16

Gender and the legal order in Imperial Russia

michelle lamarche marrese

This chapter will explore a single but significant dimension of women’s experience in Imperial Russia: the transformation of their legal status from the Petrine reforms to the eve of the 1917 Revolution. It has become a truism among scholars that law codes both mirror and produce gender difference and hierarchies.1 In this regard, Russian legal culture proved no exception: normative law drew marked distinctions between women and men, as well as distinguishing between individuals on the basis of social standing. When applied to women, the juridical system in Imperial Russia was also noteworthy for tensions and inconsistencies that intensified with the elaboration of women’s status in written law. This essay will investigate the origins of competing definitions of gender in the realms of property, family and criminal law. In the pre-reform era, the clarification of women’s civil status elevated noblewomen’s standing in the patriarchal family by extending their rights over property, yet simultaneously institutionalised their subordination to their husbands. The legal regime that emerged after the Great Reforms of the 1860s placed a novel emphasis on female vulnerability and the assignment of women to the domestic sphere, at the very moment that unprecedented numbers of peasant women were making their way into the urban marketplace.2 As I will argue in the following pages, if the legal order in eighteenth-century Russia minimised sexual difference in many respects, nineteenth-century

I would like to thank Barbara Alpern Engel, John Bushnell and Dominic Lieven for their thoughtful comments, which have greatly improved this essay.

1 Laurie Bernstein, Sonia’s Daughters: Prostitutes and their Regulation in Imperial Russia

(Berkeley: University of California Press, 1995), p. 3; A. M. Schrader, Languages of the Lash: Corporal Punishment and Identity in Imperial Russia (DeKalb: Northern Illinois University Press, 2002), p. 6; W. G. Wagner, Marriage, Property, and Law in Late Imperial Russia

(Oxford: Clarendon Press, 1994), p. 3.

2B. A. Engel, Between the Fields and the City: Women, Work, and Family in Russia, 1 861 –1 91 4

(New York: Cambridge University Press, 1994), pp. 64–99; R. L. Glickman, Russian Factory Women: Workplace and Society, 1 880–1 91 4 (Berkeley: University of California Press, 1984), pp. 59–104.

326

Gender and the legal order in Imperial Russia

innovations in the law highlighted gender distinctions to an unprecedented degree.

Noblewomen, inheritance, and the control of property

The pre-Petrine law of property was characterised by unequal inheritance for sons and daughters and limitations on women’s use and control of landed estates. For all that Muscovite law codes allowed women a surprising degree of independence in matters judicial,3 elite Russian women shared many legal disabilities with their European counterparts. The reforms of Peter the Great, however, initiated an era of profound cultural and legal change for Russian noblewomen. Most notably, the eighteenth century witnessed the gradual expansion of women’s rights to property. Innovations in female inheritance were less dramatic than advances in women’s control of their fortunes, yet the elevation of women’s inheritance rights and married women’s acquisition of the right to manage and alienate their estates were emblematic of a larger process of legal change: the trend toward individualised rather than familial property rights among the nobility in the eighteenth century, and the efforts of the elite to clarify their standing in the law of property in relation to other family members and the state. Significantly, noblewomen took active part in the extension of their property rights and went on to make ample use of their legal prerogatives.4

From the middle of the nineteenth century, inspired by debates over the ‘woman question’, Russian historians and jurists wrote extensively on the topic of women’s property rights. Russian scholars issued extravagant pronouncements about the legal status of their female compatriots, declaring them the most fortunate women in Europe with regard to control of property but the most disadvantaged in the domain of inheritance.5 Both generalisations were overstated, yet it cannot be denied that from the eighteenth century the evolution of Russian women’s legal status diverged significantly from that of their

3 N. S. Kollmann, ‘Women’s Honor in Early Modern Russia’, in Barbara E. Clements, Barbara Alpern Engel and Christine D. Worobec (eds.), Russia’s Women: Accommodation, Resistance, Transformation (Berkeley: University of California Press, 1991), pp. 60–73.

4On women’s role in the expansion of their property rights, see M. L. Marrese, A Woman’s Kingdom: Noblewomen and the Control of Property in Russia, 1 7 00–1 861 (Ithaca: Cornell University Press, 2002), pp. 28–39, 56–9.

5Anna Evreinova, ‘Ob uravnenii prav zhenshchin pri nasledovanii’, Drug zhenshchin (November 1883), no. 11: 62; I. V. Gessen, ‘Vliianie zakonodatel’stva na polozhenie zhenshchin’, Pravo (1908), no. 51: col. 2837; A. Liubavskii, ‘Ob uravnenii nasledstvennykh prav muzhchin i zhenshchin’, ZMI 20, book 2 (May 1864): 412.

327

Russian society, law and economy

European equivalents. In Western Europe, differential control of property sharply distinguished the sexes, associating men with real estate and women with personality, while – as often as not – subjecting married women’s property to control of their husbands.6

In regard to female inheritance, Russian law displayed only marginal superiority over European legal codes. The post-Petrine law of inheritance continued to favour male heirs, while failing to elucidate the claims of married daughters and the legal status of the dowry vis-a`-vis inheritance. After decades of debate, imperial legislators guaranteed daughters, regardless of marital status, a statutory share of one-fourteenth, or 7 per cent, of their parents’ immoveable property, as well as one-eighth of their personal assets, after which their brothers received equal shares of the estate. When no male offspring survived, daughters divided their parents’ holdings equally. By the nineteenth century, intestate inheritance law was in dire need of revision, as European states began to equalise the inheritance rights of sons and daughters. Nonetheless, the revised rules of succession at the end of the eighteenth century represented a genuine achievement for noblewomen, who had won greater security in the law of inheritance and the right to litigate for a statutory share of family assets.7

It was in the realm of control of property, however, that Russian noblewomen made their most striking advance vis-a`-vis their European counterparts. From 1753 Russian noblewomen enjoyed the right to alienate and manage their property during marriage.8 Noblewomen’s control of their assets, whether acquired as dowry, purchased or inherited, inspired foreign observers to remark on this curious exception to Russian women’s legal servitude. ‘You must know that every Woman has the right over her Fortune totally independent of her Husband and he is as independent of his wife’, Catherine Wilmot marvelled in a letter from Russia to her sister Harriet in 1806. ‘Marriage therefore is no union of interests whatsoever, and the Wife if she has a large Estate and happens to marry a poor man is still consider’d rich . . . This gives a curious sort of hue to the conversations of the Russian Matrons which to a meek English Woman appears prodigious independence in the midst of a Despotic Government!’9 In his account of Russia in the 1840s, August von Haxthausen

6A vast literature exists on the topic of women and property. For a detailed overview of this literature, see Marrese, A Woman’s Kingdom.

7M. L. Marrese, ‘From Maintenance to Entitlement: Defining the Dowry in EighteenthCentury Russia’, in W. Rosslyn (ed.), Women and Gender in Eighteenth-Century Russia

(Aldershot: Ashgate, 2003), pp. 209–26.

8PSZ, vol. 13, no. 10.111 (14.06.1753). M. L. Marrese, ‘The Enigma of Married Women’s Control of Property in Eighteenth-Century Russia’, RR 58, 3 ( July 1999): 380–95.

9Martha Wilmot, The Russian Journals of Martha and Catherine Wilmot, 1 803 –1 808, ed. and intro. Marchioness of Londonderry and H. M. Hyde (London: Macmillan, 1935), p. 234.

328

Gender and the legal order in Imperial Russia

also observed, ‘In Russia the female sex occupies a different position from its counterpart in the rest of Europe.’ He went on to relate that ‘A large part of the real estate is . . . in the hands of women’, adding that ‘it is easy to understand what a great influence women enjoy in society as a result’.10

Noblewomen’s control of their estates was, moreover, an active concept, rather than a mere legal convention in many families. Greater equality in the law of property translated into women’s acquisition of estates and into striking similarities between women and men in regard to use of their assets: noblewomen became enthusiastic participants in the market for land and serfs, as well as urban real estate. Women as a group engaged in the same range of property transactions as men, and the size of women’s estates was commensurate with that of their male counterparts. Indeed, the scale of women’s holdings grew dramatically from the middle of the eighteenth century: by the nineteenth century, noblewomen controlled as much as one-third of the land and serfs in private hands. The presence of married women as both sellers and investors in property after 1750 increased steadily, while the participation of widows and unmarried women dwindled.11 Married women engaged in business in their own names, were present at property transactions and assumed responsibility for managing the family estate. Noblewomen’s legal and economic autonomy, coupled with the frequent absences of their husbands on state service, ensured that significant numbers of women in Imperial Russia were as likely to concern themselves with investment decisions and large-scale management as with the supervision of house serfs and other domestic tasks.

