On the witness oath in legal proceedings of the 17th century

(One of the forgotten reforms of His Holiness Patriarch Nikon) In the literature on this issue there are only the following two dissenting opinions of fairly authoritative scientists: K. Kavelin says: “The interrogation of witnesses must be preceded by their taking the oath (Code X, 158, 173). When this was introduced for the first time, it is impossible to say in the affirmative. In the Code of Law and contemporary legal documents there is no mention of the oath of witnesses. In the Code, swearing them in is accepted as a general rule. Of course, persons of clergy rank and, it seems, the highest dignitaries of the state did not fit under it: boyars, okolnichy, Duma clerks and Duma people; but at least there is no mention anywhere of their taking the oath before the certificate” 1 . F. Dimitriev expresses himself on the same issue as follows: “The detectives interrogated the white clergy by priesthood, monks by monastic promise, other people by the sovereign’s kiss of the cross, and Tatars and other foreigners by sherti. Secular Christians were interrogated before the image, but there seems to have been no formal oath. It is curious that the rule about interrogation is especially repeated in the Code regarding boyars, peasants and women” 2. Which of these opinions is correct? It is remarkable that both writers are based, apparently, on the same foundations, namely Ulozh. X, art. 158 and 173. Art. 158: “Those people (servicemen of various ranks) are interrogated by kissing the cross.” Art. 173: “Where will it be possible during a search or interrogation to ask boyars, or peasants, or the female gender, and interrogate them in all matters according to the sovereign’s kiss on the cross before the image of God so that they tell the truth, how they should stand at the Last Judgment of Christ.” It is noteworthy that Dimitriev did not find any data regarding the special witness oath in the cited articles of the Code; everything that the Code brought to the hitherto existing judicial practice on this subject is limited to the order to interrogate witnesses of the lower class, before the “image of God.” And this observation appears to be entirely correct. But what gave Kavelin the reason to assert that “the interrogation of witnesses must be preceded by their swearing in?” Apparently, one thing is that the Code prescribes the interrogation of witnesses - worldly people, "according to the sovereign's kiss on the cross." But the “sovereign's kiss of the cross” is not a witness, but an oath of loyalty, to which in the 17th century, subjects and serving sovereign officials were certainly taken in the cathedral church, in the presence of specially appointed clerks. The text of this oath was called the “cross-kissing record.” From the 17th century Two forms of such a record have been preserved: one from 1626. published under Mikhail Feodorovich and Patriarch Filaret; the other under Alexei Mikhailovich and Patriarch Nikon in 1653 3. In 1760–1658, January 20, the Great Sovereign ordered: the stewards and solicitors, and residents, whom we will again grant to what rank, should be brought to faith in the cathedral church on the same day, and the Sovereign ordered the discharge clerks to stand at the oath” 4 What does it mean to interrogate witnesses to the sovereign's kissing of the cross? This does not mean at all that before interrogation they should have been led to kiss the cross or an oath of loyalty, but only that the judge or detective should have reminded the witness that he must show the truth as a loyal subject of the sovereign, just like a priest - by priesthood, or like a monk - but by monastic promise. The custom of judges to address witnesses with such an admonition was practiced long before the Code in the 16th century, even in the 15th centuries. Here are some examples of such exhortations: “And the judges asked Isachko da Fofanik (peasant witnesses), tell me in God’s truth: whose wastelands are these? Who mows those wastelands?“ (A. Yu. No. 3. 1485–1505). “And the scribe (the judge of the Grand Duke) asked Demidka Kuzmin and his comrades: “Tell God’s truth according to the Great Sovereign’s kiss on the cross?” (A. Yu. No. 9. 1503). “Tell us to kiss the Grand Duke on the cross” (No. 19. 