General characteristics and sources of the Council Code of 1649
The changes that occurred in socio-political relations should have been reflected in law. In 1648, the Zemsky Sobor was convened, which continued its meetings until 1649. A special commission was established to draw up a draft code; the discussion of the project by representatives of the Zemsky Sobor took place class by class. One of the reasons that accelerated the codification work was the intensification of the class struggle - in 1648 a mass uprising broke out in Moscow.
Cathedral Code was adopted in 1649 in Moscow by the Zemsky Sobor and Tsar Alexei Mikhailovich. The Code was the first printed code in Russia; its text was sent to orders and localities.
Sources of the Council Code were Sudebniks of 1497 and 1550, Stoglav of 1551, decree books of orders (Rozboyny, Zemsky, etc.), royal decrees, sentences of the Boyar Duma, decisions of zemstvo councils, Lithuanian and Byzantine legislation. Later the Code was supplemented Newly ordered articles.
Cathedral Code consists of 25 chapters and 967 articles. It systematized and updated all Russian legislation, and outlined a division of legal norms by industry and institution. In the presentation of the rules of law, causality has been preserved. The Code openly consolidated the privileges of the dominant class and established the unequal position of dependent classes.
The Council Code enshrined head of state status - the king as an autocratic and hereditary monarch.
With the adoption of the Code it ended the process of enslaving peasants, the right of their unlimited search and return to the previous owner was established.
The main attention was paid legal proceedings And criminal law. The forms of the judicial process were subject to more detailed regulation: accusatory-adversarial and investigative. New types of crimes were identified. The goals of punishment were intimidation, retribution and isolation of the criminal from society.
The Council Code of 1649 was the main source of Russian law until the adoption of the Code of Laws of the Russian Empire in 1832.
The Council Code of 1649 regulated the forms of feudal land ownership. The Code contained a special chapter in which all the most important changes in the legal status were fixed local land tenure. It was established that the owners of estates could be both boyars and nobles. The order of inheritance of the estate by sons was determined; the wife and daughters received part of the land after the death of the owner. Daughters could also receive an estate as a dowry. The cathedral code allowed the exchange of estates for estates or estates. The right to freely sell land, as well as the right to pledge it, was not granted to landowners.
In accordance with the Council Code, the estate was a privileged form of feudal land ownership. Depending on the subject and method of acquisition, estates were divided into palace, state, church and privately owned. Votchinniki were given broad powers to dispose of their lands: they could sell, mortgage, transfer the estate by inheritance, etc.
The Code limits the economic power of the church - the acquisition of new lands by the church is prohibited, and numerous privileges are reduced. A Monastic Order was established to manage the estates of monasteries and clergy.
The Council Code also regulated lien right.
Law of obligations continued to develop in the direction of replacing personal liability with property liability. Spouses, parents, and children were responsible for each other. Debts on obligations were inherited; at the same time it was established that refusal of inheritance also removes debts from obligations. The legislation defined cases of voluntary replacement of one person's obligations by another. In case of natural disasters, the debtor was granted a deferment of debt payment for up to 3 years.
The Council Code knows contracts of purchase and sale, barter, donation, storage, luggage, rental of property, etc. The Code also reflects the forms of concluding contracts. Cases of concluding contracts in writing were regulated; for some types of transactions (for example, alienation of real estate), a serf form was established, which required the “ordination” of witnesses and registration in the Prikaznaya hut.
The Council Code established the procedure for recognizing the contract as invalid. Contracts were declared invalid if they were concluded in a state of intoxication, with the use of violence or through deception.
Subjects of civil law relations were both private and collective individuals.
Inheritance law inheritance by law and by will is known.
The will was drawn up in writing and confirmed by witnesses and a representative of the church. The will of the testator was limited by class principles: testamentary dispositions could only concern purchased estates; ancestral and honored estates passed to the heirs by law. The legal heirs included children, the surviving spouse, and in some cases other relatives.
Ancestral and granted estates were inherited by sons, daughters inherited only in the absence of sons. The widow received part of the estate for subsistence, that is, for lifelong ownership. Ancestral and granted estates could only be inherited by members of the same family to which the testator belonged. The estates were inherited by the sons. The widow and daughters received a certain share of the estate for living expenses. Until 1864, collateral relatives could participate in the inheritance of the estate.
Only had legal force church marriage. One person was allowed to enter into no more than three marriages throughout his life. The marriageable age was set at 15 years for men and 12 years for women. Parental consent was required for marriage.
In accordance with the principles of house-building, the power of a husband over his wife and a father over his children was established. The legal status of the husband determined the status of the wife: those who married a nobleman became a noblewoman, those who married a serf became a servant. The wife was obliged to follow her husband to settlement, exile, or when moving.
The law determined the status of illegitimate children. Persons in this category could not be adopted, nor could they take part in the inheritance of real estate.
Divorce was allowed in the following cases: one of the spouses leaving for a monastery, accusing the spouse of anti-state activities, or the wife’s inability to bear children.
The cathedral code does not give a concept crimes, however, from the content of his articles it can be concluded that a crime is a violation of the royal will or law.
Subjects of the crime there could be individuals or a group of individuals, regardless of their class affiliation. In the event of a crime being committed by a group of persons, the law divided their into main and secondary (accomplices).
The subjective side of the crime determined by the degree of guilt. According to the Code, crimes were divided into intentional, careless and accidental.
When characterizing objective side of the crime the law established mitigating and aggravating circumstances. The first included the following: a state of intoxication, uncontrollability of actions caused by an insult or threat (affect). The second group included: repetition of a crime, a combination of several crimes, the extent of harm, the special status of the object and subject of the crime.
Objects of crime in accordance with the Council Code were: church, state, family, personality, property and morality.
Crime system can be represented as follows: crimes against faith; state crimes; crimes against the order of government; crimes against decency; malfeasance; crimes against the person; property crimes; crimes against morality.
Punishment system included: death penalty, corporal punishment, imprisonment, exile, confiscation of property, removal from office, fines.
Purposes of punishment there was intimidation, retribution and isolation of the criminal from society.
The Council Code established two forms of trial: accusatory-adversarial and investigative.
Accusatory-adversarial process, or court, used in the consideration of property disputes and minor criminal cases.
The trial began with the filing of a petition by the interested party. Then the bailiff summoned the defendant to court. The latter, if there were good reasons, was given the right not to appear in court twice, but after the third failure to appear, he automatically lost the process. The winning party received a corresponding certificate.
IN evidence system no significant changes occurred. Testimony, written evidence, oath, and lots were used.
Used as evidence link from the guilty And general link. The first was the party's reference to the witness's testimony, which had to coincide with the statements of the referee. If there was a discrepancy, the case was lost. In the second case, both disputing parties addressed the same witnesses. Their testimony was the basis for the decision of the case.
The evidence used was a “general search” and a “general search” - an interview of all witnesses regarding the facts of crimes or a specific suspect.
Negotiation in the accusatory-adversarial process it was oral. Each stage of the process (summons to court, guarantee, making a decision, etc.) was formalized with a special letter.
Search process or investigation, used in the most important criminal cases. The case in the search process, as in the Code of Laws of 1497, could begin with a statement from the victim, with the discovery of a crime, or with a slander. The government agencies that conducted the investigation of the case were given broad powers. They interviewed witnesses, carried out torture, used a “search” - interviewing all witnesses and suspects, etc.
Chapter XXI of the Council Code regulated the use of torture. The basis for its use was usually the results of a “search”. Torture could be used no more than three times with a certain break. Testimony given during torture had to be confirmed by other evidence. The testimony of the tortured person was recorded.
The Council Code of 1649 is a set of laws of Moscow Rus' regulating a wide variety of spheres of life.
The last code of law adopted before the creation of the Council Code was dated 1550 (Code of Law of Ivan the Terrible). Almost a century has passed since then, the feudal system of the state has changed somewhat, numerous new decrees and codes have been created, which often not only made previous decrees obsolete, but also contradicted them.
The situation was also complicated by the fact that numerous regulatory documents were widely scattered among departments, which is why there was complete chaos in the state’s legislative system. Situations were common when only those who accepted it knew about the new act, and the rest of the country lived according to outdated standards.
In order to finally streamline lawmaking and the judicial system, it was necessary to create a completely new document that would meet the requirements of the time. In 1648, the Salt Riot broke out; the rebels, among other things, demanded the creation of a new normative document. The situation became critical and it was no longer possible to delay.
In 1648, the Zemsky Sobor was convened, which until 1649 was engaged in the creation of the Cathedral Code.
The creation of a new document was carried out by a special commission headed by N.I. Odoevsky. The creation of a new code of law took place in several stages:
Such a careful approach to the creation of the document was caused by the fact that the commission members wanted to create a carefully systematized and as complete and accessible legal code as possible, correcting all the shortcomings in previous documents.
The main sources were:
It was in the Council Code of 1649 that there was a tendency towards dividing the rules of law into branches, corresponding to modern legislation.
The new code determined the status of the state and the tsar himself, contained a set of norms regulating the activities of all government bodies, and established the procedure for entry and exit from the country.
A new system of classification of crimes has appeared in criminal law. The following types appeared:
New types of punishment also appeared. Now the criminal could count on the death penalty, exile, imprisonment, confiscation of property, fine or dishonorable punishment.
Civil law also expanded significantly due to the growth of commodity-money relations. The concept of an individual and a collective appeared, the legal capacity of women in matters of making transactions increased, the oral form of the contract was now replaced by a written one, laying the foundation for modern purchase and sale transactions.
Family law did not change much - the principles of “Domostroy” were still in effect - the supremacy of the husband over his wife and children.
Also in the Council Code the procedure for legal proceedings, criminal and civil, was described - new types of evidence appeared (documents, kissing the cross, etc.), new procedural and investigative measures were identified aimed at proving guilt or innocence.
An important difference from previous codes of law was that, if necessary, the Council Code of 1649 was supplemented and rewritten when new acts appeared.
However, the most prominent place in the Council Code is occupied by issues regarding serfdom. The Code not only did not give the peasants freedom, it completely enslaved them. Now the peasants (including their families and property) actually became the property of the feudal lord. They were inherited like furniture and had no rights of their own. The rules regarding escaping from oppression also changed - now the peasants had practically no opportunity to become free (now a runaway peasant could not become free after a few years, now the investigation was carried out indefinitely).
The Cathedral Code of 1649 is a monument of Russian law. It outlined new trends in the development of Russian law and consolidated new social features and institutions. In addition, the Code has made significant progress in terms of systematization and drafting of legal documents, since a distinction has been made by industry.
The Code was in force until 1832.
The Cathedral Code of 1649 has a complex and strict construction system. It consists of 25 chapters, divided into articles, totaling 967. The chapters are preceded by a brief introduction containing a formal explanation of the motives and history of the codex. According to one historian, the introduction is “a monument to journalistic dexterity rather than historical accuracy.” The Code has the following chapters:
Chapter I. And it contains 9 articles about blasphemers and church rebels.
Chapter II. About the state's honor, and how to protect the state's health, and there are 22 articles in it.
Chapter III. About the sovereign's courtyard, so that there is no disorder or abuse from anyone in the sovereign's courtyard.
Chapter IV. About subscribers and who forge seals.
Chapter V. About money masters who will learn how to make thieves' money.
Chapter VI. On travel certificates to other states.
Chapter VII. About the service of all military men of the Moscow State.
Chapter VIII. About the redemption of captives.
Chapter IX. About tolls and transports and bridges.
Chapter X. About the trial.
Chapter XI. The court about peasants, and it has 34 articles.
Chapter XII. About the court of patriarchal writs, and there are 7 articles in it.
Chapter XIV. About kissing the cross, and there are 10 articles in it.
Chapter XV. About accomplished deeds, and there are 5 articles in it.
Chapter XVI. About local lands, and there are 69 articles in it.
Chapter XVII. About estates, and there are 55 articles in it.
Chapter XVIII. About printing duties, and there are 71 articles in it.
Chapter XIX. About the townspeople, and there are 40 articles in it.
Chapter XX. The court is about serfs, and there are 119 articles in it.
Chapter XXI. About robberies and Taty’s affairs, and there are 104 articles in it.
Chapter XXII. And there are 26 articles in it. A decree for which offenses the death penalty should be inflicted on whom, and for which offenses the death penalty should not be executed, but rather the punishment should be inflicted.
Chapter XXIII. About Sagittarius, and there are 3 articles in it.
Chapter XXIV. Decree on atamans and Cossacks, and there are 3 articles in it.
Chapter XXV. Decree on taverns, it contains 21 articles.
All these chapters can be divided into five groups:
But this classification succeeds only with a certain stretch, because such a grouping of material is present in a monument devoid of compositional harmony only as a hardly discernible tendency, a desire for some systematicity.
For example, the first chapter of the “Code” contains legal norms “on blasphemers and church rebels” - the most terrible crime, according to legislators of the 17th century, because it is considered even earlier than an attempt on the “sovereign honor” and “sovereign health”. For blasphemy against God and Mother of God, an honest cross or saints, according to Article 1 of Chapter I of the Code, the culprit, regardless of whether he was Russian or a non-Russian, was to be burned at the stake. Death also threatened any “disorderly person” who interfered with the service of the liturgy. For any excesses and disorders carried out in the temple, which included filing petitions to the Tsar and the Patriarch during divine services, severe punishments were also imposed, from trade execution (for “indecent speech” during the liturgy) to imprisonment (submission of petitions, insult someone with a word during worship). But the first chapter with its nine articles of legalization on church issues is not exhausted; they are scattered throughout the text of the Code. And in further chapters we find decrees on the oath for people of spiritual and peaceful rank, on the seduction of Orthodox Christians into infidelism, on the restriction of the rights of non-believers, on self-proclaimed priests and monks, on marriage, on the protection of church property, on the honor of clergy, the veneration of holidays, etc. etc. All these measures were designed to protect the honor and dignity of the church. But the Code also contained points that caused strong discontent church hierarchy. According to Chapter XI-II, a special monastic order was established, which was entrusted with justice in relation to the clergy and people dependent on them (patriarchal and monastic peasants, servants, church clergy, etc.). Prior to this, the court in non-spiritual cases in relation to the clergy was carried out in the Order Grand Palace. Spiritual fiefdoms here, bypassing national institutions, were subject to the court of the tsar himself. Now the clergy was deprived of judicial privileges, and this was done based on petitions from elected people. According to these same petitions, church land ownership was subject to significant restrictions. The settlements and estates that belonged to the church authorities were taken “for the sovereign as a tax and for service, childless and irrevocable.”
Further, all clergy and institutions were categorically forbidden to acquire estates in any way and for lay people to give estates to monasteries (Chapter XVII, Art. 42). From the state's point of view, this contributed to further centralization and strengthening of autocratic power. But the provisions of the new code caused resistance from the clergy and fierce criticism from them. After all, the Code deprived the highest clergy, with the exception of the patriarch, of judicial privileges. All church and monastery lands were transferred to the jurisdiction of the Monastery Prikaz.
Patriarch Nikon, dissatisfied with the “Code,” called it nothing more than a “lawless book,” and the first head of the Monastic Prikaz, Prince V.I. Odoevsky, “the new Luther.” As a result of an intense struggle, spiritual power overcame secular power: first, after Nikon’s removal from business, in 1667 the secular court against the clergy was abolished, and in 1677 the Monastic Order was abolished.
The Code also paid a lot of attention to certain social issues. In the Time of Troubles, the force that ensured the final victory over external and internal enemies was the classes of service people and residents of the suburbs. Chapters XVI and XVII of the “Code” were devoted to streamlining land relations that were confused during the years of the “Moscow ruin”. Someone then lost the fortresses on their possessions, someone received them from impostors. The new legislative code established that only service people and guests had the right to own estates. Thus, land ownership became a class privilege of the nobility and the elite of the merchant class. In the interests of the nobility, the “Code” smooths out the difference between conditional ownership - an estate (on condition and for the duration of service) and hereditary - votchina. From now on, estates can be exchanged for estates and vice versa. The petitions of the townspeople were satisfied by the XIX chapter specially dedicated to them. According to her townsfolk population was isolated into a closed class and attached to the posad. All its residents had to bear taxes - that is, pay certain taxes and perform duties in favor of the state. It was now impossible to leave the posad, but it was possible to enter only if one joined the tax community. This provision satisfied the demand of the townspeople to protect them from the competition of different ranks of people who, coming from servicemen, clergy, and peasants, traded and were engaged in various crafts near the towns, and at the same time did not have taxes. Now everyone who was engaged in trades and trades turned into an eternal townsman's tax. At the same time, the previously free “white settlements” (whitewashed, that is, freed from taxes and duties to the state), which belonged to secular feudal lords and the church, were attached to the sovereign's estates free of charge. All those who left there without permission were subject to return to the settlements. They were ordered to be “taken to their old township places, where someone lived before this, childless and irrevocable.” Thus, according to precise description V. O. Klyuchevsky, “the townsman’s tax on trades and trades became an estate duty of the townspeople, and the right to urban trade and trade became their class privilege.” It is only necessary to add that this provision fixed by law was not fully implemented in practice. And the entire 17th century. Posad people continued to petition for the elimination of “white places”, the expansion of urban areas, and the prohibition of peasants from engaging in trades and crafts.
The peasant issue was also regulated in a new way in the Code. Chapter XI (“Court of the Peasants”) abolished the “fixed summer” established in 1597 - a five-year period for finding runaway peasants, after which the searches stopped and in fact, at least a small loophole was preserved for escaping from serfdom, even by escape. According to the Code, the search for fugitives became unlimited, and a fine of 10 rubles was established for their harboring. Thus, the peasants were finally attached to the land and the legal formalization of serfdom was completed. The adoption of these norms met the interests of the service people who actively participated in the Zemsky Sobor of 1648. But it is especially important to note that according to the Code, the peasants, being, of course, one of the most humiliated and oppressed classes, still had some class rights. The fugitive peasants were categorically prescribed their property rights. Recognition of personal rights was the provision according to which peasants and peasant women who married while on the run were subject to return to the owner only by their families.
These are just some of the most important provisions of the Council Code of 1649. In essence, the adoption of this set of laws was a victory for the middle classes, while their everyday rivals, who stood at the top and bottom of the then social ladder, lost.
The Moscow boyars, the clerical bureaucracy and the higher clergy, who were defeated at the council of 1648, on the contrary, remained dissatisfied with the “Code”. Thus, it is clearly revealed that the council of 1648, convened to pacify the country, led to discord and discontent in Moscow society. Having achieved their goal, the conciliar representatives of provincial society turned against themselves strong people and fortress mass. If the latter, not putting up with being attached to the tax and to the landowner, began to protest with “gilem” (i.e., riots) and going to the Don, thereby preparing razinism, then the social elite chose the legal path of action and led the government to a complete cessation Zemsky Sobors.
1. Historical and economic prerequisites for creation
Cathedral Code of 1649.
3. System of crimes.
4. System of punishments.
5. The significance of the Council Code of 1649 in social political life Russia.
1. Historical and economic prerequisites for the creation
Cathedral Code of 1649.
