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‘in previous times the dowry estate was registered not only in the name of the woman who was marrying, but in the name of her husband, and for this reason the husband, considering himself the owner of his wife’s estate, could give her women serfs in marriage to his serfs’. To prevent the loss of property to the wife and her clan, the Senate had decreed that serf women and their offspring were to be returned to the wife and her family. But after 1744, the Senate continued, new customs governed the registration of dowries. Men could no longer appropriate their wives’ estates now that officials registered the dowry in the name of the wife alone and women administered their property without their husbands’ permission. Consequently, the Senate argued, it was unjust to replace one serf woman with an entire family, and they offered new guidelines to regulate the future division of assets. When husbands and wives agreed to marry their serfs to one another, the following principle was to apply: henceforth, the serf family belonged to the owner of the serf husband. If a husband married his serf women to his wife’s peasants, the wife would be considered the owner, and vice versa.22 Yet in their discussion the Senate failed to acknowledge that brides were far more likely to bring serf women to marriage, thus placing female proprietors at a disadvantage. In short, once women acquired the right to control their estates, they also took on the burden – willingly or not – of protecting their fortunes from their husbands.

Transactions between husband and wife

Determining serf ownership was not the only quandary the courts confronted in regulating property relations between husband and wife. In keeping with the convenient assumption that women could now determine how they would use their assets, law-makers gradually withdrew the protection they had once extended to wives who were coerced to part with their fortunes. Having spelled out the consequences for spouses who chose to marry their serfs to one another, the courts then struggled with the question of whether spouses might sell and mortgage property to each other. Their dilemma derived from women’s obligation to obey their husbands – a duty that was originally a tenet of ecclesiastical law and later articulated as well in civil codes. With good reason the courts initially expressed apprehension that husbands would exploit their wives’ weakness and force the latter to part with their assets on unfavourable terms. By the nineteenth century, however, official solicitude for vulnerable

22 PSZ, vol. 26, no. 19.250 (19.01.1800).

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wives gave way to a firm conviction that married women were responsible for the defence of their property rights.

Since the Muscovite era, the courts had been sensitive to the potential for forced sales of land by abused wives. In order to minimise this danger, sellers of both sexes were examined in court when they executed deeds of purchase, mortgaged property or registered wills.23 Yet it was not until the second half of the eighteenth century, after noblewomen had gained control of their assets, that the legality of transactions between spouses loomed large in debates within the Senate. The first debate in the Senate on transactions between spouses took place in 1763. The summary of the case dwelled primarily on the right of members of one clan to sell property to another; however, the Senate finally ruled that conveyances between husband and wife were unacceptable on the basis of a 1748 edict which forbade spouses to claim their entitlement of one-seventh of the other’s estate during the other’s lifetime. The sale of property by wives to husbands was more objectionable still, the senators reasoned, since a woman could not dispute her husband’s decision and might relinquish her property at his insistence.24

In subsequent rulings legislators focused at times on the murky legal status of property transactions between spouses, while on other occasions they highlighted the necessity of protecting wives from greedy husbands.25 As the Senate debated the legal niceties of allowing spouses to engage in business, however, sales and mortgages continued to take place between husbands and wives. Finding it impossible to stop the practice, the Senate reversed its earlier decisions on the grounds that the resolution of the 1763 dispute represented a ruling on a particular case, not a general principle. The final debate took place in the Senate in 1825 between the minister of justice and members of the Committee on the Codification of Law. In their discussion, most of the senators skirted the problem of men’s authority over their wives altogether and focused on the status of the 1763 edict. The minister of justice argued that the Land College had set forth its opinion in 1763 as a guide for ruling on future transactions between spouses. Committee members countered the minister’s reservations with their own interpretation: the issue was not, they maintained, whether the sale of property between spouses was beneficial or harmful to the parties involved, but whether any principle in Russian law existed to prohibit these transactions. Having reviewed the regulations in the Ulozhenie and the 1785 Charter to the Nobility, the committee concluded that no rationale

23PSZ, vol. 2, no. 763 (19.06.1679); vol. 2, no. 909 (05.04.1682).

24PSZ, vol. 16, no. 11.764 (26.02.1763).

25PSZ, vol. 20, no. 15.022 (25.06.1763); PSZ, vol. 27, no. 21.926 (30.09.1805).

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could be found for preventing the transfer of property between spouses. After lengthy debate, with virtually no reference to feminine vulnerability, three of the four senators at the General Session agreed that transactions between husbands and wives should be permitted.26

Keeping in mind that previous decisions had rested, at least in part, on the conviction that propertied wives should be protected from abusive husbands, this was an ironic conclusion. As divorce petitions reveal, noblewomen continued to be the victims of beatings by husbands who wished to seize control of their estates.27 Yet the ruling was consistent with the general tone of Russian property law in extending minimal protection to women. From the middle of the eighteenth century the law made few distinctions between men and women’s use of their assets. Placing an equal burden on both sexes to safeguard their interests was the logical corollary of equalising women’s status in the law of property. Thus, in the early nineteenth century Russian officials confronted a paradox that bedevils law-makers to this day: gender neutrality in the law by no means translated into a guarantee that women could fully realise their legal rights.

