Isabel de Madariaga, The Legislative Commission of 1767
In his review of the work of the Soviet author, O. A. Omel'chenko, [Newsletter, no. 18 (1990), 57ff.], Dr R. Bartlett comments on the continuing existence of the Legislative Commission after 1769 and remarks that "the fact that the Commission remained in being, transmuting without a break into the Commissions of Paul and Alexander, has been wholly lost sight of in most recent Soviet and Western writing. It is indicated in end-notes, but not made explicit in Isabel de Madariaga's Russia in the Age of Catherine the Great, and has finally been pointed out (simultaneously with Omel'chenko) in Robert Jones's recent article in Canadian American Slavic Studies, XXIII, No. l".(1)
It is indeed the case that the Legislative Commission almost vanished from sight after the winding up of the Sub-Commissions which survived until the mid 1770s, and that its history remains obscure.
A report prepared for Alexander I early in the nineteenth century and published in 1804 casts a little light. It is entitled Доклад министерства юстиции о преобразовании комиссии о составлении законов. The signatories are Князь Lopukhin, presumably V. S., Procurator General in 1799, and Minister of Justice from 1803 to 1810; N. N. Novosil'tsev, assistant to the Minister of Justice, 1802-8, and G. A. von Rozenkampf, secretary. Rozenkampf was probably a member of the staff of the Commission and was appointed Director of the Higher Law School (высшее училище правоведения) in 1805.
Evidently to put Alexander I in the picture the report provides a brief account of all the Legislative Commissions of the eighteenth century, starting with peter i who "ordered his boyars to sit on the code" (by an ukaz of 23 february 1700), and to draft a new one, drawing on previous codes and laws. The report continues with an outline of all the attempts at codification familiar to scholars from the work of Latkin, culminating in the Great Commission of 1767. The Commission of 1767 was however too slow, there was no 'единодушие' in such a disparate assembly, and its ideas did not conform with Catherine's ideas. The empress was already dissatisfied with its activity when war broke out, states the доклад, and war led to the dispersal of the Great Assembly, when over 100 deputies were called up for military service.
Non-military deputies were kept on to man the Sub-Commissions. At the end of 1769, the remaining chinovniki serving in the Great Assembly were released from service. This account confirms the present-day view that it was the war and not political tensions within the Assembly which led the Empress to prorogue it.
The report further states that Catherine continued working on a number of separate codes. "On top of that, in order to draft a project on the 'speeding up of chancery procedure' [сокращения канцелярского порядка] a special Commission was set up in 1784 under the chairmanship of Privy Councillor Zavadovskii, charged with re-modelling Peter I's Генеральный регламент. At this time all the heads (nachal'niki) of the guberniia were ordered to submit their opinions on this subject; extracts from these opinions were made and submitted to Catherine II; but this matter did not at the time reach a conclusion." After Catherine's death, an указ of 16 December 1796 re-established a, or the, Legislative Commission. It was given the name of Commission for the drafting of laws (для составления законов) to underline the fact that it was not intended to draft new codes, but rather to prepare a свод of existing laws. It was placed under the Procurator General who was ordered to collect all the laws issued until now from all state archives and to prepare extracts of the laws of the Russian empire in three volumes: 1) criminal, 2) civil and 3) fiscal (казенные), showing clearly the law which the judges must apply. In order to fulfil this task the Procurator General was to recruit staff skilled in knowledge of the law, and when chapters or parts of the three books were complete they were to be sent to the three senators, named in the указ of 31 May 1797 for approval.(2) Aagain, the Commission seems to have made little progress, and on 5 June 1801 a Commission chaired by Zavadovskii, under the immediate supervision of the Emperor Alexander, was given a special instruction to seek out all relevant documents, plans etc., in the Commission and elsewhere; to choose among these or to draft an "особое начертание российского законоположения", find the best way of fulfilling such a plan and propose the composition of a Commission.
