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Authorized diplomas (acts) of namestnichy management of the XIV beginning of the 17th V.: genesis of a legal form of the statutory act



IZ HISTORY RIGHTS I of the STATE

K.V. Petrov *

AUTHORIZED DIPLOMAS (ACTS) of NAMESTNICHY MANAGEMENT XIV — the BEGINNINGS of the 17th century: GENESIS of the LEGAL FORM of the STATUTORY ACT **

Among sources of the medieval Russian right a specific place is held by authorized diplomas of local management.1 M.F. Vladimirsky-Budanov characterized their value as follows: "(The XIV—XV centuries — K.P.) a) appointed and b) authorized diplomas were the only written forms of the law of that time". "Authorized diplomas are called the acts defining local management of any given area".2 Authorized diplomas differed from other acts first of all on the sphere of legal regulation; they "defined the device and an order of activity of local authorities" and were limited to action in a certain territory.3

However, pointing regarding legal regulation as to the main content of their classification, it must be kept in mind that authorized diplomas, in addition, contain considerable number of the precepts of law regulating other spheres of the public relations, those relations which in the modern right are governed by the civil, criminal, tax and administrative law. Considering this feature, it is necessary to allocate the main addressee

* Candidate of Law Sciences, the associate professor of the Leningrad state university of A.S. Pushkin.

** Work is prepared by

with assistance of RGNF (project No. 05-03-03534).

by
1 As a synonym of the term "diploma" used further the term "act" - the document.
2 M.F. Vladimirsky-Budanov. Review of history of the Russian right. Rostov nd, 1995. Page 223, 226.
3 M.A. M.A. Essays of the social and political system of ancient Russia. SPb., 1912. Page 208.

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From history of the right and the state

of imperious instructions — any given body of local management and also special — the free unprivileged population of administrativnoterritorialny unit or administrative education.

In a historiography can classify authorized diplomas by three categories: 1) diplomas of namestnichy management; 2) lip diplomas; 3) territorial authorized acts (diplomas).1 Specified division are caused by type of the main addressee of imperious instructions — the governing body (deputy or a volostel), body of lip self-government (lip diploma) and body of territorial self-government (territorial diploma).2

In a postrevolutionary historiography authorized diplomas could be called appointed authorized diplomas steadily. However in this case the term "appointed" is not defining for contents of the act and does not open an occasion and the reasons of its edition.3 As P.I. Belyaev, in terms of Old Russian terminology fairly noticed, all diplomas are appointed. 4

the Remained complex of authorized diplomas of namestnichy management belongs to the end of XIV — the beginning of the 17th century and contains 17 acts. Almost all authorized diplomas rather are published and well-known long ago in special literature; 5 one diploma are found and published rather recently by A.V. Antonov.6 also new finds of diplomas.7

by
1 M.F. Vladimirsky-Budanov are not excluded. Review of history of the Russian right. Page 226 — 227; M.A. M.A. Essays of the social and political system of ancient Russia. Page 208 — 209; A.N. Phillip-pov 1) Monuments of the right of the Moscow state II the Russian history in essays and Articles I Under the editorship of M.V. Dovnar-Zapolsky. Kiev, 1912. T. 3. Page 229; 2) The textbook of history of the Russian right (a grant to lectures). 4 prod. Yuryev, 1912. Part 1. Page 249; N.N. Efremova. The main sources of the right the II Development of the Russian right in XV — the first half of the 17th century of M., 1986. Page 18 — 19.
2 About local authorities in the XV—XVI centuries see: N.E. noses. Essays on the history of local management of the Russian state of the first half of the 16th century M.; L., 1957; A.A. Zimin. Vicegeral management in the Russian state of the second half of XV — the first third of the 16th century the II Historical notes. M, 1974. T. 94. Page 271 — 301; T.I. Pashkova. Local management in the Russian state of the first half of the 16th century. Deputies and volostel. M, 2000.
3 N.L. Dyuvernua. Sources of law and court in Ancient Russia. Experiments on the history of the Russian civil law. M, 1869. Page 266; D.M. Meychik. Diplomas and other acts of the 14th and 15th century in MAMYu II the Description of the documents and papers which are stored in MAMYu. SPb., 1884. Prince 4. Department 2. Page 13; P.I. P.I. Sources of Old Russian legislative monuments (began) the II Magazine of the Ministry of Justice. 1899. No. 9. Page 136 — 137; Yu.G. Alekseev. Ivan III's code of laws. Tradition and reform. SPb., 2001. Page 87.
4 P.I. P.I. Sources of Old Russian legislative monuments (beginning). Page 138.
5 Yakovlev of A.I. Namestnichya, lip and territorial authorized diplomas of the Moscow state. M, 1909; See also list of acts and their editions: Monuments of the Russian right. M, 1956. Issue 4. Page 222 — 223.
6 A.V. A.V. Rylskaya authorized namestnichya diploma of 1549 the II Russian of diplomatariya. M, 1998. Issue 3. Page 65 — 70.
According to V.A. Arakcheev, Toropetsky authorized territorial diploma 1590 — 1591 the text of not remained diploma of namestnichy management of the first half of the 16th century was the cornerstone of
7 (Arakcheev V.A. Toropetskaya authorized diploma 1590 — 1591 the II Pskov judgment diploma and the Russian legal tradition: Works nauchn. konf., posvyashch. to the 600 anniversary of the Party of Free Citizens. Pskov, 1997. Page 56 — 59).
K.V. Petrov

the Greatest attention in special literature is paid by

Dwin 1397 1 and Belozersk 1488 to 2 authorized diplomas, much less attention is paid to other acts. From the point of view of the organization of local authorities, their functions and material security ("feeding") the authorized diplomas were analyzed in general historical works of A.A. of Ziminym3 and T.I. Pashkova; The 4th ratio of authorized and "kormleny" diplomas was a subject of the researches B. H. Flori5 and A.V. Antonov.6 Despite the considerable achievements received when studying authorized diplomas of namestnichy management the question of genesis of a form of these acts was almost not investigated. From among historical and legal researches of the matter it is necessary to celebrate N.P. Zagoskin and P.I. P.I.'s researches.

Despite identity of a substantial part of norms in each authorized diploma, all of them have much in common in the structure. This feature allowed P.I. P.I. to claim that there was a certain uniform template on which authorized diploma.7

were formed

Having compared separate elements of authorized diplomas in terms of their contents, 8 N.P. Zagoskin allocated several obligatory parts in their structure:

1 L.V. Cherepnin. The origin of a collection of contractual diplomas of Novgorod with princes of XIII is XVvv. The II Historical notes. M, 1946. T. 19. Page 215 — 233; Fetishchev S.A. To a question of the office of local management of the Dwin authorized diploma II Novgorod and the Novgorod earth. History and archeology (Theses of a scientific conference). Novgorod, 1992. Page 178 — 180; Yu.G. Alekseev. Ivan III's code of laws. Tradition and reform. Page 86.
2 Yu.G. Alekseev 1) the Belozersk Authorized Diploma of 1488 — the law of the Russian state on local management II the Bulletin of the St. Petersburg university. 1998. No. 9. It is gray. 2. Issue 2. Page 3 — 17; 2) The Belozersk authorized diploma of 1488 — the first act of uniform Russian state II Controversial issues of national history of the XI—XVIII centuries: Tez. dokl. and soobshch. The first readings devoted to A.A. Zimin's memory. M, 1990. Page 13 — 15; 3) Belozersk authorized diploma of 1488 and questions of namestnichy court the II Auxiliary historical disciplines. L., 1991. Issue XXIII. Page 208 — 222; 4) Belozersk authorized diploma and some issues of social policy of Ivan III II Problema of social and economic history of Russia. To the 100 anniversary from day rozhd. B.A. Romanova. SPb., 1991. Page 88 — 97; 5) Ivan III's code of laws. Tradition and reform. Page 102 — 128.
3 A.A. Zimin. Vicegeral management in the Russian state... Page 271 — 301.
4 T.I. Pashkova. 1) Economic and administrative functions of local authorities (deputies and volostel) in the first half of the 16th century of the II Problema of national history and the culture of the period of feudalism. Readings memory of V.B. Kobrin. Tez. dokl. and soobshch. M, 1992. Page 150 — 151; 2) Materials for studying staff of volost administration of the Russian state of the second half of XV — the first half of the 16th century the II Auxiliary historical disciplines. SPb., 1998. Issue XXVI. Page 136 — 171; 3) Local management in the Russian state of the first half of the 16th century
5 B.N. Flor 1) About some sources on the history of local management in Russia 16th century the II Arkheografichesky year-book (further — AE) for 1962. To the 70 anniversary of the academician M.N. Tikhomirov. M, 1963. Page 92 — 97; 2) Kormleny diplomas of the XV—XVI centuries as a historical source of the II AE for 1970 of M., 1971. Page 109 — 126.
6 A.V. A.V. From the history of grand-ducal office: kormleny diplomas XV are the middle of the 16th centuries the II Russian of diplomatariya. M, 1998. Issue 3. Page 91 — 155.
7 P.I. P.I. Sources of Old Russian legislative monuments (beginning). Page 135 — 155.
8 N.M. Zagoskin. The authorized diplomas of the XIV—XVI centuries defining an order of local government management. Kazan, 1875. Issue 2.

