B) The Novgorod Judicial Charter

The Novgorod Judicial Charter is extant in only one copy, and is incomplete. It is generally assumed that it had some relation to the law of the Republic of Novgorod, but the extant copy was clearly written under Moscow’s dictation after the Republic’s annexation in 1478. Sorting out what were Novgorodian norms prior to 1478 from what was mandated by the Moscow occupation forces seems to be impossible – with one exception: a number of articles dictate that the Muscovites and the Novgorodians were to function together.

The Novgorodian mayor was to try cases together with the governor sent from Moscow, and the Moscow grand prince had the right to hear appeals of any verdict rendered in Novgorod. Moscow’s governor could also hear cases independently.

Many of the Novgorodian provisions were the same as or variations on what existed in Kiev and Pskov. The judicial process was to be orderly, with no intimidation or use of force. Only two friends could accompany a litigant to trial. If there were more than two, the two allowed had to pay a fine. Anyone who assaulted a bailiff delivering a summons automatically lost the case.

Trials had to be expeditious, no longer than a month. Land disputes had to be resolved in two months. In what must have been a Muscovite addition, local officials (a mayor or military commander) were to be fined the ruinous sum of 50 roubles for any delay. The plaintiff had the right to use bailiffs to compel the judge to complete the case on time. In another sign that the Novgorodian legislators were aware of the harm resulting from ‘the law’s delay’ (Shakespeare’s phrase), any litigant who failed to show up on time when a case had been postponed automatically lost the case. Similarly, if a litigant had a representative/attorney to represent him and the representative died, the litigant had to choose another one, appear himself or lose the case.

These provisions allowed only one postponement of a case. The central issue of fees for judicial services was spelled out, including the delivery of summonses. The loser had to pay the court fees promptly. A losing defendant had a month to pay the plaintiff, or the latter could seize his person, presumably to enslave him. If the loser hid, then all Novgorod was to punish him. This is a wonderful statement of the essence of the dyadic process: either the loser does what the court decrees, or the entire community will punish him.

A new principle was introduced in land disputes. First, the plaintiff had to sue on the issue of forcible seizure of the property, and then about the issue of actual ownership. This resembled English common law, which prescribed that suits had to be prosecuted one at a time and that they could not be mixed. One might note here also that Novgorod did not adopt the Pskov four- or five year land possession rule. This was probably for several reasons: Novgorod had far more land than did Pskov, so someone who wanted to farm could easily find land no one else was using. Moreover, Pskovian land was of higher quality and thus more valuable than was the case in the Republic of Novgorod, which overall was more concerned about urban issues than was Pskov.

Another new procedural rule was that a plaintiff had to take an oath on the cross (kiss the cross) before a suit would be heard. Failure to do so by either the plaintiff or the defendant resulted in automatic loss of the case. Oath-taking was not decisive in such cases, but Novgorod had more faith in such evidence than did earlier legislators, which reflects the fact that Christianisation made considerable progress in Russia among the ‘masses’ between 1350 and 1480. Presumably this was also an ‘efficiency’ measure: if a superstitious litigant would not even kiss the cross before the case began, it saved the trouble of hearing the case itself. Representation, by an ‘attorney’ or a relative, was allowed, but the litigant had to kiss the cross first. A son could kiss the cross for his widowed mother, but if he refused, she had to do it at home. In suits over boat ownership, the ‘attorney’ and witnesses had to kiss the cross [1, 371].

Officials also were required to swear that they would be honest in court. Honesty was mentioned in the context of the Moscow agent’s (tiun) court, where itwas mentioned that each litigant had to be attended by a Novgorodian bailiff (pristav) and again the matter of the oath was mentioned, this time for the judges. One may assume that the bailiffs were to assist the litigants in matters such as bringing witnesses to court.

