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Protection of church in the Russian legislation of the end of xv of the first half of the 17th century.


PROTECTION of CHURCH IN the RUSSIAN LEGISLATION of the END of HU - the FIRST HALF of the 17th century

The special part is assigned to Orthodoxy with its centuries-old history, traditions, customs, culture and also considerable influence in modern Russia. The solution becomes the main thing for today: whether Orthodoxy will be able to become one of the defining factors of stable development of the country, to influence arrangement of political forces, to solve a problem of peaceful co-existence of various religious faiths? In order that the younger generation rather fully imagined a role of church in national history, the direct appeal to the history of church, lighting it from positions of relationship of the state and religion is necessary.

The special importance is gained in this regard by legal aspect of a problem. The principle of separation of religious institutes from the state in the Russian Federation has the constitutional status. It is defined in the Federal law "About Freedom of Conscience and Religious Associations" (item 2, Article 4).

During various periods of national history the state acted as the guarantor of the adopted church legislation. In this plan time of the end of XV - the first half of the 17th century can be considered very important period in the history of Russian Orthodox Church.

In all major events which were taking place in our Fatherland, active part was taken by orthodox church. The government also supported church that was shown first of all in providing material conditions of its activity. Since Kievan Rus' the church managed justice over all Christian population which is not entering jurisdiction of princely court as well as over the attendants and peasants living on its lands. The legal rights of church together with the ideas -

History and present, No. 1, March, 2010 99-112

ny influence turned it into significant force. But the growing economic independence of church meant emergence of contradictions between the spiritual and secular authorities.

During mongolo-tatar invasion when the power of princes was weakened, the church turns into the powerful ideological beginning of association of Russian lands. During the same period church it becomes final the large feudal owner. Land rights were made out according to princely diplomas. From 14th century clergy, relying on the ideological and economic power, tries to influence public affairs and also to approve Orthodoxy as world religion. In 1448 the Russian church refused to obey to decision VIII of Ecumenical council on the union of orthodox and Catholic churches, than approved independence of the Russian church.

In government of the Grand duke Ivan III the Russian clergy in response to falling in 1453 of Constantinople proclaimed "purity" of own religion: "Moscow - the third Rome and not to be given the fourth". At Ivan III seeking to unite all Russian lands Joseph of Volotsk's doctrine which to a certain extent reflected contradictions between the temporal and spiritual power was accepted. "The power to the sovereign is God-given, and the right of church to judge acts of the prince" - such is there was an essence of this theory accepted by the Grand duke for the adoption of the domination. In 1497 the Code of laws - the first code of laws of the uniform state in which duties of officials were defined was created, the legal procedure and punishments for the most serious crimes were established.

Ivan the Terrible's government (1533-1584) became the considerable period in activity of the state and church. In 1550 the Code of laws which considerably expanded was adopted, systematized and approved the existing judicial practice. In 1551 it was published Hundred-heads - the rule of intra church life. Existence of these codes of the right spoke about aspiration of throne to establishment of uniform laws including for church that it meant centralization of the most this power. In 1589 in Russia patriarchate was approved. The Russian church was exempted from the remains

formal dependence on the Constantinople patriarchs. The prestige of the Russian church and state got stronger.

However the upper crust was not still ready to accept the idea about the great sovereign. It led to the Distemper when all links in society were broken and the question of existence of the state was raised. The huge value during this period gets activity of church. It was shown also in government of the first tsar of a dynasty of Romanov. In power along with Mikhail there was also his father - the metropolitan Filaret. The period of release of the country from Poles and restoration of public relations was connected first of all with its activity.

However in government of the tsar Alexey Mikhaylovich of the power it is possible to achieve establishment of the uniform law for clergy. In Russia the absolutism was formed. The cathedral Code of 1649 which became the new code of feudal laws first of all strengthened the centralized public administration and the autocratic power of the tsar.

Thus, the period of the end of XV - the first half of the 17th century became for the Russian church not only time of strengthening of the ideological and economic situation, but also attempt to influence the political power that terminated, however, in a victory of the state.

The considered period was studied by domestic historians in terms of various aspects of activity of church.

