Code of Tsar Alexei Mikhailovich of 1649 (cathedral).
The changes that had taken place in socio-political relations were to be reflected in law. In 1648, the Zemsky Sobor was convened, which continued its meetings until 1649.
A special commission was established to draw up the draft code, and the discussion of the draft by representatives of the Zemsky Sobor took place by estate. One of the reasons that accelerated the codification work was the aggravation of the class struggle - in 1648 a mass uprising broke out in Moscow.
The Cathedral Code was adopted in 1649 in Moscow by the Zemsky Sobor and Tsar Alexei Mikhailovich. The Code was the first printed code of Russia, its text was sent to the orders and to the places.
The sources of the Cathedral Code were the Sudebniks of 1497 and 1550. , Stoglav 1551, decree books of orders (Rabbit, Zemsky, etc.), royal decrees, sentences of the Boyar Duma, decisions of Zemstvo councils, Lithuanian and Byzantine legislation. Later, the Code was supplemented by New Decree Articles.
The Cathedral Code consists of 25 chapters and 967 articles. It systematized and updated all Russian legislation, there was a division of legal norms into sectors and institutions. In the presentation of the rules of law, causality has been preserved. The Code openly secured the privileges of the ruling estate and established the unequal position of the dependent estates.
The Council Code consolidated the status of the head of state - the king as an autocratic and hereditary monarch.
With the adoption of the Code, the process of enslaving the peasants was completed, the right of their indefinite investigation and return to the former owner was established.
The main attention was paid to judiciary and criminal law. The forms of the trial were subjected to more detailed regulation: accusatory-adversarial and search. New types of crimes were identified. The goals of punishment were intimidation, retribution and isolation of the offender from society.
The Cathedral Code of 1649 was the main source of Russian law until the adoption of the Code of Laws of the Russian Empire in 1832.
The Cathedral Code of 1649 regulated the forms of feudal landownership. The code contained a special chapter, which fixed all the most important changes in the legal status of landownership. It was established that the owners of the estates could be both boyars and nobles. The order of inheritance of the estate by sons was determined, part of the land after the death of the owner was received by the wife and daughters. Daughters could also receive an estate as a dowry. The cathedral code allowed the exchange of an estate for an estate or for a patrimony. The right to free sale of land, as well as the right to pledge it, was not granted to the landowners.
In accordance with the Council Code, the votchina was a privileged form of feudal land tenure. Depending on the subject and method of acquisition, the estates were divided into palace, state, church and privately owned. The estate owners were given broad powers to dispose of their lands: they could sell, mortgage, transfer the estate by inheritance, etc.
The Code limits the economic power of the church - the acquisition of new lands by the church is prohibited, numerous privileges are reduced. To manage the estates of monasteries and the clergy, the Monastic Order was established.
The Council Code also regulated the pledge right.
The law of obligations continued to develop in the direction of replacing personal liability with property liability. Spouses, parents, children were responsible for each other. Debts on obligations were inherited; at the same time, it was established that the renunciation of the inheritance also removes debts on obligations. The legislation defined cases of voluntary replacement in the obligations of one person by another. In the event of natural disasters, the debtor was granted a deferral of debt payment for up to 3 years.
The Cathedral Code is aware of contracts of sale, exchange, donation, storage, luggage, lease of property, etc. The Code also reflects the forms of concluding contracts. The cases of concluding agreements in writing were regulated, for some types of transactions (for example, the alienation of real estate), a serf form was established, requiring witnesses to be “ordained” and registered in the Prikaznaya hut.
The Council Code established the procedure for recognizing the contract as invalid. Contracts were declared invalid if they were concluded in a state of intoxication, with the use of violence or by deceit.
The subjects of civil law relations were both private and collective persons.
Inheritance law knows inheritance by law and by will.
The will was made in writing, confirmed by witnesses and a representative of the church. The will of the testator was limited by class principles: testamentary dispositions could only concern purchased estates; ancestral and served estates passed to the heirs according to the law. The circle of legal heirs included children, a surviving spouse, and in some cases other relatives.
Family and granted estates were inherited by sons, daughters inherited only in the absence of sons. The widow received part of the patrimony for "subsistence", that is, for lifetime possession. Ancestral and granted estates could be inherited only by members of the same family to which the testator belonged. The estates were inherited by the sons. The widow and daughters received a certain share of the estate for "living". Until 1864, lateral relatives could participate in the inheritance of the estate.
Only a church marriage had legal force. No more than three marriage unions were allowed to be concluded by one person during the whole life. The marriageable age was set at 15 for men and 12 for women. Parental consent was required for marriage.
In accordance with the principles of house building, the power of the husband over the wife, the father over the children was established. The legal status of the husband determined the status of the wife: who married a nobleman became a noblewoman, who married a serf became a serf. The wife was obliged to follow her husband to the settlement, into exile, when moving.
The law determined the status of illegitimate children. Persons of this category could not be adopted, as well as take part in the inheritance of real estate.
Dissolution of a marriage was allowed in the following cases: the departure of one of the spouses to a monastery, the accusation of a spouse of anti-state activities, the wife's inability to bear children.
The Council Code does not give the concept of a crime, however, from the content of its articles, we can conclude that a crime is a violation of the royal will or law.
The subjects of the crime could be individuals or a group of persons, regardless of their class affiliation. In the case of a crime committed by a group of persons, the law divided them into main and secondary (accomplices).
The subjective side of the crime was determined by the degree of guilt. According to the Code, crimes were divided into Intentional, negligent and accidental.
When characterizing the objective side of the crime, the law established mitigating and aggravating circumstances. The first included the following: a state of intoxication, uncontrollability of actions caused by an insult or threat (affect). The second group included: the repetition of the crime, the totality of several crimes, the amount of harm, the special status of the object and subject of the crime.
The objects of the crime in accordance with the Council Code were: church, state, family, person, property and morality.
The system of crimes can be represented as follows: crimes against faith; state crimes; crimes against the order of government; crimes against decency; malfeasance; crimes against the person; property crimes; crimes against morality.
The system of punishments included: the death penalty, corporal punishment, imprisonment, exile, confiscation of property, removal from office, fines.
The goals of punishment were deterrence, retribution and isolation of the offender from society.
The Council Code established two forms of trial: accusatory-adversarial and investigative.
The accusatory-adversarial process, or court, was used in the consideration of property disputes and petty criminal cases.
The trial began with the filing of a petition by the interested person. The bailiff then summoned the defendant to court. The latter, if there were valid reasons, was given the right not to appear in court twice, but after the third failure to appear, he automatically lost the process. The winning party received the corresponding certificate.
There were no significant changes in the evidence system. Testimony, written evidence, oath, lot were used.
Reference from the guilty and general reference were used as evidence. The first was the reference of the party to the testimony of the witness, which had to coincide with the allegations of the referee. If there was a mismatch, the case was lost. In the second case, both disputing parties referred to the same witnesses. Their testimony was the basis for the decision of the case.
As evidence, a “general search” and a “general search” were used - a survey of all witnesses regarding the facts of the commission of crimes or a specific suspect.
Judgment in the accusatory-adversarial process was oral. Each stage of the process (subpoena, guarantee, decision, etc.) was formalized by a special letter.
The search process, or detective, was used in the most important criminal cases. The case in the search process, as well as according to the Sudebnik of 1497, could begin with a statement from the victim, with the discovery of the fact of a crime, or with a slander. The state bodies that conducted the investigation of the case were given broad powers. They interrogated witnesses, carried out torture, used a "search" - a survey of all witnesses and suspects, etc.
Chapter XXI of the Council Code regulated the use of torture. The basis for its application was usually the results of the “search”. Torture could be used no more than three times with a certain break. Testimony given during torture had to be corroborated by other evidence. The testimonies of the tortured were recorded.
Cathedral Code of Tsar Alexei Mikhailovich (967 articles)
Chapter I Of Blasphemers and Church Rebels. And it has 9 articles.
Chapter II On the Sovereign's Honor and How to Protect His Sovereign's Health. And it has 22 articles.
Chapter III About the Sovereign's Court, so that no outrage and abuse from anyone would be in the Sovereign's court. And it has 9 articles.
CHAPTER IV Concerning subscribers, and who counterfeit seals. And it has 4 articles.
Chapter V About money masters who will learn how to make thieves' money. And it has 2 articles.
Chapter VI On travel letters to other states. And it has 6 articles.
Chapter VII On the service of all military men of the Muscovite state. And it has 32 articles.
Chapter VIII Of the redemption of the captives. And it has 7 articles.
CHAPTER IX Of the passages and transports and of the bridges. And it has 20 articles.
Chapter X About the Court. And it has 287 articles.
Chapter XI Court of Peasants. And it has 34 articles
Chapter XII About the court of the Patriarchs, clerks and courtyards, all kinds of people and peasants. And it has 3 articles.
Chapter XIII About the monastic order. And it has 7 articles.
Chapter XIV On the Kissing of the Cross. And it has 10 articles.
Chapter XV About accomplished deeds. And it has 5 articles.
Chapter XVI About local lands. And it has 69 articles.
Chapter XVII About estates. And it has 55 articles.
Chapter XVIII On Printing Duties. And it has 71 articles.
Chapter XIX About townspeople. And it has 40 articles.
Chapter XX Court of Serfs. And it has 119 articles.
Chapter XXI About robbery and tatin's affairs. And it has 104 articles.
CHAPTER XXII Decree for what faults to whom the death penalty is imposed, and for what faults not to execute death, but to inflict punishment. And it has 26 articles.
Chapter XXIII On archers. And it has 3 articles.
Chapter XXIV Decree on Atamans and Cossacks. And it has 2 articles.
Chapter XXV Decree on Taverns. And it has 21 articles.
The Cathedral Code of 1649 is a code of laws of the Russian state, a monument of Russian law of the 17th century, the first regulatory legal act in Russian history that covered all existing legal norms, including the so-called "new decree" articles.
The Council Code was adopted at the Zemsky Sobor in 1649.
The Salt Riot that erupted in 1648 in Moscow also prompted the adoption of the Code; one of the demands of the rebels was the convening of the Zemsky Sobor and the development of a new code. The rebellion gradually subsided, but as one of the concessions to the rebels, the tsar went to convene the Zemsky Sobor, which continued its work until the adoption of the Council Code in 1649.
The Code was the first printed code of Russia, its text was sent to all orders and places. The sources of the Council Code were Code of Laws, ukazny books of Local, Zemsky, Rogue and other orders, royal decrees, Duma sentences, decisions of Zemsky Sobors, Stoglav, Lithuanian and Byzantine legislation. In total, the Code had 25 chapters, 967 articles. It systematized and updated all Russian legislation. It developed issues of state, administrative, civil, criminal law and the order of legal proceedings. In SU, for the first time, the status of the head of state was indicated, i.e. king as an autocratic and hereditary monarch. In a number of chapters, norms were fixed that ensure the protection of the king, the church, and the nobles from the actions of the masses. In ch. II and III, the concept of state crime was developed, which meant, first of all, actions directed against the personality of the monarch, the authorities and its representatives. For actions "in a crowd and conspiracy" against the tsar, boyars, governor and clerks, "death without any mercy" was supposed. Ch. I was dedicated to protecting the interests of the church from "church rebels". The Cathedral Code of 1649 took under the protection of the nobles for the murder of serfs and peasants (chapters XX-XXII). The difference in fines for "disgrace" testifies to the sharp social differentiation and protection of the interests of the "top" by the state: for a peasant - 2 rubles, for a walking person - 1 ruble, and for persons of privileged classes - up to 70-100 rubles. Those. in the text of the Code, the privileges of the ruling estate were openly fixed and the unequal position of the dependent estates was fixed. The Cathedral Code of 1649 is a significant step forward compared to previous legislation. It regulated not separate groups of social relations, but all aspects of the socio-political life of that time. The adoption of the Council Code of 1649 was an important milestone in the development of autocracy and the
furious system; it served the interests of the noble class. This explains its durability. It remained the basic law in Russia until the first half of the 19th century. (until 1832).
19. Criminal law according to the Code of 1649
Under the crime (P) the Cathedral Code (SU) considers acts dangerous to feudal society. P, as in the Sudebniks, are called dashing deeds. The class essence of P is more clearly manifested: for the same P, different punishments were imposed depending on the criminal's belonging to a certain social group.
According to the subjects of P SU distinguishes both an individual and a group of persons.
By roles, the subjects are divided into main and secondary and involved in the commission of P, which indicates the development of the institution of complicity.
On the subjective side, SU divides all P into intentional, careless and accidental. The punishment for careless and intentional P is the same, because the punishment follows not for the motive of P, but for its result.
On the objective side, SU distinguishes mitigating (the state of intoxication, affect) and aggravating circumstances (repetition, amount of harm, totality).
SU distinguishes the stages of P: intent, attempt and commission of P.
There is a concept of relapse, extreme necessity, necessary defense.
The objects of the PSU are the church, the state, the family, the person, property and morality.
In order of importance, the P system was constructed as follows:
P against religion (blasphemy); state P (treason, encroachment on the life and health of the king, rebellion);
P against the order of administration (forgery of seals, false accusation);
P against the person (murder, beatings, defamation);
official P (bribe, falsification of official documents, military P);
property P (tatba, robbery, fraud);
P against morality (disrespect by children of parents).
The purpose of punishment was deterrence and retribution. Punishment is characterized by: individualization, the class principle, the principle of uncertainty in the method, measure and term of punishment, the use of several types of punishment for one P.
The types of punishment were:
the death penalty (qualified (quartering, burning) and simple (hanging, chopping off the head));
self-mutilation (truncation of a hand, cutting off of a nose, ear);
painful punishments (section with a whip);
prison (term of imprisonment from 3 days to indefinite);
The upper classes were punished by the deprivation of honor and rights (turning into a serf, declaring “disgrace”, deprivation of office, the right to file a lawsuit in court). Fines, confiscation of property belonged to property punishments. There were church punishments (exile to a monastery, penance).
The Cathedral Code of 1649 - the source of the law of the Russian centralized state of the period of the estate-representative monarchy
The leading place among the sources of Russian feudal law in the period of the estate-representative monarchy is occupied by the Cathedral Code of 1649. It should be noted that this code largely predetermined the development of the legal system of the Russian state in subsequent decades. The code, first of all, expressed the interests of the nobility, legally fixed serfdom in Russia.
Among prerequisites that led to the adoption of the Council Code, we can distinguish:
the general intensification of the class struggle;
ь contradictions among the class of feudal lords;
l contradictions between the feudal lords and the urban population;
- the interest of the nobles in expanding the rights to landownership and the enslavement of peasants to them;
l the need to streamline legislation and formalize it in a single code;
A special commission was formed to develop a draft code of laws. The project was discussed in detail by the Zemsky Sobor, after which it was the first printed code of laws of Russia, sent for guidance to all orders and localities.
The Code consists of 25 chapters and 967 articles, the content of which reflects the most important changes in the social and political life of Russia that took place in the 17th century.
Chapter XI "The Court of the Peasants" establishes the complete and general enslavement of the peasants. Chapters XVI-XVII reflect the changes that have taken place in the position of the settlement.
The norms of state, criminal and civil law, the judiciary and legal proceedings are developing.
The main attention, as in the previous sources of feudal law, the code pays criminal law and legal proceedings.
In the development of the Cathedral Code were used:
~ previous lawsuits,
~ index books of orders,
~ royal legislation,
~ boyar sentences,
~ articles of the Lithuanian status,
~ Byzantine legal sources.
The code fixed the privileges of the ruling class and the unequal position of the dependent population.
The Council Code did not completely eliminate the contradictions in the legislation, although a certain systematization was carried out by chapters.
Civil law reflects the further development of commodity-money relations, especially in terms of property rights and the law of obligations. The main forms of land holdings during this period were royal palace lands, estates and estates. Black-taxed lands owned by rural communities were the property of the state. In accordance with the Code, the palace lands belonged to the tsar and his family, the state (black-tax, black-mowed) lands belonged to the tsar as the head of state. The fund of these lands had significantly decreased by this time, as a result of distribution for service.
In accordance with Chapter XVII of the Council Code, patrimonial land tenure was divided into ancestral, purchased and complained. Votchinniki had privileged rights to dispose of their lands than landlords, since they had the right to sell (with mandatory registration in the Local Order), mortgage or inherit.
The Code established ancestral right(in case of sale, pledge or exchange) for 40 years, moreover, by persons precisely defined by the Code. The right of tribal redemption did not extend to the purchased estates.
Family and merited patrimonies could not be bequeathed to outsiders if the testator had children or side relatives. It was forbidden to donate ancestral and served patrimonies to churches.
The estates bought from third-party people after their transfer by inheritance became tribal.
