On April 5, 1710, Pylyp Orlyk was elected hetman at Bendery, in the presence of Cossack officers, Hordiienko’s Zaporozhian Cossacks, and emissaries from the Zaporozhians of Oleshky. This was not the first time that a hetman was being elected when another one — Skoropadsky — had already been appointed. This was a common occurrence in Ukraine during the turbulent 1660s and 1670s of the period known as the Ruin. But never before had a hetman been elected outside the borders of Ukraine. The newly-elected hetman concluded an official agreement with those who had elected him, which clearly set out the conditions under which he assumed office. Ukrainian historiography calls this document — respectfully but not very correctly — the Constitution of Bendery.
Patterned after the acta conventa, the agreements that the Polish nobles concluded with their elected kings, the Ukrainian document, with its high-flown title Pacta et Constitutiones Legum Liberatatumque Exersitus Zaporoviensis (The Pacts and Constitutions of the Rights and Freedoms of the Zaporozhian Army), consisted of 16 articles that were very different in scope and importance and mostly dealt with practical policies rather than principles.
Yet these provisions reflected the political views and interests not only of the Mazepite emigres but also many like-minded people who had remained behind in Ukraine. This document, drawn up by a small group of dissident exiles, was not at all the usual theoretical exercise or example of wishful thinking. By the time the Pacta et Constitutiones was concluded, a new military expedition against the tsar was being mounted. Thus the Constitution of Bendery reflected the changes that Mazepa’s followers hoped to introduce after returning to their native land.
Pacta et Constitutiones begins with a brief historical overview of the “ancient martial Cossack people.” This people was once powerful and even threatened an “Oriental power” (the Byzantine Empire), but found itself under Polish domination for its sins. For the sake of the oppressed faith, “Bohdan Khmelnytsky of glorious memory” fomented an uprising against the Poles and, for this reason, accepted Muscovite supremacy. But the tsars were out to rob the Cossacks of their traditional rights and freedoms, so Mazepa, “rising up in truth and fervor for the integrity of the fatherland,” sought to avert the disaster by breaking away from Muscovy and forming an alliance with the Swedes. To bring his cause to completion, the Zaporozhian army elected Pylyp Orlyk as its hetman.
Some historians believe that the articles were compiled without any logical order. But a more detailed scrutiny of this document shows that the 16 clauses can be clearly divided into four logical categories.
1. QUESTIONS DEALING WITH UKRAINE IN GENERAL (CLAUSES 1 TO 3)
Clause 1 maintains that Orthodoxy, for the sake of which Khmelnytsky accepted Muscovite protection (this idea is repeated several times), is to be the dominant religion of the country. No other faiths, especially Judaism, are allowed. The desire to break with Muscovy is underlined with the following recommendation: in order to increase the prestige of the Metropolitan of Kyiv and neutralize Muscovy’s influence, the Ukrainians must again accept the authority of the Constantinople patriarch because “the gallant Cossack folk had been blessed in the apostolic capital of Constantinople.” Obviously, the Ukrainians, especially the clergy with whom Orlyk maintained good relations, still resented the recent (1686) subordination of the Kyiv metropolitan to his Muscovite counterpart. Throughout his exile, Orlyk also maintained close ties with the patriarch of Constantinople, who would come to the Mazepites’ aid several times.
Tellingly, Ukraine as a state is mentioned indirectly only once in Clause 2, which describes its borders: “As any state (the document uses the Polish term panstwo — Author) is composed of and asserted by the inviolable integrity of its borders, Little Russia, our fatherland, shall also have borders agreed in pacts with the Polish Kingdom and the Muscovite state.” Following the example of Khmelnytsky, the text proclaims the Sluch River as the border with Poland. However, the precise borderline with Muscovy is not mentioned, since it was a problematic issue because of Slobidska Ukraine, which was mostly populated by ethnic Ukrainians but remained under Russian jurisdiction. Clause 3 empowers the hetman to negotiate an alliance with the Crimean Khanate “because we always need a good- neighborly attitude on the part of the Crimean state.” This statement meant that if Ukraine wished to stay clear of Muscovy, this should be a permanent, rather than temporary, alliance.