The pre-revolutionary historiography put church into direct dependence on the government (Kartashev 1992: 12). V.N. Tatishchev, acting as the advocate of the natural right, coordinated it with the Scripture (Tatishchev 1979: 73). However in "History the Russian" he sharply speaks against clergy. According to him, decline of education after the Tatar invasion was caused by weakening of the power of sovereigns and increase in value of the spiritual authorities (In the same place: 82). The same point of view on clergy was approved also by other noble historians of the second half of the 18th century

M.M. Shcherbatov considered by one of the reasons of a mongolo-tatar yoke in Russia monks, "occurred in wordly board" (Fedosov 1967: 32).

I.N. Boltin the Middle Ages period in Russia (the end of the 14th century - 17th century) allocated as time of the "worst superstition" extended by monks (Klyuchevsky 1959: 138).

For the first half of the 19th century when the uvarovsky theory of official nationality was approved, first of all M.P. Pogodin's works are characteristic. The leading role in them was assigned to autocracy, Orthodoxy was force supporting the tsar, and the nationality was considered as boundless belief and submission of the power, following to norms of Orthodoxy (Tsamutali 1977: 25). K.S. Aksakov considered that "the course of history is defined by religion and morality of the people" (Aksakov 1961: 284). According to him, only on the basis of Orthodoxy there could be true forms of both public, and political life.

I.S. Aksakov considered that he at the Russian people "is not present... neither class dependence, nor class lasciviousness to the power" (In the same place: 290). Following further reasonings of I.S. and K.S. Aksakov, it is possible to draw a conclusion on existence in Russia of trust and respect between the people and the power: "The highest truth belonged always to the state, the internal truth - to the earth (people)" (In the same place).

Concerning religion K.S. Aksakov approved existence of "the symphony between the state and church". As examples of such unity for it the periods of the end of the 14-15th centuries - the period of collecting of Russian lands when without the aid of church the solution of this problem, and the period of the Time of Troubles when there was no government at all was impossible acted. I.S. and K.S. Aksakova made the analysis of the Russian history, proceeding from a role of community in the state therefore they could not see that the period of the end of XIV - the first half of the 17th century was critical. This time of determination of form of government when there was no unity, first of all in a ruling class. For this reason there could not be enough strong relations between the power and Orthodoxy. The Russian church always sought for domination in society and the state, but within the state and polity-

chesk, and economically church depended on the power and could exist only with support from above.

Studying the state legislation was begun in the first half of the 19th century in V.V. Stroyev, F.N. Moromni-na, N.P. Zagoskin and N.V. Kolachev's works. However in them history of a legal status of the Russian church was not considered.

In the second half of XIX - the beginning of the 20th century M.F. Vladimirsky-Budanov, I.D. Belov dealt with this problem, but also in their works the legislation of religious institutions was practically not lit.

The famous Russian historian V.O. Klyuchevsky in the works paid attention to church as one of components of the state. So, acceptance in 1551. The hundred-head it considered attempt "to put the religious and moral life of people in order" (Klyuchevsky 1993: 189). According to him, the state which economically attached to itself clergy bossed the show of church, providing it lands. V.O. Klyuchevsky, analyzing process of formation of property in Russia till 17th century, considered that monasteries promoted increase in burden of country work and its enslaving that was recorded later by the legislation (In the same place: 210).

Thus, the legal status of church was put by a pre-revolutionary historiography into dependence on the state. In works of domestic historians of this period the church and the state, despite aspiration to unity, are presented as two contrasts.

Further studying a legal status of church was connected with works of the Soviet historians. In works of the famous historians of feudal law I.I. Smirnov, B.A. Romanov, S.V. Bakhrushin, S.V. Yushkov, L.V. Cherepnin, M.N. Tikhomirov the position of church by the legislation depends on the government (Bakhrushin 1945: 40-56; Smirnov 1947: 70-85; Tikhomirov, Yepifanov 1961: 19-25; Yushkov 1950: 150-174). Consideration of the decrees concerning church was carried out according to studying all complex of the legal norms which were available for that period (Buganov, Preobrazhensky 1980: 52-54; Chestnuts of 1967: 52-78; Pokrovsky 1979: 72-75; Tikhomirov 1979: 150). Special value

it was given to studying the Russian clergy as land owner that was begun still by V.O. Klyuchevsky.

The Soviet historian M.N. Pokrovsky when studying questions of land property in Russia draws the 15-18th centuries a conclusion that the church kindled fight between nobility and the nobility and sought to fix the idea of priesthood of throne (Pokrovsky 1979: 74).

Thus, the Soviet historiography expanded a range of researches on a legal status of the Russian church a little. However as well as during the pre-revolutionary period, special works on this problem it was not published.

Inclusion of a legal status of church in a context of the state legislation is characteristic

also of works of the modern period (Isaev 1992: 54).

To sense of justice of ruling estates in the 15-18th centuries collections of articles "Idea of Property in the Russian Society of the 15-18th Centuries." were devoted to development of the legislation in Russia (Mountain, Shveykovsky 1998: 84-95) and "Property in Russia: Middle Ages and early modern times" (Mountain 2001: 109-110).

The period of drawing up the main Codes of laws of 1497 was connected also 1550 with strengthening of the autocratic power to which also the church submitted.

In the work on the social history of Russia of the period XVIII - the beginnings of the 20th century B.N. Mironov shares opinion that intra-church life is regulated by church laws, and activity of church is considered as a part of the state institute (Mironov 1999: 282).

Thus, the most accurate statement of a problem by the legal legislation of church of the end of XIV - the first half belongs to the period of a modern domestic historiography

XVII century. However special works on this subject nevertheless are absent today.

Crimes against religion and church originate from church canons. Practice, advancing the legislation, applied to the persons accused of antireligious crimes, in particular in heresies, the death penalty through burning. So, in 1227 the Novgorodians burned four "wizards" in Yaroslav's yard;

spring of 1446 Ioann Mozhaysky publicly burned on a fire for imaginary magic of the boyar Andrey Dmitrievich together with the wife (Telberg 1962: 222). This practice received confirmation in the sentence of church cathedral of 1504 which ordered to punish defendants in heresy burning, reduction of language and imprisonment. However the subsequent punishments of heretics were considerably softened. So, Matvei Bashkin and his companions accused in 1554 underwent only an imprisonment in monasteries. Still bourgeois scientists noted that Russia is almost only country which did not allow peculiar to the period of the developed feudalism of mass processes in courts of inquisition and burning alive thousands of people (In the same place: 230). The orthodox religion became principles of the legislation in the Russian state unlike western. In the center there was a protection of the life belonging to god. "State uboyets and to a kramolnik, church tatyu and to a golovnik, podymshchik and zazhi-galshchik... not to give a stomach, to execute the death penalty" (The code of laws of 1497 1984: 62-67). This rule is especially followed in the 16-17th centuries though it was established at the end of the 15th century

The Code of laws of 1497 became the first secular monument acknowledging responsibility of the persons who committed crime or violated the rights and the interests of church. Influence of orthodox religion affected first of all mitigation of criminal penalties. The death penalty was established in 10 cases, and in any of them the sovereign could pardon executed. Abolition of the death penalty and replacement with its other type of punishment contacted change of spiritual shape and behavior of the criminal, his preservation in a bosom of church. Of course, in the 16th century (and especially in the 17th century) the law becomes more cruel and ruthless. But in the Code of laws of 1497 the aspiration of the Russian church to resemble not Catholic church in which bosom the inquisition, on the Eastern Church which appeared under the power of the Ottoman Empire practiced was reflected. However, despite influence of clergy on drawing up the Code of laws, in general it was the first set of precepts of law of the Russian state in which types of crime and punishments for them are established. Respectively the government was responsible for execution of these norms to society.

The aspiration to an absolute, absolute power also spoke about the uniform law and need of its observance. The problem of redistribution of land property becomes one of the main questions of the Russian centralized state. The state tries to limit to Article 63 of the Code of laws of 1497 growth of land property of clergy (The code of laws of 1497 1984: 67). Leaning on a monument of the right of the 13th century - Justice Metropolitan, - this article of the Code of laws establishes terms for return of someone else's land property: for princes - 6 years, for other categories - 3 years.

In the Code of laws there are articles protecting the rights of church as one of public institutes though the concept of secular and spiritual court remains. So, those who stole or spoiled church property (In the same place are exposed to excommunication: 66). Persons in case of their transition to Muslim belief were exposed to trial from the authorities: it was necessary to establish the reason of this malicious intent (In the same place). But also here the church tried to commute a penalty considerably. The refusal of Orthodoxy involved not the death penalty, but just monastic conclusion. The throne included church in the sphere of the legal activity, acting as the guarantor of its rights and interests. During this period the restriction of acquisitions of land possession of church begins.

Adoption of the Code of laws of 1550 of Ivan IV continued creation of the uniform legislation. The code of laws consists of 100 articles and considerably surpasses the Code of laws of 1497 in a variety of adjustable situations. It concerned also clergy as one of the categories of the population protected by the law.

The value of legal principles of this Code of laws created in the period of the Elected Rada was so high that in 1565 - the period of establishment of oprichnina - the tsar persistently strove for their cancellation to give itself a free hand to start terror (Kalachev 1942: 26).

In the Code of laws of 1550 concerning church a number of articles was used. So, were revealed by the Soviet historian of the right I.I. Smirnov: the resolution of August, 1503 providing

responsibility of the spiritual authorities for bribery; "sentence" of September 15, 1550 about prohibition to spiritual feudal lords to create new settlements and to put in old the new yards (Smirnov 1982: 302-303). In the Code of laws of 1550 there are a lot of articles devoted to legal proceedings. In particular, in one of them it is said that condemned by church court or on affairs spiritual were exposed to the monastic conclusion (The code of laws of 1550 1984: 134). The court established also the procedure of punishment for insult of the patriarch by the boyar or dumny people (Article 27, 28 hlX) (In the same place: 140). There was "a delivery with the head", that is public repentance, and then - punishment by a lash.

In February, 1551 on church cathedral in Moscow Ivan IV made the speech in which he stated 69 questions to church and asked to give answers to them "by rules of Holy Fathers". Answers of figures of church made the book (Hundred-heads) divided into 100 chapters, generally concerning initial life. For practical guidance of Hundred-heads it was dispatched on monasteries and churches, but the Territorial cathedral of 1667 repealed the resolutions Hundred-head, and this collection generally became an Old Belief monument (Smirnov 1982: 304).

In the same 50th of the 16th century in a royal environment the collection of household, moral and moral and legal rules of conduct - "Domestic tyranny" was made. In "Domestic tyranny" tough rules by means of which the government intended to fight against violation of moral principles (the Domestic tyranny of 1991 were preached: 3).

The tsar Ivan IV intended to achieve from Cathedral of consent to laicisation of church lands and establishment of jurisdiction of ecclesiastics to secular court. But participants of Cathedral proclaimed inviolability of church property, exclusive jurisdiction of ecclesiastics to church court, and the issued earlier appointed diplomas establishing jurisdiction of ecclesiastics to the tsar were cancelled.

The cathedral also carried out by the decisions unification of church ceremonies and duties throughout Russia, developed an accurate regulation of norms of intra church life for the purpose of increase in literacy and moral level of faces of the clergy,

correct execution of the duties by them. Besides the church legislation it contained the norms relating to the sphere state (Chapter 53-69), criminal (Chapter 37-38, 92-94), family (Chapter 18-24) and civil (Chapter 75-76) the rights providing the strengthened protection of interests first of all of the clergy.

Ivan IV in the Hundred-head pays attention to richness of monasteries. On its establishment the lands donated to the Hundred-head edition to monasteries from the state or from boyars and noblemen to "soul mention" remain behind them (Chapter 75) (The code of laws of 1550 1984: 136). However nothing is told about further acquisitions of church. At the same time the tsar did not resolve "put new settlements" and allowed citizens of clergy if desired "to go on the posad, or to villages of life." (In the same place: 137).

During this period the tsar actually undertook nothing against church property. In the Hundred-head as in any code of ecclesiastical law, crimes and punishments for them were established. If stolen the private property put there on storage from church it was punished besides compensation of a stolen property by excommunication, then stolen or exchanged church property was considered as the church thief and was subject to a capital punishment.

Church the Tat in terms of the Hundred-head of 1551 not so much thieves and robbers, how many turncoats, enemies of God's church. The expanded concept of sacrilege gives hundred-heads, carrying to the subject of this crime of any person, up to the tsar who attempted at least only mentally, on the rights and prerogatives of church. Besides church theft of Hundred-heads included in a concept of sacrilege violation of an order of church deanery - a church mutiny. It could be expressed in emergence in church in a state of intoxication, the loud laughter, a conversation and other acts which are not directed directly against church, but causing the offense to clergymen treated by the Code already as their insult. Could be the subject of this crime both secular, and the ecclesiastic (the Code of laws

1550 about 1984: 137, 139, 140). In the Hundred-head such crimes as false oath and perjury, are directed against the doctrine of Christian belief. As punishment is prescribed strict observance of orthodox norms (In the same place: 138). Special look prestup-

the line, being in church jurisdiction, becomes also sale of wine - a korchemstvo.

