii veka [zarg]. Teksty, Leningrad, 1986, No. 188, 148–151. Cf. M.V. Korogodina, “Pravila o krestnom tselovanii”, A.Iu. Dvornichenko (ed.), Issledovaniia po istorii srednevekovoi Rusi. K 80-letiiu Iuriia Georgievicha Alekseeva, Moskva/SanktPeterburg, 2006, 171–179.

chapter 39

The Church, Monasteries, and Church Law

Church-State Relations in Muscovy1

As explained in Chapter 21, the Russian Church was not affected as badly by the Mongol invasion of the 13th century as the secular political institutions. It enjoyed a privileged position, compared to that of the principalities, and was even allowed to establish the new eparchy of Sarai in the vicinity of the headquarters of the khan of the Golden Horde. A decisive role in these developments was played by Kirill, who started his career as the keeper of the seal of the prince of Galicia, Daniil Romanovich. The princes of Galicia, along with the princes of Vladimir, were among the most powerful of the Russian princes during the chaotic period of the Mongol invasion. Just before khan Batyi mustered his forces to attack Kiev, Daniil had been accepted by Kiev as its prince, thus becoming nominally the first among the Russian princes. The Mongols attacked Kiev in 1240. Daniil had left the defence of the city to his general Dmitrii, being involved himself in domestic troubles in Galicia. The Greek metropolitan of Kiev, Iosif, was killed during the destruction of Kiev in 1240. A  Galician bishop, Iosafaf of Ugrovsk, an ally of prince Daniil, assumed the metropolitanate, but was not accepted by the Kievan clergy. Daniil, in Hungary at the time, deposed Iosafaf upon his return and appointed his close collaborator Kirill, who then travelled to Byzantium to receive the formal recognition and confirmation of the patriarch of Constantinople. Daniil of Galicia’s attention was increasingly absorbed by his efforts to consolidate his position in his own principality, where he was facing opposition from family members and boyars, and endless hostilities with his Hungarian, Polish and Lithuanian neighbours. In this connection the idea of overcoming the Great Schism of 1054 and bringing about a union between the Eastern and the Western churches was revived. Daniil’s acceptance of the crown of Galicia, offered by the pope, is to be seen in this light; he was crowned king in 1254. Kirill in the meantime had been active as metropolitan in Russia where he developed close relations with grand prince Aleksandr who, unlike Daniil, was secure in his dignity as grand prince of Vladimir, buttressed by the protection 1 The narrative of this section is based mainly on the works of R.G. Skrynnikov, Krest i korona. Tserkov’ i gosudarstvo na Rusi ix–xvii vv., Sankt-Peterburg, 2000, and its predecessor Gosudarstvo i tserkov’ na Rusi xi–xvi vv. Podvizhniki russkoi tserkvi, Novosibirsk, 1991.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_040

The Church, Monasteries, and Church Law

961

of the khan. In these circumstances it made good sense for the metropolitan to join forces with Aleksandr Nevskii, the more so when it seemed that his former protector Daniil was making overtures to the detested Latins. Under Kirill, the Russian Orthodox Church allied itself closely with the rulers of Vladimir and this alliance was to last for many centuries, in which these rulers became the grand princes and then tsars of Moscow. While the Kievan Church was predominantly an urban force in a country where paganism was still very much alive in rural areas, the 14th and 15th centuries saw the expansion of monasticism in the countryside. Monasteries represented a powerful factor in the policies of rulers to enlarge the reservoir of agricultural land. They were to be preferred in some ways to secular landowners. Additionally, in the medieval perception, endowing monasteries in ­exchange for their prayers for the souls of the donors constituted a solid motive for being generous. As a result, the monasteries collectively emerged as the most important landowners from the end of the 15th century onwards, after the grand prince (and then the tsar) himself. This caused tensions not only in the relationship with the government, but also within the monastic world itself. In Chapter 21 the struggle between two monastic factions was mentioned, the nestiazhateli, opposed to monasterial wealth, with the charismatic Nil Sorskii (1433–1508) as their leader, and the party of Iosef Volotskii, abbot of Volokolamsk (1439–1515), who held that monasteries would be able to fulfil their role in the world only if they had sufficient material goods at their disposal. Iosef Volotskii successfully resisted the attempts of Ivan iii to secularize land belonging to monasteries, but then acted as a strong advocate of the supreme power of the grand prince under Ivan’s son Vasilii iii. His justification of the divine origin of the power of the ruler was in perfect harmony with the theory of the Third Rome, expounded during the reign of Vasilii iii and his son Ivan iv by the monk Filofei. According to this theory, Russia and its divinely appointed ruler had been entrusted by God with the mission to lead and defend Christendom, after the First Rome had fallen into heresy and the Second Rome (Constantinople) had been overrun by the infidels.2 In the relationship between the Russian state and the Orthodox Church the question of landowning by the Church remained an unsolved problem. Most of the church-owned land was in the hands of the monasteries, although 2 A recent review of the extensive Russian and foreign literature on the Third Rome theory in V.I. Alekseev, Rol’ tserkvi v sozdanii Russkogo gosudarstva. Period tsentralizatsii: Ivan iii, 1462–1505 gg., Sankt-Peterburg, 2003, 251–270, and also A.N. Sakharov, Drevniaia Rus’ na ­putiakh k «Tret’emu Rimu», Moskva, 2006.

962

chapter 39

e­ piscopal sees, the cathedral churches of Moscow and Novgorod in particular, also owned extensive estates in various parts of the country. The partly successful attempts to curb the expansion of monasterial wealth have been discussed in the section on the reforms of Ivan iv in Chapter 23. In Ivan’s allocution to the church council preceding the adoption of the Stoglav in 1551 the evils of this development were not only stressed, but they were explicitly connected with the poverty of many members of the lower nobility, the dvoriane and deti boiarskie. The ascent of this class, encouraged by the tsar for political purposes, created a new perspective for the Church-state relationship. After its first decade, the rule of Ivan iv became increasingly irrational, to descend into the bloody chaos of the oprichnina, as a forerunner of Stalin’s Great Terror. The metropolitan Filipp, who had publicly opposed Ivan’s policies of violence and arbitrariness, was arrested after he had refused to bless the tsar during a solemn service, as was the custom. He was then strangled by the infamous Maliuta Skuratov, Ivan’s chief hatchet man, in the cell where he was imprisoned in 1569. Ivan iv was succeeded in 1584 by his son Fedor, but government was actually in the hands of Boris Godunov, a brother of the tsaritsa Irina. It was Boris Godunov who, after troublesome negotiations, managed to secure the promotion of the Moscow metropolitan to patriarchal rank in 1589 (see below). After Fedor’s death in 1598 Boris succeeded him as tsar, until his death in 1605. The patriarch Iov, who owed his elevation to tsar Boris refused to bless the First Pseudo-Dimitrii who had overthrown Boris’ son Feodor, and was robbed of his dignity and exiled (1605). A Greek clergyman, Ignatii, was elected patriarch. But the next year the First Pseudo-Dimitrii was killed in a plot organized by a boyar faction which then put one of its own, prince Vasilii Shuiskii, on the throne. Then it was the turn of patriarch Ignatii to be deprived of his rank. This was also the moment when Fedor Nikitich Romanov appeared at the centre of the stage where Church and state interests met. The Romanovs were a leading boyar clan under Ivan iv, whose first wife was Anastasiia, a sister of Nikita, Fedor’s father. They were opposed to the Godunovs and after an unsuccessful plot against tsar Boris Godunov in 1600 they fell into disgrace. Fedor Nikitich was forced to become a monk, receiving the name of Filaret, and was exiled to a remote monastery. When the First Pseudo-Dimitrii became tsar in 1605, Filaret’s prospects brightened and he was made archbishop of Rostov. After the death of the First Pseudo-Dimitrii in 1606 the church leaders had to replace patriarch Ignatii and their choice fell on Filaret. The new tsar Vasilii Shuiskii and Filaret belonged to different boyar factions and Filaret was therefore sent on a mission, in order to get him out of Moscow. In the turbulent conditions of the day, it was considered ­inevitable

The Church, Monasteries, and Church Law

963

to have a patriarch in Moscow, and the archbishop of Kazan’, Germogen (­Hermogen), who had been a strong opponent of the First Pseudo-Dimitrii, was elected. In 1607 a new pretender appeared in Western Russia, known as the Second Pseudo-Dimitrii or as the “Thief of Tushino”, a village near Moscow where he had his headquarters for most of the time. Russia was suffering from economic disasters, famine and civil war, and the position of tsar Vasilii Shuiskii in Moscow was becoming more and more precarious. The Second Pseudo-Dimitrii was widely recognized as the rightful tsar, allegedly the last surviving son of Ivan iv, who had supposedly not died as a boy, returned as the First PseudoDimitrii and miraculously survived in 1606. The unsinkable Filaret had been taken prisoner by the new pretender’s forces in 1608 and the two men recognized their common interests. Filaret who had known the original grand prince Dimitrii of Uglich as well as the First Pseudo-Dimitrii, vouched for the authenticity of the claims of the Second Pseudo-Dimitrii, who then had Filaret accepted as patriarch. In this situation when, in the words of Skrynnikov, Russia had two capitals, two tsars and two patriarchs, the Time of Troubles was approaching its nadir. It is undeniable that religious aspects constituted an important factor in the tumultuous developments of the Time of Troubles, and this made the positions taken by the Russian Church and its leadership of great significance. The king of Poland and Polish magnates were much involved in the affairs of ­Russia during the last few years of the Time of Troubles, and both PseudoDimitriis were considered as having strong Roman-Catholic connections.3 Polish involvement became a dominant factor in 1609, when a Polish army laid siege to Smolensk. When the Poles then stopped supporting the Second Pseudo-Dimitrii, the latter left his ‘capital’ in Tushino by the end of 1609.4 ­Filaret and other supporters of the Second Pseudo-Dimitrii started to negotiate with king Sigismund iii of Poland about accepting the Polish crown prince Władysław as tsar of Russia. But Filaret was taken prisoner again, this time by the army of tsar Vasilii. He was taken to Moscow in 1610 where he was pardoned by the tsar and patriarch Germogen and restored to his former dignity as metropolitan of ­Rostov. Later in the same year the forces of tsar Vasilii were 3 The First Pseudo-Dimitrii was married to Marina Mnishek (Mniszech), the daughter of a Polish magnate, who then became the Russian tsaritsa in 1605. As the widowed tsaritsa she regained her former position when she recognized her previously deceased spouse in the Second Pseudo-Dimitrii in 1607. After his downfall she was imprisoned in Kolomna, where she died in 1614. 4 His political and military position quickly eroded and he was killed in the autumn of 1610.

964

chapter 39

beaten by the Poles at Klushino and this brought about the downfall of Vasilii, who was extradited to the Poles by his opponents and ended his life as a prisoner in Warsaw in 1612. In Moscow in the meantime the government, or what was left of it, was in the hands of a group of leading boyars (the Seven Boyars or Semiboiarshchina). The Polish army was at the gates of Moscow. The boyar government again took up negotiations with the Poles, who were allowed to install a garrison in Moscow in September 1610. Filaret headed a mission to the Polish king, who was with his army at the siege of Smolensk, to hammer out the details of the succession of the Polish crown prince to the throne of Moscow. But when no agreement was reached, Filaret, who secretly had been promoting his own son Mikhail as the new tsar, was arrested by the Poles and sent to Poland, where he remained until 1619. In the following two years the confusion grew to such an extent that an adequate description would exceed the bounds of what is essential for outlining the relations between Church and state. It must suffice to admit that the uncompromising conduct of patriarch Germogen propelled him to the position of being the only credible stronghold for the self-identification of Muscovy as the home of Russian orthodoxy. Power in Moscow had remained in the hands of the boyar government and the Polish commanders, who continued their efforts to get the Polish prince installed as Russian tsar. Germogen’s opposition cost him dear, as he was incarcerated in the Kremlin, where he died in February 1612 of old age and exposure. Seven months later ­Moscow was recaptured by a mixed Russian force consisting of the armies of different military and political leaders. (See also Chapter 30.) A national council was convened, and after a long struggle between the various i­nterested parties, Mikhail Romanov was elected as the new tsar in February 1613. After Germogen’s death the see of Moscow remained vacant until Filaret was released by his Polish captors in 1619. He was then installed as patriarch of Moscow and All Russia, which resulted in the unique constellation of Church and state in Russia being headed by father and son, a situation which lasted until Filaret’s death in 1633. Laws in this period were promulgated by tsar and patriarch together, both being designated as “sovereign lord” (velikii gosudar’). There is general agreement that from 1619 to 1633 Filaret was the actual ruler of Russia. If he was a consummate and unprincipled opportunist, he was also a perspicacious and adroit politician, forceful when necessary. As patriarch, he organized the management of the vast patriarchal estates according to the model of a small state, with its own civil servants, departments (prikazy), etc. He was succeeded by Ioasaf, archbishop of Pskov (1634–1640), who was devoid of political ambitions but highly regarded by the tsar, who was a deeply ­religious person himself.

The Church, Monasteries, and Church Law

965

Mikhail Romanov was succeeded in 1645 by his son Aleksei, who was 16 years old. By that time the Romanov dynasty could not yet be regarded as safely in the saddle; the dominant position the great boyar clans had enjoyed during the Time of Troubles had not suddenly disappeared. At the same time the much larger contingent of minor nobles, the backbone of the Muscovy state, continued to be a major force, and the common people of Moscow, the chern’ (the ‘black’ people), had shown itself to be a highly volatile but at times decisive factor in the country’s politics. Under those circumstances a young and inexperienced tsar had to depend on solid and influential advisors. Initially, these came from the higher aristocracy; patriarch Iosif, Ioasaf’s successor since 1640, occupied himself mainly with the preparation of comprehensive church reforms. Tsar Aleksei already in 1646 had made the acquaintance of a charismatic and energetic monk, Nikon, the abbot of a minor monastery. The young tsar was deeply impressed by Nikon and had him appointed as abbot of the Novospasskii monastery in the capital, and then, in 1648, as metropolitan of Novgorod. Upon the death of patriarch Iosif in 1652 Nikon became patriarch and simultaneously the most influential councillor of the tsar. Shortly before his elevation, Nikon had insisted on having the remains of metropolitan Filipp, murdered on the orders of Ivan iv, transferred from the remote Solovetskii monastery to the Uspenskii cathedral in the Moscow Kremlin as a sign of tsarist repentance before the Church. In 1653 Nikon received the title of “sovereign lord” (velikii gosudar’), as it had been enjoyed by his predecessor F­ ilaret until 1633. For several years Nikon exercized great influence over the tsar and was virtually co-ruler of the country, acting as de facto regent when the tsar was engaged in military campaigns. During these years Nikon introduced important reforms in the liturgy of the Russian Church, as well as a modernization of church texts. These reforms evoked strong opposition from more conservative clergy members and were then the cause of the Great Schism in the R ­ ussian Church (the Raskol), and the emergence of the Old Believers (1653–1656). Nikon’s reforms were supported by tsar Aleksei, and the schism of the Old Believers therefore assumed the character of sedition, leading to violent reprisals. In the long run, however, Nikon’s imperious behaviour and arrogance antagonized not only the nobles and many church dignitaries, but ultimately the tsar himself too. A church court was convened which deprived Nikon of the patriarchate in 1660. Nikon continued his protests and then in 1666–1667 a church council presided over by the patriarchs of Alexandria and Antioch demoted Nikon to the rank of a simple monk, while at the same time approving the reforms he had introduced. Also at this council, most of the decisions taken a century ago at the Stoglav council (1551) were declared to be erroneous.5 5 Some of the decisions of the 1666–1667 council can be found in Beneshevich ii, 78–88.

966

chapter 39

The general pattern of the relations between the Russian Church and the state was that wherever the viewpoints of the two diverged the secular ruler­ would have his way, although the Church was not a helpless victim of the whims of the tsar; a spirited defence, usually on theological grounds, could be successful in swaying the secular power. The ruler, on the other hand, felt free to engage church leaders in discussions about religion and impose his views. In the above survey, attention was directed primarily at the way relations between the Church and the Russian state took shape. Another perspective would be to look at developments from the point of view of the history of ideas.6 The old Byzantine idea of the “symphony” between the two (itself subject of course to historical permutations) assumed a peculiar form in Russia (as discussed in Chapter 21), and in later years theories such as the “Third Rome”, the ascetic views of the nestiazhateli, the ideas of Nikon concerning the superior nature of the Church as compared to the state, all played a role in the tensions between the two parties. However, a realistic appraisal of what actually happened would lead to the conclusion that, no matter what church leaders­would put forward, the state’s attitude would be determined by a pragmatic estimate of the usefulness of the Church and its institutions to the interests of the state. A thousand years of Russian history suggest the validity of this appraisal, without exception.

The Organization of the Church

The main changes in the organization of the Church during the reign of Ivan iii and Vasilii iii were the expansion of the number of eparchies, as new territories were added to the traditional Russian lands.7 At the same time one has to keep in mind that a large slice of what had constituted Kievan Russia had become part of the Polish-Lithuanian state. Orthodoxy continued to be the dominant religion of the ethnic Russian populations in these Western territories, but for much of the time a separate church organization, directly subordinate to the Constantinople patriarch, was in operation. The history of the relationships between the Russian Church under the Moscow metropolitan and the Russian Church in the Polish-Lithuanian territories is very complicated­ 6 An extensive and erudite overview, from the perspective of inherent limits to the power of the tsar, by V. Val’denberg, Drevnerusskie ucheniia o predelakh tsarskoi vlasti, Petrograd, 1916. 7 Also, the vast eparchy of Rostov, which covered most of the Eastern part of Muscovy and which counted a considerable non-Russian and pagan population, was raised to the rank of an archdiocese.

The Church, Monasteries, and Church Law

967

and of little or no relevance to our present topic. The most important organizational change was the establishment of the Moscow patriarchate during the reign of Boris Godunov (see below). Many matters concerning the internal organization of the Church were regulated, at least partly, by the Stoglav.8 There were chapters on archpriests (protopopy, Ch. 29), ordinary priests (ruzhnye popy, from ruga, “stipend”) and deacons (Ch. 30), internal supervision of the clergy by archpriests and priestly elders (starosty popovskie, Chs. 34–35), monasteries (Ch. 49), archimandrites and abbots (Ch. 50), church courts and their activities (Chs. 53–69), various charitable activities of the Church (Chs. 70–73),9 the position of widowed priests (Chs. 77–81), the building of new, and the fate of derelict churches (Chs.  84–85), the election of archimandrites and abbots (Ch. 86). The last Chapter 101 of the Stoglav was explicitly in the form of a joint decree by the tsar and the Holy Council and concerned the question of ecclesiastical lands. The Patriarchate Since its founding at the end of the 10th century, the Russian Church had functioned as a metropolitanate under the patriarch of Constantinople, who appointed the metropolitan of Kiev. With a few exceptions, the appointees were Greek bishops. The patriarch of Constantinople was the highest in rank and honour among the patriarchs of the Oriental Church. The Western Church had occasionally applied the title of patriarch of the West to the pope himself, although the latter’s supreme position, at least in honour, in the universal Church had never been contested.10 It had even been confirmed in the law of the ­Roman and Byzantine Empire, where the Corpus Iuris stated that the pope of Rome was the first among all priests, followed by the archbishop of Constantinople.11 The other patriarchs of the Oriental Church were those of ­Alexandria, Antioch and Jerusalem.12 Patriarchs possessed important powers of canon law 8 9

10

11 12

See also I.D. Beliaev, Lektsii po istorii russkogo zakonodatel’stva, Moskva, 2011 (3rd ed., Moskva, 1888), 668–676. In Chapter 21 we have pointed out that the welfare duties which in modern states are usually discharged by the state, such as looking after the poor and disabled, beggars, orphans, etc., had, as in the West, traditionally been left to the Church. The Church of Rome has nowadays officially abandoned the use of the title of patriarch of the West. The Latin Church still bestows the title of patriarch on particular bishops, but purely as a matter of honour. Novellae 131, Ch. 2. The four patriarchates of Constantinople, Alexandria, Antioch and Jerusalem are regarded­ as the older or senior ones, to distinguish them from more recent patriarchates which emerged in later centuries. In the view of the Eastern Church, these four p ­ atriarchates,

968

chapter 39

in their own jurisdictions. As explained in Chapter 21, the respective spheres of secular and canon (church) law overlapped to a considerable extent in the Eastern Church, on account of the theory of Symphonia of Church and state. When the regions covered by the patriarchates of ­Alexandria, Antioch and ­Jerusalem were overrun by Islam, Constantinople remained as the only Eastern patriarchate with significant powers extending into the secular sphere. As the Muscovy state grew in power and self-assurance while the Byzantine empire gradually and fatally declined, relations between the churches of Constantinople and Moscow shifted accordingly. In its death throes, Byzantium turned to the Church of Rome for support, but this simultaneously caused unrest among Russian churchmen. In 1448, just a few years before Constantinople was overrun by the Turks, the Russian bishops elected one of their own, Iona, bishop of Riazan’, as the new metropolitan. This election had been necessitated by the deposition and arrest of his predecessor, Isidor, who had accepted the Florentine Union of 1439, re-establishing the unity of the Eastern and Western churches.13 The election of Iona as “metropolitan of Moscow and All Russia” has been regarded as the birth of the autocephalous Russian Church. However, the price paid for independence from Constantinople was a schism in the ­Russian Orthodox Church, because the patriarch in Constantinople ­appointed his own metropolitan, with the title of “metropolitan of Kiev and All Russia”, for the orthodox population of the territory controlled by the Lithuanian grand princes, i.e. most of Western and Southern Russia.14 Autocephaly did not mean that the Russian Church had broken away completely from the patriarch in Constantinople; its main consequence was that it could appoint its metropolitan independently. The inevitable corollary was the increased influence of the occupant of the Moscow throne on the affairs of the Church.15 Later on, the election of the patriarch became in fact his ­appointment by the tsar.

13 14

15

together with Rome as the patriarchate of the West, constituted the Pentarchy. Their eminent position was based on the fact that all of them had been founded by one of the apostles (and the position of St. Peter by Christ himself) and that they had been the major centres of the Christian Church in the first centuries of its existence. For a full account, see E.V. Beliakova, “Ob uchrezhdenii avtokefalii russkoi tserkvi”, V.T. Pashuto (ed.), Rossiia na putiakh tsentralizatsii. Sbornik statei, Moskva, 1982, 152–156. Cf. R.G. Skrynnikov, Krest i korona. Tserkov’ i gosudarstvo na Rusi ix–xvii vv., Sankt-Peterburg, 2000, 114–116. More on the complicated question of the metropolitans’ titles: A.I. Pliguzov, “O titule «mitropolit kievskii i vseia Rusi», V.I. Buganov (ed.), Russkii feodal’nyi arkhiv V, Moskva, 1992, 1034–1042. This is also pointed out by G.V. Vernadskii in “Tserkov’ i gosudarstvo v sisteme Sobornogo Ulozheniia 1649 goda”, in P.A. Sorokin, N.P. Poltoratskii (eds.), Na temy russkie i obshchie. Sbornik statei i materialov v chest’ Prof. N.F. Timasheva, New York, 1965, 79–94, at 82.

The Church, Monasteries, and Church Law

969

The situation following the establishment of autocephaly of the Moscow Church remained extremely confused for a long time, but ultimately a much weakened Constantinople patriarchate remained, together with a Moscow metropolitanate as the main church agency in a vigorous and dynamic state, where it also served as the theological articulator of the state’s basic political aspirations. During the long and often erratic reign of Ivan iv, Church-state relations in Muscovy were often disturbed. Under his son and successor, the pious and ineffectual Fedor, the time was ripe for a new move in the relationship with Constantinople. For Boris Godunov, Fedor’s brother-in-law (shurin, brother of Fedor’s wife Irina) and the actual ruler of Russia at the time, elevation of the Moscow metropolitanate to a patriarchate was an important move to enhance the international prestige of Muscovy, as well as to bolster Boris’ precarious domestic position. (Godunov had succeeded in having his protégé Iov (Job) installed as metropolitan of Moscow.) He achieved his goal by having the impoverished patriarch of Constantinople travel to Moscow, where he was kept for many months as a prisoner, albeit in luxurious circumstances, offered money and then threatened, until he finally gave in. After several years, in 1589, having secured the approval of the other Eastern patriarchs, the patriarch of Constantinople returned to Moscow for the solemn installation of Iov as the first patriarch of Moscow, and the fifth in rank after the other four patriarchs. Iov’s patriarchal dignity was confirmed by the tsar’s charter, in which the theory of Moscow as the Third Rome was officially expressed for the first time. (It had been current already during the reign of Ivan iv.)16 Together with the establishment of the Moscow patriarchate, the entire organization of the Russian Church was upgraded. The archbishops of ­ Novgorod and Rostov were promoted to the rank of metropolitan, as were the bishops of Kazan’ and Krutitsy.17 Six other bishops became archbishops, among them the bishop of Pskov and Velikie Luki, and six new eparchies were founded. In the course of time the patriarchate had acquired enormous holdings of land, including a number of towns as well as monasteries. Under patriarch 16 17

See Skrynnikov, op. cit., 316–326 and also R.G. Skrynnikov, Gosudarstvo i tserkov’ na Rusi xiv–xvi vv. Podvizhniki russkoi tserkvi, Novosibirsk, 1991, 345–363. The eparchy of Sarai, founded in the middle of the 13th century in the heart of the Golden Horde, had been moved to Moscow when Mongol-Tatar dominance had come to an end; in the Stoglav its bishop appeared as vladyka sarskii i podonskii. Later on he is usually referred to as the bishop (and then metropolitan) krutitskii i podonskii and, as the senior churchman in Moscow after the patriarch, he served as the latter’s deputy; cf. I.S. Shtamm, rz ii, 472.

970

chapter 39

F­ ilaret (1619–1633) the patriarchal land and its dependent population were granted a special status by tsar Michael in 1625, converting it into an autonomous entity within the state of Muscovy. The politico-legal status of Filaret, approaching that of the tsar himself, was not attained by his successors, although Nikon, who served as patriarch from 1652 to 1667, came close to it. In the Ulozhenie, the patriarch was still granted an exceptional position in respect of that of other members of the clergy. The Ulozhenie provided a precise tool for determining the relative position of all members of society by its detailed rules on dishonour payments.18 The entire Ch. 2 was devoted to the protection of the tsar’s honour; his family members were not mentioned, but were presumably covered by the same rules. Dishonouring other persons was punished by fines and was the subject of arts. 27–100 of Ch. 10; further rules dealt specifically with various ways in which a judge or judicial officer could suffer dishonour. The patriarch was the first and most important person in the catalogue of Ch. 10. Dishonouring the patriarch entailed the most serious sanctions, including corporal punishment or being reduced to the status of a slave. All other church dignitaries were protected against dishonour by private fines, i.e. fines payable not to the state but to the person insulted. At the top of the list were the metropolitans (400 rubles), archbishops (300 rubles) and bishops (200 rubles); they were followed by the archimandrites of the Troitse-Sergiev monastery (100 rubles), the Nativity monastery in Vladimir (90 rubles) and the Chudov monastery in Moscow (80 rubles). Then came a list of 46 archimandrites and abbots, their dishonour fees descending from 70 to 10 rubles. The sequence of the monasteries was not based on chronological seniority; although the oldest Novgorod monastery (the Iur’ev or George’s monastery) was in fifth place, the Antoniev monastery in Novgorod, almost equally old, occupied only the 24th place (they were both from the beginning of the 12th century). Man’kov made the interesting suggestion that the sequence actually reflected the monastery’s services to the state; wealthy monasteries that had supplied ‘loans’ to the state in the past and might possibly be in a position to do so again in the future received some kind of compensation through the higher dishonour fees assigned to their abbots and other main clergymen.19 18

19

In Chapter 36, on Civil Law: Ownership, the section on delicts (torts), it has been pointed out that the vaguely defined and therefore very broad concept of dishonour sat astride civil and criminal law. Man’kov in A.G. Man’kov (ed.), Sobornoe Ulozhenie 1649 goda. Tekst. Kommentarii, Leningrad, 1987, 192.

The Church, Monasteries, and Church Law

971

Church Officials From its inception, the Russian Church had been entrusted with general judicial tasks, and this implied that, along with judges, there had to be supporting staff: court clerks, other administrative officers, bailiffs, constables, and so on. They have been mentioned already in the section on church courts in Chapter 21. In later years, with the growth of ecclesiastical landowning, an entire corps of church officials employed in the management of church or monasterial estates arose. As mentioned elsewhere, the volume of monasterial and church estates embraced something like a third of the entire surface of the Muscovy state. The owners of these estates acted as their economic managers, while the local bishop was to a considerable extent in charge of their government. This required the setting-up of a parallel local government organization. Recent studies, mostly of unpublished archival materials, have thrown more light on this topic.20 Church lands within an eparchy could be divided into regions with their own lieutenants (namestniki), assisted by stewards (tiuny) recruited from the minor nobility (deti boiarskie). Their main responsibility was the collection of various church taxes and general local government duties. The system was oldfashioned and conservative, as compared with secular government. For their remuneration these officials continued to rely on kormlenie (local contributions), even after kormlenie had become obsolete in general local government (see Chapter 33). The complicated and equally old-fashioned system of church taxes was administered by different kinds of officials such as popovskie starosty (elected priestly elders) and tithe officers (desiatinniki), reporting to higher church revenue officials (desiatil’niki). Zakazchiki were priests in charge of supervising marriage law and collecting taxes on marriage licenses (venechnye poshliny). Lay persons could be elected as church elders (tserkovnye starosty) and would supervise the building of churches, charitable activities, etc. Monasteries After the abbot (archimandrite), the most important persons in the monastery were, in this order, the cellarer (kelar’, the manager of the monasterial estates), the treasurer (kaznachei), and the elders (sobornye startsy). They were 20

My principal source is M.S. Cherkasova, “K izucheniiu tserkovno-administrativnykh i territorial’nykh struktur na Russkom Severe v xvi – nachale xviii v.”, A.P. Pavlov (ed.), Gosudarstvo i obshchestvo v Rossii xv – nachala xx veka. Sbornik statei pamiati Nikolaia Evgen’evicha Nosova, Sankt-Peterburg, 2007, 206–223.

972

chapter 39

all ­included in the catalogue of dishonour payments of arts. 32–80 of Ch. 10 of the Ulozhenie. Initially, archimandrite was the honorific title conceded to the abbot (igumen) of the most important or most prestigious monastery of the town; in Novgorod, the archimandrite of the Iur’ev monastery was in charge of managing the extensive monasterial estates and his appointment was in the hands of the urban elite. Later on, in some of the major towns (Moscow, Novgorod, Riazan’) other abbots might also receive the title of archimandrite. In the long list of 49 important abbots in arts. 32–80 of Ch. 10 of the Ulozhenie, 25 were ranked as archimandrites. The abbots of the Troitse-Sergiev monastery and a few other leading monasteries, constituting the pool from which the patriarch (metropolitan) and other important (arch)bishops were selected, occupied positions of national significance and the grand prince (tsar) was undoubtedly involved in their appointment. The election of other abbots was in principle a matter for the fraternity of the monastery concerned, but the local bishop and a secular personality, such as an apanage prince, would certainly be influential.

Church Legislation

What has been said above about Church-state relations in Muscovy is illustrated and concretized by its expression in church legislation. Such legislation could refer to legislation emanating, wholly or in part, from church authorities, or to legislation regulating matters concerning the Church. Within the first category, three sub-groups can be distinguished according to the legislative agency involved: legislation by the church council, legislation by the metropolitan (patriarch) or an individual (arch)bishop, and legislation­by Church and state together. The second category (legislation regarding church matters) partly overlaps the first one, because a major part of such legislation is also church legislation in the first sense (i.e. it emanated, at least in part, from church authorities). The remainder would consist of state legislation affecting the Church. The interwovenness of Church and state was demonstrated effectively by one of the most important legislative acts of the period, the Code (Sudebnik) of Ivan iv of 1550, which was enacted by the tsar, together with his brothers and boyars, but submitted for confirmation to the Church Council the next year (see also Chapter 24).21 21

The Code of Ivan iii of 1497 contained a similar pronouncement at its beginning, that it had been compiled by the grand prince together with his children and his boyars, but

The Church, Monasteries, and Church Law

973

The church council (“Holy Council”, osviashchennyi sobor) consisted of the metropolitan (later: the patriarch), the archbishop(s) and bishops, and could also include other church leaders, such as abbots of monasteries (“the entire Holy Council”, ves’ osviashchennyi sobor). Much of its regulatory activity would concern internal church questions, such as doctrine, liturgy, etc., and as such is of little relevance to general legal history. But certain decisions of the church council directly affected the law of secular society. Such council decisions (sobornye prigovory) were especially frequent during the reign of Ivan iv and in the following Time of Troubles. An early and important example was the council decision of 15 September 1550 which prohibited the establishment of new monastic immunities (slobody).22 Such slobody eroded the urban tax base and the new restrictive policy in this respect was an ecclesiastical concession to the government of Adashev, which was contemplating much more drastic measures to counteract the accumulation of wealth by the Church and the monasteries. The decision was incorporated the following year in the Stoglav (art. 98). The same government policies were reflected in a council decision of 1 May 1551 which contained various measures to curb the acquisition of real property by bishops and monasteries.23 The Stoglav itself, the most important monument of church law of the era, was also in the form of a decision of the Holy Council, in which the tsar was very much involved (see Chapter 25). Secular legislation by the metropolitan on matters covered by ecclesiastical jurisdiction is encountered occasionally in questions of secondary importance.24 Of much greater prominence was joint legislation by Church and state together. The most weighty and solemn decisions were clothed in the form of decrees of the Land Assembly (Zemskii Sobor), in which the Church Council participated along with the tsar, boyars and representatives of the lower nobility and the leading sections of the urban population (see Chapters 28, on the Land Assembly, and 31, on the Tsar’s Government). Apart from these there were numerous decrees adopted by the tsar, along with his boyars and

22 23 24

no church approval had apparently been sought. The Ulozhenie of 1649 offered a lengthy introduction outlining the drafting procedure, in which church dignitaries were involved at most stages, but omitted an unambiguous mention that the draft had been accepted and enacted. zarg, No. 3, 30; also prp iv, 580–581. zarg, No. 5, 31–32; also prp iv, 523–524, 537. These decisions were included in the Composite Code of 1589 (Ch. 13, art. 125, and Ch. 21, arts. 123–124). Such as a decree of the metropolitan on the form of last wills, of 14 March 1561, zarg, No. 35, 53–54.