Chapter XVI of the Council Code summarized all existing changes in the legal status of local land ownership:
» the owners of the estate could be both boyars and nobles;
» the estate was inherited in accordance with the established procedure (for the service of the heir);
» part of the land after the death of the owner was received by his wife and daughters ("for a living");
» it was allowed to give the estate as a dowry;
» the exchange of an estate for an estate or patrimony was allowed, including a larger one for a smaller one (Article 3).
The landlords did not have the right to freely sell land without a royal decree or mortgage it.
The Code confirmed the decrees of the beginning of the 17th century on the prohibition of making up for service and endowing with estates "priests and peasants' children, boyars' lackeys and monastery servants." This position turned the nobility into a closed estate.
Considering land ownership, it should be noted the development of such an institution of law as a pledge right. The code of conduct regulates the following provisions:
l the pledged land may remain in the hands of the pledgor or pass into the hands of the pledgee;
b allowed the pledge of yards in the suburbs;
l mortgage of movable property was allowed;
l delay in the redemption of the pledged thing entailed the transfer of rights to it to the pledgee, with the exception of yards and shops in the suburbs.
Mortgages placed on yards and shops in the name of foreigners were considered invalid. If a pledgee was stolen or destroyed without his fault, then he reimbursed the cost in half.
The Council Code defines rights to someone else's property(the so-called easements). For example:
the right to put dams on the river within the limits of their possession without prejudice to the interests of neighbors,
the right to set up nights and cookhouses without causing damage to a neighbor,
l the rights of fishing, hunting, mowing under the same conditions, etc.
ь the right to graze cattle in the meadows or stop in places adjacent to the road until a certain period - Trinity Day.)
Law of Obligations. According to the Code, the debtor is liable for the obligation not with his person, but only with his property. Even the Decree of 1558 forbade debtors "to act as complete slaves" to their creditor in case of non-payment of the debt. It was only allowed to give them away "with a head to redemption", i.e. before paying off the debt. If the defendant had property, then the penalty extended to movable property and yards, then to the patrimony and estate.
At the same time, during this period, responsibility was not individual: the spouse was responsible for the spouse, the children for the parents, the servants for the masters and vice versa. Legislation made it possible to transfer rights under certain agreements (bondage) to former persons. The debtor could not transfer his obligations only in agreement with the creditor.
Contracts for the sale of real estate had to be drawn up in writing and "purchasing fortress" (confirmed by the signatures of witnesses and registered in orders). The purchase and sale of movable property was carried out by verbal agreement and the transfer of the thing to the buyer.
But the decree of 1655 ordered the judges not to accept petitions under loan agreements, payments and loans "freely", i.e. without written documents.
Thus, there has been a transition from the verbal form of concluding contracts to the written one.
Loan agreement in the XVI - XVII centuries. made only in writing. To smooth out social contradictions, interest rates on loans were limited to 20 percent. The Code of 1649 attempts to prohibit the collection of interest on loans, but in practice lenders continued to take interest. The contract was accompanied by a pledge of property. The pledged land passed into the possession of the creditor (with the right to use) or remained with the pledger with the condition of paying interest until the debt was repaid. If the debt was not paid, the land became the property of the creditor. Movable property, when pledged, was also transferred to the creditor, but without the right to use it.
With the development of crafts, manufactory and trade, it was widely distributed personal contract, which was drawn up in writing for a period of not more than 5 years. In oral form, personal hiring was allowed for a period of not more than 3 months.
Luggage agreement made only in writing. Military people could transfer things for storage without a written contract.
known work contracts artisans and property lease(rent).
Marriage and family relations in the Russian state were regulated by church legislation. Church law sources permitted marriages at an early age. According to "Stoglav" (1551) it was allowed to marry from the age of 15, to marry from the age of 12. The engagement (betrothal) took place at an even earlier age (the conspiracy of the parents and the compilation of a line record). It was possible to terminate a row entry by paying a penalty (charge) or through the court, but for serious reasons. In practice, ordinary people did not make a line record and married at a later age. According to church laws, the first marriage was formalized by a wedding, the second and third by a blessing, and church law did not recognize the fourth marriage. In accordance with the Code of 1649, the fourth marriage did not give rise to legal consequences.
Divorce was carried out by mutual consent of the spouses or by the unilateral demand of the husband. Although in the 17th century the process of softening the rights of the husband in relation to the wife and the father in relation to children begins, until the end of the 17th century entry into bondage was not abolished in general. A husband could give his wife into service and put him in bondage along with him. (The father had a similar right with regard to children).
Intra-family relations were regulated by the so-called "Domostroy", compiled in the 16th century. According to him, the husband could punish his wife, and she had to be submissive to her husband. In the event that the parents, punishing the children, beat them to death, the Code imposed a punishment of only one year in prison and church repentance. If the children killed their parents, then they were punished for their deeds by the death penalty.
Later, starting from the 17th century, it is planned process of division of property of spouses, children and parents. This can be explained by the desire of the legislator to secure property for a certain person, incl. and dowry. The husband was not allowed to dispose of his wife's dowry without her consent. Since the 17th century the right to give the debtor "to the creditor with an annual to redemption" together with his wife is cancelled. Later, the responsibility of the wife and children for the debts of the husband and parents, established by the Cathedral Code, is canceled.
During the period under review, the legislation distinguishes right of succession by law and will. The main attention is paid to the order of transfer of land by inheritance. The will was drawn up, as in the Sudebnik of 1497, in writing. Oral testament was allowed in case of illiteracy of the testator, if it was carried out in the presence of witnesses and representatives of church authorities.
AT land law the protection of church interests and the struggle of the central government against the expansion of church land ownership were reflected.
Family and granted estates were subject to inheritance only to members of the same family to which the testator belonged. And testamentary dispositions extended only to purchased estates and movable property.
Sons had the right to inherit by law, and in their absence, daughters. Widows were allowed to inherit. So, since 1642, it has been established that the widow of a landowner who died in the war receives 20% of the estate "for a living" until death or marriage, 15% for a person who died on a campaign, and 10% for a person who died in the service (at home). The widow's share in the inheritance of movable property was 25% of the inheritance.
From the beginning of the 17th century, daughters began to be called upon to inherit even if there were brothers. After the death of their father, they were given a part "for a living". In the event of a marriage of a widow or daughters, the "subsistence" estate was given as a dowry. However, daughters inherited ancestral and served estates only in the absence of sons. Land was given to widows only from the votchinas, and in the event of a widow's marriage or death, the widow's votchina passed to the husband's clan.
From the lateral relatives, brothers and their descendants were allowed to inherit, and from the middle of the 17th century. and distant relatives.
Legislation, protecting class interests, forbade bequeathing lands to churches. In the absence of a will or legal heirs, the property now went not to the church, but to the royal domain. The church and monasteries received from the treasury money for the commemoration of the soul of the deceased in the amount of the value of the estate.
A superficial acquaintance with the Cathedral Code allows us to conclude that the punitive nature of criminal law. There is still no general definition of the concept of crime in the law. It can only be concluded from the content of the articles that disobedience to the tsar's will, violation of the tsar's instructions, his will, i.e., was considered a crime. acts that undermine the feudal order and are dangerous to the ruling class. Since illegality, as the most important element of the concept of a criminally punishable act, was not clearly defined by law, the scope of criminal liability was established by the judicial and administrative authorities.
The subjects of the crime all members of society were recognized, incl. and serfs. Children under 7 years of age and the insane were not brought to criminal responsibility. For minors with physical disabilities (deafness, dumbness and blindness), the punishment was mitigated.
Code of 1649 delineates crimes intentional, careless and accidental. The articles deal with "thieves' intent", "setting fire on purpose", they talk about murder by an unintentional, sinful deed, about murder "without cunning". Unintentional and accidental actions were not punished. Murder by "drunken deed" was considered as premeditated and did not entail mitigation of punishment.
At the same time, the Code does not always clearly distinguish between an accidental, unpunished action and a careless form of guilt (Articles 223, 225, 226, 228, Chapter X of the Council Code).
The Code knew the institution of necessary defense (Article 200, Chapter X). At the same time, the question of the proportionality of the means of defense and attack was not raised. Killing was considered a necessary defense not only in defense of one's own life, but also "the life of the one whom one serves", i.e. mister. Dependent people who did not defend their master from attack were subject to the death penalty. An extreme necessity was the killing of a dog during its attack on a person (Article 263, Chapter X).
The Code distinguishes between the stages of the commission of a crime:
s - naked intent;
s - attempt;
s - committing a crime.
The Council Code more clearly regulates complicity. In Art.19 Ch. XXII refers to incitement, in Art. 198 Ch. X - about complicity, in Art. 20 Ch. XXI is about concealment. In some cases, complicity is followed by the same punishment as the offender, in others - different.
The code is more severe, like the previous laws, punishes the repeated crime "relapse" (Article 9, 10, 12 Chapter XXI).
In the Cathedral Code of 1649, for the first time, classification of crimes according to a certain system.
For the first time, a secular legislative monument in the first place put crimes against religion and church(blasphemy, seduction to the Muslim faith, making obscene speeches during a church service, committing atrocities in the church: murders, injuries, insults, etc.). Most of them received the death penalty.
In the second chapter of the Code ("On state honor and how to protect his state health"), state crimes, as the most dangerous, entailing the death penalty "without any mercy." Among them are “intention on state health”, “malicious intent to take over the Moscow state and be a sovereign”, “surrendering the city to an enemy by treason”, “inciting or betraying a city or courtyards”, etc. Treason was punishable by death with confiscation of property. Members of the offender's family were also brought to criminal responsibility: wife, children, father, mother, brothers, sisters, step-children who knew about the betrayal and did not inform the authorities (Article 6, Chapter II). The Code allowed peasants and servants to inform about the betrayal of their master, although in other cases they were forbidden to go to court with a claim against their master.
The Code provides for a reward for the murder of a traitor.
To crimes against order Management Code included: forgery of documents ("scraping" and "blackening"), forgery of seals, counterfeiting ("making thieves' money"), violation of the rules for collecting trade duties, the procedure for maintaining drinking establishments.
Like the Sudebnik of 1497, the Code for counterfeiters establishes a special type of death penalty - pouring molten metal into the throat of all participants.
To crimes against the judiciary were:
l wrongful sentencing by a judge for a bribe;
ь forgery, incorrect record by the clerk in the verdict of the court session;
b red tape used for extortion;
- false testimony of witnesses, false oath, false denunciation ("sneaking");
a fight in court.
Chapter XII of the Code "On the service of military people of the Moscow State" considers war crimes. The Code strictly punishes the betrayal of military people (Article 20, Chapter VII).
Per desertion punishment was imposed depending on the time the crime was committed: for the first leaving the service ("who will run away first") - "beat him with a whip", for the second leaving the state service - "his beat with a whip, but reduce his local salary "," but he will run away to the trierium, and beat him with a whip, but take away his estate and give it to distribution "(Article 8, Chapter VII).
In the event of desertion of archers and Cossacks and dependent people, they were sought out, beaten with a whip and returned to serve in the regiments. If they could not find the subordinate people who had run away from the service, then their owners paid a fine "twenty rubles for each person" (Article 9, Chapter VII).
The Code provides for the punishment of military people for doing on the road any violence or damage to the local population ("on the way to the service ... or from the service to their homes ... they will rob, and take into account the mortal murder, or violence to the female sex, or in the threshing floor they will poison the bread or ... violence from the ponds fish will be caught or other violence will be done to someone "Article 30). The perpetrators of murder and rape were sentenced to death, and the damage caused was compensated in double size.
For stealing weapons in the regiments they were punished by beating the whip "mercilessly", and the weapon was returned to the owner. For stealing a horse the thief was punished by cutting off his hand (v. 29).
It was forbidden to grant holidays for promises under pain of punishment of commanders with a whip. Vacations were allowed only "for the most necessary things" (in the case of "house ruin or human beatings").
Chapter XXII of the Council Code, provides for punishment for a crime against personality.
Murder differed: intentional (punished by death) and unintentional (punished by whipping and imprisonment). The murder of parents stands out in particular: "if a son or daughter commits death to his father or mother: and for paternal or motherly murder, they will be executed by death without any mercy." Strict punishment followed for the murder of the master: "And if a man of the one whom he serves, will kill to death: and he himself will be executed by death without any mercy."
A wife who killed her husband was buried alive in the ground (if a woman was pregnant, she was kept in prison until childbirth, then executed).
To crimes against personality The regulation refers to:
l crimes against health (mutilation, beatings),
- crimes against honor (insult by action and word).
Punishments for them were appointed depending on the position, social and property status of the victim.
Bodily harm was punished according to the principle TALION(an eye for an eye, a tooth for a tooth) and, in addition to everything, the victim was compensated for damage in the amount of 50 rubles. for every wound (Article 10, Chapter XXII). If the injury or beating was inflicted by a peasant, then they received compensation in the aggregate in the amount of 10 rubles.
The Code pays significant attention to property crimes, dedicating to them chapter XXI "On robbery and tateb cases". The law distinguishes "tatba" (secret theft of property), robbery (forcible, open, open seizure of property), robbery (robbery, accompanied by an encroachment on the life and health of the victim).
For the first theft, they beat him with a whip, cut off his left ear, put him in prison for 2 years, and “without being taken out of prison” in shackles they sent him “for all sorts of products,” then exile to the outskirts. For the second theft, beating with a whip, cutting off the right ear and imprisonment for 4 years, 2 parcels for products in shackles, "then exile to the outlying cities. (According to the Sudebnik of 1550 - the death penalty). For the third theft, Article 12 establishes torture and the death penalty "although he did not commit murder", and the criminal's property was given to the plaintiff for use.
Death penalty for church theft. Article 13 reads "And if a thief commits murder at the first tatba: and he will be executed by death." Thus, theft for the third time, theft with murder and theft of church property is considered by the Code as qualified types of theft.
Punishment for robbery:
- for the first time was appointed in the form of cutting off the right ear, a three-year prison sentence and exile;
in the second - the death penalty.
If the first robbery was accompanied by a murder, then the law imposed the death penalty.
A fine of 10 rubles was levied for not informing and harboring people "whose ears were cut off", so that "there would be no shelter anywhere for thieves and robbers."
The code also punishes for setting fire, destruction of another's property and fraud.
The Council Code partially defines crimes against morality (violation of family foundations, pandering, etc.), previously known only to church law (Articles 25, 26, Chapter XXII).
The system of punishments according to the Council Code pursues the goal - intimidation: to punish "so that, despite the fact, it would be repulsive for others to do so."
Types of punishments reflect the extreme cruelty of the punitive functions of the Council Code, for many crimes the death penalty is provided.
In accordance with the severity of the crime, punishments were divided into the following types:
~ the death penalty - the death penalty, provided for in 36 cases, was simple (cutting off the head, hanging and drowning), and qualified (quartering, wheeling, pouring molten metal into the throat, burying in the ground up to the shoulders, impaling, burning, etc. .).
~ corporal punishment (painful and self-harmful) - beating with batogs, whips, cutting off a hand, branding, punishment according to the Talion principle,
~ hard labor,
~ property punishments,
~ deprivation of rank, removal from office,
~ church repentance.
The Council Code finally approves 2 form process: search and trial.
The search (inquisitorial) process is finally approved in law enforcement practice and is used more widely than in the previous period. It is used in cases of church and religion, political crimes, murder, theft, robbery and robbery. The search began not only at the request of the victim, but also at the initiative of state bodies. At the same time, the accused and witnesses were interrogated, neighbors were asked, and a "general search" was carried out - a mass survey of the population, torture. During the torture, the labial elders and judges, the best people, the arbiters, were present. "Torture speeches" were recorded by the Zemstvo clerk, they were signed by judges and other persons.
The accusatory and adversarial process ("court") was retained for the consideration of property and petty criminal cases. Judgment was conducted orally, but recorded in the "court list" (protocol).
From the system of evidence, the field (duel) and rightness gradually disappeared. During this period, the institution of challenging the Judge appeared (Article 3, Chapter X).
PlanIntroduction. The concept of historical source
Analysis of the historical reality of the 17th century
Reasons for the creation of the Council Code
Convocation of the Zemsky Sobor and preparation of the Council Code
Sources of the Cathedral Code
Structure of the Council Code
Brief analysis of the content of the Cathedral Code
Various branches of law in the Cathedral Code
a) Judicial law
b) Criminal law
c) Real, liability and inheritance law. d) Treaty in the 17th century. e) Law of obligations of the 17th century. f) The institution of easements. g) Inheritance law. h) Family law.
The value of the Council Code
Literature
1. Introduction. The concept of historical source
One of the most significant legal acts created in the long history of the Russian state is the Cathedral Code of 1649. a significant part of which are monuments of law.