From history of the right and the state

F1) the introduction (with the indication of the reasons and occasions of issue of the act) is p>

172; 2) the norms regulating ways of natural and cash security of officials and containing the basic principles of local management; 3) the norms establishing the amount of charges for actions of officials; 4) the norms regulating the separate parties of public order and an order of legal proceedings; 5) the norms entering the general principles of responsibility of officials for violation of standards of the authorized diploma; 6) act.1 details
N.P. Zagoskin by consideration of a question of the legal nature of authorized diplomas pointed

to a number of distinctive features of these acts (in comparison with voyevodsky orders): 1) "authorized diplomas are given to the population and are stored by him";

2) the authorized diploma "is not in connection with the identity of the local manager and continues to be valid until uses the sanction of legislature"; 3) the authorized diploma governs the relations between the population and authority (officials) in this territory; 4) the authorized diploma "is given for the benefit of the population and only indirectly infringes on the interests of management".2 at the same time N.P. Zagoskin pointed to the certain specifics of acts caused by features of development of society of that period: diplomas could be addressed not only to volosts as administrative units, but also communities (e.g., community of "princely fishermen" with a total number of 57 people, named in the act).

the General conclusion of N.P. Zagoskin on the question interesting us has dual character: on the one hand, the researcher considers authorized diplomas the peculiar "constitutional acts" of this territory, on the other hand, in the fact of restriction of their action with life of the monarch N.P. Zagoskin sees their difference from "law".3 Specified inconsistency in conclusions were criticized by D.M. Meychik in the review of N.P. Zagoskin's research. In particular, it was it is noted that the question of a direct connection of action of authorized diplomas in time and need of their confirmation at accession to the throne of the new monarch is not obvious and needs discussion.4

the Author of the real work earlier, by consideration of a question of a material source of precepts of law of authorized diplomas on the example of one of them, the assumption that the solution of this question should be connected with the analysis of the reasons of their delivery was made. And the opinion which settled in a historiography that provisions of authorized diplomas were enshrined the developed custom was called in question. Adhered to this position and N.L. Dyuvernua, 5

1 In the same place adhere. Issue 1. Page 56.
2 In the same place. Issue 1. Page 60 — 61.
3 In the same place. Issue 1. Page 64 — 65.
4 Meychik D.M. Rets.: N.P. Zagoskin. Authorized diplomas of the XIV—XVI centuries., defining an order of the local ruling management. Kazan, 1875 — 1876. Issue 1 — 2 II Collection of the state knowledge. SPb., 1878. T. 6. Page 69 — 70.
5 N.L. Dyuvernua. Sources of law and court in Ancient Russia. Experiments on the history of the Russian civil law. M, 1869. Page 266, 268.

K.V. Petrov

D.M. Meychik, P.I. Belyaev, M.N. Yasinsky (concerning authorized diplomas of Grand Duchy of Lithuania: "the purpose of authorized diplomas — to confirm all age-old legal and household system of the earth concerning the interests of the state"), 1 Yu.G. Alekseev.2

of Doubt in justice of traditional opinion arose because in a number of cases of the reason of fixing of custom were not clear. Really, it would be possible to agree with opinion of those who consider that in "law" the custom, was fixed in several cases. First, the custom could need fixing if it is impossible to refer to it in lawsuits. However at the disposal of researchers there is a large amount of the data allowing to claim that the reference to custom in vessels was widespread practice. Secondly, the custom could be enshrined in "law" for prevention of change of custom. However at the same time the custom stops being the regulator of the public relations and is replaced with "law" that taking into account financial and administrative weakness of the state in the XVI—XVII centuries is represented improbable. These observations forced to suggest that standards of authorized diplomas reduced the amount of collecting, or contained other privileges designed to achieve loyalty to the power from the population of a certain administrative unit.3

Is represented that now the point of view given above has substantially private (exclusive) character. Moreover, it appears, that the traditional point of view on a source of standards of authorized diplomas more convincing. Results studying a question of genesis of a form of authorized diplomas in such opinion.

First of all from among authorized diplomas should select to

two acts: Dwin and Belozersk authorized diplomas. The history of adoption of these acts is connected with foreign policy activity of the grand duke Moscow — the publication of acts is caused by need to hold and to gradually integrate into structure of the grand duchy Moscow the attached lands. In a situation of financial and administrative weakness of the state of that era this policy is represented optimum. And a similar image there will take place gain, accession and entry into the structure of the Russian state of other territories. Similar policy — one of mechanisms by means of which in the future it will be possible to create the Russian State, considerable by the sizes. So, na1 M.N. Yasinsky. Authorized territorial diplomas of the Lithuanian-Russian state (began) the II University news. Kiev, 1888. No. 9. Page 75, 76.

