The Cathedral Code, created by Tsar Alexei Mikhailovich in 1649, is the first set of laws in Russia in the New Age.
Written in those days when Russia stood, so to speak, with one foot in the Middle Ages, this code existed for almost 200 years - until 1832.
Why, under the reformer tsar, the father of Peter I (both physical and psychological father), was it necessary to create the Code? Was there really no legislation in the country?
Reasons for the creation of the Code
Of course, there was legislation in the then Russia. However, over the period from 1550, when Ivan the Terrible's Sudebnik was written, to 1648, the Romanovs created 445 laws that bore little resemblance to a single system.
- Some laws were repeated, others directly contradicted each other.
- New laws were usually created at the request of a certain order (department) and recorded in the corresponding order book. Thus, there was no coordination and communication between the decrees, and the existence of new entries in the books was often known only to the heads of the orders.
- Causal law, characteristic of ancient Russian legislation, was outdated by the 17th century.
- The adoption of new legislation was prompted by popular demonstrations, especially the Salt Riot, the participants of which demanded that the Zemsky Sobor be convened and a new code be developed.
- Harmonious legislation was also required following the results of the Time of Troubles, during which chaos reigned in the country.
What was the Regulation?
The new legislative code was a new type of document for Russia. He was the first to formalize laws into a system consisting of several branches of law. To carry out such a serious work, the Zemsky Sobor worked with sources for a long time. These were the former royal Sudebniks - 1497 and 1550, order books, petitions, as well as foreign samples - the Lithuanian Statute of 1588, the Byzantine Pilot Book.
The basics of legal technique were taken from foreign codes - the composition of phrases, formulations, division into headings. The code may seem unusual in many ways. Thus, the section on criminal law prescribes not to punish the murder of a thief caught in the act. Horse theft is presented as a separate type of crime, and not a variety of ordinary theft.
As punishments, the death penalty of various types was often provided - hanging, quartering, burning at the stake, pouring red-hot metal into the throat, etc., as well as corporal punishment - cutting off the nose and ears, branding, beating with a whip. Many articles traced the influence of Domostroy: for example, a son or daughter who killed a father or mother was sentenced to death, and if parents kill their child, they were sentenced to a year in prison and subsequent repentance in the church.
What led to the creation of the Code?
As already mentioned, the code of laws compiled in pre-Petrine times continued to function in the new Russia, although its articles were modified and supplemented.
- The code was the result of the development of Russian law, starting from the 15th century.
- It formalized the new features characteristic of the social life of the 17th century and consolidated the existence of new legal and state institutions.
- It also secured absolute power for the Romanovs, a dynasty that by that time had relatively recently ascended the throne.
- The code was the first printed set of laws in the country. Prior to this, the promulgation of royal decrees was reduced to their announcement in squares and temples.
The new format of legislation ruled out the possibility of abuse by officials. The Cathedral Code, by the way, was one of the first codes of laws in Europe. Earlier is perhaps the aforementioned Lithuanian Statute, which grew out of Casimir's Sudebnik of 1468; Western codes (Danish, Bavarian, Sardinian, etc.) appeared somewhat later, and French was adopted only under Napoleon.
In Europe, legislative codes were drawn up and adopted with difficulty, since the legal base of many countries was huge and it took many years to put it in order. The Prussian code contained almost 20 thousand articles, and the Napoleonic code contained “only” 2281 articles. The Cathedral Code clearly wins in comparison with these documents - there were only 968 articles in it, which made it possible to draw it up in a short time - in six months.
The emergence of the Council Code was a direct result of popular uprisings in 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, since the causal nature inherent in previous legislation became ineffective. Clarity and accuracy of the wording of the law was required
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. 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. In Moscow in the summer of 1648 there was a major uprising. 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. 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.
Thus, the creation of the Cathedral Code from a socio-historical point of view was the result of an acute and complex class struggle and the direct result of the uprising of 1648. In such difficult conditions, the Zemsky Sobor was convened, which decided to develop a new code of laws - the Cathedral Code.
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.
Sources The following served as the Cathedral Code: Sudebniks of 1497 and 1550. Decree books of orders, royal decrees, sentences of the Boyar Duma, decisions of Zemsky sobors, Lithuanian and Byzantine legislation.
