Lectures on Slavonic Law Being the Ilchester Lectures for the Year 1900

Lectures on Slavonic Law Being the Ilchester Lectures for the year 1900 Feodor Feodorvich Sigel 18451921. Professor of Law in the University of Warsaw Batoche Books Kitchener 2001 Originally published London, 1902. This edition published 2001 by Batoche Books Limited Kitchener, Ontario. Canada email: [email protected] Contents Preface ............................................................................................... 5 Lecture I: Introduction: Bulgaria: Servia ........................................... 6 Lecture II: Russia............................................................................. 19 Lecture III: The Bohemian Kingdom .............................................. 41 Lecture IV Poland ............................................................................ 62 Lecture V: Croatia............................................................................ 83 Notes ................................................................................................ 92 Preface Having been honoured by the invitation of the Curators of the Taylor Institution to deliver lectures on some Slavonic subject, I chose the sources of the Slavonic Law, because the whole political, social, and economi- cal life of a society is most clearly reflected in the legal history. But the first step to an independent knowledge of such a history is a survey of the legal documents, their critical editions and scientific investigations. A serious acquaintance with the sources of the Slavonic Law can be only attained by reading them, which is much more accessible to a for- eigner than the study of the various Slavonic legal histories, because a great many manuscripts are written in Latin. As the development of the Slavonic nations greatly differs from the development of other Euro- pean peoples, it seemed to me necessary to add a little sketch of their political and social histories; the history of the sources, I thought, could only be made interesting to some degree on the broad basis of the transformations of the different Slavonic states and societies. Finally, I have found it useful to indicate the most valuable textbooks on the history of the Slavonic Law and legal antiquities, with some critical remarks for students more advanced or more interested in the study of the Slavonic world. An exhaustive bibliography could certainly not be aimed at, because it would render the whole work too cumbersome. While composing my lectures, I have been wholly penetrated by the wish to justify the confidence of the Curators, and to promote as much as possible the knowledge of the Slavonic world among the English people, so great and so worthy of praise for the spreading of civiliza- tion. I thank most heartily the Curators of the Taylor Institution for the opportunity given to me to speak at Oxford, in one of the oldest and most celebrated universities in the world, and also for their generosity in 6/Feodor Feodorvich Sigel supplying means for printing my lectures. But especially I express my sincere thanks to Professor W. R. Morfill, who was the first promoter of my invitation and has taken so much interest in revising these pages, which are published at such a distance from their author. F. Sigel Warsaw, July 1, 1901. Lecture I: Introduction: Bulgaria: Servia The comparative method occupies a very large place in the investigations of the laws of social development. The information of travellers about the manner of life of savages accumulates more and more; even the soil is broken for discovering the remnants of the written and archi- tectural monuments of Egypt, Assyria, and Babylon. But notwithstand- ing all this, a remarkable gap in the picture of social transformations must be felt in the West on account of the insufficient knowledge of the Slavonic political and social institutions. Meanwhile a little more information on Slavonic countries is very useful even for a good understand- ing of Western Europe. The peculiarities of the enormous influence of the Roman Catholic Church during the Middle Ages cannot be well grasped without comparison with states which never acknowledged her power. The importance of the inhabitants of cities in the social evolution can be only conceived, if we have before our eyes a country, like Po- land, where the people of the towns, being considered as foreigners for centuries, were for that reason not admitted into the Diet. The feudal institutions, spread over the whole West, had almost no part in the history of the Slavonic lands. Thus the great forces, moving the Western mediaeval society, can be either only partially (Roman Catholic Church) or not at all observed among the Slavs. The Slavonic society at its outset scarcely differed from that of the other Aryans; its organization was the same as that of the Greeks, the Romans, and the Celts, so vividly described by the late Prof. Freeman in his Comparative Politics. The essential difference in the growth of Western and Eastern European Aryans is therefore due to the difference of the various later influences. Their action can be established perfectly well by comparison. Besides, if we examine only the Slavs themselves, without comparison with other Aryans, we find that this society, at the outset with the same political and social organization, in the course of centuries was subject to very different influences, moral and material. One part, the Slavs living on the shores of the Baltic, remained true to their heathen Lectures on Slavonic Law/7 religion and disappeared; another assumed the occidental political and social ideas, with some modifications in different countries, and evolved states that seemed powerful and flourishing, but fell in the seventeenth and eighteenth centuries the third portion was permeated by Byzantine influence, and underwent a different fate. Bulgaria and Servia vanished after a short splendour; Russia from the fifteenth century considered herself as a third Rome, and manifests in our times a vigorous life. The material surroundings are also extremely diverse. What a great difference between the plains of the Russian black soil and the arid, rocky Dalmatian shores of the Adriatic! between Bohemia, closed round by mountains, and the open frontiers of old Poland! What a variety of cli- mates, of flora and fauna! As if nature herself intentionally had placed the same kind of men, with the same primitive ideas for experiment, under the most various influences of ideas, neighbourhood, and geologi- cal conditions. We must add to all this, that the Slavonic states, with the exception only of Russia, have brought their evolution to an end. They evoke the interest attaching to things past; we can perceive in one mo- ment the process of social life from the beginning to the end. This re- mark is not invalidated by a reference to the Slavonic resurrection since the eighteenth century, because the new political formations have noth- ing in common with the old ones; we can say even more, the old traditions produce, it would seem, a pernicious influence, because they render difficult the adjustment of rescued nations to quite new surroundings. The first step towards acquaintance with Slavonic organization is the knowledge of the sources of the Slavonic law. That is the reason I chose this subject for my lectures, when I was honoured by the invitation to read at Oxford, in one of the oldest and most celebrated universities of the world, and before a public belonging to a nation that has done so much for the progress of humanity. The sources of law appear, strictly speaking, in two forms: customary law and statute law. Customary law embraces all rules for human actions which reign not by the force of an organized political power, but only by the convictions of the social units of their necessity. Statute law contains all enactments of diverse political powers that can uphold their will by force. Besides these two sources I find it necessary to draw your attention to one very important factor in the formation of obligatory rules, viz., the juridical and political literature. This literature is not only a depository of the juridical opinions of the people, but also has an 8/Feodor Feodorvich Sigel enormous influence on customary law and statute law. The history of the sources of Slavonic law naturally subdivides it- self into several groups, of which we must now give a general descrip- tion. Heathen traditions rule the Slavonic social life until the tenth century. According to the testimony of Byzantine, Latin, and Arabic writ- ers, the Slavonic world was separated into tribes, which resembled each other in appearance, manners, and customs.1 A tribe formed sometimes one independent whole with a prince at its head, sometimes was dis- united under several more or less independent princes. The prince had a very small political power; he was limited by a senate and a national assembly, so that he rather executed the will of others than his own. The existence of laws in this primitive Slavonic society is confirmed by Procopius, a writer of the sixth century, by the annalist of Fulda under the year 849, ‘and by the so-called Nestor. We know from Constantine Porphyrogenitus that the Slavonic word zakon was sometimes used in the Greek language with the Slavonic meaning of law, legal custom.2 We are told these legal customs were almost everywhere the same. This is confirmed by the use of the same Slavonic words for the expression of certain numerous juridical notions, by the uniformity of religious and moral ideas,

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