974

chapter 39

the Church Council;25 occasionally, the Church Council would legislate in conjunction with the boyars.26 From 1609 to 1633 most decrees of tsar Mikhail Romanov were issued together with patriarch Filaret (his father).27 Church law proper, i.e. law which regulated the organization and activities of the Church, can be found (as indicated above) in sources emanating from the Church alone, but also in state legislation and in joint Church-state legislation. Many aspects of church law would be of little interest to the state, which therefore would not involve itself in questions of theological doctrine, liturgy, etc. The canon law of the Russian Church of the Muscovy era consisted of a mass of documents of the most diverse provenance (such as biblical texts, writings of church fathers, decisions of ecumenical church councils), most of them included at one time or another in various kormchie (see the section on this topic in Chapter 2, on Sources) or in the Merilo Pravednoe (“Just Measure”, see the section in the same Chapter).28 The Stoglav itself belongs in this category, a ramshackle accumulation of rules and regulations, taken from all kinds of sources, and promulgated by the Holy Council, closely monitored by the tsar, as a single code of law for the Church. The secular legislation affecting the Russian Church was overwhelmingly concerned with the question of landowning. The monasteries, as mentioned before, were collectively the largest landowners after the tsar himself;29 moreover, the metropolitanate, the archbishop of Novgorod and other bishops also 25

E.g. zarg, No. 40, 57–59, of 15 January 1580 (discussed in Chapter 36, on Ownership, section on Church Lands); zarg, No. 53, 72–73, of 12 June 1604, on recruiting troops from all estates, including those owned by the Church, to fight (the First) Pseudo-Dimitrii; zarg, No. 57, 75–76, of 9 March 1607, forbidding peasants to leave their masters (on St. George’s Day, see Chapter 35). 26 See for instance zarg, No. 37, 56, of 9 October 1572, restricting transactions concerning ancestral estates (incorporated in the Composite Code of 1589, Ch. 14, art. 163). 27 Among these joint decrees there were also several which were issued together with the Church Council, boyars, and other officials, see zarg, Nos. 87, 89 and 93, pp. 94–96, 98–100, from the years 1619–1620, concerning various subjects. 28 Beneshevich ii, has a few examples, such as decrees on the election of bishops, on the appointment of priests and deacons, and on the issuing of letters of election and appointment (blagoslovennye and stavlennye gramoty), 26–52. 29 A third of the Russian territory was owned by monasteries by the end of the 15th century, according to V.A. Bochkarev, Stoglav i istoriia Sobora 1551 g.: istoriko-kanonisticheskii ocherk, Iukhnev, 1906, 7 (quoted from T. Iu. Ampleeva, “Stoglav: istoriia sozdaniia i znachenie dlia razvitiia russkogo prava”, PRoP iii/2, 6–25, at 22).

The Church, Monasteries, and Church Law

975

owned vast tracts of land. The controversial character, in the eyes of the state, of this distribution of wealth continued to be a major factor in the domestic policies of Muscovy, from the times of Ivan iii up to the reign of Peter the Great. It is discussed in several foregoing chapters (“The Reforms of Ivan iv” in the Chapter 23; Chapter 24, on the Code of 1550; the section on “Church Lands” in Chapter 36, on Ownership).

Church Jurisdiction

The Codes of 1497 and 1550 had briefly recognized the validity of the ancient system of attribution of jurisdiction by providing that ‘church people’ (see Chapter 21 for an explanation) were subject to church jurisdiction (arts. 59 and 91 resp.). The Ulozhenie then regulated this question in greater detail. But before going into this, a special issue complicating the matter had better be examined first. The Abolition of Immunities in 1550 In the past, when princes granted land to monasteries (and sometimes to other landowners) the grants were often accompanied by immunities. Such privileges freed the owner of certain fiscal burdens, of ordinary jurisdiction, or of both. Charters granting permanent immunity from certain taxes30 were known as tarkhannye (gramoty), immunity charters concerning jurisdiction as nesudimye (gramoty). Charters granting both kinds of immunity (tarkhanno-nesudimye gramoty) were quite common. Such charters would spell out the scope of the immunity: the types of taxation and the types of civil actions and criminal cases covered by the immunity. Serious criminal cases always remained within the prince’s jurisdiction. Civil cases between persons covered by the immunity (such as ‘church people’) and outsiders were submitted to a mixed court. Jurisdiction, such as delegated by the immunity, was to be organized by the beneficiary of the immunity.31 Inevitably, the custom of granting judicial immunities to numerous monasteries and other church institutions took a large bite out of the main two-track judicial system of secular and church courts. Once Russia had been united ­under a single ruler, the entire immunity structure (affecting both taxation 30 31

Charters granting fiscal immunity for a limited period were known as l’gotnye gramoty; see also Chapter 11. A convenient overview of the subject in S.B. Veselovskii, Feodal’noe zemlevladenie v SeveroVostochnoi Rusi, Moskva/Leningrad, 1947, 110–145.

976

chapter 39

and jurisdiction) was increasingly considered by the grand prince (the tsar) to be onerous and obsolete. A major step to correct a system regarded as unbalanced, was taken in 1550 when the last sentence of art. 43 of the Code stated: “Immunity charters [tarkhannye] will not be issued to anybody in the future, and old immunity charters will be taken away from everybody.” The question of how this laconic legislative statement affected immunities granted to ecclesiastical entities obviously depended on the meaning attributed in this case to the term tarkhannye. If it had also included judicial immunity charters (nesudimye or tarkhanno-nesudimye), it would have brought about a major reduction of church jurisdiction. The absence of this result can then be explained by the prompt and effective opposition by the Church, embodied in the Stoglav, promulgated a year later. This, for instance, seems to be the view of S.I. Shtamm, who remarked that art. 43 of the Code of 1550 had been declared unlawful by Chapters 60–65 of the Stoglav (devoted to church courts).32 A more nuanced version of this view was advocated by B.A. Romanov, who pointed in particular to Ch. 67 of the Stoglav, entitled “On nesudimye gramoty”, which provided that the granting of immunity charters to monasteries, in which they were given immunity from the jurisdiction of the (local) bishop, “had been given contrary to holy regulations” and that such charters were not to be issued in future.33 The meaning of art. 43 of the Code of 1550 was therefore, according to Romanov, to restore the original jurisdiction of the bishop over the monasteries and their personnel and that tarkhannye gramoty in art. 43 referred only to those charters which had taken away this jurisdiction and given it to the archimandrites and abbots of the monasteries concerned. A third interpretation of the last sentence of art. 43 was suggested by A.G. Poliak, who pointed out that tarkhannye in this provision referred only to fiscal immunity, not to judicial immunity (nesudimye gramoty), in other words, art. 43 abolished only the former and not the latter.34 This explanation, however, ignores the unmistakable parallels between the two provisions (art. 43 of the 1550 Code and Ch. 67 of the Stoglav of 1551) and the reference which Ch. 67 made to art. 43 (as had been pointed out by Romanov). The Romanov view therefore appears to be the most acceptable. Church Courts in the Ulozhenie of 1649 Church jurisdiction was an important source of income to the Church and, ­together with the permanently contentious question of ecclesiastical land 32 33 34

rz ii, 458. In Grekov (ed.), Sudebniki xxvi vekov, Moskva/Leningrad, 1952, 222. prp iv, 287–289.

The Church, Monasteries, and Church Law

977

ownership, it continued to be a major government concern in the century following the Code of 1550 and the Stoglav. But while there was a considerable volume of legislation concerning ecclesiastical land ownership during the century preceding the Ulozhenie of 1649, the system of court jurisdiction received less attention. Then the Ulozhenie itself introduced several significant amendments, most of them resulting in curtailing the scope of activity of church courts. Two chapters were specifically dedicated to these reforms, Ch. 12 on the Court for the Officials and Peasants of the Patriarch, and Ch. 13 on the Monastery Department. Before 1649, civil as well as criminal cases (barring homicide and robbery) involving church people were handled, in principle, by the bishop’s court, while archimandrites and abbots retained jurisdiction over monks and monasterial personnel (servitors and peasants). Certain supervisory powers were exercized by the court of the patriarch. The Great ­Palace ­Department (Prikaz bol’shogo dvortsa) handled claims against monasteries which enjoyed judicial immunity from episcopal jurisdiction and also major cases against church and monasterial dignitaries and officials. There was a special section in the Great Palace Department, entrusted with all such cases, known as the Monastery Department (Monastyrskii prikaz).35 Chapter 13 of the Ulozhenie elevated the Monastery Department to an independent prikaz which became the general court in secular cases concerning all church personnel (except the patriarch himself); it put an end therefore to almost all judicial immunities enjoyed by monasteries and other church entities. Metropolitans, bishops and abbots who had previously enjoyed personal immunity and could only be tried by the tsar himself, were treated henceforth like any other person belonging to the category of “church people”.36 Only “spriritual matters” (dukhovnye dela) remained within the exclusive jurisdiction of church officials. The Monastery Department was also the court for cases­where only one of the parties was subject to church jurisdiction. But as could be expected in an autocratic regime, consistency was lacking. Two years later, on 6 February 1651, tsar Aleksei granted full jurisdiction to the Novgorod metropolitan Nikon, the future patriarch, who at that time was very influential with the young tsar; the jurisdiction concerned all cases (apart from the most serious crimes) involving Nikon’s dependent servitors and peasants.

35

36

On the Great Palace Department, see D.V. Liseitsev, N.M. Rogozhin, Iu.M. Eskin, Prikazy Moskovskogo gosudarstva xvi–xvii vv., Slovar’-spravochnik, Moskva/Sankt-Peterburg, 37– 38. On the Monastery Department, id., 97. Man’kov in Man’kov (ed.), Sobornoe Ulozhenie, 244.

978

chapter 39

The short Chapter 12 on the judicial process involving patriarchal personnel had its origin in the special status granted to the patriarchal estates and their dependent populations, together with the numerous officials serving the patriarch. A decree of 20 May 1625 of tsar Mikhail, issued at the request of his father, the patriarch Filaret, had expanded the rights of the patriarch in the government and court system of the patriarchal lands and its inhabitants. Art. 1 of Ch. 12 of the Ulozhenie specifically referred to this development and stated that things would be different in future. The patriarchal jurisdiction remained as it was, but further appeals could be taken to the tsar and “all the boyars”.37 The general tenor of the reforms of the Ulozhenie of 1649 with respect to the Church was a reduction of its privileged position on several fronts: land ownership and fiscal and judicial immunities. Many of the reforms, however, were short-lived. Judicial immunities continued to be granted by the tsar, as mentioned above.38 The great Moscow Church Council of 1667, presided over by the patriarchs of Alexandria and Antioch, categorically exempted all church people from being judged by laymen, and the tsar confirmed this decree on 17 July 1667.39 The Monastery Department, having lost most of its powers, was dissolved in 1677. The most successful part, from the government point of view, of the reforms of the Ulozhenie with regard to the position of the Church was the abolition of the urban immunities, the slobody (see art. 1 of Ch. 19 and the section on posadskie liudi in Chapter 35). This reform, strongly advocated by the taxpaying urban population, was not specifically directed against the Church, but as most slobody were attached to churches or monasteries, the Church was the main victim. The relative success of the Church’s resistance to the reforms can be explained, according to Man’kov, by the wealth of patriarchal, monasterial and other ecclesiastical landholdings, which put the Church in a strong position as the preferred provider of credit to a state permanently short of money.40 Church Courts in the Stoglav The format of the Stoglav, as explained in Chapter 25, was a series of authoritative replies by the Church Council to 37 questions posed by Ivan iv in 1551 (the questions appeared in Ch. 5 of the Stoglav). From the point of view of ­general 37

As noted by Man’kov, op. cit., 241, art. 1 repeated almost verbatim an earlier decree of 23 July 1641, zarg, No. 287/3, at 197–198. 38 More examples in Man’kov, op. cit., 244. 39 Ibid.; text of the relevant passage in the Council decree in Beneshevich ii, 84. 40 Man’kov, op. cit., 244.

The Church, Monasteries, and Church Law

979

legal history, the answers to questions 7 (“concerning church courts”) and 14 (“concerning judicial immunities”), contained in Chapters 53–69, were the most important. They represented a major step in the long struggle between Church and state regarding the Church’s material and financial position and, by the same token, its independence vis-à-vis the state. They were not meant, at least primarily, to codify church law on these points, although they inevitably assumed such a role in the following century. The position of the Church was defended in a forceful and assertive manner. The Council members used their superior learning to bombard the tsar with references to, and quotations from Scripture, decrees of universal (ecumenical) church councils and of Byzantine emperors, writings of Byzantine and Russian church fathers, etc., most of them taken from the Kormchaia. Most chapters are long-winded, Ch. 53, the first one of the series, being one of the shortest. It set out the two general principles underlying the following provisions, that secular judges should not try clergy and persons belonging to the Church, and that appropriating church property was a heinous crime. On church courts, Ch. 67 (“Concerning judicial immunity charters”) is the most informative. The bishop was recognized and to some extent restored as the basic judicial authority. He was competent in all cases concerning “church people”, including archimandrites and abbots (abbesses), who used to be exempt from episcopal jurisdiction, as mentioned in the foregoing section. The bishop was to conduct cases soborne, i.e. with the participation of archimandrites and abbots.41 His jurisdiction included ecclesiastical (dukhovnye, “spiritual”, or grekhovye, “concerning sin”),42 as well as secular (svetskie or mirskie) cases.43 In secular cases the bishop could and often would delegate his judicial powers to appointed officials, such as church boyars, and in less important cases to his tithe collectors (desiatinniki). Archimandrites and abbots retained jurisdiction over monks and other persons attached to monasteries, but only in secular cases, criminal as well as civil. They tried cases together with elected church elders (sobornye startsy). The most serious criminal cases (homicide and robbery) remained completely outside church jurisdiction and 41 42

43

I.S. Shtamm, in V.S. Nersesiants (ed.), Razvitie russkogo prava v xv – pervoi polovine xvii v., Moskva, 1986, 216; id., rz ii, 471. “Spiritual matters” appears to refer to questions regulated only by canon law, in particular to violations of rules, irrelevant to secular authority, such as those concerning fasting or religious rites. One of the few authors discussing the activities of church courts, as regulated by the Stoglav, is I.D. Beliaev, Lektsii po istorii russkogo zakonodatel’stva, Moskva, 2011 (3rd ed., Moskva, 1888), 666–668.

980

chapter 39

were h ­ andled by the secular authorities (see also the section on guba courts in Chapter 38). An list of “church people” was included in Ch. 63, but as this was explicitly a reiteration of the Church Statute of St. Vladimir (with considerable amendments and linguistic adjustments), it did not offer significant new information. Procedure in church courts generally followed the practice of secular courts; see Chapters 68 and 69 of the Stoglav. Where ecclesiastical and secular jurisdiction overlapped, especially in cases where church people and lay people were involved, the traditional facility of mixed courts was retained, but church people were discouraged from being involved in actions before secular judges (see Chapters 55, 56 and 58). The leading principle behind this aversion was the view that laymen should not sit in judgment over members of the clergy.

Appendices

∵

Appendix 1

Money and Measurements

The Monetary System of Medieval Russia

The basic monetary unit of Kievan Russia was the grivna.1 It is mentioned a­ lready in 907 in the Primary Chronicle when Oleg demanded a tribute from the Greeks of 960.000 grivna (12 grivna for every man on his ships, counting 40 men per ship in a fleet of 2.000 ships).2 The sum was then reduced to 12 grivna per bench, but this would still seem to be an improbably exorbitant amount. In any case, the grivna is not mentioned in the treaties with Byzantium of 912 and 944; amounts were expressed in zolotnik (a gold piece, the Byzantine nomisma or bezant of about 4.3 gram of gold) and litra (about 327 gram of silver), both terms obviously referring to Byzantine coinage. In the rp the grivna is mentioned frequently. In the first part of the Short Pravda (the Pravda of Iaroslav) the wergeld for killing a freeman was 40 grivna, and lower amounts were set for all kinds of other infractions. In the Pravda of Iaroslav’s Sons the fine for killing a high-ranking official of the prince was 80 grivna. The Short Pravda mentions, along with the grivna, the nogata, the kuna and the rezana. All commentators agree that the relationship is: 1 grivna = 20 nogata = 25 kuna = 50 rezana.3 Additionally, art. 42 mentions the veveritsa. This provision is the pokon virnyi, a kind of appendix to the Short Pravda containing a schedule of fees to be paid to the virnik, the collector of bloodwite. In the parallel provision in the Expanded Pravda (art. 9) the veveritsa is replaced by the veksha. Commentators agree that the veveritsa/veksha was the smallest monetary unit, but there is no agreement about its value. Nazarenko equates 60 veksha 1 Etymological dictionaries refer to Slavic and also Sanskrit griva (neck); the original meaning of grivna would then be a gold or silver necklace. 2 The numbers themselves are not unrealistic; in the rp a 12 grivna compensation or fine occurs frequently in cases of more serious violations. In his main work Antapodosis (Book 5, xv), Liutprand of Cremona, whose stepfather had witnessed the raid himself, speaks of a fleet in excess of one thousand ships. Cf. T.N. Dzhakson, I.G. Konovalova, A.V. Podosinov (eds.), Drevniaia Rus’ v svete zarubezhnykh istochnikov: Khrestomatiia, T. iv, Zapadnoevropeiskie istochniki, Moskva, 2010, 38; also Liutprand Kremonskii, Antapodosis. Kniga ob Ottone. Otchet o posol’stve v Konstantinopol’ (I.V. D’iakonov, ed.), Moskva, 2006, 96–97. 3 Cf. A.V. Nazarenko, “Proiskhozhdenie drevnerusskogo denezhno-vesovogo scheta”, dgve 1994, Moskva, 1996, 5–79, at 6; V.L. Ianin, Denezhno-vesovye sistemy domongol’skoi Rusi i ocherki istorii denezhnoi sistemy srednevekovogo Novgoroda, Moskva, 2009, 230 (the first part of this book is a republication of Ianin’s thesis Denezhno-vesovye sistemy domongol’skoi Rusi, Moskva, 1956, and does not take account of literature published after 1956).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_041

984

Appendix 1

with one kuna; Z ­ imin puts the kuna at three veveritsa.4 In the Expanded Pravda the rezana has disappeared and is replaced by the kuna. The equation for the Expanded Pravda is: 1 grivna = 20 nogata = 50 kuna. Along with the ordinary grivna (also called grivna kun) there were the silver grivna and the golden grivna. They are not mentioned in the rp, but turn up in roughly contemporary sources, such as the Church Statute of Iaroslav the Wise. The silver grivna is reliably considered to equal four ordinary grivna;5 as gold was generally valued at a 12:1 rate in relation to silver, the gold grivna (apparently rarely used) should be worth 48 ordinary grivna.6 The relative values indicated above concern only the rp. Not only did relative ­values of medieval Russian coinage differ between parts of the country, in particular between the north-west and the south-east, but also over time in a single province. According to Ianin, the Novgorod grivna was equal to about 11 grams of silver and at the same time (1410–1420) the Novgorod ruble was used as an accounting unit, worth about 170 grams of silver (about 15½ grivna to the ruble).7 In Pskov one ruble equalled 30 grivna and 220 den’gi. The coinage system of medieval Russia was intimately connected with the system of weights. For a long time the standard work on this subject was V.L. Ianin’s 1956 thesis on the “Monetary and weight systems of pre-Mongol Russia”, until A.V. Nazarenko presented a comprehensive new theory in 1996. According to Nazarenko, the original Russian grivna represented the silver equivalent in value of the basic Byzantine and Arab gold coins of the era, the nomisma or bezant and the dinar (ca. 4,3 grams); this resulted in a silver weight of about 51 grams for the grivna (on the basis of the 12:1 ratio for gold to silver). Along with the Byzantine gold/silver ratio there existed a different Arab rate of 14:1. The gold dinar being divided into 20 dirhems, a single dirhem would then be the equivalent of 3 grams of silver; in the course of the 10th century the dirhem as a unit of silver weight was replaced in Russia by the nogata. In this ‘Arab’ system the grivna would be the equivalent of 60 grams of silver. The grivna currency, rooted in international trade, also absorbed a different monetary system based on the trade in furs, Russia’s most important export. This resulted in the strange co-existence of the nogata and the kuna (4 nogata = 5 kuna).8 4 Nazarenko, 78; Zimin, prp I, 105, followed by T.E. Novitskaia in rz I, 428. See also Baranowski, 330–331. 5 The equation is made explicitly in the First Redaction of the 1229 treaty between Smolensk and Riga and the Hanseatic towns, see prp ii, 58. 6 Cf. Nazarenko, 77. 7 Ianin, op.cit., 304. 8 The ratio corresponds to that between the West-European pound (408 gram) and the ­Byzantine liter (327 gram), but otherwise the reader must be referred to Nazarenko for the complicated equations.

Money and Measurements

985

Nazarenko’s complicated but comprehensive theory is not uncontested, but for the time being it represents the best explanation of Kievan Russia’s monetary system.9 If one follows Nazarenko and proceeds from the silver equation of 1 grivna (kun) = ± 50 grams of silver, then the silver grivna (grivna serebra) would be about equal to 200 grams of silver, and the golden grivna to 2.400 grams of silver. In the course of the 14th and 15th centuries the grivna was replaced by the ruble as the main accounting unit. The Novgorod ruble has been mentioned above. In Moscow 1 ruble equalled 200 den’gi, while 6 den’gi made up one altyn (33,33 altyn in a ruble). This was the system of the Code of 1497. In the Ulozhenie of 1649 one also encounters the half-ruble (poltina) and the copeck (kopeika); there were (and still are) 100 copecks in the ruble. A wide-ranging survey of prices is provided by N.Ia. Aristov in his history of economic activities in Old Russia.10 It covers wages, grain, salt, livestock, foodstuffs, fowl and game, vegetables, hay, timber, imported wares, and metal.



Further Reading

S.N. Kisterev, “Den’gi v Novgorode na rubezhe xiv–xv vv.”, L.A. Timoshina (ed.), Torgovlia i predprinimatel’stvo v feodal’noi Rossii. K iubileiu professora russkoi istorii Niny Borisovny Goliakovoi, Moskva, 1994, 59–84. S.N. Kisterev, “Spornye voprosy nachal’noi istorii russkogo denezhnogo obrashcheniia”, S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, vyp.1, Moskva, 1997, 197–220. Ia.N. Shchapov, Kniazheskie ustavy i tserkov’, Moskva, 1972, the section “Denezhnyi schet ustava Iaroslav i ego svidetel’stva o vremeni vozniknoveniia i bytovaniia ustava”, 257–278. D.I. Prozorovskii, Moneta i ves v Rossii do kontsa xviii stoletiia, SPb., 1865; repr. 2nd ed., Moskva, 2012. I.V. Shiriakov a.o. (eds.), Istoriia denezhnogo obrashcheniia v Rossii, TT.1–2, M., 2012; T.1: Iu.P. Bokarev (ed.), Den’gi s drevneishikh vremen do nashikh dnei. A.V. Fomin, “Drevnerusskie denezhno-monetnye rynki v 70–80-kh godakh X v.”, dgve 1992–1993, Moskva, 1995, 63–73

9

10

Nazarenko’s theory was critically reviewed by S.N. Kisterev in “Spornye voprosy russkogo denezhnogo obrashcheniia”, S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, 1, Moskva, 1997, 197–220. Kisterev points to a number of weak parts of Nazarenko’s argument, but does not really refute it and suggests that in certain aspects it would be safer to stick to Ianin’s points of view. N.Ia. Aristov, Promyshlennost’ Drevnei Rusi, Sankt-Peterburg, 1866 (reprint of 2nd ed., Moskva, 2011).

986

Appendix 1

Measurements Obzha Desiatina

or: desiatina or: desiatina

=   1.635 ha (15 desiatiny) =   1,09254 ha =   2.400 sq. sazheni =   2,7 acres =   3.200 sq. sazheni =   3,6 acres =   3.600 sq. sazheni appr. 4 acres

Half of the ‘official’ (kazennaia) desiatina was called a chetvert’ or chet’ (0.504627 ha). Sazhen

Arshin

=   3 arshiny =   2,133 m =   7 feet =   71,1 cm =   4 chetverti or 16 vershki =   28 inches

See also: Ia.N. Shchapov, “Iz istorii gorodskogo upravleniia v Drevnei Rusi. Sluzhba mer i vesov”, Ocherki russkoi istorii, istochnikovedeniia, arkheografii, Moskva, 2004, 34–39.

APPENDIX 2

Genealogies Rurikids The dynasty that ruled Russia from protohistoric times until 1598, the death of tsar Fedor, the son of Ivan iv the Terrible, is known by the name of its ancestor as the ­Rurikids (Riurikovichi). The dynastic element was a factor of prime importance during this entire period, affecting also the development of the legal system in many ways. A brief genealogical survey is therefore relevant as an appendix to the present study. The pre-revolutionary literature on the Rurikids is very extensive and this survey will be limited to aspects which have a more than minimal connection with legal developments. More extensive information can be found in numerous Russian works, both from before and after 1917. Among the older studies, Ekzempliarskii’s work is still of great value, based as it was on a broad study of the chronicle literature.1 It covered the period of 1238 (the beginning of the Mongol invasions) to 1505 (the end of Pskov independence), during which the dynastic picture was extremely complicated and confused. The most comprehensive treatment of the subject is by N. de Baumgarten, in two volumes published in Rome in 1927 and 1934 by the Pontifical Institute of Oriental Studies.2 The first volume was devoted to the early period, not covered by Ekzempliarskii, and the second volume to the ruling branches of the dynasty, up to the end of the 16th century. De Baumgarten supplied full references, not only to the Russian chronicle literature, but also to non-Russian historical and genealogical sources. A useful addition to the work of de Baumgarten was Zimin’s posthumously published study on the formation of the Russian boyar aristocracy, offering ­genealogies of non-ruling branches of Rurikid families which merged with other elements of the higher Muscovy aristocracy.3

1 A.V. Ekzempliarskii, Velikie i udel’nye kniaz’ia Severnoi Rusi v tatarskii period c 1238 g. po 1505 g., Sankt-Peterburg, 1889 (I have used the Moscow 1998 edition). 2 N. de Baumgarten, Généalogies et mariages occidentaux des Rurikides russes du Xe au XIIIe siècle. Orientalia Christiana, Vol.ix-1., Num.35, Roma, 1927; id., Généalogies des branches régnantes des Rurikides du XIIIe au XVIe siècle. Orientalia Christiana, Vol.xxxv.-1., Num. 94, Roma, 1934. 3 A.A. Zimin, Formirovanie boiarskoi aristokratii v Rossii vo vtoroi polovine xv – pervoi treti xvi v., Moskva, 1988.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_042

988

APPENDIX 2

Many general works contain genealogical tables, often based on the work of de Baumgarten.4 Older works especially have often reproduced traditional genealogies of princely families without any serious investigation. Such family trees had often been compiled in order to further the interests of a particular family. The scarce information from the darkest period, the first century of Mongol-Tatar supremacy, was then not infrequently complemented by fanciful claims. Being the descendant of a very prominent prince, such as Vladimir Monomakh or, even better, of a prince canonized by the Church, conferred additional prestige.5 The story of the first four generations is based entirely on the Primary Chronicle and can be told in a few words. The eponymous founder of the dynasty, Rurik, entrusted the realm to his kinsman (cousin, brother-in-law?) Oleg, to rule while Rurik’s son Igor was young. Oleg died in 913 and was duly succeeded by Igor. Igor was killed by his enemies in 945 and his wife, Olga, ruled until 964, until their son Sviatoslav had reached adulthood. Sviatoslav also met a violent death, in 972, and was succeeded first by his son Iaropolk and after the latter had been assassinated in 978, by his son Vladimir. This Vladimir became the ancestor of the entire Rurikid house; he accepted Christianity in 988 and was subsequently venerated as St. Vladimir in Russia. Before his conversion he had several legitimate wives and at least eleven legitimate sons are known.

…

4 E.g. S. Franklin, J. Shepard, The Emergence of Rus 750–1200, London/New York, 1996, and J. Fennell, The Crisis of Medieval Russia, London/New York, 1983 (both volumes of Longman History of Russia); S.H. Cross, O.P. Sherbowitz-Wetzor (eds.), The Russian Primary Chronicle, Cambridge, Mass., 1973 (up to Iurii Dolgorukii); the new 1998 Moscow edition of A.E. Presniakov, Obrazovanie Velikorusskogo gosudarstva, has genealogies of the medieval Russian grand princely houses. See also V.V. Boguslavskii, Riurikovichi i Rus’. Ot Riurika do Smutnogo vremeni, Moskva, 2009, an alphabetical biographical dictionary of hundreds of Rurikids and related persons and officials. 5 P.N. Petrov, Istoriia rodov russkago dvorianstva, Sankt-Peterburg, 1886 (2 vols.; reprint, Moskva, 1991), is an example of a work offering detailed information on almost all extinct and existing Rurikid families, but these data are often completely unsubstantiated. While de Baumgarten only mentioned two sons of Mikhail Vsevolodich of Chernigov, Petrov has several others, including a fourth son Mstislav and a fifth and youngest son Iurii, prince of Torus. These sons figure as the ancestors of a range of princely familes, among which the Obolenskii princes, the most numerous of all Rurikids. Mikhail Vsevolodich was not only the ruling prince of Chernigov, but he also occupied the grand princely seat of Kiev; he was killed in 1246 at the headquarters of the Mongol khan and was subsequently canonized by the Russian church. The connection with the Chernigov branch, as indicated by Petrov, is most likely correct, although the evidence is defective.

Genealogies

989

In the following tables the main sub-dynasties descending from St. Vladimir have been presented. The dynasty was commonly referred to as the Rurikids (Riurikovichi), especially in later centuries, which implied an awareness of the significance of being a descendant in the male line of the founder of the house. However, descent from the first Christian ruler of the undivided empire of Kievan Russia was a far more important legitimizing factor for the exclusive claim to rule in Russia. This claim was abandoned only in the beginning of the 17th century once the line of the Rurikid rulers of Muscovy had become extinct and the chaos created by the Time of Troubles had made the election of an effective ruler imperative. An attempt has been made to include all princes who at one time served as rulers of a principality. When in later centuries the fragmentation of the dynasty led to the emergence of very small principalities (which usually disappeared quickly), the rulers have often not been included. Also, princes who died without issue and were politically unimportant have been left out. For reasons of space, wives of princes have also not been mentioned, although they occasionally played prominent roles. The numerous branches of the house in later years allowed Rurikid princes to marry, as a rule, a Rurikid princess.

