Primitive societies had troubles deciding what to do with people between the time an accusation was initiated and a court verdict was rendered. Such societies did not have jails to detain the accused, which many would say is punishing the accused before he is found guilty in any case. An alternative to jail was to let a contract to someone to keep chained to the wall a detainee, who then had to pay a 'chaining fee' (pozheleznoe) for the detention as well as somehow pay for his keep (or perhaps have relatives bring him food).[262]The Sudebnik of 1497 provided an alternative: an accused could post bail or satisdation (poruka) in lieu of being chained to a wall.[263]
By 1613 'crimes' and especially punishments differed markedly from what had been the practices in the 1170s. Most of this can be viewed as part of the evolution from the dyadic to the triadic legal process. In the Pravda, 'crimes' were torts in which the wronged was supposed to receive composition and compensation. The more modern notion of 'society' as the real victim was totally absent. The notion that society was the victim of crime became prevalent in the Sudebniki. Then the question arises: how is the criminal to pay his debt to society? Sitting in prison is one answer, but Muscovy did not have prisons until 1550,[264] and they were not used very much for penal incarceration until decades later. Exile and banishment are other useful social sanctions, but are very expensive in labour-short societies such as was Muscovy. The same holds for capital punishment:[265] who can benefit from a dead man (unless he is so heinous that society can tolerate him under no circumstance)? Corporal punishment proved to be the answer.[266] There were any number of forces pushing Muscovy in the direction of corporal punishment savagery (which peaked in the 'Felony Statute' of i663, combining chapters 2i and 22 of the Ulozhenie of 1649), including more 'Western' law such as the West Russian Lithuanian Statutes of 1529,1566 and 1588, but the major impetus was certainly the domestic requirement of 'getting tough' on crime. The Byzantine legal heritage may have played a role in the increasing savagery of Muscovite law, but it is fairly evident that the Mongol hegemony (i237-i480) did not.
Prior to 1497, capital punishment was reserved for few offences. But the 1550 Sudebnik lengthened the list to include some homicides, arson, horse theft, theft from a church, theft of a slave, treason, brigandage, rebellion, recidivism for lesser felonies.[267] The issue of intent did not enter into Muscovite sanctions until the Ulozhenie ofi649. A thiefwith a criminal reputation and apprehended with stolen goods was put to death if accused by five or six men. Plaintiffs' claims were exacted from his property. The 'burden of proof for execution in i550 was expanded to a general inquest of the population. If the inquest recorded that he was a good person, he was to be tried by normal procedures. Regardless, he was to be tortured.[268] If he confessed, he was to be executed. If he failed to confess, he was to be jailed for life. In i589 torture was made more precise: 100 blows with the knout (which certainly would have killed an ordinary person). In 1589, if the inquest reported the accused to be a good person, he was to be acquitted immediately.[269]
Other punishments ranged from flogging with the knout (for a first theft, plus a fine), incarceration, to the old-fashioned fine.[270] A most visible element in the criminal sphere was the increasing introduction of the government. Ordinary subjects could still file complaints, but anything 'interesting' was soon taken over and prosecuted by the state.
The 'Agapetus state' came to believe that it had enhanced responsibilities not only in the political and criminal spheres, but increasingly in all other spheres of life as well. The three factors in any economy are land, labour and capital. By i6i3 the government laid claims to nearly complete control over the first two, and probably would have over capital as well had there been much to control. (See Chapter 23.) Control over land prior to 1480 was primarily a political exercise, not an economic one. Land was so sparsely populated that control over any particular parcel (except in the few urban areas) was hardly something to be contested. Control over large areas was important because the state and its agents could travel around and find people to tax, occasionally to levy military recruits from, and to be present to offer conflict resolution services to on demand. Monasteries were really the sole exception. They could collect rents only from peasants living on their parcels of lands and estates. This was why it was the monasteries which introduced St George's Day to control the mobility of their peasant debtors during the chaotic labour situation after the civil war of 1425-53.
But by the 1497 Sudebnik much had changed. On the issue of land, the government of Ivan III discovered afterthe annexation of Novgorod and the deportation of its landowners that land could be mobilised to enhance its military might. Thus the first 'service-class revolution' was initiated by replacing the Novgorodian landowners with Muscovite cavalrymen, who were assigned service landholdings on which lived about thirty peasant households to pay them rent to enable them to render military service. Each landholding (pomest'e) was tenureable only while service was being rendered; after service ceased, the pomeshchik had to surrender his assigned lands to another serviceman. The system was mentioned in the 1497 Sudebnik.[271] As Moscow grew in size, many of the annexed lands were put into the pomest'e system. In 1556, as part of the campaign to raise troops to annexe the lower Volga (south of Kazan', annexed in i552), the government got the idea that it could demand service from all land (previously service from the other major form of landholding, landownership - the votchina - had been in some respects optional). The 1556 edict prescribed that one outfitted cavalryman had to be provided from each 100 cheti (1 chet' = 1.39 US acres or half a hectare) of populated land.[272] This forced estate owners into the market to hire military slaves to meet their recruiting quotas and the military muster records are full of lists of these slave cavalrymen. By the 1580s perhaps 80 per cent of the military land fund was pomest'e land and it appeared as though the votchina might die out. This did not happen because every pomeshchik's aspiration was to become a votchinnik who could pass his estate to his heirs, which became often practice in the second halfofthe seventeenth century and dejure reality in the eighteenth century. Prior to 1450 East Slavic princes regarded all land in their domains as their personal patrimonial property which they were free to dispose of as they pleased. After 1556, most usable land de facto was land which could be mobilised by the state for military
purposes.[273]
Mobilising the land, the hypertrophic state set about controlling all labour. This began with St George's Day limitations for monastery debtors in the 1450s. That demonstrated what could be done, and in the 1497 Sudebnik it was applied to all peasants.[274] As discussed in considerably greater detail in Chapter 12, in 1592 all peasants were forbidden to move at all. As also discussed in Chapter 12, having decided that it had the power to control the legal status of the peasantry, the state decided that it could alter the status of the slaves. Slaves were the subject of a remarkable number of articles in i497, far more than any other sector of society.[275] Except for emancipations, such dramatic state interventions in the institution of slavery are rare in human history. Full slavery was melded into limited service contract slavery, and then in the i590s the nature of the 'limitation' changed from an antichresis (see Chapter 12) of one year that defaulted to hereditary full slavery upon inability after a year to repay a loan to slavery for the life ofthe owner, followed by compulsory emancipation upon his death. In 1550 the government decreed that able-bodied townsmen had to live in the juridical towns, not on monastery urban property.95 In the 1590s the government decided that it had the right to control the mobility of townsmen (paralleling the control over peasant mobility),96 which culminated in the 1649 Ulozhenie's prohibition against townsmen's leaving their place of urban residence. This is a perfect example of how the 'Agapetus monarchy' developed the maximalist state which found few areas of Russian life where it could not intervene.97 Comparatively, what is interesting is the use of law in this evolution. In America, for example, law is often seen as a very conservative institution that is the codification of a reality that sometimes has already passed. In early modern Russia, on the other hand, law became the statement of social programmes that the state was hoping to enact; and it usually could enforce most of what it had enacted. In this respect Muscovy was the perfect ancestor of the Soviet Union, a radical political organisation with a programme of social change it was constantly attempting to enact. The result was the first service-class revolution.
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Richard Hellie,
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Even today, fences are not as common in Eastern Europe as they are in America. One may assume that the appearance of fences reflects a desire to save labour on herding livestock and to protect crops from grazing livestock, as well as an increasing value of land. See
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