1532). The Code only legitimized this custom, adding only a minor ritual requirement that witnesses - ordinary people (domestic servants and landowner peasants) give their testimony before the image of God (the image of the Savior, “the image of the Savior”). This insignificant ritual requirement is, however, very important in resolving the question that concerns us - was there a sworn oath of witnesses or not? The fact is that the oath or kiss of the cross was given in front of the cross, and the person taking the oath certainly kissed the cross 5 . Meanwhile, the Code does not say a word about the cross, but orders that witnesses be interrogated either without any ritual or only before the image of God. Already these considerations, strictly speaking, are enough to establish the position that in the first half of the 17th century there was no special witness oath in our legal proceedings and the Code of Alexei Mikhailovich did not establish it - as Kavelin thought. But our main interest is not the first half of the 17th century, but the second, in which the question of the witness oath specifically for lay people - Christians of all ranks - was resolved unexpectedly and in an original way and, of course, all the more interesting. As evidenced by the mass of published and even more unpublished records of judicial investigations and general searches during the 2nd half of the 17th century. witnesses - worldly people were interrogated without oath “according to the holy, immaculate, gospel commandment of Christ, no matter what, no, no” 6. In the order to conduct a general search, it was usually prescribed: “And when this letter of ours comes to you, you would, against this letter of ours, against the petition of the Cossack Potapka Shatsky about the escape of his wife Dunka... the city of Cherni, by people of all ranks, you would find according to the Lord’s Gospel commandment, who knows the hedgehog, her, and who doesn’t know the hedgehog, neither; Did Evo Potapkov’s wife Dunka run away from him last year? and so on. 7. And the formal record of the testimonies of the search people usually read like this: “The Chernsky archers, the foreman and ordinary archers... said according to the holy, immaculate commandment of the Lord, to her, to her, then we know: in the past years, about six years ago, the Chernsky Cossack Potapka Shatsky, his wife Dunka, ran from him through the forests and through the threshing floors, and on the run fornicated Whether he stole or not, we don’t know, but Potapka gave birth to a child while running with him, and whether she lived with him or without the law, prodigal, running around, we don’t know about that... That’s our fairy tale.”8 Sometimes a more concise formula was allowed: “he is a man of command... and the headman, and the kisser told her, to her, in truth” 9 . But in more important cases, in accordance with the Code, the orders prescribed that interrogations should be carried out according to the holy, immaculate Gospel commandment of the Lord, either to her, to her, or before the image of the Savior. When was such a ritual of interrogating witnesses - worldly people - established? To answer this question we have the following data. 1) We find the oldest example of the use of such rituals in the court case of the Suzhdal Archbishop Stefan, following the notification of the Suzhdal cathedral priest Nikita (Pustosvyat). In 1659, according to the sovereign decree, Bishop Alexander of Vyatka and Great Perm and Patriarchal clerk Parfeniy Ivanov were to “search in a large general search in Suzhdal, in the city and in the suburbs, and in the district, archimandrites, abbots, and priests, and deacons by priesthood, and elders by monastic promise, and nobles by children boyars, and merchants, and Posat people, and archers, and Cossacks, and gunners, and all ranks of tenants, and nobles in the truth according to the holy gospel commandment of Christ, who knows the hedgehog, her, and who does not know the hedgehog, neither before the holy gospel, looking at the image of God, and how they could stand at the terrible and righteous judgment of Christ on the day of judgment, about the blasphemous words of Suzhdal Archbishop Stefan” 10. Here we find the earliest example of the use of this form of interrogation - and, moreover, in the most solemn atmosphere (before the Holy Gospel, looking at the image of God). But there is reason to assume that this new form of interrogation of witnesses was established somewhat earlier. 2) In 1663–64. The “rite of the allegiance oath” was significantly changed and the formula was introduced into the “faithful sheet” (sworn sheet): “according to the holy, immaculate Gospel commandment of the Lord” and the very “proceeding” of the oath was ordered to be performed not before the “Crucifix”, but before the Gospel. Is it not at this time that the establishment of a new form and interrogation of witnesses dates back to this time? The probability is high, although we do not have positive data to confirm this. But, it seems, it is not particularly important to know whether the form of oath in question was introduced in this particular year or a little later; it is more important to answer the questions without a doubt: what was the immediate reason for the establishment of a new form of the oath of loyalty, on what basis was this particular form given, and by whom was such a reform carried out? Before answering these questions, let us present in parallel