Iziaslav, † 1154 gr. pr. of Kiev Table 8: Galicia II

Rostislav, † 1168 gr. pr. of Kiev Tables 9–10: Smolensk

Mstislav, † 1132 gr. pr. of Kiev Table 7: Mstislav the Great

Table 5: Chernigov

Vladimir, † 1125 gr. pr. Kiev

Vsevolod, † 1093 gr. pr. of Kiev

Tables 11–17

Iurii Dolgorukii, † 1157 gr. pr. of Kiev

Table 6(1–2): Murom, Riazan’

Table 4: Turov-Pinsk Oleg, † 1115 Iaroslav, † 1129 pr. of Chernigov pr. of Murom

Table 3: Galicia I

Table 2: Polotsk

Sviatoslav, † 1076 gr. pr. of Kiev

Iziaslav, † 1078 gr. pr. of Kiev

Vladimir, † 1052 pr. of Novgorod

Iaroslav Mudryi, † 1054 gr. pr. of Kiev

Briacheslav, † 1044 pr. of Polotsk

Iziaslav, † 1001 pr. of Polotsk

St. Vladimir, † 1015 gr. pr. of Kiev

Synopsis of Tables 1–17

Genealogies table 1

St. Vladimir and the Next Four/Five Generations

Vladimir Sviatoslavich, † 1015, gr. pr. Kiev 978–1015, “St. Vladimir” Iziaslav, † 1001, pr. Polotsk Vseslav, † 1003 Briacheslav, † 1044, pr. Polotsk Vseslav, † 1101, pr. Polotsk, gr. pr. Kiev 1068–69 David, † after 1129, pr. Polotsk 1127–29 Roman, † 1116 Gleb, † 1118, pr. Minsk Boris, † 1128, pr. Polotsk Sviatoslav Rostislav, *1070, † after 1129 → princes of Polotsk, Table 2 Vysheslav, † 1010, pr. Novgorod Sviatopolk Okaiannyi (“the Accursed”), * 997, † 1019, gr. pr. Kiev 1015–19 Vsevolod, pr. Vladimir-Volynsk Iaroslav Mudryi (“the Wise”), † 1054, pr. Novgorod 1010–19, gr. pr. Kiev 1019–54 Il’ia, † 1020, pr. Novgorod Vladimir, *1020, † 1052, pr. Novgorod Rostislav, *c.1045, † 1067, pr. Tmutorakan → princes of Galicia i, Table 3 Riurik, † 1092, pr. Peremyshl’ Volodar, † 1124, pr. Peremyshl’ Vasil’ko, *c.1067, † 1125, pr. Terebovl’ Iziaslav, * 1025, † 1078, gr. pr. Kiev Sviatopolk, *1050, † 1113, gr. pr. Kiev Iaroslav, † 1123, pr. Vladimir-Volynsk → princes of Turov and Pinsk, Table 4 Sviatoslav, * 1027, † 1076, pr. Chernigov, gr. pr. Kiev Gleb, † 1078, pr. Tmutorakan Roman, † 1079, pr. Tmutorakan David, † 1123, pr. Smolensk 1095–96, pr. Chernigov Sviatoslav, † 1143, pr. Lutsk Vsevolod, † after 1124, pr. Murom Vladimir, † 1151, pr. Chernigov Sviatoslav, † 1166, pr. Vchyzh Iziaslav, † 1161, gr.pr. Kiev

991

992

APPENDIX 2

Oleg, † 1115, pr. Chernigov, 1095–96, pr. Kursk & Novgorod-Seversk Vsevolod, † 1146, gr. pr. Kiev 1139 → princes of Chernigov, Table 5 Igor, † 1147, gr. pr. Kiev 1146 Gleb, † 1138, pr. Kursk Sviatoslav, † 1164, pr. Chernigov 1154–55, 1159 Oleg, † 1180, pr. Seversk Igor, *1151, † 1202, pr. Novgorod-Seversk Vsevolod, † 1196, pr. Trubchevsk Iaroslav, † 1129, pr. Murom, pr. Chernigov 1123–26 → princes of Murom & Riazan’, Tables 6(1), 6(2) Vsevolod, * 1030, † 1093, gr. pr. Kiev Vladimir Monomakh, *1053, † 1125, gr. pr. Kiev Mstislav Velikii (“the Great”), *1076, † 1132, gr. pr. Kiev → princes of Galicia ii, Drutsk, Smolensk, Tables 7–9 Iurii Dolgorukii (“Long-Arm”), † 1157, pr. Rostov, Suzdal’, gr. pr. Kiev → princes of Rostov, Belo Ozero, Moscow, Suzdal’, Tver’, Nizhnii Novgorod, Starodub, Table 11 Viacheslav, *1036, † pr. Smolensk Boris, † 1078 Igor, † 1060, pr. Vladimir-Volynsk David, † 1112, pr. Vladimir-Volynsk, pr. Dorogobuzh Vsevolodko, † 1141, pr. Gorodno Boris, pr. Gorodno 1146–72 Gleb, † after 1169, pr. Gorodno Boris, † 1015, pr. Rostov, “St. Boris” Gleb, † 1015, pr. Murom, “St. Gleb” Mstislav, † 1034, pr. Tmutorakan

Genealogies table 2

Princes of Polotsk

Vseslav Briacheslavich, † 1101, pr. Polotsk, gr. pr. Kiev 1068–69 David, † after 1129, pr. Polotsk 1127–29 Briacheslav, † after 1129, pr. Iziaslavl’ Gleb, † 1118, pr. Minsk Rostislav, † after 1160, pr. Polotsk 1151–58 Gleb, pr. Drutsk 1158 Volodar, † after 1166, pr. Minsk Vasil’ko, pr. Logoshk 1186 Vladimir, † 1216, pr. Polotsk, pr. Minsk Vsevolod, pr. Strezhev Boris, † 1128, pr. Polotsk Rogvolod, † after 1161, pr. Polotsk Gleb, † bef. 1186, pr. Drutsk Vseslav, pr. Drutsk 1186 Boris, pr. Drutsk 1195, pr. Polotsk 1221 Sviatoslav Vasil’ko, † c.1143, pr. Polotsk 1132 Briacheslav, pr. Iziaslavl’ 1158–59 Rostislav-Iurii, *1070, † after 1129 David Gleb, pr. Polotsk 1221

table 3

Princes of Galicia i

Rostislav Vladimirovich, *c.1045, † 1067, pr. Tmutarakan 1064 Riurik, † 1092, pr. Peremyshl’ Volodar, † 1124, pr. Peremyshl’ Rostislav, † 1128, pr. Peremyshl’ Vladimirko, † 1153, pr. Zvenigorod, pr. Galicia 1141 Iaroslav Osmomysl (“Thinking for Eight”), † 1187, pr. Galicia Vladimir, † 1199, pr. Galicia Oleg, † 1189, pr. Galicia 1187, 1188 Vasil’ko, *c.1067, †1125, pr. Terebovl’ Igor-Ivan, † 1141, pr. Galich Rostislav-Grigorii, † 1127/40, pr. Terebovl’ Ivan Berladnik, † 1161, pr. Zvenigorod until 1144 Rostislav Berladnik, † 1189

993

994 table 4

APPENDIX 2 Princes of Turov and Pinsk

Iaroslav Sviatoslavich, † 1123, pr. Vladimir-Volynsk Iurii, * bef. 1112, † after 1166, pr. Turov after 1154 Sviatopolk, † 1190, pr. Turov Vladimir, pr. Pinsk 1206 Rostislav, pr. Pinsk, 1228–32 Vladimir Fedor, pr. Pinsk Iurii, † 1292 → Sviatopolk-Chetvertinskii princes Diomid, pr. Pinsk Mikhail, pr. Pinsk Ivan, pr. Turov → Sviatopolk-Mirskii princes? Iaroslav, † 1202, pr. Dubrovitsa c.1186 Aleksandr, † 1223, pr. Dubrovitsa Iaropolk, pr. Pinsk Viacheslav, *after 1112, † after 1128, pr. Kletsk

table 5

Princes of Chernigov

Vsevolod Ol’govich, † 1146, gr. pr. Kiev 1139 Sviatoslav, † 1194, gr. pr. Kiev 1180 Vladimir, † 1201, pr. Chernigov Oleg, † 1204, pr. Chernigov David, † 1196, pr. Chernigov Vsevolod, † 1215, gr. pr. Kiev 1210–14 Mikhail, † 1246, pr. Chernigov, gr. pr. Kiev → Bariatinskii, Kol’tsov-Mosal’skii, Obolenskii, Repnin, Dolgorukov, Shcherbatov, Volkonskii (?) princes Gleb, † after 1209, pr. Belgorod, gr. pr. Kiev Mstislav, gr. pr. Chernigov 1235–39 Andrei, † 1245, pr. Chernigov Mstislav, † 1223, pr. Chernigov Vasilko, † 1223 Sviatoslav Ol’govich, † 1164, pr. Chernigov 1154–55, 1159 Igor, *1151, † 1202, pr. Novgorod-Seversk

Genealogies table 6(1) Princes of Murom, Riazan’ and Pronsk Iaroslav Sviatoslavich, † 1129, pr. Murom 1097, pr. Chernigov 1123–26 Sviatoslav, † 1145, pr. Murom Davyd, † 1147, pr. Riazan’ Igor, pr. Riazan’ 1149–49 Vladimir, † 1161, pr. Murom Iurii, † 1175, pr. Murom Davyd, † 1228, pr. Murom, pr. Pronsk 1208–09 Iurii, † 1237, pr. Murom Iaroslav, pr. Murom Vladimir, † 1204, pr. Murom Iurii, pr. Murom Rostislav, † after 1152, pr. Murom Andrei, pr. Elets Gleb, † 1178, pr. Riazan’ Roman, † 1215, pr. Riazan’ 1178 Igor, † 1194, pr. Riazan’ Ingvar, † 1235, pr. Riazan’ Ingvar, † c.1237, gr. pr. Riazan’ Oleg Krasnyi (“Handsome”), † 1258, gr. pr Riazan’ 1251 → princes of Riazan’, Table 6(2) Iurii, † 1237, pr. Pskov 1232, pr. Riazan’ Fedor, † 1237 Sviatoslav, † c.1213, pr. Riazan’, pr. Pronsk Sviatoslav, † 1217 Rostislav, † 1217 Vsevolod, † 1207, pr. Pronsk Mikhail, † 1217, pr. Pronsk Vsevolod, † 1237, pr. Pronsk Vladimir, pr. Riazan’ Gleb, † 1219, pr. Riazan’ Oleg, † 1207, pr. Pronsk Iurii, † 1174, pr. Riazan’, pr. Murom

995

996 table 6(2) Princes of Riazan’ and Pronsk (cont.) Oleg Ingvarovich Krasnyi, † 1258, gr. pr, Riazan’ 1251 Roman, † 1270, gr. pr. Riazan’ Fedor, † 1294, gr. pr. Riazan’ Iaroslav, † 1299, pr. Pronsk, gr. pr. Riazan’ 1294 Ivan, † 1327, gr. pr. Riazan’ Ivan Korotopol, † 1343, gr. pr. Riazan’ Mikhail, pr. Pronsk Aleksandr, † 1340, pr. Pronsk Ivan, † 1351, gr. pr. Riazan’ Oleg, *c.1336, † 1402, gr. pr. Riazan’ Fedor, † c.1427, gr. pr. Riazan’ Ivan, † 1456, gr. pr. Riazan’ Vasilii, *c.1448, † 1483, gr. pr. Riazan’ Ivan, *1467, † 1500, gr. prince Riazan’ Fedor, † 1503 Ivan, *1496, † 1533, gr. pr. Riazan’ Iaroslav-Dmitrii, † 1344, pr. Pronsk, gr. pr. Riazan’ Vladimir, † 1373, pr.Pronsk Ivan, † after 1430, pr. Pronsk, pr. Riazan’ 1408–09 Fedor, † bef. 1479, pr. Pronsk Ivan, pr. Pronsk Andrei, pr. Pronsk Daniil, pr. Pronsk Konstantin, † 1306, gr. pr Riazan’ Vasilii, † 1308, gr. pr. Riazan’

APPENDIX 2

Genealogies table 7

Mstislav Vladimirovich and the Next Four Generations

Mstislav Vladimirovich “the Great”, *1076, † 1132, gr. pr. Kiev Vsevolod, † 1136, pr. Novgorod Iziaslav, † 1154, gr. pr. Kiev Mstislav, † 1172, gr. pr. Kiev Roman, † 1205, pr. Galicia-Volynia Daniil, *1201, † 1264 king Galicia, → princes of Galicia ii, Table 8 Vasil’ko, *1203, † 1269, pr. Volynia Vsevolod, † 1195, pr. Vladimir-Volynsk, pr. Belts Aleksandr, † after 1234, pr. Belts → Drutskii princes Iaroslav, † 1174/80, pr. Lutsk Ingvar, † after 1212, pr. Lutsk, Dorogobuzh, gr. pr. Kiev 1202, 1212 Iaroslav, pr. Lutsk, pr. Medżiboż Boris, pr. Medżiboż, pr. Bolokhov Iziaslav, † 1223 Mstislav Nemyi (“the Mute”), † 1227, pr. Peresopnitsa, Galich, Lutsk Vsevolod, † after 1209, pr. Lutsk Ivan, † 1228, pr. Lutsk, pr. Chartoriisk Iaropolk, † 1170, pr. Buzhsk Vasil’ko, *c.1151, † 1178/82, pr. Drohiczyn Sviatopolk, † 1154, pr. Novgorod, pr. Volynia Rostislav, † 1168, pr. Smolensk, gr. pr. Kiev 1154, 1159–60 → princes of Smolensk, Table 9 Vladimir, † 1170, pr. Dorogobuzh Mstislav, † after 1202, pr. Dorogobuzh Iaroslav, pr. Novgorod after 1207 Iziaslav, *1190, † 1198, pr. Velikie Luki

997

998 table 8

APPENDIX 2 Princes of Galicia ii (Galicia-Volynia)

Daniil Romanovich, *1201, † 1264, king of Galicia Lev, *c.1228, † c.1301, pr. Galicia Iurii, *1252/57, † 1308, king of Galicia Andrei, *after 1288, † 1324, pr. Volynia Lev, † 1324, pr. Galicia Roman, *c.1230, † after 1260, pr. Slonim, pr. Novogrudek Vasil’ko, *c.1256, † after 1282, pr. Slonim Daniil, pr. Ostrog 1343 Mstislav, † after 1292, pr. Volynia Vladimir, † 1315, pr. Volynia Shwarn, † 1269, pr. Kholm Vasil’ko Romanovich, *1203, † 1269, pr. Volynia Vladimir, *after 1248, † 1288, pr. Volynia

Genealogies table 9

Princes of Smolensk

Rostislav Mstislavich, † 1168, pr. Smolensk, gr. pr. Kiev, 1154, 1159–60 Roman, † 1180, (s. 1169 gr.) pr. Smolensk, gr.pr. Kiev 1171–77 Iaropolk, † after 1276, gr. pr. Smolensk, 1171–75 Mstislav-Boris, † 1223, pr. Smolensk 1197, gr. pr. Kiev Sviatoslav, pr. Novgorod 1218–19 Iziaslav, gr. pr. Kiev 1235, pr. Smolensk 1239 Vsevolod, pr. Pskov, 1214, Novgorod 1219–21, Smolensk 1239 Rostislav, gr. pr. Kiev 1239 → Kropotkin princes David, *1140, † 1197, pr. Vyshgorod 1168, pr. Smolensk 1180 Mstislav, † 1187, pr. Novgorod 1184–87 Mstislav-Fedor, *1193, † 1230, gr. pr. Smolensk Rostislav, † bef. 1270 Gleb, † 1277, gr. pr. Smolensk Aleksandr, † 1313, gr. pr. Smolensk Ivan, † 1358, gr. pr. Smolensk Roman, † after 1300, pr. Briansk Vasilii, †1314, pr. Briansk Ivan, pr. Briansk Vasilii, † 1356, pr. Briansk Dmitrii, pr. Briansk Sviatoslav, † 1310, pr. Briansk 1309 Gleb, † 1340, pr. Briansk Mikhail, † 1279, gr. pr. Smolensk 1277 Sviatoslav, † pr. Mozhaisk Fedor, pr. Dorogobuzh, pr. Viaz’ma Vladimir, † 1380, pr. Dorogobuzh Andrei, pr. Viaz’ma Ivan, pr. Viaz’ma Mikhail, pr. Viaz’ma Aleksandr, pr. Viaz’ma Dmitrii → Tatishchev family Fedor, † 1299, pr. Mozhaisk, pr. Iaroslavl’ c.1260, gr. pr. Smolensk → princes of Iaroslavl’, Table 10

999

1000

1

APPENDIX 2

Riurik, † 1215, pr. Ovruch, Torchesk, 1157–69, pr. Novgorod 1170–72, gr. pr. Kiev Rostislav, *1172, † 1218, pr. Vyshgorod Vladimir, *1187, † 1239, gr. pr. Kiev 1223 Andrei Dolgaia Ruka (“Long Hand”), † 1223, pr. Viaz’ma → Viazemskii princes Mstislav Khrabryi (“the Brave”), † 1180, pr. Belgorod, pr. Novgorod Mstislav Udatnyia (“the Fortunate”), *bef. 1176, † 1228, pr. Novgorod, pr. Galicia Vladimir, † 1226/33, pr. Pskov Iaroslav, † after 1245, pr. Pskov

a Another translation would be “daring” or “intrepid” (in Russian also udaloi). De Baumgarten called him Mstislav le Hardi.

Genealogies table 10

1001

Princes of Iaroslavl’

Fedor Rostislavich Chernyi (“the Black”), † 1299, pr. Mozhaisk, pr. Iaroslavl’, gr. pr. Smolensk Mikhail, † c.1287, pr. Iaroslavl’ Davyd, † 1322, pr. Iaroslavl’ 1299 Vasilii Groznye Ochi (“the Stern-Looking”), † 1345, pr. Iaroslavl’ Vasilii, pr. Iaroslavl’ Ivan, † 1426, pr. Iaroslavl’ Iakov, 1455, pr. Kurba Semën, pr. Kurba Fedor, pr. Iaroslavl’ Aleksandr Briukhatyi (the “Big-Bellied”), † 1471, (last) pr. Iaroslavl’ until 1463 Semën, pr. Novlia Daniil, pr. Novlia Dmitrii, pr. Zaozer’e Andrei, † 1457, pr. Zaozer’e Semën, pr. Kurbena Gleb, pr. Iaroslavl’ → Solntsev-Zasekin, Zasekin, Shchetinin and Shakhovskoi princes Roman, pr. Iaroslavl’ → L’vov, Shekhonskii, Gorchakov princes Mikhail, pr. Mologa Fedor, † 1408, pr. Mologa Dmitrii, pr. Mologa Petr, pr. Mologa Vasilii, pr. Mologa Semën, pr. Siti Petr, pr. Siti Ivan, pr. Prozorov Andrei, pr. Prozorov Ivan, † 1380, pr. Mologa Gleb, pr. Shumurov Lev, pr. Mologa

1002 table 11

APPENDIX 2 The Descendants of Iurii Dolgorukii

Iurii Dolgorukii, † 1157, pr. Rostov, Suzdal’, gr. pr. Kiev Rostislav, † 1151, pr. Pereiaslavl’ Mstislav, † 1178, pr. Novgorod Sviatoslav, pr. Novgorod 1175 Iaropolk, † after 1175, pr. Torzhok, gr. pr. Vladimir 1175 Ivan, † 1147, pr. Kursk 1146 Andrei Bogoliubskii, † 1174, gr. pr. Vladimir Iurii, † after 1180 (x Tamar, queen of Georgia) Gleb, † 1172, pr. Pereiaslavl’, gr. pr. Kiev Vladimir, *1157, † 1187, pr. Pereiaslavl’ Boris, † 1159, pr. Belgorod Mstislav, pr. Novgorod Iaroslav, pr. Volokolamsk 1199 Vasil’ko, pr. Suzdal’ Mikhail, *after 1151, † 1176, gr. pr. Vladimir Vsevolod Bol’shoe Gnezdo (“Big Nest”), *1154, † 1212, gr. pr. Vladimir Konstantin, *1185, † 1218, pr. Rostov, gr. pr. Vladimir Vasil’ko, *1208, † 1238, pr. Rostov → princes of Rostov, Table 12 Vsevolod, *1210, † 1238, pr. Iaroslavl’ Vasilii, *c.1229, † 1249, pr. Iaroslavl’ Konstantin, † 1255(57), pr. Iaroslavl’ Vladimir, *1214, † 1249, pr. Uglich Andrei, † 1278, pr. Uglich Roman, † 1285, pr. Uglich Iurii, *1189, † 1238, gr. pr. Vladimir Vsevolod, *1212, † 1238, pr. Novgorod Iaroslav, *1191, † 1246, pr. Iaroslavl’, gr. pr. Vladimir 1238 Aleksandr Nevskii, *1220, † 1263, gr. pr. Vladimir 1252 Dmitrii, *1250, † 1294, pr. Pereiaslavl’, gr. pr. Vladimir Ivan, *c.1280, † 1302, pr. Pereiaslavl’ Andrei, *1255, † 1304, pr. Gorodets, gr. pr. Vladimir 1281, 1294 Daniil, *1261, † 1303, pr. Moskva → (grand) princes of Moskva, Table 14 Andrei, † 1264, pr. Tver’, gr. pr. Vladimir 1249–52, pr. N. Novgorod 1256 → (grand) princes of Suzdal’ and Nizhnii Novgorod, Table 15

Genealogies Mikhail Khorobrit (“the Brave”), † 1248, gr. pr. Vladimir Iaroslav, † 1271, pr. Tver’ 1247, gr. pr. Vladimir 1263 Sviatoslav, †1282/85, pr. Pskov 1266, gr. pr. Tver’ 1271 Mikhail, *c.1271, † 1319, gr. pr. Tver’ 1285, gr. pr. Vladimir 1304 → grand princes of Tver’, Table 16 Konstantin, *bef. 1238, † 1255, pr. Galich Davyd, † 1280, pr. Galich, pr. Dmitrov Fedor, † 1335, pr. Galich Ivan, pr. Galich Dmitrii, † after 1362 (last) pr. Galich Boris, † 1334, pr. Dmitrov Vasilii, *1241, † 1276, pr. Kostroma 1247, gr. pr. Vladimir 1272 Vladimir, *1194, † 1229, pr. Pereiaslavl’ Sviatoslav-Gavriil, *1196, † 1252, pr. Iur’ev, gr. pr. Vladimir Dmitrii, † 1269, pr. Iur’ev Ivan, *1198, † after 1246, pr. Starodub → princes of Starodub, Table 17

1003

1004 table 12

APPENDIX 2 Princes of Rostov

Vasil’ko Konstantinovich, *1208, † 1238, pr. Rostov Boris, *1231, † 1277, pr. Rostov Dmitrii, *1253, † 1294, pr. Rostov Konstantin, *1255–1307, pr. Rostov, pr. Uglich Aleksandr, *1286, † bef. 1307, pr. Uglich Iurii, *c.1303, † 1320, pr. Rostov Vasilii, *1291, † bef. 1320 Fedor, † 1331, pr. ½Rostov Andrei, *c.1330, † 1409, pr. Rostov Fedor, pr. Rostov Iurii, † 1413, pr. Rostov Konstantin, † 1407, pr. Rostov Konstantin, † 1365, pr. ½Rostov Vasilii, pr. Rostov Aleksandr, † 1404, pr. Rostov Andrei, † after 1417, pr. Rostov, pr. Pskov Ivan, † bef. 1474, pr. Rostov Vladimir, pr. Rostov until 1474 Fedor, † 1420, pr. Rostov, pr. Pskov Aleksandr, † after 1438, pr. Pskov Ivan, pr. Rostov Aleksandr, † bef. 1474, pr. Rostov Ivan, pr. Rostov until 1474 Vladimir, pr. Rostov Konstantin, † 1414, pr. Rostov Ivan, pr. Rostov → Kasatkin-Rostovskii, Lobanov-Rostovskii princes Gleb, *1237, † 1278, pr. Belozero → princes of Belozero, Table 13

Genealogies table 13

Princes of Belozero

Gleb Vasil’kovich, *1237, † 1278, pr. Belozero Mikhail, *1263, † 1293, pr. Belozero Fedor, † after 1314, pr. Belozero Roman, pr. Belozero Fedor, † 1380, pr. Belozero Ivan, † 1380, pr. Belozero Konstantin, pr. Novgorod, pr. Pskov Vasilii, † after 1380, pr. Sugor’e Iurii, (last) pr. Belozero → Belosel’skii-Belozerskii, Vadbol’skii princes Afanasii, pr. Sheleshpan Semën, pr. Sugor’e & Kem Ivan, pr. Kargolom & Ukhtom → Ukhtomskii princes

1005

1006

APPENDIX 2

table 14-1 (Grand) Princes of Moskva and Vladimir Daniil Aleksandrovich, *1261, † 1303, pr. Moskva Iurii, *c.1281, † 1325, pr. Pereiaslavl’, pr. Moskva, gr. pr. Vladimir Afanasii, † 1322, pr. Novgorod Ivan i Kalita (“Moneybag”), † 1341, pr. Moskva, gr. pr. Vladimir 1327 Semën Gordyi (“the Proud”), *1316, † 1353, gr. pr. Moskva & Vladimir 1341 Ivan ii Krasnyi (“the Handsome”) or Krotkii (“the Meek”), *1326, † 1359, gr. pr. Moskva & Vladimir 1354 Dmitrii Donskoi, *1350, † 1389, gr. pr. Moskva & Vladimir 1362 Vasilii i, *1371, † 1425, gr. pr. Moskva & Vladimir → grand princes and tsars of Moskva, Table 14–2 Iurii, *1374, † 1434, pr. Galich & Zvenigorod, gr. pr. Moskva 1433 Vasilii Kosoi (“the Squint”), † 1448, pr. Zvenigorod Dmitrii Shemiaka, *1420, † 1453, pr. Galich, gr. pr. Moskva 1446/47 Ivan, † 1471/85, pr. Ryl’sk Vasilii, † 1529, pr. Ryl’sk Dmitrii Krasnyi (“the Handsome”), † 1441, pr. Galich Andrei, *1382, † 1432, pr. Mozhaisk & Vereia Ivan, † 1471/83, pr. Mozhaisk Andrei, † 1481, pr. Briansk Semën, † c.1505, pr. Starodub Vasilii, † 1517/19, pr. Starodub Mikhail, † 1486, pr. Vereia Vasilii, † c.1501 Petr, *1385, † 1428, pr. Dmitrov Konstantin, *1389, † 1433, pr. Uglich Ivan, *1350/56, pr. Zvenigorod Andrei, *1327, † 1353, pr. Serpukhov Ivan, *c.1350, † 1358, pr. Serpukhov Vladimir Khrabryi (“the Brave”), *1353, † 1410, pr. Serpukhov-Borovsk Ivan, *1381, † 1422, pr. Serpukhov Semën, † 1426, pr. Borovsk Iaroslav, *1388, † 1426, pr. Iaroslavets Vasilii, † 1483, pr. Serpukhov-Borovsk Ivan, pr. Iaroslavets Fedor, † 1521, pr. Iaroslavets & Pinsk Andrei, *c.1392, † 1426, pr. Radonezh Vasilii, *1394, † 1427, pr. Peremyshl’

Genealogies table 14-2 Grand Princes and Tsars of Moskva and Russia Vasilii i Dmitrievich, *1371, † 1425, gr. pr. Moskva & Vladimir Vasilii ii Temnyi (“the Blind”), *1415, † 1462, gr. pr. Moskva Ivan iii, *1440, † 1506, gr. pr. Moskva & Russia Ivan, *1456, † 1490 Dmitrii, *1485, † 1509 Vasilii iii, *1479, † 1534, gr. pr. Moskva & Russia Ivan iv Groznyi (“the Terrible”), *1530, † 1584, tsar Ivan, *1554, † 1581 Fedor, *1557, † 1598, tsar Iurii, *1533, † 1564, pr. Uglich Iurii, *1480, † 1536, pr. Dmitrov Dmitrii, *1481, † 1521, pr. Uglich Semën, *1487, †1518, pr. Kaluga Andrei, *1490, † 1536, pr. Staritsa Vladimir, *1533, † 1569, pr. Staritsa Andrei, pr. Ruza Iurii, *1441, † 1473, pr. Dmitrov Andrei, *1446, † 1491, pr. Uglich Boris, *1449, † 1494, pr. Volok Fedor, *c.1476, † 1513, pr. Volok Ivan, *c.1480, † 1504, pr. Ruza Andrei, *1452, † 1481, pr. Vologda

1007

1008 table 15

APPENDIX 2 (Grand) Princes of Suzdal’ and Nizhnii Novgorod

Andrei Iaroslavich, † 1264, gr. pr. Vladimir 1249–52, pr. Nizhni Novgorod 1256 Iurii, † 1279, pr. Suzdal’ Mikhail, † bef. 1305, pr. Suzdal’ Vasilii, † 1309, pr. Suzdal’ Aleksandr, † 1332, pr. Suzdal’ Konstantin, † 1355, pr. Suzdal’, s. 1350 gr. pr. Nizhnii Novgorod Andrei, *c.1320, † 1365, gr. pr. N. Novgorod Dmitrii, *1322, † 1383, pr. Suzdal’, gr. pr.Vladimir 1359–61, gr. pr. N. Novgorod Vasilii Kirdiapa, † 1403, pr. Suzdal’, pr. Gorodets Ivan, † 1417 Aleksandr Briukhatyi (“the Big-Bellied”), † 1418, gr. pr. N. Novgorod Semën, † 1423/24 Iurii, pr. Shuia Vasilii, † 1450, pr. Shuia Fedor, pr. Shuia Ivan, pr. Shuia Semën, *c.1357, † 1402, pr. Suzdal’ Vasilii, pr. Shuia Boris, pr. Pskov Ivan, renounces N. Novgorod and Suzdal’ 1451 Boris, † 1394, pr. Gorodets, gr. pr. N. Novgorod 1365, 1383–92 Daniil, † after 1425, gr. pr. N. Novgorod 1414 Aleksandr, pr. Suzdal’, gr. pr. N. Novgorod Vasilii Grebenka, † after 1477, pr. Pskov & Novgorod

Genealogies table 16

Grand Princes of Tver’

Mikhail Iaroslavich, *1272, † 1318, gr. pr. Tver’ 1285, gr. pr. Vladimir 1304 Dmitrii Groznye Ochi (“the Fierce-Looking”), *1298, † 1325, gr. pr. Tver’ 1319, gr. pr. Vladimir 1322 Aleksandr, *1301, † 1339, gr. pr. Tver’ 1325–27, 1338–39 gr. pr. Vladimir 1325–27 Vsevolod, *after 1327, † 1364, gr. pr. Tver’ 1345, pr. Kholm 1348 Iurii, † after 1408, pr. Kholm Dmitrii, pr. Kholm Daniil, pr. Kholm Mikhail, (last) pr. Kholm Ivan, † 1402, pr, Kholm Mikhail, *1333, † 1399, pr. Mikulin, gr. pr. Tver’ 1364 Aleksandr, † 1369, pr. Kashin Ivan, *1358, † 1425, gr. pr. Tver’ Aleksandr, † 1425, gr. pr. Tver’ Iurii, *c.1398, † 1426, gr. pr. Tver’ Ivan, † after 1453, pr. Zubtsev Boris, † 1461, gr. pr. Tver’ Mikhail, *1451, † bef. 1505, (last) gr. pr. Tver’ Iaroslav, † 1435, pr. Gorodno Boris, *c.1362, pr. Kashin Ivan, pr. Kashin Vasilii, † after 1426, pr. Kashin Fedor, † after 1406, pr. Mikulin Aleksandr, *c.1392, † 1412/53, pr. Mikulin Boris, † bef. 1477, pr. Mikulin Andrei, (last) pr. Mikulin Fedor, p. Teliatev Andrei, pr. Teliatev Fedor, (last) pr. Teliatev Fedor, pr. Mikulin Konstantin, *1306, † 1346, gr. pr. Tver’ 1327–38, 1339 Eremei, † 1372, pr. Dorogobuzh Dmitrii, † 1414, pr. Dorogobuzh Andrei, pr. Dorogobuzh Iurii, pr. Dorogobuzh Osip, (last) pr. Dorogobuzh Ivan, pr. Cherniatyn Semën, pr. Cherniatyn

1009

1010

APPENDIX 2

Ivan, pr. Dorogobuzh Semën, † 1364, pr. Dorogobuzh Vasilii, pr. Kashin, † 1368, gr. pr. Tver’ 1348–68 Vasilii, pr. Kashin, † 1362 Mikhail, *1331, † 1373, pr. Kashin Vasilii, † 1382, pr. Kashin

table 17

Princes of Starodub

Ivan Vsevolodovich, *1198, † after 1246, pr. Starodub Mikhail, pr. Starodub Ivan Kalistrat, † 1315, pr. Starodub Feodor, † 1330, pr. Starodub Dmitrii, † 1354, pr. Starodub Ivan, pr. Starodub Andrei, pr. Starodub → Gagarin, Khil’kov princes

Gediminids In the 14th century the Lithuanians were the last pagan nation in Europe. They were ruled by princes of whom Gedimin († 1341) is the first reliably documented representative. He was succeeded as grand prince by his son Olgierd (Algirdas, † 1381); after Olgierd, the rulership was disputed by his brother Kestutis and Olgierd’s son Jagiello. Kestutis was killed in 1381, but his son Vytautas (Vitovt, Vitold, † 1430) maintained his father’s claim and ruled more or less in tandem with his cousin Jagiello. Jagiello married the last representative of the Polish royal dynasty of the Piasts, Jadwiga, in 1386, became a Christian; Poland and Lithuania were henceforth in a personal union until 1569 when, close to the extinction of the Jagiellonian dynasty (at the death of Zygmunt ii August in 1572), the union was transformed into a political one. Apart from a few interruptions caused by dynastic squabbles, the Polish and Lithuanian crowns remained in the hands of Jagiello’s descendants: after Jagiello’s death in 1434 his son Casimir iv (1427–1492, grand prince of Lithuania in 1440, king of Poland in 1447), then his sons Johan Albrecht (1460–1501, king of Poland in 1492), Alexander (1461–1506, grand prince of Lithuania in 1492, king of Poland in 1501), and Zygmunt i

Genealogies

1011

(1467–1548, king of Poland and grand prince of Lithuania in 1506). Zygmunt ii August (1520–1572) was the son of the latter. Olgierd Gediminovich had been married several times and left at least eleven legitimate sons, apart from Jagiello. His brother Narimont Gediminovich († 1348) left at least six legitimate sons of whom one, Patrikii, came to Moscow in 1408 in the suite of his cousin Svidrigailo (Jagiello’s brother). He entered the service of the Moscow grand prince Vasilii i and his son married Vasilii’s daughter in 1418. Their descendants, the Patrikeev princes, retained their title and were the first non-Rurikid princes in ­Muscovy. The Patrikeev branch became extinct, but other branches of descendants of Narimont continued to play a role in the history of Muscovy and Russia, such as the Golitsyn, Kurakin and Khovanskii princes. The descendants of Olgierd included the Trubetskoi and Mstislavskii princes, prominent actors in the history of Muscovy and Russia.6 6 Extensive genealogies in N. Iakovenko, Ukrains’ka shliakhta z kintsia xiv do seredyny xvii stolittia, Kyiv, 2008, 301–370. See also A.A. Zimin, Formirovanie boiarskoi aristokratii v Rossii vo vtoroi polovine xv – pervoi treti xvi v., Moskva, 1988, 28–35; and P.N. Petrov, Istoriia rodov russkago dvorianstva i, Sankt-Peterburg, 1886 (reprint, Moskva, 1991), 320–321, 368–370 (less reliable).

