Muscovite law in the seventeenth century knew two types of procedure - accusatory (sud) and inquisitorial (sysk), the latter being used primarily but not exclusively in criminal cases. In an accusatory trial, litigants presented witnesses and evidence, while in the inquisitorial the judge directed the search for evidence. Accusatory suits, discussed in Ulozhenie chapter 10, were used primarily for material loss - land disputes, damage to crops and farm equipment, contracts and debts. A typical litigation began, even in criminal cases, with a complaint that listed the circumstances and value of the loss. The plaintiff couched his petition in formulaic language suggesting his personal dependency on the tsar. Each social class used a self-deprecating diminutive to describe itself - servitors styled themselves the 'slaves' of the tsar, clergy, the tsar's 'pilgrims', peasants and urban taxpayers, the tsar's 'orphans'. Litigants used the diminutive version of first names: Ivan presented himself as 'Ivashko', Vasilii as 'Vaska'. The conceit was that the tsar was personally bestowing his justice and mercy on the litigant, through his representative, the judge.
In an accusatory trial, the judge summoned the litigants, itself a complex process due to the expanse of the realm and demands of military service. Laws of the seventeenth century established detailed rules about time limits for appearing for trial, default for late appearance and norms for delay of trial.
Once assembled, both sides of the story were heard and the litigants presented evidence. Written documentation was preferred; each side could also present witnesses and reject any ofthe other's proposed witnesses.[156] The lawmandated that if they agreed on a small number of witnesses, they were to abide by that testimony. In the absence of documents and definitive witnesses, judges put litigants into a face-to-face confrontation (ochnaia stavka), or as a last resort asked the litigants to submit to an oath, which usually resulted in one side settling with the other before taking the oath.[157]
Many cases were not carried to conclusion, judging by extant records. Some of this might be loss of records over time. But a great proportion of cases were settled out of court, demonstrating the persistence of traditional concepts of distributive justice. Community sentiment valued social harmony and stability over strife and vindication. Even criminal cases were settled, contravening the law. Murder cases, for example, might be settled so that an aggrieved widow would be provided with upkeep for herself and her children. Other cases would be abandoned before conclusion because of expense, or preoccupations of military service, or waning of interest.
In an inquisitorial suit, the judge took the active role. When a complaint of major crime came to him, he swung into action, ordering the arrest of the accused, the investigation of the crime scene, corpse or injured party, and the defendant and other important parties to be put on surety bond (poruka; whereby a group of friends, neighbours and/or kinsmen guaranteed that they will show up for trial). Depending upon the alleged crime, the defendant was held in jail or released on surety.
The judge collected evidence through a few means of questioning. Witnesses could be questioned individually or the judge could order a survey of the community. Traditionally reputation and standing in the community had been a factor in assessing guilt and punishment in Muscovite litigation. By the mid-seventeenth century, however, the community inquest was declining in significance in favour of more 'rational', that is, eyewitness, evidence. The inquest was finally abolished in 1688 because of abuses.
The judge's most powerful weapon in questioning the accused and others implicated by him was torture, regarded as an ordeal of God. Such questioning proceeded in stages: simple questioning, questioning in the presence of executioner and instruments of torture and under torture. The goal was to elicit confession and information about intent and accomplices. The methods of torture were not ornate, usually flogging, but for very serious accusations burning with fire was done.
A judge resolved a case after the entire transcript of the proceedings had been copied afresh and read to him. This lengthy document included copies of the initial and subsequent petitions presented by litigants in the course of the trial, all the judge's orders to subordinates, all their reports, copies of surety documents, excerpts of relevant laws and transcripts of torture sessions and community investigations. In most criminal trials the governors or guba authorities sent the case to Moscow for decision, although the 1669 Criminal Articles allowed investigators (syshchiki) for very serious crimes to resolve cases and carry out punishments, including execution, on the spot.
In criminal cases, judges rarely invoked the full terror of the law. They often sentenced felons to punishments less severe than prescribed by law, taking into account the circumstances of the crime, intent and community standing. In 1650, for example, a woman who admitted conspiring to murder her husband was spared execution because the community vouched for her character and maligned that of the deceased.[158] Extending the fiction that the litigant was appealing to and being judged by the tsar, after sentencing judges often proffered 'mercy' in his name, reducing punishments. Exceptions to this flexible sentencing pattern concerned the most serious crimes - political treason, heresy and witchcraft and the like - for which punishments were very severe.
In cases where material damage was at stake, losing defendants paid court fees, the value of the suit and sometimes a fine for losses incurred in the trial process (volokita). In cases of physical or symbolic harm (dishonour), sanctions ranged from fines to short periods of incarceration, exile to hard labour and a range of corporal punishment from beating to flogging to execution (various types of corporal punishment in this period are illustrated in Plate 21). Punishment was not administered equally across social classes. Although the military servitors did not enjoy explicit protections from corporal punishment, de facto they were rarely subject to it, either because of a provision of 'mercy' or because the law avoided it.
When cases were appealed, it usually took the form of judges applying to a higher instance - for example, from the governor to his chancellery to the boyar council and the tsar - to resolve a disputed or difficult case. Corporal punishment, even execution, was administered promptly. The collection offees and fines could drag on for years, either because of poverty or vindictiveness. Many case transcripts end with repeated appeals to the court to force a losing litigant to settle his obligations.
Muscovite judicial practice was in many ways more medieval than early modern in its distributive justice: it widely used settlement out of court, countenanced reputation and community standards as evidence or mitigating factors; it bestowed mercy to lessen sentences and considered torture a credible form of evidence collection. Nevertheless, as the century developed, similarities with contemporary European practice emerged, such as a rationalisation of forms of evidence, standardisation of norms and procedure, a heightening of punishments and a more extensive claim of tsarist power.
Codifications of the law
The seventeenth century was remarkable for the generation and codification of secular law. Going into the seventeenth century, judges had available to them several codes of law. The Russian Law (Russkaia pravda), dating to Kievan times, was edited in an abbreviated version around 1630, but where and how its norms, that emphasised debt, slaveholding and punishments, were current is unclear. The Law Code (sudebnik) of 1550 of 100 articles, which extended the 1497 Law Code and was later extended by over seventy-three supplementary articles, clearly remained in force. It was primarily an advisory to judges, setting fees for services in an attempt to limit judicial corruption, decreeing punishments for some crimes and setting out procedural rules and standards of evidence. The 1550 sudebnik was followed by a longer (231 articles) edition of 1589 for the north and a compiled sudebnik of 1606-7 that added later decrees on landholding, debts and enserfment and developed the inquisitorial procedure. It was notable for being divided into thematic chapters, a first step towards more rational codification.[159] In addition, the Lithuanian Statute of 1588 was translated and disseminated in Moscow chancelleries, and Byzantine secular law became influential by the 1620s.[160]
156
George G. Weickhardt, 'Due Process and Equal Justice in the Muscovite Codes', RR 51 (1992): 463-80.
157
For more detail on trial procedures, see my
158
Nancy S. Kollmann, 'The Extremes of Patriarchy: Spousal Abuse and Murder in Early Modern Russia',
159
Three
160
I. I. Lappo (ed.),