On 25 August 1801, Alexander ordered the Commission to start its work with a codification of judicial procedure (о форме суда), "to improve, supplement, and adapt the laws and enactments of the present time, in order to speed up and achieve better justice". The report of 1804 is a response to these two указы of Alexander's. After this outline of past history, it makes a series of recommendations on the organization of the work of codification, stressing the need to work in the spirit of Catherine's Наказ. These recommendations were accepted by Alexander in 1804, and the report now proceeds to print the records of a number of the sessions of the new Commission in 1804, together with the drafts discussed. These latter reports provide useful information on Russian juridical thought in the early nineteenth century.(3)
The question arises how much continuity was there between all these Commissions? In his article Professor Jones states that though the general assembly of the Great Commission was prorogued in 1769, and the sub-commissions mainly ceased work by the end of 1774, the advisory, secretarial and clerical staff continued to work and to be paid until 1804. (Were any of them then taken on by Alexander I's Commission?) According to Omel'chenko a number of "secretary-drafters" continued to be employed in the sub-commissions to carry out a selection of the legislation, and make extracts from legal sources. He adds that fifty-six чиновники of middle rank were still employed in the sub-commissions in 1796, as well as some fifty clerical staff.(4) (It would be interesting to know whether the French lawyer, Charles de Villiers, who was recruited by the Procurator General, Prince A.A. Viazemskii in 1768, was still working in the Commission - and it would also be interesting to know whether Charles de Villiers was the father of Sebastien de Villiers who appears as the orator of the lodge 'Perfect Union' in A.G. Cross's article on British masons in Russia.(5)
Omel'chenko suggests that Catherine was by no means so opposed to the principle of the Commission, and had even thought of turning it into a permanent Chamber attached to the Senate, in which complex issues would receive a preliminary examination, while the sub-commissions would be maintained for the investigation of minor matters. It was one of the Sub-commissions, under A.A. Viazemskii, which drafted in the 1770s the 'Opisanie vnutrennego Rossiiskogo imperil pravleniia' which was analysed by Lappo-Danilevskii, but alas, has never been published. According to Omel'chenko,(6) it was "a considerable step forward in the development of principles of codification... and reflected a high level of legal thought". It is clear that Catherine drew extensively on the materials collected in the secretariat of the Commission, including the 'описание' for her own legislation, much of which was never promulgated. But the drafting was done by her with her advisers, not by the Commission.
One element of continuity between the eighteenth and nineteenth century commissions was the presence of Zavadovskii in two of them. Did the Commission of 1784 under him draw on the Commission's Secretariat? It would seem likely. And there is one other piece of legislation which suggests archival and secretarial continuity between Catherine's Commission and those of Alexander I. The draft of the law setting out the rights of the nobility in 1768 allowed them in article 13 to set up "free villages".(7) At the time no one in the Great Assembly understood quite what was meant by "free villages".
But in 1804, at the request of Count N.P. Rumiantsev, Alexander I decreed that nobles who so wished could emancipate whole villages of peasants by agreement with them as to the terms.(8) In his memoirs, A. A. Bibikov, the son of the Marshal of the Legislative Commission A. I. Bibikov, notes that in the instruction of the deputies of Kostroma, which he says his father wrote, a proposal was made to allow the emancipation of serfs, in almost the same terms as the "present law on free cultivators".(9) A. I. Bibikov may thus have been at the root of the proposal in the draft of the law of the rights of the nobility, and Alexander's decree may have drawn on records preserved in the Commission.
- Isabel de Madariaga (SSEES, University of London)
References
(1) 'The Charter to the Nobility: A Legislative Landmark?', Canadian-American Slavic Studies, XXIII (1989), 5 and Note 16.(2) Полное собрание законов, XXIV (1836), No. 17978, 31 May 1797. Senators Kolokol'tsev, Leont'ev and von Henning, together with officials (chinovniki) of the Commission were to study the drafts before they were put before the full Senate.
(3) The report is printed in the Труды комиссии составления законов. chast' I (St Petersburg, 1804), printed in the typography of Schnorr, of which no further issues were published. It will be found in the British Library, State Paper Room, Russia Laws, shelfmark SN 97.
(4) О. А. Омельченко, Кодификация права в России в период абсолютной монархии, вторая половина XVIII века (Moscow, 1989), pp. 94-5. We must all be very grateful to Dr Bartlett for having introduced Omel'chenko's work to Western scholars. See also P. Dukes, 'Why Peter? Why not Catherine?', Newsletter, No. 18 (1990), p. 47.
(5) A. G. Cross, 'British Freemasons in Russia in the Reign of Catherine the Great', Oxford Slavonic Papers, n.s. IV (1971), 43-72.
(6) А. С. Лаппо-Данильевский, 'СОбрание и свод законов империи российской составленные в царствование Екатерины II', Журнал Министерства народного просвещения, CCCDC, CCCX, CCCXII, CCCXIV (1887). Omel'chenko states that this is the last known activity of the Legislative Commission, op.cit.. p. 96.
(7) Сборник Императорского Русского исторического общества. XXXII (StPb, 1881), 575.
(8) Полное собрание законов, XXVII, No. 20620, 20 February 1803.
(9) А. А. Бибиков, Записки о жизни и службе Александра Дича Бибикова (Moscow. 1817), p. 74, note.