The tsar's courts were for high crime, including land disputes, service remuneration queries, felonies (recidivist robbery and theft, murder) and political crime, here construed to include religious crime (treason, heresy, witchcraft). The Church participated in cases of heresy, but punishment was meted out by the state. The state had no compunction in using the legal system to protect its interests: the early Romanovs, for example, vigorously persecuted any whiff of political dissent by instructing governors to expedite cases of suspected treason. Such "word and deed" (slovo i delo) cases (accusations of treason) continued for the first four decades of Romanov rule, but yielded few serious results. Governors often found peasants guilty of nothing other than ill-considered words about the tsar blurted out in drunken revelry. By mid-century the intensity of such prosecutions waned, although crafty litigants often falsely claimed a "word and deed" case to delay their own prosecution.
Basic law and order was left to local communities and their norms; local languages, traditional law, and elites held sway from German codes in Livonia to East Slavic customary law in peasant villages to sharia law in Kazan to Cossack law in the Don and Hetmanate and native custom in Siberia and Bashkiria. The Church had jurisdiction over all Orthodox on issues of belief and religious practice, as well as lower-level civil adjudication in minor disputes for its lay dependents. It jealously protected its authority over the prosecution of clerics in non-religious crime. In 1649 the state created a Monastic Chancery to collect church taxes and try clerics in civil issues, but in 1669 the Church successfully negotiated shared jurisdiction over such cases. The vast lands of the patriarchs had particularly broad immunities from state jurisdiction.
A rudimentary handbook of East Slavic customary law (The Russian Law), compiled by the twelfth century, resembles other medieval European codes of common law; it circulated in Muscovy through the early modern centuries but was superseded for procedure and punishment by grand-princely lawcodes (1497, 1550, 1649, 1669) and individual decrees. Most of Byzantium's great heritage of secular Roman law was not translated into Slavic or transferred to the Rus' lands, although Byzantine church law was. In the seventeenth century, in lively exchange with cultural centers in Ukrainian- and Belarus'an-speaking lands, particularly among churchmen, some Byzantine law was revived in Muscovy; its influence, and that of the Lithuanian Statutes of the Grand Duchy, is evident in the 1649 Lawcode and 1669 Criminal Articles.
Muscovy's legal infrastructure was rudimentary compared to the sophisticated courts, personnel, and jurisprudence of Byzantium and its European contemporaries. Chanceries in Moscow and governors in the provinces constituted an empire- wide judicial network. Governors were not trained in the law, but were advised by scribes trained in Moscow chanceries; there were no professional lawyers or notaries, no law schools. For capital cases, central chanceries supervised local courts each step along the way, as time-consuming as that was. Procedure was followed and recorded in case transcripts, which also included the legal bases of verdicts. Justice was not arbitrary. Punishments in local criminal cases often tilted towards the lenient, particularly because reputation was included as evidence. Invoking "the tsar's mercy," judges regularly reduced sentences prescribed by written law, deferring to social class or local sentiment. But when professional criminals, particularly strangers, plagued a community, locals welcomed the court's punishments. At the highest levels the state did not hesitate to use tremendous force in prosecuting political crime; Valerie Kivelson has chronicled the sickening excesses of torture in witchcraft cases.
Like that of their European contemporaries, Muscovy's written codes and practice were infused with violence. Evidencing some influence of the resurgence ofRoman law across Europe in the sixteenth century, Muscovy developed a form of the inquisitorial procedure in which the state controls arrest, investigation, and resolution (as opposed to the accusatory procedure used for non-criminal disputes). But, reflecting Muscovy's lack of professional jurisprudence, the process was less secret and less centered in judges, jurists, and written documents than in European practice. As in European criminal law, Muscovy used torture to win confessions and provide information of co-conspirators and intent. In Muscovy torture was uncomplicated—a knouting usually in strappado position—with fire or even water torture used occasionally for the most serious cases. Criminal punishments could include fines and brief prison sentences (jail was generally used for custody during trial), but were primarily corporal, especially in the 1649 Lawcode influenced by the Grand Duchy's norms. This took the form of whippings by the heavy knout or the lighter bastinadoes (Figure 7.2). With the influence of Byzantine versions of Roman law in the 1669 Criminal Code, bodily mutilation is prescribed, but this was a relatively short-lived phase because of the evolution of exile.
Exile became a common form of punishment in the seventeenth century when the law began to defer capital punishment for recidivist felons. In the sixteenth century, exile had been primarily used for disgraced political figures, in lieu of killing high ranking men and/or kinsmen. Towns and monasteries in the center (Iaroslavl', Uglich) and the north or in Perm' and Viatka lands hosted such exiles. By the end of the sixteenth century, however, paralleling European practice, the state began to use exile (preceded by knouting) to capitalize on the labor power of felons, even capital criminals. The death penalty was narrowed to the worst offenders (traitors, ringleaders of rebellion, witches, unrepentant heretics, hardened recidivist felons) and exiles were sent across the empire: Tomsk, Ufa, Tobolsk or "on the Lena" in Siberia; southern frontier towns from Belgorod to Kyiv; Kazan and Middle Volga towns to Astrakhan; the Northern Dvina basin and northern
Figure 7.2 The ethnographic illustrations of the travel account of Adam Olearius, secretary to Holstein missions to Moscow in the 1630s and 1640s, were based on his eyewitness sketches; here he depicts five types of flogging as judicial punishment. Courtesy of Dartmouth College Library.
towns such as Pustoozero, Kholmogory, Kol'skii ostrog; to the south, the northern Caucasus (the Terek).
While in exile, criminals were not imprisoned; governors simply had no resources. As discussed in Chapter 3, most Siberian exiles, accompanied by families, were sent to serve in farming, artisan work and trade, and garrison duty. Governors counted on distance to keep exiles from escaping. After a brief stage in the late seventeenth century when fingers and ears were severed to mark the criminal, less debilitating branding or tattooing was used. The law direly warned that if a person so branded showed up outside of Moscow, he would be subject to immediate capital punishment as an escaped capital criminal.