the texts of the jury sheets of 1626 and the “roll of assurance and promise of 1654”: Leaving aside the difference in the content of both forms of oaths in political terms, let us note the religious-ritual difference: the previous oath was pronounced before the life-giving cross and sealed by kissing it, the new oath - before St. the gospel and contained a promise to serve in truth according to the commandment of the Savior: let your word be to her, to her, and neither, nor. What was the reason for such a reform of the oath of allegiance? In the years 1653–54 a great event occurred - the annexation of Little Russia to Great Russia under the citizenship of the Moscow Tsar. This matter was the subject of a long and thorough discussion by the Moscow government, and only “at the beginning of 1653 in Moscow they decided to accept Little Russia as citizenship and fight with Poland. But even here they delayed the matter for almost another year, only in the summer they announced their decision to Khmelnitsky, and in the fall they assembled a Zemsky Sobor to discuss the matter according to order, then they waited until the hetman suffered a new setback at Zhvanets, again betrayed by his ally the khan, and only in January 1654 they took the oath from the Cossacks” 13. This matter, according to the views of the Moscow government, was of interest not only to the state, but also to church and religious interests. The Orthodox Russian Tsar acted in this matter as the patron of Orthodoxy, “having great care for all Orthodox Christians, how to deliver the Orthodox faith from heretics.” Patriarch Nikon, who at that time stood at the pinnacle of his greatness and in the midst of his activities to purify church ranks and improve them in the strict spirit of Greek Orthodoxy, cared about this all the more. The great cause of annexing Little Russia prompted him to revise the “rite of the allegiance oath.” But the oath of loyalty is a purely state matter; why exactly did the patriarch take up the task of correcting it? To this it must be said that such a view is absolutely correct for the present time. But in the middle of the 17th century, things were different. The oath of allegiance at that time did not consist only of a sworn document, as at present, but constituted a whole church rite, in which the sworn certificate was included only as a small component. Here is the structure of this order: “It is appropriate to accept the rank and assure the offended person to serve the sovereign king with all righteousness. The bishop will place the patrakhil and the holy omophorion on him. If he is an archimandrite or abbot, he will put on sacred clothes. For the sexton I prepared a cash and a curtain in the church right at the royal doors. The bishop will also order the deacon to carry the Holy Gospel from the throne and place it on the prepared lectern and place a candlestick with a candle in front of it. If you want to be sure, one or two, or many, will enter with fear and with humility and a contrite heart. The bishop will also command that everyone bow three times before the Holy Gospel, saying: God cleanse me, a sinner... Then, blessed be our God, the King of heaven, the Trisagion, Our Father, Come let us worship, God have mercy on me. (Ps. 50) Lord inspire my verbs (Ps. 5). To You, O Lord, I will cry (Ps. 27). Troparion: Have mercy on us, Lord; I believe in the One. For this reason, he honors the scroll of his assurance and promise (sworn letter). Therefore, the bishop, or archimandrite, or abbot, or priest says to those standing before the Holy Gospel: Behold, Christ invisibly stands here, observe what you promised before the Holy Gospel (a rather long exhortation). The same priest prays out loud in a high voice: Hear me, O Lord, a sinner, praying to You with all my heart and reward each according to his deeds. Then, each person from the boyar or from another rank came and stood before the Holy Gospel and bowed; likewise to a king, if there is one. For now, too, he says: “I promise before the Holy Gospel: I promise before the Lord that I will keep true obedience and faith” 14. This is the order of the oath of allegiance. As can be seen from here, this is a liturgical order, so it is clear that both its change and correction were primarily subject to the competence of the church or, at that time, patriarchal authority. And it should be noted that not only the scroll of assurance in this rite, but also other parts, especially the symbol of faith, underwent changes on the part of the patriarch. So, the end of the 7th clause was printed like this: “and of His kingdom there will be no end.” By the hand of the proofreader, the word carry is crossed out and on top of it is written: there will be no. The beginning of the 8th clause is printed: “and in the Holy Spirit of the true Life-Giving Lord, who proceeds from the Father.” The words “true” and “like” are crossed out. The correction is completely in the spirit of Patriarch Nikon. That the annexation of Little Russia was accomplished with the use of this newly amended oath in Moscow, and that the Moscow government, even some time after that, attached great importance to this circumstance, is evidenced by the following documentary data: 1) In the article list of ambassadors V. Buturlin we read: (Jan 5). From the exit courtyard (in Pereslavl), the hetman (Bogdan Khmelnitsky) went to the cathedral church of the Assumption of the Most Pure Mother of God with the boyar Vasily Vasilyevich and his comrades in a carriage. And the Kazan Transfiguration Archimandrite Prokhor and the Nativity archpriest Andreyan, and the priests and deacons, who, according to the Sovereign's decree, were sent with them, came for the Icon of the Savior to the cathedral church ahead of them. And how the boyar Vasily Vasilyevich and hetman Bogdan Khmelnitsky came to the cathedral church, and the Pereyaslavl archpriest Gregory and all the churches the priests and deacons met them at the porch with crosses and censers in vestments and sang: Blessed be the name of the Lord from now on and forever. And when they entered the church, Archimandrite Prokhor and Archpriest Andreyan and Pereyaslavl Archpriest Gregory with the entire consecrated cathedral, putting on vestments, wanted to begin a promise of faith according to the official book, which was sent to them from the sovereign. And Hetman Bogdan Khmelnitsky told them that they, boyar Vasily Vasilyevich and his comrades, should make faith for the Tsar and Grand Duke Alexei Mikhailovich... And Hetman Bogdan Khmelnytsky and the clerk Ivan Vygovskoy, and the oboznichi, and the judges, and the military captains and colonels swore faith (oath) to the sovereign on the fact that he would be with the lands and cities under the sovereign’s high hand forever and ever, and was led to faith according to the official book by Archimandrite Prokhor” 15 . It is noteworthy that the “official book”, according to which the Moscow clergy took the oath, was sent to him by the Emperor, and was not taken with him upon departure. Why? Yes, most likely because its publication was not yet ready at that moment. 3) And that the “official book” contained a new rite of passage before the Holy Gospel and according to the commandment of the Savior to her, her and hedgehog neither, nor, this is officially certified 4 years later in the following document: “7167–1658 September 23. Certificate of the Poltava regiment to the colonel, foremen, army and all Little Russian residents: about the lack of faith in the outrageous disclosures of those who betrayed Russia Zaporozhye Hetman Ivan Vyhovsky and about preserving the still inviolable loyalty to the royal throne with permission to elect a new hetman for him.” Here we read: “And Hetman Bogdan Khmelnytsky, and you, colonels, and all sorts of leading people, and Cossacks, and townspeople, and all the rabble of the Zaporozhye army, who were at the council in Pereyaslavl, seeing our piety, the Tsar's Majesty, care and for you, Orthodox Christians, great care, for us, the Great Sovereign, our Tsar's Majesty, in the cathedral apostolic church before the holy gospel, according to the holy, immaculate gospel commandment of Christ, the faith was established under our neighbor, the boyar and governor of Tver, under Vasily Vasilyevich Buturlin and his comrades” 16. The fact of Bohdan Khmelnytsky’s swearing-in to the newly amended rank stands firmly. Now the question is: on what basis and by whom was the form of the oath of allegiance changed? “Kissing the cross” was the original Russian form of any oath. On what basis was it replaced by a promise before St. the gospel and who could dare to replace the old with the new? What was needed, of course, were very sufficient grounds for such a reform and a very powerful authority for the reformer. If we take into account that such a reform of the oath falls in 1653–54, the very heyday of Patriarch Nikon’s church reform activities, then it is not difficult for us to answer both questions posed. Patriarch Nikon carried out such a reform, of course, in agreement with Tsar Alexei Mikhailovich, on the basis of strictly canonical sources of the Greek Church. What are these canonical sources? 1) In 1653, the publication of the Helmsman’s Book, approved by Patriarch Nikon and his council, was published, which at that time enjoyed indisputable authority. But there is no mention of the kiss of the cross. The oath is taken before the Divine Gospel. “And with the divine words that were set before him, speaking to the Holy Gospel, he would create torture on things” (Chapter XLII, Art. 13). “They swear before the Holy Gospel for the misfortune of their souls, because they chose not for the sake of giving, nor for the promise of a gift... these” (i.e., candidates for the episcopate. Art. 28). Ch. XLIX facet 15: “Honest places, not at all able to fulfill people’s tributes, sell goods and villages, that is, as if to a tortured land of sale from the metropolitan, by the existing metropolitan, and by the bishop and the clerk, who is presented with the Divine Gospel, and unless another property appears... let this sale be established before the judge.” The oath to the Divine Gospel was legalized in Byzantium by the Emperor Justinian, but traces of it are found in the acts of the Ecumenical Councils 17 2) But Patriarch Nikon, like every clergyman of the 17th century well-read in the canonical sources of Byzantium, could find here a deeper justification for the oath before the Gospel and according to the commandment of the Savior: “be your word to her, to her, and: neither, nor.” In the Syntagma of M. Vlastar he could find the following discussions on this issue: “An oath is generally forbidden, especially if it is given for evil, someone should be condemned. Therefore, the one who has sworn must correct his thoughts, and not strive to carry out his lawlessness. For if someone swears to gouge out the eyes of someone, or to kill, or to break any commandment, consider what is better: to neglect the oath, or to carry out evil and break the commandment? I swore, says David, and decided not to commit sin, but to preserve the destinies of Your righteousness (Ps. 49:46). Just as a commandment should be established as immutable, so sin should be overthrown in every possible way” (Right. 29 of St. Vas. Vel.). But one who unnecessarily violates a legal oath is punished more severely than one who violates it by violence. If the oath is not legal and was given for the purpose of doing harm to someone, or depriving someone of some benefit; or if someone swears by an object that should not be used in an oath; then violation of the oath is not subject to punishment, but is cured by moderate penance from the bishop. But since those who break oaths are punished, and those who value their oaths are free and therefore allowed to swear, then perhaps someone will say: what are we going to do with the Gospel commandment, which commands us not to swear in any way (Matthew 5:34). But I think that the Gospel, taking care to eradicate the first vegetation of sin in general, also forbade oaths as a door to perjury, especially for those who have reached perfection, for whom they (the prohibition) are the same as the commandment to sell one’s property and give to the poor; for if everyone is obliged to sell, who will buy? This is also the other commandment of the Gospel, that whoever is struck on one cheek should not spare the other, and that whoever wants to take the robe should be given the sack, and the other Gospel commandments, which are not obligatory for those to whom they are commanded, but are offered at will, and which bring honor and reward to those who keep them, and do not cause any harm to those who do not keep them. The legal oath in it (the Gospel) is in second place and is not rejected” (Matthew 5:37). Therefore, the kings, clothed in the purple of piety, allowed the use of a legal oath, but completely prohibited the illegal and unreasonable one.” 18 M. Vlastar betrays this method of reconciling the Gospel commandment prohibiting an oath with a legal oath with his opinion: “I think,” he says. But in reality, this opinion is a paraphrase of the following passage from Balsamon’s interpretation of 29 rights. St. Basil the Great: “Since from the fact that the rules determine the punishment of oath-breakers, it is revealed that those who do not violate them are not punished, and at the same time it is clear that the fulfillment of legal oaths is permitted, then do not say that this is determined contrary to the Gospel commandment, which says that we should not swear by either heaven or earth, because heaven is the throne of God and the earth is the footstool of His feet, and that our the oath should be: to her, to her and neither, nor (Matthew 5:34–36); for the first is characteristic only of the most perfect, and the second is not rejected as legal. This is also another gospel commandment: sell everything, and give it to the poor... and come after Me (Luke 18:22) for if everyone were obliged to do this, then who would buy the property being sold? On the other hand, if all oaths were prohibited, then the prophet would not have said: I have sworn and decreed to keep Your commandments (Ps. 119:106), and the Orthodox kings, the compilers of the laws, would not have issued laws prescribing the performance of an oath. So, not every oath, legal or illegal, is prohibited, but illegal and unreasonable 19. From these reasonings of the Byzantine canonists, Patriarch Nikon could derive the firm conviction that the most legitimate form of oath from the Gospel point of view is a promise - according to the commandment of the