An Historical Conspectus of the Sources of Byelorussian Law

110 THE JOURNAL OF BYELORUSSIAN STUDIES ■ An Historical Conspectus of the Sources of Byelorussian Law BY STANISLAŪ SAVICKI The extraordinary complexity of the political organisation and cultural development of the inhabitants of the Eastern Slavic lands are reflected in the growth of legal norms, in the concepts of law and order, and in the judicial organisation which prevailed in the Grand Duchy of Lithuania. Its history presents an interesting picture — several distinct cultural traditions competing with each other in an endeavour to form a cohesive whole, a political body, out of different ethnic groups, and to formulate a common civilisation, whilst allowing each distinct group to weave its own pattern into the common fabric, The development and organisation of the State were influenced both by the culture of the Latin West and by Greek Orthodoxy. Its national components included over half a dozen variegated ethnic and religious groups, — Byelorussians, Ukrainians, Lithuanians, Poles, Jews, Tartars, Germans and a small number of Greek traders. The first Byelorussian State, Polotian Ruś, was created in the middle of the XIth century by Prince Ūsiaslav, with Polack as its capital. The other Slavic principalities contemporary with Polack were, in the South, Kievan Ruś with Kiev as the capital, and Novgorod in the North. The period from the Xth to the XIIth century was marked by an almost perpetual struggle between the two predominant dynasties, — those of Polack and of Kiev. Little is known about politico-juridicial structure of society at this time, though it was characterised by the dominance of primitively democratic ideas in the social structure of the country, by social equality, and by an absence of class strife. As Doūnar-Zapolski observed: "We know of no other Slavic tribe in which these characteristics were so well developed as among our ancestors."1 The Principality of Polack was an important centre of Eastern- Slavic culture, and its scholarly and literary achievements may be compared to those of Kiev and Novgorod. In the XIIth century it produced Saint Cyril of Turaū, a man of great learning, the writer Clement Smolatič, and Euphrosyne of Polack — a distinguished spiritual guide. The history of the next two centuries is somewhat confused. In the XIIIth century, the Lithuanians, — wild and pagan tribes inhabiting 1) N. Vakar, Byelorussia, the Making of Nation, Cambridge (Mass.) 1956, p. 42. Downloaded from Brill.com09/30/2021 01:27:09AM via free access SOURCES OF BYELORUSSIAN LAW 111 the forests of the lower banks of the Nioman and Dzvina, — trans formed themselves from a tribal to a national society, organised themselves politically and, under the leadership of the powerful Prince Hedymin and his family, conquered and annexed the principality of Polack. By the middle of the XVth century, annexa tions and accessions included Vilnia and Horadnia in the West, Viciebsk in the North and Kiev and Orel in the South East. In fact, the domain of the Lithuanian State extended from the Baltic to the Black Sea. Towards the end of the XIVth century the Lithuanian-Ruthenian State was joined to the Kingdom of Poland, the union being sealed by the marriage of the Grand Duke Jahajlla to the Queen Jadwiga of Poland. Thereafter the Grand Duchy and the Kingdom of Poland were bound together in the personal unity of the King and Grand Duke which ensured that Jahajlla and his successors would at the same time remain Kings of Poland. The organisation of administration and of justice however were not affected. Constitutionally the Grand Duchy remained independent of Poland for the next hundred and fifty years, until the Lublin Union. Its sovereign rights and independence was affirmed in a series of acts during the XVth century and enshrined in the preamble of the First Lithuanian Statute 1529. Save for the acknowledgment of a common dynasty with Poland, the Grand Duchy retained its own government, laws, currency and army and a separate department for diplomatic relations with Poland. The latter was treated as a foreign power, not even at all times as a friendly power. * * * The history of legal institutions and of the organisation of the courts in the Lithuanian-Ruthenian State in the Middle ages suffers generally from, a lack of reliable sources. It is impossible to describe legal norms, the organisation of the courts and court procedure in any systematic form. Written records were initially sparse and have been preserved only in fragmentary form. It is not until one reaches the period of centralised government that one has a chance of survey ing legal developments with any degree of certainty. For our knowledge of the earliest forms of customary law, judicial organisation and court procedure, we are constantly thrown back upon legal and political documents of the Grand Duchy, on the accounts of foreign chroniclers, envoys or travellers, and on the works and collections of ethnographers. Such material provides only an incomplete picture of the legal