1012

MAPS

WHITE SEA

RUSSIA BEFORE THE MONGOL CONQUEST (1240)

Ob

N. D

vin

Vol k

Ladoga Novgorod

FINNISH hov

BALTIC SEA

Belozero

S NE TRIBES

Minsk

sna

MI

DI

HI

C TI IA

AN

TRIBES

at

Volga

ka

Be

lai

a

Murom

Riazan Ural

Do

E

Chernigov Kiev Pereiaslavl Dn ep Bu r g

Vi

V

n

AN

LI

Galich

NE

RI

IA

NE

PO

LY N

Oka

Briansk

VE

Vladimir DRE VO VolynskVLIA

Iaroslavl

Vladimir Moskva

SE

DREGOVICHI

Pinsk Turov

CH

at

pr

Dne

De

ipi

RA

Pr

FINNISH

Rostov Velikii Suzdal Kliazma

I

a

vin

Lo va t

D W.

E Pskov OV SL BALTIC PO L Polotsk TRIBES OCH KRIVICHI AN Vitebsk E Smolensk Moskva

a Kam

a

on

kh

Su

a

E

Don

IC

t

es

HItr

Dn

Pru

UL

e

ts I E N 6E) G TSY 3 P E C(uH 10 l V ti n ) 5 O 5 0 L PO(after 1

Sarai

Man ych

Danube

Kuban

Tmutarakan

BLACK SEA Constantinople

Terek

GEO

RGIA

N

Tbilisi

KIN appr. terr. of Kievan Russia terr. controlled by Novgorod Kiev: principal territorial centres

map 1

GDO

Russia before the Mongol Conquest (1240)

Ku ra

MS CASPIAN SEA

1013

MAPS WHITE SEA

Ob

Solovetskii mon.

Kholmogory

FINNISH

a

in Dv N.

FINNISH

TRIBES

Tallinn

TRIBES

Vol kho v

BALTIC SEA

Tartu GERMAN ORDER Riga

Belozero

a Kam

Velikii Ustiug Viatka

Novgorod

Pskov

o

kh

Su

na

Kostroma

Lo va t

Be

lai

sn

a

a

n

Dn

Don

r

Bu

ep

ets

g

t

E DIKO

est r

KHANATE

E

POL

CRIMEA

Man ych

Kuban

Volga ASTRAKHAN Astrakhan KHANATE

Terek

BLACK SEA

Constantinople

Ural HORDE

LITHUANIA

Dn

Pru

Danube

NOGAI

Chernigov (between 1514–1618)

Do

Vladimir Volynsk PRINCIPALITY Kiev Galich OF

Lvov

Iaroslavl

De

a

vin

D W.

Vi at ka Rostov Velikii Volg KAZAN a Kazan Kliazma Polotsk Moskva Nizhnii Vladimir Vilnius Vitebsk Smolensk Moskva Novgorod Murom KHANATE pr GRAND Minsk Dne Oka Riazan Pinsk Turov

Tver

GEORGIAN KINGDOM Tbilisi

Ku ra

MUSCOVY AND ITS NEIGHBOURS (1497–1649) CASPIAN SEA

map 2

Muscovy and its Neighbours (1497–1649)

Glossary of Russian Terms

The Language of Russian Medieval Law

Legal terminology in Russia has been subject to change, as time went on, and it would of course be strange if it had not. But the historical transformation of the language of law in Russia is characterized by a few unusual features. The conversion of Russia around the year 1000 was accompanied by the arrival of the written word, especially the Bible and religious texts connected with it. Most of these texts did not come directly from Byzantium, but from Bulgaria, which had adopted Christianity somewhat earlier than Russia. They had been written in a Macedonian dialect, a language that became known as Church-Slavonic and was close to the contemporary language of Kievan Russia. For that reason there was no need for a re-translation of these texts from Church-Slavonic into Russian. Also, the earliest written works of Kievan R ­ ussia, mostly connected with religious themes, used ChurchSlavonic, which possessed the vocabulary required. When the traditional and customary law of Kievan Russia began to be recorded in writing, particularly in the Russkaia Pravda, there was no need to resort to ChurchSlavonic, because the legal terminology was already available in the vernacular. Church-Slavonic is therefore absent in the Russkaia Pravda. It gradually penetrated in Russia in the course of the following centuries and was absorbed into Russian, but this development affected the law much less than other linguistic sectors. There are no traces of Church-Slavonic in the Codes of 1497 and 1550, although they did appear in the Ulozhenie of 1649. The co-existence of two separate, admittedly very similar, literary ­languages, one for general use (literature, academic discourse, etc.), and the other for law and administration, remained a special characteristic for Russia, up to the 18th century, when Russian and a russified Church-Slavonic finally merged completely. (Based on B. Unbegaun, “Iazyk russkogo prava”, P.A. Sorokin, N.P. Poltoratskii (eds.), Na temy russkie i obshchie. Sbornik statei i materialov v chest’ prof. N.S. Timasheva, New-York, 1965, 178–184.) Akty Sotsial’no-Ekonomícheskoi Istorii Sévero-Vostóchnoi Rusi (asei) “Acts of [concerning] the Socio-Economic History of North-East Russia”; 3-volume publication of charters, mainly from the 15th century, and mostly from monasteries in the Vladimir-Moscow grand principality.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004352148_043

Glossary of Russian Terms

1015

altýn Monetary unit, in use since the 14th century; in the Code of 1497, the altyn was worth 6 den’gi, while 200 den’gi were equal to one ruble. ambárshchina Tax levied on foreign merchants for staying in the gostinnyi dvor (“merchants’ court”) and for storing their goods (ambar, “warehouse”). bárshchina One of the main forms of rent payment by dependent peasants, besides obrok (annual payment, q.v.). Barshchina consisted of a fixed number of days a peasant had to work on the land of his master, in exchange for which he was allotted a plot of land to cultivate for himself during the remaining days. baskáki Mongol-Tatar officials, serving as the khan’s lieutenants in Russian principalities. Their main task was the collection of the taxes imposed by the Tatar ­rulers. They were under the supervision of the great baskak of the grand principality of Vladimir. After 1327 their tasks were taken over by the grand princes of ­Vladimir, with a more modest role for the grand princes of Tver’, Nizhnii Novgorod, and Riazan’. batógi Sticks, used for the lighter form of flogging; see also knut. belomésttsy Inhabitants and also owners of belye mesta (“white places”), parts of town not subject to tiaglo, certain tax burdens and work duties, imposed on ordinary urban inhabitants, posadskie liudi (q.v.). Belozérskaia Tamózhennaia Grámota Belozero (White Lake) Tax Charter. Belozérskaia Ustavnáia Grámota Belozero (White Lake) Statutory Charter of 1488. bezchéstie dishonour, and also the compensation to be paid to the person dishonoured. bezzakónie Unlawful act.

1016

Glossary of Russian Terms

birích Herald, town crier. bliádnia Prostitution, fornication. blízhii, blízhiki Blood relatives, kin. The closest circle is formed by the malye blizhiki (“small” kin). bobýl’ (bobylí) Impoverished and often landless peasants, who did not pay the usual peasant taxes, but only obrok (q.v.). They were mentioned frequently, along with ordinary peasants, in the Ulozhenie of 1649. Bogoróditsa Translation of Greek Theotokos: the Mother of God. boiárin (−iare) Important noblemen, boyars. The meaning of “boyars” developed through the ages. In the Kievan era, boyars were the most prominent noblemen around the prince, while the wealthy and leading inhabitants of the major cities (such as Novgorod) were also called boyars. In Muscovy the boyars as a class were more precisely circumscribed; a boyar was a nobleman of the highest rank, conferred by the grand prince. But as boyar appointments ran in certain prominent families, the entire family came to be considered as a boyar family. boiarin mén’shii A lesser boyar (Church Statute of Iaroslav). boiarin pútnyi A boyar directing a government department called a put’ (q.v.). boiarin velíkii A great boyar (as opposed to a lesser boyar, boiarin men’shii; mentioned in the Church Statute of Iaroslav). boiarin vvedénnyi  n “introduced boyar”, the highest level among the boyars, consisting of a small group A of persons close to the Moscow grand prince.

Glossary of Russian Terms

1017

boiarin zémskii A “land boyar”, a term invented later on, to refer to those boyars during the Kievan era who did not derive their status from their closeness to the prince, but from their local importance as landowners and prominent citizens. The entire concept remains controversial. bologodél A favour, a free and gratuitous service (art. 49 Expanded Pravda) bol’shói naméstnik see namestnik bort’ Hollow treestump in forest, used as beehive. Hence bortnoe derevo (tree used for keeping wild bees), bortnik (bee-keeper). brátchina Brotherhood, fraternity; such bodies sometimes had the right to settle disputes among their members (e.g. in Pskov and Belozero). chad’ Persons belonging to household, esp. children and personnel. chaganus, chacanus see kagan cháshnik “Cup-bearer”, princely court official responsible for part of the management of the prince’s court. charodeiiániia Sorcery (Church Statute of Vladimir). cheliadín (chéliad’) Early term, referring to persons belonging to the household, hence also “slaves”. Cheliadin with the meaning of “slave” co-exists with kholop in the rp and then gradually disappears. cheliadin naimít A slave hired out as a labourer.

1018

Glossary of Russian Terms

chelobít’e Request, petition. Usually in the form of a chelobítnaia gramota. chelovék (plural: liudi, q.v.) Man, human person. chern’ See liudi. Chërnaia Rus’ Region in present-day Belarus, around the upper reaches of the Neman River, originally part of Kievan Russia, then under Lithuanian control. chernosóshnye zémli “Black” lands, newly cultivated lands in Eastern Russia, belonging to the state. chërnye krest’iáne “Black” peasants, i.e. peasants working lands (mostly in Eastern Russia) belonging to the state. chërnye liudi, chern’ See liudi. chétvert’ (also chet’) From the original meaning (a quarter), several special meanings arose. 1. A department, similar to the prikazy of Muscovy, and in charge of f­ iscal and administrative duties, usually with regard to certain parts of the country. 2. A surface area of ca. 2733 sq.meters (one fourth of a desiatina). 3. A liquid measure of 3.07 l (one fourth of a vedro). chétvertnye d’iáki Secretaries or clerks of a chetvert’. dácha Gift, grant. V dache: as a gift, for free. dan’ The original meaning of dan’ is “gift”, a euphemism for tribute, either annual or incidental, exacted from a subjugated or otherwise dependent tribe (people, nation). The prince’s own subjects would pay poliud’e, which took its name from the annual ­circuit of the prince and his retinue, in late autumn or winter, when he would visit the

Glossary of Russian Terms

1019

various parts of his principality to participate in hunting and celebrations, administer justice, and collect the customary contributions in money and kind. As the distinction between dan’ and poliud’e faded, dan’ became the designation for the general fiscal imposition on the population. dánniki Foreign tribes, paying dan’. dán’shchik (−i) Tax collectors of the Moscow grand prince, charged in particular with the collection of the tribute (dan’) to be paid to the Tatar khan. dar Formalized gift, which could develop into an annual tax. ded Grandfather, also great uncle. délo (−á) Thing, business, cause, case, incl. legal case. delá dukhóvnye (or grekhovýe) cases, specifically reserved for church courts (‘cases concerning the soul’, or ‘concerning sin’). delá mírskie (or svétskie) secular (worldly) cases. delárnoe, deliárnoe Tax on river vessels. deliúi Members of a special detachment responsible for transporting tax revenues to the Mongol-Tatar headquarters. They were granted special service estates near Moscow and later on merged with other groups of armed servants of the Moscow grand prince. desiatína 1. One tenth, tithe (tax in favour of church). 2. Surface measure: 1.09 hectare, 2.7 acres, 2.400 sq. sazheni (in some cases 3.200 or 3.600)

1020

Glossary of Russian Terms

desiatínnaia A 10% tax on furs. desiatínnik, desiatíl’nik Tithe collector. desiatínnye gorodá Tithe towns, the income of which (from taxes etc.) was ­assigned to the Church. desiátskii “Decurion”, constable overseeing 10 households, commanding 10 men? déti boiárskie Descendants of boyar families who had lost boyar status. Those were izstari prirodnye, persons who had an old noble lineage. In a wider sense the deti boiarskie constituted the bulk of the lower nobility (dvoriane), the mainstay of the army of Muscovy. osádnye deti boiarskie Impoverished members of the class of deti boiarskie, who only had to serve during a siege (osada) of a town. detínets Fortress within town, same as kreml’. détskii “Youth”; regarded as junior member of druzhina, entrusted with various official (executive) duties. dévka Unmarried woman or girl. d’iak (−i) Clerk, secretary, scribe; originally a relatively humble servant, but in Muscovy d’iaki formed the backbone of the grand prince’s administration and some d’iaki belonged to the intimate councillors of the grand prince. díkie zémli Uncultivated, ‘wild’ lands. Díkoe póle see pole

Glossary of Russian Terms

1021

dnéprovskie porógi Dnepr Rapids. dóbrye liúdi see liudi doklád A report, esp. to the prince, about some matter of public importance. In judicial procedure a judgment often had to be reported to a higher authority (the dokladchiki) for approval. This so-called doklad procedure functioned as a kind of appellate procedure. dokládnye kholópy see kholopy dokonchánie An agreement, a contract, esp. between princes. Domostrói Appr. “House management”; 16th century didactic collection of short texts on all aspects of daily, esp. family life and on the practice of religion. doská (−i) Lit. “board”; informal note, as opposed to a zapis’ (Pskov). dovódchik (−i) Constables, bailiffs and other agents under the lieutenant (namestnik) of the Moscow grand prince, esp. in charge of serving dovody (dovód, summons, indictment, etc.). dozór An inspection report or inventory. dragún dragoon; mounted infantryman. Like strel’tsy and Cossacks, dragoons were part of the professional army of Muscovy. Drévniaia Rus’ The proto-historic period preceding Kievan Russia, roughly the period before the conversion of Russia in 988. driagíl’noe Stamp duty for packaging and sealing goods.

1022

Glossary of Russian Terms

druzhína Originally, in pre-medieval times, a band of companions and comrades-in-arms of a chief or ruler. It gradually developed into a larger body, splitting into a smaller group of senior members, serving as close advisors and high representatives of the prince, and a larger group of junior members, constituting the prince’s bodyguard and private army. druzhínniki Members of the druzhina. druzhínnoe gosudárstvo Modern term (“druzhina state”), referring to a political structure characterized by the (presumed) central role of the druzhina, as in Kievan Russia. Dukhóvnyi Regláment “Spiritual Regulations”, Peter the Great’s edict of 1721, containing his new organizational structure of the Russian Orthodox Church. dúma Council, esp. the tsar’s personal council, consisting of boyars, okol’nichie, duma nobles and duma clerks, and usually referred to as the Boyar Duma. dúmnye d’iáki The highest ranking clerks (d’iaki), who served on the prince’s council (Duma), ­together with dumnye boiare and dumnye dvoriane. dúmnye dvoriáne Members of the lower nobility, serving as princely councillors, along with dumnye b­ oiare and dumnye d’iaki. dushá Soul, person. dushegúbstvo Homicide, murder; occasionally also other very serious crimes. dvérskii, dvórskii, dvorétskii Official heading the prince’s household.

Glossary of Russian Terms

1023

dvor 1. Peasant household. 2. Household of prince, monastery, nobleman or other landowner. 3. Court of prince. dvoriáne moskóvskie Members of lower nobility, provided with service estates in the immediate ­vicinity of Moscow, forming a readily available military force for the prince. Members of the lower nobility in peripheral towns were known as gorodovye dvoriane. dvorianín (dvoriáne) Lower nobleman. dvoriánstvo Lower nobility. dvórskie liúdi, slúgi see liudi, slugi dvortsóvyi Adjective to dvorets (palace), the entire complex of personnel, lands, and organization serving the needs of the tsar himself. Hence dvortsovye zemli, sela, liudi, krest’iane (­palace lands, villages, people, peasants), etc. émets Constable, lower court official charged with executive duties. gétman (also atamán) Hetman, supreme commander of Cossack host. golová (gólovy) Head, also person; chief. izliublénnye gólovy “beloved heads”, prominent village elders. golovníchestvo “Head money”, to be paid by the killer to the victim’s family.

1024

Glossary of Russian Terms

golovshchína Tax imposed at transit points on the number of persons (golova, “head”) ­accompanying goods. golovnýe There is no agreement about the meaning of this term (in the Code of 1497). It refers at any rate to persons guilty of the most serious crimes. gonénie sléda Following the trail of a fugitive thief, an obligation of the local community concerned. gorodník Builder of town fortifications (art. 96 of the Expanded Pravda). gorodovóe délo An urban tax to cover the costs of building and maintaining fortifications. Gospóda The government of Pskov, the Council of Lords. gospodín (gospodá) Lord, master. gost’ (gósti) Merchant engaged in long-distance trade. Highest and most privileged layer of the merchant class. The most important gosti were sometimes known as gosti bol’shie (great merchants). gost’bá Long-distance trade, as opposed to kuplia, local or regional trade. gostínniki Tax imposed on foreign merchants. gostínnoe Tax on commercial goods. gosudár’ Lord, sovereign; master, employer (in Pskov Charter).

Glossary of Russian Terms

1025

gosudárstvennost’ Statehood, the quality of being a state. Gótskii béreg The island of Visby (the “Gothic Coast”), one of the principal foreign trading partners of North-West Russia. Gótskii dvor The “Gothic Court”, the commercial compound of Visby merchants in Novgorod. grámota (−y) Charter, deed, written document. The numerous types of gramoty have been described in alphabetical order in the Chapter on Charters (Gramoty). Grámoty Velíkogo Nóvgoroda i Pskóva (gvnp) “Charters of Novgorod the Great and Pskov”, the basic publication (1949) of medieval charters and other documents from Novgorod the Great and Pskov, until their absorption in the grand principality of Moscow. gráni Chapters (in the Composite Code of 1605–1606). grídin, grid’ Junior member of druzhina, bodyguard, about synonymous with otrok. grívna (−y) The principal monetary unit of Kievan Russia and the following centuries. The ordinary grivna was also called grivna kun (from kuna, marten skin); four grivna kun made up one grivna serebra (silver grivna). For more detail, see the Appendix on the monetary system of medieval Russia. gubá (gúby) Administrative region, mostly in northern Russia, and more or less the same as an uezd. The Guba Reforms of the 15th and 16th century introduced a considerable measure of self-government in the guba. Gubnáia zápis’ Appr. “criminal ordinance”, common designation of the so-called Homicide Law of Vasilii ii (1456/1462).

1026

Glossary of Russian Terms

gumnó Threshing floor, grain storage iábetnik, iábednik In the Short Pravda the iabetnik appears to be a middle-level princely servant, entrusted perhaps with managerial duties in the prince’s household, like a tiun. He only returns much later, in the Code of 1497, where iabednichestvo is of one of the most serious offences, consisting of making false denunciations. The term is probably of Germanic (and further back of Celtic) origin. iam (iámy) Mail staging-post. Iamy were located on major roads at regular intervals. The local population was obliged to build and equip iamy, to allow an effective system of communication, called iamskaia gon’ba, manned by iamshchiki (in modern Russian a iamshchik is a coachman). iarlýk Charter issued by Tatar khan, containing a grant, permission, prohibition, etc. In ­Modern Russian: tag, label, chit. Iasá Refers to the Great Iasa (Yasa) of Chingis-Khan, the Mongol Code of Law. iávlennoe, iávnoe Tax on goods presented at customs office. igríshchi Pagan dances (Church Statute of Vladimir) igúmen, igúmen’ia Abbot, abbess; head of a monastery. imenítyi Distinguished. In the Ulozhenie of 1649, the Stroganov family was designated exceptionally as a distinguished family. A decree of 1785 conferred the epithet on individuals and families, belonging to the highest layers of the urban ­citizenry. The status involved a number of privileges which narrowed the gap between the lower nobility and the upper level of the bourgeoisie. iskováia chelobítnaia Claimant’s petition, to start a civil procedure.

Glossary of Russian Terms

1027

istéts Plaintiff, claimant. Iúr’ev den’ Iur’ev den’ osennyi, the autumn feast of St. George (26 November), when peasants were allowed to leave their masters (according to art. 57 of the Code of 1497). Ivánskoe kupéchestvo The merchant guild of St. John in Novgorod, which apart from its involvement in trade (esp. foreign trade), also played an important role in public affairs and commercial jurisdiction. Ízbrannaia Ráda “Chosen Council”, a small group of advisors, headed by A.F.Adashev, governing ­Muscovy during the early youth of Ivan iv. izdól’e Obrok (annual payment by tenant etc.) in the form of a certain share of the harvest. izgói A person who for some reason had ended up outside the social framework where he once belonged; an izgoi would often be compelled to enter into a dependent relationship with some kind of lord or master. Ízmaragd Collection of admonitions on religious life, emerging in the 14th century, and a major source for the Domostroi (q.v.). izórnik (−i) Dependent peasant in Pskov, tenant farmer, who usually received a loan of some kind (money, seed grain, implements, etc.) along with the plot put at his disposal. izvód 1. Assembly of twelve men with judicial function, in art. 15 of the Short Pravda. 2. Version or redaction of a chronicle, esp. the Old (Starshii) and the ­Younger (Mladshii) versions of the First Novgorod Chronicle. kabalá (−lý) A written contract, the document as well as the relationship, by which the creditor loaned a sum of money (from Turkic).

1028

Glossary of Russian Terms

sluzhílaia kabala “Limited service slavery contract” (Hillie’s translation) by virtue of which the debtor obliged himself to enter the service of the creditor in lieu of paying interest. zaëmnaia kabala Document recording a loan contract. zakládnaia kabala Document recording a contract of pledge. kagán Title of supreme ruler (Turkic). kaznachéi Treasurer, of monastery, of grand prince, etc. kaznít’ To punish (in general), esp. to inflict capital punishment. kelár’ Cellarer, monastic officer in charge of monasterial estate management. khirotóniia Imposition of hands, as essential element of bishop’s consecration (from Greek). kholóp Slave, bondman. The character of slavery changed greatly, from classic slavery (the slave as a “thing”, a commercial item, without any rights) in the early Kievan era to a dependent peasant whose status approached that of a serf (somebody whose personal rights were severely restricted, but who enjoyed certain rights nevertheless). dokládnyi kholop Person who has become a slave on the basis of a report (doklad) expressing his intentions. kabál’nyi kholop Person who has become a slave on the basis of a kabala (q.v.). obél’nyi kholop A full slave.

Glossary of Russian Terms

1029

khózhenoe Walking fee for messengers etc. klíros “Clergy”, but with the special meaning of clergy belonging to a church which was a sobor (q.v.), canons. kliúchnik, kliúchnitsa (female) Lit. “holder of key”; steward, head of household staff, esp. in monasteries. The functions of kliuchniki and tiuny (q.v.) were often occupied by slaves, who then constituted the highest level of the slave population. kniaz’ Prince. kniaz’ izgoi A person of princely stock who had lost most of his status by being excluded (for ­various reasons) from the pool of candidates for princely seats. sluzhílyi (sluzhébnyi) kniaz’ Service prince; esp. persons of princely stock whose families had lost their own principalities and who had entered the service of the Moscow grand prince. velíkii kniaz’ Grand prince, title claimed by the most important ruling princes, esp. the princes of Kiev and later on of Vladimir-Moscow. kniazh dvor The prince’s court. The actual residence, the estates belonging to it, the personnel ­attached to it. kniazh muzh See muzh kniazh rod The princely race or blood; usually referring to the Rurikid dynasty. kniázhestvo (−a) Principality, the territory ruled by a prince, the dignity of prince.

1030

Glossary of Russian Terms

kniázhii tiún see tiun Knígi Zakónnye “Law Books”; collection of Byzantine legal texts, translated into Russian, with some editorial reworking. It included the Greek Farmer’s Law (Nomos Georgikos) and parts of the Procheiron and the Ecloga. knut Knout, instrument for inflicting corporal punishment (flogging), consisting of leather thongs attached to handle. Punishment with the knout in its more severe form could be fatal. Flogging with sticks (batogi) was a lighter form of punishment. The more severe forms were flogging “around the market place” (po torgom, also called torgovaia kazn’), “on the rack” (na kozle), and “without mercy” (bez poshchady). Kolbiági An ethnic entity, always mentioned together with the Varangians (Variagi), and possibly referring to Scandinavians who had already settled in Russia ­before the arrival of the Varangians. Kollégiia Ekonómiki A government department, first established in 1726, and entrusted in 1762 with the administration of secularized church property. konéts (kontsý) Urban quarter, esp. the five kontsy of Novgorod the Great. kóniukh Stable master. kóniukh stáryi Senior stable master, one of the highest servants of the prince in the rp. koniúshii Master of the prince’s stable. The koniushii was usually one of the putnye boiare (q.v.), in charge of managing everything connected with the prince’s stables. kopíinye knígi Copies of documents concerning monasterial landholdings were collected in systematized “copy-books”, which were transferred to the Kollegiia Ekonomiki after 1764 (when ecclesiastical land had been secularized).

Glossary of Russian Terms

1031

korchmá Disreputable tavern, where illegally distilled liquor was sold. korm “Feed”, “fodder”, see further kormlenie. kórmchaia (kniga) (−chie knigi) Lit. “steering-book”, “pilot-book”, from kormá (“stern”) and kormílo (“helm”) and Greek prumnè (“stern”); collection of guiding texts for monasterial life; Russian equivalent of Greek Nomocanon. A kormchaia would contain relevant canon law texts, as well as some materials on secular law. As kormchie kept b­ eing copied, new materials were added and obsolete ones omitted. Most of the actual texts concerning medieval Russian law have been preserved as parts of kormchie. kormílets (kormílichits), kormílitsa Lit. “somebody who feeds” (male/female); in some cases of high rank: the prince’s tutor, in other cases even slaves: the wet-nurse of art. 17 of the Expanded Pravda. kormlénie “Feeding”, as a system for paying officials. For centuries, officials of the prince who carried out their duties away from the court were provided for through the kormlenie system. The local population was to supply them, as an elementary form of taxation, with food and drink, housing, fodder for ­horses, and anything else necessary for the officials to discharge their duties. In time, these payments were gradually replaced entirely or in part by monetary transfers. kórmlia Lifelong possession and use, usufruct (in arts. 72 and 88 of the Pskov Court Charter). kóstki Transit tax on merchants, often for the benefit of the Church. kramóla Acts directed at the overthrow of the ruler and/or the government; sedition, high treason, etc. Mentioned in the Codes of 1497 and 1550, but not in the ­Ulozhenie of 1649, although almost its entire second chapter is ­devoted to it. kreml’ Fortress within town. Also detinets.

1032

Glossary of Russian Terms

krest’ianín (−iáne) Peasant; the term acquired currency in the course of the 14th century with the penetration of Slavic agriculturalists in regions (sparsely) inhabited by pagan forest dwellers. The Russian peasants were Christians, as opposed to Finnish and Turkic elements. beglye krest’iane Fugitive peasants, escaping from enserfment. kréstnoe tselovánie The kissing of the Cross, as the Russian and Christian form of the oath (­formerly rota). krováv muzh The “bloodied man”, subject of special rules of evidence in the rp. krugováia porúka Collective responsibility of local community for financial consequences of ­serious ­offences of one of their members. kúna Marten skin; monetary unit in rp. In the Short Pravda 25 kuny were equal to one grivna kun (the ordinary grivna). In the Expanded Pravda the equation was 50 kuny to one grivna kun. Also tax in kind on skins. kúpa Loan of money, implements, etc. to a zakup (q.v.), to allow him to work the plot put at his disposal. kupchína A merchant. kupéts (kuptsý) Merchant in general; gosti are merchants engaged in long-distance trade. póshlye kuptsy Wealthy, important and prominent merchants, special category in Novgorod. kúplia The contract of purchase (and sale) itself and also the property bought, esp. landed property. When opposed to gost’ba (long-distance trade): local or ­regional trade.

Glossary of Russian Terms

1033

lar’ 1. Coffer, chest. 2. The archives of Pskov, kept in the Holy Trinity sobor, the most important of the five sobor (cathedral) churches of Pskov. (Pskov did not have its own bishop ­during the middle ages and remained, in ecclesiastical matters, under the archbishop of Novgorod.) Litóvskaia Métrika The state archives of the grand principality of Lithuania; now in the central state ­archives of the Russian Federation. liúdi People, persons; in Kievan Russia: free people. chérnye liudi, also chern’ Common people (in towns), as opposed to well-to-do burghers (zhit’i liudi). dóbrye liudi Prominent citizens, “good people”. Also village elders (see also tseloval’niki). dvórskie liudi Originally unfree princely servants who had risen to positions of some importance in the prince’s household. likhíe liudi Criminals, ‘evil people’; usually in combinations, such as zavedomo likhie liudi (known criminals), vedomye likhie liudi (id.). lúchshie liudi, narochíty liudi “The best people”; prominent, well-to-do citizens, the class below urban boyars. páshennye liudi Rural inhabitants engaged in agriculture, as opposed to nepashennye liudi, rural inhabitants engaged in non-agricultural work, such trades and crafts. posádskie liudi  axpaying residents of posad. There was a distinction between residents of Moscow T and those of other towns: moskovskie and gorodovye posadskie liudi.

1034

Glossary of Russian Terms

sluzhílye liudi Persons serving the state for a reward in the form of a grant of land or of money, ­embracing broad sections of the population, from noble landowners to professional soldiers and craftsmen. Sluzhilye liudi po priboru were persons who had freely entered a service relationship with the state, such as persons doing voluntary military service. tserkóvnye liudi “Church people”, not only priests, monks and nuns, but a whole range of people who were connected with the church or who were dependent on the church (e.g. beggars). zadvórnye liudi Dependent persons, living by themselves, and not within the master’s household (dvor). zhít’i liudi Burghers, well-to-do citizens. lóvchii Master of the prince’s hunt; the lovchii headed a special department (put’, q.v.) for managing the prince’s hunting estates. Also lower ranking men employed in hunting. lóvishche Hunting preserves. méchnik “Sword man”, junior druzhina member, officer of the prince, bodyguard, sheriff. Merílo Pravédnoe “Just Measure”, a collection of medieval texts, apparently meant as a guide for courts. It consisted of two parts, one of religious and moralistic texts, mostly of Greek origin, and the other of legal texts, both Byzantine and Russian, including a.o. a text of the Expanded Pravda. méstnichestvo The appointments system of the Muscovy state, according to which the grand prince (tsar), in making military and important civil appointments, had to take into ­account the rank and status of the appointee’s family and of the appointee himself. The ­necessary registers were kept in the Appointments Department (Razriadnyi prikaz). The mestnichestvo system was abolished in 1682.