It should be noted that a historical source is everything that reflects the development of human society and is the basis for its scientific knowledge, more precisely, everything created in the process of human activity and carrying information about the diverse aspects of social life.
A significant array of historical sources are various legislative acts, which are legal documents.
Law is the state will of the economically dominant class or the entire society expressed in the system of obligatory rules of conduct. The development of legal norms corresponds to the level of development of society and the state as a whole.
Legislative acts are legal documents emanating from the supreme state power, and have the highest legal force within a certain territory, state. All other acts are documents that fix in legal form transactions, agreements of an economic and political nature between individuals, individuals and the state, states, the state and the church. All acts are usually divided into 2 main groups:
public law, more precisely government origin;
private law, more precisely concluded between private individuals.
This division is conditional, since some public law and private law acts have common ground.
The main process characterizing the development of legislative acts in the 17th century is the codification of the norms of Russian law in the conditions of the emerging and developing Russian state. On the other hand, knowledge of the historical reality during which these acts were created helps to reveal the reasons for the creation acts, their relationship with specific historical events.
Analysis of the historical reality of the 17th century
Approximately from the 17th century, in the middle of which the Cathedral Code was created, as V.I. Lenin points out, a “new period of Russian history” began, characterized by a truly actual merger of individual regions, lands and principalities of the Russian Centralized State into a single whole. This merger was caused by the growing exchange between the regions, the growth of trade and the concentration of local markets into one all-Russian market. But still, despite the new conditions in the economy, the dominant form of management remains the subsistence corvée economy. As Lenin wrote in his work “The Development of Capitalism in Russia”: “For a natural, closed economy, which was corvée land ownership, it is necessary that the direct producer be endowed with the means of production and land, that he be attached to the land, since otherwise the landowner labor is not guaranteed. The peasant was personally dependent on the landowner and worked for him. The corvée system of economy was based on an extremely low routine technique, since the management of the economy was in the hands of small peasants, crushed by need, humbled by personal dependence and mental ignorance.”
In the 1st half of the 17th century, a large
patrimonial landownership of boyars, monasteries and, in particular, local authorities
nobility. This growth was not so much due to awards
king, how much due to the seizure of large volost lands by landowners. In the middle reaches of the Volga, large palace, boyar and monastic estates arose with a developed fishing economy. In the middle of the 17th century, the votchinniks and landlords of the central part of Russia sought to expand the plowing in their possessions by cutting back on plots of allotment peasant land. This entailed even greater exploitation of the peasants. In addition, in the first half of the 17th century, the nobility received the right to allow their sons to own the estate, provided that they were able to carry out public service, or rather, gradually the landowners' lands began to turn into hereditary ones. At the same time, “small-local”, “unplaced” and “empty” service people arose, who also sought to acquire land holdings in the form of an award for serving the tsar, but more by seizing the lands of “black volosts”, serfs and townspeople draft people.
This process of simultaneous growth of small and large landownership was accompanied by a struggle for the right to inherit landownership, on the one hand, and for the enslavement of the peasants, on the other hand, since the serfs were the main productive force of the large-scale local economy. The landlords did not have a sufficient number of serfs, and the votchinniks often lured away and sheltered the runaway peasants, in connection with which the intra-feudal struggle between the landlords and the patrimonials over the serfs intensified. Many landowners, “sovereign service people”, monasteries, taking advantage of the fact that they were exempt from tax, bought up yards and crafts in the cities and, competing with city people, further burdened the life of the township taxable population. The development of commodity-money relations affected the connection of estates and landowners with the city and vice versa. This process can be traced, for example, by analyzing the economic activities of the royal, boyar, monastery estates of the mid-17th century. This analysis indicates that, in addition to agriculture, the estates were also engaged in crafts (for example, the monastery of the Trinity-Sergius Lavra had salt pans in Pomorie, forestry developed in the estates of the boyars Morozov, Cherkassky and others). At the same time, there is a gradual separation of handicrafts from agriculture both in large land holdings and in peasant farms.
In the middle of the 17th century, entire villages were already engaged in a certain type of craft (the Nizhny Novgorod Territory, the village of Pavlovo, the center of the iron industry, the village of Murashkino, Arzamas land, made sheepskin coats, and so on). In such large cities as Moscow, Nizhny Novgorod, Yaroslavl and others, certain types of crafts grow in the suburbs, especially blacksmithing, cannon, copper, weapons and silver. Industry is moving to the manufacturing stage, with a division of labor, with the use of some mechanization of production under the dominance of manual labor, but labor is still serfdom. Manufactory mainly served the needs of the state; goods were released to the market only when they satisfied the orders of the treasury or the royal court.
The improvement of handicrafts and manufactory led to the further development of the internal market, but trade was not yet completely separated from handicraft. Craftsmen were at the same time sellers of their goods.
There were about 50% of such merchants in Moskovsky Posad. The largest ku-
bakery-guests-had 10-15 shops, and the peasant could only trade
on wagons (so that there is no competition with townspeople taxable people). Once-
trade also developed between industrial and agricultural areas
tyami (single all-Russian market). From the urban townspeople
a large merchant class stood out - guests, merchants of the living room and cloth hundreds,
having trading yards, shops not only in Moscow, but also in Arkhangelsk,
Nizhny Novgorod, Kazan and other cities (they were exempted from
city tax). The whole burden of paying city taxes fell
on the working townspeople of the “black” settlements, while they were
garden lands were seized by nobles and “various service people” of the king
sky orders. “White” settlements arose, which were free from payments (direct state tax, archery tax, yam money) in favor of the “sovereign”. Freed from this tax, the inhabitants of these settlements built trading yards and shops, served by their own serfs, and thereby undermined the economic situation of the draft people of the settlement. Therefore, the townspeople repeatedly raised the question of returning to the settlement the departed people and the city property pledged by the "Belolists".
In addition, the tsarist government, not satisfied with the tax, raised indirect taxes on essentials, such as salt. The economic and financial policy of the government was not satisfied with the petty military "people", gunners, collars, etc., who received a small monetary and bread salary for their service. Since the main source of their livelihood is crafts, they were always ready to support the protests of the townspeople against fiscal policy and the administrative arbitrariness of local city authorities. In connection with the lack of land ownership and the "scarcity of the sovereign's salary," the "small service people" expressed their dissatisfaction.
Reasons for the creation of the Council Code
In connection with the above, we can say that the appearance of the Cathedral Code was a direct result of the popular uprisings of the first half of the 17th century, which were based on the movements of serfs, and the need to draw up a single all-Russian law.
At the beginning of the century, the foundations of the serf state were shaken by the peasant war under the leadership of Bolotnikov. In the future, anti-feudal movements did not stop. The peasants opposed the ever-increasing exploitation, the increase in service, and the deepening of their lack of rights. Their struggle, as already mentioned, was joined by “lesser” townspeople, supported by ordinary archers and other lower ranks of “serving” people, as well as the lower classes of church and monastery organizations. Slaves were also active participants in the popular, especially urban, movements of the 17th century. In the middle of the 17th century, the struggle reached a particular urgency. Already the census of 1646, according to which the christening became “strong and without fixed years” (the law determined the punishment for sheltering fugitive peasants), and the introduction of taxes on salt in February 1646 caused a violent protest. The government, which was looking for ways out of the financial impasse, but did not want to infringe on the interests of the ruling class, tried to cut the salaries of the “small service people”. As a result, “the mob stirred up against the boyars” and a major uprising took place in the summer of 1648 in Moscow (the uprising also occurred because of the hatred of the people for the “temporaries”. The rebels demanded the extradition of Pleshcheev, who was in charge of the Zemsky order and other officials. The uprising had strong action: they began to appease the capital's army and the mob, the archers were given water by order of the tsar, the tsar himself during the procession spoke to the people, which sounded like an apology, did not skimp on promises. supported by the peasants, the uprisings were anti-feudal in nature. Among the most popular slogans was a protest against the arbitrariness and extortion of the administration, since the abuse of Moscow orders and "insults" on the part of the "big people" fell on the shoulders of the peasants, the lower classes of the townspeople and ordinary archers.These slogans reflected the antagonism between the settlement as a whole and the highest bureaucratic bureaucracy, rodrvy boyars and the largest landownership. This later affected some features of the Code. But in general, the Code received a pronounced noble character. It is important to note that criticism of the current legislation was also heard from the ranks of the ruling class itself. This is explained by the struggle that went on between its various layers: between small and large landowners, between the serving nobility and the tribal land nobility, between secular and spiritual feudal lords. It was a struggle for land, for working hands, for political influence, and so on. Thus, the “service people” demanded that they be returned to the treasury and that certain categories of church property be distributed to them. Together with the representatives of the settlement, the nobles in a petition dated 10/30/48 demanded the destruction of private boyar and church settlements and arable land around Moscow. The nobles also complained about the arbitrariness that reigned in the orders, the confusion in the legislation, which indirectly affected their interests. This found its manifestation, for example, in the Petitions of 1637 and 1641, in which the nobles complained about the “insults” and “violence” inflicted on them in orders and insisted that the tsar “ordered them to be judged according to the law in all cases” , and in the petition of the Kadom and Kasimov Murzas of 1642 to the violence of “big people”.
Thus, the creation of the Council Code from a socio-historical point of view was the result of an acute and complex class struggle and the direct result of the 1648 uprising.
Convocation of the Zemsky Sobor and preparation of the Council Code
All this forced the tsar to announce that he had “postponed” the collection of arrears and was convening a Zemsky Sobor to prepare a new Code. In addition, by the beginning of the reign of Mikhailov's successor, a rather extensive stock of new laws had accumulated and a need was felt to sort it out. According to the established order of Moscow legislation, new laws were issued mainly at the request of one or another Moscow order, caused by the judicial and administrative practice of each, and turned to the leadership and execution of the order of the department of which they concerned.
The need for a new code of laws, reinforced by abuses of orders, can be considered the main motivation that caused the new code and even partly determined its character.
From the surviving “memory” of the convening of the Council, it can be seen that as early as June 10, the tops of the Moscow population (“Moscow nobles, archers and children of the boyar townsmen and foreigners, guests and living rooms of cloth merchants from various settlements”), frightened by the uprising, asked that “sovereign he complained to them, ordered them to hold a Council, and at the Council they will learn to beat with their foreheads about all their deeds. This initiative was aimed at appeasing the lower classes of the city and at the same time taking advantage of the government's plight to achieve their own estate goals. The government looked at the Council that was being convened as a means of appeasing the people. Later, Patriarch Nikon said that this Council was convened "for the sake of fear and civil strife from all black people, and not for the sake of true truth."
In the letters sent to the regions in the summer of 1648, it was announced that it was ordered to write the Laid Book by decree of the sovereign and the patriarch, by the verdict of the boyars and by the petition of the stewards and solicitors and all sorts of ranks of people. In July 1648, the tsar, after consulting with the Patriarch and All Russia Joseph, with the metropolitan, with the archbishops and “with all the illuminated cathedral”, “sovereign boyars”, with “roundabouts” and “thought people”, decided that it was necessary to write out those articles that written in the “rules of the holy apostolic and holy fathers” and the laws of the Greek kings, as well as to collect and “correct” with the old court orders the decrees of the former ruling kings and “boyar sentences on all kinds of state and zemstvo affairs”. The same articles for which in the courts “the decree is not allowed and there were no boyar sentences for those articles, and those articles would have been written and presented according to the same sovereign decree by the general council, so that the Moscow state of all ranks would be people, from the big and lesser rank, the court and reprisals were equal in all matters to everyone. (From the preface to the conciliar code). The draft Code was entrusted to a special codification commission of 5 people, from the boyars, Prince. Odoevsky and Prozorovsky, Prince Volkonsky and two clerks, Leontiev and Griboyedov. The three main members of this commission were Duma people. This means that this “order of Prince Odoevsky and his comrades,” as it is called in the documents, can be considered a commission of the Duma, it was established on July 16. At the same time, they decided to convene a Zemsky Sobor for consideration of the adoption of the project by September 1. The commission selected articles from the sources indicated to it in the verdict and compiled new ones, both of which were written “in a report” and submitted to the sovereign with a thought for consideration. It should be noted that the Zemsky Sobor of 1648-1649 was the largest of all that were convened during the existence of a class-representative monarchy in Russia. The fact that the most important political issues were resolved at the Zemsky Sobors testifies to their great significance and authority. On the advice of the patriarch and the boyar “sentence”, the tsar instructed, for consideration and approval of the Council Code, to elect to the Zemsky Sobor from stewards, solicitors, Moscow nobles and tenants, 2 people each, from all cities from nobles and boyar children, except Novgorod , 2 people each, and from the Novgorodians from the patch, 1 person each, from the guests, 3 people each, from the living room and the cloth hundreds, 2 people each, and from the “black” hundreds and settlements and cities from the suburbs, 1 person each. By September 1, 1648, elected “from all the ranks” of the state, servicemen and commercial and industrial townsmen were convened in Moscow; elected from rural or district inhabitants, as from a special curia, were not called. The Zemsky Sobor, both in its tasks and in composition, was feudal-serfdom. From October 3, the tsar with the clergy and duma people listened to the draft Code drawn up by the commission, which was discussed in 2 chambers: in the “Upper”, where the tsar, the Boyar Duma and the consecrated Cathedral, and in the response, where elected people of various ranks under the chairmanship prince Yu.A. Then the sovereign instructed the higher clergy, duma and elected people to fix the list of the Code with their own hands, after which it, with the signatures of the members of the Sobor, was printed in 1649 and sent to all Moscow orders and cities to the voivodeship offices in order to “all sorts of things de -Lat according to that Code.
The articles of the Council Code reflect the demands put forward in petitions filed before September 1 - on the abolition of school years, for example - and provisions (for example, on townspeople). Many articles are written with these requirements in mind.
Vladimirsky-Budanov, “Review of the history of Russian law”.
The speed with which the code was adopted is amazing. The entire discussion and adoption of the Code of almost 1000 articles took only a little more than six months. But it should be borne in mind that a huge task was entrusted to the commission: firstly, to collect, disassemble and process into a coherent set of laws in force, which are different in time, unagreed, scattered across departments, it was also necessary to normalize cases not provided for by these laws. In addition, it was necessary to know social needs and relations, to study the practice of judicial and administrative institutions. This work took many years. But they decided to draw up the Cathedral Code at an accelerated pace, according to a simplified program. The Code is divided into 25 chapters containing 967 articles. Already by October 1648, more precisely in 2.5 months, 12 first chapters were prepared for the report, almost half of the entire set. The remaining 13 chapters were compiled, heard and approved in the Duma by the end of January 1649, when the activities of the commission and the entire cathedral ended and the Code was completed in manuscript. The speed with which the Code was drawn up can be explained by the disturbing news of the riots that broke out after the June riot, in addition, there were rumors about the upcoming uprising in the capital, not to mention the need to create a new code. Therefore, they hurried with the preparation of the Code, so that the cathedral elected would spread the stories about the new course of the government and the Code, which promised everyone a “smooth”, fair reprisal, to the cities.
Sources of the Cathedral Code
Since the Council Code was drawn up hastily, the commission limited itself to the main sources indicated to it in the verdict on July 16. The original “column” of the Code has also been preserved, in the margins of which there are marks indicating where certain articles were borrowed from. These were the Pilot Book (part 2), which contained the codes and laws of the Greek kings (as for these laws, such a reference is caused only by the desire of the Moscow kings to give “authority to their legislative activity” (Yushkov S.V., “History State and Law of the USSR”, part 1), since the foundations of Byzantine law were known in Russia since the time of the Old Russian state), Moscow judicial records and additional decrees and sentences to them, i.e. decree books of orders, decrees of “the former, great sovereigns, tsars, and great princes of Russia”, boyar sentences, extracts from the Lithuanian statute of 1588, “rules of the holy apostles and holy fathers”, i.e. Church resolutions of ecumenical and local councils.
Decree books are the most abundant source of the Code. Each order, as a body of state administration, had a special book in which all newly issued laws and regulations that fell within its competence were entered. Ready-made codes were written to the books with a detailed indication of the repealed and amended laws, as well as reports of orders that had not yet been submitted for consideration by the Boyar Duma, but included cases not provided for by law and therefore necessary for writing a new article. A number of chapters of the collection were compiled from these books with verbatim or modified excerpts: for example, 2 chapters on estates and estates were compiled according to the book of the Local Order, the chapter “On the Serf Court” - according to the book of the order of the Serf Court, the sources of chapter 18 are the decree -th records of the Printed Order, etc.
