The Russian Orthodox Church was a key beneficiary of judicial immunity. Collectively the largest landholder in Muscovy in the seventeenth century, the Church had enjoyed fiscal and judicial privileges since the time of Christianisa- tion in 988.[137] The most undisputed immunity enjoyed by the Church was the right to adjudicate cases involving spiritual issues over all Orthodox Christians. In the seventeenth century spiritual issues were defined widely, ranging from blasphemy, heresy and witchcraft to family law, inheritance and divorce. These cases were tried in bishops' courts, with the patriarch as appeal.
More problematic was secular jurisdiction over the Church's dependants. In the seventeenth century the state claimed a role here, providing in the Chancellery of the Great Palace a higher instance for trials of Church dependants and clergy (except for the patriarch's people) in secular cases. In practice, however, Church people litigated in a dizzying array of venues.
Since at least the fifteenth century Muscovite grand princes regularly granted charters of judicial, fiscal and/or administrative immunity, or privileges of appeal directly to the tsar, to monasteries, private individuals, collectives of artisans and the like, reserving to the tsar only criminal law. The patriarch adjudicated over laymen and clergy in the parishes and monasteries on his lands under an immunity received in 1625 and affirmed throughout the century. Metropolitans, archbishops and bishops or the patriarch also granted immunities to monasteries or communities from their own courts, allowing monastic hierarchs to judge their dependants or allowing appeal to the tsar, not the bishop. Immunities could be limited to a certain type of crime or value of suit; the options were myriad and almost every imaginable combination can be encountered. Although the state proclaimed a policy of curtailing immunities in the mid-sixteenth century, they continued to be awarded through the seventeenth. The result was that almost each ecclesiastical community had a different relationship with Church and state courts, often preferring high-level secular courts to Church courts.
In the seventeenth century the state tried to gain jurisdiction over Church people. The Conciliar Law Code of 1649 (hereafter Ulozhenie) affirmedthe patriarch's judicial autonomy (chapter 12), but created a Monastery Chancellery (chapter 13) for clergy and laymen in all but spiritual suits.[138] This prompted the 1667 Church Council to claim judicial authority over clergy in all affairs, even in criminal cases, where it established the primacy of Church investigators in a shared Church-state criminal trial. The Monastery Chancellery lost its juridical authority and was abolished in 1677, only to be reinstated in 1701 by Peter the Great.
As landlords, Church institutions exercised legal jurisdiction over their lay staff and peasants in petty crime. In principle, criminal cases involving Church dependants were to be judged by the tsar's courts. Even here, however, some immunity charters allowed criminal jurisdiction, and many monasteries routinely usurped this authority and judged and punished criminal suits in-house.[139]In monasteries the hegumen often delegated the task of adjudication to the treasurer or cellarer, who presided over court with a council of monastic brothers; very large monasteries also maintained a network of local judicial officials. Bishops similarly divided their lands into 'tenths' and appointed an official (desiatinnik) in each area. These local judges were so harsh that bishops often awarded immunities from them to monasteries or parish churches.[140]The patriarch maintained a hierarchy of central and local judicial offices in his dominions as well. Church courts used Byzantine canon law for spiritual issues and a combination of Church and secular law for secular jurisdiction.[141]
All in all, never in the seventeenth century did one single principle govern the issue of jurisdiction for people associated with the Church. All depended upon one's social status, institutional affiliation and its immunity rights, physical location and type of crime.
A second large incidence of immunity from the tsar's judicial authority related to dependant status, that is, serfdom and slavery. The vast majority of the Muscovite population were peasants and in the seventeenth century a growing portion of them were transferred (by purchase, by tsar's grant) to private landholders. Perhaps 10 per cent of the population were slaves.[142] The right to own peasants and slaves was limited to the Church, the traditional cavalry army (Moscow ranks and provincial gentry) and Moscow merchants (gosti), who also had exclusive rights to ownership of hereditary (votchina) and service tenure (pomest'e) land. Landlords traditionally enjoyed jurisdiction over dependant peasants and slaves in petty disputes and the culmination of enserfment in the 1649 Ulozhenie simply intensified their coercive control. Landlords relied on village communal institutions for basic law and order, overseen by their bailiffs; in the largest estates a bailiff would hold court in a formal venue.[143]
Large areas ofthe Russian Empire, however, did not know serfdom. Serfdom was limited to the most fertile agrarian lands - the centre, the north-west and the expanding southern borderlands. In the north and Siberia the challenges of distance, low yields and labour scarcity made it impossible to keep peasants fixed to land and landlord. In areas without serfdom, peasants enjoyed local self- governance, subordinate to the governor's administration. Similarly enjoying more judicial autonomy than serfs were groups who stood midway between peasants and the privileged military elite, the so-called 'contract servitors'. These included military or quasi-military units such as engineers, artillery, cossacks, musketeers, postal riders. In addition to their military functions, they farmed (land was often granted communally to the group, rather than to individuals) and/or produced and sold goods. They could not own populated land or dependent labour. As we shall see below, jurisdiction over them was complex.
In addition to Church and landlord jurisdiction, much of the population of seventeenth-century Russia was exempt from the central administration in all but criminal cases because of ethnic, religious and colonial status. Muscovy's colonial policy was laissez-faire in the seventeenth century, tolerating diversity in law, judicial institutions and elites.
The acquisition of the key trade depot of Kazan' in 1552 served as a springboard for Russian expansion into the middle Volga and steppe.[144] Expansion into the steppe was in full swing by the seventeenth century, with fortified lines and frontier outposts staffed by Russians and elites of the Tatar, Mari, Mordva and other native peoples. Such border troops were granted pomest'e as cavalrymen or were enlisted into contract servitor ranks. In the 1650s and 1660s the state also transferred to the southern frontier servitors from recently conquered Smolensk and Polotsk, often also transferring peasants from the centre to populate their lands. All these military servitors and non-enserfed peasants were subject to the governor's authority. But indigenous communities were permitted to use their own administrative and judicial institutions and Islamic or customary law. Natives were subject to the governor only in criminal cases.
Siberia presented an equally complex task of governance when Russia subdued the west Siberian khanate in the late sixteenth century. By the mid- seventeenth, Russians had settled in thin lines along the southern steppe frontier and had established trade depots along the Ob, Enisei and other rivers to their mouths in the Arctic. The Russian population in Siberia was small, estimated by the end of the century at 25,000, including around 11,000 military servitors, about 2,500 urban dwellers (posadskie) and the rest peasants.
137
Hieromonach Nikolai Iarushevich,
138
Richard Hellie (trans. and ed.),
139
A. P. Dobroklonskii, 'Solotchinskiimonastyr', ego slugiikrest'iane vXVII veke',
140
For discussion of bishops' authority, see Georg B. Michels, 'Ruling without Mercy: Seventeenth-Century Russian Bishops and their Officials',
141
George G. Weickhardt, 'Pre-Petrine Law and Western Law: The Influence of Roman and Canon Law',
142
Richard Hellie,
143
See the extensive correspondence ofboyar B. I. Morozov with his bailiffs in A. I. Iakovlev (ed.),
144
Although dated, this Stalinist-era collective work has good coverage of middle Volga and Siberia: