THE “BENDER CONSTITUTION”

On 5 April 1710 in Bender, before the Starshyna_f Hordienko’s Zaporozhians, and the delegates of the Zaporozhians at Oleshki, Pylyp Orlyk was elected Hetman. It was not the first time that a Hetman had been chosen while another, Skoropadskyi, was already installed.

Modeled on the pacta conventa_f agreements which the Polish szlachta concluded with its elected kings, the Ukrainian document —grandiloquently titled Pacta et Constitutiones Legum Liberata- tumque Exersitus Zaporoviensis—consisted of 16 articles, very diverse in scope and significance, which dealt with the practice of politics rather than its principles. Nonetheless, implicit in these stipulations were the political views and values not only of the Mazepist emigres but of many of their like-minded compatriots who remained in Ukraine. Despite the fact that the document was formulated by a small group of dissidents abroad, it was not meant to be simply an exercise in wishful thinking. At the point the Pacta et Constitutiones were concluded, preparations were already in progress for another campaign against the Tsar. Therefore, the “Bender Constitution” was a good indication of the changes the Mazepists hoped to effect if and when they returned to their home­land.

The Pacta et Constitutiones begins with a brief, cyclical view of the history of the “famous and ancient Cossack nation.” At the outset this people was so mighty that it even threatened the “East­ern Kingdom,” i.e., Byzantium, but, because of its sins, it fell under Polish domination.

A number of historians have commented that the articles seem to have been compiled without any logical arrangement. Butacloser examination of the document indicates that the 16 points break down neatly into four thematic categories.

I. Issues of Concern to Ukraine in General (articles 1-3).

The first article affirmed that Orthodoxy, for the sake of which Khmelnytskyi had accepted Moscow’s protection—again the point was reiterated—was to be the dominant religion of the land. No other faiths, Judaism in particular, were to be tolerated. The desire to break with Moscow was underlined by the recommendation that, in order to raise the prestige of the Kievan Metropolitan and to eliminate Muscovite influence, the Ukrainians should again accept the ecclesiastical authority of the Patriarch of Constantin­ople, “for it was from there that they received their faith.” Ap­parently, the recent subordination (1686) of the Kievan Metropoli­tan to the Patriarch of Moscow still rankled the Ukrainians, es­pecially the clergy with whom Orlyk was so well acquainted. It was, therefore, no accident that throughout his career in exile, Orlyk would maintain close contacts with the Patriarch of Con­stantinople and that the latter would come to the aid of the Ma- zepists on several occasions.

Interestingly enough, the only reference to Ukraine in terms of stateh∞d, and it is an indirect reference at that, appeared in the second article which discussed Ukraine’s borders: “Just as every state (the Polish term panstwo was used) is preserved and con­firmed through the sanctity of its borders, therefore let Little Rus­sia, our fatherland, be confirmed in its borders with the Polish Commonwealth and with Muscovy.”³⁸ On the basis of the prece­dent set by Khmelnytskyi, the Sluch River was declared to be the border with the Poles.

II. Issues of Concern to the Zaporozhians (articles 4-5).

Because the Zaporozhians were in the overriding majority in Ben­der, their interests were well represented in the Pacta et Consti- tutiones. Article 4 addressed their major concern—the Russian presence on the lower Dnieper.⁴⁰ During the late 17th century, the Tsars built a series of strongpoints along the Dnieper and Samara Rivers, primarily for purposes of defense against the Tatars. To the great irritation of the Zaporozhians, these forts also allowed the Russians to interfere in their affairs. Therefore, the Zaporozhians insisted that if, in the oncoming campaign, their lands were not “freed and cleared of Muscovite oppression,” the Hetman must attempt to convince the Swedish King, in case the latter signed a peace treaty with the Tsar, to effect a Russian evacuation of these lands. In the following article, the Zaporozhians were granted con­trol of Terekhtymyriv, a town which they traditionally used as a hospital and place of recuperation and retirement. Intent on keep­ing the lower Dnieper as Iheirexclusivepreserve, the Zaporozhians also received a few key towns in the area as well as the Hetman’s commitment to help them keep out interlopers. In effect, these articles granted the Zaporozhians the autonomy which other Het­mans had been loath to concede.