A peculiar use was made by the commission from the Lithuanian Statute of 1588. In the surviving original scroll of the Code, we find repeated references to this source. The compilers of the Code, using this code, followed it, especially when compiling the first chapters, in the arrangement of objects, even in the order of articles, in posing legal questions, but all processed in "their own Moscow way". Thus, the Statute served not only as a legal source of the Code, but as a codification manual for its compilers. It should be noted that Professor S.V. Yushkov pointed out that the Lithuanian Statute itself was based on the beginnings of Russian Pravda, was written in Russian, which proves “the belonging of Lithuanian law to the system of Russian law”.
Structure of the Council Code
The Cathedral Code of 1649 was a new stage in the development of legal technology. it became the first printed monument of law. Before him, the publication of laws was limited to their pronouncement in trading areas and temples, which was usually indicated in the documents themselves. The appearance of a printed law to a large extent excluded the possibility of committing abuses by governors and clerks who were in charge of legal proceedings.
The Cathedral Code had no precedent in the history of Russian legislation. In terms of volume, it can only be compared with Stoglav *, but in terms of the richness of legal material it surpasses it many times over. Of the monuments of the law of other peoples of Russia, in terms of legal content, the Council Code can be compared with the Lithuanian Statute, but the Code also favorably differed from it. The Code had no equal in contemporary European practice.
The Cathedral Code is the 1st systematic law in the history of Russia.
In the literature, it is often therefore called a code, but this is not legally true. The Code contains material relating not to one, but to many branches of law of that time. It is rather not a code, but not a large set of laws. At the same time, the level of systematization in individual chapters devoted to individual branches of law is not yet so high that it can be called codification in the full sense of the word. Nevertheless, the systematization of legal norms in the Council Code should be recognized as very perfect for its time.
The original Cathedral Code is a column 309 meters long of 959 separate sections. This unique document allows us to judge the work on its compilation. On the front side of the column, the text of the Cathedral Code was written by several scribes. On the back - 315 signatures of the participants of the Council. According to the gluing of the front side of the bond of the Duma clerk I. Gavrenev. The braces of the Duma clerks F. Elizariev, M. Volosheninov, G. Leontiev and F. Griboyedov are also made on the reverse side by gluing together. Special marks on the column indicate the sources of a particular article. There are corrections in the manuscript, the places omitted during the correspondence have been restored. The “Inventory of amendments” is attached to the Code. At the same time, this column was not used in judicial practice. From the original column, a handwritten book-copy “word for word” was made, from which copies of the Cathedral Code were printed. It is not yet possible to set the number of printed books. One of the documents gives the figure - 1200 books. This is a colossal circulation for that time.
Unlike the previous legislative acts, the Council Code is distinguished not only by its large volume (25 chapters, divided into 967 articles), but also by its greater purposefulness and complex structure. A brief introduction contains a statement of the motives and history of the compilation of the Code. For the first time, the law was divided into thematic chapters devoted, if not to a certain branch of law, then in any case, having a specific object of regulation. The chapters are highlighted with special headings: for example, “On blasphemers and church rebels” (Chapter 1), “On the sovereign’s honor and how to protect the sovereign’s health” (Chapter 2), “On money masters who will learn how to make thieves' money” (Chapter 5), etc. Such a scheme for constructing chapters allowed their compilers to adhere to the usual sequence of presentation for that time from the initiation of a case to the execution of a court decision. This causes serious difficulties in the analysis of the Code both by industry and by object of law.
Even pre-revolutionary researchers noted that the Cathedral Code compares favorably with both the previous and subsequent legislation from a linguistic point of view. It no longer contains archaisms characteristic of Russian Pravda and even Code of Laws, and at the same time the Code is not yet littered with that mass of foreign words and terms that Peter the Great introduced into the laws.
The Cathedral Code summed up the long development of Russian law, relying on all previous legislation, especially on acts of the 18th century.
7. A brief analysis of the content of the Cathedral Code.
The first chapters (1 - 9) and the last 3 (23 - 25) cover relations related to the position of the church (chapter 1), the highest state authority (chapters 2-3) and the established order of government (chapters 4-9, 23- 25). The first chapter of the Code contains legal norms “on blasphemers and church rebels” - the most terrible crime, according to the legislators of the 17th century, since it is considered even earlier than an attempt on “sovereign honor” and “sovereign health” (chapter 2 ). For blasphemy against God and the Mother of God, an honest cross or saints, according to Article 1 of Chapter 1 of the Code, the guilty, regardless of his nationality, were to be burned at the stake. Death also threatened any “outlaw” who interfered with the serving of the liturgy. Severe punishments were also due for any outrages and riots carried out in the temple, from commercial execution to imprisonment. But with Chapter 1 with its 9 articles, legalizations on church issues are not exhausted, they are scattered throughout the entire text of the Code. And in further chapters there are decrees on the oath for people of spiritual and secular rank, on limiting the rights of non-believers, on marriage, on protecting church property, on honoring holidays, etc. All these measures were designed to protect the honor and dignity of the church. But the Code also contained clauses that caused strong dissatisfaction with the church hierarchy. According to chapter 13, a special Monastic order was approved, on which judgment was imposed in relation to the clergy and people dependent on it. The clergy were deprived of judicial privileges, and this was done at the petition of elected people. Church land ownership was also subjected to significant restrictions. The settlements and estates that belonged to the church authorities in the cities, in the settlements and near the settlements were taken “for the sovereign as a tax and for services without flight and irrevocably” (ch.19, article 1). Further, all clergy and institutions were categorically forbidden to acquire patrimonies in any way and to give patrimonies to lay people in monasteries (ch.17, st.42). From the point of view of the state, this contributed to further centralization and strengthening of autocratic power. But the provisions of the new code aroused the resistance of the clergy, since the Code deprived him, with the exception of the patriarch, of judicial privileges. All church and monastery lands were transferred to the jurisdiction of the Monastic order.
Patriarch Nikon, unhappy with the Code, called it nothing more than a “lawless book”, but the first head of the Monastic order, Prince N.I. Odoevsky, “the new Luther”. As a result of a tense struggle, the spiritual power overcame the secular one: in 1667 the Monastic order was abolished.
For the first time in Russian legislation, the Code singles out a special chapter dedicated to the criminal law protection of the monarch's personality (ch. 2). At the same time, it is emphasized that even intent is punishable by death. Besides, structures of the state, political crimes are defined. The chapter rarely separates these crimes from other “dashing deeds”, being “the first codification in the history of Russian legislation, in which if not an exhaustive, then still a relatively complete system of state crimes is given.” The chapter establishes the composition of each crime, the subjective and objective sides of anti-state encroachments, the circumstances that eliminate punishability, and the procedural rules in these cases, fixing the dominant role of the search.
The next group of chapters is connected with the “court”, and these chapters are distinguished both by the subject of regulated relations (ch. 9 - the court for peasants, ch. 10 - the court for townspeople), and by object (ch. ch.16 - about local lands). Some authors believe that the first chapters relate to state law, 10-15 - to the process, 16-20 - to property law, 21-22 - to criminal law, 22-25 - an additional part: about archers, about Cossacks, about taverns, etc. (S.V. Yushkov, M.F. Vladimirs-Ky-Budanov). In its original form, the Code was provided with a list of articles, each with its own name. In subsequent years, the code was supplemented by “new decree articles”, the most important among them: “New decree articles on robbery and murderous cases” of 1669, “On estates” of 1676, “On estates and estates” of 1677, etc.
The articles of the Cathedral Code draw the legal status of various estates and social groups of society: important articles that draw the legal status of peasants (for example, art. 1,5,12,16,32 chapter 11, art. 13 chapter 2, art. Article 7 of Chapter 13, Article 9,15,37 of Chapter 19), etc. It can be seen from them that the Code finally consolidated the complete prohibition of the peasant exit - the “lesson summers” were canceled - the period for the search for fugitive peasants, after which the search stopped and in fact there was at least a small opportunity to exit the serfdom, albeit by flight. According to the Code, the search for fugitives became indefinite, and a fine of 10 rubles was imposed for harboring them. Thus, the peasants were finally attached to the land and the legal registration of serfdom was completed. The adoption of these norms was in the interests of the service people who actively participated in the third Council of 1648. But it is important to note that according to the Code, the peasants still had some class rights. Fugitive peasants were categorically ordered to be returned together with their property, thereby recognizing their property rights. The recognition of personal rights was the provision according to which the peasants who married on the run were subject to return to the owner only by their families. But in general, the peasants were almost completely deprived of rights both in private and in public life (Article 13 of Chapter 2, Article 6 of Chapter 9, Article 261 of Chapter 10), etc. It should be borne in mind that the Code, without interfering in many relations between the feudal lords and the peasants, leaves room for the arbitrariness of the patrimonials and landowners: the Code does not contain norms regulating the amount of peasant duties.
If the position of the patrimonial, and especially the landlord, peasants was much more difficult than the position of the state peasants, then at the very bottom of this ladder were serfs and bonded people (Art. 8,16,27,35,63,85 chapter 27). Kholops did not have personal and property rights, although in fact they more and more often turned into arable people and were included in the tax. If we compare the articles about peasants and about serfs, then it can be noted that the status of a serf has come close to the legal status of a serf. In the Code, much attention was also paid to some social issues. In the Time of Troubles, the class of service people and residents of the settlements was the force that ensured the final victory over external and internal enemies. Chapters 16 and 17 were devoted to streamlining land relations, which were confused during the years of the “Moscow ruin”. Someone then lost the fortresses on their possessions, someone received them from impostors. The new legislative code established that only service people and guests had the right to own estates. Thus, land ownership became a class privilege of the nobility and the top of the merchant class. In the interests of the nobility, the Code smoothed out the difference between conditional ownership - an estate (on condition and for the duration of service) and hereditary possession - a fiefdom. From now on, estates can be changed to fiefdoms and vice versa. The petitions of the townspeople were satisfied by the 19th chapter specially dedicated to them. According to it, the township population was isolated into a closed estate and attached to the township (in addition, fighting attempts to evade the township tax, the Code deprived people of the “black hundreds” - the right to move from city to city (Art. 19,22,37,38 chapter 19). All residents of the settlement had to pay certain taxes and perform duties in favor of the state. It was now impossible to leave the settlement, but it was possible to enter only if you entered a tax community. This provision satisfied the demand of the townspeople to protect them from the competition of different ranks of people who, coming from the service, spiritual, peasants, traded and were engaged in various crafts near the towns, at the same time not incurring tax. Now everyone who was engaged in trading and crafts turned into an eternal township tax. previously tax-free “white settlements” (whitened, i.e. freed from taxes and duties to the state), which belonged to secular feudal lords and the church, free of charge replyalsya to the sovereign's quarters. All those who had previously left from there were subject to return to the settlements. They were instructed to “take them to their old townships, where someone lived before this, without flight and irrevocably.” But this provision, fixed by law, was not fully implemented in practice, and throughout the 18th century, townspeople continued to petition for the elimination of “white places”, the expansion of urban territories, and the prohibition of peasants from trading and crafts.
The Code pays the main attention to the feudal lords. It secured the privileged position of representatives of the ruling class (Art. 1, Chapter 9, Art. 27,30,90, Chapter 10, Art. 1, Chapter 11), etc. From the text of the Code, it is clear which groups of the population should be classified as feudal landowners (Article 1 of Chapter 9, Article 1 of Chapter 11, Articles 41-45,66 of Chapter 16). A number of articles confirm the monopoly right of the feudal lord to own land with peasants (Article 46 of Chapter 16), establish their privileges (Articles 5,12,92,133,135 of Chapter 10, Articles 16,56 of Chapters 18,9 and “state service” (Article 7,19 Chapter 7, Article 69 Chapter 16, Article 2 Chapter 20). The main part of the feudal lords was called "service people", although they included far from all feudal lords, and not only feudal lords, but also archers, Cossacks, gunners, etc., who had neither peasants, nor estates, nor estates, and received for service money and grain salary and some benefits. The Code, as a code of feudal law, protects the right of private property, and above all, ownership of land. The main types of land ownership of feudal lords were estates (Art. 13,33,38,41,42,45 of Chapter 17) and estates (Art. 1-3,5-8,13,34,51 of Chapter 16). The Code takes a serious step towards equating the legal regime of estates with the regime of estates; this concerned wide circles of feudal lords, especially small ones. It is no coincidence that the chapter on estates comes earlier in the law than the chapter on estates.
The equating of estates with estates proceeded mainly along the lines of granting landowners the right to dispose of land. Until now, in essence, only votchinniks had the right to own land (but their rights were somewhat limited, which was preserved in the Code), but in principle, the votchinnik had a necessary element of property right - the right to dispose of property. The situation is different with the estate: in previous years, the landowner was deprived of the right to dispose, and sometimes even the right to own land (this was if the landowner left the service). The Cathedral Code made significant changes to this matter: first of all, it expanded the right of the landowner to own land - now the retired landowner retained the right to land, and although he was not left with his former estate, he was given the so-called -vaemoe subsistence estate - a kind of pension. The landowner's widow and his children up to a certain age received the same pension.
The right to dispose of the estate according to the Cathedral Code was manifested in the permission of the so-called surrender of the subsistence estate, in the possibility of exchanging the estate, including for the patrimony. As for estates, they could be sold to an almost unlimited circle of feudal lords, and articles devoted to the "sovereign's palace and black" lands revealed the position of the king as a major feudal lord.
There are many articles in the Code that protect other numerous objects of economic management of the feudal lords, as well as the trade and craft population. Chapter 10 contains articles on other issues of civil law. All the law of obligations in the Code is closely connected with the criminal law, for the failure to fulfill many contracts, criminal punishment was threatened.
Much attention is paid to criminal law (Ch. 1-5, 10, 21, 22, etc.) and the process. Compared to previous legislation, the Code provides for more cases of public criminal prosecution (Article 31 Chapter 21, Article 14 Chapter 22). In the punitive policy, the features of the right-privilege clearly appear (Art. 90.92 of Chapter 10, Art. 10 of Chapter 22). The general concept of a crime remains the same, but one can note the development of ideas about its composition. The system of crimes becomes more complicated. The totality of the norms about them, provided for by the Code, for the first time acquires the character of a system. The most dangerous crimes for feudal society are put in the first place: against the church, state crimes, against the order of government (the first chapters of the Code). Next come crimes against the person, property crimes, although a clear distinction according to the object of the crime in the systematization is not always maintained. One of the circumstances excluding criminal liability was recognized as actions resembling necessary defense and extreme necessity (Articles 105,200,201,283 of Chapter 10, Articles 88-89 of Chapter 21, Article 21 of Chapter 22). The system of punishments is also becoming more complex. The punishment is increased in the presence of qualifying circumstances (Article 90 of Chapter 21, Articles 1,2,16 of Chapter 25).
In procedural law, there is a growing tendency to expand the scope of the search, although the court is still in the first place in terms of the amount of jurisdiction. The significance of judicial documents is affirmed, rules of conduct in court are established, etc.
The Code marks the development of all branches of law of that time. Entire chapters are devoted to administrative and financial law. Civil rights are widely interpreted - property, contracts, inheritance. The articles of the Council Code do not give a complete picture of issues related to the state structure, form of government, organization of the state apparatus, etc., but there are articles that allow one to judge the mechanism of the state of the 17th century. In addition, the Code consolidates the process of strengthening royal power, which is characteristic of a class-representative monarchy and reflects a tendency to develop into an absolute monarchy. Articles relating to the Boyar Duma give some idea of its role in the state of the 17th century (Art. 2, Chapter 10).
The Code also contains information about administrative positions (voivods, clerks, clerks, kissers, heads, collectors, etc.), about individual local institutions, about administrative-territorial units, about the military (ch. 12), judicial and punitive (ch.11,12,13), financial (ch.9) system, about church and monastic apparatus (ch.1,12,13).
The Cathedral Code satisfied the main class requirements of the nobility and partly of its allies - the top tenants, marked the first systematized code of laws covering almost all branches of law, and was the final stage in the process of establishing a unified Russian state.
8. Various branches of law in the Cathedral Code.
a) Judicial law.
Judicial law in the Code constituted a special set of norms that regulated the organization of the court and the process. Even more definitely than in the Sudebniks, there was a division into two forms of the process: “trial” and “search”. Chapter 10 of the Code describes in detail the various procedures of "court": the process was divided into court and "execution", i.e. sentencing. "Court" began with "introduction", filing a petition. Then the bailiff summoned the defendant to court. The defendant could provide guarantors. He was given the right not to appear in court twice for valid reasons (for example, illness), but after three failures to appear, he automatically lost the process. The winning side was given a corresponding certificate.