The beginning of the 17th century is characterized by the political and economic decline of Russia. This was largely facilitated by the wars with Sweden and Poland, which ended in the defeat of Russia in 1617.
After signing a peace treaty with Sweden in 1617, Russia lost part of its territories - the coast of the Gulf of Finland, the Karelian Isthmus, the course of the Neva and the cities on its coast. Russia's access to the Baltic Sea was closed.
In addition, after the campaign against Moscow in 1617-1618 by the Polish-Lithuanian army and the signing of a truce, Poland was ceded Smolensk land and most of Northern Ukraine.
The consequences of the war, which resulted in the decline and ruin of the country's economy, required urgent measures to restore it, but the whole burden fell mainly on the black-sown peasants and townspeople. The government widely distributes land to the nobles, which leads to the continuous growth of serfdom. At first, given the devastation of the village, the government slightly reduced direct taxes, but various types of emergency levies increased (“fifth money”, “tenth money”, “Cossack money”, “streltsy money”, etc.), most of which were introduced almost continuously meeting Zemsky Sobors.
However, the treasury remains empty and the government begins to deprive the archers, gunners, city Cossacks and minor officials of their salaries, and introduces a ruinous tax on salt. Many townspeople begin to move to “white places” (the lands of large feudal lords and monasteries, exempt from state taxes), while the exploitation of the rest of the population increases.
In such a situation, it was impossible to avoid major social conflicts and contradictions.
On June 1, 1648, an uprising broke out in Moscow (the so-called “ salt riot"). The rebels held the city in their hands for several days and destroyed the houses of the boyars and merchants.
Following Moscow, in the summer of 1648, a struggle between townspeople and small service people unfolded in Kozlov, Kursk, Solvychegodsk, Veliky Ustyug, Voronezh, Narym, Tomsk and other cities of the country.
Practically, throughout the entire reign of Tsar Alexei Mikhailovich (1645-1676), the country was gripped by small and large uprisings of the urban population. It was necessary to strengthen the legislative power of the country and on September 1, 1648, the Zemsky Sobor opened in Moscow, the work of which ended with the adoption at the beginning of 1649 of a new set of laws - the Cathedral Code. The project was drawn up by a special commission, and it was discussed in whole and in parts by members of the Zemsky Sobor (“in chambers”). The printed text was sent to orders and localities.
1649.
The Council Code of 1649, having summarized and absorbed the previous experience of creating legal norms, was based on:
Legal experts;
Directive books of orders;
Royal decrees;
Duma verdicts;
Decisions of Zemsky Sobors (most of the articles were compiled based on petitions from council members);
- “Stoglav”;
Lithuanian and Byzantine legislation;
New decree articles on “robbery and murder” (1669), on estates and estates (1677), on trade (1653 and 1677), which were included in the Code after 1649.
In the Council Code, the head of state, the tsar, was defined as an autocratic and hereditary monarch. The provision on the approval (election) of the tsar at the Zemsky Assembly substantiated these principles. Any actions directed against the person of the monarch were considered criminal and subject to punishment.
The Code contained a set of rules regulating the most important industries government controlled. These norms can be conditionally classified as administrative. Attaching peasants to the land (Chapter 11 “The Trial of the Peasants”); the townsman reform, which changed the position of the “white settlements” (chap. 14); change in the status of patrimony and estate (chap. 16 and 17); regulation of the work of local government bodies (Chapter 21); entry and exit regime (Article 6) - all these measures formed the basis of administrative and police reforms.
With the adoption of the Council Code, changes occurred in the field of judicial law. A number of norms concerning the organization and work of the court were developed. Compared to the Code of Laws, there is an even greater division into two forms: “trial” and “search”.
The court procedure is described in Chapter 10 of the Code. The court was based on two processes - the “trial” itself and the “decision”, i.e. rendering a sentence, a decision. The trial began with the “initiation”, the filing of a petition. The defendant was summoned to court by a bailiff, he could present guarantors, and also fail to appear in court twice if there were good reasons for this. The court accepted and used various evidence: testimony (at least ten witnesses), written evidence (the most trustworthy of them are officially certified documents), kissing the cross (in disputes over an amount not exceeding one ruble), and drawing lots. To obtain evidence, a “general” search was used - a survey of the population about the fact of a crime committed, and a “general” search - about a specific person suspected of a crime. The so-called “pravezh” was introduced into court practice, when the defendant (most often an insolvent debtor) was regularly subjected to corporal punishment (beating with rods) by the court. The number of such procedures should have been equivalent to the amount of debt. So, for example, for a debt of one hundred rubles, they flogged for a month. Pravezh was not just a punishment - it was also a measure that encouraged the defendant to fulfill the obligation (himself or through guarantors). The settlement was oral, but was recorded in the “judicial list” and each stage was formalized in a special letter.
