OPEN COURTS.
Offenses like those of A---- (some twelve years old), in which a great
offense was proved, yet justice was defeated more than half, in spite
of the imperial wishes, led the council of state into considering how
far it would be well to replace the secret commissions by regular
courts of law.
The public benefits of such a change were obvious. Justice would be
done, with little or no respect to persons; and the Emperor would be
relieved from his direct and personal action in the punishment of
crime. But what the public gained the circles round the prince were
not unlikely to lose; and these court circles raised a cry against
this project of reform. "The obstacles," they said, "were vast. Except
in Moscow and St. Petersburg, no lawyers could be found; the code was
cumbrous and imperfect; and the public was unprepared for such a
change. If it was difficult to find judges, it was impossible to find
jurors." Listening to every one, and weighing facts, the Emperor held
his own. He got reports drawn up; he won his opponents over one by
one; and in 1865 the council of state was ready with a volume of legal
reform, as vast and noble as his plan for emancipating serfs.
Courts of justice were to be open in every province, and all these
courts of justice were to be public courts. Trained judges were to
preside. The system of written evidence was abolished. A prisoner was
to be charged in a formal act; he was to see the witnesses face to
face; he was to have the right, in person or by his counsel, of
questioning those witnesses on points of fact. A jury was to decide
the question of guilt or innocence. The judges were to be paid by the
crown, and were on no pretext whatever to receive a fee. A juror was
to be a man of means--a trader, a well-off peasant, an officer of not
less than five hundred rubles a year. A majority of jurors was to
decide.
The Imperial code was brought into harmony with these new methods of
procedure. Capital punishment was abolished for civil crimes; Siberia
was exchanged for the club and the axe; Archangel and the Caucasus
were substituted for the mines. The Tartar punishments of beating,
flogging, running the ranks, were stopped at once, and every branch of
criminal treatment was brought up--in theory, at least--to the level
of England and the United States.
Term by term this new system of trial by judge and jury, instead of by
secret commissions, is now being introduced into all the larger towns.
I have watched the working of this new system in several provinces;
but give an account, by preference, of a trial in a new court, in a
new district, under circumstances which put the virtues of a jury to
some local strain.
Dining one evening with a friend in Rostof, on the Lower Don, I find
myself seated next to President Gravy, to whom I am introduced by our
common host as an English barrister and justice of the peace. The
Assize is sitting, and as a curious case of child-exposure is coming
on next day, about the facts of which provincial feeling is much
excited, President Gravy offers me a seat in his court.
This court is a new court, opened in the present year; a movable
court, consisting of a president and two assistant judges; sitting in
turn at Taganrog, Berdiansk, and Rostof, towns between which there is
a good deal of rivalry in business, often degenerating into local
strife. The female accused of exposing her infant comes from a Tartar
village near Taganrog; and as no good thing was ever known to come
from the district of Taganrog, the voice of Rostof has condemned this
female, still untried, to a felon's doom.
Next morning we are in court by ten o'clock--a span-new chamber, on
which the paint is not yet dry, with a portrait of the Imperial
law-reformer hung above the judgment-seat. A long hall is parted into
three portions by a dais and two silken cords. The judges, with the
clerk and public prosecutor, sit on the dais, at a table; and the
citizens of Rostof occupy the benches on either wing. In front of the
dais sit the jurors, the short-hand writer (a young lady), the
advocates, and witnesses; and near these latter stands the accused
woman, attended by a civil officer of the court. Nothing in the room
suggests the idea of feudal state and barbaric power. President Gravy
wears no wig, no robe--nothing but a golden chain and the pattern
civilian's coat. No halberts follow him, no mace and crown are borne
before him. He enters by the common door. A priest in his robes of
office stands beside a book and cross; he is the only man in costume,
as the advocates wear neither wig nor gown. No soldier is seen; and no
policeman except the officer in charge of the accused. There is no
dock; the prisoner stands or sits as she is placed, her back against
the wall. If violence is feared, the judges order in a couple of
soldiers, who stand on either side the prisoner holding their naked
swords; but this precaution is seldom used. An open gallery is filled
with persons who come and go all day, without disturbing the court
below.
President Gravy, the senior judge, is a man of forty-five. The son of
a captain of gendarmerie in Odessa, he took by choice to the
profession of advocate, and after three years' practice in the courts
of St. Petersburg, he was sent to the new Azof circuit. His assistant
judges are younger men.
President Gravy opens his court; the priest asks a blessing; the
jurors are selected from a panel; the prisoner is told to stand forth;
and the indictment is read by the clerk. A keen desire to see the
culprit and to hear the details of her crime has filled the benches
with a better class than commonly attends the court, and many of the
Rostof ladies flutter in the gayest of morning robes. The case is one
to excite the female heart.
Anna Kovalenka, eighteen years of age, and living, when at home, in a
village on the Sea of Azof, is tall, elastic, dark, with ruddy
complexion, and braided hair bound up in a crimson scarf. Some Tartar
blood is in her veins, and the young woman is the ideal portrait of a
Bokhara bandit's wife. A motherly old creature stands by her side--an
aunt, her mother being long since dead. Her father is a peasant, badly
off, with five girls; this Anna eldest of the five.
Her case is, that she had a lover, that she bore a child, that she
concealed the birth, and that her infant died. In her defense, it is
alleged, according to the manners of her country, that her lover was a
man of her own village, not a stranger; one of those governing points
which, on the Sea of Azof, make a young woman's amours right or wrong.