The evidence used and taken into account by the court in the adversarial process was diverse: witness testimony (practice required the involvement of at least 20 witnesses in the process), written evidence (the most trustworthy of them were officially certified documents), a cross kiss (allowed with -pax for an amount not exceeding 1 ruble), lot. The procedural measures aimed at obtaining evidence were a “general” and “general” search: in the first case, the population was surveyed about the fact of a crime, and in the second, about a specific person suspected of a crime. A special type of testimonies were: "reference to the guilty" and a general reference. The first consisted in referring the accused or the defendant to a witness, whose testimony must absolutely coincide with the testimony of the exile, in case of a discrepancy, the case was lost. There could be several such references, and in each case full confirmation was required. The common reference consisted in the appeal of both disputing parties to the same or several witnesses. Their testimony was decisive. The so-called “pravezh” became a kind of procedural action in court. The defendant (most often an insolvent debtor) was regularly subjected to corporal punishment by the court, the number of which was equal to the amount of debts (for a debt of 100 rubles, they were flogged for a month). "Pravezh" was not just a punishment - it was a measure that prompted the defendant to fulfill the obligation: he could find guarantors or he himself could decide to pay the debt.
Judgment in the adversarial process was oral, but was recorded in the “court list”. Each stage was made out by the special diploma. Search or “search” was used in the most serious criminal cases. A special place and attention was given to crimes about which it was declared: “the word and deed of the sovereign”, i.e. in which the public interest is involved. The case in the search process could begin with the statement of the victim, with the discovery of the fact of the crime (red-handed) or with the usual slander, unconfirmed by the facts of the prosecution 9 "lingual rumor"). After that, government agencies stepped in. The victim filed a “appearance” (statement), and the bailiff with witnesses went to the scene of the crime for an inquiry. The procedural actions were “search”, i.e. interrogation of all suspects and witnesses. Chapter 21 of the Council Code for the first time regulates such a procedural procedure as torture. The basis for its application could be the results of the “search”, when the testimony was divided: part in favor of the accused, part against him. In the event that the results of the “search” were favorable to the suspect, he could be taken on bail. The use of torture was regulated: it could be used no more than three times, with a certain break. The testimonies given at the torture (“slander”) had to be rechecked through other procedural measures (interrogation, oath, “search”). The testimonies of the tortured were recorded.
b) Criminal law.
In the field of criminal law, the Cathedral Code clarifies the concept of “dashing case”, developed back in the Code of Laws. The subjects of the crime could be either individuals or a group of persons. The law divided them into major and minor, understanding the latter as accomplices. In turn, complicity can be both physical (assistance, practical assistance, etc.) and intellectual (for example, incitement to murder - chapter 22). In connection with this, even a slave who committed a crime at the direction of his master began to be recognized as a subject. From accomplices, the law distinguished persons only involved in the commission of a crime: accomplices (who created the conditions for the commission of a crime), conniving parties, non-informers, concealers. The subjective side of the crime is determined by the degree of guilt: The Code knows the division of crimes into intentional, careless and accidental. For careless actions, the one who committed them is punished in the same way as for intentional criminal acts. The law distinguishes between mitigating and aggravating circumstances. The former include: a state of intoxication, uncontrollability of actions caused by an insult or threat (affect), the latter - the repetition of a crime, a combination of several crimes. Separate stages of a criminal act are distinguished: intent (which in itself can be punishable), attempted crime and commission of a crime. The law knows the concept of recidivism (coinciding in the Code with the concept of “a dashing person”) and extreme necessity, which is not punishable, only if the proportionality of its real danger on the part of the criminal is observed. Violation of proportionality meant exceeding the necessary defense and was punished. The Cathedral Code considered the church, the state, the family, the person, property and morality to be the objects of the crime.
The system of crimes according to the Council Code:
1) crimes against the church, 2) state crimes,
3) crimes against the order of administration (deliberate non-appearance of the defendant in court, resistance to the bailiff, making false letters, acts and seals, counterfeiting, unauthorized travel abroad, moonshine-brewing, taking a false oath in court, false accusation), 4) crimes against deanery (maintenance of dens, harboring fugitives, illegal sale of property, imposition of duties on persons released from them), 5) malfeasance (extortion (bribery, extortion, unlawful requisitions), injustice, forgery in service, war crimes), 6) crimes against a person (murder, divided into simple and qualified, beatings, insults to honor. The murder of a traitor or a thief at the crime scene was not punished), 7) property crimes (simple and qualified tatba (church, in the service , horse stealing committed in the sovereign's court, theft of vegetables from the garden and fish from the garden), robbery committed in the form of industrial sla, ordinary and qualified robbery (committed by servicemen or children against parents), fraud (theft associated with deceit, but without violence), arson, forcible appropriation of other people's property, damage to other people's property), 8) crimes against morality ( disrespect by children to parents, refusal to support elderly parents, pandering, “fornication” of a wife, but not a husband, sexual intercourse between a master and a slave).
Punishments under the Council Code and their goals:
The system of punishments was characterized by the following features: 1) individualization of punishment: the wife and children of the offender were not responsible for the act he committed, but the institution of third-party liability was preserved - the landowner who killed the peasant had to transfer another peasant to the landowner who suffered damage , the “righteousness” procedure was preserved, to a large extent, the guarantee resembled the responsibility of the guarantor for the actions of the offender (for whom he vouched), 2) the sole nature of the punishment, expressed in the difference in the responsibility of different subjects for the same punishments (for example , chapter 10), 3) uncertainty in establishing punishment (this was due to the purpose of punishment - intimidation). The sentence might not have indicated the type of punishment, and if it was, the method of its execution (“punish by death”) or the measure (term) of punishment (throw “to prison until the sovereign’s decree”) was unclear, 4) the plurality of punishment - for the same crime, several punishments could be established at once: whipping, cutting the tongue, exile, confiscation of property.
Purpose of punishment:
Intimidation and retribution, isolation of the offender from society was a secondary goal. It should be noted that the uncertainty in establishing punishment created an additional psychological impact on the offender. To intimidate the criminal, they applied the punishment that he would have wished for the person he had slandered (in the case of "sneaking"). The publicity of punishments and executions had a socio-psychological significance: many punishments (burning, drowning, wheeling) served as if analogues of hellish torments.
In the Council Code, the use of the death penalty was provided for in almost 60 cases (even smoking tobacco was punishable by death). The death penalty was divided into qualified (wheeling, quartering, burning, filling the throat with metal, burying alive in the ground) and simple (hanging, beheading). Self-mutilating punishments included: cutting off an arm, leg, cutting the nose, ear, lips, tearing out the eye, nostrils. These punishments could be applied as additional or as main ones. Mutilating punishments, in addition to intimidation, performed the function of designating a criminal. Painful punishments included cutting with a whip or batogs in a public place (at the auction). Imprisonment, as a special type of punishment, could be established for a period of 3 days to 4 years or for an indefinite period. As an additional type of punishment (or as the main one), exile was assigned (to monasteries, fortresses, prisons, to boyar estates). Representatives of the privileged estates were subjected to such a type of punishment as deprivation of honor and rights (from complete surrender of the head (turning into a slave) to the announcement of “disgrace” (isolation, sharp-kism, state disfavor)). The accused could be deprived of his rank, the right to sit in the Duma or an order, or deprived of the right to file a lawsuit in court. Property sanctions were widely used (Chapter 10 of the Code in 74 cases established a gradation of fines “for dishonor” depending on the social status of the victim). The highest sanction of this kind was the complete confiscation of the criminal's property. In addition, the system of sanctions included church punishments (repentance, penance, excommunication from the church, exile to a monastery, imprisonment in a solitary cell, etc.).
c) Real, liability and inheritance law.
The development of commodity-money relations, the formation of new types and forms of ownership, the quantitative growth of civil law transactions - all this prompted legislators to single out civil law relations regulated by special rules with sufficient certainty. It should be noted that in the Code, the same legal source could give several not only alternative, but also mutually exclusive decisions on the same issue. The vagueness of the definition of one or another category often created a situation in which there was a confusion of heterogeneous norms and obligations. The subjects of civil relations were both private (individual) and collective persons. In the 17th century, there was a process of gradual expansion of the legal rights of a private person due to concessions from the rights of a collective person. Freed from the strict control of tribal and family unions, an individual at the same time falls under the strong influence of other collective subjects, and above all, the state (especially in the field of property and inheritance law). For legal relations that arose on the basis of norms, regulating the sphere of property relations, the instability of the status of the subject of rights and obligations became characteristic. First of all, this was expressed in the division of several powers associated with one subject and one right. Thus, conditional land ownership gave the subject the right to own and use, but not dispose of the object (enrollment of underage sons, marriage of a daughter to a person who assumes the official duties of her father). In addition, such a “split” nature of property did not give a complete picture of who was its full-fledged subject. The transfer of responsibility for obligations from one subject (father, landowner) to another (children, peasants) also complicated the situation and the subject's awareness of his status. Subjects of civil law had to meet certain requirements (gender, age, social and property status). The age limit was determined at 15-20 years old: from the age of 15, the children of service people could be endowed with estates, from the same age, the subjects had the right to independently assume enslaving obligations. Parents retained the right to enroll their children in bondage servitude when the latter reached the age of 15. 20 years of age was required to acquire the right to take the kiss of the cross (oath) in court (ch. 14 of the Council Code). At the same time, such norms as marriageable age, the legislator left to practice and custom. The fact of reaching a certain period (be it age or prescription) was not at all considered by him as decisive for the legal state of the subject: even upon reaching adulthood, children did not completely go out of the power of their father. As for the sexual qualification, in the 17th century there was a significant increase in the legal capacity of a woman compared to the previous period. So, the widow is endowed by law with a whole range of powers, procedural and obligation rights. There were also significant changes in the sphere and procedure for the inheritance of real estate by women.
The interaction of various subjects of civil relations in one area (especially in the field of property rights) inevitably gave rise to mutual restriction of subjective rights. When dividing tribal property, the clan as a collective entity, transferring its rights to collective entities, retained the right to dispose of property, which could be alienated only with the consent of all members of the clan. The genus retained the right to redeem the sold ancestral property within the period established by law. The grant of land on the estate (the act of transferring property by the state to the landowner) did not fundamentally change the subject of ownership - it remained the state. The landowner was assigned only the right of life-long possession. But if the land fell (during the performance of additional actions) into hereditary possession and use, then land ownership in its status was already close to patrimonial, i.e. took the form of full ownership. The separation of the powers of the owner and the owner also differed in the allocation of a land plot to a separate peasant family using it from the lands of the peasant community, which owned the ownership right to this allotment.
The grant of land was a complex set of legal actions, including the issuance of a letter of commendation, the preparation of a certificate, i.e. entry in the order book of certain information about the allotted person, on which his right to land is based, a search conducted at the request of the allotted person and consisting in establishing the fact of the actual unoccupied land to be transferred, putting into possession, which consisted in a public measurement of land, carried out in the presence of local residents and outsiders. The distribution of land in the 17th century, along with the Local Order, was carried out by other bodies - the Discharge Order, the Order of the Grand Palace and other orders. In the act of awarding, subjective will gave rise to objective consequences (the appearance of a new subject and object of property), for the precise adjustment of which additional actions were required (registration, justification of a new right, ritualized actions for the actual allocation of land), with the help of which the new law "fit" into the system of already existing relations. Acquisitive prescription becomes a legal basis for the possession of the right of ownership, in particular, to land, provided that this property was in legal possession during the period established by law. If in the decrees of the beginning of the 17th century the term of the statute of limitations was formulated rather vaguely, then according to the Council Code it is fixed as 40 years. It should be noted that the category of limitation was borrowed by Russian law of the 17th century from legal sources of various nature and time of occurrence.
d) Treaty in the 17th century.
The contract remained the main way of acquiring property rights to property, and in particular, to land; it appeared in this capacity earlier than the institution of awards. The development of this form took place against the backdrop of a gradual replacement of formalized actions (participation of witnesses when concluding an agreement) with written acts (“assaults” of witnesses without their personal participation in the transaction procedure). “Bassing” gradually lost its symbolic character and turned into a simple testimony of the parties to the contract. A contractual instrument drawn up by interested parties acquired legal force only after it was certified by an official authority, which was expressed in a resolution on a press certificate. But even an approved contractual instrument created a new legal relationship only under the condition of its actual legality. Sometimes, to ensure it, additional legal actions were required that were not directly related to the content of the main obligation. So, the Cathedral Code provided for the issuance, in addition to the contractual letters, securing the right to land, letters of refusal, which were sent to the area where the lands transferred under the contract are located.
Estates by law of the 16th-17th centuries were divided into several types in accordance with the nature of the subject and the method of their acquisition: palace, state, church and privately owned, and according to the methods of acquisition, patrimonial lands were divided into tribal, served and bought.
With regard to landownership, then, as already mentioned, the Cathedral Code allowed the exchange of estates for estates and vice versa, and Article 9 of Chapter 17 allowed the sale of estates. By the end of the 17th century, the practice of exchanging estates for cash salaries (“fodder books”) was established, which in a hidden form already meant the actual purchase and sale of estates. The official sale of estates (for debts) was allowed in the 17th century, while the leasing of estates for money was already permitted by Article 12 of Chapter 16 of the Cathedral Code.
e) Law of obligations of the 17th century.
The law of obligations continued to develop along the line of gradual replacement of personal liability under contracts with property liability of the debtor. The transfer of obligations to property turned out to be connected with the issue of their transfer by inheritance. The Cathedral Code allowed for such a transition in the event of inheritance by law, stipulating that the refusal to inherit also removes debt obligations (ch. 10, art. 245). One of the most important conditions for concluding a contract was the freedom of expression of the will of the contracting parties, but this condition was often not observed either in law or in practice. The Council Code (Article 190, Chapter 10) hints at the fact that the owners of the apartments where the military is stationed in the performance of their duties become the custodians of the belongings of these military men when the latter enter the campaign. In general, the conditions of free will were often violated in practice by acts of violence by one of the parties, although the law provided the other side with the opportunity to challenge such a deal within a week (Article 251, Chapter 10). As guarantees against violence and deceit, the legislator provided for the introduction of special procedural aspects, such as the presence of witnesses at the conclusion of a transaction, its written or “serf” (notarial) form. For the entry into force of the contract, the contractual act, drawn up by the square clerk, was sealed by the assault of witnesses (up to 6 people), and then registered in the writ's hut (Article 39 of Chapter 17 of the Cathedral Code).
f) The institution of easements.
For the first time in the Cathedral Code, the institution of easements was regulated (i.e., the legal restriction of the property right of one subject in the interests of the right to use another or others). The legislator knew personal servitudes (restrictions in favor of certain persons, specially stipulated in the law), for example, the destruction of meadows by warriors in the service, the right to their entry into forest lands owned by a private person (Chapter 7). Real servitudes (restriction of property rights in the interests of an indefinite number of subjects) included: the right of the owner of a mill to flood the underlying meadow belonging to another person for production purposes, the ability to build a stove against the wall of a neighbor's house or build a house on the boundary of someone else's plot (Chapter 10). The development of easement law testified to the formation of clear ideas about the right to private property, the emergence of a large number of individual owners and the clash of their interests. Along with this, the right to property was limited either by the direct prescriptions of the law (for example, widows were forbidden to mortgage well-deserved estates, employees were forbidden to accept a pledge from foreigners), or by the establishment of a legal regime that did not guarantee “eternal” property (maintaining a period of 40 years for redemption of the tribal community). Thus, the right to private property continued to be subject to restrictions.
g) Inheritance law.
Restrictions and regulation also passed into the sphere of inheritance law. The degree of freedom in the disposal of property was different in the case of inheritance by law or by will. The will of the testator was limited by class principles: testamentary dispositions concerned only purchased estates, ancestral and served ones passed to the heirs according to the law. Family estates were inherited by sons, in their absence - by daughters. The widow could inherit only a part of the patrimony she had earned - “for a living”, (ie for life use). Family and granted estates could be inherited only by members of the clan to which the testator belonged. Purchased estates could be inherited by the widow of the testator, who received a quarter of the movable property and her own dowry.
h) Family law.
The principles of house building continued to operate here - the primacy of the husband over his wife and children, the actual community of property, etc. They were also disclosed in legislative provisions. Only a church marriage was recognized as legally significant. The law allowed the conclusion of no more than 3 marriage unions by one person during a lifetime. The marriageable age for men is 15 years, for women - 12 years. The consent of the parents was required for marriage, and for serfs - the consent of the master. The legal status of the husband determined the legal status of the wife. The law obligated the wife to follow her husband - to the settlement, in exile, when moving. In relation to children, the father retained the rights of the head: he could, when the child reached 15 years old, give him “to the people”, “in service” or to work. The father could punish the children, but not excessively. For the murder of a child, imprisonment was threatened (but not the death penalty, as for the murder of an outsider). The law knows the concept of illegitimate, persons of this category could not be adopted, and therefore, take part in the inheritance of real estate.
