The legal system of the Zaporozhian Host (Hetmanate Ukraine) of the XVIIth and XVIIIth centuries combined Slavonic principalities, written and oral social rules and norms of Ukraine-Rus’, nomadic and Orthodox beliefs and canons gave birth to a truly national set of laws.
This set of laws was influenced indirectly by the reception or compilation of Magdeburgian, Polish and Lithuanian laws, it has fully assimilated the rather thorough Cossack constitutions of XIVth to the first half of the XVth centuries and finally ensured a renaissance of national spirituality. The law of the Hetmanate, existing in the form of unwritten social regulations, protected by the power of their state and the traditions of the fathers, judicial acts, decrees, interstate treaties with Türkiye, Crimean Khanate, and Moldavia among others, were revolutionized and achieved their high point of development in the early XVIIIth century.
The legal system of the Zaporozhian Host at this time orientated itself towards the Romano-Germanic legal system, which was at the time considered as the best in the world, and relied on considerable foreign legal experience and the powerful Ukrainian intellectual potential.
The French philosopher and jurist Montesquieu has been credited with being the father of the division of political power theory, whereas the Englishman John Locke had also developed similar ideas around that time. Out of these two great thinkers, Locke was the older one and in 1690 he had detailed the constitutional development based on the theory of natural law as well as the institution of human rights in a natural environment in his “Two Treatises on Government and Essay Concerning Human Understanding”.
That’s 20 years before the Orlyk’s Constitution. Pylyp Orlyk may well have been influenced by Locke, as well as by other European thinkers and jurists, but we cannot know for certain even today. It’s hard to track down the influences, though what is certain, is that Orlyk was the first in modern times to use the idea of division of power in a constitution.
Historically, as a predecessor to the Orlyk’s Constitution of 1710 came the Cossack Code and various other constitutions of Cossack cities and settlements, like in 1659 Pereyaslav constitution, which amounted to the democratic, self-governing traditions of the Cossacks, as an autonomous, aptly nomadic military group. These traditions have essentially their beginning in the Zaporozhian Host. Since many Cossacks were either farmers or nobility, who had run away either from Russian serfdom or the constrictions of Polish nobility and/or Polish Catholic church, they could only accept self-government as the Rule of Law. Moreover, for the Ruthenian farmers, the constant Tatar invasions, which deprived them not only of their grain and cattle, but also enslaved them, had created a type of farmer who was self-reliant, bold, and not willing to give away one ounce of his freedoms.
The ancient Cossack Code, in fact, a sort of natural law, was based on a God-given right and rule, just like the Constitution of 1710, which based itself on the political equality of the Cossacks.
In the Preamble of Orlyk’s Constitution, it is stated:
“It is known that the knightly people of the Cossacks are of our own stock, that they are our brothers and Orthodox Christians… Their ancestors were among the first to embrace Christianity from the Orthodox church together with Volodimir. Faithful to this religion they remain, in this faith they are born and baptized, and faithful to it they die.”[1]
In Adam Kysil’s opinion Cossacks were “religionis nullius,” and at the time such opinion became an often quoted one, e.g., Alberto Vimina, while reporting about an encounter with Kysil in his Historia delle guerre civili in Polonia wrote that Kysil was well inclined toward the Cossacks because they were his equals in the attachment to their common religion.
The Preamble to the Bendery Constitution[2] can be seen as an introduction of the Cossack history and ancestry. Orlyk often remarks that Cossacks are descended from the Khazars. The Khazar Empire, ruled by a Khagan, was initially of the Muslim faith.
According to Orlyk the Khagan converted to Judaism “of the most ancient kind.” Allegedly, for the 450 years or so of the Khazar Empire, Orthodox Jews would come from the whole world to enjoy religious freedom. The Khazars were annihilated by Asian tribes without leaving any written traces or religious scriptures behind. However, according to Orlyk, the Cossacks are the direct descendants of the Khazars. As mainly tradesmen, the Khazars had centuries-long trade contacts with the Byzantine Empire and it is known that two Khazar princesses married Byzantine emperors and converted into Orthodoxy[3].
The clear choice of the Byzantine Orthodox religion by Orlyk, as one of the pillars of his constitution and state, is probably due to the long religious and political oppression of both Poland and Russia.
