Should there be a nation ashamed

of being ignorant of her own law,

especially our folk…

Leŭ Sapieha

Supremacy of law and humanism lie amongst the most important law principles in modern legal theory. These are universal legal maxims, i.e. maxims, equally typical of all the branches of law. That is the reason they are reflected in the Constitution of the Republic of Belarus. Thus, Art. 7 says it directly – “The principle of supremacy of law is declared in the Republic of Belarus. The state, its bodies and officials should function within the Constitution and legislative acts adopted in compliance with the Constitution.” Art. 2 is based on the principle of humanism “Any person, his/her rights, freedoms and guarantees of their realization are the supreme value and the aim of the society and the government.”

The principle of humanism of law (in modern general legal theory) implies legal means to guarantee respect to a person, his/her honour and dignity, rights and freedoms. Proper securing of legal guarantees and taking measures to safeguard the declared rights and freedoms is a condition to fulfill this principle.

The Statutes of the Grand Duchy of Lithuania (Litva) are monuments to legal thinking of the 16^th century. So it is no wonder that numerous regulations in the Statutes testify to the influence of humanistic ideas of the Renaissance and the Reformation which brought forth the idea of spiritual freedom. It was the idea of freedom that served as the basis for a new humanistic way of thinking which appeared in the Grand Duchy at the times of the Renaissance. Due to their close connection, the Renaissance and the Reformation introduced fundamental changes to all the spheres of social life. And law was not an exception.

Yet one should not forget that the Statutes are a striking instance of feudal law, hence these statute books in spite of all the possible humanism were mostly directed to higher society – magnates and gentry. According to the Statutes, though, numerous rights were guaranteed not only to pany-rada, officials, gentry and knights, but to petty bourgeoisie, and in general to all the civilians as well.

Some rights were guaranteed not only to upper classes and bourgeoisie (as they were in previous acts (pryvilejs), particularly in Kazimier’s act of 1447 and Alaksandar’s of 1492) but to “inhabitants and to persons by and large of any status and position”¹ (Art. 2) as early as in the universal act of Žyhimont Kazimieravič, 1506. These facts directly testify to dissemination of humanistic ideas, since the Duchy itself actually remained a feudal state and as such could not grant equal rights to the upper and the lower classes of the population. This very act has it: “… the supreme clergy (praelatorum spiritalium), as well as princes (saecularium principum), barons, nobles, knights, grandees, councillors and other subjects and people of the lands of our Grand Duchy of Lithuania in accordance with their wish and will … have accepted, elected and enthroned … us [Žyhimont] as the heir apparent and their ruler…” That would be a great utopia to believe that the Grand Duke was really elected by all the inhabitants of the state, since politically disfranchised (and not only politically) lower classes could not participate in the elections. However the presence of such a regulation in this act is not at all casual. It shows that Žyhimont wanted support from all his people, and what is more, it is the evidence of dissemination of humanistic ideas.

In the Statute of the Grand Duchy of Lithuania of 1529 the principle of humanism was realized in the form of securing the unity of law for every Lithuanian subject (Litvin). The regulation about the unity of law was legally laid down for the first time, and this unity was provided by Art. 9, sect. I: “We also wish and hence decree for good and all that all our subjects, both miserable and wealthy, of any status and position are to be judged equally by this written law.”² The principle of the unity of law, or universality of legality, is a very important legal principle. The working Belarusian Constitution has it in Art. 22 (“Each person is equal before the law…”) and Art. 52 (“Each person while on the territory of the Republic of Belarus should observe its Constitution, its laws and have respect for national traditions”).

The principle of universal subordination to one written law of the state is supported in sect. VI of the Statute, devoted to judicial system: “So we decree, that each official should not have the right to judge our subjects another way but according to this written set of rights which we have granted to every subject of the Grand Duchy…”

The Statute of 1566 secures the principle of the unity of law in Art. 1 and 17, sect. I, also stating that this law should be applied as well to foreigners on the territory of the Duchy. In Art. 39, sect. III, the ruler promises “to do equal justice to everyone with no exceptions…”³, where the jury has no right “to favour any part”, and what is required is “simply doing justice to everyone”, which supports the clause about the unity of law.

In Art. 2, sect. III the Grand Duke promises “to reserve all the Christian rights and freedoms for all the princes and pany-rada, gentry, knights, bourgeoisie and all the civilians…” And again it is stated that all the people of the Duchy elected their rulers, as claimed in the act of Žyhimont, 1506.