organisation of society and hints at legal norms. The great variety of parallel systems of personal laws which prevailed within the former Grand Duchy of Lithuania renders the task of presenting a coherent picture of Byelorussian law a formidable one indeed. Although from the late Mediaeval period onward the Feudal Privileges, subsequently codified in the Lithuanian Statute, Downloaded from Brill.com09/30/2021 01:27:09AM via free access 112 THE JOURNAL OF BYELORUSSIAN STUDIES and the Magdeburg Laws enjoyed considerable prestige, they were by no means the sole, or even the predominant sources of Byelo russian Law during the Grand Ducal period. Both local customs, which varied from province to province, and a body of case-law, Litoūskaja Metrika and the Court Records, form an essential part of the whole structure of the Byelorussian legal system. A student of the law of the Grand Duchy of Lithuania, and in particular of the specifically Byelorussian aspects of the law, is handicapped first by the considerable confusion which exists in much of the available source material, which frequently deals with diplomatic administrative and religious matters as well as judicial questions, and secondly by the very incompleteness of that material. This was the result of centuries of neglect, dispersion and sometimes deliberate destruction. Much of the most valuable material, and in particular the Records of the Courts, remain in manuscript form merely because, after the disappearance of the old Grand Duchy in 1796 and the abolition of the Grand-Ducal legal system in 1840, the publication of these records presented no immediate practical interest for the ruling powers. It was left to historians and archeologists to include some of these Records in the series of ancient documents which they were able to publish from time to time. This task was fulfilled in the course of the late XIXth century, principally by the Archeological Commissions of Vilnia, Kiev, St. Petersburg and Moscow. As these Commissions were made up principally of historians rather than lawyers, the collections they edited included much non judicial matter, such as acts of administration, minutes and briefs of the executive authorities, and inventories of churches. Moreover, as these collections were published at a time when the use of the term "Byelorussian" was not only discouraged, but actually prohibited by the Imperial authorities on political grounds, the documents were described either as "West-Russian", "North-West Russian", "Russo-Lithuanian", "Russo-Livonian" or by some similarly misleading circumlocution, or else they were classified among documents which gave no indication of the juridical nature of their contents, e.g. Smolenskaja Starina and Vitebskaja Starina.2 Although a large number of Judicial documentation is to be found in the collections of historical Akty published in St. Petersburg and Moscow and Kiev (thanks largely to the efforts of Byelorussian scholars such as M. Doūnar-Zapolski), the most valuable work was done in Vilnia, where between the years 1865 and 1915 some thirty- nine volumes of Court records and Acts of the Judicature were published by a Commission of archeologists and historians, which included the distinguished Byelorussian Jurist Zm. Daūhiała. They included the Records of the Land Tribunals of Horadnia, Bieriaście, and Slonim, of the Municipal courts of Bieriaście, Horadnia, Vilnia, Mahiloū and Vilkamer, of the Magdeburg jurisdictions of Bieriaście, 2) В. Пичета, Белоруссия и Литва XV-XVI вв., Москва 1961 л. 418-425. Downloaded from Brill.com09/30/2021 01:27:09AM via free access SOURCES OF BYELORUSSIAN LAW 113 Kobryn, Kamieniec, and Vilnia, as well as Acts relating to certain privileged classes of citizens such as the Bojars, the Tartars and the Jews.3 No coherent picture of the legal system of the Grand Duchy of Lithuania can accurately be traced without some reference to a capital source of Byelorussian law, the vast compilation known as the Litoūskaja Metrika or Lithuanian Register, of which parts were published by the Archives of the Imperial Ministry of Justice in Moscow under the editorship of Doūnar-Zapolski in 1897. This was the Register of the Chancery Court of the Grand Duchy, and was considered by Daūhiała as the richest source of historical knowledge of the former Byelorussian State. It contains more than one thousand volumes.4 The most celebrated body of Law relating to the Grand Duchy was undoubtedly the Lithuanian Statute or Litoūski Statut of 1588, a codification of feudal rights and dues, which had previously been defined in a succession of individual land-grants and grants of privileged rights. The Statute was first promulgated in 1529, but it was revised and amended in 1566 and finally in 1588. In its definitive form it gained the high regard of the Byelorussian nobility. They stoutly resisted proposals to displace it by a unified Code of Laws which would apply both in the Kingdom of Poland and in the territory of the Grand Duchy of Lithuania.

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