Code of Laws of 1743
Code of Laws of 1743 (Права, по которымъ судится малороссійскій народъ; Prava, po kotorym suditsia malorossiiskii narod). Collection of prevailing Ukrainian laws in the Hetman state, codified under the title Prava, po kotorym suditsia malorossiiskii narod (Laws by Which the Little Russian People Are Judged). The Russian government never ratified the code of laws, and hence it remained only a proposal, although it became the basic source of operative law in Ukraine in the 17th and 18th centuries. The initiative to compile a code of laws came from the Russian government, which, in article 20 of Reshitel'nye punkty (Final Clauses, 1728), the Russian-imposed constitution for Ukraine, suggested that a collection of working laws in Ukraine be translated into the Russian language. This was affirmed by the edict of 1734, which widened the task of codification, suggesting certain corrections to existing norms and the compilation of new legal rules ‘for the benefit of the Little Russian people.’
The compilation of a code of laws was assigned to a committee, created by Hetman Danylo Apostol in 1728 and composed of representatives of the higher clergy (three persons), the Cossack starshyna (eight), and municipal administrators (two). Over a period of 15 years the composition of the committee was changed and augmented. The committee members were highly educated and came from various strata of society. Many were lawyers, some of them with foreign legal degrees. The committee was headed by Vasyl Stefanovych (1728–34), General judge I. Borozna (1734–5), General quartermaster Yakiv Yu. Lyzohub (1735–41), and General flag-bearer Mykola Khanenko (1741–3).
The work of codification was completed in 1743, and in 1744 the project was sent to the Russian senate. The proposed code was not ratified and was returned for amendments and changes. For this purpose a new committee was formed in Hlukhiv. Its task was never completed, partly because of the attitude of the Russian government, but also partly because of the opposition of the conservative part of the Cossack starshyna and notable military fellows, who were afraid that the changes proposed in the code would limit the privileges that had been granted to them by the Lithuanian Statute.
The code of laws prepared by the committee in the period 1728–43 was an original, systematized collection of prevailing legal norms in the Hetman state. The main sources of the code were the Lithuanian Statute (in the Polish edition of 1648) and the compilation of the Magdeburg law and Kulm (Chełmno) law, prepared in the 16th century by M. Jaskier, P. Szczerbic, and B. Groicki. In addition, hetman manifestos, Cossack court practice, and Ukrainian customary law were drawn on. In cases where no relevant law existed in the code, the code prescribed the use of other ‘Christian’ laws (law of analogy), court precedents, and customary law. The creative work of the committee consisted of the selection of quotes from written sources, their partial modification, and the incorporation of amendments to them.
The code was divided into 30 sections, 531 articles, and 1,716 points, which encompassed a wide range of legal norms of state law, administrative law, civil law, commercial law, criminal law, and procedural law. Civil law was the most recent addition; the principles of Roman law, borrowed from German and Polish compilations, were reflected there. The prescriptions of criminal law did not differ significantly from those in the already antiquated Lithuanian Statute and collections of German laws. Hence, the code reflected the severity of ancient law, moderated only by the right of the court to reduce prescribed punishment ‘according to circumstances of the case’ and ‘the severity of the crime.’
The code of laws was first published by Oleksander Kistiakovsky together with his monograph in Kievskie universitetskie izvestiia (1875–8) and then separately in 1879. In the 1930s M. Misiats found one of three original copies and was able to make certain revisions to the published text. The only remaining copy of the code of laws is now kept in Saint Petersburg.
Kistiakovskii, A. Ocherk istoricheskikh svedenii o svode zakonov, deistvovavshikh v Malorossii (Kyiv 1879)
Telichenko, I. ‘Ocherk kodifikatsii malorossiiskogo prava do vvedeniia svoda zakonov,’ KS, 1888, nos 9-10
Vasylenko, M. ‘ “Prava, po kotorym suditsia malorossiiskii narod” iak dzherelo do istoriï derzhavnoho prava Ukraïny XVIII stolittia,’ Iuvileinyi zbirnyk VUAN na poshanu akademika Mykhaila Hrushevs'koho, 1 (Kyiv 1928)
Iakovliv, A. ‘Ukraïns'kyi kodeks 1743 r.,’ ZNTSh, 159 (Munich 1949)
Mesiats, V. Istoriia kodifikatsii prava na Ukraine v pervoi polovine XVIII veka (Moscow 1964)
Tkach, A. Istoriia kodyfikatsiï dorevoliutsiinoho prava Ukraïny (Kyiv 1968)
Lev Okinshevych, Yaroslav Padokh
[This article originally appeared in the Encyclopedia of Ukraine, vol. 1 (1984).]