Thus, analysis of articles of the Code of laws of 1550 and Hundred-head

1551 showed that there was no legal division between church and the state still. It reflected the existing order of things: the church was still responsible for "ideological work" in society and aspired to dominant position in the state.

The cathedral Code of 1649 acts as the last collection of the right constructed as the previous codes of laws in which the theoretical basis was formed by religious and legal understanding of legal and political processes.

The cathedral Code where structures of criminal actions against religion move forward on the first place in the system of the secular legislation, and punishment for them become tougher (for example, church taty it was already recommended to execute without any mercy - Article 13 of Chapter XXI), expands a concept of a church mutiny: the murders, drawing wounds, a beating, insult by a word committed in churches and also the address to time of church service to the tsar or the patriarch from the petition about legal investigation (Article 4-9 of Chapter I).

The code enters the concept "blasphemy". This abuse, insult by words or actions and also disbelief, denial of God, Virgin that was infringement of fundamentals of Christian dogma. Not only Christians, but also people of other religions could be the subject of crime. The seduction of the Orthodox Christian in Muslim belief which is carried out surely with malicious intent (Article 24 of Chapter XXII) was equated to blasphemy (the Cathedral Code. 1986: 84-85).


in the 72nd article of Chapter X of differentiation of dishonor, the Code enters new object of crime - clergy. Payment of dishonor from 400 to 1 rubles depended on an object and the subject of crime. So, for dishonor the word of the patriarch from the boyar or their dumny person "otoslat to the patriarch the head", that is to give in his full order (Article 27). Insult by the word of the metropolitan, archbishop or bishop attracted payment of dishonor (Article 28, 29). The same crime committed by a smaller official rank - the steward, the solicitor, the nobleman moskov-

sky and others, - it was punished for the patriarch of a batogama, for other ranks - imprisonment (Article 30) (the Cathedral Code. 1986: 90). Thus, criminal penalty for this crime was entered.

At disputes on regionalism or insult of the patriarch by the boyar and dumny people (Article 27, 28 hlX) delivery by the head" relied ". It was the ceremony directed to humiliation of honor of the guilty person. The last was brought on the yard to that, "with whom it did not want life", put it on the lower porch, and it, standing bare-headed, expected an exit justified. Then "the royal salary" was read and justified released the rival, being content with his humiliation (the Cathedral Code. 1986: 92).

Punishment becomes rather severe, any differentiations between secular and church crimes disappear. So, such crimes as false oath, pass into the category of civil. The code of 1649 for it enters public trade execution "on three days" with the subsequent imprisonment and deprivation of the right of admission to the oath from now on (Article 9, 11 Chapter XIV; Article 27 of Chapter XI) (In the same place).

The cathedral Code of 1649 limited land possession of church, and first of all it was the refusal of "mentions", transferred to the state "white" settlements and founded feudal secular trial of clergy. It was impossible to bequeath the church real estate. According to the Code of 1649, it was defined to clergy along with other estates to be engaged in service to god. Actually it meant submission of church to the state. The Monastic order putting possession of clergy under control of the state was founded. The church became ideological institute necessary for the state which rights and interests were protected by this state.

The cathedral Code of 1649 was the final stage in a legal status of church in the Russian state. Codes of laws of 1497, 1550, Hundred-heads of 1551 recognized differentiation between the secular and spiritual authorities. The cathedral Code of 1649 completely puts ensuring protection of the rights of clergy under the state control. It was necessary for restriction of intervention of church in political life during transition to abso-

to a lyutizm. On the other hand, the power received represented by church of the ideological ally supporting her if necessary.

The analysis of a legal status of church at the end of XV - the first half of the 17th century showed that in the Russian state there was no true independence of church. Throughout this period between the power and clergy there were contradictions based on the aspiration of church to participate in government. In the middle of the 17th century these contradictions were eliminated. From this point in the power of church there is moral life of society. But also this right was selected at church by the state during the reign of Peter I. Thus, the church finally became a part of state mechanism which actually and remained till 1917


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