In an ambiguous article, the Novgorod Judicial Charter enumerates what today would be termed ‘felonies’: theft, robbery, battery, arson and homicide, as well as the people who might commit them. The ambiguity lies in whether the accused in these felonies was a slave, or all kinds of other Novgorodians. The issue of slavery – presumably whether or not someone was a slave – was added to the list. Slavery was an extraordinarily prominent institution in Novgorod, and it is surprising that more of the charter is not devoted to that issue. (Perhaps it was in parts that don’t survive.) Cases could be initiated by citizens (part of the dyadic process) by swearing an oath and signing the accusation. Once a complaint had been made, officials were to bring the accused to court. Force (sila) could not be used to bring in the accused, one assumes because the defendant was still only accused but not yet found guilty.

Officials who employed unnecessary force were themselves guilty of a crime. A similar uncertainty is present in article 37, where the issue seems to be felonies committed by slaves, claims against them leading to enslavement by the victim-plaintiffs and relationship to the previous slave-owner. As in most slave systems, the former slave-owner is liable for the conduct of his slave and must compensate the victim for any wrongs committed by his slave. Slave systems varied in the degree to which they recognised the humanity of slaves (as Pskov said, the slave is not an animal), his responsibility for his actions, his ability to be a witness in court and so on, but all systems held the owner ultimately responsible for the actions of his chattel. Novgorodian law did not allow such an accused to sell himself to a fourth person, who had to assume liability for his chattel’s wrongs. Similar ambiguity is inherent in article 38, which seems to say that a slave accused of a crime must kiss the cross or else settle the case without the aid of his owner. One assumes that a slave who opted to defend himself risked becoming the slave of the plaintiff. As many slaves had chosen their owners to whom they sold themselves, the law seems to say that, if the slave wanted to stay with his former master, he had to help him out by mounting a credible defence, or else risk being transferred to an owner he did not know or choose. For a slave who was innocent of the charges, this presented a dilemma – either defend yourself properly, or fall into alien hands [1, 373].

ANNEX ‘A’

The Novgorod Judicial Charter [5]

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On Court[s] and On Surety [Deposits?] for Those

Who Commit Assault and Robbery

Having conferred with [our] lords the grand princes, Grand Prince of All Rus' Ivan Vasilievich [III (1440-1506)], and his son, Grand Prince Ivan Ivanovich [1458-90] of All Rus', and according to the blessing of the hieromonk Feofil who was named to the archbishopric of Novgorod the Great and Pskov, so [then] the mayors of Novgorod, and the Novgorod millenariuses, and boyars, and ranking men, and merchants, and taxpaying townsmen, all five boroughs [of Novgorod], [and] all Lord Novgorod the Great at assembly in Iaroslav's court decided:

1. Hieromonk Feofil, who was appointed to the archbishopric of Novgorod the Great and Pskov, is to conduct his own court, the church court, according to the canons of the Holy Fathers [of the Church], [and] according to the Nomocanon; and he is to judge everyone equally, whether boyar, [a man of] middling means, or a poor man [lit., a young man].

2. And the mayor is to conduct his own court [together] with the Grand Prince's lieutenant according to custom; and without the Grand Prince's lieutenant the mayor is not to conclude [judging] any case.

3. And the Grand Prince's lieutenants and overseers are to conduct their own judicial review according to custom.

4. And the millenarius is to conduct his own court.

4a. And they [the judges named above] are [all] to conduct [their courts] justly, according to [the oath to which they swore by] kissing the cross.

5. And at court [there should be no more than] two men. If someone selects someone [else to represent him in court], then he must allow him [his representative] to conduct the case.

5a. And [no one] is to remove the mayor and millenarius and the archbishop's lieutenant and their judges from [their] court[s].

6. And a complainant is not to slander a defendant, nor the mayor, nor the millenarius, nor the archbishop's lieutenant, nor any other judges, nor judges to whom the case was referred for decision. And if someone slanders the mayor, or the millenarius, or the archbishop's lieutenant, or other judges, or the judge to whom the case was referred for decision, or [if] a complainant [slanders] a defendant at court, or at the referral [hearing], or at the [dueling] field, then the Grand Prince and Novgorod the Great are to take from the guilty party for the slander 50 rubles [if he be] a boyar, 20 rubles [if he be] a man of middling means, and 10 rubles [if he be] a poor man; and the defendant is to take [his] losses [from the slanderer].