A special codification commission of 5 people was entrusted with drafting the Code, 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, which means that this “order of Prince Odoevsky and his comrades,” as it is called in the documents, can be considered a Duma commission, it was established on July 16. At the same time, they decided to assemble the Zemsky Sobor for consideration of the adoption of the project by September 1. 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. 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. From October 3, the tsar with the clergy and Duma people listened to the draft Code drawn up by the commission. 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 Council 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 Code."
The speed with which the code was adopted is amazing. The whole discussion and adoption of the Code in 967 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 rework into an integral set of laws in force, different in time, not agreed, 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. 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, listened to and approved in the Duma by the end of January 1649, when the commission and the entire council ended their activities 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 of a new uprising in the capital being prepared, not to mention the need for a new code. Therefore, they were in a hurry to draw up the Code.
Structure of the Code
The Cathedral Code of 1649 was a new stage in the development of legal technique. The appearance of the printed law to a large extent excluded the possibility of committing abuses by governors and clerks,
The Cathedral Code had no precedent in the history of Russian legislation. The Cathedral Code is the first systematized law in the history of Russia.
In the literature, it is often, therefore, called the code, but this is not legally true, since the Code contains material relating not to one, but to many branches of law of that time. This is not a code, but rather a set of laws
Unlike previous legislative acts, the Cathedral Code differs not only in its large volume ( 25 chapters divided by 967 articles), but also more purposeful 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. 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.
Local and patrimonial land tenure
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 ( st.13,33,38,41,42,45 chapter 17) and estates ( Articles 1-3,5-8,13,34,51 chapter 16). The Code takes a serious step towards equating the legal regime of estates with the regime of estates; this applied to 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 the right to own land (this was the case 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, the so-called subsistence estate was given according to a certain norm - a kind pension. The landowner's widow and his children up to a certain age received the same pension.
During this period, the previously established three main types of feudal landownership were legally consolidated. The first kind - state property or directly the king (palace lands, lands of black volosts). The second kind - patrimony. Being a conditional property on the land, the estates nevertheless had a different legal status than the estates. They were inherited. There were three types: generic, retired (complained) and purchased. The legislator took care that the number of patrimonial estates did not decrease. In this regard, the right to buy out the sold patrimonial estates was provided. The third type of feudal tenure is estates, which were given for service, mainly military. The size of the estate was determined by the official position of the person. The estate could not be inherited. The feudal lord used it as long as he served.
The difference in legal status between estates and estates was gradually erased. Although the estate was not inherited, it could be received by the son if he served. It was established that if the landowner died or left the service due to old age or illness, then he himself or his widow and young children could receive part of the estate for “living”. The Cathedral Code of 1649 permitted the exchange of estates for estates. Such transactions were considered valid under the following conditions: the parties, concluding an exchange record among themselves, were obliged to submit this record to the Local Order with a petition addressed to the king.
Criminal law according to the Code
In the field of criminal law, the Council Code clarifies the concept of “dashing deed” - an act dangerous for feudal societies; developed in the Code of Laws. The perpetrators of the crime could be individuals, and group of people. The law divided them into major and minor, understanding the latter as accomplices. On the other hand, participation can be as physical(assistance, practical assistance, etc.) and intellectual(for example, incitement to murder- chapter 22). In connection with this, even a serf who committed a crime at the direction of his master began to be recognized as a subject. The law distinguished persons from accomplices, only involved in the crime: accomplices (who created the conditions for the commission of a crime), conniving, non-informers, harborers. The subjective side of the crime is determined by the degree of guilt: The Code knows the division of crimes into deliberate, careless and random. For careless actions, those who committed them are punished in the same way as for intentional criminal acts. The law allocates softening 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. stand out separate stages of a criminal act: intent (which itself may be punishable), attempted crime and commission of a crime. The law knows concept of relapse(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.
