Boris Godunov and the Time of troubles from Cambridge History of Russia, volume 1

'Criminal law' was definitely a minor - although necessary - interest in the Pskov Judicial Charter. Treason, punishable by death, was unknown in the Pravda. The death penalty was also prescribed for a third theft, horse-stealing, theft of property in the Pskov fortress churches (which, incidentally, were used by merchants for storage of their wares), arson and for flight abroad. For violating court decorum, the culprit could be placed in the stocks (dyba) and also fined.[206] Fines were also prescribed for a first and second theft.

The goal of criminal law punishments was primarily fourfold: (1) deterrence, the enunciation of threats to discourage other potential criminals; (2) incapacitation, to protect society by removing dangerous individuals, by capital punishment (note that jails did not exist and that banishment was not employed); (3) by raising the penalties, to discourage recidivism; (4) composition, to compensate those damaged.

Pskov used law to define and regulate society. Particularly important for the long run of Russian history was the condition of the tenant farmer (izornik). He might have taken a loan (pokruta) of grain, tools or cash from his lord, who also gave him land for a garden plot. If the farmer fled without repaying the loan (a form of theft), the master could seize his property. When he died, his obligations passed to his heirs, who got the rest of his estate after the loan was paid back. If he paid back the loan, he could move on St Phillip's Fast Day, 14 November, the ancestor of the Muscovite St George's Day (26 November), which was the major instrument initiating the enserfment of the peasantry in Russia. The izornik had the right to sue in court. In the absence of documents, the lord could make a public declaration of his claims against the izornik, take an oath to prove his claims and provide witnesses to prove that the farmer was a tenant on his property. Then a judgement would be entered against the izornik.[207]

The rules of evidence in Pskov were much more 'modern' than in Kiev. As repeatedly shown above, written evidence was definitely preferred in Pskov, a development that was not to occur in Muscovy until after 1550. Also important in Pskov was the written legal decision (pravaia gramota),[208] a summary of the case with the verdict which was given to the winning litigant. [209] The winner could use this document to advance his claims in case of further disputes. Oral marketplace declarations (zaklikan'ia) about lost items or slaves were still in use, as were zaklikan'ia when a hireling was trying to exact his wages from an employer[210] or a lord was attempting to exact a loan from a peasant.[211] Other important forms of evidence were witnesses and the oath. Property boundary disputes could be resolved by taking an oath on the cross.[212]

Article 37 of the Pskov Judicial Charter laid down the provisions for trials by combat to resolve judicial disputes. Trial by combat by the thirteenth century had driven out the Pravda's ordeal by iron and water.[213] Assistants were permitted at a trial by combat. Should the loser be killed in the combat, the winner could take his armour or whatever else he wore to the field, but nothing more. If the loser survived, he had to pay various fees to the officials present, nothing to the prince, and the winning litigant's claims.[214] By the end of the fifteenth century, trial by combat was being abandoned almost everywhere except in Muscovy in favour of written evidence (see below). In 1410 the Russian Orthodox Church had expressed opposition to trial by combat, supposedly an expression of divine judgement that was obviously a farce when the winner often proved to be the litigant who could hire the strongest brute to fight his case.

Article 71 makes it appear as though a legal profession was developing by forbidding an 'attorney' (posobnik) from conducting more than one trial a day. The term posobnik means 'aide', but one may assume that semi-professional lawyers were emerging because otherwise the issue of someone taking more than one case per day would not arise. The posobnik in the case of representation for women, monks, minors, the aged and the deafinmost cases was just an aide, presumably a relative, not one ofthe attorneys who could only handle one case a day. Further evidence that professional lawyers were beginning to appear can be found in the stipulations that no mayor (posadnik) or other official (vlastel') was permitted to litigate for anyone else. Both were permitted to litigate for themselves, and the mayor could argue a case for a church of which he was an elder.[215] This development was aborted, and sixteenth-century Russian sources only mention slaves who hung around the court offering advice to litigants - one presumes for a fee.[216] Only in 1864 did the Russian autocracy permit a bar to develop.

Pskov developed a sophisticated system of specialised courts. The court of the prince, mayors and hundreders handled the 'big cases': homicide, robbery, theft, assault and battery, fugitive debtors (another form of theft) and landownership disputes. The court of the mayor and judges elected by the popular assembly dealt with contracts. Courts of fraternal societies processed fights, disputes and other conflicts that occurred during feasts.

The legal process in Pskov was primarily a dyadic one. Moreover, there was no distinction between the criminal and civil process. The trial was accusatory, both parties were present, it was not an inquisition with the judge taking a major role. In the horizontal process, citizens brought all cases. The primary goal of procedure was the speedy resolution of conflicts (and, incidentally, the rapid payment of fees). 'Justice' was probably secondary. In petty cases, there was no summons with force at its disposal to bring the accused to trial. After five days, a defendant who did not appear just lost the case.[217]

Besides regulating conflict, a major function of the Pskov Judicial Statute was to provide income for officialdom. Law as a cash source was crucial in the development of triadic relations as the law took on a life of its own independent ofthe regulation of conflict. The apparatus of judges, bailiffs and scribes were all paid. A crucial function of law became the regulation of the income of this horde. Along with this went the issue of bribery. Article 4 forbade the taking of secret, that is, illegal, bribes. To the modern mind, this seems like an oxymoron, but in the East Slavic late-medieval era this was just a form of regulating income-gathering, one of the major functions of the justice system.

Other functions of law in Pskov were to support and protect the Church; to maintain sex distinctions (sex discrimination was noticeably less than in later Muscovite law); and to support the family: a son who would not feed his parents was disinherited automatically.[218]

206

PSG, art. 58.

207

PSG, arts. 42, 44, 51, 63, 74-6, 84-7.

208

The oldest known pravaia gramota dates from 1284, in Smolensk.

209

PSG, art. 61. See also 1497 Sudebnik, art. 27.

210

PSG, art. 39. In Muscovy, a worker who quit before his contract was completed lost all of his wages (1497 Sudebnik, art. 54). Half a century later, however, a provision was added that an employer who did not pay his employee his due had to pay double that sum (1550 Sudebnik, art. 83; 1589 Sudebnik, art. 148 increased the penalty to triple).

211

PSG, art. 44.

212

PSG, art. 78. This replaced the traditional East Slavic practice of walking the boundaries with a piece of turf on the litigant's head. See Elena Pavlova, 'Private Land Ownership in Northeastern Russia during the Late Appanage Period (Last Quarter of the Fourteenth through the Middle of the Fifteenth Century)', unpublished Ph.D. dissertation, University of Chicago, 1998.

213

A good discussion of trial by combat (pole) can be found in Grekov, Sudebniki, pp. 47-50. Pole appeared only at the end of the fourteenth century, in a Novgorodian Church statute book (kormchaia kniga).

214

See also PSG, arts. 10, 13, 17,18, 21, 36, 37,101,117,119.

215

PSG, arts. 68-9.

216

Richard Hellie, Slavery inRussia 1450-1725 (Chicago: University of Chicago Press, 1982), pp. 477-8. A poignant quotation from a 1582 report to Ivan IV on slaves in the courtroom is quoted in the above text.

217

PSG, arts. 25, 26, 39.

218

PSG, art. 53.