Gender conventions and the law of property in the eighteenth century

Russian law-makers stopped short of establishing complete parity between the sexes in regard to property, particularly in their failure to equalise inheritance rights. Yet the contention of this work is that, for noblewomen, from the middle of the eighteenth century, gender difference in Russia was muted in the law of property.12 Once law-makers granted women the right to control their

10 A. von Haxthausen, Studies on the Interior of Russia, ed. S. Frederick Starr and trans. E. Schmidt (Chicago: University of Chicago Press), pp. 21–3.

11On women’s economic activities, see Marrese, A Woman’s Kingdom, p. 109.

12Over time, the right to control property was extended to women of the merchant and urban estates. Among the peasantry, customary law also protected women’s dowries. Yet property rights among the peasantry remained collective until the twentieth century, as did the rights of merchants in many respects. B. A. Engel, Women in Russia, 1 7 00–2000 (New York: Cambridge University Press, 2004), p. 60; C. Worobec, Peasant Russia: Family

329

Russian society, law and economy

fortunes, they gradually withdrew legal provisions designed to protect wives from husbands who tried to defraud them of their assets. Far from being afforded special treatment, property-owning women assumed all the responsibilities of male proprietors. They were expected to defend their holdings against the encroachments of husbands, kin and neighbouring proprietors. Nor were noblewomen absolved of responsibility for their own, or their children’s, financial affairs by virtue of their sex. Writing early in the nineteenth century, the memoirist F. F. Vigel criticised Princess Gargarina for neglecting her estate: ‘Like all the nobility in our country, not only women, but also men, she did not think about her business affairs, which were in a sorry state.’13 Like many of his contemporaries, Vigel all but prescribed an active role for women in estate administration.

With the extension of noblewomen’s property rights, however, a fundamental contradiction characterised married women’s legal status in Russia. At the heart of this contradiction lay the tension between married women’s station in family law and their standing in the law of property. Custom, family law and religious ideology unanimously prescribed women’s personal subjugation to their husbands. At the same time, from 1753 the law of property defined married women as autonomous agents and guaranteed them full control over any property in their possession. It should come as no surprise that these principles could clash, and often at the expense of female autonomy. Or, as one observer of Russian social customs remarked, ‘Tho a married Woman has compleat power over her Fortune she has not over her person.’14

The tension between property and family law was an eighteenth-century innovation. Although Russian law acknowledged separate property and married women’s ownership of the dowry long before 1753, the administration of marital property was traditionally a joint venture15 and married women sold or mortgaged their estates only with their husbands’ consent, if not at their behest.16 Yet as rights of property came to be invested in (noble) individuals, rather than families, and women gained control of their estates, maintaining the boundary between the property of husband and wife created a host of dilemmas for Russian legal authorities. In particular, determining serf ownership when peasants who belonged to spouses married and produced children

and Community in the Post-Emancipation Period (Princeton: Princeton University Press, 1991); Wagner, Marriage, Property, and Law, p. 371.

13F. F. Vigel, Zapiski (Moscow: 1928), p. 26.

14Bradford, The Russian Journals, p. 232.

15Akty iuridicheskie, ili sobranie form starinnogo deloproizvodstva (St Petersburg: 1838), no. 71, X; no. 357.

16Marrese, A Woman’s Kingdom, pp. 52–4.

330

Gender and the legal order in Imperial Russia

repeatedly drew the attention of the courts. The debates over serf ownership exemplify the problems inherent in maintaining separate estates in marriage on a day-to-day basis. A series of legal conventions, including the registration of dowry villages in the name of the bride, made husbands and wives acutely aware of the separation of their assets and undermined marriage, in the words of Catherine Wilmot, as a ‘union of interests’. To be sure, many noblewomen trusted their husbands to administer their holdings for their mutual benefit, as well as in the interests of their children. Yet this arrangement by no means worked to the advantage of women or their heirs if the presumption of common interests broke down. Women’s failure to keep close watch on their holdings could lead to considerable loss for themselves or, if they predeceased their husbands and the latter remarried, for their children.17 In order to reap the benefits of separate property, noblewomen were compelled to patrol the legal boundaries between their own estates and those of their husbands.