Crime system
1) Crimes against the church, 2) state crimes, 3) crimes against the order of government (intentional failure of the defendant to appear in court, resistance to the bailiff, making false letters, acts and seals, counterfeiting, unauthorized travel abroad, home brewing, taking a false oath in court, false accusation), 4) crimes against decency (maintenance of brothels, harboring fugitives, illegal sale of property, imposition of duties on persons released from them), 5) malfeasance (extortion (bribery, extortion, unlawful extortion), injustice, forgery in service, military crimes), 6) crimes against a person (murder, divided into simple and qualified, beatings, insults of honor. The murder of a traitor or a thief at the crime scene was not punished), 7) property crimes (simple and qualified crimes (church, in the service, horse theft, committed in the sovereign's court, stealing vegetables from the garden and fish from the garden), p robbery committed in the form of fishing, ordinary and qualified robbery (committed by service people 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 of 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
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 committed by him, but the institute of responsibility of third parties remained - 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 was like the responsibility of the guarantor for the actions of the offender (for whom he vouched), 2) nightingal nature of punishment, expressed in the difference in the responsibility of different subjects for the same punishment (for example , chapter 10), 3)uncertainty about punishment(this was due to the purpose of punishment - intimidation). The verdict could not indicate the type of punishment, and if it was, it was not clear how it was executed (“punish by death”) or the measure (term) of punishment (throw “into prison until the sovereign’s decree”), 4) plurality of punishment- for the same crime, several punishments could be established at once: whipping, cutting the tongue, exile, confiscation of property.
Purposes of punishment:
Intimidation and retribution, isolation of the criminal 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. The publicity of punishments and executions had a socio-psychological significance: many punishments (burning, drowning, wheeling) served as if analogues of hellish torments.
The Council Code provided for the use of the death penalty 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 an 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 extradition of the head (turning into a slave) to the announcement of “disgrace” (isolation, sharpness, state disgrace). The accused could be deprived of their rank, the right to sit in the Duma or order, to deprive the right to file a claim in court. Property sanctions were widely used ( chapter 10 of the Code in 74 cases, it 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.).
Bodies administering justice
Central judicial bodies: the court of the tsar, the boyar duma, orders. Justice could be carried out both individually and collectively.
"Court" and "search" according to the Code
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 process: "court" and "search ”. The legislation of that time still lacked a clear distinction between civil procedure and criminal procedure law. However, two forms of the process were distinguished - adversarial (trial) and investigative (search), and the latter was becoming increasingly important. Chapter 10 of the Code describes in detail the various procedures of the “court”: the process was divided into court and "accomplishment" those. sentencing. "Court" begins (Chapter X. Art. 100-104) With “introducing”, 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 good reasons (for example, illness), but after three failures to appear, he automatically lost the process ( Chapter X. Art. 108-123). The winning party was given a certificate.
Proof of, used and taken into account by the courts in the adversarial process, were diverse: witness's testimonies(practice required involvement in the process of at least 20 witnesses), written evidence (the most trustworthy of them were officially certified documents), kissing the cross (allowed for disputes in the amount of not more than 1 ruble), drawing lots. Procedural measures aimed at obtaining evidence were “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. special types of testimony were: “reference to the guilty” and a general reference. The first consisted in the reference of 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. General link 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 recorded in the “court list”. Each stage was decorated with a special diploma.
Search or “search” was used in the most serious criminal cases. Special attention was given to crimes in which the public interest was affected. 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 - “linguistic rumor”). After that, in business state bodies entered. 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. AT Chapter 21 of the Council Code for the first time such a procedural procedure as torture is regulated. 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 apply no more than three times, with a certain break. Testimony given on torture (“slander”), should have been rechecked through other procedural measures (interrogation, oath, “search”). The testimonies of the tortured were recorded.
Civil law according to the Council Code of 1649
Ownership is defined as the dominance of a person over property. Researchers agree that the right to property under the Code must be respected by all and the protection of this right is allowed only by the court, and not by one's own strength. In extreme cases, the Code allows the use of force to protect property. For the same purpose, unauthorized management of other people's property, unauthorized taking of other people's property and recognition of rights through the courts were prohibited.
The Cathedral Code protected the right of private ownership of land.
General characteristics and sources of the Cathedral Code of 1649
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, the discussion of the project 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.
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.