The Khmelnytskyi Uprising of 1643 is considered a defining moment in a number of national historical narratives: the Poles came to regard the uprising as a historical misunderstanding that led the Cossacks to rebel against the “civilizing mission” of Poland and eventually resulted in the loss of the easternmost territories of “Greater Poland”; The Russians came to interpret the uprising as a major episode in the continuing “gathering” of “Russian” lands and in the transformation of Muscovy into a European power; The Ukrainians celebrated the uprising as a war of liberation from foreign oppression, a popular national movement resulting in the creation of the Cossack state and, in general, a defining moment in the shaping of the Ukrainian nation.
Orlyk names the fierce defense by Poland of the Catholic faith as the main reason why Bohdan Khmelnytskyi took arms against the Polish-Lithuanian Commonwealth and adds that that’s why the Host and the Ruthenian people submitted themselves to the Muscovite Tsardom. Interestingly, the Khmelnytsky uprising was based on a close relationship between Cossacks and farmers.
With the sack of Hetman Mazepa’s city, Baturin, and the whole bloody repression in most Cossack towns came to the slow death of the cultural elite. The gradual russification of the nobility including the Starshyna, and of the Ukrainian elites and intellectuals, brought about a split between social classes, thus widening the fight for a single specific identity.
However, the Cossack identity and traditions remained strong, both with aristocracy and peasantry, particularly around Poltava. Justifying the admiration of poet Lina Kostenko: “and still we, Ukrainians live, this is the greatest miracle.” Two other pillars of Ukrainian freedoms, the Union of Lublin and the Magdebuger Rechte, are more influenced by German and Protestant cultures than by Orthodoxy.
For Orlyk and the Cossacks, religion was essentially a political matter[4]. It is to be understood that something as ancient or antique as religion (or religious confession) was considered to be incredibly important. The main purpose of religion for Orlyk was to free Ukraine from the heavy-handed Polish rule of both political and religious aspects of life. Under Polish rule, Orthodoxy suffered great losses. The Polish crown and diet refused to accept Orthodoxy as one of the religions of the commonwealth.
Such resistance from both the crown and the diet led to endless blood-spilling in Ukraine and Eastern Bank’s will to become part of Muscovy. Orlyk does not seem to understand that accepting links with Russian, due to a shared religion, was extremely dangerous for Ukraine and the problems it has created have only recently been solved by the Tomos[5].
A few years back with the granting of the Tomos by the Constantinople Patriarch Bartholomew to the Ukrainian Orthodox Church the “anathema” imposed for centuries by Moscow Patriarchate on Hetman Mazepa for alleged treason against the Russian Tsar was lifted.
In reality, Mazepa had solid proof that the Russian Tsar had no intention to respect the obligations he had freely undertaken vis-à-vis the Host in particular, and Ukraine in general. And that the Moskals intended, as they actually did, to colonize all of Ukraine with particular cruelty against those who defended “her,” the Cossacks.
Today, it means that the Russian Orthodox church loses a lot of its international prestige and power, as the right hand of Putin. Ukrainian Orthodox Church may become a worldwide political power. Especially, if the Ukrainian Greek Catholic church gradually draws closer towards it, as it seems they want to.
As was the dream of Andrey Sheptytskyi. It also means that another Ukrainian identity pillar, Hetman Mazepa, is restored to what he has really been all along — a Ukrainian hero.
The Man and the Nation nobody expected: Andrei Sheptytskyi and Ukraine
The pillars of the Orlyk constitution
The Cossack state had elected and regularly reelected its authorities. Power was divided into legislative, the General Council or Sich Rada, and led by a Hetman. Cossack state’s foreign policy was based on the inviolability of its borders established by agreements with the Republic of Poland, the illustrious Ottoman Porte, and Muscovy. Its foreign policy insisted on mutually beneficial cooperation with its neighbors, in particular the Crimean Tatars. The Zaporozhian Host maintained its previous organization, Kish, and was linked directly to the Cossack State in the Sich Rada, to which it sent its deputies for “listening and complaining.” Hetman’s powers were greatly limited with the release of Orlyk’s Constitution.
Corruption was a constant concern and the Hetman could not dispose of the Host’s treasury freely, a special post of Treasurer was created and was independent of the Hetman. The Treasurer was obliged to live wherever Hetman made his residence. Losses and embezzlements, if they occurred, had to be paid out of the Treasurer’s personal means. Regiment treasurers collected income and sent it to the General Treasurer to whom they had to render accounts. Hetman and Treasurers had to be satisfied with their incomes and estates strictly fixed as their allowances. The Constitution specifically rules out bribery and establishes official positions as elective.