The Statute of 1588 has it likewise: “we would guarantee all the princes (saecularium principum) and all the civilians belonging to the Grand Duchy of Lithuania and to all the lands in that state all the Christian rights, which they had enjoyed and in which they had lived, choosing freely their masters and rulers from their ancestors since olden days…”⁴. The regulations of this article are secured by Art. 5, sect. III, where the Grand Duke takes his oath not to strip his subjects of land, property, freedoms and rights. The article contains the following: “And if some thing is acquired or turns to be in breach of the Statute in a way, it should be done away with, according to our law and the fair court, by us and our descendants…”

The principle of the unity of law is secured in the Statute of 1588 in the very first article: “Henceforward we, the ruler, promise and warrant judging and treating all our princes (saecularium principum), pany-rada and all the subjects of ours, of the higher status and of the lower within that very law and articles, written below… As well as strangers to the Grand Duchy of Lithuania, visitants, and persons howsoever arriving here are to be judged in accordance with that very law…”

The impact of humanistic ideas is clearly felt while reading sect. IV of the Statute – “On misdeeds of all kinds”, devoted to criminal law. Thus Art. 3 has it, that in case a defendant’s guilt is in doubt, the court should rather choose to leave him unpunished (“… The court however should consider all the proofs scrupulously and in case of doubt it should discharge the defendant rather than impose a penalty”). Hence the principle of presumption of innocence was legally secured in the Statute of 1588.

In this very section (Art. 11) the age of criminal liability is raised from 14 (according to the Statute of 1566) to 16 years. This regulation applies not only to the gentry, but to commoners, which is even reflected in the title of the article: “On indicting an under age gentleman and commoners for crime”.

Interestingly enough, Art. 36, sect. XIV puts the notion “freedomless servants” (čeladź niavolnaja) under a ban (apparently because “there is nothing more sacred than freedom”, as Sapieha wrote addressing the citizens of the Duchy), introducing a new name for this category of population – “čeladź dvornaja” (although the essence remains the same).

Art. 1, sect. XII of the Statute of 1588 (“On murdering a commoner by a gentleman”) has a regulation which reads: if a gentleman is caught “close in the tracks” and is accused of cold-blooded murder of a commoner – ”paying no respect to civil rights and jeering at God’s creature” (let us recall the idea of life value, which traces its roots back to the Reformation period) – he “is to be sentenced to death provided there is a good proof”, i.e. apart from money penalty for murder (“haloŭščyna” – a fine for murder – which had been provided before) there is a provision about capital sentence.

Art. 3, sect. III of the Statute of 1588 – “On keeping at peace all our subjects, inhabitants of that land with regard to their different understanding and practice of Christian service” – is another evidence of dissemination of humanistic ideas. Such regulations were not to be found in the previous Statutes. As far as the Grand Duchy counted several confessions the Grand Duke engaged himself to keep the state in order, as provided by this article: “We promise to keep the peace between all the confessions… In particular, we promise to keep our people, divided by different confessions and service practice at peace …”

In fact these are the words from the text of Warsaw Confederacy of 1573, which had no analogues in the Europe of those days. At that time Orthodoxy, Catholicism and Protestantism coexisted in the Grand Duchy. It was the gentry who sought after the adoption of the Confederacy, which guaranteed liberty of conscience to all the inhabitants of Reč Paspalitaja (Rzeczpospolita).

The Statute of 1588 comes with the dedication to Žyhimont and “Address to the inhabitants of all positions” drawn up by Leŭ Sapieha. Here the principle of supremacy of law is theoretically grounded and is then realized in regulations of the Statute. The principle of supremacy of law means that no one, be he an official or a state structure, is an exception before the law, on the contrary, they have to act in compliance with legal rules. Thus, if a government sets general rules of conduct, it actually restrains its own power. The idea of supremacy of law, which bears relation to legal state, became a real gain of legal thought in the 16^th century in the Grand Duchy of Lithuania.