Sources of the Cathedral Code were Sudebniks of 1497 and 1550, Stoglav 1551, decree books of orders (Rogue, Zemsky, etc.), royal decrees, sentences of the Boyar Duma, decisions of Zemstvo councils, Lithuanian and Byzantine legislation. Later, the Code was supplemented Newly decreed 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.
In the Cathedral Code was fixed head of state status - the king as an autocratic and hereditary monarch.
With the adoption of the Code ended the process of enslaving the peasants, the right of their indefinite investigation and return to the former owner was established.
The main attention was paid legal proceedings 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 local 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 lien right.
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.
Subjects of civil law relations were both private and collective persons.
inheritance law inheritance by law and by will is known.
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 had legal force church marriage. 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 a concept crimes, however, from the content of his articles, one can conclude that the crime is the violation of the royal will or law.
The subjects of the crime there could be individuals or a group of individuals, regardless of their class affiliation. In the case of a crime committed by a group of persons, the law divided them on the main and secondary (accomplices).
The subjective side of the crime 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 provides for 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.
Objects of crime in accordance with the Council Code were: church, state, family, person, property and morality.
crime system 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.
Punishment system included: death penalty, corporal punishment, imprisonment, exile, confiscation of property, removal from office, fines.
Purposes of punishment there was intimidation, retribution and isolation of the criminal from society.
The Council Code established two forms of trial: accusatory-adversarial and investigative.
litigation process, or court, used in 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.
AT evidence system there were no significant changes. Testimony, written evidence, oath, lot were used.
Used as evidence link from the guilty and general link. 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 it was oral. Each stage of the process (subpoena, guarantee, decision, etc.) was formalized by a special letter.
search process, or detective, 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.
Meaning of the Council Code of 1649
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.
An old copy of the Cathedral Code
If the Code was in force with us for almost two centuries before the code of laws of 1833, then this does not speak of the merits of the Alekseevsky code, 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. In it we do not find the 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.
New ideas
But 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 of July 16 was directly stated 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 the highest to the lowest 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 in truth, "not ashamed of the face of the strong, and deliver the offender (offended) from the hand of the unrighteous" - this is what 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. For us, personal freedom, independence from another person, is not only an inalienable right protected by law, but also a duty required by rights. None of us will want, 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 we are studying Russian society in the 17th century. - a slave-owning society, in which serfdom operated, expressed in various types of servility, and it was in the era of the Code, as we will see soon, that a new type of dependence, serf peasant bondage, was ready to be added to these types. Then the legal composition of personal freedom included the right of a free person to give his freedom for a while or forever to another person without the right to stop this dependence at his own will. On this right, various types of Old Russian servility were based. But before the Code, we had personal dependence without a serf character, created by a 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 pawnbrokers.
A loan for work was for a poor person in ancient Russia the most profitable way to place his labor. But, differing from servility, pawnbrokering 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 pawnbrokers and their acceptors: turning pawnbrokers into taxes. The Code (Chapter XIX) threatened them with a "cruel punishment", a whip and exile to Siberia, to Lena, and to receivers - "great disgrace" and confiscation of the 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 should belong to and serve only the state and cannot be anyone's private property: "Baptized people are not ordered to be sold to anyone" (ch. XX).
Personal freedom became mandatory and was supported by the whip. But the right, the use of which becomes obligatory, turns into a duty. We do not feel the burden of this duty, because the state, not allowing us to be serfs and even semi-serfs, protects in us our most precious asset - the human personality, and our entire moral and civic being stands for this constraint on our will by the state, for this duty, which is dearer than any right. But in Russian society of the XVII century. neither personal consciousness nor social mores supported this universal human duty. A blessing that is above all price for us, for a Russian black man of the 17th century. had no value. 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 concepts. This measure was a partial expression of the general goal set in the Code - to master 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.
New articles.
Completing the legislative work of the past, the Code served as the starting point for further legislative activity. Its shortcomings began to be felt soon after its entry into action. It was supplemented and corrected in parts new decree articles, which served as a direct continuation of it: these are the articles on tateb, robbery and murderous cases 1669, about estates and estates 1676–1677 etc. This detailed, often petty revision of individual articles of the Code, full of hesitation, now canceling, then restoring certain legalizations of the code of 1649, is very curious as a reflection of the moment in Moscow state life, when doubts about the suitability of the norms of law and management methods began to seize its leaders , in whose good quality they so believed, and they embarrassingly began to feel the need for something new, undergrown, "European".