Divorce was allowed in a limited number of cases: when one of the spouses left for a monastery, when the spouse was accused of “dashing business”, when the wife was unable to bear children.
Thus, the Council Code includes norms relating to all branches of law, demonstrating the existence of most modern branches of law.
The value of the Council Code
The adoption of the Council Code was one of the main achievements of the reign of Alexei Mikhailovich. This grandiose code of laws for the 17th century played the role of the All-Russian legal code for a long time. Attempts to adopt a new Code were made under Peter the Great and Catherine the Second, but both times were unsuccessful. The words spoken by Prince Yakov Dolgoruky to Peter the Great are very indicative: “Sir, in another your father, in another you are more worthy of praise and thanksgiving. The main affairs of sovereigns - 3: the first is internal reprisal and your main business is justice, in this your toy is more than you did. The Code, having fixed the main features of the political system and law of Russia, turned out to be quite stable for 200 years, despite all the reforms of the 18th century. It is no coincidence that in 1830 it opened the complete collection of laws of the Russian Empire and was used to a greater extent in compiling volume 15 of the Code of Laws and the Criminal Code of 1845. The use of the norms of the Council Code in the second half of the 18th century and the first half of the 19th century, during the development of capitalism and the decomposition of feudal relations, meant that the conservative regimes of that time were looking for support in the Code to strengthen the autocratic system. As V.O. Klyuchevsky wrote, “the desire to depict the political system in a vertical section, from the church and the sovereign with his court to the Cossacks and the tavern, as the last 2 chapters speak about, breaks through in the arrangement of the subjects of legislation.” And although in technical terms, as a monument of codification, it (the Cathedral Code) did not overtake the old Code of Laws, then as a monument to legislation, the Code took a significant step forward in comparison with them: the composition of society, determine the position and mutual relations of its classes, speaks of service people and service land tenure, peasants, townspeople, serfs, archers and Cossacks, but the main attention is paid to the nobility, as the dominant military service and landowning class: almost half of all articles of the Code directly or indirectly relate to its interests and relations.
Literature
Source study of the history of the USSR, M., 1981, edited by S.V. Voronkova
Manual on the history of the Fatherland, edited by A.S. Orlov,
Cathedral Code of 1649, M., 1958, edited by I.A. Grekov
Russian legislation of the 10th-20th centuries, volume 3,
I.A.Isaev, “History of the state and law of Russia”,
V.O.Klyuchevsky,”Course of Russian History”, 3rd volume,
Workshop on the history of the USSR (the period of feudalism), A.P. Pronshtein and
A.G. Zadera, 1969
Monuments of Russian law, edited by K.A. Sofronenko, 1957,
"Legal Bulletin", 1994 number 8.
/course work/
| page | |||
Introduction |
3 | ||
| Chapter 1. | Cathedral Code of 1649 |
5 | |
| 1.1. | Prerequisites for the adoption of the Council Code | 5 | |
| 1.2. | Sources of the Cathedral Code | 8 | |
| 1.3. | Content and system of the Code | 10 | |
| 1.4. | The meaning of the code and its new ideas |
13 | |
| Chapter 2 | Completion of the legal registration of serfdom |
16 | |
| 2.1. | The significance of the Council Code of 1649 in the further development of the system of feudal legislation in Russia | 16 | |
| 2.2. | Cancellation of "lesson years" | 18 | |
| 2.3. | The position of serfs according to the Cathedral Code | 20 | |
| 2.4. | Differences between peasantry and serfdom |
22 | |
Conclusion |
23 | ||
| 25 | |||
Introduction
The Cathedral Code of 1649 was the first printed monument of Russian law, being itself a code, historically and logically it serves as a continuation of the previous codes of law - the Russian Pravda and the Code of Laws, at the same time marking an immeasurably higher level of feudal law, which corresponded to a new stage in the development of socio-economic relations , political system, legal norms, judicial system and legal proceedings of the Russian state.
As a code of law, the Code of 1649 in many respects reflected the tendencies of the further process in the development of feudal society. In the sphere of the economy, it fixed the way for the formation of a single form of feudal landed property based on the merger of its two varieties - estates and estates. In the social sphere, the Code reflected the process of consolidation of the main classes - estates, which led to a certain stability of feudal society and at the same time caused an aggravation of class contradictions and an intensification of the class struggle, which, of course, was influenced by the establishment of the state system of serfdom. No wonder since the 17th century. the era of peasant wars opens. In the political sphere, the code of 1649 reflected the initial stage of the transition from a class-representative monarchy to absolutism. In the field of court and law, the Code is associated with a certain stage of centralization of the judicial and administrative apparatus, detailed development and consolidation of the court system, unification and universality of law based on the principle of right-privilege. The code of 1649 is a qualitatively new code in the history of feudal law in Russia, which significantly advanced the development of a system of feudal legislation. At the same time, the Code is the largest written monument of the feudal era.
The Code of 1649 did not lose its significance for more than two hundred years: it opened in 1830 the “Complete Collection of Laws of the Russian Empire” and was used to a large extent in the creation of Volume XV of the Code of Laws and the Criminal Code of 1845 - the Code of Punishments. Use of the Code of 1649 in the second half of the 18th and first half of the 19th century meant that the conservative regimes of that time were looking for support in the Code to strengthen the autocratic system.
In 1649, the Cathedral Code was published twice in Church Slavonic script (Cyrillic) with a total circulation of 2400 copies.
In 1830, it was included in the Complete Collection of Laws of the Russian Empire. For the first time in the history of the publication of the monument, the Code was called "Cathedral". Editions of the 18th - early 19th centuries. it was called "The Code". The first printed editions of 1649 had no title. In the preface to the edition of the code in the Complete Collection of Laws of the Russian Empire, it was said that before that there were 13 editions of the Civil Press Code, in which there were misprints and deviations from the original text. The publication of the Complete Collection of Laws of the Russian Empire is based on the texts of the original editions, as "the most faithful and approved by their constant use in government places." In fact, the text of the 1737 edition was reproduced with all its spelling features. Moreover, the publishers of the Complete Collection of Laws of the Russian Empire undertook further editing of the spelling of the text in relation to their time. In the Complete Collection of Laws of the Russian Empire, only the text of the Code was published without a table of contents, which is available in the first printed and subsequent editions. The date of the decision to draw up the Code has been changed: June 16, 1649 is indicated instead of July 16, which is indicated in the preface to the code in the scroll and in other publications. In addition, the publishers of the Complete Collection of Laws of the Russian Empire provided in footnotes individual articles of the code with texts of acts of the 17th century. for the purpose of illustrating some provisions of the articles. In 1874, E. P. Karnovich reproduced the first volume of the Complete Collection of Laws of the Russian Empire in his edition. New in comparison with the Complete Collection of Laws of the Russian Empire was the appendix of subject indexes (with the disclosure of the content of terms), names, localities and a dictionary of ancient Russian terms.
The next edition of the Council Code of 1649 took place in 1913 in memory of the tercentenary of the Romanov dynasty. Distinguished by high printing quality, it contains important applications: photo reproduction of parts of the text from the Code scroll, signatures under it, and more.
At the beginning of the XX century. educational editions of the Code of 1649 appeared. In 1907, Moscow University issued a complete and partial edition of the text. The next issue was undertaken in 1951 by the Moscow Law Institute. In 1957, the Code became part of the "Monuments of Russian Law". The All-Union Legal Correspondence Institute prepared an edition of the text of the Code of 1649 in extracts. All of the listed educational publications reproduce the text of the Code on PSZ. Soviet publications are provided with prefaces that give a brief description of the era, the causes and conditions for the emergence of the code and an assessment of legal norms. The 1957 edition, in addition to the preface, is provided with brief article-by-article comments, which are far from equivalent in chapters and for the most part convey the content of the articles.
So, all editions of the Cathedral Code of 1649 are divided into two groups according to their purpose - those that have practical application and are used for educational purposes. Editions of the XVII - the first half of the XIX century. should be attributed to the first group, since they were used in legal practice. In 1804, the “New Monument, or Dictionary from the Cathedral Code of Tsar Alexei Mikhailovich”, prepared by M. Antonovsky, was published, which served as a guide for lawyers. Educational editions of the Code appeared at the beginning of the 20th century. and continue to the present.
Meanwhile, for several centuries, the Code has been studied - the largest monument of feudal law - both in general and on individual issues - the origin of the code, sources, composition, norms of criminal, civil, state and procedural law.
Chapter 1. Cathedral Code of 1649
1.1. Prerequisites for the adoption of the Council Code
The beginning of the 17th century is characterized by the political and economic decline of Russia. To a large extent, this was facilitated by the wars with Sweden and Poland, which ended in the defeat of Russia in 1617.
The consequences of the war, which resulted in the decline and ruin of the country's economy, required urgent measures to restore it, but the whole burden fell mainly on the Black Hundred peasants and townspeople. The government widely distributes land to the nobles, which leads to the continuous growth of serfdom. At first, given the ruin of the countryside, the government somewhat reduced direct taxes, but various kinds of extraordinary fees increased (“fifth money”, “tenth money”, “Cossack money”, “streltsy money”, etc.), most of which were introduced almost continuously sitting Zemsky Sobors.
However, the treasury remains empty and the government begins to deprive archers, gunners, city Cossacks and petty bureaucrats of their salaries, a ruinous tax on salt is introduced. Many townspeople begin to leave for "white places" (the lands of large feudal lords and monasteries exempted from state taxes), while the exploitation of the rest of the population increases.
In such a situation it was impossible to avoid major social conflicts and contradictions.
At the beginning of the reign of Alexei Mikhailovich, riots began in Moscow, Pskov, Novgorod and other cities.
On June 1, 1648, an uprising broke out in Moscow (the so-called “salt riot”). The rebels held the city in their hands for several days, ruined the houses of the boyars and merchants.
Following Moscow in the summer of 1648, the struggle of townsmen and small service people unfolded in Kozlov, Kursk, Solvychegodsk, Veliky Ustyug, Voronezh, Narym, Tomsk and other cities of the country.
It was necessary to strengthen the legislative power of the country and begin a new complete codification.
On July 16, 1648, the tsar and the Duma, together with the council of the clergy, decided to harmonize among themselves all the sources of the law in force and, supplementing them with new decrees, bring them into one code. The draft code was then instructed to draw up commissions from the boyars: kn. I.I. Odoevsky, Prince. Prozorovsky, okolnichiy Prince. F.F. Volkonsky and clerks Gavriil Leontiev and Fyodor Griboedov (the latter were the most educated people of their century). All these were not particularly influential people, who did not stand out in any way from the court and commanding environment; about the book Odoevsky, the tsar himself spoke dismissively, sharing the general opinion of Moscow; only the clerk Griboedov left a mark on the writing of the first textbook of Russian history, compiled later, probably for the royal children, where the author creates a new dynasty through Tsarina Anastasia from the son of the unprecedented “sovereign of the Prussian land” Romanov, a relative of Augustus, Caesar of Rome. The three main members of this commission were duma people: it means that this “order of Prince. Odoevsky and comrades, as he is called in the documents, can be considered a committee of the Duma. The commission selected articles from the sources indicated to it in the verdict and compiled new ones; those and others were written "in a report", presented to the sovereign with a thought for consideration.
Meanwhile, by September 1, 1648, elected representatives from all the ranks of the state, service and commercial and industrial townsmen, were convened in Moscow, elected from rural or county inhabitants, as from a special curia, were not called. From October 3, the tsar, with the clergy and duma people, listened to the draft Code drawn up by the commission, and at the same time it was read to elected people who were called to that “general council” from Moscow and from cities, “so that the entire Code would henceforth be strong and immovable ". Then the sovereign instructed the higher clergy, duma and elected people to fix the list of the Code with their own hands, after which it, with the signatures of the members of the cathedral in 1649, was printed and sent to all Moscow orders and cities to the voivodeship offices in order to “do all sorts of things according to that regulation."
The active participation of the council in the drafting and approval of the Code is beyond doubt. In particular, on October 30, 1648, a petition was submitted from the nobility and townspeople about the destruction of private boyar church settlements and arable lands around Moscow and other cities, as well as the return to the cities of taxable city property that had passed to the same boyars and monasteries inside the cities; the proposal of the elected was accepted and included in the XIX chapter. Regulations. Around the same time, "elected from all over the world" asked for the return to the treasury and the distribution to servants of church property that had been incorrectly acquired by the church after 1580, when any new acquisition was already forbidden to it; the law in this sense was introduced in Chapter XVII. Codes (Article 42). In the same way, the secular elected representatives, not finding any justification for the insults on the part of the clergy, asked to submit claims against him to state institutions; in satisfaction of this petition arose Chapter XIII. Codes (about the monastic order). But the main role of the council was to approve the entire Code. The discussion of the Code was completed in the next 1649. The original scroll of the Code, found by order of Catherine II by Miller, is now kept in Moscow. The Code is the first of the Russian laws, printed immediately after its approval.
If the immediate reason for the creation of the Council Code of 1649 was the uprising in 1648 in Moscow and the aggravation of class and class contradictions, then the underlying causes lay in the evolution of the social and political system of Russia, and the processes of consolidation of the main classes - the estates of that time - peasants, serfs, townspeople and nobles - and the beginning of the transition from a class-representative monarchy to absolutism. These processes were accompanied by a noticeable increase in legislative activity, the desire of the legislator to subject as many aspects and phenomena of public and state life to legal regulation as possible. The intensive growth in the number of decrees for the period from the Code of Laws of 1550 to the Code of 1649 is visible from the following data: 1550-1600. - 80 decrees; 1601-1610 -17; 1611-1620 - 97; 1621-1630 - 90; 1631-1640 - 98; 1641-1948 - 63 decrees. In total for 1611-1648. - 348, and for 1550-1648. - 445 decrees.
The main reason for the adoption of the Council Code was the intensification of the class struggle. The tsar and the top of the ruling class, frightened by the uprising of the townspeople, sought, in order to calm the masses, to create the appearance of easing the situation of the draft townspeople. In addition, the decision to change the legislation was influenced by the petitions of the nobility, which contained demands for the abolition of school years.
According to the very purpose of original innovations aimed at protecting or restoring the order destroyed by the Time of Troubles, they were distinguished by Moscow caution and incompleteness, they introduced new forms, new methods of action, avoiding new beginnings. The general direction of this renewal activity can be indicated by the following features: it was supposed to carry out a revision in the state system without a coup, a partial repair without restructuring the whole. First of all, it was necessary to streamline human relations, confused by the Time of Troubles, to put them in a firm framework, in precise rules.
According to the established order of Moscow legislation, new laws were issued mainly at the request of one or another Moscow order, caused by the judicial and administrative practice of each, and turned to the leadership and execution of the order, the departments of which they concerned. There, according to one article of the Sudebnik of 1550, the new law was attributed to this code. So the main code, like a tree trunk, gave branches from itself in different orders: these continuations of the Sudebnik indicated books of orders. It was necessary to unite these departmental continuations of the Sudebnik, to bring them into one whole set, in order to avoid a repetition of the case, hardly a single one, which was under Grozny: A. Adashev submitted a legislative request to the Boyar Duma from his Petition Order, which was already decided upon a request from The government order, and the thought, as if forgetting itself the recent expression of its will, ordered the treasurers to write down in their register book the law that they had already written down. It also happened that a different order sought, according to others, a law written in his own register book. This actual need for codification, reinforced by abuses of orders, can be considered the main impulse that caused the new code and even partly determined its very nature. You can notice or assume other conditions that influenced the nature of the new code.
The extraordinary situation in which the state found itself after the Time of Troubles inevitably aroused new needs and set unusual tasks for the government. These state needs, rather than the new political concepts brought out of the Troubles, not only strengthened the movement of legislation, but also gave it a new direction, despite all the efforts of the new dynasty to remain faithful to the old days. Until the 17th century Moscow legislation was of a casual nature, providing answers to certain current questions posed by government practice, without touching the very foundations of the state order. The replacement of the law in this respect was the old custom, familiar to all and recognized by all. But as soon as this custom was shaken, as soon as the state order began to deviate from the habitual track of tradition, the need arose to replace the custom with an exact law. That is why legislation acquires a more organic character, is not limited to the development of particular, specific cases of state administration, and comes closer and closer to the very foundations of the state order, trying, albeit unsuccessfully, to understand and express its beginnings.
1.2. Sources of the Cathedral Code
The code was drawn up hastily, somehow retained the traces of this haste. Without plunging into the study of all the ordered material, the commission limited itself to the main sources indicated to it in the verdict on July 16.