The Orlyk Constitution, in Article 3, stresses the “deepest ties of affectionate affinity” to the Crimean state. With which the Zaporozhian Host “many a time entered into military alliances.” And today, with the Russian persecution of Crimean Tatars, half a century after Stalin’s genocide by deportation, the main voices of protest come from independent Ukraine.
The strict control of the executive and an intense fight against corruption
For the first time in history, there was a division of power of the judicial branch from other government institutions,
“Should any officer, or common person, commit a crime or offend the Hetman’s honor, the Hetman shall have no right to punish with his own authority. Such a case, criminal or any other, shall be referred to the Military General Court and everybody has to bow to the impartial decision of the court.”
There are five articles (9, 10, 12, 14, 16) that should be regarded as the anti-corruption provisions of modern Ukraine, for a fair and responsible government. These articles deal with the introduction of civilian colonels, the use in the text of the term “county” instead of “regiment,” and other provisions, may be regarded as the intention of the constitution’s author(s) to establish a civilian territorial setup for the state of Ukraine, along with the military system of mobilization of the Zaporozhian Army, and to separate military offices from civilian ones.
The provision according to which regimental officers were to be elected by two social strata – the Cossacks and the “common people” (peasants and bürgers) – was a major step toward introducing universal suffrage (so far, exclusively for men). The Hetman is obliged to make every effort and constantly sees to it that ordinary Cossacks and civilians do not suffer from excessive oppression, ravaging requisitions and dispossessions. Military and civilian officials are forbidden to force Cossacks and civilians to do private work unless they are their servants. It is also not allowed to force craftsmen to do work for officials without due remuneration or to exempt Cossacks of their duty in order to do some private work for their masters.
The clauses of the Bendery Constitution do not declare human rights as we see them today, but certain government officials are responsible for implementing the rights of certain groups of the population. Treasurers are to take care of the treasury, look after mills and incomes, and see that those served public, not personal, interests. The Hetman himself has no right to encroach on the military treasure or its revenues or to turn them to his advantage. He is to content himself with his own incomes provided for by his high office.
What is lacking in Orlyk’s constitution? Women’s equality still does not exist as equal rights of people or citizens. The Zaporozhians were a male warrior society. Racism, and particularly antisemitism, is explicit in the constitution, as regards to reality, that many Zaporozhians[6] were either converted to the Jewish faith or married women of the Jewish faith. History has to wait for another founding father of Ukraine, metropolitan Sheptytskyi, to adopt a concept of citizenship, free of ethnic and religious prejudice. Ukrainians, who for centuries have been denied their identity – customs, language, and culture – need to know and go back to its very ancient democratic traditions, none of which Russia ever enjoyed. These ancient Ukrainian pillars of democracy make Ukraine a genuine partner for Europe.
In his pastoral letter of July 1941 titled “How to Build a National Home,” Sheptytskyi demands that the newly proclaimed (though short-lived and rather unwelcoming to other ethnicities but Ukrainian) independent Ukrainian state must account for the needs, freedoms, and well-being of all the people of the state, regardless of creed, nationality, ethnicity, or social position.
Another important part of the Orlyk Constitution was the provision raising the local government to the constitutional level. The norms of international (Magdeburg) law, which was valid in continental Europe since the Middle Ages, were translated into Ukraine’s constitution.
The cities of Ukraine had been living under Magdeburg Law[7] for centuries and this law had been under attack since 1654 and the attacks had been increasing since 1700,
“The capital city of Kyiv and other Ukrainian cities with their city administrations shall retain unshakably the rights and privileges granted to them in good faith. The constituent assembly shall make a decision to this effect with due respect for this act, which is subject to confirmation by the hetman’s government.“
The Magdeburg rights were granted very early to Ukrainian towns. They embodied the right and duty of self-government, the power of local magistrates, and thus created an urban bourgeoisie. The Magdeburg rights were given to the city of Lviv already in 1396 and embodied the right and duty for municipalities to self-govern. It also, long before Alexis the Tocqueville, gave socio-political importance to the legal professions, urban middle class and its concept of the bourgeoisie and bourgeoisie’s role in the city. The Polish king, Casimir III the Great already in the XIVth century specified that the granting of the Magdeburg rights “eliminates all Russian laws and practices that could hinder the practice of law in Europe.”