Unlimited obedience: women and family law

During the decades when Russian lawmakers elevated noblewomen’s standing in the law of property, two noteworthy trends emerged in ecclesiastical and family law. First, from the middle of the eighteenth century, grounds for dissolving marriage in the Orthodox Church dwindled dramatically, making divorce virtually impossible. Second, although wives had always been expected to be subservient to their husbands, a woman’s responsibility to obey her husband was for the first time articulated in civil law, in Catherine II’s Statute on Public Order (Ustav blagochiniia) of 1782 and transformed into an obligation to demonstrate ‘unlimited obedience’ in the 1832 Digest of Laws (Svod zakonov Rossiiskoi imperii). The contradiction between women’s economic liberty and their personal dependence soon drew the attention of legal scholars and became the subject of on-going controversy in the nineteenth century.

During the first half of the eighteenth century, laymen and parish priests ‘made and unmade marriage’ with relative ease.28 The tenuous nature of

26PSZ, vol. 37, no. 30.472 (31.08.1825).

27RGIA, Fond 796 (Kantseliariia Sinoda), op. 39, ed. khr. 71, l. 1 (1758); Fond 796, op. 52, ed. khr. 278a, ll. 1–2 (1771); Fond 796, op. 58, ed. khr. 261, ll. 1–2 (1777); Fond 796, op. 61, ed. khr. 216, l. 1 (1780); Fond 796, op. 78, ed. khr. 440, l. 2 (1797).

28G. L. Freeze, ‘Bringing Order to the Russian Family: Marriage and Divorce in Imperial Russia, 1760–1860’, JMH 62, 4 (December 1990): 714.

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matrimonial vows before mid-century was also a feature of the pre-Petrine era:29 not only did the Orthodox Church in early-modern Russia lack the means to enforce its authority over marriage, but ecclesiastical authorities accepted a broad range of grounds for divorce. Until 1730, parish priests granted divorce certificates when spouses agreed to separate – and despite the prohibition on voluntary divorce after 1730, the practice continued until the middle of the eighteenth century.30 In subsequent decades, however, the Church not only stepped up its supervision of clergy and laity, but imposed far more rigid regulations for the dissolution of marriage.

Even as the grounds for divorce contracted, unhappy spouses continued to petition the Holy Synod for permission to end their union. Overwhelmingly, both sexes appealed in vain, since the Orthodox Church was reluctant to accept adultery as grounds for divorce and rejected severe physical mistreatment as sufficient reason for terminating marriage. Indeed, by and large the Church sanctioned divorce only when separation had, de facto, taken place: namely, in cases of desertion and Siberian exile.31 Ironically, although ecclesiastical courts refused to grant women divorce even when extreme physical abuse could not be denied, the civil courts displayed far less tolerance for husbands who sold their wives’ property or spent their dowry funds. Noblewomen thus discovered that crimes against their property were more likely to elicit the sympathy of the courts than violations against their persons.32

While the bonds of matrimony tightened in the late eighteenth and early nineteenth centuries, women’s subservience to their husbands became the subject of civil law. The rules for conduct in marriage, articulated in the 1782 Statute on Public Order, instructed husbands to live with their wives in love and harmony, to protect them, forgive their shortcomings, sustain them in their infirmity and provide for their support. For their part, wives were to abide with their husbands in love, respect and obedience.33 The emphasis on affective ties and feminine frailty in these strictures, as well as the demarcation of male and female responsibilities, betrayed the growing influence of Western domestic ideals on Russian gender conventions.34 The impact of the

29E. Levin, Sex and Society in the World of the Orthodox Slavs, 900–1 7 00 (Ithaca: Cornell University Press, 1989), pp. 114–26.

30A. Lebedev, ‘O brachnykh razvodakh po arkhivnym dokumentam Khar’kovskoi i Kurskoi dukhovnykh konsistorii’, in Chteniia v Imperatorskom obshchestve istorii i drevnostei rossiiskikh, 2/1 (Moscow, 1887), pp. 27–9.

31Freeze, ‘Bringing Order to the Russian Family,’ pp. 709–46.

32Marrese, A Woman’s Kingdom, pp. 86–97.

33PSZ, vol. 21, no. 15.379 (08.04.1782), st. 41, otd. VIII, IX.

34For a discussion of the impact of separate-spheres ideology on Russian gender conventions, see Marrese, A Woman’s Kingdom, pp. 171–204.

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Church on civil law was also apparent in an 1819 State Council ruling,35 which prohibited spouses from living apart.36 While this ruling did not put an end to informal separations, it prevented women – who relied on their husbands to obtain a passport, which was necessary for residence or employment – from fleeing an abusive or unhappy marriage without the latter’s collusion.