The search or “detective” was used only in the most serious criminal cases, and special place and attention in the search was given to crimes in which the state interest was affected (“the word and deed of the sovereign”). The case in the search process could begin with a statement from the victim, with the discovery of a crime, or with an ordinary slander.
In Chapter 21 of the Council Code of 1649, such a procedural procedure as torture was established for the first time. The basis for its use could be the results of a “search”, when the testimony was divided: part in favor of the suspect, part against him. The use of torture was regulated: it could be used no more than three times, with a certain break; and the testimony given during torture (“slander”) had to be cross-checked using other procedural measures (interrogation, oath, search).
The following changes were also made in the field of criminal law - the circle of subjects of the crime was determined: they could be either individuals or a group of persons. The law divided the subjects of the crime into main and secondary, understanding the latter as accomplices. In turn, complicity could be physical (assistance, practical assistance, committing the same actions as the main subject of the crime) and intellectual (for example, incitement to murder in Chapter 22). In this regard, even a slave who committed a crime at the direction of his master began to be recognized as a subject of a crime. At the same time, it should be noted that the law distinguished from secondary subjects of the crime (accomplices) persons who were only involved in the commission of the crime: accomplices (persons who created the conditions for the commission of the crime), connivers (persons obliged to prevent the crime and did not do so), non-informers (persons who did not report the preparation and commission of a crime), concealers (persons who hid the criminal and traces of the crime). The Code also divided crimes into intentional, careless and accidental. For a careless crime, the perpetrator was punished in the same way as for a deliberate criminal act (the punishment followed not for the motive of the crime, but for its result). But the law also identified mitigating and aggravating circumstances. Mitigating circumstances included: state of intoxication; uncontrollability of actions caused by insult or threat (affect); and to aggravating ones - repetition of the crime, the amount of harm, the special status of the object and subject of the crime, the combination of several crimes.
The law identified three stages of a criminal act: intent (which in itself can be punishable), attempted crime and commission of a crime, as well as the concept of recidivism, which in the Council Code coincides with the concept of “dashing person”, and the concept of extreme necessity, which is not punishable only if its proportionality is observed real danger by the criminal. Violation of proportionality meant exceeding the limits of necessary defense and was punished.
The objects of crime according to the Council Code of 1649 were defined as: church, state, family, person, property and morality. Crimes against the church were considered the most dangerous and for the first time they were placed in first place. This is explained by the fact that the church occupied a special place in public life, but the main thing is that it was taken under the protection state institutions and laws.
Major changes in the Council Code of 1649 concerned the area of property, obligation and inheritance law. The scope of civil law relations was defined quite clearly. This was encouraged by the development of commodity-money relations, the formation of new types and forms of ownership, and the quantitative growth of civil transactions.
The subjects of civil law relations were both private (individuals) and collective persons, and gradually expanded legal rights a private person at the expense of concessions from a collective person. Legal relations that arose on the basis of norms regulating the sphere of property relations were characterized by the instability of the status of the subject of rights and obligations. First of all, this was expressed in the division of several powers associated with one subject and one right (for example, conditional land tenure gave the subject the right to own and use, but not to dispose of the subject). With this, difficulty arose in determining the true full-fledged subject. Subjects of civil law had to satisfy certain requirements, such as gender (there was a significant increase in the legal capacity of women compared to the previous stage), age (the qualification of 15-20 years made it possible to independently accept an estate, enslaving obligations, etc.), social and property status.
According to the Council Code, things were the subject of a number of powers, relations and obligations. The main methods of acquiring property were seizure, prescription, discovery, grant, and direct acquisition in exchange or purchase.
The Code of 1649 specifically addresses the procedure for granting land. It was a complex set of legal actions, including the issuance of a letter of complaint; drawing up a certificate (i.e. recording in the order book certain information about the person assigned); taking possession, which consisted in the public measurement of land. The distribution of land, along with the Local Order, was carried out by other bodies - the Rank Order, the Order of the Grand Palace, the Little Russian, Novgorod, Siberian and others. In the 17th century, contract remained the main method of acquiring ownership of property, and in particular land. In a contract, ritual rituals lose their significance, formalized actions (participation of witnesses in concluding a contract) are replaced by written acts (“assault” of witnesses without their personal participation).
For the first time in the Council Code of 1649, the institution of easements was regulated - legal restriction the property rights of one person for the benefit of the right of use of another or other persons. Personal easements are restrictions in favor of certain persons specifically specified in the law, for example, the grassing of meadows by warriors in service. Easements in rem are a restriction of property rights in the interests of an indefinite number of entities. These included the right of the mill owner to flood the underlying meadow belonging to another person for production purposes; the ability to build a stove near the wall of a neighbor’s house or build a house on the boundary of someone else’s property, etc. (Chapter 10). Along with this, the right of ownership was limited either by a direct prescription of the law, or by the establishment of a legal regime that did not guarantee “eternal ownership.”