The epoch of nobility before the XIXth century
There was an echo to the epochs of the Cossacks, particularly if we look at the Brotherhood of Saints Cyril and Methodius (1845-1847). Though short-lived in the cultural and political branch, it was a referential echo of the Cossack era.
The influence of both the Cossack era and the ethnic and cultural protest defending purely Ukrainian values was particularly strong around Poltava, mainly because of the strong historical influence of Hetman Mazepa.
The Brotherhood of Saints Cyril and Methodius was impressive because it grouped Ukrainian intellectuals. The organization predated the Spring of Nations in Eastern Europe just by a few years. Founded in December 1845 or January 1846, the society sought to revive the ideals of the traditional Ukrainian brotherhoods and envisioned a Ukrainian national rebirth, including national autonomy within a free and equal Slavic federation. It was quickly suppressed by the government in March 1847, with most of the members punished by exile or imprisonment. It condemned the Tsar’s autocracy and included luminaries like Taras Shevchenko.
Cossack freedoms
The average Cossack in the Cossack state was paid and free. In the young years of the republic, the middle class consisted of rich fishermen, cattle owners, and merchants. Later, the successful military Cossacks were awarded land and joined first the middle class and then the Starshyna (the Elders, who were managers or civil servants). Corruption, as we know it today, ran amok in the republic. Orlyk should be considered the first person who tried to fight it. Until Orlyk and his Constitution, many Hetmans were either themselves corrupt or, as Mazepa, tolerated corruption to acquire money and/or prestige. Orlyk’s introduction of a judicial body not dependent on a Hetman is a very strict anti-corruption measure.
Orlyk was also a prophet in his constant desire and effort to create an anti-Russian coalition. He already understood the necessity to tame the beast that was Russia,
“[…] who cares for the interests of Europe and its particular states in general will easily understand the danger for Europe’s freedom of such an aggressive state as Russia.”
United, as a religious, ethnic, and political entity, the Polish and Lithuanian Commonwealth became the source of parliamentary culture in Central and Eastern Europe after the Union of Lublin. It also included what we consider today Belarus and Ukraine (known as Ruthenia at the time). However, national consciousness in Eastern and Central Europe developed only from the 19th century on. Before that, each country and people were essentially defined by class, ethnicity, and religion. Even well into the 20th century, Ola Hnatiuk’s “Courage and Fear” shows, that under both Soviet and Nazi occupations, the inhabitants of Lviv based their survival strategies on ethnicity and religion, profession coming just after. The “Massacre of Lviv professors” happened because the intelligentsia could constitute a rebellion against the occupating powers, but was it a class, ethnic or religious murder?
Orlyk’s Constitution is considered an influential document ahead of its time. Though, to this day there is not enough research done into it. Its availability is limited to the common reader, while, at the same time, Orlyk is not widely considered a political visionary.
Orlyk’s ideas, just like the ideas, freedoms, and history of the Cossacks, are a big part of Ukrainian national identity. Instead of basing Ukrainian national identity on disputed heroes of the XXth century, Ukraine should not forget “her” Cossack roots: religious, ethnic, and political. Something we should call Orlyk’s ancient pillars of democracy.
The Bendery constitution differed from earlier but operating constitutional acts in that they not only determined the rights and duties of the Hetman and elders for the future, but summarized the socio-political structure of the Cossacks, which had formed on the basis of religion, customary law, and military democracy, that is, the “people’s constitution” of the Rus’ during the almost century and a half existence of the Zaporozhian Host.
The authors of the Bendery Constitution rather creatively approached the experience of their ancestors and set out on paper that which had formed in practice, was consolidated in the genetic memory of generations, and had undergone years of testing.
They made a constitution on the basis of the achievements of European political and legal thought acquired by them —
- recognition of the natural rights and freedoms of man,
- ideal or natural rights of the people,
- contractual origin of the State,
- the need to limit the absolute power of the monarch,
- the political rights of citizens known from ancient Greece and ancient Rome
- to serve in the army,
- to participate in public life, in a popular assembly,
- to a share in common ownership,
- to hold elective offices,
- to the defense of personal and property rights in court,
- to private ownership,
- to estate privileges,
- the rights of peoples to overthrow a tyrant comprehensively substantiated from the thirteenth century,
and others.