7. If someone is involved in a suit over land, [whether it be one] village, or two, or more, or fewer: until the hearing he is not to enter the land, nor send his own people [to that land]; rather, concerning the [question of ownership of the] land, he is to call [the other claimant] to court. If [he] wins [the suit] about the land, then he is to take from the judge a charter [certifying his right to] the land, and [he is to collect his] losses from the defendant; and from the land the judge is to take no fee.

8. And from [each] ruble [penalty prescribed by a] court, the archbishop, and his lieutenant, and the steward for [affixing] the seal take 1 grivna [=10%], and from [each] ruble [penalty prescribed for a decision] without a [full] court hearing [because one litigant did not appear at court], the archbishop and his lieutenant and the steward are to take 3 dengas [= 1.5%] for [issuing] the charter [about the land]. And the mayor and millenarius and their judges and [any] other judges are to take from [each] ruble [penalty prescribed by] a court 7 dengas [= 3.5%], and from [each] ruble [penalty prescribed for a decision] without a [full] court hearing 3 dengas [=1.5%].

9. The mayor, and millenarius, and archbishop's mayor,[1] and their judges, and [any] other judges are to complete their cases within a month; they are not to drag out cases beyond that term.

10. If someone in a suit about land accuses someone of assault or robbery: then first decide [the charges] of assault and robbery; and [then] decide the case about the land. If they convict someone of assault and robbery, then the Grand Prince and Novgorod the Great are to take from the guilty party: 50 rubles from a boyar, 20 rubles from a man of middling means, and 10 rubles from a poor man; and the [other] litigant is to take [his] losses [from the convicted man]; and [then hold] a hearing about the land. If there is no hearing in Novgorod [about the land], then [there shall be at least] a hearing on [the charges of] assault and robbery.

11. And if some complainant suddenly wishes to initiate a suit over assault or robbery and land, then the defendant is to answer him; and if he wins [the suit] over land and assault and robbery, then the judge is to give him a charter [certifying the results of the suit] over land, assault and robbery.

12. If someone wins a suit against someone over land and takes a judgment charter [certifying his victory], then he is to go to his own land according to the judgment charter, and he is to possess that land; and [he is to pay] no fine for that.

13. If a complainant summons a defendant in some suit, and presses his own case [against the defendant], and if the defendant [has his own] suit against the [original] complainant; then the [second] litigant is to summon the [original] complainant [over his suit], and [so] try one and the same case [for both litigants simultaneously]; but do not accept other summonses against him in some other case, [and] do not instigate Novgorodians [against him], [but conduct the case] without deception in accordance with [the oath you swore when you] kissed the cross, until those cases [specified above] are resolved.

14. If someone initiates some suit against someone, without having kissed the cross to this charter, then, having kissed the cross, the one may begin the suit; and if a defendant [arrives to answer the charges] without having kissed the cross to this charter, then he is to answer [only after] he has kissed the cross [to be faithful to the provisions of this document]; if he does not kiss the cross, then he loses [the case].

15. If a defendant in some suit presents himself at court, and the complainant will not have kissed the cross [to be faithful] to this charter, then the complainant is to kiss the cross alone, and the defendant in his place answers [the charge]; but [if] he does not kiss the cross, then he loses [the case].

16. If someone has a complaint against a widow of a great [man] or [a man] of middling means, and if she has a son, then her son is to kiss the cross [both] for himself and his mother; if the son does not kiss the cross for his mother, then [his] mother is to kiss the cross for herself in [her] home in the presence of the plaintiff and the Novgorod bailiffs.

17. And a boyar and a man of middling means, and merchant are to kiss the cross [in suits] both over their own land and [their] wives' [land].

18. If they summon a boyar or man of middling means or merchant to his land, or to [his] wife's land, then he [himself] is to answer [them] or send a representative in his place and in [his] wife's [place], [and] kiss the cross on that.

19. And the representative [whom the defendant nominated] and a character witness are to kiss the cross at the hearing.

20. And those judges to whom [a case] was referred [for final decision] shall complete the case [and issue a decision].

21. If judges refer [the case] to [other] judges [for review and final decision], then the judge [of the original hearing] is to order his secretary to write a record of the hearing; and the referring judges are to affix their seals to this copy [of the trial record].

22. And there shall not be a character witness to testify against a character witness. And neither is a resident of Pskov nor a full slave to serve as character witness [against a free Novgorodian]. But a slave may act as witness [only] against [another] slave.

23. If some [litigant together] with some other [litigant] refers to [the same] character witness, then the deputy is to take his fees for 100 versts [= 66 miles] according to custom, and the bailiffs and the archbishop's bailiffs and the town criers and the men who delivered the summonses [all are to take] 4 grivnas for 100 versts. If some litigant refers to a witness [who is] more than 100 versts [from Novgorod], and if the other litigant wants to refer to that same witness: then [they may both] refer to him [and the bailiffs shall summon him]; if the other litigant does not wish to refer [to a witness who is] more than 100 versts [from Novgorod], then he is to present his own witness at court; and he will have three weeks to deliver the witness for [every] 100 versts [from Novgorod that the witness lives]; and the loser [in the case] is to provide the deputy's fees for 100 versts.

24. If someone goes to court with someone about land, [and] then requests a postponement [to obtain additional] evidence, or [to summon] co-owners [of the land in question], then give him one postponement [of] three weeks for [every] 100 versts [he needs to travel to locate the additional evidence or co-owners]; but if [the evidence or co-owners] are further or closer [than 100 versts], then [set the postponement] according to this allowance [i.e., 3 weeks for every 100 versts]; and he [the litigant who requests the postponement] is to refer by name under oath to the co-owner with whom the evidence is stored; and he is to obtain the agreement of the other litigant; and the mayor is to affix his seal to the postponement charter. And there is to be no other postponement. And a grivna [fee] is to be collected for the postponement. Likewise, all other judges are to award a postponement according to the same [principle]. And if a litigant does not obtain a postponement [charter] with [the appropriate] seal, then the judge, before whom the case was being heard, is to declare him to have lost the case; and do not wait [to decide the case] for the postponement term. And [judges are to handle] postponement [requests] in [all] other cases according to custom.

25. And people of good repute are to be in attendance in the overseer's quarters [for a trial], one person for each bailiff from [each litigating] side; and [furthermore] they are to judge [cases] justly, having kissed the cross to this charter.

26. And the referral [hearing] is to take place in the archbishop's quarters, and at the referral [hearing] there should sit in court from each borough one boyar and one man of middling means, and [any] other persons [who attended the original] hearing, together with bailiffs; and no one else shall be [in attendance] at the referral [hearing]. And the referral judges shall hold hearings three times a week, on Monday, Wednesday, and Friday. If some referral judge does not hold a hearing on that day [sic], then take [as a fine] 2 rubles [if he be] a boyar, and 1 ruble [if he be] a man of middling means. And the referral judges are to take no bribe from the referral hearing, nor are they to befriend [a litigant] by any deception at the referral hearing, in accordance with [the oath they swore when they] kissed the cross. And if someone is to conduct a referral hearing, then he is to kiss the cross to this charter once and for all.

27. And the mayor and millenarius and the archbishop's lieutenant and their judges and all other judges are to kiss the cross [to swear that they] will judge justly.

28. And [judges are to] complete cases on land [disputes] within two months, and [they are] not to delay [such cases] more than two months. Just as soon as the official responsible for establishing the border comes [to court] from the border [measurement], then the same mayor is to complete the case in another two months, and [he] is not to delay [the case any] longer. If some mayor, having sent the border inspector [on a case], then [himself] leaves town for an extended period without having finished the case, then the Grand Princes and Novgorod the Great [will exact as a fine] 50 rubles from that mayor, and the litigant takes [his own] losses [from him]; if a millenarius or an archbishop's lieutenant goes out of town for an extended period without having completed a case, then the Grand Princes and Novgorod the Great are to take 50 rubles [from him as a fine], and the litigant takes [his own] losses [from them].