2. QUESTIONS DEALING WITH THE ZAPOROZHIANS (CLAUSES 4 TO 5)
Since the Zaporozhian Cossacks comprised the overwhelming majority in Bendery, their interests were clearly reflected in Pacta et Constitutiones. Clause 4 deals with their main headache — the Russian presence in the lower Dnipro region. During the last decades of the 17th century the tsars had built a number of fortifications, mostly for defense against the Tatars, along the Dnipro and Samara rivers. The Ukrainians bitterly resented the fact that these forts had enabled the Russians to interfere in their internal affairs. So the Cossacks insisted that if “the Zaporozhian Army did not clear their lands and the Dnipro of Muscovite violence” during the next expedition, the hetman would have to try to persuade the Swedish king to talk the Russians into withdrawing their troops from these lands when he was signing a truce with the tsar.
The next clause calls for Cossack control over Trakhtemyriv, a town that had long served as a hospital and place for the old and infirm. Determined to retain the lower Dnipro region as their sanctuary, the Zaporozhians strove to take hold of several key towns in the area and obtain the hetman’s pledge to help them and prevent interference in their internal affairs. These clauses in fact granted the Zaporozhians autonomy, which other hetmans had refused to recognize.
3. QUESTIONS DEALING WITH THE HETMAN’S AUTHORITY (CLAUSES 6 TO 10)
The main theme of this part of the document begins with a rhetorical question: if there are all kinds of councils in autocratic countries and if even monarchs consult with their ministers, then why should the elected leaders not consult with such a free people as the Cossacks, all the more so as this was a common practice in the past? According to the authors of this article, problems arose when the hetmans came under the influence of autocratic rulers and established the arbitrary rule: “I want it this way, it is my order!” There is no doubt about the authors of these clauses: Cossack officers, who had long resented having been removed from the decision-making process in the Hetmanate and now had the chance to regain their political influence. In order to exert control over future hetmans, they demanded the introduction of an advisory law. In particular, they demanded that hetmans consult with general officers and colonels on all important matters, especially those concerning foreign affairs. In addition, every regiment was to choose “one solid, mature, sound-minded, and meritorious person.” It was suggested that these representatives take part in consultative sessions to be held three times a year. Politically, Clause 6 was the most important one in the constitution because it allowed Cossack officers to control the hetmans the way the Polish nobles had controlled their kings. There was some logic to this because the Cossack officers had opposed Mazepa’s autocratic ways, guided by the same motives with which the hetman had rejected the tsar’s absolutism.
Advisory law was by no means the last prerogative of the Cossack officers. Pacta et Constitutiones also forbade the hetmans to punish those who offended their honor: such cases were to be heard by a special tribunal of Cossack officers (Clause 7). In all matters concerning the army (this is a clear attempt of Cossack officers to draw a line between the public and private sectors), the hetman was to use appropriate army officials rather than his personal servants (Clause 8). Following the disputes over Mazepa’s wealth, Cossack officers were especially determined to separate the incomes of the army and the hetman. To achieve this, the document institutes the office of treasurer-general, to which only “a solid, meritorious, propertied, and bona fide person” could be elected (Clause 9). The hetman was denied access to the state coffers; he could only live off his own lands, which were intended especially for the holder of this office. Every regiment was also to elect two treasurers vested with similar powers. Therefore, both economically and politically these clauses radically restricted the hetman’s prerogatives.