3. System of crimes.
The system of crimes covered various aspects of the life of society, concerned both the common people and the wealthy strata of the population, civil servants, and according to the Council Code of 1649 it looked like this:
Crimes against the church: blasphemy, seducing an Orthodox Christian into another faith, interrupting the liturgy in the church;
State crimes: any actions and even intent directed against the personality of the sovereign or his family, rebellion, conspiracy, treason. For these crimes, responsibility was borne not only by the persons who committed them, but also by their relatives and friends;
Crimes against the order of administration: the defendant’s intentional failure to appear in court and resistance to the bailiff, production of false letters, acts and seals, unauthorized travel abroad, counterfeiting, maintaining drinking establishments without permission and moonshine, taking a false oath in court, giving false testimony, “sneaking.” ” or false accusation;
Crimes against decency: maintaining brothels, harboring fugitives, illegal sale of property, unauthorized entry into mortgages, imposing duties on persons exempt from them;
Official crimes: extortion (bribery, illegal exactions, extortion), injustice (deliberately unfair decision of a case due to self-interest or personal hostility), forgery in service (falsification of documents, information, distortions in monetary papers, etc.), military crimes ( damage to private individuals, looting, escape from a unit);
Crimes against the person: murder, divided into simple and qualified (murder of parents by children, murder of a master by a slave), mutilation, beatings, insult to honor (insult, slander, spreading of defamatory rumors). The killing of a traitor or thief at the scene of the crime was not punished at all;
Property crimes: simple and qualified theft (church, in the service, horse theft committed in the sovereign's courtyard, theft of vegetables from the garden and fish from the cage), robbery (committed in the form of a trade) and ordinary or qualified robbery (committed by service people or children against parents), fraud (theft associated with deception, but without the use of violence), arson (the caught arsonist was thrown into the fire), forcible seizure of someone else's property (land, animals), damage to someone else's property;
Crimes against morality: children’s disrespect for their parents, refusal to support elderly parents, pimping, “fornication” of a wife (but not a husband), sexual relations between a master and a slave.
4.Penalty system.
In the system of punishments according to the Council Code of 1649, the main emphasis was on physical intimidation (ranging from whipping to cutting off hands and quartering for the death penalty). Imprisonment of the criminal was a secondary objective and was an additional punishment.
For the same crime, several punishments could be established at once (multiple punishments) - whipping, cutting of the tongue, exile, confiscation of property. For theft, the punishments were established in increasing order: for the first - whipping, ear cutting, two years in prison and exile; for the second - whipping, ear cutting and four years in prison; for the third - the death penalty.
In the Council Code of 1649, the death penalty was provided for in almost sixty cases (even smoking tobacco was punishable by death). The death penalty was divided into simple (cutting off the head, hanging) and qualified (cutting, quartering, burning, pouring metal into the throat, burying alive in the ground),
Self-harm punishments included the following: cutting off an arm, leg, cutting off an ear, nose, lip, tearing out an eye, nostrils. These punishments could be applied both as main and additional ones. They were supposed to distinguish the criminal from the surrounding mass of people.
In general, the system of punishments according to the Council Code of 1649 was characterized by the following features:
A). Individualization of punishment. The wife and children of the criminal were not responsible for the act he committed. However, remnants of the archaic system of punishment were preserved in the institution of third party liability: a landowner who killed another peasant had to transfer another peasant to the landowner who suffered the damage; the procedure of “rights” was preserved.
b). Class nature of punishment. This feature was expressed in the fact that for the same crimes different subjects bore different responsibilities (for example, for a similar act a boyar was punished with deprivation of honor, and a commoner with a whip. Chapter 10).
V). Uncertainty in establishing punishment. This sign was associated with the purpose of punishment - intimidation. The sentence may not have indicated the type of punishment itself and used the following formulations: “as the sovereign directs,” “due to guilt,” or “to punish cruelly.”
Even if the type of punishment was determined, the method of its execution remained unclear (similar formulations such as “punish with death” or “throw into prison until the sovereign’s decree”), i.e. uncertainty of punishment.
The uncertainty in establishing punishment created additional psychological impact on the criminal. The purpose of intimidation was served by special symbols of punishment: pouring molten metal down the criminal’s throat; applying to him such punishment as he would wish for the person he slandered. The publicity of punishments had a socio-psychological purpose, since many punishments (burning, drowning, wheeling) served as analogues of hellish torment.
G). Imprisonment, as a special type of punishment, could be established for a period of three days to four years or for an indefinite period. How additional view punishment (and sometimes as the main one) was exile (to remote monasteries, forts, fortresses or boyar estates).
Representatives of the privileged classes were subject to such a type of punishment as deprivation of honor and rights, ranging from complete surrender (becoming a slave) to declaring “disgrace” (isolation, ostracism, sovereign disgrace). The accused could be deprived of his rank, the right to sit in the Duma or the order, and deprived of the right to file a claim in court.
