A) The Pskov Judicial Charter

The Pskov Judicial Charter had its origins in the Russkaya pravda, in laws by rulers Aleksandr (r. 1327–30, 1332–7) and Konstantin (r. 1407–14), in decrees of the popular assembly (veche) and town ruling council (ospoda), and in Pskov customary or common law. It was one of the most important sources of the Muscovite Sudebnik of 1497. In Pskov the transition from dyadic to triadic law was under way, but by no means complete. The transition was evident in the office of the ‘police officer, bailiff, guard’ (pristav, from the verb pristaviti – to bring, to deliver, to issue an order, to appoint), who had the obligation to investigate criminal offences. The plaintiff was expected to be with him during an investigation, when he was his assistant in prosecuting his case. He represented society, the community and the political authorities who appointed him (the prince and the mayor) when he witnessed agreements, investigated criminal offences, arrested a thief or debtor to enforce appearance in court and when he served as executioner.

Civil law. If it is accurate to generalize that the Russkaya pravda concentrated on procedural and criminal law, then by contrast one may state in summary that the Pskov statute was concerned primarily with civil norms: contract, property, inheritance and the legal status of the peasant.

By the 15th century the hereditary estate (votchina) was well established in Pskov. The law distinguished various forms of hereditary estate on the basis of who owned it (princely, monastic, boyaral, clan) and on the basis of how it had come into being (purchase or grant from the ruler). Pskov law theoretically permitted the sale of any property, moveable or immoveable. Land, however, was rarely a commodity in late medieval and early modern Russia because members of the seller’s clan had the right to inherit the estate and could buy it back almost without any restrictions.

From a legal economic history perspective, an interesting provision allowed the possessor and tiller of land to gain ownership of the property after four or five years. Even if an owner had written documents on such land, he lost it if he did not use it for half a decade. This did not apply to forests, where written documents were supreme. The goal here was to keep agricultural land in production. If an owner failed to do so, he could lose it to someone who would. This provision was frequently resorted to in suits.

The Pskov law of contract was the most sophisticated in this period. The Pravda did not know written contracts, all were oral in the presence of witnesses. Pskov, however, prohibited oral contracts for over a rouble.18 Pskov knew four kinds of contracts: (1) Oral. (2) A written document called a zapis’, a copy of which was preserved in the Trinity cathedral archive. Such a document could not be disputed in court. (3) Another written document, the riadnitsa, which was a record of monies paid, loans repaid, filed in the Trinity archive.

This also could not be contested. (4) Something called a doska, etymologically probably something written on a tablet or board, but by the fifteenth century a private document not filed in the Trinity archive and something which could be contested at trial. None of this entered mainstream Muscovite law.

Pskov provided a generally favourable legal climate for commerce, not surprising in the most ‘Western’ of the cities of Rus’. Storage, pawns and loans were all protected. Interest on loans (imanie) was legal and no maximum was prescribed. Disputes were to be litigated before the ruling council (gospoda) of Pskov, which is assigned judicial responsibilities in many of the other articles of the statute.

Russian inheritance law became more sophisticated in the journey from Kiev to Pskov. In the earlier period wills were oral, and they still could be in Pskov. However, while still vital or on his deathbed in the presence of witnesses, a man could give away any moveable or immoveable property to whomever he wanted and that was a legal transaction. However, written testaments came to be preferred, and they could be secured by depositing a copy in the Trinity cathedral archive. When a wife who owned land died, her widower husband could keep her property until his death or remarriage, at which time it reverted to her family. The same applied for a widow. Relatives could claim the clothes of a deceased wife if the widower remarried or of a deceased husband and the widower or widow was obliged to hand them over. Neither was required to take an oath that there were no more clothes. A widow could claim her moveable property from her father-in-law or brother-in-law and they were obligated to hand it over [1, 365].

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. 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. 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), a summary of the case with the verdict which was given to the winning litigant. The winner could use this document to advance his claims in case of further disputes. Oral market place 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 or a lord was attempting to exact a loan from a peasant. Other important forms of evidence were witnesses and the oath. Property boundary disputes could be resolved by taking an oath on the cross.

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. 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. By the end of the fifteenth century, trial by combatwas 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 [1, 367].

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 deaf in most cases was just an aide, presumably a relative, not one of the attorneyswho could only handle one case a day. Further evidence that professional lawyerswere 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. 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. Only in 1864 did the Russian autocracy permit a bar to develop.

System of courts. Pskov developed a sophisticated system of specialized 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.

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 of the 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.