4. SOCIOECONOMIC ABUSES IN THE HETMANATE (CLAUSES 10 TO 16)
While it is easy to trace the influence of the Zaporozhian Cossacks and officers in the earlier parts of the constitution, this section does not reflect the interests of any specific group of Ukrainian society. Indeed, despite the influence of the Cossack officers in Bendery, the constitution incorporated some articles that directly affected the interests of the Cossack elite. Perhaps these clauses were included with a propagandistic aim, but this is rather unlikely because there is no evidence that the articles were circulated. It is probable that the interests of the lower strata were defended by the Zaporozhians, most of whom came from these strata. Yet this does not explain why these clauses broach such questions as the corruption of officials and urban poverty. So we may suppose that these clauses reflected the authors’ desire to correct some of the Hetmanate’s most glaring shortcomings, even at the expense of their own corporate interests.
Clause 10 cautions the Cossack officers against abusing their offices to exploit Cossacks, peasants, and craftsmen. It was forbidden to buy positions because “all kinds of oppression and exploitation of poor people usually originate from power-thirsty bribers.” To check this practice, the hetman was obliged to make sure that all posts, especially those of colonels, were elective.
Concern about the lower strata of society also runs through Clauses 11, 12, and 14, according to which families of Cossacks who were away on campaigns, as well as widows and orphans, were exempt from paying taxes and carrying out various coercive tasks: for example, the clauses limited the onerous duty of peasants to transport army officials and also provided for measures to ease the tax burden for the poorest peasants. With due account of the extremely tense relations between the local nobility and towns in Ukraine and Eastern Europe as a whole, Clause 13 is surprising in that it focuses on urban poverty and suggests that “the metropolitan city of Kyiv and other Ukrainian towns” preserve their rights and privileges — in other words, it was upholding self- government in compliance with Magdeburg Law.
The last two clauses again suggest measures to ease the lot of the poor. Clause 15 stipulates that peasants who maintained the hetman’s cavalry and infantry regiments should be exempt from paying taxes, and the last, 16th, clause obliges the hetman to ensure that inductors and their factors do not levy excessively high taxes on market traders “because this does not allow a poor person even to show up at a fair.”
From the standpoint of the values in those days, Pacta et Constitutiones was full of the spirit of enlightenment and good intentions. This document recognizes the rights of Cossack officers, commoners, Zaporozhian Cossacks, and towns. It condemns absolutist trends in the hetman’s activities, establishes the principle of electivity, condemns corruption, and draws a line between the public and private sectors. The readiness of Cossack officers to combat abuses in the society in which they dominated was a good sign for the territorial elite. This readiness did not have many parallels in Eastern Europe at the time.
Yet, in the opinion of Orest Subtelny, an overseas member of Ukraine’s National Academy of Sciences, the analysis of the constitution also evokes certain skepticism. One can say that the authors of this document were prepared to part with the things they did not have. For example, the constitution radically restricts the hetman’s prerogatives, but a hetman in exile simply could not make use of many of these prerogatives. In some articles Cossack officers agree to refrain from corruption and the exploitation of peasants and Cossacks, but it was easy for them to opt for such actions because they owned nothing but the clothes they were wearing. The Zaporozhians were promised lands in the lower Dnipro region, but those lands were under Russian control. Thus, although the Mazepites’ intentions are praiseworthy, one should not jump to conclusions about whether the proposed measures were realistic and could be put into practice.
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It should be noted that, in addition to the famous Constitution of Pylyp Orlyk, the name of this prominent political figure, diplomat, and thinker is also linked to another important and fascinating document of a conceptual nature. This is the Political Memorial (as it was called in 1712, when it was being written), also known as The Code of Ukrainian Laws. This memorial, which asserts the national and political rights of Ukraine and its people, is a rare and unique monument of national historical and legal thought as far as the level of factual argumentation is concerned.