With the adoption of the Code of 1649, property sanctions began to be widely used (Chapter 10 of the Code in seventy-four cases established a gradation of fines “for dishonor” depending on the social status of the victim). The highest sanction of this type was the complete confiscation of the criminal's property. Finally, the system of sanctions included church punishments (repentance, excommunication, exile to a monastery, confinement in a solitary cell, etc.).
5. The significance of the Cathedral Code for public
political life of Russia.
The previously existing judicial and legal practice in Russia, based on legal codes, decrees, Duma verdicts, etc., was fragmented and often contradictory. With the adoption of the Council Code in 1649, for the first time in the history of Russian statehood, an attempt was made to create a single set of all existing legal norms, to cover all aspects of the socio-political and economic life of Russia, and not individual groups of social relations. As a result of codification, the Council Code was consolidated into 25 chapters and 967 articles, and a division of norms into sectors and institutions was outlined. And although the main goal was not achieved, and could not be achieved under those conditions, the Council Code strengthened the judicial and legal system of Russia and was the foundation on which it subsequently developed and was supplemented as a set of laws of feudal-serf Russia.
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It was guided by the desire to ensure the preservation and strengthening of existing orders and to prevent the possibility of new anti-feudal uprisings. The petition of the townspeople of different cities for the return of the merchants taken in 1647 to the living room and the cloth hundred to the townsman communities was satisfied. By a sovereign decree in 1649, all privileges of English merchants in Russia were eliminated; they were allowed to trade only in Arkhangelsk. The formal basis for this decision was that “the English committed a great evil deed all over the world, they killed their sovereign King Charles to death.” The government satisfied the demands of the nobles for payment of cash salaries.
A wave of mass uprisings forced the government to begin legal reforms. Tsar Alexei Mikhailovich agreed with the request of the Moscow nobles, residents, nobles and children of boyar policemen, foreigners, guests and living rooms, cloth of various settlements of merchants, submitted in the first days after the Moscow uprising, to assemble a council to draw up the Code. Patriarch Nikon wrote later that the council of 1648 was convened “for the sake of fear and civil strife from all black people.”
The new Code of Law, called the Council Code of 1649 and consisting of 25 chapters (967 articles), was signed by almost all participants of the cathedral.
The first chapters of the Council Code are devoted to the fight against speeches against the church and state power. Undermining the authority of religion and the church in an era when religious ideas were very widespread and inextricably linked with the concepts of state and social order, posed a particular danger to the ruling class. Speeches against religion, classified as “blasphemy,” were punishable by burning at the stake. Speeches against state power were persecuted no less severely. The death penalty was established not only for treason and conspiracy against the sovereign, but also for violating his honor and peace. The Code protected the life and property of the sovereign’s boyars and governors, for attempts on which the death penalty was imposed “without any mercy.” For issuing counterfeit coins, money masters were subjected to severe punishment - they had molten metal poured into their throats. Unauthorized travel abroad was prohibited. Special measures were aimed at preventing peasant unrest in border counties. If there was information about a performance being planned by anyone, the suspected persons were to be immediately imprisoned “until the sovereign’s decree.”
The system of legal proceedings and punishments under the Code was characterized by typically medieval cruelty. Torture, beatings, cutting off ears, noses, arms and legs, different kinds death penalties were widely provided for by the Code. Criminal law still preserved many patriarchal orders. Thus, the murder of parents was punishable by death, but the murder of children was punishable by only a year in prison. Murder of husband was punishable terrible execution- the woman was buried alive in the ground up to her neck “until she dies.” The Code applied in some cases an ancient form of retaliatory punishment - for example, for mutilation and self-mutilation, the culprit was supposed to inflict the same injury that he inflicted on the victim.
In order to reduce land holdings that were outside the control of the state, it was prohibited further growth church land ownership. The estates of servicemen leaving the service were to pass to children, brothers, nephews or grandchildren who enlisted in the service instead of those leaving. It was allowed to change estates to fiefdoms. Thus, the Code took an important step towards merging the noble estate with the estate, since the nobles actually received the right of hereditary ownership of their estates. There was a special ban on owning estates for slaves, who sometimes managed to buy land. Land ownership was consolidated as a privilege of the ruling feudal class. The strengthening of feudal land ownership in all its forms served as the basis for the creation of that state system of serfdom, which was discussed above.
The Council Code is imbued with a serf-like character, which is especially clearly manifested in the chapters “The Court of the Peasants” and “On the Townspeople.”
Providing for the possibility of exploitation of hired labor, the Code prohibited the enslavement and placing in any personal dependence of people working as free employees. This order ensured that the feudal lords assigned the dependent population to them and prevented its transfer to other owners through enslavement as a result of hiring. This measure also pursued the fiscal interests of the state, seeking to preserve the contingent of its taxpayers.
B.A. Rybakov - “History of the USSR from ancient times to the end of the 18th century.” - M., “Higher School”, 1975.