Glossary of Russian Terms

1035

metél’nik Assistant of bloodwite collector (virnik), constable; junior druzhina member? mílostniki A person enjoying the benevolence (milost’) of a lord or master (prince or boyar); ­personal servants, possibly armed personnel. mir Peasant community, lowest link in local government. mirskói skhod Assembly of village community (mir). mirzá Tatar prince. monastýr’ Monastery or convent. monastýrskie detënyshi “Monastery children”, orphans or other indigents who served as dependent workers in the monasterial economy. móstnik Builder of bridges and wooden pavements (cf. art. 97 of the Expanded Pravda). mostovóe Fee for using a bridge. mostovshchína Urban tax to cover the costs of bridges and pavements. mósty Nowadays “bridges”, but in the middle ages often denoting also pavements consisting of wooden beams. muzh (múzhi) Man.

1036

Glossary of Russian Terms

kniazh muzh The “prince’s man”, somebody belonging to a small group of high-ranking officers of the prince, a member of the senior section of the prince’s druzhina. narochíty múzhi Important, leading citizens (in towns). myt, mytovóe Market tax on transit goods; toll. mýtnik Collector of market tax. Nachál’naia Létopis’ The Primary Chronicle, also known as Tale of Bygone Years (Póvest’ Vrémennykh Let) or Nestor Chronicle, relating the history of Russia from the Flood of Noah until 1116 (the Laurentian redaction) or until 1292 (the Hypatian redaction). It provided the basis for most other medieval Russian chronicles. naimít Hired craftsman. naimit dvornói Hired craftsman, employed in the master’s house. naimit plótnik Hired carpenter. nakáz Official instruction, directive. náklo Market tax, same as myt. naméstnik (−i) Lieutenants of a prince or bishop, serving especially as his general representative in cities and towns. bol’shói namestnik The Grand Lieutenant of the Moscow grand prince, for the city of Moscow.

Glossary of Russian Terms

1037

vladýchnyi namestnik The lieutenant of the bishop (vladyka). narochíty muzhi, narochity liudi Prominent men, leading citizens, about synonymous with luchshie liudi. nedél’shchik Bailiff (Code of 1497). Nemétskii dvor The German Court, or Court of St. Peter, the semi-extraterritorial compound of the Hanseatic merchants in Novgorod, which had its own law, the Skra of Novgorod. nestiazháteli Oppositional section among monks, objecting to the accumulation of wealth by monasteries. neverstany see verstan’e nogáta Small monetary unit in Expanded Pravda; there were 20 nogaty in the ordinary grivna. normanízm Normanism, pejorative term in Russian historiography to indicate (and ­condemn) a perceived tendency to exaggerate the impact of Scandinavian influences in medieval Russia. Novgoródskaia Súdnaia Grámota Novgorod Court Charter. novoporiádchik Newly arrived dependent peasant, who had concluded a contract (poriad) with the landowner, as opposed to a starozhilets, whose family had lived on the land and worked for the landowner for a long time. novoukáznye stat’í New legislation, in the form of decrees (ukazy), appearing after the enactment of the Sobornoe Ulozhenie of 1649.

1038

Glossary of Russian Terms

Ober-Prokurór Function established by Peter the Great in 1721 (Ober-Prokuror Sviateishego Sinoda, Ober-Prokuror of the Most Holy Synod); supreme government supervisor of the Russian Orthodox Church. óbchii (obshchii) sud Court of joint ecclesiastical and secular jurisdiction. obída Offence; in the expression za obidu (“for the offence”), about a compensation for the victim, additional to the penalty to be imposed. obídnye delá wrongful acts. óblast’ Province. obrók Annual payment, esp. as paid by dependent peasants for the use of land, quit-rent. obruchénie Betrothal by means of a religious ceremony. óbshchina Community, esp. village community, peasant commune. óbysk (Criminal) investigation, search. povál’nyi obysk Comprehensive questioning of entire village or neighbourhood. obýshchik Officer conducting criminal investigation. ognishchánin A person belonging to a small circle of high-ranking officials or servants around the prince, a “man of the prince” (kniazh muzh). There is no agreement about the precise meaning of the term (which disappears soon after the rp): steward, estate manager, bailiff?

Glossary of Russian Terms

1039

okól’nichii (−ie) High officials of the Moscow grand prince, ranking immediately below the boyars. opríchnina Political regime instituted by Ivan iv, on account of which part of the country was set aside and ruled by the tsar personally (the oprichnina, from oprich, “except”), while the rest of the country formed the zemshchina. The regime soon took on aspects of maniacal cruelty and terrorism and left the country in chaos. It lasted from 1665 to 1672. osménik Collector of local taxes (osmnichnoe and mostovshchina). osnovopolózhniki “Founders”, “foundation layers”; modern term used in Soviet Marxism in connection with Marx, Engels, Lenin and Stalin. ótchina See vótchina ótkup In Ch.18 of the Ulozhenie of 1649, a franchise system for different kinds of ­taxes, by virtue of which taxes were farmed out to private persons for a fixed fee and for a certain length of time. otkúpshchiki For a short period, the Mongol khans sold the right to collect the taxes demanded by them to private agents – otkupshchiki. In the Ulozhenie, otkupshchiki were franchise holders for various taxes (see above). otrók Young man, esp. junior member of druzhina, servant, bodygard. otvóz Tax on goods destined for other Russian towns. paláta Palace, then also government department (housed in palace). Pamiatniki Rússkogo Práva (prp) “Monuments of Russian Law”, 8-volume authoritative publication of major sources of Russian law through the ages (Moskva, 1952–1963).

1040

Glossary of Russian Terms

pávoloki Silk cloths. pechál’nik Protector. pecháti Sealed documents. pechátnik Keeper of the seal; court officer in charge of the prince’s chancery. peniázi A coinage in Pskov (from Middle Germ. penningen). piatichlénka Development of society in five stages, according to Marx and Engels: primitive communism, slave-owning society, feudalism, capitalism, socialism. piatidesiátnik Officer in command of 50 men. piátina 1. One of five Novgorod’s ‘metropolitan’ provinces. 2. Obrok (annual payment by tenant etc.) in the form of one fifth of the harvest. piatnó Lit. stain, mark, spot. Tax on sale of horses and cattle. pir (−y) Banquet of fraternity (bratchina). pirovói stárosta Fraternity elder, presiding over banquet (pir), with some judicial powers. pishchál’niki Arquebusiers, professional soldiers armed with (h)arquebus (pishchal’), a forerunner of the musket.

Glossary of Russian Terms

1041

piséts (pistsý) Secretary, scribe, clerk, esp. the court clerk, and also the secretary responsible for the compilation of pistsovye knigi. pistsóvye knígi Land registers, cadastres, in which lands were described, including information concerning ownership, population, soil, etc. plémia The basic meaning is “tribe”, but it can also refer to other collectivities, such as clan, race, family, class, etc. plemiánnik Member of the same family, esp. nephew. pobóry Fee for certain court officers, esp. dovodchiki and pravedchiki. pod”ezdnói One of the highest princely officials (in the Short Pravda), serving as the prince’s emissary, in particular in collecting taxes and fines. pod’iáchii Assitant clerk. plóshchadnye pod’iáchie Official clerks whose services were publicly available on town squares. podsúdnich’e General court fee. podúshnaia podát’ Poll tax, introduced in 1718, applying to all male persons, including slaves, but excluding nobles, public servants, and clergy. podvérniki Guards (at a court). podvóiskie Country bailiffs or court officers.

1042

Glossary of Russian Terms

podvórniki Landless, free peasants who worked in the household (dvor) of a master. podýmnoe See pomernoe. podýmshchiki Arsonists. pogánoe Pagan food (Church Statute of Vladimir). pogóst Originally, trading post; then village as regional centre and trading post in Northern Russia. poklázha Storage, safe keeping. pokón Archaic term for “law”, referring probably to rules fixed in writing or in another way, as opposed to mere customary law, for which the contemporary term was zakon. Occurs in the 10th century treaties with Byzantium and in both versions of the rp. pokón vírnyi see Russkaia Pravda pokrúta Agricultural loan to izornik or other dependent person (in Pskov). póle 1. Field, as in Díkoe pole, “the wild field”, or “the wild land”, the vast and ungoverned spaces in the south-east, where warlike nomads roamed during most of the Russian middle ages. 2. The duelling field, or the judicial duel itself as a means to prove or disprove something in the course of a trial (see Novgorod and Pskov Court Charters, Code of 1497). políchnoe Stolen property, serving as material evidence of crime.

Glossary of Russian Terms

1043

poliúd’e See dan’ polk Regiment or military unit in general. polkóvnik Commander of polk, colonel. pólnaia zápis’ Excerpt from polnaia gramota, by which somebody sells himself into slavery. Pólnoe Sobránie Rússkikh Létopisei (psrl) “Complete Collection of Russian Chronicles”, the basic (multi-volume) publication of Russian chronicles or annals, started by the Archeographical Commission in 1841. Pólnoe Sobránie Zakónov “Complete Collection of Laws”, publication (under the direction of M.M. Speranskii) of the legislation of the Russian tsardom and empire, from 1649 (the Code of Aleksei Mikhailovich, the Sobornoe Ulozhenie) to the end of 1913, in 133 volumes, itself the basis of the Svod Zakonov. Also known as “Complete Collection of National [Otechestvennykh] Laws”. poloniánik (−i) Prisoner of war, sold in slavery. poloniánichnye dén’gi Special tax destined for the ransoming of Russian sodiers in foreign captiviy. polóvniki Landless and indigent peasants, supplied with a plot of land by a landowner, as well as with a loan (in money, seed, tools, etc.), for which they worked an agreed number of years, paying half (polovina) the harvest to the landowner. pomérnoe Fee for weighing bulk goods, such as grain, salt, etc. Also podýmnoe, pudóvshchina, véshchee. pomést’e (−‘ia) A landed estate granted as a reward for service, as opposed to an inherited estate (otchina).

1044

Glossary of Russian Terms

poméshchik The person to whom a pomest’e had been granted. Pomeshchiki with small e­ states were malopomestnye; those without a pomest’e, but entitled to one, bezpomestnye (in Ulozhenie). poniatói Person appointed to act as witness of certain official acts. popechítel’ Curator, representing the interests of adult persons considered unable to manage their own affairs (widows, single women); usually a male relative. poriád, poriádnaia (grámota) Contract, agreement, esp. between peasant and master. porúchnik Guarantor, person who guaranteed a loan. porúka (Contract of) guaranty, where a third person (and sometimes the debtor h ­ imself) guaranteed the debtor’s performance. krugováia porúka “Circular guaranty”, joint responsibility, esp. of peasant community (mir). porúchnye  ritten assurances, bonds. Statnye or stavochnye poruchnye: surety bonds to assure W that a person would appear in court. posád Part of town, suburb, place of residence of craftsmen, shopkeepers, etc., the posadskie liudi, who were subject to tiaglo, certain taxes and occasional participation in public works. posádnik (−i) Originally, somebody (usually a son or a brother) appointed by the prince to represent him in some part of the principality as governor and mayor of the regional capital. In time, posadniki were recruited outside the ruling dynasty. In Novgorod (and Pskov) the right to appoint posadniki was claimed successfully by the veche (assembly) and the nominal prince was represented by a namestnik (lieutenant).

Glossary of Russian Terms

1045

The Novgorod posadniki (there were two for a long time and then more) were recruited from the Novgorod boyars and headed the Novgorod government. They also exercized judicial functions, together with judges appointed by the prince. Novgorod posadniki were often dismissed by the popular assembly or through a popular uprising. stepénnyi posadnik The incumbent posadnik of Novgorod. posázhennoe Tax based on length of river vessel (see sázhen’) posél’skie Estate manager in the country. póshlina 1. Ancient customs. 2. Tax, official fees.

póshlinnik Tax collector. póslukh (−i) A character witness, a person who testifies about what he has heard, as ­opposed to an eyewitness (vidok). posókha Local population could be liable to posokha: the duty to supply the workforce required for the upkeep of roads and similar public works. Posól’skii prikáz The Ambassadorial Department of the Muscovy government. posp Obrok (annual payment by tenant etc.) in the form of a fixed amount of money. postél’nichii “Gentleman of the bedchamber”, a court officer in charge of the prince’s clothes, etc., chamberlin.

1046

Glossary of Russian Terms

potók Banishment, with loss of all rights (akin to Germ. Friedlosigkeit). potvóri Making charms (Church Statute of Vladimir). Pouchénie Monomákha The Teaching or Testament of Monomakh. A text ostensibly written by Monomakh and addressed to his sons, but obviously of clerical authorship, in which Monomakh not only related his political and military achievements, but also described the proper way for a prince to rule his principality. povál’nyi óbysk see obysk Póvest’ Vrémennykh Let See Nachál’naia Létopis’. pozhilóe Compensation to be paid by peasant, leaving around the feast of St. George (Iur’ev den’, q.v.), to his master for the use of living quarters. pravédchiki Bailiffs’ assistants. Pravosúdie Metropolích’e Short legislative text of uncertain origin and date. According to the most widely held theory, it was assembled some time around 1400 for the newly established eparchy of Perm’. pridánoe Dowry (see also véno). prígorod Lit. suburb, but actually a town having the status of a suburb of the capital city of a principality, which involved a greater (but varying) degree of independence than that enjoyed by an ordinary town. The best know example is Pskov, which, as a prigorod of Novgorod, had its own assembly (veche), made its own laws (esp. the Court Charter of Pskov), and had its own ‘suburbs’.

Glossary of Russian Terms

1047

prígovor, prigovór Official decision (in modern Russian: court sentence). sobórnyi prigovor Decree of sobor, esp. Church Council. boiárskii prigovor Decision, decree, or judgment of boyar council. prikáz Department of Muscovy government. The number varied over time. In connection with legal history, the following prikazy were the most relevant. p. Bol’shogo dvortsa (Great Palace): tsar’s estate management p. Bol’shogo prikhoda (Great Revenue): central financial department p. Bol’shoi kazni (Great Treasury): mint, treasury, various taxes Bronnyi p., also Oruzheinyi p. (Armory): palace affairs Chelobitnyi p. (Requests) Iamskoi p.: management of communications system (iamskaia gon’ba) Inozemskii p. (Foreign Countries): foreign troops and residents Kazach’ii p.: Cossack affairs Kazennyi p.: state chancery Kholopii p.: slavery affairs Koniushennyi p. (Horses): breeding, marking, provision of horses Malorossiiskii p.: Ukrainian affairs Monastyrskii p. (Monastery) Pechatnyi p. (Seal): official documents, stamp duty, notarial affairs Polonianichnyi p. (prisoners-of-war): redemption of Russian p.o.w.’s Pomestnyi p.: management and registration of pomest’ia and votchiny Posol’skii p. (Ambassadorial): foreign affairs Pushkarskii p. (Artillery) Razboinyi p. (Robbery): brigandage and theft, prosecution and court Razriadnyi p.: military and civilian service registration, mestnichestvo Streletskii p. (Musketeer) Sudnyi Vladimirskii p. (highest court) Moskovskii p. (high court) Riazanskii p. (appellate court) Dmitrovskii p. (appellate court) Zemskii p.: Moscow City affairs

1048

Glossary of Russian Terms

prikázchik gorodovói Elected town commissioner. prikhód (−y) Parish, territory belonging to a parish church (village). prikládniki Persons under the protection of the Church. priméta (−y) Identifying mark (of serfs, slaves, horses, etc.). prístav Judicial officer, bailiff. pristávnaia pámiat’ Summons by pristav, for starting a court case. prizvánie Invitation (by the veche) of a new prince. prodázha Fine paid to prince (in rp). próezd Tax on transit goods. prokurátor State prosecutor (since 1722). promýt Punitive tax for avoiding myt by taking alternative road. propiatén’e Punitive tax for not paying piatno for the buying of a horse. próshchennik (−i) Persons dependent on the church, lacking other support by family or a master, such as freed debt slaves; included among “church people”.

Glossary of Russian Terms

1049

proskúrnitsa The woman who baked the Eucharist bread; included among “church people”. prostáia chad’ The ordinary people, as opposed to boyars and well-to-do burghers (narochity liudi). protográf “Protograph”, text (usually unknown or lost) which is presumed to be the common ancestor of several closely related texts. protopóp Archpriest. provódnoe Fee for accompanying caravan. provóz Tax on transit travellers. prozhítok Lifetime allowance from pomest’e for widows and unmarried daughters. Pskóvskaia Súdnaia Grámota Court Charter of Pskov. ptích’ia priváda Contraption for catching birds, bird blind. pudóvshchina See pomérnoe púshchenik Possibly the same as a proshchenik (q.v.). pushkár’ Gunner; professional soldier in artillery. pustýnia “Empty land”. Wild, uncultivated regions, esp. in southern steppe zone. Nowadays: desert.

1050

Glossary of Russian Terms

put’ (putí) Special government departments in Muscovy, administering specific parts of the prince’s own estate. They were headed by a boyar (putnyi boiarin). Raskól Schism; esp. the Great Schism of the middle of the 17th century which led to the emergence of the Old Believers. ratáinyi Plowland supervisor. razbói Robbery, also confiscation of all property. razgrablénie Same as razboi. razriádnye knígi See Razriadnyi prikaz Razriádnyi prikáz The Appointments Department of the Muscovy government. One of its principal ­duties was the maintenance of the razriadnye knigi, registers of military and civil ­appointments, which were an essential element of the system of mestnichestvo. razvód Divorce, also demarcation of landholdings. razvódnoe pis’mó Divorce letter. rézana Small monetary unit, 50 rezana were equal to one ordinary grivna. riad Contract, agreement, treaty, settlement, etc. riádnaia zápis’ Note of agreement, esp. concerning betrothal.

Glossary of Russian Terms

1051

riádnitsa Written agreement; promissory note (Pskov). riadóvich (−i) Somebody who is bound by a contract (riad). Some regard him as a contract labourer on a farm, others as the lowest representative of a prince or a lord in a village. riadóvnik See riadovich. robá Slave woman. rób’i déti Children of slave woman. rod Family, in the sense of collectivity of persons connected by the same patrilinear descendence (Germ. Geschlecht). A member of the rod is a rodimets, in modern Russian rodstvennik. róspust Dismissal or repudiation of wife. rotá Oath, esp. in pre-Christian times. rúga Stipend of priest. rúzhnye popý Priests enjoying a stipend. rukopisánie Lit. handwriting or manuscript; usually a last will or testament. rusín In early texts, a person from the southern part of Russia (the Kiev region), as opposed to a slovenin, a person from the Novgorod region. A rusin is not necessarily a Slav; in the 10th century treaties with Byzantium rusini are more likely Scandinavians.

1052

Glossary of Russian Terms

Rússkaia Istorícheskaia Bibliotéka (rib) “Russian Historical Library”, a 39-volume collection of historical documents, mainly from before the 17th century, published by the Archeographical Commission over the period of 1872–1927. Rússkaia Právda (rp) The “Russian Law”, the earliest Russian law code. There is an older version, the Short Pravda (Kratkaia Pravda), while the other main version is known as the Expanded Pravda (Prostrannaia Pravda). The main parts of the Short Pravda are the Pravda of Iaroslav, the Pravda of Iaroslav’s Sons, the Bridgebuilders’ Statute (Urok mostnikov), and the Law on Bloodwite (Pokon virnyi). The structure of the Expanded Pravda is more complicated; it contains almost all of the Short Pravda in a usually amended form, as well as a string of later enactments, of which the Statute of Monomakh (Ustav Monomakha) and sections on slavery and dependent peasants (zakupy) are the most important. A third version of the rp, the Abridged Version (Sokrashchennaia Pravda) is of little interest here, as it arose in the 17th century. rússkie stat’í “Russian articles”, a few short provisions of uncertain provenance, attached at the end of the text of the Expanded Pravda in copies of the Pushkin and Karamzin groups. Rzeczpospolíta The Polish-Lithuanian Commonwealth (in Russian Rech’ Pospolita). samoderzhávie Autocracy. samodérzhets Autocrat, completely independent ruler. Also samovlástets (rarely used). samosúd Taking the law into one’s own hands, esp. making a deal with a thief in order to avoid court fees. Nowadays: mob justice. sázhen’ Measure of length (2.133 m). 2400 square sazheni made up one desiatina (1.09 hectare). Local differences. seló (sëla) Substantial village, usually with its own parish church. A smaller village is a derevn’ia.

Glossary of Russian Terms

1053

dvortsóvye sëla Villages belonging to the tsar’s own (palace) estate. sél’skie krest’iáne Peasants of a private landowners (“village peasants”), as opposed to chernososhnye krest’iane, peasants of the prince. sem’iá The small family, living together and forming a household (typically, parents and children). semiboiárshchina The Seven Boyars’ Rule, from 1610–1612, when the Polish occupation force left Moscow. The semiboiarshchina was headed by prince F.I. Mstislavskii. serébreniki Peasant who worked for a landlord in exchange for a money loan (serebro, ­silver); he was not subject to tiaglo. sgovór Secular betrothal, as opposed to obruchenie, betrothal through a religious ceremony. shemiákin sud Unjust court, referring to the court of Dmitrii Shemiaka, who served as grand prince of Moscow, 1446–1447. shúrin The brother of somebody’s wife (the brother of somebody’s husband is her dever’, the husband of a sister, whether the wife’s or the husband’s, is a ziat’). siabreníchestvo A form commercial partnership in Pskov, the exact nature of which is not clear. siábry Partners in a peculiar form of commercial cooperation in Pskov. sinklít, sigklít Council, esp. tsarskii sigklit, the Tsar’s Council, sometimes referred to as the Boyar Duma.

1054

Glossary of Russian Terms

síroty Orphans; also synonym of krest’iane (peasants) in Eastern Russia. skótnik A dependent herdsman in Pskov. Skra The internal law of the German Court (the compound of the Hanseatic ­merchants in Novgorod), based mostly on the law of Lübeck. skúpnoe Sales tax on goods bought wholesale at reduced price. slobodá (slóbody) Part of a town where the resident population was exempted from the usual obligations of ordinary taxpaying residents (posadskie liudi). Sloboda residents consisted mainly of persons in voluntary state service (sluzhilye liudi po pribory). Some slobody belonged to monasteries or private landowners. The population might also comprise craftsmen, traders, and other professional people. See also belomesttsy. The Ulozhenie attempted to get rid of slobody, because their tax exempt status had led to serious unrest among the Moscow population. Slobody also existed in rural areas, where the peasant population then enjoyed a privileged position. Sloboda, from svoboda (freedom). slovénin A Slavic inhabitant of Northern Russia, esp. Novgorod, as opposed to a rusin (Slav from Kiev). Slóvo Daníila Zatóchnika Early 14th century address of Daniil the Exile to his prince, in which he complained about his situation and the treatment he was receiving from boyars and monasteries. Slóvo o Polkú Igoréve “The Lay of the Warfare Waged by Igor”, the eminent epic poem about the campaign of Igor (*1149, † 1202), prince of Novgorod-Seversk, against the Polovtsians in 1185; the poem offers an insight into the spiritual world of, and the relationships between, ­Russian princes in the era preceding the Mongol invasion.

Glossary of Russian Terms

1055

slugá (slúgi) Servant, servitor. In the plural usually a synonym of dvoriane, minor noblemen (slugi vol’nye, free servitors). A lower category of slugi were the dvorskie slugi, servants in the princely household. sluzhílye kniaz’iá See kniaz’ sluzhílye liúdi see liudi smerd Peasants, esp. those belonging to the prince’s estate. Also, persons of lower class, not being slaves, serfs. Smolénskaia Právda Unofficial name of the 1229 Treaty between Smolensk on one side and Riga and Visby on the other. Smútnoe vrémia (Smúta) The “Time of Troubles”, the period of dynastic confusion and social and political unrest which followed upon the death of tsar Fedor in 1598 and ended with the election of the Mikhail Fedorovich Romanov in 1613 as the first tsar of the Romanov dynasty. sobór Usually, but not quite correctly, translated as “cathedral”. The sobor is not per se the church of a bishop, but a church in which daily services are conducted. Major towns, even if there was no resident bishop, would normally have several sobory. Sobor also refers to a church council, esp. the general council of the Russian Church, the Osviashchennyi Sobor (the Holy Council). Sobórnoe Ulozhénie “Synod Code” or “Council Code”, Code of tsar Aleksei Mikhailovich of 1649, a­ pproved by the Zemskii Sobor (National Assembly). sokhá “Plow”; plot of land as unit of taxation. The size of the sokha varied greatly by region and over time.

1056

Glossary of Russian Terms

sokól’nichii Muscovy court officer, in charge of the prince’s falconry. The sokol’nichii headed one of the special put’ (q.v.) departments. Sokrashchënnaia Právda Abridged Pravda, third version of the rp, along with the Short and the E ­ xpanded Pravda. Of 17th century origin. solianýe búnty The Salt Riots of 1648–1650, caused by an increase in the price of salt. sórom Same as sram, insult, offence, indignity. soslóvie Status or class to which a person belonged. In the course of the middle ages, soslovie acquired an increasingly legal character, to the extent that in the end there did not exist an undifferentiated concept of a citizen, but everybody belonged to a specific social class (princes, boyars, lower nobility, well-to-do burghers, craftsmen, all kinds of peasant categories, and slaves). soslóvno-predstavítel’naia monárkhia Monarchy with representation of the estates (social classes); traditional designation in Russian and esp. Soviet historiography of the political system of Muscovy. sot (−y), also sótnia One hundred, esp. number of urban households electing a sotskii (see below) or as a military unit. Gostínaia sotnia The highest stratum of Moscow merchants, enjoying many privileges. Sukónnaia sotnia “Clothiers’ Guild”. Second level of Moscow merchants, after the Gostinaia sotnia. sótnik Military commander (of hundred men). sótskii (−ie) Elected middle-level officials, in towns as well as in rural areas; ‘hundredmen’. Entrusted with general governmental, judicial, and police duties.

Glossary of Russian Terms

1057

spísok (−ski) A list, or more often, a copy. Many charters have survived only as copies, judgments in particular; such documents are called sudnye spiski. stariná Old customs. stárosta Elder, usually elected. gubnói starosta Guba elder, elected guba official. pirovói starosta See pirovoi starosta popóvskii starosta Senior priest with supervisory duties. sél’skii starosta Village elder. tserkóvnyi starosta Lay person entrusted with financial and management duties for parish church. starozhíltsy “Old-timers”, peasants who had lived for a long time in a place. They were recruited occasionally to testify about events or situations long ago. Indebtedness would often be the reason for their immobility and would be accompanied then by other elements of a lack of freedom. starshinstvó, staréishinstvo Seniority, esp. in the relationships between Russian princes, where seniority within the Rurikid dynasty was one of the major organizational factors of the medieval political system. stáryi mir “The old peace [treaty]”, a formula frequently employed in treaties between Russian princes or between Russian and foreign parties, in order to refer explicitly to a willingness to return to the status quo ante, the relationship as it existed before hostilities broke out.

1058

Glossary of Russian Terms

statéinyi spísok “List of articles”; collection of decrees on closely related subjects, published together under a single date. stat’í o rézakh “Articles on interest”, a long insertion of later date in the Expanded Pravda copies of the Karamzin group, containing improbable calculations about the increase of livestock and crops over a number of years, and their relative money values. stepénnyi posádnik see posadnik stól’nik Originally, a court official connected with the service at the prince’s table. In Muscovy the stol’niki constituted a class of officials ranking immediately below the boyars. strádniki Slaves who had been supplied with a plot of land, to work for a master. strél’tsy Musketeers, professional core of Muscovy infantry, armed with muskets; since the middle of the 16th century. The strel’tsy moskovskie, in Moscow City, enjoyed a privileged status. In time, the strel’tsy formed a distinct social class, living in special quarters, and membership of the class was inherited. striápchii One of the categories of the service nobility (together with the stol’niki, dvoriane moskovskie, and zhil’tsy) from which medium level military and civil a­ ppointments were made. Sudébnik Law book, code. The most important sudebniki are those of Ivan iii, of 1497, and of Ivan iv, of 1550, also known as the Tsarskii Sudebnik. There is also a Sudebnik of 1589 (available in two redactions), which was never officially promulgated, but used in the practice of lower courts. The Composite Code (Svodnyi Sudebnik) of 1605–1606, was also not enacted, but served as a source for the Ulozhenie of 1649 svérstniki Co-evals, persons (or other entities) of the same age.

Glossary of Russian Terms

1059

sviatotáttsy Church thieves. svod Confrontment procedure for seeking out thief (esp. in rp). Svod Zakónov (Rossiískoi Impérii) “Collection of Laws of the Russian Empire”, collection and systematization of materials from the Polnoe Sobranie Zakonov in 15 volumes, compiled under the direction of M.M. Speranskii, and constituting the official body of legislation of the Russian empire as from 1 January, 1835. svoezémets (−tsy) A peasant owning his own land svoistvó Relationship through marriage. sysk Investigation, esp. search for fugitive serf or slave. szláchta Lower nobility in the lands of Poland-Lithuania (Russ. shlakhta). tamgá Tax on trade introduced by the Mongols. tarkhán Free person, not subject to tribute (Turk.), hence tarkhannaia gramota, tax ­exemption charter. Tatárskoe ígo “Tatar yoke”, designation of the period of Mongol-Tatar supremacy in Russia, which started with the invasion of the armies of Baty in 1237–1241 and is usually considered to have ended when the forces of Ivan iii succeeded in preventing khan Akhmat to cross the Ugra river with his army in 1480. The designation arose only later on. tát’ba Theft or robbery.

1060

Glossary of Russian Terms

tat’ba golovnáia “theft of a head”, kidnapping, esp. of serf or slave. térem Women’s quarters in well-to-do and esp. noble households. tiagló A burden; general term to refer to taxation, tribute, obligatory works, and similar impositions. tiún, tivún General designation from the times of the rp to the Code of 1497 of lower and middle level agents of all kinds of authorities (princes, boyars, church dignitaries, urban government, etc.). Initially, tiuny were taken from the unfree population, but their status gradually improved; in Muscovy they also served as judges and estate managers. tiun boiáresk A tiun in the service of a boyar (in the rp). kniázhii tiun A tiun in the service of the prince. tiun ogníshchii Tiun overseeing prince’s household. tiun ratáinyi Agricultural tiun, farm overseer. tiun sél’skii Village tiun, overseer of a village of a prince or other landowner. tiúnets, tivúnets Tiun’s deputy or assistant. tivúnstvo The office of tivun or tiun. torgováia kazn’ see knut

Glossary of Russian Terms

1061

torgováia ssúda Trade loan. torgóvlia Trade, commerce; in Pskov: trade loan. torgovýe dén’gi Commercial loan (Pskov). torgovýe krest’iáne (Mostly landless) peasants who derived their income from trade. They often lived in: torgovýe sëla Villages of trading peasants. tovaríshchestvo na vére Limited partnership (as defined in art. 82 of the Russian Civil Code), similar to the German Kommanditgesellschaft. Art. 48 of the Expanded Pravda deals with a commercial partnership of the same nature. tretéiskii sud arbitration court. Troitse-Sergíeva Lávra Monastery north of Moscow, founded around 1350 by Sergius of Radonezh. In time it became the richest landowner in Russia after the grand prince himself. trúbniki Trumpeter, military rank of non-commissioned officer. tsar’ Supreme ruler, emperor (from “Caesar”). Initially, only the Byzantine and Holy Roman emperors were referred to as tsars; subsequently, also the Mongol-Tatar rulers. With the waning of Tatar power the Moscow grand princes began to use the title of tsar for themselves, and this practice was made official under Ivan iv the Terrible. The tsar’s spouse is the tsaritsa (not tsarina, a non-existing word in Russian). tselovál’niki Persons who had taken an oath (krestnoe tselovanie), esp. sworn village elders.

1062

Glossary of Russian Terms

tserkóvnye liúdi see liudi tserkovnye Tsvétnik Collection of ecclesiastical texts from the early part of the 16th century. tysiátskii (−ie) Initially, the commander of a large force (thousand men), appointed by the prince as the military commander of a major town. The office developed into one of the major urban positions, after the posadnik (q.v.), and often became elective (appointment by the veche). In Novgorod the tysiatskie occupied the most powerful positions after the posadniki and were especially entrusted with the supervision of trade and with judicial responsibility in commercial cases. udél A part of a property, usually landed property, set aside for a son or brother. This applied in particular to sons and brothers of a ruling prince. Such properties were then called udel’nye kniazhestva, apanage principalities. They were often absorbed again by the principality from which they were split off, but occasionally developed into independent principalities. udél’nye kniázhestva See udel. udél’nye kniaz’iá Princes ruling an apanage principality (udel’noe kniazhestvo). Relations with the senior prince ranged from complete subordination to complete independence. Udél’nyi períod The period between the bloom of the Kievan realm under St. Vladimir and up to Vladimir Monomakh (†1125), and the political unification of Russia under the grand princes of Vladimir-Moscow. As both the decline of Kievan Russia and the ascent of Moscow were processes which unfolded gradually, the udel’nyi period (the period of the independent principalities) emerged and disappeared gradually. The Mongol invasion of 1238–1240 took place in the middle of it. Authors (e.g. Vladimirskii-Budanov) occasionally use the term Zemskii period (the Period of the Lands), which refers to the Kievan era and the period of the independent principalities together, in other words, the entire period preceding the unification of Russia under the Moscow grand princes.