29. If a judge does not complete a case over land within two months, then the litigant is to take bailiffs from Novgorod the Great against him [the judge], and he [the judge] is to finish that case in the presence of those bailiffs. If the referral judges do not return [the case] to the judge within [the specified] two months, then [that] judge is to go with the litigant to Novgorod the Great, and [he is to take] bailiffs against the referral judges, [and] then the referral judges are to return that case to the [original] judge in the presence of the bailiffs, and the judge is to complete that case for the litigant in the presence of those same bailiffs.

30. If litigants request a postponement from some judge and [they receive] postponement [charters] with [the judge's] seals, and [then] that judge is replaced, and someone [else] will be the judge in his place, then those litigants are to appear before those judges [sic] and present their postponement [charters] for that postponement, and that judge is to judge that case and complete [it].

31. If one litigant appears before the judge at the time specified [in the postponement charter], and places his postponement charter [before the judge], but the other [litigant] does not appear, then the judge is to issue against him a [judgment] charter, and [the judge is to] attach the postponement charter to that [judgment charter], but he is not to summon him [again].

32. If a representative be in someone's place [and he] received a postponement, but before [the expiration] of that postponement the replacement died, then at the [expiration of the] postponement the litigant himself must appear [in court] or [he must nominate] some other representative [to appear in his place]; if he himself does not appear or if he does nominate another representative [to appear in court in his place], then he loses the case.

33. If someone wins [against] someone [a case] over theft in the presence of physical evidence, or assault, or robbery, or homicide, or slavery, or over a dueling charter, then the judges are to take 4 grivnas for a judgment charter [at the conclusion of litigation], and 2 grivnas for [issuing a decision that did not require litigation].

34. If someone takes a judgment charter against someone, and he [who lost the case wants to negotiate] something with the judge or plaintiff, then he is to [complete] negotiation with them [within] a month; [but] if he does not begin to negotiate in that month, then take bailiffs from the [Novgorod] assembly against him, and [he] is to seize him in the town or village with those bailiffs; if he begins to hide from the bailiffs, then all Novgorod the Great is to punish him.

35. If a character witness implicates someone, then [the litigant] has two weeks to present [the witness to refute the charge]; if in those [two weeks the litigant] does not summon the witness, then summon the litigant; if the litigant hides the witness, then his testimony is not acceptable [lit., then that testimony is not testimony], and award the decision to the other litigant. If someone [who is accused of a crime] does not begin to summon a witness or litigant in those two weeks, then issue against him a judgment charter according to that testimony.

36. If someone goes to court with a man [slave?] of the archbishop, or a boyar's [man], or a [man who serves] a man of middling means, or a merchant's [man], or a monastery's [man], or a [man] of a [Novgorod] borough, or [Novgorod] street over [a charge of] theft, assault, robbery, arson, homicide, [or] slavery, and whoever [of such plaintiffs] will kiss the cross to this document, that his word is just, and give his hand [guarantee? provide surety?] according to his oath, that that [accused] man is a thief and robber or arsonist or murderer or slave, then in whatever district the archbishop's lieutenant or overseer is, then they are to present that man at court; if the overseer is a boyar's [man] or [overseer] of a man of middling means, or of a merchant or monastery, or from a [Novgorod] borough or street, then [they] likewise are to present [the accused] at court; and [they] are to take three weeks for [each] 100 versts [that they have to travel in order to apprehend and present the accused at court]; and [if the accused] is nearer or further [than 100 versts from Novgorod, they are to calculate the time allotted them] according to this formula; and [they are] not to employ force against them [to bring the accused] to court, and whoever exercised [unnecessary] force will stand accused.