Leŭ Sapieha’s starts his dedication to Žyhimont as follows: all the masters (i.e. rulers of the state), who “regardless of the written statute, executed their power at their discretion”⁵, were labeled tyrants by people “deterred by their reign”. It sounds like a warning to Žyhimont; Sapieha then returns to this idea at the end of the dedication. He writes: “… we consider ourselves a happy people… when our masters not only execute their power of their own free will but also serve as an example for us, as guardians of common freedom, to observe the law, and not let our master execute more power than the law allows…” Thus, any master’s obligation to rule not going beyond the law is stressed. According to the articles of the Statute of 1588 the Grand Duke was obliged to act in compliance with its regulations. At least Art. 5, sect. III, dealing with the rights and property of the inhabitants of the Duchy, has it: “We have no right to grant privileges, contradictory to this Statute and its Articles, neither universal nor addressed to particular individuals…”

Referring to Aristotle, Sapieha continues his dedication the following way: “a wild beast governs where a man uses his power at his discretion. But where law and statute prevail, God Himself is in power”. However there are people ”who cherish their wishes , but reason is not a friend of theirs”, who would be glad to “cast off this bit… and do away with all the rights”. In this connection, Leŭ Sapieha gives an example from Roman history. He says: “It happened to some Roman princes and youths, when the senators were pondering how they could cast off the hard yoke of emperor or tyrant’s supremacy and to govern themselves within the written law. The youths did their utmost to hinder that happen, and said that law can be deaf and stubborn and cannot tell a poor man from rich. And the king however has mercy and farsight”. That is why some Roman youths think “it would be better to live under the emperor’s reign than put themselves in such danger, when a man can be happy only keeping to laws”. Sapieha then explains, "this is typical of self-willed and indomitable people, who are scared away by law, opposite to their wanton will…”

At the end of the dedication Leŭ Sapieha writes, that he “dedicates” the Statute to Žyhimont III Vasa “as to the supreme guard of all the rights and freedoms of ours”; once again it stresses the fact that the head of the state should not only keep to the law, but is also to serve as an example to his citizens, be the “guard”, i.e. guarantor of rights and freedoms of his subjects.

The regulations in Leŭ Sapieha’s “Address to the inhabitants of all positions of the Grand Duchy of Lithuania” have a lot in common with the ones listed by the vice-chancellor in the dedication.

The address begins the following way: “Wise men throughout the centuries have been noticing that a respectable man has nothing dearer than freedom”⁶. “Respectable men” would sacrifice their property and their lives only not to “be deprived of their freedom… like slaves”. “But still that would be not enough only to be independent of a foreigner; one must not suffer from domestic enemies either” – Sapieha continues. In order to keep off tyranny and despotism “a curb has been invented to suppress the impudent ones willing to persecute the weaker ones”. (Here we can recall that Francišak Skaryna expressed similar ideas (by the way, some researchers consider him the author of the first Statute). Skaryna explains the essence of law in the following way: “A law or a statute exists for evil people, who would pacify their audacity and would be powerless to hurt anyone; and for good people to live peacefully amongst the evil ones”.)

Sapieha thinks that the essence of law is exactly the following: “lest the rich and strong could do whatever they wish. Like in the words of Cicero – we are enslaved by law only to enjoy our freedoms” (LEGUM SERVI ESSE DEBEMUS, UT LIBERI ESSE POSSIMUS). This regulation is realized in the articles, aimed at restricting the ruler’s power.

Moreover, only thanks to law people can live safely and in peace, without suffering from violence, offence and damage to both their health and property, “because it is and should be the result and essence of law to secure one’s good name, health and property, without suffering damage”. It is Leŭ Sapieha’s opinion that the essence of our freedom is that our life, good name and property are protected, and no governor could abuse our rights. Because of that, law can be called our treasure thanks to which “not only a neighbour and fellow citizen of ours, but also our master can not abuse his power, but only to the limits prescribed by law”.

Sapieha ends his address to the inhabitants of the Duchy with a request to “accept” the Statute “with gratitude”, and to staff “the courts and tribunals” with people not only “kind and well aware of law” but also those who would “keep the freedom we have intact”.

The principles of supremacy and unity of law mentioned above – are new in the 16^th century and undoubtedly, they are very progressive ideas. However, numerous articles of the Statute are in breach of these ideas (for instance Art. 18, sect. III of the Statute of 1588, which deprives commoners, i.e. not gentry, of the right to take up a post in the Duchy). It could not go another way, because the Grand Duchy of Lithuania was a feudal state. Nevertheless, the declaration of humanistic ideas testifies to the rise of a new state-legal theory.