Glossary of Russian Terms

1063

uézd District. ukáz Decree, esp. of the tsar. Imennoi ukaz is a decree signed by the tsar himself. ukáz o ézdu Decree on travelling expenses, part of the Code of 1497. ukáz o nedél’shchikakh Decree on bailiffs, part of the Code of 1497. ukáznye knígi Collections of decrees of certain prikazy; esp. those from the Robbery department served almost as a small criminal code. Ulozhénie Something that has been laid down, a law or decree. See also Sobornoe Ulozhenie. universály Decisions and decrees of Cossack hetmans. urekániia Contumely, dishonour, offence (Church Statute of Vladimir). uróchnye gódy Limited number of years to effect the forcible return of fugitive slaves and serfs. urók (−i) Nowadays “lesson”, but in medieval Russia more commonly “regulations”, “­decree”, “what has been fixed”, etc., and then also fixed amounts, for payments, taxes, rents, fines, wages, etc. Urók Móstnikov See Russkaia Pravda usmotrénie Discretion.

1064

Glossary of Russian Terms

ustáv (−y) Statute, regulations, decree, etc. The oldest references are from the 10th ­century (the Treaty of 941 and a Chronicle item from 946), where obviously no written law is meant, but something that had been specifically ordered or d­ ecided, as opposed to zakon (with the ancient meaning of custom, see below). Later on, ustav refers to a statute concerning a specific subject, as opposed to a more general law or code (sudebnik). Ustáv Monomákha The Statute of Monomakh (Vladimir Monomakh, † 1125); see Russkaia Pravda. Ustáv o kholópstve The Statute on Slavery; see Russkaia Pravda. ustávnye grámoty See gramoty usvoénie Appropriation, as a means of acquiring ownership. utúrnoe Tax on ships. uzól’tsovaia póshlina Tax on sacks in carts (uzel, “knot”). Variági “Varangians”; originally, Scandinavian bodyguards of the Byzantine emperor; then also members of the retinue (druzhina, see above) of Russian princes (in rp). In the end almost synonymous with Vikings. véche The popular assembly of a town during the Kievan era and the following p ­ eriod, surviving into the 15th century in Novgorod and Pskov. védomyie likhíe Person generally known to be a criminal. See liudi. véd’stvo Witchcraft (Church Statute of Vladimir).

Glossary of Russian Terms

1065

véksha See veveritsa. vel’mózh Magnate, great lord. venchánie Church wedding. vénechnye póshliny Tax on getting married. véno Payment at the occasion of a wedding. Either a bride-price, paid by the husband’s family, to compensate the bride’s family for the loss of a member of their workforce, or a payment by the bride’s family to contribute to the new common household. The latter payment was originally not identical with the dowry (pridanoe, q.v.), meant to allow the bride a certain amount of financial independence, esp. in widowhood. verstán’e, verstánie Registration of young men, mainly from the deti boiarskie or dvoriane classes, for military service, together with the determination of the land grants (pomest’ia) or financial remuneration (oklad) to which they would be entitled. Young men who had not been registered were neverstanyi. verv’ A local community (of modest size) of free peasants. véshchee See pomernoe véshchnoe právo Law of things (Germ. Sachenrecht). véveritsa, véksha A squirrel (skin); lowest monetary unit in rp, of uncertain value, perhaps one third or one fourth of a kuna. vidók (−i) An eyewitness.

1066

Glossary of Russian Terms

víra Wergeld or bloodwite, the compensation paid by the murderer or his kin to the family of the person killed. It was already abolished during the early part of the Kievan era, shortly after the conversion of Russia. vírnik Official, charged with the collection of bloodwite (vira) and other executive court duties. vklad Gift made to monastery, in order that the monks or nuns would pray for the souls of the donor and his relatives, or upon entering a monastery, either as a monk or nun, or in order to stay under the protection of the monastery. vladýchnyi naméstnik see namestnik vodímye zhëny “Introduced wives”, official spouses of pagan Slavic rulers. vótchina (also otchina) Originally, paternal heritage (rodovaia votchina), inherited estate, esp. land, as opposed to pomest’e, landed property acquired by grant of a ruler, usually as a reward for present or future military service. As such inherited property implied full ownership, votchina then also came to be used to refer to ownership in general. Votchina estates acquired through sale, barter, etc., retained their original status (kuplennaia votchina). The ruler could also, as a favour, grant a service estate and confer votchina status on it (vysluzhennaia votchina, or za sluzhbu dannaia). In relations between princes, votchina usually refers primarily to a principality and the right to rule. voevóda Military commander, general. After the official abolition of kormlenie, the lieutenants (namestniki) were gradually replaced as provincial governors by voevody. The latter were also known as gorodovye voevody (town commanders), to distinguish them from genuine military commanders (voevody polkovye). volkhovániia Practicing magic (Church Statute of Vladimir).

Glossary of Russian Terms

1067

volokíta Red tape, procrastination. vólost’ Power, authority, and then also the territory subject to such authority, a (usually rural) region. volostél’ (−i) General representative of a prince or bishop in a rural area (volost’), lieutenant, governor. volostel’ mitropolíchii Lieutenant of the metropolitan in a rural area. Voproshánie Kiríka 12th Century text in which the bishop of Novgorod answers a number of questions from a priest, Kirik, touching also on matters of marriage and family law (the ­Questionary of Kirik). vorovskí (adv.) In a thievish manner, with evil intent. vozníchee, vosmníchee, osmníchnoe Tax based on price of goods sold. výbliadok “Whore’s son”, illegitimate child. Calling somebody a vybliadok constituted a dishonour (see bezchestie), unless the charge was true. výkhod 1. Annual tax to be paid to the Tatar khan and collected by the Moscow grand prince. 2. Peasant’s departure from his master in the period around St. George’s Day (Iur’ev den’). vykhodnýe gódy See zápovednye gódy.

1068

Glossary of Russian Terms

výkup Redemption of ancestral land by a relative, when the land had been sold or otherwise disposed of by the immediate owner. výmorochnyi Escheated; esp. vymorochnye pomest’ia, service estates left without heirs after the death of the last pomeshchik. vyt’ Unit of taxation in Muscovy, which (unlike the sokha) also took into account the ­quality of the land being taxed. zadnítsa Inherited estate (“what has been left behind”). zadúshnyi chelovék, zadúshnik Person released from slavery through his master’s last will; such persons, lacking the usual social support context, were counted among the “church people”. zaëm (zaimý) Money loan. zagovórshchiki Conspirators. zakázchiki Priests who supervised the observance of marriage laws. zakhrebétniki Indigent but free persons who lived in somebody else’s household. They were not ­subject to tiaglo. zaklád Pledge, both the contract and the collateral itself. zakládniki, zakladchiki Indentured servants, persons who had pledged themselves to work for somebody, esp. a monastery, on account of a debt. There is no complete agreement about the precise nature of this institution.

Glossary of Russian Terms

1069

záklich Official announcement made in the marketplace. zakreposhchénie Enserfment. zakón Law or statute, surviving with the same meaning in modern Russian. In the oldest sources however, the treaties with Byzantium and the rp, zakon referred to custom or customary law, and implicitly also occasionally to religion or faith. Zakón grádskii Medieval Russian designation of the Byzantine law known as Procheiron. Zakón Rússkii Term occurring in the 10th century treaties with Byzantium, where it referred to Russian customary law. On this basis Zakon Russkii also acquired the meaning of “the body of unwritten Russian law preceding the first legislation”. Zakón Súdnyi liúdem (zsl) “Court Law for the People”, the oldest item of Slavic legislation, originating outside Russia (in either Bulgaria, Bohemia, or Macedonia), but having survived only in Russian medieval sources. It was based almost entirely on the Greek Ecloga, but contained very significant editorial amendments. zákup, zákupen Impoverished peasant, who was provided with a loan (kupa), consisting of the use of a plot of land and other assets to allow him to work the land (tools, grain, structures, etc.) for a master. He was not a slave, but if he would steal or run away from his master, he could be sold as a slave. He would regain his independence after paying back his loan. The Expanded Pravda contains a whole set of rules on the zakup, but otherwise he is hardly ever mentioned. The zakupen of the Pskov Charter is probably not much different from the zakup. zápis’ A document in writing, a note (esp. a loan note, in Pskov), also an ordinance, a list. Zapis’ o dushegúbstve Homicide Law of Vasilii ii the Blind; also known as the Gubnaia zapis’.

1070

Glossary of Russian Terms

zápoved’ Punitive tax for avoiding kostki (see above). zapovédnye gódy Specific years during the 1580–1606 period when peasants were forbidden to leave their masters at St. George’s Day (Iur’ev den’), “forbidden years”. The remaining years were vykhodnye gody, when vykhod (exit) was allowed. zatínshchiki Professional soldiers serving in fortifications and fortified towns. zbliudénie, sbliudénie Safekeeping, storage (Pskov Court Charter). zelíinich’stvo Concocting poisonous drinks (church Statute of Vladimir). zemlepól’zovanie Use of land. zemlevladénie Possession of, or control over land. The preferred term in Russian historiography, instead of land ownership. Without any precise legal contours, zemlevladenie refers to who actually decides about what is going to be done with a piece of land. It can mean therefore ownership, as well as possession or just use and exploitation of land. krúpnoe zemlevladenie Usually translated as large-scale land ownership. zemliá (zémli) Land. Zemlia is also used to denote a territory constituting a political unit, such as novgorodskaia zemlia, the territory subject to the political authority of Novgorod. zémli porózhnye Deserted lands. zémshchina The remaining territory, after Ivan iv had instituted the oprichnina (q.v.) as a territory to be ruled by himself in 1665.

Glossary of Russian Terms

1071

Zémskii períod See Udel’nyi period. Zémskii sobór The Land Assembly, which functioned intermittently from the reign of Ivan iv until the reign of Aleksei. zhálovanie Favour, grant; anything granted by the prince, ostensibly for free. zhérebei “Lot”, piece of land assigned to individual peasant. zhíl’tsy One of the categories of the lower nobility from which appointees for medium level military and civil positions were recruited (along with stol’niki, dvoriane moskovskie, and striapchie). zhivóty Movable property; chattels. zolotník “Gold piece”, originally a Byzantine gold coin (nomisma), weighing 4.3 gram.

Index of Personal Names (Personal names of authors and editors, occurring in bibliographical references only, are included­ selectively) Abdul-Latif, khan of Kazan’ 275n Adalbert (Adelbert, Albert, Albrecht), (arch) bishop of Riga 70 Adashev, Aleksei Fedorovich 724, 732, 782, 790, 793, 801n Aepa, Polovtsian prince 403n Afanasii Danilovich 823 Afanasii Davydovich, prince of Kem 260n Aksakov, K.S. 798n Akhmet, Tatar khan 294n Aleksandr i, emperor of Russia 76 Aleksandr Iaroslavich (Nevskii), grand prince of Vladimir 35–36, 44, 353, 482, 661, 960 Aleksandr Ivanovich, grand prince of Nizhnii Novgorod 352 Aleksandr Mikhailovich, grand prince of Tver’ 38 Alekseev, Iu.G. 62, 182, 184, 193, 197, 285, 451, 592, 797 Alekseev, L.V. 160n, 170n Aleksei, Moscow metropolitan 294, 379 Aleksei Mikhailovich, tsar 6, 760, 763–765, 777, 965, 977 Alexander, Byzantine emperor 89 Alexander, king of Poland 162, 538 Algirdas (Olgerd), grand prince of Lithuania  528, 534 Amira, K. von 117n Ammianus Marcellinus 68n Ampleeva, A.I. 763, 955n Anan’eva, N.G. 731 Anastasiia Romanovna Iur’eva-Zakhar’ina, tsaritsa 732, 790 Andreev, A.I. 747 Andreev, M. 211n Andrei Dmitrievich, prince of Mozhaisk and Vereia 382 Andrei Iaroslavich, grand prince of Vladimir  35–36, 483 Andrei Iur’evich (Bogoliubskii), grand prince of Vladimir 32–33, 353, 478, 480, 601

Andrei Iur’evich, prince of Volynia 528 Andrei Ivanovich, prince of Staritsa 781 Andrei Vasil’evich, prince of Uglich 780 Andrei Vsevolodovich, prince of Suzdal’ 480 Ankhimiuk, Iu.V. 288n Anna, Byzantine princess, wife of St. Vladimir  147, 658–659, 664 Anpilogov, G.N. 239n Antonii, Kievan monk 676 Antonii Rimlianin (the Roman), Novgorod abbot 252, 471, 558 Antonov, A.V. 65, 239 Anuchina, Iu.N. 763, 918n Arakcheev, V.A. 880n Aristenes 59 Arkadii, archbishop of Novgorod 486n, 493 Asen ii, tsar of Bulgaria 231n Askold 87–89, 308 Asmud 371 Avanesov, R.I. 170n Aver’ianov, K.A. 82, 822–823 Avtokratov, V.N. 191–192 Bakhrushin, S.V. 237n Baranov, K.V. 239 Baranowski, G. 102, 123, 606, 683n, 711n Barats, G.M. 697n Bassalygo, L.A. 156n Basil i, Byzantine emperor 658 Baty, Mongol khan 32 Baumgarten, N. de 532n Becker, J. 70n Beliaev, I.D. 78 Beliaev, P.I. 607n Bel’skii, I.D., prince 794 Beneshevich, V.N. 146, 672 Berdibek, Tatar khan 293 Berengar, marquess of Ivrea 69 Berezin, I.N. 290n Berke, Tatar khan 674 Beskrovnyi, L.G. 348n, 472n

Index of Personal Names Bibikov, M.V. 66n Biulek, Tatar khan 293 Bloch, M. 546n Bogoiavlenskii, S.K. 747 Bogoslovskii, M.M. 748 Boguslavskii, V.V. 25n Boiko, I.I. 535n Boleslav, Novgorod elder 500 Boleslaw, Polish king 109 Bolkhovitinov, E. 145n Bondar’, L.D. 173n Boris, Bulgarian khan 57, 211 Boris Fedorovich Godunov, tsar 583, 717, 758, 777, 784, 793, 803, 962, 969 Boris Vasil’evich, prince of Volok 780 Boris Vasil’kovich, prince of Rostov 365n Boris Vladimirovich (St. Boris), prince of Rostov 32, 474 Borisov, N.S. 659n Bozh, king of the Antae 331 Braichevskii, M.Iu. 87 Briachislav Iziaslavich, prince of Polotsk 27 Brunner, G. 166n Budy (Bludy, Blud) 371 Buganov, V.I. 239n Bulkin, V.A. 466n Bunge, F.G. 228n, 230 Busbecq, O.G. de 301 Bychkova, M.E. 530n Canute (Knut), king of Denmark 320 Catherina i (Ekaterina; Marta Skavronskaia), empress 777 Catharina ii (Ekaterina; Sophia von Anhalt-Zerbst), empress 777, 829 Charlemagne 309, 656 Charles the Bald 69 Charles v, Holy Roman emperor 195 Chechenkov, P.V. 36n Cherepnin, L.V. 18, 81, 110, 184–186, 194, 198, 203, 237, 242, 357, 363, 470n, 509n, 554, 757–758, 799, 801–802 Cherkasova, M.S. 971n Chernilovskii, Z.M. 118n Chernousov, E. 215n Chingis-Khan 218–219, 309, 864 Chistiakov, O.I. 73n, 146n Chudin Mikula 118 Clark, R. 163n

1073 Clémencet, P. 69n Clement iii, pope 228 Clements, B. 590n Clovis 309 Conrad, H. 537n Constantine the Great, emperor 656 Constantine vi, emperor 57 Constantine vii Porphyrogenitus, emperor  68, 88, 94, 98 Cross, S. 54n Crummey, R.O. 20 Cyrillus and Methodius 58 Dal’, V.L. 619n Daniil Aleksandrovich, prince of Moscow  37, 381, 822, 825n Daniil Romanovich, king of Galicia 352, 528, 673, 960 Daniil Zatochnik (the Exile) 366 Danilova, L.V. 915n Dashkevich, Ia.P. 232n Davidenko, D.G. 679n Davyd Igor’evich, prince of Vladimir-Volynsk 359 Davyd Sviatoslavich, prince of Chernigov 136, 476, 491–492 Debol’skii, N.N. 236 Dewey, H. 196, 197, 202, 211n, 212n, 240, 713 D’iakonov, I.V. 78, 108, 344, 599, 601, 882, 891 Dietze, J. 56n Dir 87–89, 308 Dmitrieva, Z.V. 287n Dmitrii Aleksandrovich, grand prince of Vladimir 428, 484 Dmitrii Iur’evich Shemiaka, prince of Galich  382–383, 486 Dmitrii Ivanovich Donskoi, grand prince of Moscow 44, 188n, 261, 379, 395, 534, 780, 822–823 Dmitrii Ivanovich, prince of Uglich 26, 383, 717, 783–784, 861, 864, 963 Dmitrii Ivanovich, prince of Galich 362n Dmitrii Ivanovich, grandson of Ivan iii 201, 781 Dmitrii Konstantinovich, grand prince of Nizhnii-Novgorod 823 Dmitrii Mikhailovich (Groznye Ochi, the Fierce-Looking), grand prince of Tver’ 37–38, 822

1074 Dmitrii Miroshkinich, posadnik of Novgorod 481 Dmitrii Vasil’evich, prince of Uglich 37 Dimitriu, A. 85n Dobrynia 340, 371, 473 Dolmatov, V.T. 201n Dorskaia, A.A. 210n Dounar, T.I. 542 Dubov, I.V. 466n Dvornichenko, A.Iu. 79n Dušan, king of Serbia 232 Dzhakson, T.N. 66n Dzhanibek, Tatar khan 294 Eck, A. 75, 103 Edel, D. 40 Edigei, Tatar emir 44, 294n Egil Skallagrimsson 323 Eimund 321 Ekzempliarskii, A.V. 188n Elena Ol’gerdovna, princess of Serpukhov 634n Elizabeth (Elizaveta Petrovna), empress 777 El’tsin, B.N. 6 Enantiophanes 60 Engel’man, I. 179 Engels, F. 314–315 Enin, G.P. 842 Epifanov, P.P. 132, 421, 762, 765 Erik Blodoks, king of Norway 319 Eskin, Iu.M. 386n, 807n Eutychius 57 Ewers, I. 102 Ezhov, V.A. 878n Fadlan, Ibn, 71 Fedor Borisovich Godunov, tsar 717, 777, 793 Fedor Davydovich, prince of Kem 260n Fedor Iur’evich Shuiskii 524 Fedor Ivanovich, tsar 9, 583, 717, 720, 783, 793, 803, 962, 969 Fedor Ivanovich, prince of Kargolom 362n Fedor Mikhailovich (Cherny, the Black), grand prince of Smolensk 28 Fedor Vasil’evich, prince of Riazan’ Fedorova, A.N. 644n Feldbrugge, F. 13n, 19n, 21n, 98n, 115n, 116n, 118n, 139n, 166n, 449n, 498n, 650n, 680n, 683n, 700n, 769n

Index of Personal Names Fennell, J. 659n Feodotov-Chekhovskii, A.A. 236n Feofil, archbishop of Novgorod 185 Feofilakt (Theophylactes), metropolitan of Kiev 660 Feopempt (Theopemptes), metropolitan of Kiev 660 Ferdinand i, Holy Roman emperor 195 Fetishchev, S.A. 394n Filaret, see Romanov, Fedor Nikitich Filipp, metropolitan of Moscow 801n, 962, 965 Filippov, A.N. 98n Filofei, monk 961 Fischer, R. 66n Fletcher, G. 812 Floria, B.N. 155, 499, 505n, 581 Fomin, Ivan, Novgorod official 558 Forbes, N. 56n Franklin, S. 69n Freidenberg, M.M. 230n Frensdorff, F. 217n Froianov, I.Ia. 82, 110, 344, 411, 418, 421, 478, 481, 554–555, 562, 569, 578, 601, 608n, 795n Frolov, A.A. 468 Ganev, V. 211n Ganshof, F. 546n Garnati, Al 608 Gedimin(as), grand prince of Lithuania 527 Gelasii, metropolitan of Sarai 800n Georgius of Amastris 68 Georgius Continuatus, the Logothete 69 Georgius Hamartolus 53, 69 Georgius Syncellus 69 Germogen (Hermogen), patriarch 963 Gilissen, J. 84, 235n Gippius, A.A. 410n Glazyrina, G.V. 71n Gleb Iur’evich, grand prince of Kiev 34, 480 Gleb Rostislavich, prince of Smolensk 171 Gleb Sviatoslavich, prince of Novgorod  475–476 Gleb Vasil’kovich, prince of Belozero 188 Gleb Vladimirovich (St. Gleb), prince of Murom 31, 474 Glinskaia, Elena Vasil’evna, grand princess  732, 781–782, 835, 863

Index of Personal Names Glinskii, Mikhail L’vovich, prince 781 Godunov, Boris Fedorovich, tsar, see Boris F. Godunov Godunov, Fedor Borisovich, tsar, see Fedor B. Godunov Godunova, Irina Fedorovna, tsaritsa 803 Goetz, L. 102 Golubtsov, I.A. 238n Gorbachev, M.S. 6 Gorlé, F. 692n Gorskaia, N.A. 881, 914–915 Gorskii, A.A. 553 Gorskii, A.D. 687, 913 Gorskii, A.V. 190n Got’e, Iu.V. 551n Granberg, J. 415, 419–421 Grat, F. 69n Grekov, B.D. 8, 18, 44, 65, 81, 102, 311, 313–314, 317–318, 409–411, 495, 546, 553–554, 879, 882, 885 Gridka Konstantinovich 271 Griboedov, F. 764 Grigor’ev, A.P. 294 Gudavičius (Gudavichius), E. 540 Gudzii, N.K. 54n Gusev, V. 198, 201 Halperin, Ch. 220n Hammer, D. 111n Hanak, W. 56n Harald Graefell, king of Norway 319 Harald Haarfagr, king of Norway 319, 321 Harduinus (Hardouin), J. 212n Hellie, R. 763, 867, 923 Henry vi, Holy Roman emperor 228 Herberstein, S. von 195–196, 591n, 668, 819, 872 Herodotus 67, 301 Hoshko, T. 537n Hrushevs’kyi (Grushevskii), M.N. 531 Huizinga, J. 383n Hurzhii, O. 530n Huseva, S.O. 827n Iagich, V.V. 99n Iakovlev, A.I. 65 Ian, son of Vyshata 368, 430, 573, 590 Ianin, L.V. 112, 155, 468, 472, 474–478, 480–483, 501–503, 507, 511

1075 Iaropolk Iziaslavich, prince of Turov 30 Iaropolk Vladimirovich, grand prince of Kiev 353, 473, 477 Iaroslav Iaroslavich, grand prince of Tver’ 35, 173–174, 428, 483–484, 496, 519 Iaroslav Sviatoslavich, prince of Murom 31 Iaroslav Vladimirovich (Mudryi, the Wise), grand prince 8, 24, 109, 303, 309, 341–342, 360, 474 Iaroslav Vladimirovich, prince of Novgorod 470, 481 Iaroslav Vsevolodovich, grand prince of Vladimir 36, 480, 482 Ignatii, patriarch-elect 962 Igor Iaroslavich 119 Igor Ol’govich 551 Igor Riurikovich, grand prince 70, 93, 307 Ilarion, metropolitan 153, 660 Ilovaiskii, D.I. 42 Ingigerd, wife of Iaroslav Mudryi 321 Innocent iv, pope 352, 528 Ioakim of Korsun, bishop of Novgorod 474 Ioann, metropolitan 659 Ioann ii, metropolitan 660, 672n Ioasaf i, patriarch 964 Iona, metropolitan of Moscow 968 Iosafaf, bishop of Ugrovsk 960 Iosif, metropolitan 673, 960 Iosif, bishop of Smolensk 162 Iosif Volotskii, abbot 733, 961 Iosif Vysotskii, abbot 669 Iov, patriarch 962 Isaev, I.A. 82, 935 Iulianiia, princess of Volotsk 634n Iurii Andreevich, husband of Tamara, queen of Georgia 480n Iurii Danilovich, grand prince of Moscow  175, 822 Iurii Dmitrievich, prince of Galich and Zvenigorod 382 Iurii Ivanovich, prince of Dmitrov 781 Iurii L’vovich, king of Galicia 352, 528 Iurii Troidenovich, a prince in Galicia 538 Iurii Vasil’evich, prince of Uglich 732 Iurii Vladimirovich (Dolgorukii, Long Arm), grand prince 30, 33, 478 Iurii Vsevolodich, grand prince of Vladimir 36 Iushko, A.A. 560

1076 Iushkov, A.I. 236 Iushkov, S.V. 7, 11, 18, 62, 73, 103, 110, 117n, 122, 124, 132, 137, 146, 148, 155, 190, 197, 314, 411, 418–419, 423, 541, 617, 668, 708, 748 Iusupovich, Il-Murza 255n Ivan Danilovich (Kalita, Moneybag), grand prince of Vladimir 37, 188n, 379, 560, 822 Ivan Fedorovich, grand prince of Riazan’ 41n Ivan ii Ivanovich Krasnyi (the Handsome), grand prince of Vladimir 379, 823 Ivan Ivanovich, grand prince of Riazan’ 31 Ivan Ivanovich, prince of Rostov 35 Ivan Ivanovich, son of Ivan iv 783 Ivan Rostislavich Berladnik, prince of Zvenigorod 532 Ivan Shain, landowner in Riazan’ 559 Ivan Vasil’evich, grand prince of Riazan’ 41 Ivan Vladimirovich, prince of Pronsk 41n Ivan iv Vasil’evich (Groznyi, the Terrible), tsar  333n, 383, 385–386, 719, 722–724, 783, 790, 793–794, 798, 825–826, 835, 839, 863, 866, 961 Ivan iii Vasil’evich, grand prince 9, 294n, 380, 486, 520, 592, 720, 775, 780, 824, 864, 961 Ivan Vsevolodovich, prince of Starodub 35 Ivanko Chudinovich 118n Ivanko Dmitrovich, posadnik of Novgorod 491 Ivanko Timoshkinich 591 Ivina, L.I. 246 Iziaslav Briachislavich (?), a prince of Polotsk 534 Iziaslav Iaroslavich, grand prince 22–23, 30, 51, 106, 118, 121n, 475 Iziaslav Mstislavich, grand prince of Kiev 353, 512, 660 Iziaslav Vladimirovich, prince of Polotsk 27, 328, 336, 533 Jadwiga, queen of Poland 514n, 528 Jagiello (Jagaila), king of Poland and grand prince of Lithuania 294, 514n, 528 Jesus Christ 623, 627, 668 Johannes Scholasticus 57–58 Johannes Tzimisces, Byzantine emperor 88 Jordanes 300, 331 Juchi (Dzhuchi), Mongol khan 291

Index of Personal Names Kabanov, A.K. 236 Kafengauz, B.B. 179n Kaiser, D. 62n, 75, 104, 114, 180, 398, 576, 597n, 624n Kalachov, N.V. 141, 236 Kalaidovich, K. 195, 730 Karamzin, N.M. 44, 76, 102, 116, 145, 201, 446, 525, 551n, 783, 794n Karpov, A.Iu. 676 Karpovich, M. 219n Karskii, E. 103, 134 Kashtanov, S.M. 326–327 Kataev, I.M. 236 Kavgadii 176 Kazakova, N.A. 218n Kazimir i, king of Poland 622n Kazimir iii, king of Poland 528, 534, 536 Kazimir iv, king of Poland, grand prince of Lithuania 517, 576 Kazimir, duke of Mazovia 534 Keep, J. 800n Kestutis, prince of Lithuania 534 Khachaturov, R.L. 11, 19n, 73–74 Khmel’nitskii, B.M., Ukrainian hetman 529, 530n, 828, 830 Khodota, Viatichi prince 307 Khoroshev, A.S. 494n Khoroshkevich, A.L. 686n Khrustalev, D.G. 173n Khurradadhbih (Khordadbekh), Ibn 70 Kindiakov, K. 257n Kiprian, metropolitan 162, 579 Kir’iak, abbot in Novgorod 677 Kirill, metropolitan 59–60, 62–63, 484, 661, 673–674, 960 Kirill, abbot in Belozero 252 Kisterev, S.N. 198, 354n Kleandrova, V.M. 456 Kleimola, A. 211n, 212n, 240 Kliment, metropolitan 661 Kliment, Novgorod merchant 252, 558 Kliuchevskii, V.O. 44, 76, 99n, 102, 151, 312, 343–344, 387–388, 421, 472n, 724, 730, 747–748, 789, 796, 866, 888, 891 Kobylets’kyi, M.M. 537n Kolesov, V.V. 928n Kolycheva, E.I. 618 Konchaka, Tatar princess 226 Konovalova, I.G. 66n

Index of Personal Names Konrad, duke of Mazovia 228 Konstantin, metropolitan 660 Konstantin Dmitrievich, prince of Pskov 180 Konstantin Vasil’evich, grand prince of Nizhnii Novgorod 352 Konstantin Vsevolodich, grand prince of Vladimir 34, 353, 428, 481 Kopanev, A.I. 745, 747–749, 912 Koretskii, V.M. 232n, 535n Kosniachko (Pereneg) 118 Kostomarov, N.I. 525 Kotliar, N.F. 412 Kotliarov, A.N. 436n Kotoshikhin, G. 389 Kotyshev, D.M. 343n Kozliakov, V.N. 256n Kozlov, D.V. 252n Kozlov, S.A. 287n Krestinin, V. 102 Krivosheev, Iu.N. 557n Krom, M.M. 821n Kucheruk, O.S. 55n Kuchkin, V.A. 27, 171, 329, 379 Küpper, H. 83 Kurbskii, Andrei Mikhailovich, prince 724, 790 Kuritsyn, F. 201n Kurliatov, D.I., prince 790 Kuza, A.V. 472n Kuzenkov, P.V. 87 Kuznetsov, I.N. 528n Lan’ko, E.N. 460n Lappo-Danilevskii, A.S. 237, 241 Latkin, V.N. 798 Lavrov, A.S. 393n Lavrovskii, N. 85n Lazutka, S. 540 Lebedev, G.S. 466n Lenin, V.I. 314, 913 Leo iii, Byzantine emperor 57 Leo vi (the Wise), Byzantine emperor 57, 89 Leo Diaconus 69, 96n Lev Danilovich, prince of Galicia 352, 528, 532, 559 Lev Iur’evich, prince of Galicia 528 Levashov, M. 117n Levitsky, S.L. 705n

1077 Levont’ev, G. 764 Liapunov, P.P. 758, 805 Liberzon, I.Z. 239n Likhachev, D.S. 54n Limonov, Iu.A. 600n Lind, J. 95n Lipshits, E.E. 61n, 141n Liubart Gediminovich, prince of Volynia  162, 528 Liubavskii, M.K. 762 Liubimov, V.P. 102, 105, 124, 130 Liutprand, bishop of Cremona 69–70, 87n, 93–94 Lobachev, S.B. 393n Loewe, K. von 540n Lokin, J. 57n, 63n Louis the Pious, Frankish emperor 69, 86, 304, 331 Lowenthal, D. 50 Lukin, P.V. 20, 415, 417–419, 423–425, 492 Lur’e, Ia.S. 201 Magnus v Eriksson, king of Sweden 517 Magnus Knutson, king of Norway 320 Maiorov, A.V. 101n Makarii, metropolitan 776 Makarikhin, V.P. 36n Makarou, M. 538n Makarov, N.A. 558n Makrizi, Al 219 Maksimeiko, N.A. 140n Malingoudi, J. 85n Maliusha, mother of St. Vladimir 340 Malovichko, S.N. 412n Mamai, Tatar emir 44, 783, 823 Man’kov, A.G. 762–763, 880, 970, 978 Manuil, bishop of Smolensk 662 Mariia Nagaia, tsaritsa 383, 777, 783, 862 Martysevich, I.D. 179 Marx, K. 6, 314–315 Masudi 71, 331, 608 Mauricius, Byzantine emperor 68, 331, 421 Mavrodin, V.V. 18, 555 Maxim (Maksim), metropolitan 60n, 355n, 661 Mazepa, I.S., Ukrainian hetman 530n Medvedev, I.P. 63n Meichik, D.M. 241 Meier, D. 257n