37. If they win a case against someone, and he is given away [as a slave to the winner] in a [judgment] charter, then he is not to live in the district of that [former] lord; but if he [indeed] lives in the district of that [former] lord, and they prove that, [then his new] lord takes his losses [from the losing side]. If the [man] flees to some other district, then the [new] lord is to return him to the plaintiff; and neither he [the lord] nor his people are to send him into another district, [and] they [are to] kiss the cross [to that effect]; regarding any other matters, then the litigants are to settle [them] themselves. [If] someone under oath denies that that man is with him, and gives his hand [guarantee? provides surety?] on that, but they prove that the man [in fact] is in his district, then the lord is to restore the losses to that [plaintiff]. If [the man] flees to some lord in another district, [then that] lord is to present him at court according to [the oath he swore by] kissing the cross. If someone does not present [such a fugitive], then seize his deposit [the guarantee that he left] according to the Novgorod [Judicial] Charter.

38. If someone accuses a man [who serves] the archbishop, a boyar, a man of middling means, a merchant, a monastery, [Novgorod] borough or street, and he himself will not kiss the cross to this charter, then he himself is to settle [the matter] with the defendant by his own evidence, without [the assistance] of [his] lord.

39. If someone pledges to [appear] at court at some [certain] day, then after the pledge do not send to him a summons; but if the judge does not hold a hearing on that day, then when the judge holds the hearing, [send] him a summons; if he does not see the summons, and begins to hide, then send a summons to his residence three times, and the crier is to shout out [his summons]; and if [after that] he [still] does not appear at court, then issue against him a promissory charter, but the exaction [specified in the charter] is not to be more than 3 dengas.

40. If they bring a bailiff to a village, and they begin to beat him, then issue to his [the bailiff's] nephew or friend in place of a summons a charter [certifying a decision against those who beat the bailiff, even though no trial was held].

41. If someone summons someone to a village by a bailiff or courtier, then give him two weeks for [each] 100 versts [to effect the summons], and if [the object of the summons is] further or nearer [than 100 versts], then use that formula [to calculate the time allowed to summon the man].

42. From a [Novgorod] borough, or street, or hundred, or row, litigants are to go [to court] in pairs, and no other [person] is to go to court or to the investigation [to provide] help. If there is a slander from a [Novgorod] borough, or street, or hundred, or row, then the Grand Princes and Novgorod the Great are to exact from those two men according to the Novgorod Char.... [2]

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NOTES

[1]Probably an error; should be archbishop's lieutenant.

[2] The charter is interrupted here, and no more survives; presumably the entire text was much longer, approximating in length the Pskov Judicial Charter.

SOURCES:

1. The Cambridge history of Russia, 3 vols. / edited by Maureen Perrie. – Cambridge, 2006. – Vol. I. – 824 p.

2. Feldbrugge, F. J. M. (Ferdinand Joseph Maria), 1933 – Law in Medieval Russia / By Ferdinand Feldbrugge. – Leiden-Boston, 2009 – 365 p.

3. Kort M. A Brief history of Russia / Michael Kort. – New York, 2008. – 335 p.

4. Kelly W.K. The history of Russia from the earliest period to the present times, 2 vols. / Walter K. Kelly. – London, 1953. – 532 p.

5. htttp://web.grinnell.edu/individuals/kaiser/novjudicial.html

LECTURE 3. THE STATE AND LAW OF RUSSIA IN THE PERIOD OF CENTRALIZATION (XIV-XVI CENTURIES) (2 HRS)

Introduction.

The second half of XIV century until the middle of the XVII century was a very important period in the history of the Russian state and law. This is because it covered the time of formation of the centralized Russian state, creation of the first major common of all Russian law – Sudebnik of 1497 and “The Code of Law of 1649” (Ulozhenie)

Codification of Russian law, which began with Sudebnik Ivan I, was the culmination of all previous legislative activity of the Russian state.

By this time, “Russkaya Pravda” had lost its significance, although it was used in compiling Sudebnik, together with Pskov Judicial charter and immunity charters of the princes.

Study lecture will allow a more professional approach to the study follow-up legal documents of the Russian state. The aim of the lecture is to review the features of social and political development of Russia from the second half of the XIV century - to second half of the XVII century.