Although the document was signed by the elite for the elite and did not make provision for the participation of the people in State administration, the declarations on the inadmissibility of committing extortion, oppression, impositions, and burdens deserve attention not only with respect to the military, but also the pospolity, providing assistance to Cossack children, and distribution of the burden of taxes not only among the peasants but also the merchants and Cossacks.
Recognition by the international community of the natural rights of the “Cossack nation” to the creation of its own State in the form of a free duchy was the main purpose. The heirs of the glorious Hetman and Cossack elders, being guided by mercantile interests, rather rapidly were transformed into loyal subjects of the Emperor — Ukrainian nobles. The Hetmanate sank into oblivion, but elements of its legal system had so penetrated the consciousness not only of the people but certain ruling circles, that it was not eradicated until almost the mid-nineteenth century.
Notes
- It was Jov Borec’kyj and other Orthodox clergymen who took the Cossacks to be the true representatives of the Ruthenian nation, culture, and religion. Hruševs’kyj, Kul’turno-nacional’nyj rux, pp. 189, 190. Borec’kyj expressed more negative opinions about the Cossack’s religious views in a letter to K. Radziwill. E. Šmurlo, Le Saint-Siège et l’orient orthodoxe Russe, 1609-1654 (Prague, 1928, p. 35. ↑
- Bendery Constitution is another name for Pylyp Orlyk’s Constitution of 1710. It’s named after the city Orlyk and Mazepa together with Charles XII ran away after the Battle of Poltava. ↑
- In the 20th century, Orlyk’s hypotheses of Cossack ancestry were rejected by historians and scientists who researched the Cossack genetic code and pool. ↑
- The instruction set out in Article 7 of the Pereyaslav constitution (1659) of the duty of the Hetman “to elect no one without the Rada and without the council of all common people as colonels and other leaders” and not to remove those elected to office somewhat enhanced the democratic nature of determining the general military “Cossack parliament” of commanders. Indeed, Article 8 influenced this democratic nature by directing that it categorically prohibited electing as candidates people of the non-Orthodox faith. On the other hand, citizens of Ukraine were equated with the subjects of the Tsar at the time, deprived of their judicial immunity, and confidence in Cossack courts was undermined. ↑
- On 5 January 2019, Bartholomew I, the Ecumenical Patriarch of Constantinople, signed the Tomos that officially recognized and established the Orthodox Church of Ukraine and granted it autocephaly (self-governorship). ↑
- A separate clause in the Constitution was devoted to the Zaporozhian Sich, which indicated that the Sich’s autonomy was guaranteed within the limits of the Ukrainian state. ↑
- Baturyn constitution (1663) signed by Hetman Ivan Martynovych Briukhovetskyi after his election as Hetman related to the legal status of Zaporozhian Host and the competence of Cossack organs of self-government was sharply curtailed. With the addition of the Baturyn constitution (1663) and Moscow articles (1665), many cities of the Hetmanate lost Magdeburg law, while Briukhovetskyi assumed the obligation to terminate international relations with the Zaporozhian Host completely. For exceptional loyalty to the Tsar all deputies in the Rada of Elders by a special act of 22 October 1665 became nobles. Briukhovetskyi’s inclination towards betrayal of his own people led him to his death. ↑
Colette Hartwich is a creator and founder of Hadassah Luxembourg, WEGA Aide Humanitaire a.s.b.l Luxembourg; Co-Founder of L’Ukraine and ALPHEE Paris. She has 40 years of experience in humanitarian and environmental assistance projects in 7 different countries all around the world: the Philippines, Ukraine, Armenia among others. For more than 25 years she is educating and coaching in fields of microfinance, humanitarian and development assistance project drafting.
Further reading:
- Hetman Mazepa’s Gospel in Arabic found in Lebanon
- Ukrainian 18th century Independence leader Ivan Mazepa to get his own museum
- The Man and the Nation nobody expected: Andrei Sheptytskyi and Ukraine
- Ukraine’s open colonial wounds
- Memory wars and other battles
- The brutal Russification of Ukrainian Kuban: from Zaporizhzhian Sich to the Kuban Cossack Host
- Genocide today: From acknowledgement to prevention
- Historical reconstruction breathes new life into Ukraine’s iconic Kamianets-Podilskyi fortress
- The End of Invisibility: Taking Back Ukraine
- Explore Ukrainian traditional culture with interactive site “Authentic Ukraine”
- Artist creates portraits of Ukrainian Hetmans