1078 Meinhard, Augustinian friar 228 Meiske, C. 763 Mel’nikov, Iu.N. 311n Mel’nikov, S.A. 345 Mel’nikova, E.A. 65n, 318–319 Mengu-Timur, Tatar khan 293, 294n, 519, 674 Men’shikov, A.D. 867n Mikhail, metropolitan 662 Mikhail Aleksandrovich, grand prince of Tver’ 38 Mikhail Andreevich, prince of Belozero 878n Mikhail Andreevich, prince of Vereia 878n Mikhail Borisovich, grand prince of Tver’ 824 Mikhail Fedorovich Romanov, tsar 718, 777, 786–787, 806, 965, 978 Mikhail Iaroslavich (Khorobrit, the Brave), grand prince of Vladimir 36 Mikhail Iaroslavich, grand prince of Vladimir and Tver’ 175, 822 Mikhail Vsevolodovich, prince of Chernigov 29, 352 Mikhalko Stepanich, posadnik of Novgorod 481 Mikheev, S.M. 108n Mikyfor the Kievan 118 Miloneg, Novgorod tysiatskii 498, 500 Miloslavskaia, Anna, princess 760 Milov, I.V. 210n Milov, L.V. 61n Mindaugas, prince of Lithuania 514n, 527 Minin (Ankudinov), Kuz’ma 786, 806 Miroshka (Miroslav) Nezdinich, posadnik of Novgorod 155, 470, 480, 500 Miroslav, posadnik of Novgorod 499 Mitchell, R. 56n Mnishek (Mniszech), Marina 963 Momotov, V.V. 83 Morozov, B. 760–761 Morozov, V.B. 268n Mrochek-Drozdovskii, P.M. 102 Mstislav Danilovich, prince of Volynia 532 Mstislav Davydovich, prince of Smolensk 170 Mstislav Iziaslavich, grand prince of Kiev 475

Index of Personal Names Mstislav Mstislavich Udatnyi (the Fortunate), prince of Novgorod 138 Mstislav Romanovich, prince of Vladimir-Volynsk 279 Mstislav Vasil’kovich, prince of Volynia 643 Mstislav Vladimirovich, grand prince of Kiev 109, 475 Mstislav Vladimirovich the Great, grand prince of Kiev 32, 49, 471, 476–477, 512, 561 Mstislavskii, F.I., prince 785 Mstislavskii, I.F., prince 794, 805 Mukhammad-Amin, khan of Kazan’ 283n Murtazy (Murtoza), Tatar khan 294n Murzakevich, N.N. 178, 449 Napierski, K.E. 170n Naryshkina, Natal’ia Kirillovna, tsaritsa 777 Nasonov, A.N. 45, 328, 393 Nazarenko, A.V. 310n, 344–345 Nazarov, V.D. 245 Nazarova, E.L. 230n Nazhir 431 Nelson, J. 69n Nersesiants, V.S. 82 Nestor 53 Nicholas i, pope 211n Nifont, bishop of Novgorod 512, 591 Nikifor, metropolitan 62 Nikita Iur’evich Zakharin (Romanov) 732 Nikitskii, A. 181n Nikol’skii, S.L. 368 Nikon, patriarch 965, 970, 977 Nil Sorskii 733, 961 Nizhnik, N.S. 928 Norwich, J. 68n Nosov, E.N. 412–413, 722, 725n Novitskaia, T.E. 451n Novosel’skii, A.A. 65n Novostruev, K.N. 190n Obolenskii, M.A. 290n Odoevskii N.P., prince 764 Olav ii Haraldsson (St. Olav), king of Norway, 320 Olav i Tryggvason, king of Norway, 320 Oleg Ingvarevich, grand prince of Riazan’ 558–559

Index of Personal Names Oleg Ivanovich, grand prince of Riazan’ 31, 791 Oleg, grand prince 88–91, 306–307, 309, 339, 472 Oleg Sviatoslavich, prince of Dereva 340 Oleg Sviatoslavich, prince of Chernigov 29, 136 Olga, grand princess 55, 94, 98n, 100, 114, 309, 339, 473, 544, 547–548, 590, 654 Ontsifor Lukinich, Novgorod boyar 289 Orlyk, Pylyp, hetman 830 Oroschakoff, H. 211n Ospennikov, Iu.V. 74n, 145n Ostromir, Novgorod posadnik 370 Ostrowski, D. 221 Otto, Western emperor 70n Ovid 67n Ozhegov, S.I. 619n Paleologa, Sophia, princess 781 Pashkova, T.I. 833, 849 Pashuto, V.T. 85n Patrikeev, I.Iu. 201n Patrikeev, V.I. Patrikii Narimontovich, Lithuanian prince  383, 593 St. Paul 860 Pavlov, A.P. 465n Pavlov, A.S. 55n Pavlov, A.V. 467n Pavlov-Sil’vanskii, N.P. 79–80, 311, 798n Pechnikov, M.V. 494 Peniak, P.S. 434n Pen’kov, I.D., prince 949 Pereneg 118n Perkhavko, V.B. 458n Perun, Slavic deity 90 Peshchak, M.M. 559 Peter the Great (Petr Alekseevich), tsar and emperor 7, 659, 720, 777 Petr, metropolitan 661 Petrov, I.V. 647n Petrov, K.V. 207n Philippe le Bel, king of France 228 Photius, patriarch 68, 157, 304, 658 Piotrovskaia, E.K. 183 Piskarev, A.I. 236n Platonov, S.F. 730n

1079 Pliguzov, A.I. 198, 239 Podosinov, A.V. 66n Poe, N. 196 Pokrovskii, M.N. 18, 81, 555 Poliak, A.G. 178, 203, 976 Pomorski, S. 163n Poppe, A. 356n Popriadukhina, I.V. 197n Porai-Koshits, I. 601n Pozharskii, Dmitrii Mikhailovich, prince  786, 806 Predslava 95 Preobrazhenskii, A.A. 121n, 193n Presniakov, A.E. 18, 79, 311n, 344, 411, 555–556 Priselkov, M.D. 54n Procopius of Caesarea 68, 300, 331, 416, 421, 552n Prokopii, tysiatskii of Belgorod 135, 431, 498 Protas’ev, V., last tysiatskii of Moscow 431 Prozorovskii, S.V., prince 764 Prudentius 69 Pseudo-Dmitrii i (Iurii Otrep’ev) 717, 784–785, 805, 861, 962 Pseudo-Dmitrii ii, “Thief of Tushino” 717, 785–786, 805, 861, 963 Pseudo-Dmitrii iii, 861 Ptolemy 67 Pushkarev, L.N. 50 Pushkarev, S.G. 386 Putiata, son of Vyshata 368, 430 Putin, V.V. 6 Radlov, V. 290n Ratibor, tysiatskii of Kiev 135, 431, 498 Riapolovskaia, Elena, princess 362n Riapolovskii, Dmitrii Ivanovich, prince  362n Riazanovskii (Riasanovsky), V.A. 219n, 220–221 Riesenkampf, N.G. 217n Riurik Rostislavich, prince of Novgorod 481 Rogneda 27, 307, 328 Rognvald (Rogvolod), prince of Polotsk 27, 92, 307, 328 Roman Iur’evich Zakhar’in 732 Roman Mikhailovich, prince of Chernigov 29

1080 Roman Mstislavich, grand prince of Smolensk 480 Roman Mstislavich, prince of Galicia 33, 528 Roman Rostislavich, grand prince of Kiev 28 Romanov, B.A. 731, 976 Romanov, Fedor Nikitich, patriarch Filaret  786–787, 806, 909, 962, 964, 970, 978 Romanov, Mikhail Fedorovich, tsar 760 Romanova, Anastasiia, tsaritsa, see Anastasiia Romanus, Byzantine emperor 94 Rostislav Iaroslavich, prince of Riazan’ 31 Rostislav Mstislavich, grand prince 28, 138, 148, 561, 662 Rostislav Vasil’kovich, prince of Terebovl’  532 Rostislav Vladimirovich, prince of Tmutorakan’ 327 Rostislav Volodarich, prince of Peremysl’ 532 Rozhdestvenskaia, V.V. 928n Rozhdestvenskii, S.V. 898n Rozhkova, M.K. 179 Rukavishnikov, A.V. 533n Rurik (Riurik) 118, 306, 308–310, 317–319, 339 Rusanivs’kyi, V.M. 294n Rusta(h), Ibn 70, 608 Rybakov, B.A. 87 Rybina, E.A. 217n Rychka, V.M. 587n Rydberg, O.S. 517n Sakharov, A.N. 403 Salogubova, E.V. 140n Sapunov, B.V. 677n Saurau, Helena von 195 Savas’kov, P.V. 92n Savva, Serbian archbishop 59 Schlacks, Ch. 75, 104 Schloezer (Shletser), A.L. 101 Schlüter, W. 217n Schroeder, R. 537n Seleznev, Iu.V. 45 Semen, Moscow metropolitan 283n Semen Ivanovich (Gordyi, the Proud), grand prince of Vladimir 37, 379, 823 Semenchenko, G.V. 239n Semiderkin, N.A. 145n

Index of Personal Names Sergeevich, V.I. 11, 16, 21, 77, 102, 107–108, 141, 167, 327, 344, 356–357, 388–392, 404, 418–421, 426, 620, 638, 640, 708, 789, 792–794, 796, 798, 801, 844, 865, 883, 916, 935 Sergius of Radonezh 65, 563, 677 Sevast’ianova, O.V. 478 Shakhmatov, A.A. 53 Shapiro, A.L. 580 Shchapov, Ia.N. 58, 121, 126n, 146–162, 209, 461, 562, 596, 620, 625, 632, 657, 659–664, 667, 675, 706, 777n Shchepkin, E.N. 117n Shelkoplias, V.A. 528n Shepard, J. 69n Sherbowitz-Wetzor, O. 54n Shmidt, S.O. 64n Shtamm, S.I. 197 Shtykov, N.V. 381n Shumakov, S.A. 241, 277 Shveikovskaia, E.N. 912n Shvekov, G.V. 118n Sigismund i, king of Poland 538, 540 Sigismund iii Wasa, king of Poland 786, 795, 963 Simeon Bekbulatovich, grand prince of Moscow 779, 783 Silvester, abbot 54 Silvester (Medvedev), priest 724, 742, 782, 793, 796, 801n, 928 Skripilev, E.A. 205n Skrynnikov, R.G. 65, 725n, 960n, 963 Skuratov, Maliuta 962 Smirnov, I.I. 572n, 725n, 731 Smirnov, N.V. 819n Smirnov, P.P. 873 Smykalin, A.S. 745 Sobestianskii, I.M. 704n Soboleva, N.A. 234n Sobolevskii, A.I. 134 Sofiia Vitovtovna, grand princess of Moscow  41, 336, 863 Sofronenko, K.A. 73, 762 Solov’ev, K.A. 333n Solov’ev, S.M. 102, 343 Solov’ev, S.V. 160 Soloviev, A.V. 63n Sorlin, I. 85n

1081

Index of Personal Names Speranskii, M.M. 760 Squires (Skvairs), E. 173n Stalin, I.V. 18, 313–314 Stanislav, tysiatskii of Pereiaslavl’ 135, 431, 499 Starostina, I.P. 539 Stefan Batory, king of Poland 161 Stefanovich, P.S. 368n Steinen, W. von den 590n Stepan Tverdislavich, posadnik of Novgorod  491 Stephan, Byzantine emperor 94 Stephenson, C. 546n Stökl, G. 800n Strabo 67 Stratonov, N.A. 112 Streshneva, Evdoksiia, tsaritsa 777 Stroev, P. 195, 198, 730 Strube de Piermont, F. 102 Sudislav Vladimirovich, prince of Pskov  521 Suvorov, N.S. 672n Sveinald 96 Sverdlov, M.B. 22 Sverki 94–95 Sviatopolk Iziaslavich, grand prince 54, 135, 431, 476, 573 Sviatopolk Mstislavich, prince of Novgorod  522 Sviatopolk Vladimirovich, grand prince  108–109 Sviatoslav Iaroslavich, grand prince of Kiev  106, 118, 351 Sviatoslav Iaroslavich, prince of Murom 31 Sviatoslav Iaroslavich, grand prince of Tver’ 38 Sviatoslav Igor’evich, grand prince 88, 96, 306, 324, 339–340, 473 Sviatoslav Ivanovich, prince of Smolensk 534 Sviatoslav Iziaslavich, grand prince 25 Sviatoslav Mstislavich, prince of Smolensk Sviatoslav Ol’govich, prince of Novgorod 477, 551 Sviatoslav Rostislavich, prince of Novgorod 480 Sviatoslav Vsevolodich, grand prince of Vladimir 480, 484 Szeftel, M. 75, 84, 104, 202

Taidula, Tatar khansha 294 Tamar(a) the Great, queen of Georgia  169 Temir-Kutlug, Tatar khan 291n Tatishchev, V.N. 76, 97, 101, 106, 110, 163, 551n, 599n, 729 Theodosius the Great, Byzantine emperor  68 Theophanes the Confessor 69 Theophanes Continuatus 87 Theophilus, Byzantine emperor 69 Tikhomirov, M.N. 18, 62, 103, 110, 113, 120n, 122, 130, 143, 193, 433, 436, 487, 599, 762, 765, 799 Timoshina, L.A. 896n Timur (Tamerlane) 294, 823 Tiulak (Tulunbek), Tatar khan Tobien, E. 102 Tokhta, Tatar khan 294 Tokhtamysh, Tatar khan 44, 294, 486, 823, 825 Tolochko, P.P. 411 Tomsinov, V.A. 763 Torke, H. 799n Troitskii, S.V. 212n Trubetskoi, D.T., prince 786, 805 Tsaturova, M.K. 931n, 934n Tsvetkov, S.V. 87 Tugorkan, khan of the Polovtsians 403n Tvorogov, O.V. 54n Ustrialov, F. 179 Uzbek, Tatar khan 175 Val’denberg, V. 659n Valerov, A.V. 521 Valikonite, I. 540n Valk, S.N. 237, 468 Varlaam, Novgorod landowner 49, 558 Varlaam, metropolitan of Rostov 804n Vasiata, Novgorod elder 500 Vašica, J. 211n Vasil’ev, S.V. 375n Vasil’evskii, V.G. 68n Vasilii I Dmitrievich, grand prince of Moscow and Vladimir 177, 294n, 380, 382, 593, 780, 818n, 824, 833, 863 Vasilii Iaroslavich, grand prince of Vladimir 36

1082 Vasilii Iaroslavich, prince of Serpukhov 869 Vasilii Iur’evich Kosoi (the Squint), prince of Galich 382 Vasilii Ivanovich iv Shuiskii, tsar 717, 721, 750, 758, 791, 805, 820, 964–965 Vasilii iii Ivanovich, grand prince of Moscow  529, 719, 732, 780, 783, 825, 863, 872, 961 Vasilii ii Vasil’evich (Temnyi, the Blind), grand prince of Moscow 41, 380, 382, 486, 524, 780, 807, 824, 863, 869 Vasilii Vasil’evich, prince of Galich 362 Vasilii Vsevolodich, prince of Iaroslavl’ 365n Vasil’ko Konstantinovich, prince of Rostov 188 Vasil’ko Rostislavich, prince of Terebovl’ 359 Vedrov, S.V. 98n Venediktov, A.V. 913 Vernadskii (Vernadsky), G.V. 75, 138, 180, 302n, 313, 605n, 910n Vernadskii, V. 75 Vershinin, K.V. 62 Veselovskii, S.B. 65, 582, 880n, 903, 911n, 914 Viacheslav Iaroslavich 119 Viacheslav Vladimirovich, grand prince of Kiev 353 Vieillard, J. 69n Vilenskii, B.V. 177n, 178n Vilkul, T.L. 415n Viskovatyi, I.M. 790, 811 Vitovt, grand prince of Lithuania 41, 528 Vladimir Andreevich, prince of Rostov 524 Vladimir Andreevich Khrabryi (the Brave), prince of Serpukhov 395, 818n Vladimir Andreevich, prince of Staritsa 738 Vladimir Iaroslavich, prince of Novgorod 112, 475 Vladimir Konstatinovich, prince of Uglich 365n Vladimir Sviatoslavich (St. Vladimir), grand prince 31, 92, 108, 306, 309, 395, 473 Vladimir Vasil’kovich, prince of Volynia 532, 559, 643 Vladimir Vsevolodovich (Monomakh), grand prince 25, 32, 54, 106, 309, 377–378, 401, 431, 476–477, 573–574 Vladimirko Volodarich, prince of Galicia 532

Index of Personal Names Vladimirskii-Budanov, M.F. 7, 11, 22, 72, 78, 193, 196, 327, 388–389, 502, 636, 639, 646–647, 653, 745, 748, 778–779, 796, 844, 916–917, 934n Vodarskii, Ia.E. 872 Vnezd Vodovik, posadnik of Novgorod 491 Volkonskii, F.F., prince 764 Volodikhin, D.M. 533n Volos, Slavic cattle-god 90 Vrangel’ (Wrangel), P.N. 75 Vseslav Briachislavich, prince of Polotsk 27, 121n Vsevolod Iaroslavich, grand prince 25, 106, 118 Vsevolod Iur’evich (Bol’shoe Gnezdo, Big Nest), grand prince of Vladimir 31, 34, 352–353, 480 Vsevolod Iur’evich, prince of Novgorod 155 Vsevolod Mstislavich, prince of Novgorod 122, 471, 477, 522, 561 Vsevolod Mstislavich, prince of Smolensk  156, 171 Vyshata 368 Vysheslav Vladimirovich, prince of Novgorod 474 Vytautas, see Vitovt Wal, van der, N. 57n, 63n William the Conqueror 309 Władysław, Polish crown prince 786, 795, 963 Zagorovksii, A.I. 622, 937n Zarutskii, I.M., hetman 805 Zavadskaia, S.V. 502, 595–596 Zavidich, Dmitrii, Novgorod posadnik 477 Zernack, K. 419n Zhidiata, bishop 112 Zhil’tsov, S.V. 853 Zimin, A.A. 73, 81–82, 97, 103, 106, 110, 122, 126, 130, 138, 155, 171, 178, 186, 389, 446, 453, 455–456, 576, 614, 640n, 725n, 791, 865 Żołkiewski, S. 795 Zonaras 59 Žužek, I. 55n Zygmunt (Sigismund) king of Poland 528

Subject Index Not included: names of various kinds of charters (gramoty), see the Alphabetical Dictionary of Gramoty in Chapter 11 names of persons, see the Index of Personal Names Abbasid dynasty 410 abbot, see igumen abduction 625, 665–666 Abridged Pravda 105–107, 128, 142–143 Adashev government 842, 897, 907 administration of justice 767 adultery 627, 631, 665–666 Alans 301–303 Akty istoricheskie 236 Akty Iuridicheskie 236 Akty Sotsial’no-Ekonomicheskoi Istorii SeveroVostochnoi Rossii (asei) 65, 580 Aleksandrova Sloboda 803 Ambassadorial Department, see Posol’skii prikaz ancestral property 259, 738, 869, 896–897, 903–906 Andrusovo treaty of 1667 529, 829 Annales Bertiniani 86, 332 annulment 936 Answering Chamber 764 Answers of Metropolitan Ioann ii 672 Antes (Antae) 68, 300–302, 331–332 Antoniev monastery (Novg.) 676 apanage princes 25, 37, 164–165, 366, 381, 738, 775, 780, 818, 863–864, 869 appellate procedure 958 Appointments Department, see Razriadnyi prikaz arbitration, see courts Archeographical Commission 53, 235–236 archimandrite 676, 678, 967, 971 archives 64–66, 468, 811 archpriests 967 Arkhangel’skii sobor (Mosk.) 239 Armoury, see Oruzheinaia Palata army 818–820 arson 665–666, 703, 706–707, 710 Artillery Department, see Pushkarskii prikaz Astrakhan’ khanate 825–826 autocephaly 968

autocracy 777, 779–782, 789–790, 796, 798, 806, 862 auxiliaries 820 Avars 302, 308 bailiff (pristav) 177, 204, 274, 276, 601, 690, 695, 712–714, 736–737, 834, 851, 856, 956 Baltic bishoprics 168, 514 Baltic population 300 Baltic towns 168 banditry, see robbery bankruptcy 205, 447–448, 605 barshchina 504, 580, 885, 911 barter contract 441 Basilika 58 baskaki 38, 223, 394 beards 134, 706–707 bee-keeping 548 Belarus 530 Belgorod veche of 997 423, 436 beloved leaders (izliublennye golovy) 839 Belozero Guba Charter of 1539 835 Belozero Statutory Charter 188–190, 685, 689, 707, 713, 832–833 Belozero Tax Charter 190 Belozero principality 362n Bel’skii family 781 belye mesta 873 Berestovo assembly of 1113 135–136, 138, 498 betrothal 932 bezchestie, see insults bibliography 83–84 bigamy 623, 631, 634, 928, 931 birch-bark documents 288–290, 471–472 bishops 659–663, 967, 971 Bjarmaland 319 black clergy, see monks black lands (chernye zemli) 582, 816, 880, 888, 897, 911 black peasants (chernye krest’iane) 580–582, 835, 869, 883–884, 886, 898, 912–913

1084 Black Russia 527, 532 Blagoveshchenskii monastery (Novg.) 238 blinding 709 blizhiki 620 blood feuds, see also revenge 114, 396, 400, 590 bloodwite, see also vira 119, 137, 399–400, 567, 570, 584, 590n, 612, 650, 681, 699, 711–712 bobyli 489, 882 boiare bozhie 600n boiare putnye 387, 598, 797 boiare vvedennye 387, 598, 797, 866, 869 Bolgars (Bulgars) 163–164, 302–303, 305–306 Bolotov treaty of 1348 522 Bol’shaia kazna, see Prikaz Bol’shoi Kazni Bol’shoi Prikhod, see Prikaz Bol’shogo Dvortsa boundaries 263 boundary marks 738 boyar courts 735, 737 Boyar Duma 388–390, 720–721, 757, 789–796, 801, 865 boyars, see also boiare 199, 368, 380, 387–390, 400, 402, 435–436, 547, 593, 595, 720, 732, 792, 851, 865–868, 909 boyars, great (velikie boiare) 599 boyars, petty (men’shie boiare) 599 bratchina 685–686 Briansk principality 29–30 bribery, see corruption bride price, see veno Bridge Builders’ Law 108, 113, 119–120, 646 bridge fees, see ferry and bridge fees Bridges, Iaroslav’s Law on 128–129, 187–188, 507–508 brigandage, see robbery Brigandage Department, see Razboinyi prikaz Budini 301 Byzantine Church 147, 493 Byzantine diplomacy 90–91 Byzantine emperors 91 Byzantine law 57–61, 139–141, 152–153, 209–210, 216, 223–224, 451, 625, 657, 666, 697, 699, 707, 958 Byzantine treaties 85–96, 321, 334, 555 Byzantine treaty of 907 87–90, 462, 593 Byzantine treaty of 911 87, 90–93, 398, 458, 593, 609, 620, 636, 654, 680–681, 699

Subject Index Byzantine treaty of 944 87, 93–95, 345, 378, 398–399, 416, 462, 593, 609, 620, 636, 680–681, 699 Byzantine treaty of 971 87, 96, 345 cadastre, see pistsovye knigi canon law 672–673, 741, 972–975 capital punishment 221–222, 707–709, 767, 837, 847–848, 851, 853, 940 cargo, loss of 445–446 Carolingian Europe 546 Carolingians 309 cavalry 819 centralization 739 centurion, see hundredman Chamberlin’s Department, see Postel’nii prikaz chashnik 387, 390 chattels, see movable/immovable property cheliad’, cheliadin, see slaves chelobitnye 770 Chelobitnyi prikaz 812 chern’, chernye liudi 965, see also black peasants Chernigov principality 29–30 chernye liudi, Novgorod 487, 490, 602 chernyi bor 394 chetverti 813 Chosen Council, see Izbrannaia Rada Christianity 548, 590, 623, 654 chronicles 52–56 Chud’ 304–306, 317, 324, 472, 483 Church Council of 1666/67 742, 978 church courts 147, 152, 207–208, 210, 374, 396–397, 624, 637, 663–667, 670–672, 684–687, 698, 741–744, 927, 975–980 church income 674 church jurisdiction, see church courts church landowning, see landowning, church church officials 971 church people 148–149, 437–438, 483, 605–606, 657, 667–669, 684, 741, 975 Church-state relations 145, 161–162, 655–659, 733–734, 744, 776, 907, 928–929, 960–966 Church Statute of Iaroslav the Wise 8, 73, 150–154, 191, 213, 437–438, 502, 533, 549, 592, 594–595, 598, 602, 625, 656, 658, 704–705, 744, 927

Subject Index Church Statute of Lev Danilovich 161, 667, 669 Church Statute of St. Vladimir 8, 62, 73, 145–149, 213, 378, 396, 400, 437–438, 461, 533, 549, 560, 584, 594, 606, 624, 655, 675, 682, 704, 740, 744, 927 Church Statute of Sviatoslav Ol’govich  158–159, 401, 469 Church Statute of Vsevolod Mstislavich  154–157, 469, 499–500, 605, 667, 669 church theft 710, 848 cities, see towns civil procedure 956–959 classes 592 clergy 276, 437–438, 667, 966–972 Code of tsar Fedor of 1589 745–749 Code of Ivan iii of 1497 9, 195–208, 389, 601, 634, 669, 709, 713, 719, 730–732, 734, 738, 791, 825, 844, 846–848, 858 Code of Ivan iv of 1550 206, 721, 723, 729–730, 739, 742, 765, 770, 791, 795, 825, 838, 846–848, 908 Code of Kazimir iv of 1468 539 Collectio L titulorum 57–58 Collectio lxxxvii capitulorum 57, 59 Collectio tripartita 57 Collectio xiv titulorum 60 collective liability or responsibility 703–704 commerce, see trade commercial credit 446, 454 commercial custom 440 commercial law 440–458 compensation 709–710, 924–925, 970 common village ownership 912, 914–915 Composite Code of 1606/07 750–751 concubines 623, 626, 640 confession 858 confrontment procedure 115–116, 442–443, 446, 611, 681, 687–688, 690 consanguinity 625, 931 conspiracy 710, 848 Constantinople patriarchate 659–660 contract for supplying work 448, 456–457 contract, freedom of 920 contracts 440–441, 644–648, 918–923 contracts, form 919 convents, see monasteries Conversion of Russia, see also Christianity 226

1085 convoys 52, 125, 128–129 corporal punishment 153, 848, 853 corpus canonum 57 corpus fratrum 345 Corpus Iuris 57 corruption 202, 736, 738, 848, 951 Cossacks 529, 530n, 758, 767, 805, 811, 816, 820–821, 826, 874, 879 Cossacks, Don 820–821, 828 Cossacks, Zaporozhian 529, 820–821, 828, 830 Council Code of Aleksei of 1649 see Ulozhenie of 1649 (2nd) Council of Nicea of 787 57 counterfeiting 850 Court Charter of Novgorod 184–186, 469, 497–498, 501, 686, 689–691, 712 Court Charter of Pskov 178–184, 205, 221, 401, 440, 448–457, 522–524, 581–582, 634, 689–691, 713, 719, 951 Court Law for the People, see Zakon Sudnyi liudem (zsl) courts 680–714, 812–813, 855, 948–956 courts of apanage princes 948 courts of namestniki 735, 737 courts, arbitration 953–954 courts, private 948, 954–955 craftsmen 433–434, 604, 872 Crimean khanate 257, 825–826, 830 criminal law 699, 844–859 criminal offences 648–649 criminal procedure 854–859 Crypt monastery (Kiev) 53–54, 676 Cumans, see Polovtsians curators 940 custom 184, 345, 348–349, 426, 940 customary law 21–22, 99, 114, 182, 204, 345, 348–349, 541, 543, 581, 633, 635, 704, 709, 917, 928 dan’ 325, 327, 390–391, 503, 508, 547–548, 568, 886 danniki 509, 569 deacons, see clergy delicts 644–651, 923–926 deliui 395 Derevlians 114, 300, 307, 334, 339, 544, 547–548, 552, 622 deserted lands 840, 946

1086 desiatil’nik 971 desiatinnik 663, 971 desiatnik 821 desiatskii 373, 430–432, 596 deti boiarskie 388, 599, 732, 764, 802, 818, 821, 836, 868–870, 889, 901, 908, 942, 949 detskii 372, 374–375, 463, 599–600, 641 d’iaki 380, 588, 618, 714, 792, 807, 951, 955 dikie zemli 884 Dikoe Pole 529, 827 Dimitriev monastery (Kiev) 676 diplomacy, see treaty procedure dishonour, see insults dismissal (of wife) 624–625 dissolution of marriage 627, 936–938 divorce 151, 622, 931, 937–938 Dnepr Rapids 828 dobrye liudi, see liudi, dobrye doklad 250–251, 691, 698, 792 dokladchik 691 Domostroi 591, 635, 928, 939 Donation of Varlaam (ca.1211) 558, 585, 616 doski 450, 452, 696 dovodchiki 618, 956 dowager princess 361 dowry 622, 635, 933 dragoons 875 Dregovichi 300 Drevliane, see Derevlians Drevniaia Rossiiskaia Vivliofika 235 druzhina 99, 117, 366–370, 377–378, 396, 400, 404–406, 427, 431, 435, 498, 503–504, 510, 544, 547, 553, 556, 594, 597–598, 791 druzhina state 595 druzhinniki 552, 597, 638 duels 270, 360, 450–451, 694–695, 736, 846, 858 dumnye d’iaki 389, 720, 794, 797, 866 dumnye dvoriane 389, 720, 792, 794, 797, 866 dumnye liudi, see liudi, dumnye Duleby 300 Dvina Land 471, 489–490 Dvina Land Charter 177–178, 189, 402, 587, 602, 689, 707, 713, 832 dvoretskii 802, 807, 868 dvoriane, see nobility

Subject Index dvoriane bozhie 600n dvoriane gorodovye 814, 869, 870 dvoriane moskovskie 389–390, 764, 813, 851, 870 dvorskie liudi, see liudi, dvorskie dvorskii 601, 713 dvortsovye sela 880, 896, 911 Ecloga 57, 60–63, 140, 153, 210–211, 214, 216, 231, 451, 631, 666, 698, 707, 853, 940 edinolichnik 884 Elbinger Rechtsbuch 230–231 elder brother 166, 357, 382, 818 elders in courts 737 emets 711 Enlightenment 594, 860, 927 Epanagoge 58, 658 eparchy, see bishops equality before the law 951 equality of citizens 860 escheat 944 evidence 450–451, 690–699, 857–858, 958 exchange 261, 586 exit years (vykhodnye gody) 584, 879 Expanded Pravda 49, 51, 62, 191, 682 Expanded Pravda, Synodal Copy 49, 127 Expanded Pravda, 1st Trinity Copy 127 ezd (riding-fee) 737, 825 family law 619–621, 635–636, 927–941 family names 930n family ownership 904–905 Farmer’s Law, see Nomos Georgikos fees 196, 202, 709, 712–713, 847, 851 fences 738 Ferapontov monastery (Belozersk) 238 ferry and bridge fees 766 feudalism 7, 18, 311–317, 545, 553–554 feudalization 658 fines 152–153, 584, 625, 701–703, 710, 712, 848, 853 Finnish population 226, 230, 300, 304–306, 465–466, 503, 568–569, 578–579, 617, 656 Finnish tribes 163, 403, 472, 482, 522, 525–526, 544–545 fiscal system 815 flogging 710, 736, 848, 851, 853, 952 Florentine Union 968

Subject Index forbidden years (zapovednye gody) 584, 817, 879 foreign auxiliaries 92, 95, 404–406 foreign merchants 92, 462–464, 518–521 foreign relations 402, 657 foreign sources 66–72, 139–142, 768 foreign travel 765 foreigners 438–439, 890–893 Foreigners Department, see Inozemskii prikaz forgery 765 formuliarnik 244, 279 fornication 623, 625 franchise 267, 873 Frankish kingdom 371 Franks 302, 304 fraternities, see bratchina fraud 848–849 free peasants, see svoezemtsy freemen 601 Friedlosigkeit 703 Galician kingdom 527–528 Gardariki 323 Gediminids 524, 864, 1010 St. George’s Day, see Iur’ev den’ German Court (of St. Peter, Novgorod) 168, 478, 507, 519–520 German law 230–231 German Order 168–169, 228–230, 482–483, 514, 516, 524, 601 gift charters 585 gifts 247–249 gifts to monasteries (vklady) 564 Golden Chamber, see Raspravnaia Palata Golden Horde 225, 291, 357, 823, 827, 960 Golovin family 604 golovnichestvo 541, 683 gonenie sleda 689 gorodnik 448 Gospoda (Pskov) 522, 690 gosti 435, 439, 506, 604, 764, 875–876 gosti bol’shie 869 Gostinaia sotnia 764, 876, 893 gosudarstvennost’ 23, 40 Gothic Coast (Visby) 170–171, 478, 514, 519 Gothic Court (Novgorod) 507 Goths 301–302 gramoty 234–285 grand prince 345, 350, 354–355