2 Yu.G. Alekseev. Ivan III's code of laws. Tradition and reform. Page 79 — 80.
3 K.V. Petrov. The authorized diploma of the grand duke Ivan Vasilyevich to peasants of the volost High the Kolomna County of January 26, 1536: a ratio of standard of the act and "duty" the II Society, the state, supreme authority in Russia in the Middle Ages and early Modern times in the context of the history of Europe and Asia (X—XVIII century): Materials of the international scientific conference devoted to the 100 anniversary since the birth of the academician L.V. Cherepnin. M, 29 noyab. — on Dec. 4, 2005 (in the press).
to
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From history of the right and the state

an example, in 1514 after capture of Smolensk by troops of the grand duke Vasily III confirmed action of the Smolensk authorized diploma of 1505 1

of the Reason of adoption of other acts, the ratio of material sources of standard of authorized diplomas and genesis of a form of acts allows to find out the remained document — the Authorized diploma of the metropolitan Kipriana Vladimirskomu Tsarevokonstantinovskomu to the monastery of October 21, 1391 2 Diploma is not the authorized diploma of namestnichy management as regulated the amount of collecting in the monastery ancestral lands, and the "authorized" diploma called B.E. Syroyechkovsky and L.V. Cherepnin. The text of the act remained in three copies (lists) as a part of collections of the XVI—XVII centuries and is well-known in special literature.3

the Authorized diploma of the metropolitan Kiprian is unusual for a number of reasons: first, the diploma was submitted to the grand duke and received his sanction about what the corresponding inscription of the grand-ducal clerk Ivan is made; secondly, the diploma differs in the contents. In essence it is close to the right diploma — the judicial act which made out the decision on a particular case. The text of the diploma contains all signs of the similar act: a preamble about issue of the diploma in response to "chelobitya" of "monastic orphans", their claim to the abbot Yefrem who collects the collecting which is not corresponding "to duty what other abbots did not imat", retelling of speeches of the abbot Yefrem, collecting data on monastic "duty" at the former abbot Tsarko, the indications received in Vladimir according to metropolitan boyars Mikhail Bireev and Yury Protopopin, the metropolitan cook Ivan, the resolution of the metropolitan Kiprian: "you go vs according to my diploma".

the Authorized diploma of the metropolitan Kiprian is issued to

as a result of judicial review of the complaint to actions of the official. However it is important that in the judgment precepts of law are formulated. As a result of consideration of the case the "duty" (legal custom) regulating collecting from peasants in favor of the monastery was found out, and the right diploma was given standard force.

In this case can expect objection concerning correctness of a research of the authorized diploma of the metropolitan Kiprian as in it it is about how payments in favor of the faces of non-state management personnel are established. Meanwhile, in special literature of the Soviet era the attention to a being of the relations between monastic management personnel and peasants of the metropolitan ancestral lands was practically not paid. The specified relations have public (administrative) character — the power of the metropolitan

1 M.N. Yasinsky. Authorized territorial diplomas of the Lithuanian-Russian state (began) the II University news. Kiev, 1888. No. 9. Page 84.
2 Acts of feudal land tenure and economy of the XIV—XVI centuries of I Podgot. L.V. Cherepnin; otv. edition S.V. Bakhrushin. M, 1951. Part 1. No. 201. Page 179 — 180.
3 See: V.E. Syroyechkovsky. Authorized diploma of the metropolitan Kiprian. 1391 the II Historical notes. M, 1940. T. 8. Page 248 — 251.
175

- the fneena private, and public, otherwise between the terms "people" (lackeys) and "hrestyena" (peasants) with which sources dazzle the difference would not be p>

>.

In some remained authorized diplomas of namestnichy management. It is thought that all acts of namestnichy management (except for the Dwin and Belozersk authorized diplomas) were issued on the basis of permission of the legal conflict. However the procedure of studying custom ("duty") which was fixed in precepts of law did not find reflection in the text of acts. The reason of it as it is represented, is connected with a subject and disputing parties. Inhabitants of a certain administrative unit act as interested parties. A dispute subject — character and the amount of mandatory fees and duties on actions of persons of the office of local management. It is rather obvious that it is about a dispute: 1) following from administrative legal relationship; 2) having public value.

the Question of features of administrative legal relationship in the medieval right — a subject of separate study. However it is thought that the nature of the legal relationship which are the cornerstone of the legal conflict and ways of its permission — from judicial review to a special form of grand-ducal (royal) control of law-enforcement activity of authorities (in terms of the modern right — administrative justice) — caused evolution of a form of authorized diplomas — from "the right diploma" to the regulatory legal act in modern understanding of this term.

>. I. Kucherkov *

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