V. O. Klyuchevsky. Russian history. Full course lecture. Lecture 47
The political significance of the moment
Such was the victory of the middle classes at the council of 1648. They gained from the new law, and their worldly rivals, who stood at the top and bottom of the then social ladder, lost. As in 1612–1613 the middle strata of society prevailed due to their internal solidarity and superiority of forces, so in 1648 they achieved success thanks to the unity of mood and action and numerical predominance at the council. And all the participants in the "great zemstvo cause," which was the drafting of the Code, understood the importance of the minute. It pleased some: those in whose favor the reform was carried out found that the triumph of justice was coming. “Now the sovereign is merciful, he leads the strong out of the kingdom,” one nobleman wrote to another, “and you, sovereign, do not start violence, so that the world does not tell!” Some even felt that it was necessary to go further along the intended path of change. So, the Kursk service people were dissatisfied with their elected Malyshev at the cathedral and "noisy" at him, according to one expression, because "at the sovereign at the Cathedral Code, according to the petition of the zemstvo people, not against all the articles of the sovereign's decree was issued," but in another expression , for the fact that "he did not fulfill their pink whims in the Code in Moscow." But if some wanted even more than they got, then to others, even what was done seemed bad and sinister. The pawnbrokers, taken from preferential private dependence into a heavy state tax, said gloomily that "we are knee-deep in blood." In their opinion, society was going through a direct turmoil ("the whole world is shaking"), and the mass destitute of the Code could encroach on open violence against the oppressors, because everyone was supposedly afraid of this mass. Not one common people thought in this way. Patriarch Nikon sharply criticized the Code, calling it a "cursed" and lawless book. In his opinion, it was compiled by a "proud man", Prince Odoevsky, inconsistently with the tsar's instructions and transferred to the Zemsky Sobor out of fear of a rebellious "world". He wrote: "Everyone knows that the cathedral was not by will, fear for the sake of and civil strife from all black people, and not for the sake of true truth." Of course, Nikon was worried about other feelings than the boyar pawnbrokers, in a long note he argued that the sovereign's original intentions were simply to collect the old laws "excellently in nothing" and teach them to secular society, and not to the patriarch and not to church people . By the deception of the "false legislator" Odoevsky and internecine strife from all black people, "the same decree was issued to the patriarch with an archer and with a peasant" and blatant violations of the property and judicial benefits of the clergy in the new laws requested by the zemstvo people were made. Therefore, Nikon did not recognize the legitimacy of the Code and more than once asked the sovereign to "set aside" the Code, i.e. cancel. Such was the attitude of the most prominent representative of the then hierarchy towards the cathedral and its Laid Book. We can be sure that others also sympathized with him; the reform of the Code shook the very principle of independence and the peculiarities of the church system and subordinated church persons and possessions to a national court; moreover, it painfully affected the economic interests of church landowners. There could be no sympathy for her in the clergy, just as there could be no sympathy for the Zemsky Sobor itself, which carried out the reform. The boyars also had no reason to approve the conciliar practice of 1648. In the middle of the 17th century, from the remnants of the old boyars, both of princely origin and with a simpler "fatherland", scattered by turmoil, a new aristocracy of a court-bureaucratic nature managed to take shape. Feeding no political pretensions, this boyars took on a "commandable" character, turned into bureaucracy, and, as we have seen, led the government past the cathedrals. Although the new boyars and their assistants, the clerks, themselves came from ordinary nobility, and sometimes even lower, nevertheless they had their own ambition and a great desire to inherit not only the lands of the old boyars, but also the landownership benefits of the old type, which once characterized themselves. appanage-princely possessions. The documents of the estates of the famous B. I. Morozov, processed by I. E. Zabelin, introduce us to the exact understanding of those purely state methods of management that existed in the "yard" and in the "orders" of Morozov. It was this breadth of economic scope, supported by benefits and actual irresponsibility in everything, that served as the subject of complaints from small local service people and townspeople. The Code held the beginning of general equality before law and power (“so that the Moscow State of all ranks to people, from the highest to the lowest rank, the court and reprisal would be equal in all matters to everyone”) and this became against the Moscow boyars and deacon for the small fry of the provincial worlds. The Moscow administration condescendingly called the claims of this fry to protect itself from the insults of the rapists through conciliar petitions "noise" and "various whims", and those who made noise - "mischievous people." The tendency of the Code and the petitions of the cathedral people could not please the Moscow and boyar and deacon bureaucracy. Thus, it is clearly revealed that the Council of 1648, convened to pacify the country, led to discord and displeasure in Muscovite society. Having achieved their goal, the conciliar representatives of the provincial society turned strong people and the serfs against themselves. If the latter, not reconciling with being attached to the tax and to the landowner, began to protest with "gilem" (i.e., riots) and going to the Don, preparing razinism there, then the social summit chose the legal path of action and led the government to the complete cessation of the Zemsky Sobors .
S. F. Platonov. Full course of lectures on Russian history
The Cathedral Code of 1649 is a set of laws of the Moscow kingdom, regulating various aspects of the life of Russian society. The fact is that after the end of the Time of Troubles, the Romanovs began active legislative activity: in just 1611-1648. 348 decrees were issued, and after the last Sudebnik of 1550 - 445 legislative acts. Many of them were not only outdated, but also contradicted each other. All the regulations of that time were scattered among different departments, which further increased the chaos in law enforcement. The urgent need to regulate the legal foundations of the state was realized by the Cathedral Code of 1649. The reason for the adoption of the long overdue Code was the Salt Riot that broke out in Moscow in 1648, the participants of which demanded its development. In the Council Code, for the first time, one feels the desire not only to form a system of norms, but also to classify them according to branches of law.
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”), during which the rebels held the city in their hands for several days. Following Moscow in the summer of the same year, the struggle of townsmen and small service people unfolded in Kozlov, Kursk, Solvychegodsk, Veliky Ustyug, Voronezh, Narym, Tomsk and other settlements. The socio-political crisis dictated the need to strengthen the legislative power of the country. Therefore, it was during the reign of Alexei Mikhailovich that the evolution of the estate-representative monarchy (“autocracy with the boyar duma and the boyar aristocracy”) began to absolutism, which was associated, among other things, with the completion of the formalization of serfdom.
Although the Code was drawn up hastily, it was based on the existing law-making tradition. The legal sources of the Council Code were: Decree books of orders, Sudebniks of 1497 and 1550, the Lithuanian Statute of 1588, the Pilot Book and various petitions of the nobility, which contained demands for the abolition of school years. At the Zemsky Sobor, convened on July 16, 1648, the nobles filed a petition for the preparation of the Code, so that they could do all sorts of things forward according to that Coded Book. To develop a draft Code, a special order was created, headed by Prince N.I. Odoevsky, which included two boyars, one okolnichiy and two clerks. The hearing of the draft Code took place at the Council in two chambers: in one the tsar, the Boyar Duma and the Consecrated Cathedral were present, in the other - elected people of various ranks. Deputies from nobles and towns had a great influence on the adoption of many norms of the Code. It is characteristic that the Code began with a preface, which stated that it was drawn up “by the sovereign decree by the general council, so that the Muscovite state of all ranks to people, from the highest to the lowest rank, the court and reprisal would be equal in all matters to the zemstvo great royal cause.”
The Cathedral Code, adopted in 1649, abolished St. George's Day and established an indefinite search for fugitives. A considerable fine was also introduced (10 rubles for each fugitive) for their reception and harboring. But at the same time, the possessing peasants have not yet completely lost their personal rights: according to the Code, they could own property and make transactions on their own behalf, be plaintiffs, defendants and witnesses in court, and also be hired to work for other persons. It was forbidden to turn serfs into serfs, and transfer local peasants to patrimony. A special article of the Code established a fine of 1 ruble for the "disgrace" of both the black-haired and the "boyar" peasant. It was, of course, 50 times less than the fine for insulting the boyar. But still, the legislation officially recognized the “honor” of the serf, which would no longer be possible for the noble state in the next century, when all the personal rights of the peasants were eliminated.