1087 grant charters 283–285, 563–565, 583–586, 686, 720, 901 Great Schism of 1054 654, 960 Great Treasury (Mint), see Prikaz Bol’shoi Kazni gridin, grid’ 372, 400, 435, 596–597 griven 89, 390 guarantee, see poruka guardians 940 guba charters 737, 835–839, 846, 849, 881, 913, 949 guba courts 746, 836–839, 849, 855, 948, 954 guba elders 835–839, 852, 856 guba reforms 753, 811, 817 guberniia 833 Guild of St. John the Baptist (Novgorod) 157–158, 241, 487, 500, 504, 893 gunners, see pushkari Hanseatic League 168–169, 216–217, 228, 402, 469–470, 478, 514, 516, 519, 524 hereditary estates, see ancestral estates Hetmanate, Ukranian 827–830 hierarchy of laws 207 hire 921 Holy Council 565, 720–721, 732, 757, 764, 791, 800, 802, 973–974 Holy Synod 659 homicide 93, 95, 97, 119, 193, 322, 612, 649–651, 702–703, 709, 712, 848 Homicide Law of Vasilii iii 193–194, 734, 738 humour in legislation 682 hundredman, see sotskii Hungarians 302 Huns 302 hunting 377, 544, 547–548, 703 Hypatian Chronicle 54, 430, 533 iabednichestvo 709–710 iabetnik 375, 435, 597 iam 393, 818, 886 iamskaia gon’ba 755, 812 Iamskoi prikaz 812 iarlyk 36, 220, 224, 290–294, 357, 674, 780 Iasa of Chingis-Khan 219–227 Iazhelbitsy Treaty of 1456 824 Icelandic sagas 321 igumen 437, 678, 967, 971

1088 igumen’ia 437 illegitimacy 155, 595, 931, 940–941 imennoi ukaz 905 immunities 223, 390, 686–687, 724, 817, 910, 975–980 immunity charters 264–265, 564–565, 584, 975–980 inheritance 92, 137, 369, 636–643, 941–946 Inozemskii prikaz 811, 820–821 insults 705, 848, 851, 869, 924–926, 970 interest 130n, 136, 138, 447, 454, 673, 920 international trade, see trade, foreign Investiture Struggle 658 iskovaia chelobitnaia 957 Islam 224, 674 Iur’ev den’ 200, 582–583, 738, 817, 877, 879–880, 910 Iur’ev monastery (Novg.) 49, 561, 676, 972 ius naufragii 92, 463, 519n Ivan iv, personality of 724 Izbrannaia Rada 724, 732, 790–791, 796, 800, 811, 929n izdol’e 391–392 izgoi 434–435, 604–606, 668 Izmaragd 591, 635 izornik 22, 454, 577, 580, 604, 642, 941 izvod 446, 681, 690 Jews 136, 626, 658 judges 396–397, 867, 869, 955 judgments 272–273 judicial abuses 736, 847 judicial personnel, criminal responsibility 847 Justice Chamber, see Raspravnaia Palata kabala, see loans kabal’nye liudi, see liudi, kabal’nye Kalka River battle of 1223 481 Kalmyks 305 Kargolom principality 362n Kasimov khanate 783 Kasogians 326 Kazan’ khanate 812, 825–826 Kazan’ Palace prikaz 812, 953 Kazennyi prikaz (dvor, -aia palata) 807–808, 820 kaznachei 604, 802, 971

Subject Index kelar’ 971 khan (great khan) 365 Khazars 301–303, 308, 317, 323–324, 326, 355, 403, 416, 659n khirotoniia 493 Kholop’ii prikaz 812, 888–889, 921 kholopy, see slaves khozhenoe (walking-fee) 713, 852 Kiev grand principality 32 Kipchaks (Qipchaks), see Polovtsians Kirillo-Belozerskii monastery 238 kissing the Cross, see oath kliros 438, 663 kliuchnik 618, 890 kniazh muzh 135, 368–372, 374, 550, 595, 685, 703 Knigi Zakonnye 63–64, 141, 183, 698 Kobylin family 866 Kolbiagi 322–323, 396, 444, 610, 692 Kollegiia Ekonomii 237, 244 Komi 305 Kommanditgesellschaft 447 koniukh 372, 869 koniukh staryi 51, 120, 135, 372, 400, 549 Koniushennyi prikaz 809 koniushii 387, 390, 809 kopiinye knigi 244 korchmy, see taverns, illicit korm 189, 392, 406–407, 832 kormchaia, Efrem Copy 59 kormchaia, Serbian redaction 59, 141 kormchie 56–61, 101, 124, 127, 151, 183, 210, 213, 744, 974, 979 kormilets, kormilitsa 371, 550 kormlenie 255–257, 392, 413, 711, 816, 831–834, 841–842, 971 Korostyn’ treaty of 1471 186, 486, 496 kostki 460 krest’iane, see peasants Kreva Union of 1386 528 Krivichi 28, 300, 304, 306, 317, 324, 328, 472 krom 821, 840 krugovaia poruka 703, 916 Kulikovo Pole (Sandpiper Field) battle of 1380 43n, 361, 380, 486, 780 kuptsy, kupchiny 433, 435, 439, 506, 875–876 kuptsy, poshlye (Novgorod) 488, 504–505, 604

Subject Index land 767 Land Assembly, see Zemskii Sobor Land Department, see Pomestnyi prikaz land ownership (landowning) 652, 805, 862, 870 896–915 land registers, see pistsovye knigi landless peasants 883 landowning, boyars 552–560 landowning, church 560–565, 743, 758, 907–910, 973 landowning, monasteries 560–565, 743, 908–910, 971, 973–975 landowning, peasants 565–566, 577–578, 910–915 landowning, princes 552, 905–906 lar’ 450, 691 Laurentian Chronicle 54n, 430 legality principle in criminal law 844–845 leges barbarorum 101, 117 legislation 120, 122, 182, 203, 397–402 legislative procedure 400–402 Lex Ribuaria 214 Lex Salica 117 Lex Saxonum 118 liability, master/slave 614 Liakhi, see Poles lifetime allowance, see prozhitok liquor 850 Lithuania, grand principality of 169, 517, 527–542, 826–828 Lithuanian law 78–79, 230, 230n, 534–536, 827 Lithuanian-Polish rule 401, 512–513 Lithunian Statute of 1529 184, 539–542, 750, 769, 957–958 Lithuanian Statutes of 1566 and 1588 542, 750 Litovskaia Metrika 534, 541 Little Russia Department, see Malorossiiskii prikaz Liubech pact of 1097 25, 343, 347–348, 359 liudi 569–570 liudi, dobrye 582, 602–604, 685 liudi, dumnye 764, 795 liudi, dvorskie 618 liudi, kabal’nye 754 liudi, luchshie 836, 839 liudi, narochity 401, 423–424, 596, 602–603

1089 liudi, nepashennye 886–887 liudi, pashennye 886–887 liudi, posadskie, see townspeople liudi, prikaznye 843 liudi, sluzhilye 761, 818, 872, 875, 904 liudi, zadvornye 890 liudi, zhit’i 487, 502–503, 506, 602 Livonian Order 168, 228 loans (contract) 255, 280–281, 446–447, 920 local government 586–588, 831–843 lost property 442–443, 688, 702, 921 lovchie 387, 390 Lübeck law 514–515, 537 Lublin Union of 1569 528 luchshie liudi – muzhi, see liudi, luchshie Magdeburg law 230, 537–539, 827, 830 magic 655 Magyars, see Hungarians maintenance 634 maior domus 96, 370–371 Malorossiiskii prikaz 830 manumission 268, 619, 698, 889 Mari 305 marriage 591, 621–633, 930–938 marriage property 633–635 marriageable age 931 Marxism-Leninism 6–7, 18, 23, 314–316, 545–546, 562, 579 matrimonial law 743–744 mechnik 372, 375, 435, 568, 598, 685, 711 medieval law 19–21 mercenaries 892 merchants 89–90, 94, 435, 488, 502, 504–506, 604, 761, 869, 875, 892 Meri(a) 32, 304–306 Merilo Pravednoe 61–64, 124, 127, 141, 183, 210, 974 Merovingians 309 mestnichestvo 262–263, 265, 384–387, 810, 820–821, 864, 901 metel’nik 372, 375, 685, 711 metropolitan 224, 291, 424, 492, 659–663, 802, 969 Metropolitan’s Justice 190–192, 615, 632, 634, 672, 699, 708 Mikhailovskii monastery (Vydubichi) 54n military personnel 921

1090 military service 766, 870, 901 milostniki 434, 599–600 Miroshkinichi family 481 mirovaia 922–923 mixed church-state courts 208, 438, 684–685 monasterial jurisdiction 670, 977 monasterial peasants 884 monasterial serfs 881 monasterial wards 886 monasteries 437, 592, 676–679, 744, 924, 970–972 monastic life 862 money debts 446 money loans 695 Mongol invasion 343 Mongols 291 Mongol-Tatar rule 9, 38–39, 43–45, 165, 218–227, 333, 358–359, 361–365, 484, 519, 529, 673, 775 monks 437, 591, 667 mort civile 959 mortgage, see zaklad Moscow (grand) principality 717–718, 775, see also Muscovy Moscow City Department, see Zemskii prikaz Moscow fires 66n, 722, 732, 752, 755–756 Moscow Judicial Department (Moskovskii Sudnyi prikaz) 952 Moscow population 872 Moscow riots of 1648 872 Moscow uezd 194, 869 mostnik 448 mostovshchina 393 mounted grooms (stremiannye koniukhi)  870 movable/immovable property 895, 919–920 Mstislavskii family 785–786 Murom (tribe) 306 Murom principality 30–31 Muscovy 864 Muscovy government 835 Muscovy law, sources 722–723 Muscovy, territory 822–830 musketeers, see strel’tsy Musketeers Department, see Streletskii prikaz Muslims 626, 656, 890 Musorgskii family 599n mutilation 708

Subject Index muzh 602 myt 376, 460, 675 mytnik 375, 442, 663, 693 naimit 575, 616, 738 naimit dvornoi 456 named decree, see imennoi ukaz namestnik 177, 193, 199, 366, 413, 430, 493, 497, 501, 508–510, 523, 587–588, 685, 690, 735–737, 831–833, 836, 950 namestnik vladychnyi 662–663, 670 narochity muzhi – liudi, see liudi, narochity (1st) National Levy of 1611 805 (2nd) National Levy of 1612 806 nedel’shchik 601, 714, 735–737, 851, 956 nepashennye liudi, see liudi, nepashennye nestiazhateli 669, 961, 965 nobility 387–388, 588, 593, 600–601, 739, 802, 868, 901 Nomocanon 56, 157, 210, 494, 637, 657, 664 Nomos Georgikos 63, 141, 183, 210, 698 normanism 74, 338 notorious criminal 710, 836–837, 846, 858 Novellae 57, 770–771 Novgorod the Great 168, 216–218, 325, 816 Novgorod archbishop 485, 487, 492, 494–495, 516, 662 Novgorod boyars 486–487, 498, 501, 512–513 Novgorod charters 471 (1st) Novgorod Chronicle 52, 55–56, 107, 369, 468, 474, 481, 494, 498, 502 Novgorod, domestic trade Novgorod, foreign relations 513–517 Novgorod, foreign trade 485 Novgorod, landowning 511 Novgorod piatina 467, 488–489, 508 Novgorod population 486–490 Novgorod posadniki 476–477, 480–481, 485, 487, 490, 495–498, 501–502, 508–510, 516, 690 Novgorod province 466–468 Novgorod quarters (kontsy) 467 Novgorod treaties 470, 513–520 Novgorod tysiatskie 470, 485, 487–488, 498–501, 507 Novgorod veche 187, 498, 501, 504, 5122 Novgorod-Hanseatic treaty of 1190/91  514–515, 518

Subject Index Novgorod-Hanseatic treaty of 1269 172–173, 501, 507 novoporiadchiki 878 novoukaznye stat’i 770–771 nuns 437, 591, 634, 667 oath 257, 275, 357, 396, 446, 449–451, 455, 518, 692, 694–695, 712, 736, 839, 959 obel’nyi kholop, see slavery obligations 646–648, 916–918 Obolenskii family 866 obrok 266, 392–393, 580, 839, 885, 911 obshchina 914–915 obyshchiki 834 obysk 266, 856 Oghuz 304n ognishchanin 400, 549–550, 568, 572, 595, 597, 681, 683, 685 okol’nichie 199, 388, 714, 720, 731, 735, 737, 764, 787, 792–794, 797, 802, 818, 821, 851, 866, 950 Old Believers 965 Ol’govichi 351 Ommayad dynasty 410 oprichnina 782–783, 794, 803, 881, 909, 962 ordeal 694, 712 Orthodox Church 293, 615, 628, 654, 740, 776 orphans 940 Oruzheinaia Palata 809, 820 osmeniki 507 osmnichee 461 Ossetians 301 otchina, see votchina otkup, see redemption, franchise otkupshchiki 394, 874 otroki 368, 372, 598, 600, 711 Otvetnaia Palata, see Answering Chamber ownership 544, 644–645, 652–653, 894–916 pacts (riady) between princes and people  427, 509–510 paganism 147, 153, 573, 590, 655–656, 664–665–666, 706, 744, 853 palace peasants, see peasants, palace palace villages, see dvortsovye sela Pamiatniki rossiiskogo prava 73–74 Pamiatniki russkogo prava 73 pandectism 646–647, 917 Panteleimon monastery (Novg.) 561, 676

1091 parents and children 939–940 partnership 456, 893 partnership, limited 447 patriarchal lands 910 patriarchal jurisdiction 967–968, 978 patriarchate 804, 966 Patrikeev princes 201, 362n pashennye liudi, see liudi, pashennye pavoloki 609 peasant family 911 peasants 565–577, 852, 878–886, 908–916 peasants, palace (dvortsovye krest’iane) 898 peasants, runaway 755, 879 pechal’nik 361 pechat 697 Pechatnyi prikaz 810–811 pechatnik 390, 714, 810 Pechenegs 112, 303, 306, 403–405, 545 Pechora tribe 326 Peipus Lake battle of 1242 483 penalties 152–153 Pereiaslav Treaty of 1654 828–829 Pereiaslavl’ principality 30 periodization 4–9 Perm eparchy 192 personae miserabiles 695 persons 589–643, 860–893 persons, legal 893 Petitions Department, see Chelobitnyi prikaz St. Philip’s Fast Day 879 piatidesiatnik 821 piatiny, see Novgorod piatiny (taxation) 817–818 piry 685–686 pishchal’niki 819 pisets 713 pistsovye knigi 66, 244, 287–288, 381, 511, 816, 880, 886, 908, 914 pledges 449, 454, 586 Pleshcheev family 866 plotnik 456–457 pod”ezdnoi 400, 549, 681, 683 pod”ezdnoi kniazhii 376 pod’iachie 714, 951, 956 ploshchadnye pod’iachie 919 podverniki 713 podvoiskie 588 podvorniki 883 pogosty 468, 505, 508, 548, 587

1092 poklazha 445, 449–450, 921 pokon virnyi 108, 113, 119–120, 375, 392, 711 pokruta 453, 581 Polianians 300, 304–305, 307–308, 323–324 416, 544, 578, 622 Poles 814 Polish law 78–79, 530n, 535, 827, 830 Polish-Lithuanian Commonwealth 827–830 (1st) Polish Partition of 1772 529 (2nd) Polish Partition of 1793 529 poliud’e 69, 325, 568, 675 polkovnik 821 poll-tax 887–888 polnaia (gramota) 618–619 Polnoe Sobranie Russkikh Letopisei (psrl) 53 Polnoe Sobranie (Otechestvennykh) Zakonov  74, 760, 765 Polochanians 300, 328 Polonianichnyi prikaz 821 polonianichnye den’gi 821 polonianiki 617 Polotsk principality 27–28, 464, 527 polovniki 22, 576, 580, 885 Polovtsians 303–304, 403–405, 545 polygamy 590, 621, 623 Pomestnyi prikaz (Land Department) 66, 755–756, 810, 899–900, 902, 905, 920, 943, 946, 952 pomest’e 271, 383, 810, 818, 868–871, 879–880, 884, 898–904, 942–943 popovskie starosty 967, 971 poriadnaia 878, 921 portage 464 poruka 271, 453, 455, 922 posadnik 178, 366, 370, 373, 401, 413, 428, 430, 445, 470, 522–523, 588, 685, 690 posadnik, stepennyi 496, 498, 523 posadskie liudi, see liudi, posadskie posel’skii 618 poshlina poshlinniki 834 poslukh, see witness posokha 393 Posol’skii prikaz 810–811, 830 posp 392 postel’nichii 390 Postel’nii prikaz 809 postponement 695–696 potok 703

Subject Index poval’nyi obysk 856, 958 Pravda of Iaroslav 107–118, 475, 549, 556 Pravda of Iaroslav’s Sons 107, 118–121, 399–400, 549, 681 pravedchik 834, 956 pridanoe, see dowry priestly elders, see popovskie starosty prigorod 425, 478, 508–509, 521 Prikaz Bol’shoi Kazni 808, 811 Prikaz Bol’shogo Dvora 808, 811, 813, 977 Prikaz Bol’shogo Prikhoda 808, 812 prikaz system 808 prikazchik gorodovoi 837 prikaznye liudi, see liudi, prikaznye prikazy 720, 722–723, 752, 788, 792, 795 prikhody 508 prikladniki 667 Primary Chronicle 24, 52–55, 107, 303, 305–307, 317, 321, 323, 331–336 primet 886 primogeniture 26, 164, 348–349, 354, 781, 823 prince, see also apanage princes, service princes 92, 331–376, 592–593, 863 prince (title) 336–337 prince’s court 372, 388, 681, 683 prince’s domain 545, 547 prince’s income 378 princes, marriages with foreigners 226, 233, 403 princes, treaties, see treaties between princes princes, wills, see wills of princes prison 848–849 prisoners-of-war, see also polonianiki 92, 406, 569, 617, 766, 818, 821 pristav, see bailiff pristavnaia pamiat’ 957 Procheiron 57–63, 140, 192, 210, 216, 631, 658, 698, 708 prodazha, see fines prokurator 856 property, acquisition of, from non-owner  455–456 proshcheniki 434, 437, 667 prostitution 854, 940–941 Protas’evich family 866 prozhitok 944–945 Pskov 521–525 public law 778

Subject Index punishment 212–213, 221–222 pushcheniki 669 pushkari 875 Pushkarskii prikaz 812, 820 put’ 387–388, 599 Questionary of Kirik 591, 632, 673, 744 Radimichi 300, 307, 622 rape 625, 665, 705, 854 Raskol 965 Raspravnaia Palata (Justice Chamber) 792 ratainyi 550 Ratshich family 866 Razboinyi prikaz 795, 810, 838–839, 852, 855–856, 949, 952 razriadnye knigi 287–288, 386, 810 Razriadnyi prikaz 236, 386, 810, 820 real property, see movable/immovable property recidivism 858 redemption, see also vykup 92, 259, 840 reforms of Ivan iv registration for military service, see verstan’e remarriage 640–641 renunciation 268 repudiation (of wife) 624, 633, 705, 938 request of claims, see iskovaia chelobitnaia retroactivity of laws 738, 844–845 revenge 97, 119, 651 Revenue Department, see Prikaz Bol’shogo Dvora riad 375, 613, 639 riadovich (riadovnik) 375, 550, 573 riady, see pacts Riapolovskii princes 362n Riazan’ law 41–42, 206 Riazan’ principality 30–31, 824 riding fee, see ezd roads 755–756, 766 Roads Department, see Iamskoi prikaz roba, see slaves robbery 699, 709, 738, 752–754, 767, 836–837, 848, 852, 881 Robbery Department, see Razboinyi prikaz rod 930 Roman Catholics 626, 658, 890 Roman law 140, 451, 645–646, 652 Romanov family 333, 785, 930n

1093 Rossiiskoe zakonodatel’stvo 73 Rostov eparchy 662 Rostov principality 32–37 rota, see oath Rurikid dynasty 55, 233, 334–347, 363–365, 776, 778 Rurikids 24, 164, 322, 332–352, 359, 371, 509, 592–593, 784, 863 Russian Church, see Orthodox Church Russkaia Istoricheskaia Biblioteka 236 Russkaia Pravda 49–50, 73, 101–143, 178, 183, 205, 213–214, 230, 322, 396, 399–400, 469, 474, 539, 541, 687, 718 russkie stat’i (Russian articles) 128, 134 Rzeczpospolita, see Polish-Lithuanian Commonwealth Saburov family 866 Sachsenspiegel 229 sales 257–260, 441 Salic Law, see Lex Salica Salt Riots of 1648 760, 818 Sarai eparchy 294n, 674, 960, 970 Sauromatians 301 Sclaveni 68, 300, 331 Scythians 301 Seal-Keeper’s Department, see Pechatnyi prikaz seals, see pechat’ self-help (samosud) 680–681, 707–708, 713 sel’skie krest’iane 912 sem’ia 930 semiboiarshchina 785–786, 794, 805, 964 serebreniki 885 serfdom 567, 613, 754, 758, 793, 879–881, 887 serfs 434, 607, 615–619 Service Land Department, see Pomestnyi prikaz service lands, see pomest’ia service loan, see loans service princes 366, 381, 775, 818, 863, 907 settlement, see mirovaia Severianians 300, 304, 324, 622 sexual offences 153, 592, 625, 704–706, 854 sexual relations 213 Sheleshpanskii princes 362n Shelon’ River battle of 1471 486, 824 shipwreck 92, 205, 445–446, 463–464, 519n Short Pravda 49, 51, 101–123, 133–135, 649

1094 Shuiskii family 785, 805, 866 siabrenichestvo, see partnership siabry, see partnership sigklit, tsarskii 791 Simonov monastery (Mosk.) 239, 677 siroty 580 Sit’ River battle of 1238 483 skhima 678 skhod 916 skotnik 452 Skra of Novgorod 173–174, 217–218, 520, 537 slave trade 615 slavery 137, 406, 443, 457, 566–567, 573, 600, 607–619, 738, 754, 767, 793, 887–891, 929 slavery, voluntary 869, 889 Slavery Department, see Kholopii prikaz slaves 434, 437, 550, 552, 566–567, 569, 605, 626, 872, 880, 914 slaves, debt 888 slaves, fugitive 92, 95, 322, 609, 613, 888 slaves, full (obel’nye kholopy) 612, 621, 888 slaves, reported 888 Slavic tribes 300, 323–324 Slavophiles 798 Slavs 302 slobody 819, 873, 908, 973, 978 Slovenes 300, 305, 317, 324, 435, 472 Slovo Daniila Zatochnika 366 Slovo o polku Igoreve 355, 366 slugi 601 slugi-ministerialy 618 sluzhilye liudi, see liudi, sluzhilye smerdy 369, 550, 567–573, 607, 698 Smolensk Charter of 1136 148, 160–161, 279, 401–402, 461, 533, 553n, 561, 586–587, 606, 667, 669 Smolensk principality 28–29 Smolensk-Riga treaty of 1229 (Smolensk Pravda) 128, 137–138, 170–172, 369, 458, 461, 604, 616, 689, 707 Smuta, see Time of Troubles sobor 180, 466, 663 sobornye prigovory 721 sobornye startsy 971 sodomy 854 sokha 393, 816 sokol’nichii 387, 390 Solovetskii monastery 237, 239, 677, 965

Subject Index Soltichinskii monastery (Riazan’) 677 St. Sophia, House of (Novg.) 494–495 sorcery 655 sotniki 401–402, 507, 685, 821, 870 sotskii 373, 430–432, 499–500, 523, 588, 596 soty 505 Sovet Gospod 498 Spaso-Evfim’ev monastery (Suzdal’) 239, 676 Spaso-Khutinsk monastery (near Novg.)  585, 616 Spiritual Regulations of 1721 658, 673, 741 Stable Master’s Department, see Koniushennyi prikaz stareishinstvo (starshinstvo) 164, 348–349, 359–365 Starodub principality 35 starosta 374 starosta pirovoi 685 starosta sel’skii 550 starozhil’tsy 878, 885 starshii brat, see elder brother state, see gosudarstvennost’ state feudalism 554 state peasants 883 statement of claims, see pristavnaia pamiat’ statute books 752–756, 770, 811, 838–839 Statute of Monomakh 106, 131–132, 135–137, 431, 447, 597 Statute of Poljica 231 Statute of Vinodol 231 Statutes of Wiślica 535 Statute on Slavery (Russkaia Pravda) 445, 612 stipend priests (ruzhnye popy) 967 Stoglav 723, 733, 740–744, 757, 770, 802, 821, 854, 913, 929, 967, 973–974, 976–980 Stoglav Assembly of 1551 735, 965 stolen goods, sale of 441–442 stol’nik 387, 389, 764, 813, 851 storage contract, see poklazha stradniki 618 streletskii khleb (tax) 818 Streletskii prikaz 812, 819, 953 strel’tsy 767, 812, 816, 819, 869–870, 872–874 striapchie 389, 764, 813 Stroganov family 877 substitution principle 347 succession by daughters 638, 641

Subject Index succession of pomest’e 901 succession, among izorniki 642, 941 succession, princely 335–339, 343–350, 779 Sudebnik of Ivan iii, see Code of Ivan iii Sudnyi Vladimirskii prikaz, see Vladimir Court Department Sukonnaia sotnia 764, 876, 893 support of dependents 626, 641 surety bonds 958 surveys 268 Suzdal’ Chronicle 365, 369, 417, 424–425 Suzdal’ principality 32–37 sverstniki 385 svod, see confrontment Svod Zakonov 723 svoezemtsy 878, 882, 911 svoistvo 932 Sweden, king of 830 swindlers 852 Symphonia between Church and state 659, 740, 776, 965, 967 Syntagma 56, 58, 60, 657 Syntagma canonum 57, 60 sysk 856, 879 szlachta 535–536, 828 Table of Ranks 788 tamga 461 Tatar princes 864, 902 Tatar rule, see Mongol-Tatar rule Tatar taxes 394–395 Tatar Yoke 44, 220–222, 225 Tatars 291, 358–359, 617, 658, 814, 889, 892 Tatishchev family 599n taverns 767, 871 taverns, illicit (korchmy) 871 tax collection 221–222, 224 tax exemptions 260–261, 277–278 taxation 390–395, 458–462, 548, 814–818 tenants, new, see novoporiadchiki tenancy contract, see poriadnaia terem 933 territorial departments (prikazy) 808 territory 327–330, 822–830 Testament of Antonii Rimlianin 558, 583, 617 Testament of Kliment 558, 639 Testament of Monomakh 252, 366, 371, 377, 396

1095 Testament of Vsevolod Mstislavich 157–158, 241, 278–279, 401, 469, 499–500, 504, 602 testaments, see wills Teutonic Order, see German Order theft 92, 95, 444, 682, 699, 702–704, 707, 709–710, 767, 836, 847 Third Rome 961, 965, 969 thousandman, see tysiatskii tiaglo 874, 882 tiagloe naselenie 754–755, 811 Time of Troubles 9, 717, 721, 784, 794, 798, 805, 815, 817, 820, 826, 881, 899, 909, 963 tithe towns 675 tithes 147, 549, 657, 675, 711 tiun 374–375, 464, 549, 568, 601, 611, 619, 670, 685, 834, 890, 955 tiun boiaresk 556, 575 tiun kniazhii 374 tiun koniushii 372, 374 tiun ognishchii 373–374 Tivertsy 307 tivunets 374 tobacco 850 tolls 766 torg 433 Torks 304n torts, see delicts torture 698, 858 town commissioner, see prikazchik gorodovoi town government 413 town square scribes, see ploshchadnye pod’iachie towns 408–464 townspeople 872–875, 913 see also urban population trade, domestic 506 trade, foreign 168–169, 439–440, 504, 518–521 trade loan, see commercial credit trade, long-distance 88, 518, 875 trade, with Byzantium 88, 518 trade, with Near East 410 trade, with Western Europe 217, 478 trading peasants 876, 886 trading posts (pogosti) 548 trading villages (torgovye sela) 887 transit trade (Novg.) 514 transition law 738

1096 treason 707 Treasury Department, see Kazennyi prikaz treaties 163–176, 402–404 treaties between princes 356–360 treaty procedure 402–404 tribal centres 411 tribute 89, 109, 324–326, 548, 568–569, 584 Troitse-Sergiev monastery 65, 237–239, 243–244, 563–564, 676, 972 trubniki 618 tsar 720, 722, 764–765, 775–788, 862 tsar, administration 807 tsar, court 765, 787, 866 tsar, offences against 850 tsar, title 224, 776 tsar’s widow 863 tsaritsa 777, 862 tseloval’niki 839, 869 tserkovnye liudi, see church people Tsvetnik 191 Turkic tribes 545 Turov-Pinsk principality 30 Tver’ principality 37–38, 64, 167, 173–176, 353, 824 tysiatskii 371, 380, 401, 430–431, 598, 602, 685 udel, see apanage Udmurts 305 uezd 832–833, 835, 869 ukaznye knigi, see statute books ukazy 721 Ukraine 530, 757, 827–830 Ulichi 307 Ulozhenie of 1649 6, 9, 72, 719, 721–722, 757, 760–771, 787, 791, 793, 813–814, 818, 821, 850–853, 855, 861, 869 universaly 830 Uradel 503, 595 urban government, see town government urban population 432–433, 872 urban taxation 458–462 urok mostnikov, see Bridge Builders’ Law Uspenskii sobor (Mosk.) 239 ustavnaia namestnich’a gramota 832 ustavnye gramoty 204, 839 ustavnye zemskie gramoty 839–841, 949 ustavnye knigi, see statute books

Subject Index Varangians, see Vikings veche 333, 404–405, 522–523, 797–798 veche bell 429 vedomo likhii, see notorious criminal Velikii Novgorod, see Novgorod the Great vengeance, see revenge veno 622 Vepsy 305 verstan’e 869–870 verv’ 369, 569–571, 575, 703, 893 Ves’ 304–306, 317, 324, 472 Viatichi 32, 300, 304, 307, 324, 622 Viatka region 467–468, 525–526 victims 845 vidok, see witness Vikings 68, 91, 95, 98, 109, 112, 116–117, 135, 305–306, 313, 317–323, 396, 405, 444, 472, 596, 608, 610, 636, 692 village assembly, see skhod vira , see also bloodwite 119, 375, 681 virnik 108, 372, 375, 587, 682, 685 Visby, see Gothic Coast Vladimir Court Department 812, 952 Vladimir grand principality 32–37 voevody 405, 802, 820, 842–843, 855, 950 voevody gorodovye 843 voevody polkovye 843 Volga trade route 410, 465–466 volokita 952 Volokolamsk (Iosif) monastery 237–238, 676 volost’ 587, 833, volostel’ 199, 601, 670, 735–737, 831–833, 836, 950 volostel’ mitropolichii 663 Vorontsov family 732 votchina 383, 503, 511, 547, 810, 818, 870, 880, 884, 903–906, 942, 944–947 votchina, kuplennaia 903–906, 942 votchina, rodovaia 903–906, 942 votchina, vysluzhennaia 906, 9423 vykhod 327, 392, 394–395, 879 vykup 280, 903–904, 908–909, 946 Vyshgorod assembly of 1072 120–121 vyt 393 walking fee, see khozhenoe war 360, 404–406, 814

Subject Index wedding 625, 932 weights and measures 155–157, 461, 675, 708 welfare, provision of 900, 944 wergeld 119, 435–436, 541, 605, 637, 650, 682, 700 white clergy, see clergy white place, see belye mesta whore 705 widows, see also dowager princess 591, 634, 640–641, 667, 861, 940, 944 wild lands, see dikie zemli wills 251–254, 584–586, 636–643 wills of princes 64, 356, 360–363, 395, 586, 642 wills of princesses 634 wills of tsars 780 witchcraft 655 witnesses 396, 692–695, 698–699, 736, 859 Word of Basil 128–129 Worms Concordat of 1122 658 women 335, 589–592, 702, 860, 943 Ynglingar dynasty 321 zadushniki 437 zadvornye liudi, see liudi, zadvornye zaem, see loans zaemnaia kabala, see loans

1097 zakazchiki 971 zakhrebetniki 883 zaklad 281–282, 450, 454, 687–688, 920–922 zakladchiki 874, 884 zakladniki 505, 576, 581, 601, 604, 884 zaklich 687 Zakon Russkii 96–100, 114, 370, 398–399, 680, 718 Zakon Sudnyi liudem 60–61, 115, 128, 210–217, 231, 631 zakupy, zakupen 136, 138, 452, 550, 556–557, 573, 575, 578, 604, 607, 610, 613, 682 zapis’ 450, 696 Zapis’ o Dushegubstve, see Homicide Law of Vasilii iii zatinshchiki 875 zbliudenie (sbliudenie) 451 zemlevladenie, see landowning zemshchina 782, 794 zemskie boiare 553, 597 Zemskii prikaz 811, 852, 855 Zemskii Sobor 720–723, 732–733, 757–760, 764, 777, 783–784, 786, 791, 797–800, 802, 806 zemstvo reforms 723–725 zhil’tsy 389, 764, 813–814, 870 zhit’i liudi, see liudi, zhit’i Zolotaia Palata 793