Legal specialists hotly debated whether women’s economic privileges ameliorated their submission to their husbands, or if the constraint of ‘unlimited obedience’ effectively undermined their rights as proprietors. The statutes that drew the ire of proponents of women’s property rights were contained in the 1832 Digest of Laws, the first Russian law code since the Ulozhenie of 1649. The task of legal codification had eluded eighteenth-century monarchs, despite their sporadic efforts to rationalise the law. It was only in 1830 that Nicholas I successfully appointed a commission to collect all decrees issued after the Ulozhenie, to reconcile their contradictions and produce a new legal code. Among the articles in Volume X were a series of regulations governing marriage which were clearly at variance with women’s economic autonomy. Article 103 codified the obligation of spouses to live together and decreed that wives must follow their husbands in cases of resettlement or when they embarked on state service. Article 107 expanded upon the 1782 instructions to wives, stating that ‘A wife shall obey her husband as the head of the family, abide with him in love, respect and unlimited obedience (v neogranichennom poslushanii) and render him every satisfaction and affection as the mistress of the house.’ The following article added that a wife’s submission to her husband’s will did not free her from her obligations to her parents. The Statute on Public Order also provided the foundation for Article 106, which set forth the duties of husbands: ‘A husband shall love his wife as his own body and live with her in harmony; he shall respect and protect her, forgive her shortcomings, and ease her infirmities. He shall provide his wife nourishment and support to the best of his ability.’37 Thus, the articles of the Digest of Laws not only institutionalised feminine weakness and reinforced gender hierarchies, but ‘dramatized the sharp division of sexual spheres, between the public and the private, that was underway in Europe in these years’.38

The articles of the Digest of Laws graphically illustrated the tension between noblewomen’s proprietary power and their subservient role in the patriarchal

35See chapter 20 of this volume for discussion of the State Council’s foundation and role.

36Wagner, Marriage, Property, and Law, p. 71.

37SZ, tomy VIII, ch. II–XI, ch. 1, arts. 103, 106–108 (St Petersburg, 1900).

38R. S. Wortman, Scenarios of Power: Myth and Ceremony in Russian Monarchy, 2 vols. (Princeton: Princeton University Press, 1995), vol. I, p. 261.

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family. The publication of the new code also initiated lively debate over women’s ability to realise their economic prerogatives. The historian Nikolai Karamzin maintained that foreign influence had inspired the new emphasis on women’s subjugation in Russian law, and accused the statesman Mikhail Speranskii of imitating the Napoleonic Code when he introduced the provision on wives’ obedience in the Digest of Laws.39 Writing in the second half of the nineteenth century, the scholar N. V. Reingardt declared that since the authority of husbands over wives was unlimited, women’s economic independence was ‘only a fiction’.40 Similarly, K. D. Kavelin believed that the article mandating feminine obedience was not a mere recommendation but carried the force of law.41

By contrast, in his influential survey M. F. Vladimirskii-Budanov argued that eighteenth-century Russian law was noteworthy precisely for the absence of statutes concerning the relation of husband to wife, which belonged to the realm of religious ideology. He remarked that the 1782 Statute on Public Order was the first ruling to prescribe feminine obedience in civil law; furthermore, it was only in 1830 that the compilers of the Digest of Laws specified that women’s obedience to their husbands must be unlimited. If this provision were implemented, he concluded, it would impinge not only upon women’s financial autonomy but also on the prerogative of wives to file suit against their husbands. At no time, however, had Russian law restricted women’s rights in this regard. In fact, Vladimirskii-Budanov observed, the ‘recognition of equal rights for men and women’ was ‘the distinguishing feature of Russian law’.42

The glaring discrepancy between married women’s personal and property rights in Russian law failed to recede as the imperial era drew to a close. Members of a commission for a new codification of Russian law in the 1880s discussed the troubling contradictions in women’s legal status at length, and the majority spoke in favour of limiting the authority of husbands over their wives. According to one participant, marriage in Russia was still governed by the oppressive principles laid out in the Domostroi in the sixteenth century, which precluded married women’s active control over their property. Another member of the commission maintained that although property law

39V. I. Sinaiskii, Lichnoe i imushchestvennoe polozhenie zamuzhnei zhenshchiny v grazhdanskom prave (Iurev, 1910), pp. 116–17, 124, 158, 162, 185–7; G. A. Tishkin, Zhenskii vopros v Rossii 5 0–60-e gody XIX v. (Leningrad, 1984), p. 29.

40N. V. Reingardt, O lichnykh i imushchestvennykh pravakh zhenshchin po russkomu zakonu

(Kazan: Tip. gubernskogo pravlenia, 1885), pp. 7, 11–12.

41K. D. Kavelin, Sobranie sochinenii, 4 vols. (St Petersburg, 1900), vol. IV, p. 1063.

42M. F. Vladimirskii-Budanov, Obzor istorii russkogo prava, 6th edn (St Petersburg, 1909), pp. 445–6, 374.

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