The Code fixed the norms that reflected the beginning process of convergence of conditional landownership with hereditary patrimony: on the inheritance of estates, the permission to sell estates to a patrimony, the allocation of part of the estates for living, etc. This process of convergence of estates and patrimonies found its legal development in decrees of 1667 and 1672 on mass transfers of estates to the patrimony of Duma Moscow and district officials for participation in the campaign of 1654, for the "Lithuanian" service and the Smolensk campaign. Edicts in the 1670s allowed the exchange and purchase of estates, which brought the estate as close as possible to the fiefdom.
It is significant that the first chapter "On blasphemers and church rebels" provided for liability for crimes against religion and the church. The next most important regulated provision is the protection of the honor and security of the sovereign. The Council Code determined his status as an autocratic and hereditary monarch. That is, his approval (election) at the Zemsky Sobor did not violate the established principles, but, on the contrary, legitimized them. Even criminal intent directed against the person of the monarch was severely punished. These provisions are developed in the third chapter "On the sovereign's court", which refers to the protection of the royal residence and personal property of the king.
The Code referred to criminal acts:
crimes against the Church: blasphemy, "seduction" to another faith, interruption of the course of the liturgy in the church, etc.;
state crimes: any actions directed against the person of the sovereign or his family, rebellion, conspiracy, treason;
crimes against the order of government: unauthorized travel abroad, counterfeiting, giving false testimony, false accusation, keeping drinking establishments without permission, etc.;
crimes against decency: maintenance of brothels, harboring fugitives, selling stolen or other people's property, etc.;
malfeasance: covetousness, injustice, forgery in service, military crimes, etc.;
crimes against a person: murder, mutilation, beatings, defamation;
property crimes: theft, horse theft, robbery, robbery, fraud, arson, damage to other people's property.
crimes against morality: “disrespect by children of parents”, pimping, “fornication” of a wife, sexual intercourse between a master and a “slave”.
From this followed a system of punishments, including: the death penalty, corporal punishment, imprisonment, exile, dishonorable punishments (deprivation of rank or demotion), confiscation of property, removal from office and fines.
Most of the "white" settlements were liquidated (the church was forbidden to expand its possessions without royal permission), and trade and fishing activities were declared a monopoly of the townspeople. Although the transition to the posad for privately owned peasants freed them from personal dependence on the feudal lord, it did not mean complete liberation from feudal dependence on the state, since attachment to the place extended to the posad man, as well as to the black-haired peasant.
If the principles of Domostroy continued to operate in the field of family law (the primacy of the husband over his wife and children, the actual community of property, the obligation of the wife to follow her husband, etc.), then in the field of civil law, the legal capacity of women increased. Now the widow was endowed with rights in the field of concluding transactions. The oral form of the contract is replaced by a written one, and for certain transactions (for example, the sale and purchase of real estate), state registration is mandatory.
That is, the Cathedral Code not only summarized the main trends in the development of Russian law in the 15th-17th centuries, but also consolidated new features and institutions characteristic of the era of the advancing Russian absolutism. In the Code, for the first time, the systematization of domestic legislation was carried out and an attempt was made to distinguish between the norms of law by industry. The Cathedral Code became the first printed monument of Russian law. Before him, the publication of laws was limited to announcing them in marketplaces and temples. The appearance of a printed law reduced the possibility of abuse by governors and orders.
In the economic sphere, the Code fixed the beginning of 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, it reflected the process of consolidation of the main classes and the establishment of a system of serfdom. In the political sphere, the Code characterized the initial stage of the transition from a class-representative monarchy to absolutism. In the field of court and law, this monument of law was associated with the stage of centralization of the judicial and administrative apparatus, unification and universality of legal institutions.
The code had no precedent in the history of Russian legislation, many times surpassing the voluminous Stoglav in the wealth of legal material. The Code had no equal in the European practice of those years. The Cathedral Code of 1649 was in effect until 1832, when, under the leadership of M.M. Speransky developed the Code of Laws of the Russian Empire.