III. Issues Pertaining to the Hetmaris Authority (articles 6-10).

A rhetorical question introduced the central issue in this section: if consultations are held regularly in autocratic states and if even autocratic rulers avail themselves of the advice of their ministers, why should a free people like the Cossacks not hold consultations with those chosen leaders, especially since this was the custom in the past? According to the authors of this article, the problem arose when Hetmans fell under the influence of autocratic rulers and began to act in the spirit of the phrase, “Since I wish it to be so, let it be so.”⁴¹ There can be little doubt who the authors of these articles were; the heneralna Starshyna_f long resentful of being excluded from the decision-making process in the Hetmanate, now had its chance to regain political influence. In order to control future Hetmans it pressed for the right of consultation.

The starshynaⁱs prerogatives did not end with the right of con­sultation. The Pacta et Constitutionesalso forbade the Hetmans to punish those who insulted their honor, stipulating that such cases must be referred to special tribunals of the Starshyna (article 7). In all matters concerning the affairs of the Host—here the attempt of the Starshyna to draw clear distinctions between public and private sectors is evident—the Hetman was to utilize only the appropriate officials of the Host and not his personal servants (article 8). After the controversy surrounding Mazepa’s fortune, the Starshyna was especially intent on distinguishing between the Host’s and the Hetman’s incomes. For this purpose, the elective office of hene- ralnyi podskarbia was established to which only men who were “notable, conscionable and propertied” could be chosen (article 9). The Hetman was to have no access to public funds and was to live only from the lands which had been set aside for his office. Each regiment was also to ch∞se two podskarbia whose duties would be analogous to that of the heneralnyi podskarbia. Thus, both in eco­nomic and political terms these articles drastically narrowed the Hetman’s prerogatives.

IV. Social and Economic A buses in the Hetmanate (articles 10-16).

Article 10 admonished the Starshyna not to use their offices to exploit Cossacks, peasants and craftsmen and it forbade the “cor­rupt practice” of buying offices since, “the worst oppression and extortion comes from those who make these self-serving pur­chases.” ⁴² To avert such practices, the Hetman was enjoined to see to it that all offices were elective, especially those of the colonels. Concern for the lower strata of society was expressed in articles 11, 12 and 14 which excluded the families of Cossacks on campaign, widows and orphans from taxes and from the performance of various duties; limited the peasants’ onerous obligation of provid­ing transportation for the Host’s officials; and Urgedthepassageof measures that would lighten the tax burden of the p∞rest peasants. In view of the fact that in Ukraine, as in all of Eastern Europe, the tension between the local nobility and the towns was intense, article 13 was most surprising for it took into account the declining fortunes of the towns and it proposed that, “the capital city of Kiev and the other Ukrainian towns” retain their rights and privileges, that is, continue to govern themselves according to Magdeburg law.⁴³ The final two articles again proposed means for alleviating the plight of the poor.

In terms of the values of the times, the Pacta et Constitutiones was an enlightened and well-intentioned document. It acknowl­edged the rights of the Starshyna_f of the rank-and-file, of the Zapo- rozhians, and of the towns. It rejected the absolutist tendencies of the Hetman, affirmed the electoral principle, condemned corrup­tion and drew distinctions between the public and private realms. The willingness of the Starshyna to address abuses in the society it dominated was a mark of candor for a territorial elite—a willing­ness that had few parallels in contemporary Eastern Europe.

But it is also possible to view the “constitution” with a touch of skepticism. One may argue that the authors of the document con­ceded those things which they did not possess. For example, the “constitution” sharply curtailed the Hetman’s prerogatives, but a Hetman who was in exile was not in a position to exercise many of these prerogatives; in several articles the Starshyna agreed to refrain from corrupt practices and the exploitation of peasants and Cos­sacks, but since they possessed little more than the clothes on their backs, such concessions could easily be made; the Zaporozhians were promised the lands on the lower Dnieper, but these were under Russian control. Thus, while the intentions of the Mazepists were praiseworthy, one must reserve judgment as to the extent to which their proposed measures would or could actually have been implemented.