The sources of the Code were partly indicated by the legislator when appointing the editorial commission, partly taken by the editors themselves. These sources were:
1) The Royal Code of Laws and ukazny books of orders; the first is one of the sources X ch. Codes - "on the court", which, in addition, in all likelihood, drew an order from these books. These books served as sources each for the corresponding chapter of the Code. These indicated books are the most abundant source of the Code. A number of chapters of the collection were compiled from these books with verbatim or modified excerpts: for example, two chapters on estates and estates were compiled from the book of the Local Order, the chapter “On the Slave Court” - according to the book of the order of the Slave Court, the chapter “On Robbers and Tatin’s Affairs” ... according to the book of the Rogue Order.
2) The Greco-Roman sources of the Code are taken from the Pilots, namely from Eclogue, Prochiron, short stories by Justinian and the rules of Vasily V.; of these, Prochiron was the most abundant source (for ch. Oud. X, XVII, and XXII); short stories served as a source of 1 ch. st. ("about blasphemers"). In general, borrowings from helmsmen are few and fragmentary and sometimes contradict the rulings taken from Russian sources on the same subject and included in the same Code (cf. St. XIV ch., art. 10 ch. XI, art. 27). Many features of the cruelty of criminal law penetrated into the Code from the helmsmen.
3) The most important source of the Code was the Lithuanian Statute of the 3rd edition (1588). Borrowings from the statute are canceled (but not all) on the original scroll of the Code. The path for borrowing was facilitated by the fact that already earlier (as already mentioned) the clerks of the order took and translated from the statute some suitable articles. The method of borrowing is varied: sometimes the content of the statute is borrowed literally; sometimes only the system and order of objects is taken; sometimes only the subject of the law is borrowed, and the decision is given one's own; for the most part, the Code splits one article into several articles. Borrowings from the statute sometimes introduce errors into the Code against the system and even the reasonableness of the laws.
But in general, the statute, as a monument also of Russian law, very similar to Russkaya Pravda, can be recognized as almost a local source of the Code. Despite so many borrowings from foreign sources. The code is not a compilation of foreign law, but a completely national code, reworking foreign material in the spirit of old Moscow law, in which it is completely different from the translated laws of the 17th century. In the surviving original scroll of the Code, we find repeated references to this source. The compilers of the Code, using this code, followed it, especially when compiling the first chapters, in the arrangement of objects, even in the order of articles, in the selection of incidents and relations that required legislative definition, in posing legal questions, but they always looked for answers in their native law, took the formulas of the very norms, legal provisions, but only common to either law or indifferent, eliminating everything unnecessary or unrelated to Moscow law and judicial order, generally reworked everything that was borrowed. In this way. The Statute served not so much as a legal source of the Code, but as a codification manual for its compilers, gave them a ready-made program.
4) As for the new articles in the Code, there are probably few of them; one must think that the commission (before the council) itself did not draw up new legalizations (except for borrowings).
The commission was entrusted with a twofold task: firstly, to collect, disassemble and rework into a coherent set of laws in force, at different times, unagreed, scattered across departments, and then to normalize cases not provided for by these laws. The second task was especially difficult. The Commission could not confine itself to its own legal foresight and its own legal understanding to establish such cases and find rules for their determination. It was necessary to know social needs and relations, to study the legal mind of the people, as well as the practice of judicial and administrative institutions; At least that's how we would look at such a task. In the first case, the elected commissions could help with their instructions; for the second, she needed to review the office work of the then offices in order to find precedents, “exemplary cases”, as they said then, in order to see how regional rulers, central orders, the sovereign himself with the Boyar Duma resolved issues that were not provided for by law. There was a lot of work to be done that would take years and years to come. However, things did not come to such a dreamy enterprise: they decided to draw up the Code at an accelerated pace, according to a simplified program.
The code is divided into 25 chapters containing 967 articles. Already by October 1648, that is, in two and a half months, the first 12 chapters were prepared for the report, almost half of the entire code; and the sovereign began to listen to them from October 3 with a thought. The remaining 13 chapters were compiled, listened to and approved in the Duma by the end of January 1649, when the activities of the commission and the entire council ended and the Code was completed in manuscript. This means that this rather extensive code was compiled in just six months or so. In order to explain such speed of legislative work, it must be remembered that the Code was drawn up among the disturbing news of the riots that broke out after the June Moscow riot in Solvychegodsk, Kozlov, Talitsk, Ustyug and other cities, and ended in January 1649 under the influence of rumors about the upcoming new uprising in the capital. They were in a hurry to put an end to the matter, so that the councilors would hasten to spread stories about the new course of the Moscow government and about the Code, which promised everyone a “smooth”, just reprisal, throughout their cities.
The Code begins with a preface, which states that it was drawn up "according to the sovereign's decree by the general council, so that the Muscovite state of all ranks to people, from higher to lower rank, the court and reprisal would be equal in all matters to the zemstvo great royal cause." On October 3, 1649, the tsar, together with the Duma and the clergy, listened to the Code, it was "read" to the elected people. From the list of the Code was "a list in a book, word for word, and from that book this book was printed."
So, the Cathedral Code consisted of 25 chapters, which included 967 articles. In this large-scale monument of feudal law, the legal norms that were in force earlier were systematized at a higher level of legal technology. In addition, there were new legal norms, which appeared mainly under the pressure of the nobility and black tax settlements. For convenience, the chapters are preceded by a detailed table of contents indicating the contents of the chapters and articles. The system is rather disorderly, assimilated by the Code, in the 1st part of the code it copies the system of the statute. The first chapter of the Code (“on blasphemers and church rebels”) considers cases of crimes against the church (9 articles), in which “blasphemy” against God and against the Virgin is punishable by death with imprisonment - disorderly behavior in the church. Chapter two ("on the sovereign's honor and how to protect his sovereign's health", Article 22) speaks of crimes against the king and his authorities, calling them "treason." It is adjoined by chapter three (“on the sovereign’s court, so that there is no outrage and abuse from anyone at the sovereign’s court”, 9 articles) with severe punishments for carrying weapons in the courtyard, and so on.
Chapter four ("about subscribing and which seals are forged", 4 articles) speaks of forgery of documents and seals, chapter five (2 articles) - "about money masters who will learn how to make thieves' money." Chapter six (6 articles) reports "on travel letters to and (s) states." The following chapters are closely connected with them in content: the seventh (“on the service of all military men of the Moscow state”, 32 articles) and the eighth (“on the redemption of prisoners”, 7 articles).
In the ninth chapter it is said "about the passages and about the transports and about the bridges" (20 articles). Actually, from the tenth chapter ("on the court", 277 articles), the most important decisions of the Code begin. This article is adjoined by chapter 11 ("the court of the peasants", 34 articles), chapter 12 ("on the court of the patriarchal clerks, and all sorts of people, and peasants", 3 articles), chapter 13 ("on the monastic order", 7 articles ), chapter 14 ("on the kissing of the cross", 10 articles), chapter 15 "on accomplished deeds", 5 articles).
Chapter 16 ("on estates", 69 articles) is united by a common theme with chapter 17 "on estates" (55 articles). Chapter 18 speaks "of printing duties" (71 articles). Chapter 19 is called "about townspeople" (40 articles). Chapter 20 concludes the "trial of the serf" (119 articles), chapter 21 says "about robbery and tatin affairs (104 articles), chapter 22 contains" a decree for which faults to whom the death penalty should be imposed and for which faults one should not execute death, repair punishment" (26 articles). The last chapters -23 ("on archers", 3 articles), 24 ("decree on chieftains and Cossacks", 3 articles), 25 ("decree on taverns", 21 article) - are very brief .
All chapters of the Code can be divided into five groups: 1) I-X constitute the then state law, here the worship of God (I), the personality of the sovereign (II) and the honor of the sovereign's court (III) are protected, forgery of state acts (IV), coins and precious things (V), which is included here because the statute considered the village of coins a crime against majesty; here is the passport charter (VI), the charter of military service and, together with it, the special military criminal code (VII), the laws on the ransom of prisoners (VIII) and, finally, on the lines and means of communication (IX).
2) Chap. X-XV contain the charter of the judiciary and legal proceedings; here (in chapter X) the obligatory right is also stated.
3) Chap. ХVI-ХХ - real right: patrimonial, local, tax (Chapter XIX) and the right to serfs (XX).
4) Chap. XXI-XXII constitute the criminal code, although in all
other parts of the Code interferes with criminal law.
5) Chap. XXIII-XXV constitute an additional part.
The adoption of the Council Code of 1649 is a significant step forward compared to previous legislation. This law regulated not separate groups of social relations, but all aspects of the socio-political life of that time. In this regard, the Council Code of 1649 reflected the legal norms of various branches of law. The system of presentation of these norms, however, was not clear enough. The norms of different branches of law were often combined in the same chapter.
The Cathedral Code of 1649 differs in many respects from the legislative monuments that preceded it. Sudebnik XV-XVI centuries. were a set of decisions predominantly of a procedural, procedural nature.
The Code of 1469 significantly surpasses the previous monuments of Russian law, primarily in its content, the breadth of coverage of various aspects of the reality of that time - the economy, forms of land ownership, the class-estate system, the position of dependent and independent sections of the population, the state-political system, legal proceedings, material, procedural and criminal law.
The second difference is structural. The Code gives a fairly definite systematic of the rules of law on subjects that are arranged in such a way that they can easily be combined according to the types of law - the state military, the legal status of certain categories of the population, local and patrimonial, legal proceedings, civil offenses and criminal offenses.
The third difference, as a direct consequence of the first two, is the immeasurably large volume of the Code in comparison with other monuments. Finally, the Code plays a special role in the development of Russian law in general. Both Russkaya Pravda and the judiciary ceased to exist, saying that the Code, in comparison with its other sources (for example, ukazannye books of orders), had a rather modest influence, while the Code, as the current code, although supplemented by many new regulations, lasted over two hundred years.
1.4. The meaning of the Code and its new ideas
According to the idea that can be assumed in the basis of the Code, it was supposed to be the last word of Moscow law, a complete set of everything that had accumulated in Moscow offices by the middle of the 17th century. legislative reserve. This idea comes through in the Code, but it is not implemented very well. In technical terms, as a monument to codification, it has not surpassed the old coders. In the arrangement of the objects of legislation, a desire is made to depict the state system in a vertical section, descending from above, from the Church and the sovereign with his court to the Cossacks and the tavern, as the last two chapters speak of. It is possible with considerable effort to reduce the chapters of the Code into departments of state law, the judiciary and legal proceedings, real and criminal law. But such groupings remained for the codifiers only impulses towards the system. The sources are exhausted incompletely and disorderly; articles taken from different sources are not always agreed with each other and sometimes they fell into the wrong places, rather heaped up than put together.
If the Code was in force for almost two centuries before the code of laws of 1833, then this does not speak of its merits, but only of how long we can do without a satisfactory law. But as a monument of legislation, the Code has taken a significant step forward in comparison with the Code of Laws. This is no longer a simple practical guide for a judge and administrator, outlining the ways and procedure for restoring a violated right, and not the right itself. True, even in the Code most of the space is devoted to formal law: Chapter X on the court is the most extensive, in terms of the number of articles it makes up almost a third of the entire Code. It allowed important but understandable gaps in substantive law as well. It does not contain basic laws, which at that time in Moscow had no idea, being content with the will of the sovereign and the pressure of circumstances; there is also no systematic presentation of family law, which is closely related to ordinary and church law: they did not dare to touch either the custom, which was too sleepy and clumsy, or the clergy, which was too ticklish and jealous of their spiritual and departmental monopolies.
But still, the Code covers the field of legislation much more widely than the judges. It is already trying to penetrate the composition of society, to determine the position and mutual relations of its various classes, it speaks of service people and service land tenure, of peasants, townspeople, serfs, archers and Cossacks. Of course, here the main attention is paid to the nobility, as the dominant military service and landowning class: almost half of all articles of the Code directly or indirectly relate to its interests and relations. Here, as in other parts of it. The Code tries to stay on the ground of reality.
With its general protective character, the Code could not refrain from two transformative aspirations, indicating in which direction the further construction of society would go or was already going. One of these aspirations in the verdict on July 16 was directly set as the task of the codification commission: it was instructed to draw up a draft of such a Code so that “every rank of people, from high to low rank, the court and reprisal would be equal in all matters.”
This is not the equality of all before the law, excluding the difference in rights: here we mean the equality of court and reprisals for everyone, without privileged jurisdiction, without departmental differences and class privileges and exemptions, which existed in the then Moscow judicial system, we mean the court is the same, impartial and for the boyar, and for the common man, with the same jurisdiction and procedure, although not with the same punishability; to judge everyone, even visiting foreigners, with the same court really, “not ashamed of the face of the strong, and deliver the offender (offended) from the hand of the unrighteous,” chapter X prescribes, where an attempt is made to draw such an equal judgment and reprisal for all. The idea of such a court proceeded from the general rule adopted by the Code to eliminate any preferential status and attitude, combined with damage to the state, especially public interest.
Another aspiration, proceeding from the same source, was carried out in the chapters on estates and expressed a new view on the relation of a free person to the state. In order to comprehend this striving, one must somewhat renounce modern concepts of personal freedom. Personal freedom, independence from another person, is not only an inalienable right protected by law, but also a duty required by rights. No one wants, and indeed cannot become a formal slave under the contract, because no court will give protection to such an agreement. But let's not forget that the society of the XVII century. - a slave-owning society, in which serfdom operated, expressed in various types of servility, and it was in the era of the Code that a new type of dependence, serf peasant bondage, was ready to be added to these types. Then the legal structure of personal freedom included the right of a free person to give his freedom temporarily or forever to another person without the right to stop this dependence at his own will. Various types of ancient Russian servility were based on this right. But before the Code, there was personal dependence without serfdom, created by personal mortgage. To pledge for someone meant: in securing a loan or in exchange for some other service, for example, for tax relief or judicial protection, to give one’s personality and labor at the disposal of another, but retaining the right to terminate this dependence at one’s own discretion, of course, clearing the mortgage obligations assumed. Such dependent people were called in specific centuries mortgages, and in Moscow time mortgagers.
A loan for work was for a poor person in ancient Russia the most profitable way to place his labor. But, differing from servitude, mortgaging began to acquire for itself a servile privilege, freedom from state duties, which was an abuse, for which the law now took up arms against the pawnbrokers and their receivers: turning pawnbrokers into a tax, the Code (Chapter XIX, Article 13) threatened to them for a repeated pledge with “cruel punishment”, a whip and exile to Siberia, to Lena, and to receivers - “great disgrace” and confiscation of lands where the pawnbrokers will continue to live. Meanwhile, for many poor people, servility and even more beggarly were a way out of a difficult economic situation.
With the then cheapness of personal freedom and with the general lack of rights, benefits and patronage, a “spade”, a strong receiver were valuable goods; therefore, the abolition of mortgaging struck the pawnbrokers with a heavy blow, so that in 1649 they started a new rebellion in Moscow, blaspheming the tsar with all sorts of incomparable abuse. We will understand their mood without sharing it. A free person, service or tax, acting as a serf or pawnbroker, was lost to the state. The Code, restricting or forbidding such transitions, expressed the general norm, by virtue of which a free person, obliged by a state tax or service, could not renounce his freedom, arbitrarily resigning from his obligations to the state that lay on a free person; a person must belong to and serve only the state and cannot be anyone's private property: "Baptized people are not to be sold to anyone" (Chapter XX, Art. 97).
Personal freedom became mandatory and was supported by the whip. But the right, the use of which becomes obligatory, turns into a duty. The state is a precious asset - the human person, and all moral and civil being stands for this constraint on the will by the state, for this duty, which is more precious than any right. But in Russian society of the XVII century. neither personal consciousness nor social mores supported this universal human obligation.
Yes, and the state, forbidding a person from private dependence, did not protect a person or a citizen in him, but protected for himself his soldier or payer. The Code did not abolish personal bondage in the name of freedom, but turned personal freedom into bondage in the name of the state interest. But there is a side to the strict prohibition of pawning where we meet pawnbrokers in the same order of concept. This measure was a partial expression of the general goal set in the Code, to take control of the social grouping, seating people in tightly locked class cells, to fetter people's labor, compressing it into the narrow framework of state requirements, enslaving private interests to them. The pawnbrokers had only earlier felt the burden that lay on the other classes as well. It was a common people's sacrifice, forced by the position of the state, as we will see, studying the structure of government and estates after the Time of Troubles.
Chapter 2. Completion of the legal registration of serfdom
2.1. The significance of the Council Code of 1649 in the further development of the system of feudal legislation in Russia
In a feudal society, law in its development passes through three stages: a relatively unified law, particular and unified. Each of these phases corresponds to a certain level of development of production relations and political superstructure. The stage of unified law arises in the process of the formation of a single state. In Russia, it is marked by the emergence of unified codes of national law - Sudebnikov 497, 1550. and - as the tops of the process - the Code of 1649.