Serf women, particularly house serfs, comprised an important part of a Russian bride’s dowry, along with other goods she would need to set up her household. As a result, marriages frequently took place between serfs belonging to married couples. Such arrangements disturbed no one while the serf owners’ marriage endured; when one spouse died, however, a serious complication arose. The Ulozhenie, or Law Code, of 1649 forbade serf owners to separate wives from their husbands. Since married serfs could not be parted, the surviving serf owner confronted an awkward dilemma: which spouse was the owner of the serf couple and their offspring?

The widow Akulina Voeikova insisted that she was the rightful owner when she brought a suit before the Land College in 1737. Following her husband’s death in 1735, Voeikova entered into a lengthy inheritance dispute with her son-in-law, Prince Nikanor Meshcherskii. Voeikova did not contest her daughter’s right to inherit her father’s estate, but she insisted on her full widow’s entitlement of one-seventh of her husband’s immoveable property, as well as the return of her dowry. According to Voeikova, Meshcherskii had left her with less than one-tenth of her husband’s assets, and included in her daughter’s share all of Voeikova’s serf women, whom her husband had married to peasants in his own villages.

Voeikova pursued her case to the Senate in 1744, after the Land College ruled that her dowry serfs would be returned to her, but their husbands and children would be considered part of her entitlement, thus diminishing the portion she would inherit from her husband’s estate. In contrast, the Senate found that

17 See, for example, RGIA, Fond 1330, op. 4, ed. khr. 262, ll. 2–3, 35.

331

Russian society, law and economy

the ruling of the Land College contradicted an article in the Ulozhenie, which stipulated that when a woman died without issue, her serf women should be returned to her natal family. If these serfs had been given in marriage, the husbands must accompany their wives, regardless of their original ownership. Voeikova therefore was entitled to claim her serf women and their families as part of her original dowry, the Senate decreed, in addition to her statutory share of one-seventh of her husband’s property.18

Similar disputes over the inheritance of married serfs recurred throughout the eighteenth century.19 Until mid-century, noble widows clearly benefited from the courts’ assertion of their right to reclaim their serf women, along with their families. This state of affairs proved much less satisfactory to men who felt they or their heirs had been short-changed. In 1767 noble deputies to the Legislative Commission brought their complaints to the attention of Catherine II, arguing that under the present rules men suffered a loss in serf ownership and that the proprietor of the serf husband, rather than the owner of the wife, should claim the entire family when a division of property took place.20

Members of the Senate echoed the logic of the nobility in subsequent rulings on inheritance. During the second half of the eighteenth century, as law-makers revised their conception of women’s relation to property, they also withdrew much of the protection they had previously offered propertied wives. Legal authorities acknowledged that, despite the formal separation of property in marriage before 1753, in practice married men made no distinction between their own and their wives’ property. Thus, a decree in 1740 allowed for recruits to be levied from the villages of an officer’s wife as well as from his own, ‘since husbands use their wives’ villages as they use their own, and for this reason they are required, upon retirement, to declare openly their own as well as their wives’ villages’.21 Having invested women with full rights of ownership in 1753, however, the Senate acknowledged the necessity of re-examining the problem of serf ownership by married couples.

As it reviewed a case presented in 1799, the General Session of the Senate discussed the principles that guided previous decisions on serf ownership in 1744 and 1762. The Senate had ruled in favour of the wife in 1744 because

18PSZ, vol. 12, no. 9.095 (19.12.1744).

19RGADA, Fond 1209, op. 79, ed. khr. 167, ll. 11–12; ed. khr. 365, lines 86–90; Fond 1209, op. 84, ch. 14, ed. khr. 1507, ll. 1–2.

20Sbornik imperatorskogo russkogo istoricheskogo obshchestva (henceforth SIRIO), 148 vols. (St Petersburg, 1869), vol. IV, pp. 419, 424; (1871), vol. VIII, pp. 539–40.

21Quoted in A. S. Paramonov, O zakonodatel’stve Anny Ioannovny (St Petersburg, 1904), pp. 161–2.

332