Lord, to do something and not to do something, to affirm something, or to deny something: to her, to her; and: hedgehog neither, nor. This conviction is expressed in the ritual rite of the loyal (and witness) oath: it must be given before the Divine Gospel and in the formula of the promise of the oath taker: “I, the name of the rivers, I promise (but by no means swear) before this holy Gospel to my sovereign... to serve her, to her and to do the truth.” These are probable assumptions about the time of origin, occasion, reasons and author of the form of oath in question. As for the immediate witness oath of this form, it was in effect, according to documentary data, from 1659 throughout the 17th century and, thanks to its frequent use, especially in general searches, became very popular, as evidenced by the apparently preserved form of the oath among the common people: “here to her, to her”; “by God”... In the 18th century, with the judicial reform of Peter, a foreign form of oath was transferred to our courts: “I promise and swear by Almighty God”; and the form of Nikon’s oath, so consistent with the canons of the Orthodox Church, was thoroughly forgotten. And since then “a wide door has opened - in the language of the Byzantine canonist - to perjury.” K. Kavelin: The main principles of the Russian judicial system and civil proceedings in the period from the Code to the establishment of the provinces. M. 1844. Part 1., p. 100. F. Dimitriev: History of the courts of civil appeal proceedings from the Code of Laws to the institution on the provinces. M. 1859, p. 417. See also: Met. Evgeniy: about different types of oaths among the Slavic Russians. Proceedings of Moscow. General Is. and others 1826, vol. III. The text can be read in the Ancient Russian Library Ed. 2, part VIII, pp. 60–83 and part XVI, page 1. Full Sob. Zach. T. 1. p. 345. In addition to the oath of allegiance, the judicial oath was very widely used in our ancient legal proceedings, as the last resort of resolving a lawsuit or dispute. When the litigants could not provide sufficient evidence to resolve the dispute in one direction or another, then either at the proposal of the judge, or by mutual agreement, the plaintiff or the defendant “took on their soul” the answer for their harassment and kissed the cross. An interesting detail about the ritual of this oath is given by the following additional article to the Code of Law of May 1733 at 20. Tsar Mikhail Fedorovich and Patriarch Filaret indicated: at the kiss of the cross, at St. Nicholas the Old, kiss the cross, which the cross will be written with the Crucifixion and her act; and do not wear copper crosses, and do not kiss copper crosses, and which all sorts of Russian people in all orders in various cases will teach to seek and answer, and in those cases the plaintiff and the defendant will bring the cross to kiss, those of all kinds of people their people will kiss the cross three times, and from now on, do not kiss that person on the fourth cross in any lawsuit.” (Historical Acts, Vol. III, No. 92). There was no special text for such an oath. The text constituted the testimony of the plaintiff or defendant, which he defended and the truth of which he affirmed with a kiss on the cross. Here is a sample of such an oath: “In this recording, the boyars kissed the cross: Prince Danilo Vasilyevich, the butler Vasily Andreevich, and the treasurer Yuri Dimitrievich.” And the boyars spoke at the kissing (Next is their testimony) (Acts of Arisograph. Vol. I, No. 124. 7025–1517). This is evidenced by: Legal Acts, Historical Acts, Archaeographical Expedition Acts. A. Fedotov Chekhovsky: Acts relating to the civil massacre of ancient Russia. T. I and II Kyiv 1860. Samokvasov: Archival material. Newly discovered documents of local blatant institutions of the Moscow kingdom M. 1905. Part II. T. II. Moreover, the author had at hand a lot of handwritten material from the Synodal Library and the Archives of the M.D. Consistory. (Court cases of the Krutitsky State Prikaz). The case of the divorce of the Cossack Potap Shatsky from his wife. 1659 Archives of M.D. Consistory. Moscow. Synodal Library scroll no. 1078. On the field: if there are many: we all promise. We present this text from a copy found in the old printed books of Undolsky: “Oath of three ranks” No. 7114. (Rumyants. Muz. No. 314). This copy represents several printed proof sheets with handwritten corrections. Klyuchevsky: Course of Russian history. III, 149–150. Read the quote above. ex. Undolsky. Acts relating to the History of the South. and West. Russia T. X. p. 224 Stat. List of ambassadors 1653 Oct. 9–1654 Feb. 5. Complete collection Zach. T. 1. 7167–1658 Sept. 22. For example, IVth Universe. cathedral See Ave. Basil the Great, page 32. Balsamon in the interpretation of 29 rights. You. Vel. p. 264. Rules of the Holy Father with interpretations. M. 1884.