The Code arose at a time of significant legislative activity of the tsarist government, coming in the second - fifth decades of the 17th century. The Code of 1649 is a qualitatively new code in the history of feudal law in Russia, the significance of which lies primarily in the further development of the system of feudal legislation aimed at completing the legalization of serfdom. It presents the law that expresses the crown interests of the ruling class and regulates many processes in the socio-economic, political and legal spheres of feudal Russia throughout the country. Thus, the remnants of particularism characteristic of the previous period were largely overcome. The prevailing form of law was the law, which to a significant extent pressed and subjugated customary law.
Another aspect of the universality of the law is expressed in the words of the preface to the Code: “. . . to. . . court and reprisal were equal in all matters to everyone, ”by which one should understand universal submission to the state court and law. The law was not the same for all classes. The right-privilege for the feudal class remains the dominant principle of the Code.
It was impossible to carry out the principles of territorial estate-based community of law in the period before the Code in the conditions of limited scope of written laws, expressed mainly in the form of numerous decrees emanating from different instances. The introduction of a unified and printed code of laws not only met the increased tasks of feudal statehood, but also made it possible to unify and orderly the feudal judicial system and legal proceedings throughout the country. The foregoing applied to all spheres of public life in feudal Russia, from land ownership and the legal status of classes to political and legal superstructures.
The Cathedral Code contributed to the expansion and strengthening of the social base of the feudal system in Russia. To the extent that the Code opened the way for estates to estates, it looked ahead; to the extent that it limited this process and guaranteed the legal inviolability of the estate, the Code reflected the current needs dictated by the domestic and foreign political situation in the first half of the 17th century. In general, the Code of 1649 served as a major milestone in the development of feudal patrimonial and estate law in the direction of strengthening feudal rights to land and creating a single right of feudal land ownership.
The Code legitimized a whole system of documentary grounds for serfdom and the investigation of fugitive peasants. At the same time, the recognition of the economic connection between feudal possession and peasant economy found expression in the protection by law of the property and life of the peasant from the arbitrariness of the feudal lord.
In civil cases relating to personal property rights, and in criminal cases, peasants remained the subject of law. A peasant could participate in the process as a witness, be a participant in a general search. Thus, the Code of 1049, having completed the legal registration of serfdom, at the same time sought to close the peasantry within the boundaries of estates, forbade the transition to other estates, legally protecting to some extent from the willfulness of the feudal lords. This ensured for that time a stable balance and functioning of the entire feudal-serf system.
The Code of 1649 includes an extensive code of laws of servile law, which constitutes the most important part of the law of feudal Russia. The code reflected the completion of the process of the withering away of the former categories of servility and their displacement by bonded servility. And this latter, being also doomed to die out in the relatively near future, in the 17th century. continued to be a means of mobilizing the free elements of society by the feudal system. At the same time, the code of servile law was created at a time when serfdom had already taken a noticeable step towards merging with the serf peasantry. Nevertheless, the line of the Code on the consolidation of the servile estate, on strengthening its class framework in the era of the greatest consolidation of the main classes-estates of feudal society, remained dominant. This determined the isolated position of bonded serfs, who continued to play an important role in the social structure of society.
The code secured the rights and privileges of the ruling class of feudal lords under the auspices of the nobility. The interests of the nobility played an important role in the formation of many laws regarding land ownership, the peasantry, and legal proceedings. Even V. O. Klyuchevsky noted that in the Code “the main attention is paid to the nobility, as to the dominant military service and landowning class: almost half of all articles of the Code directly or indirectly relate to its interests and relations. Here, as in its other parts, the Code tries to stay on the ground of reality. The Code of 1649 for the first time in the history of Russian legislation gave the most complete expression of the status of the tsar's power in the conditions of the transition from a class-representative monarchy to absolutism. The code reveals the composition of the state apparatus of the central (tsar, Boyar Duma, orders) and local (voivodship department, labial elders and their apparatus). The norms governing the activities of central institutions are presented mainly in terms of legal proceedings.
However, at the same time, the Code shows that the feudal state, although the main, decisive, but not the only element of the political organization of feudal society. An important role is played by the church, which is assigned a separate chapter, put in the first place. In the interests of strengthening royal power, the Code undermined the economic power of the church, depriving it of the legal opportunity to increase land holdings, to have settlements and trading and fishing establishments in cities. The creation of the Monastic order limited the privileges of the church in the field of administration and court. This reform was not consistent. In the hands of the patriarch there remained land holdings and his own court, which, however, was subordinate to the tsar and the Boyar Duma. At the same time, the Code took under the protection of the law the dogma of the church and the order of service that had developed in it, seeing in their weakening the fall in the authority of the church and its influence on the masses.
2.2. Cancellation of "lesson years"
The government's concession to the nobility in peasant affairs, which finally took shape in the Council Code of 1649, was the abolition of lesson years, or the statute of limitations for claims against fugitive peasants. From the beginning of the XVI century. a five-year term was in effect, which was replaced by a fifteen-year term according to the law of 1607. But after the Time of Troubles they returned to the former five-year period. With such a short period, the fugitive easily disappeared for the owner, who did not have time to visit the fugitive in order to bring a claim about him. In 1641, the nobles asked the tsar to “set aside the fixed summers,” but instead, the limitation period for runaway peasants was only extended to ten years, for exported peasants to fifteen. In 1645, in response to the repeated petition of the nobles, the government confirmed the decree of 1641. Finally, in 1646, undertaking a new general census, it heeded the persistent petitions of the nobility and in the scribe's order of this year promised that "they will be rewritten as peasants and beavers and yards , and according to those census books, peasants and bobyls and their children, and brothers, and nephews will be strong even without school years. This promise was fulfilled by the government in the Code of 1649, which legalized the return of fugitive peasants according to the scribe books of the 1620s and according to the census of 1646-1647. "without lesson years".
The abolition of the limitation period in itself did not change the legal nature of the peasant fortress as a civil obligation, the violation of which was prosecuted on the private initiative of the victim; it only added to the peasantry one more thing in common with servility, claims for which were not subject to limitation. But the scribe's order, canceling the limitation period, while
he strengthened not individuals, but entire yards, complex family structures; the scribe's postscript to the state at the place of residence, which seized the peasant householders with their unseparated descending and lateral, at the same time strengthened them for the owner, who now received the right to search and, in case of escape, indefinitely, like serfs, and turned the peasant's personal fortress into a hereditary . It can be thought, however, that such an expansion of the peasant fortress was only a consolidation of a factual situation that had long been established: in the mass of the peasantry, the son, with the normal inheritance of his father's court and inventory, did not conclude a new contract with the owner; only when an unmarried daughter remained the heiress did the owner enter into a special agreement with her fiancé, who entered her house "to her father to the whole belly." The order of 1646 was also reflected in the peasant contracts "since that time, records extending the obligations of the contracting peasants to their families have become more frequent, and one freed bachelor, dressing up on the land of the Kirillov Monastery with a loan, extends the obligations assumed to his future wife and children, whom “God will give him after his marriage.” The heredity of a peasant fortress raised the question of the attitude of the state towards the owner of the serfs.
Ensuring the interests of the treasury, legislation back in the 16th century. attached state-owned peasants to the tax on the site or at the place of residence and hampered the movement of landowning peasants. From the beginning of the 17th century a similar estate strengthening befell other classes. That was a general sorting out of society according to the kinds of state burdens. In relation to the possessing peasants, this sorting was complicated by the fact that between the treasury, in whose interests it was carried out, and the peasant, there was a landowner who had his own interests. The law did not interfere in private transactions of one with another, as long as they did not violate the public interest: this was how serfdom was allowed in loan records. But those were private deals with individual peasant householders. Now the entire peasant population of their lands and with non-separated members of peasant families was strengthened indefinitely behind the landowners. Personal peasant fortress under contract, according to the loan record, turned into a hereditary strengthening according to law, according to a scribe or census book; from a private civic obligation, a new state service was born for the peasants. Hitherto, legislation has built its own norms by collecting and summarizing the relations that arose from transactions between peasants and landowners. By the scribe's order of 1646, it itself gave the norm from which new economic and legal relations were to arise. The Code of 1649 was to direct and provide for them.
2.3. The position of serfs according to the Cathedral Code
The Cathedral Code treated the serfs rather superficially: Article 3 of Chapter XI states that “according to the current sovereign’s decree, there were no sovereign commandments that no one should take peasants (we are talking about fugitives) for themselves,” while the decree of 1641 clearly says: "Do not accept other people's peasants and beans." Almost the entire XI chapter of the Code deals only with peasant escapes, without clarifying either the essence of the peasant fortress or the limits of the master's power, and is recruited with some additions from previous legalizations, without exhausting, however, its sources. When drawing up a scheme of a peasant fortress according to the casual articles of the Code, these legalizations help fill in the omissions of the faulty code. The law of 1641 distinguishes three claim parts in the composition of the peasant fortress: peasantry, peasant bellies and peasant property.
Since peasant ownership means the right of the owner to work as a serf, and peasant bellies are his agricultural implements with all movables, “farm and yard utensils”, then under peasantry it remains to understand the very belonging of the peasant to the owner, i.e., the right of the latter to the personality of the former, regardless of the economic situation and the use that the owner made of peasant labor. This right was strengthened primarily by scribes and census books, as well as “other fortresses”, where the peasant or his father was written for the owner.
The harmless use of these three components of a peasant fortress depended on the degree of precision and foresight with which the law determined the conditions for a peasant fortification. According to the Code, the serf peasant was hereditarily and hereditarily strong face, physical or legal, for which it was recorded by a scribe or a book similar to it; he was strong for that face on the ground according to the plot in that estate, estate or estate where the census found him; finally, he was strong in his fortune, the peasant tax, which he carried on his plot of land. None of these conditions is carried out consistently in the Code. It forbade the transfer of local peasants to patrimonial lands, because this ruined state property, which was the estates, forbade the owners to take service bondage to their peasants and their children and release local peasants to freedom, because both acts led the peasants out of a difficult state, depriving the treasury of tax payers; but along with this, it allowed the dismissal of patrimonial peasants (Chapter XI, Article 30; Chapter XX, Article 113; Chapter XV, Article 3).
In addition, the Code tacitly allowed or directly approved the transactions made at that time between landowners, which tore the peasants away from their plots, allowed alienation without land and, moreover, with the removal of their stomachs, even ordered the transfer of peasants from one owner to another without any reason from the peasant side, by the fault of the gentlemen themselves. A nobleman who sold his patrimony after the census with fugitive peasants who were subject to return, was obliged to give instead to the buyer from his other patrimony “the same peasants”, innocent of the swindle of his master, or from the landowner who killed another peasant without intent, they took it by court “the best peasant with a family” and handed over to the owner of the murdered (Ch. XI, Art. 7; Chapter XXI, Art. 71).
The law protected only the interests of the treasury or the landowner; the power of the landowner met a legitimate barrier only when it collided with state interests. The personal rights of the peasant were not taken into account; his personality disappeared into the petty casuistry of master relations; it, as an economic detail, the court threw on its scales to restore the disturbed balance of noble interests. For this, peasant families were even torn apart: a runaway serf who married a widower, peasant or serf of a foreign master was given to her owner with her husband, but his children from his first wife remained with the former owner. Such an anti-church fragmentation of the family was allowed by law to be carried out indifferently over the peasant as well as over the serf (Chapter XI, Article 13).
One of the most serious oversights in its consequences of the Code was that it did not precisely define the legal essence of the peasant inventory: neither the compilers of the code, nor the conciliar elected representatives who supplemented it, among whom there were no landowning peasants, did not consider it necessary to clearly establish how much "bellies" the peasant belong to him and to the extent of his owner. The unintentional murderer of a foreign peasant, a free man, paid the "bondage debts" of the murdered, confirmed by borrowed letters (Chapter XXI, Art. 71). This means that the peasant seemed to be considered capable of entering into obligations on his property. But a peasant who married a runaway peasant woman was handed over, together with his wife, to her former owner without the bellies, which were kept by the owner of her husband (Chapter XI, Art. 12). It turns out that the peasant's inventory was only his household property, as a peasant, and not his legal property, as a legally capable person, and the peasant lost it even when he married a fugitive with the knowledge and even at the will of his owner.
2.4. Differences between peasantry and serfdom
Legislative recognition of the tax liability of landowners for their peasants was the final step in the legal construction of serfdom of peasants. On this norm, the interests of the treasury and landowners, which differed significantly, reconciled. Private land ownership became the police and financial agents of the state treasury scattered throughout the state, from its rival turned into its employee. Reconciliation could take place only to the detriment of the interests of the peasantry. In that first formation of a peasant fortress, which was fixed by the Code of 1649, it has not yet been compared with the serfs, according to the norms of which it was built. Law and practice carried out even though there were pale lines separating them:
1) the serf remained a state taxpayer, retaining a certain appearance of a civilian personality;
2) as such, the owner was obliged to equip him with a land allotment and agricultural implements;
3) he could not be deprived of land by taking into the yard, but by the estate and by release;
3) his bellies, although they were only in his servitude, could not be taken away from him by "violence";
4) he could complain about the master's requisitions "through force and robbery" and, in court, return to himself a violent bust.
The badly drawn up law helped to erase these separate features and drove the serfs in the direction of serfdom. We will see this when we study serfdom, the economic consequences of serfdom; hitherto we have studied its origin and composition. Now let us only note that with the establishment of this right, the Russian state embarked on a path that, under the cover of external order and even prosperity, led it to the breakdown of the people's forces, accompanied by a general decline in people's life, and from time to time, and profound upheavals.
Conclusion
The further strengthening of feudal-serf relations, the strengthening of the personal dependence of the peasantry on the feudal lords became the defining trend in the socio-economic development of Russia in the 17th century. The Council Code of 1649 legislated the system of serfdom. It assigned the privately owned peasants to the landlords, boyars, and monasteries, and strengthened the local dependence of the privately owned peasants on the landlords and on the state. According to the same Council Code, the heredity of serfdom and the right of the landowner to dispose of the property of a serf were established. Granting broad serf rights to landowners, the government at the same time made them responsible for the performance of state duties by the peasants.
According to the new law, an indefinite search and return of fugitive peasants was established in the country. Peasants did not have the right to independently act in court with a claim. This right belonged to the landowner. With his permission, marriages were concluded, and family divorces were registered. Harboring fugitive peasants was punished in the form of prison, fines, etc. The landowner, who had an estate and an estate, was forbidden to transfer peasants from an estate to an estate (only landed peasants bore the tax in favor of the state). The landowner was obliged to pay for the runaway peasants the tax in favor of the state. It was forbidden to let the peasants go free or turn them into slaves.
The exploitation of not only the privately owned peasants, but also the black-tailed peasants, intensified. They endured more and more oppression from the state, both because of numerous taxes and taxes, and because of the direct administrative interference of state bodies in the affairs of the "black" volost.
The development of serfdom was also reflected in the fate of the serfs. Serfs included household servants, artisans serving the lordly family, clerks and servants for parcels, grooms, tailors, watchmen, shoemakers and others. The labor of serfs was used in agriculture; backyard and business people cultivated the master's arable land, receiving a month from the master. The serfs did not have their own household, they were completely supported by the owner. Then some nobles began to transfer their serfs to the ground, endowed them with inventory. Tax reform 1673-1681 equalized the position of serfs and serfs, and by the end of the century there was a merger of serfdom with the peasantry.
By establishing a nationwide system of serfdom, the government sought to consolidate the privileges of the ruling class, to mobilize all sections of society to strengthen the state and boost its economy. For some time, serfdom could ensure the rise of the country's productive forces. But progress came at the cost of the most cruel forms of exploitation of the masses.
The Cathedral Code of 1649 was the first printed monument of Russian law. This circumstance was of great importance in the history of Russian legislation, since before the Code, the usual form of informing the population about laws was the announcement of the most important of them at market squares and in churches. The only interpreters of the laws were the clerks who used their knowledge for selfish purposes. To what extent the appearance of the printed Code was a major event, is also shown by the fact that in the 17th and early 18th centuries. The codex was translated several times into foreign languages.
As a code of law, the Code in many respects reflected the progressive development of feudal society. In the sphere of the economy, it fixed the way for the formation of a single form of feudal landed property based on the merger of its two varieties - estates and estates. In the social sphere, the Code reflected the process of consolidation of the main classes-estates, which, on the one hand, led to a certain stability of feudal society, and on the other hand, prepared the conditions for exacerbating class contradictions and intensifying the class struggle, which, of course, was influenced by the establishment of the state system of serfdom. rights.
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