So far, it is assumed, no fault is fairly to be charged. Her child was
born and died; the facts are not disputed; but the defendants urge, in
explanation, that she was very young in years; that her couching was
very hard; that milk-fever set in, with loss of blood and wandering of
the brain; that the young mother was helpless, that the infant was
neglected unconsciously, and that it died.
Very few persons in the court appear inclined to take this view; but
those who take it feel that the lover of this girl is far more guilty
than the girl herself; and they ask each other why the seducer is not
standing at her side to answer for his life. His name is known; he is
even supposed to be in court. Gospodin Lebedeff, the public
prosecutor, has done his best to include him in the criminal charge;
but he is foiled by the woman's love and wit. By the Imperial code,
the fellow can not be touched unless she names him as the father of
her child; and all Lebedeff's appeals and menaces are thrown away upon
her, this heroine of a Tartar village baffling the veteran lawyer's
arts with a steadiness worthy of a better cause and a nobler man.
The first witness called is a peasant woman from the village in which
Anna Kovalenka lives. She is not sworn in the English way, the court
having been put, as it were, under sacred obligations by the priest;
but the bench instructs her as to the nature of evidence, and enjoins
her to speak no word that is not true. She says, in few and simple
words, she found the dead body; she carried it into Anna's cabin; the
young woman admitted that the child was hers; and, on further
questions, that she had concealed the birth. She gives her evidence
quietly in a breathless court, her neighbor standing near her all the
while, and the judge assisting her by questions now and then. The
audience sighs when she stands down; her evidence being full enough to
send the prisoner to Siberia for her natural life.
The second witness is a doctor--bland, and fat, and scientific--the
witness on whose evidence the defense will lie. A quickened curiosity
is felt as the fat and fatherly man, with big blue spectacles and
kindly aspect, rises, bows to the bench, and enters into a long and
delicate report on the maladies under which females suffer in and
after the throes of labor, when the regular functions of mind and body
have been deranged by a sudden call upon the powers reserved by nature
for the sustenance of infant life. A buzz of talk on the ladies' bench
is speedily put down by a tinkle of President Gravy's bell. The judges
put minute and searching questions to this witness; but they make no
notes of what he says in answer; the general purpose of which is to
show that the first medical evidence picked up by the police was
defective; that a woman in the situation of Anna, poor, neglected,
inexperienced, might conceal her child without intending to do it
harm, and might cause it to die of cold without being morally guilty
of its death. Two or three questions are put to him by Lebedeff, and
then the kindly, fat old gentleman wipes his spectacles and drops
behind.
Lebedeff deals in a lenient spirit with the case. The facts, he says
(in effect), are strong, and tell their own tale. This woman bears a
child; she conceals the birth; this concealment is a crime. She puts
her child away in a secret place; her child is found dead--dead of
hunger and neglect. Who can doubt that she exposed and killed this
child in order to rid herself at once of her burden and her shame?
"The crime of child-murder is so common in our villages," he
concludes, "that it cries to heaven against us. Let all good men
combine to put it down, by a rigorous execution of the law."
Gospodin Tseborenko, a young advocate from Taganrog, sent over
specially to conduct the defense, replies by a brief examination of
the facts; contending that his client is a girl of good character, who
has never had a lover beyond her village, and is not likely to have
committed a crime against nature. He suggests that her child may have
been dead at the birth--that in her pain and loneliness, not knowing
what she was about, and never dreaming about the Code, she concealed
the dead body from her father's eyes. Admitting that infant murder is
the besetting sin of villagers in the south of Russia, he contends
that the children put away are only such as the villagers consider
things of shame--that is to say, the offspring of their women by
strangers and men of rank.
President Gravy rings his bell--the court is all alert--and, after a
brief presentment of the leading points to the jury, who on their side
listen with grave attention to every word, he puts three several
queries into writing:
I. Whether in their opinion Anna Kovalenka exposed her child with a
view to kill it?
II. Whether, if she did not in their opinion expose it with a view to
kill it, she willfully concealed the birth?
III. Whether, if she either knowingly exposed and killed her child, or
willfully concealed the birth, there were any circumstances in the
case which call for mitigation of the penalties provided by the penal
code?
The sheet of paper on which he writes these queries is signed by the
three judges, and handed over to the foreman, who takes it and retires
with his brethren of the jury to find as they shall see fit.
While the trial has been proceeding, Anna Kovalenka has been looking
on with patient unconcern, neither bold nor timid, but with a look of
resignation singular to watch. Only once she kindled into spirit; that
was when the peasant woman was describing how she found the body of
her child. She smiled a little when her advocate was speaking--only a
faint and vanishing smile. Lebedeff seemed to strike her as something
sacred; and she listened to his not unkindly speech as she might have
listened to a sermon by her village priest.
In twenty minutes the jury comes into court with their finding written
by the foreman on the sheet of paper given to him by the judge.
President Gravy rings his bell, and bids the foreman read his answer
to the first query.
"No!" says the foreman, in a grave, loud voice. The audience starts,
for this is the capital charge.
To the second query, "No!"
"That is enough," says the judge; and, turning to the woman, he tells
her in a tender voice that she has been tried by her country and
acquitted, that she is now a free woman, and may go and sit down among
her friends and neighbors.
Now for the first time she melts a little; shrinks behind the
policeman; snatches up the corner of her gown; and steadying herself
in a moment, wipes her eyes, kisses her aunt, and creeps away by a
private door.
Every body in this court has done his duty well, the jurors best of
all; for these twelve men, who never saw an open court in their lives
until the current year, have found a verdict of acquittal in
accordance with the facts, but in the teeth of local prejudice, bent
on sending the woman from Taganrog to the mines for life.
What schools for liberty and tolerance have been opened in these
courts of law!