The Science Work
History
Site is for sale: mail@thesciencework.com
Category: History

Origin of bases of military legal proceedings in XVI XVII centuries.



grigoryev O.V.

ORIGIN of BASES of MILITARY LEGAL PROCEEDINGS In the XVI-XVII centuries

The first mention of the committed military crime contains in "Code of laws" for 1550. It was talked of "town sdavets", that is the military chief who handed over fortress to the enemy. According to provisions of "Code of laws" the voivode who committed such crime needed punishment in the form of the death penalty.

It is told about responsibility of the military personnel for separate types of crime also in "The code about service" 1556 and "The charter about the establishment of guard and stanitsa service" approved by the tsar on February 16, 1571 as "A seigniorial sentence about stanitsa and guard service" [3, page 104]. Important regulations on criminal liability for evasion from military service and also for "its negligent execution by watchmen" were fixed in it. So, the watchmen who left before change the places specified for service when there was an attack of the opponent on border, were expected by the death penalty. In case of absence of soldiers in time for execution of the duties on the sentry line, they were subjected to a fine. At negligent service the guilty persons were punished by a whip.

In 1577 the additional resolution relating to stanitsa and guard service was issued. It was specified in it that the ratnik who were a part of local army appointed for protection of border of the state in case of enemy attack and standing in a queue for a zastupleniye on posts should not leave places of the residence. And having received data on approach of the opponent, they were obliged to be on service immediately.

If this order was broken by the landowner, then in case of military operations the most severe punishment - the death penalty was prescribed. In peace time, corporal punishments in the form of "a beating by a whip" for disobedience and decrease in a local monetary salary were imposed to guilty.

The analysis of history of the Russian military legislation before the beginning of the XVII century allows to draw a conclusion that when the basis of the Russian army was formed by a local militia, for the sluzhily people who were in

submission of the prince or landowner, there was no such crime as leaving of the duty station. Only the persons which were a part of the national militia created under the special resolution of a veche for war for execution of a conscription could be subject to criminal penalty.

In process of strengthening of the Moscow principality and formation of the centralized Russian state the right for departure from a disposition began to be limited. During rule of Ivan the Terrible the departure of the sluzhily person without the corresponding permission or oath record, the guarantee or payment of a penalty was considered as treason.

With establishment of obligatory military service for a large number of the persons allocated for it by estates and establishment of troops of the constant lodged character (policemen of Cossacks, Sagittariuses and gunners), evasion from service became punishable crime.

Along with evasion from service and its negligent execution, other type of the acts recognized punishable and criminal, characteristic of the considered era, infringement of the attitudes towards the personality and the population and also property of inhabitants of areas existing in troops where troops were deployed or acted was. In spite of the fact that at that time plunder of the occupied territories and violence against the population was considered as the indisputable right of winners, the military chief could determine a measure of punishment to subordinates for the excessive cruelty shown by them and other, in his opinion, inhuman actions which were carried out without special permission by own discretion.

As for judicial authority and an order of administration of justice up to the XVII century, as researchers fairly noted, in the Moscow Russia everywhere there was a rule "who operates - that and judges" [2, page 67]. Then the right of court belonged to princes and their voivodes, and in national militias - tysyatsky. Besides, the persons which were a part of a militia for violation of the duties could be subject, as well as all citizens, to court of popular assembly.

In the 16-17th centuries similar cases were considered in orders which in essence were the administrative authorities performing various functions including judicial. Powers between orders were distributed by the nature of and to a subject of affairs, on persons and across a certain territory. The first instructions on existence of orders belong to 1497. Their further development

it falls on the period of government of Ivan IV - time of centralization of management. In orders all mechanism of government administrative activity was concentrated [5, page 69].

Each order operated the sort of affairs charged to it and at the same time carried out trial of the persons subordinated to it on affairs subordinated to it. In the subsequent writs appeared only. Orders and also the order of holopy court were judicial and legal orders judgment and thuggish (detective). The thuggish order directed activity of criminal court.

During the studied period the service in streletsky regiments was hereditary. As Sagittariuses and gunners had a number of privileges, they valued the place. For insignificant offenses they answered to the corresponding chiefs, for more considerable - to the military orders (digit, streletsky and pushkarsky), and for their serious crimes, as well as all citizens, judged in thuggish or thieves' orders. Such order existed in peace time.

In case of declaration of war some part of active male population was attracted in militant formations and became ratnik. For perfect offenses of ratnik either the voyevodsky court, or the regimental judge judged. Sagittariuses were judged by court of the streletsky centesimal heads. In essence, it is possible to call voyevodsky court and courts of regimental judges the Russia's first military courts.