On the basis of a staggering number of carefully checked facts and historical events, Orlyk argues the idea of Ukraine’s inalienable right to political independence and sovereignty because, as the hetman maintains, since the days of Bohdan Khmelnytsky our country was a free and independent principality whose social strata freely elected hetmans who were to their liking. Orlyk stressed that “the solemn union treaty (not the “act of reunification,” but a union treaty — Author) that was concluded between Tsar Aleksei Mikhailovich, on the one hand, and Hetman Bohdan Khmelnytsky and the social estates of Ukraine, on the other, is the strongest and most convincing argument for Ukraine’s sovereignty. This treatise was created in 1654 and signed by authorized representatives. This solemn and detailed tract, called eternal, was supposed to establish peace, liberties, and order in Ukraine forever. This would have been exactly the case if the tsar had upheld it as honestly as the Cossacks had. They handed over their settlements to the Muscovite army and merged their troops with the tsar’s for the sake of the success of a common cause. But the tsarist generals took advantage of the nation’s credulity, seized a large number of our fortifications through cunning, and then began to rule the roost, as if they were masters of the entire country.”
Of special importance in The Code of Ukrainian Laws is the fact that this monument reveals the basic provisions of the treaty signed by Mazepa and Charles XII in 1709. Orlyk asserts that this document was chiefly aimed at liberating “oppressed Ukraine” from slavery. The exiled hetman recalls that, under the treaty, Ukraine is to be an independent state that Charles XII pledged to protect. The Swedish king also solemnly confirmed that “Ivan Mazepa, the legitimate prince of Ukraine, shall in no way be deprived of owning this principality until his death. The estates of Ukraine shall make use of these freedoms in accordance with their rights and ancient laws.”
Orlyk admitted that one of his strongest motives prompting him to write The Code of Ukrainian Laws was his desire to give an adequate response to the mendacious allegations of Peter I’s henchmen, who claimed that “Ukraine had never been independent and that it was His Tsarist Majesty’s victorious arms that had liberated it from the infidels’ yoke.” One can undoubtedly claim that the traditions laid by Orlyk’s Constitution of Bendery and his Code of Ukrainian Laws were further logically developed in subsequent documents of Ukrainian constitutionalism and state legal thought: the materials of the Cyril and Methodius Brotherhood, the works of Mykhailo Mikhnovsky and Viacheslav Lypynsky, the 4th Universal of the Central Rada, the 1918 Constitution of the Ukrainian National Republic, Pavlo Skoropadsky’s Laws on the Provisional State Order of Ukraine, and, naturally, the 1996 Constitution of Ukraine.
The Day ’s FACTFILE
The main stages of the Ukrainian state-law and constitutional process (from medieval times to the present day):
Ruskaia Pravda of Yaroslav the Wise (first half of the 11th century, also known as Yaroslav’s Justice and The Oldest Truth), the code of Kyivan Rus’ laws based on ancient case law.
The Lithuanian Statutes, the most well-known codes of feudal law in the Grand Duchy of Lithuania, which were also applicable to the incorporated Ukrainian lands. There were three basic editions: the Old Lithuanian Statute (1529), the Volhynian version (1566), and the Third Lithuanian Statute (1588).
The Constitution of Pylyp Orlyk (or the Constitution of Bendery) of 1710.
The Judicial Laws of the Little Russian People, a code of legal acts and norms applicable to Left-Bank Ukraine in the early 18th century, which were based on the acts of Magdeburg Law, common law, and judicial practice. They were drawn up between 1728 and 1744 during sessions of special codification commissions.
The Constitution of the Ukrainian National Republic. Adopted by the Central Rada on April 29, 1918. “Having restored its right to be the Ukrainian National Republic,” the document declares, “for the purpose of the better defense of its territory, freedoms, culture, and the well-being of its citizens, Ukraine has proclaimed itself and now is a sovereign and self-sufficient state dependent on no one.” Closely connected with this document in terms of content is the Constitution of the Western Ukrainian National Republic (ZUNR) dated Nov. 13, 1918.
The Constitutions of the Ukrainian SSR (1919, 1929, 1937, and 1978).
The Constitution of Ukraine adopted on June 28, 1996 (with amendments passed on Dec. 8, 2004).
For this overview of Pylyp Orlyk’s Constitution of Bendery the author consulted the works of Mykhailo Hrushevsky, Orest Subtelny, and Ivan Krypiakevych, as well as The Ukrainian Juridical Encyclopedia.