In the first half of the 17th century in the activity they were guided by "The charter of military, pushkarsky and other affairs" (1621) which was borrowed from "The military book the" (Kriegsbuch) published in Germany in 1575. The called charter contained norms of both material, and procedural military law. Its action extended to "military people" and all those who executed support functions at army. The most part of articles of the charter concerned a regulation especially military matters (tactics, artillery, etc.), but much they treated regulation of the device and management of troops. In it regulations on a military and judicial part according to which judicial authority in army was entrusted to the big regimental voivode (to the commander-in-chief - to Field Marshal) were stated. At it "the military court" in which he considered all cases personally was established or it was done by the regimental judge appointed by it (streletsky centesimal the head).

Directed artillery pushkarskiya the head, respectively the trial of gunners was carried out according to its order, but only after the report to the Big regimental voivode (on modern terminology - the commander-in-chief). The pushkarsky section of the charter contained 29 articles. In most of them it was told about crimes which commission is possible only gunners; a part of norms concerned also all-military crimes.

Many pushkarsky articles of the charter of 1621 contained some instructions and the bans, without definition of any types of punishments for violations, that is the accurate system regulating punishments for offenses and crimes on service did not exist, and the possibility of application of punishment depended generally on a discretion of the corresponding chief.

The crimes connected with the negligent relation to the tool were provided in pushkarsky articles among crimes "with a special subject" for which the most strict sentence was imposed. Such crimes as absence from the tool without the permission, non-execution of rules of maintenance of the tool in constant combat readiness, waste of accessories, necessary for firing, were punished by the death penalty.

Similar punishment was necessary also for such crimes of all-military character as the introduction in the relations with the persons which are on the enemy party without the permission of the administration (espionage), arousing vain alarm (causeless firing, noise) in full view of the enemy when sentry posts and also robbery of churches, their occupation on a billeting, ruin of mills are placed.

Disobedience and non-execution of orders, unauthorized leaving of service, violation of the rules of respect for servility were referred to number of less serious military crimes. Also responsibility for crimes against local community was provided in this charter.

As it appears from historical sources, the form of criminal proceedings of that period was inquisitorial (search). At the same time the judge combined in himself functions of the judge, charge and protection, and process proceeded in two stages. At first the judge collected proofs of fault, first of all obtaining confession of the defendant including by means of tortures. Also testimonies of witnesses, written proofs, searches, poll of a large number of people were used. In the second stage of process - discussions - the judge checked collected proofs and pronounced a sentence.

Evasion from military service, violent acts concerning the victims (murder, causing injuries, etc.) and also crimes against discipline and an order of execution of military service (generally guard) were the most widespread crimes among military people.

The purpose of criminal penalty was, first of all, the penalty for perfect offense and also intimidation for edification of other. The system of punishments was very cruel. (Absolute and uncontested) the death penalty was punishment quite often only.

The charter "Uchenye and cunning of a military system" which emergence belongs to 1647 represented generally front charter of infantry. In it mentions of the regimental judge and the court clerk, of the monetary pay put by it irregularly meet. Besides, in the called charter it was told about some major violations of guard duty and about punishments for them.

In the first half of the 17th century the country endured the crisis known in the history as "time of troubles" which can be determined by depth and scale as structural because it covered all spheres of life. The economic crisis was generated by long Livonian war. It, in turn, stimulated strengthening of a serfdom that caused social tension in bottoms. But also the nobility tested social dissatisfaction as its increased role corresponded to the existing situation a little.

The political crisis generated also crisis dynastic, connected with race for power of various seigniorial groups. The specified objective circumstances caused development and acceptance in 1649. "Cathedral code", also known as "Code of the tsar Alexey Mikhaylovich". It represented the collection of the state laws. In fact, it was the universal code of the Russian right which did not have analogs in the previous legislation as established norms in all spheres of life of society - social, economic, administrative, family, spiritual, military, etc. The code made on the basis of "Codes of laws" of 1497 and 1550, some articles of the Lithuanian statute of 1588 and royal decrees and also petitions of posadsky people and noblemen consisted of 25 chapters and 967 articles [1, page 461].

The provisions concerning military crimes and punishments were for the first time selected in separate, VII chapter of "Code" - "About service of everyones military

people of the Moscow state", partially they are considered in Chapter II "About the state honor and as his gosudarsky health to preserve" and also in Chapter X - "About court" and in Chapter XXIII - "About Sagittariuses".

VII chapter of "Code" included 32 articles, from them about a half had military and administrative character. Other articles established responsibility for the crimes committed in troops during military operations or at departure in a campaign or upon return from it.

Military treason - transition to the party of the enemy belonged to the crimes of the first group committed during military operations. Delivery to the enemy of the city and fortress was defined as a special type of military treason. For both of this types of treason the most severe punishment - hanging with confiscation of property was prescribed.

The second group of acts is presented by the greatest number of articles. They contained regulations on evasion from military service: leaving of the duty station, escape from the battlefield, malingering, assistance for a reward to evasion from service by means of granting a holiday without legal basis. Depending on a way of evasion from service various punishments were prescribed - from compulsory return to service to "a batogama beating" and imprisonment.

During military operations the third category of crimes various infringement of property of locals (in the territory occupied the opponent) made, causing losses by it upon purchase of supplies, a potrava of crops or consumption of bread in a forage to horses. Guilty persons, as a rule, had to indemnify the caused loss.

The fourth category of violations was made by crimes against the property of the companions: theft of weapon and horse. For these actions strict punishments were prescribed: for theft of a gun - "beating whip mercilessly", and for theft of a horse - cutting off of a hand.

The actions connected with causing violence and material damage to the population of the country are referred to the crimes committed during the army performance in a campaign and at return from it. For murder and rape the death penalty, and for robbery, theft, a potrava of bread and other property crimes - punishment at the discretion of command depending on fault was provided. The caused damage was collected usually in a double size.

There were also property punishments. Their sense consisted in reduction of a local and monetary salary, deprivation of a part or even all estates which were given for conscientious service and also in full confiscation of all real estate.

In Chapter II of "Code" where it was talked of high treasons, it was told about their special look: about delivery to the enemy of the city; about participation in a plot against the voivode and "mandative people" for the purpose of their murder. For these actions of guilty persons it was recommended to subject to the death penalty without any mercy.

According to the X head (about court) for insult of ecclesiastics and dumny people Sagittariuses, gunners and policemen Cossacks were punished with a whip and to imprisonment, and for drawing "offense" to other persons - material collecting at a rate of a salary or on a special dachshund.

According to "Code" of 1649 the judicial bodies in troops began to be subdivided into the lowest and the highest. Chiefs of separate parts of troops were among the lowest judicial authorities: the streletsky, pushkarsky, obsidional and Cossack heads and also colonels of troops of an overseas system (soldier's and reytarsky) concerning persons to them subordinates.

Had the right of supervision of administration of justice by military chiefs local regional or the voivode's policemen (where troops accommodated) as the persons invested by the military and civil authority. Usually it was applied in areas, remote from the center.

Orders under which authority military formations were were the highest military judicial authorities: Streletsky, Pushkarsky, Cossack, Reytarsky, Overseas, Weapon and Bronny. The senior commanding faces of troops of the Russian system, including colonels, judged in the Digit order while in troops of an overseas system they were subject only to court of the Overseas order. All orders not only considered the major cases, being expressed by modern terminology, on the first instance, but also made kind of the second instance for the affairs allowed by subordinate judicial authorities.

Concerning jurisdiction in wartime in "Code" it was told: "... and between sluzhily people what offense will be made in regiments and in such affairs judge them and between them repair punishment to regimental voivodes or judges to whom regimental voivodes will order" [4, page 149]. The senior and average ranks of okladny sluzhily people were subject to court of the voivode or his companion. And

the first (boyars, okolnich and stewards) were jurisdictional to it for all crimes, and the last (solicitors, residents, noblemen Moscow and policemen) only for more serious crimes.

The lower ranks of sluzhily people and average ranks for less important violations regimental judges judged. However, in "Code" it is told about regimental judges a little, from the text given above it is visible that regimental judges were under supervision of voivodes who appointed them.

The legal proceedings order in warships did not differ from the general legal proceedings [4, page 13-14]. The same judicial evidence, as in the general courts was used in them: recognition of the defendant, testimony of witnesses, search, written proofs, lot and oath. Concerning the last it is specified in "Code" that it is applied (by a krestotselovaniye) in case other proofs of fault it is not revealed.

After the Ulozheniya edition and during its action a number of the decrees concerning responsibility for military crimes was adopted. It, generally acts of prosecution for evasion from military service: escape from a regiment and absence on service. Punishment for these crimes depending on conditions of their commission (war, a campaign) were applied it is differentiated - from "a beating by a whip" before the death penalty. Repeated commission of crime was always considered as the circumstance aggravating fault. So, under the Decree of 1654 for secondary escape or absence the death penalty instead of the sentence by a whip imposed for commission of the considered crime for the first time relied. In the subsequent the law on responsibility for evasion was softened with the fact that the death penalty began to be applied not for the second, and for the third escape.

Thus, during the considered period there was an origin of bases of military legal proceedings without its allocation in a separate system in the form of special bodies of justice - warships. In implementation of justice concerning sluzhily people the general principles of class society dominated: inequality before court and also concentration in some hands of imperious and judicial powers.

1. Big Soviet encyclopedia: in the 50th TM: "Soviet encyclopedia", 1956. T.39. 668 pages
2. History of judicial authorities. M.: MSU, 1859. 581 pages
3. N.A. Petukhov. Social and legal problems of formation, development and functioning of a system of warships of Russia: yew. .d-ra yurid. sciences. M.: Soldier. un-t, 2003. 567 pages
4. Cathedral code of 1649 M.: MSU, 1959. 110 pages
5. Century of the Ministry of Defence. 1802-1902: in 13 t. / reprint. prod. SPb.: Alfaret, 2009. T of IV. 594 pages
John Summers
Other scientific works: