THE NEW LAW COURTS
Judicial Procedure in the Olden Times--Defects and Abuses--Radical
Reform--The New System--Justices of the Peace and Monthly Sessions--The
Regular Tribunals--Court of Revision--Modification of the Original
Plan--How Does the System Work?--Rapid Acclimatisation--The Bench--The
Jury--Acquittal of Criminals Who Confess Their Crimes--Peasants,
Merchants, and Nobles as Jurymen--Independence and Political
Significance of the New Courts.
After serf-emancipation and local self-government, the subject which
demanded most urgently the attention of reformers was the judicial
organisation, which had sunk to a depth of inefficiency and corruption
difficult to describe.
In early times the dispensation of justice in Russia, as in other States
of a primitive type, had a thoroughly popular character. The State
was still in its infancy, and the duty of defending the person, the
property, and the rights of individuals lay, of necessity, chiefly on
the individuals themselves. Self-help formed the basis of the judicial
procedure, and the State merely assisted the individual to protect his
rights and to avenge himself on those who voluntarily infringed them.
By the rapid development of the Autocratic Power all this was changed.
Autocracy endeavoured to drive and regulate the social machine by
its own unaided force, and regarded with suspicion and jealousy all
spontaneous action in the people. The dispensation of justice was
accordingly appropriated by the central authority, absorbed into the
Administration, and withdrawn from public control. Themis retired
from the market-place, shut herself up in a dark room from which
the contending parties and the public gaze were rigorously excluded,
surrounded herself with secretaries and scribes who put the rights and
claims of the litigants into whatever form they thought proper, weighed
according to her own judgment the arguments presented to her by her
own servants, and came forth from her seclusion merely to present a
ready-made decision or to punish the accused whom she considered guilty.
This change, though perhaps to some extent necessary, was attended with
very bad consequences. Freed from the control of the contending parties
and of the public, the courts acted as uncontrolled human nature
generally does. Injustice, extortion, bribery, and corruption assumed
gigantic proportions, and against these evils the Government found no
better remedy than a system of complicated formalities and ingenious
checks. The judicial functionaries were hedged in by a multitude of
regulations, so numerous and complicated that it seemed impossible
for even the most unjust judge to swerve from the path of uprightness.
Explicit, minute rules were laid down for investigating facts and
weighing evidence; every scrap of evidence and every legal ground on
which the decision was based were committed to writing; every act in the
complicated process of coming to a decision was made the subject of a
formal document, and duly entered in various registers; every document
and register had to be signed and countersigned by various officials who
were supposed to control each other; every decision might be carried to
a higher court and made to pass a second time through the bureaucratic
machine. In a word, the legislature introduced a system of formal
written procedure of the most complicated kind, in the belief that by
this means mistakes and dishonesty would be rendered impossible.
It may be reasonably doubted whether this system of judicial
administration can anywhere give satisfactory results. It is everywhere
found by experience that in tribunals from which the healthy atmosphere
of publicity is excluded justice languishes, and a great many ugly
plants shoot up with wonderful vitality. Languid indifference, an
indiscriminating spirit of routine, and unblushing dishonesty invariably
creep in through the little chinks and crevices of the barrier raised
against them, and no method of hermetically sealing these chinks
and crevices has yet been invented. The attempt to close them up by
increasing the formalities and multiplying the courts of appeal and
revision merely adds to the tediousness of the procedure, and withdraws
the whole process still more completely from public control. At the
same time the absence of free discussion between the contending parties
renders the task of the judge enormously difficult. If the system is
to succeed at all, it must provide a body of able, intelligent,
thoroughly-trained jurists, and must place them beyond the reach of
bribery and other forms of corruption.
In Russia neither of these conditions was fulfilled. Instead of
endeavouring to create a body of well-trained jurists, the Government
went further and further in the direction of letting the judges be
chosen for a short period by popular election from among men who had
never received a juridical education, or a fair education of any kind;
whilst the place of judge was so poorly paid, and stood so low in public
estimation, that the temptations to dishonesty were difficult to resist.
The practice of choosing the judges by popular election was an attempt
to restore to the courts something of their old popular character; but
it did not succeed, for very obvious reasons. Popular election in a
judicial organisation is useful only when the courts are public and the
procedure simple; on the contrary, it is positively prejudicial when the
procedure is in writing and extremely complicated. And so it proved in
Russia. The elected judges, unprepared for their work, and liable to
be changed at short intervals, rarely acquired a knowledge of law
or procedure. They were for the most part poor, indolent landed
proprietors, who did little more than sign the decisions prepared for
them by the permanent officials. Even when a judge happened to have some
legal knowledge he found small scope for its application, for he rarely,
if ever, examined personally the materials out of which a decision
was to be elaborated. The whole of the preliminary work, which was in
reality the most important, was performed by minor officials under
the direction of the secretary of the court. In criminal cases, for
instance, the secretary examined the written evidence--all evidence
was taken down in writing--extracted what he considered the essential
points, arranged them as he thought proper, quoted the laws which ought
in his opinion to be applied, put all this into a report, and read the
report to the judges. Of course the judges, if they had no personal
interest in the decision, accepted the secretary's view of the case.
If they did not, all the preliminary work had to be done anew by
themselves--a task that few judges were able, and still fewer willing,
to perform. Thus the decision lay virtually in the hands of the
secretary and the minor officials, and in general neither the secretary
nor the minor officials were fit persons to have such power. There is
no need to detail here the ingenious expedients by which they increased
their meagre salaries, and how they generally contrived to extract money
from both parties.* Suffice it to say that in general the chancelleries
of the courts were dens of pettifogging rascality, and the habitual,
unblushing bribery had a negative as well as a positive effect. If a
person accused of some crime had no money wherewith to grease the palm
of the secretary he might remain in prison for years without being
brought to trial. A well-known Russian writer still living relates that
when visiting a prison in the province of Nizhni-Novgorod he found among
the inmates undergoing preliminary arrest two peasant women, who were
accused of setting fire to a hayrick to revenge themselves on a landed
proprietor, a crime for which the legal punishment was from four to
eight months' imprisonment. One of them had a son of seven years of age,
and the other a son of twelve, both of whom had been born in the
prison, and had lived there ever since among the criminals. Such a long
preliminary arrest caused no surprise or indignation among those who
heard of it, because it was quite a common occurrence. Every one knew
that bribes were taken not only by the secretary and his scribes, but
also by the judges, who were elected by the local Noblesse from its own
ranks.
* Old book-catalogues sometimes mention a play bearing the
significant title, "The Unheard-of Wonder; or, The Honest
Secretary" (Neslykhannoe Dyelo ili Tchestny Sekretar). I
have never seen this curious production, but I have no doubt
that it referred to the peculiarities of the old judicial
procedure.
With regard to the scale of punishments, notwithstanding some
humanitarian principles in the legislation, they were very severe, and
corporal punishment played amongst them a disagreeably prominent part.
Capital sentences were abolished as early as 1753-54, but castigation
with the knout, which often ended fatally, continued until 1845, when
it was replaced by flogging in the civil administration, though retained
for the military and for insubordinate convicts. For the non-privileged
classes the knout or the lash supplemented nearly all punishments of
a criminal kind. When a man was condemned, for example, to penal
servitude, he received publicly from thirty to one hundred lashes,
and was then branded on the forehead and cheeks with the letters K. A.
T.--the first three letters of katorzhnik (convict). If he appealed he
received his lashes all the same, and if his appeal was rejected by
the Senate he received some more castigation for having troubled
unnecessarily the higher judicial authorities. For the military
and insubordinate convicts there was a barbarous punishment called
Spitsruten, to the extent of 5,000 or 6,000 blows, which often ended in
the death of the unfortunate.
The use of torture in criminal investigations was formally abolished in
1801, but if we may believe the testimony of a public prosecutor, it was
occasionally used in Moscow as late as 1850.
The defects and abuses of the old system were so flagrant that they
became known even to the Emperor Nicholas I., and caused him momentary
indignation, but he never attempted seriously to root them out. In 1844,
for example, he heard of some gross abuses in a tribunal not far from
the Winter Palace, and ordered an investigation. Baron Korff, to whom
the investigation was entrusted, brought to light what he called "a
yawning abyss of all possible horrors, which have been accumulating for
years," and his Majesty, after reading the report, wrote upon it with
his own hand: "Unheard-of disgrace! The carelessness of the authority
immediately concerned is incredible and unpardonable. I feel ashamed
and sad that such disorder could exist almost under my eyes and remain
unknown to me." Unfortunately the outburst of Imperial indignation did
not last long enough to produce any desirable consequences. The only
result was that one member of the tribunal was dismissed from the
service, and the Governor-General of St. Petersburg had to resign, but
the latter subsequently received an honorary reward, and the
Emperor remarked that he was himself to blame for having kept the
Governor-General so long at his post.
When his Majesty's habitual optimism happened to be troubled by
incidents of this sort he probably consoled himself with remembering
that he had ordered some preparatory work, by which the administration
of justice might be improved, and this work was being diligently carried
out in the legislative section of his own chancery by Count Bludof, one
of the ablest Russian lawyers of his time. Unfortunately the existing
state of things was not thereby improved, because the preparatory work
was not of the kind that was wanted. On the assumption that any evil
which might exist could be removed by improving the laws, Count Bludof
devoted his efforts almost entirely to codification. In reality what was
required was to change radically the organisation of the courts and the
procedure, and above all to let in on their proceedings the cleansing
atmosphere of publicity. This the Emperor Nicholas could not understand,
and if he had understood it he could not have brought himself to
adopt the appropriate remedies, because radical reform and control of
officials by public opinion were his two pet bugbears.
Very different was his son and successor, Alexander II., in the first
years of his reign. In his accession manifesto a prominent place was
given to his desire that justice and mercy should reign in the courts
of law. Referring to these words in a later manifesto, he explained his
wishes more fully as "the desire to establish in Russia expeditious,
just, merciful, impartial courts of justice for all our subjects; to
raise the judicial authority; to give it the proper independence, and in
general to implant in the people that respect for the law which ought
to be the constant guide of all and every one from the highest to the
lowest." These were not mere vain words. Peremptory orders had been
given that the great work should be undertaken without delay, and
when the Emancipation question was being discussed in the Provincial
Committees, the Council of State examined the question of judicial
reform "from the historical, the theoretical, and the practical point of
view," and came to the conclusion that the existing organisation must be
completely transformed.
The commission appointed to consider this important matter filed a
lengthy indictment against the existing system, and pointed out no less
than twenty-five radical defects. To remove these it proposed that the
judicial organisation should be completely separated from all other
branches of the Administration; that the most ample publicity,
with trial by jury in criminal cases, should be introduced into the
tribunals; that Justice of Peace Courts should be created for petty
affairs; and that the procedure in the ordinary courts should be greatly
simplified.
These fundamental principles were published by Imperial command on
September 29th, 1862--a year and a half after the publication of the
Emancipation Manifesto--and on November 20th, 1864, the new legislation
founded on these principles received the Imperial sanction.
Like most institutions erected on a tabula rasa, the new system is at
once simple and symmetrical. As a whole, the architecture of the edifice
is decidedly French, but here and there we may detect unmistakable
symptoms of English influence. It is not, however, a servile copy of any
older edifice; and it may be fairly said that, though every individual
part has been fashioned according to a foreign model, the whole has a
certain originality.
The lower part of the building in its original form was composed of two
great sections, distinct from, and independent of, each other--on the
one hand the Justice of Peace Courts, and on the other the Regular
Tribunals. Both sections contained an Ordinary Court and a Court of
Appeal. The upper part of the building, covering equally both sections,
was the Senate as Supreme Court of Revision (Cour de Cassation).
The distinctive character of the two independent sections may be
detected at a glance. The function of the Justice of Peace Courts is
to decide petty cases that involve no abstruse legal principles, and to
settle, if possible by conciliation, those petty conflicts and disputes
which arise naturally in the relations of everyday life; the function of
the Regular Tribunals is to take cognisance of those graver affairs in
which the fortune or honour of individuals or families is more or less
implicated, or in which the public tranquillity is seriously endangered.
The two kinds of courts were organised in accordance with these intended
functions. In the former the procedure is simple and conciliatory, the
jurisdiction is confined to cases of little importance, and the judges
were at first chosen by popular election, generally from among the local
inhabitants. In the latter there is more of "the pomp and majesty of
the law." The procedure is more strict and formal, the jurisdiction is
unlimited with regard to the importance of the cases, and the judges are
trained jurists nominated by the Emperor.
The Justice of Peace Courts received jurisdiction over all obligations
and civil injuries in which the sum at stake was not more than 500
roubles--about 50 pounds--and all criminal affairs in which the legal
punishment did not exceed 300 roubles--about 30 pounds--or one year of
punishment. When any one had a complaint to make, he might go to the
Justice of the Peace (Mirovoi Sudya) and explain the affair orally,
or in writing, without observing any formalities; and if the complaint
seemed well founded, the Justice at once fixed a day for hearing the
case, and gave the other party notice to appear at the appointed time.
When the time appointed arrived, the affair was discussed publicly and
orally, either by the parties themselves, or by any representatives
whom they might appoint. If it was a civil suit, the Justice began by
proposing to the parties to terminate it at once by a compromise, and
indicated what he considered a fair arrangement. Many affairs were
terminated in this simple way. If, however, either of the parties
refused to consent to a compromise, the matter was fully discussed, and
the Justice gave a formal written decision, containing the grounds
on which it was based. In criminal cases the amount of punishment was
always determined by reference to a special Criminal Code.
If the sum at issue exceeded thirty roubles--about 3 pounds--or if the
punishment exceeded a fine of fifteen roubles--about 30s.--or three days
of arrest, an appeal might be made to the Assembly of Justices (Mirovoi
Syezd). This is a point in which English rather than French institutions
were taken as a model. According to the French system, all appeals from
a Juge de Paix are made to the "Tribunal d'Arrondissement," and
the Justice of Peace Courts are thereby subordinated to the Regular
Tribunals. According to the English system, certain cases may be carried
on appeal from the Justice of the Peace to the Quarter Sessions. This
latter principle was adopted and greatly developed by the Russian
legislation. The Monthly Sessions, composed of all the Justices of
the District (uyezd), considered appeals against the decisions of the
individual Justices. The procedure was simple and informal, as in the
lower court, but an assistant of the Procureur was always present. This
functionary gave his opinion in some civil and in all criminal cases
immediately after the debate, and the Court took his opinion into
consideration in framing its judgment.
In the other great section of the judicial organisation--the Regular
Tribunals--there are likewise Ordinary Courts and Courts of Appeal,
called respectively "Tribunaux d'Arrondissement" (Okruzhniye Sudy)
and "Palais de Justice" (Sudebniya Palaty). Each Ordinary Court has
jurisdiction over several Districts (uyezdy), and the jurisdiction of
each Court of Appeals comprehends several Provinces. All civil cases are
subject to appeal, however small the sum at stake may be, but criminal
cases are decided FINALLY by the lower court with the aid of a jury.
Thus in criminal affairs the "Palais de Justice" is not at all a court
of appeal, but as no regular criminal prosecution can be raised without
its formal consent, it controls in some measure the action of the lower
courts.
As the general reader cannot be supposed to take an interest in the
details of civil procedure, I shall merely say on this subject that in
both sections of the Regular Tribunals the cases are always tried by
at least three judges, the sittings are public, and oral debates
by officially recognised advocates form an important part of the
proceedings. I venture, however, to speak a little more at length
regarding the change which has been made in the criminal procedure--a
subject that is less technical and more interesting for the uninitiated.
Down to the time of the recent judicial reforms the procedure in
criminal cases was secret and inquisitorial. The accused had little
opportunity of defending himself, but, on the other hand, the State
took endless formal precautions against condemning the innocent. The
practical consequence of this system was that an innocent man might
remain for years in prison until the authorities convinced themselves of
his innocence, whilst a clever criminal might indefinitely postpone his
condemnation.
In studying the history of criminal procedure in foreign countries,
those who were entrusted with the task of preparing projects of reform
found that nearly every country of Europe had experienced the evils from
which Russia was suffering, and that one country after another had come
to the conviction that the most efficient means of removing these evils
was to replace the inquisitorial by litigious procedure, to give a fair
field and no favour to the prosecutor and the accused, and allow them to
fight out their battle with whatever legal weapons they might think fit.
Further, it was discovered that, according to the most competent foreign
authorities, it was well in this modern form of judicial combat to leave
the decision to a jury of respectable citizens. The steps which Russia
had to take were thus clearly marked out by the experience of other
nations, and it was decided that they should be taken at once. The
organs for the prosecution of supposed criminals were carefully
separated from the judges on the one hand, and from the police on the
other; oral discussions between the Public Prosecutor and the prisoner's
counsel, together with oral examination and cross-questioning of
witnesses, were introduced into the procedure; and the jury was made an
essential factor in criminal trials.
When a case, whether civil or criminal, has been decided in the Regular
Tribunals, there is no possibility of appeal in the strict sense of the
term, but an application may be made for a revision of the case on the
ground of technical informality. To use the French terms, there cannot
be appel, but there may be cassation. If there has been any omission
or transgression of essential legal formalities, or if the Court has
overstepped the bounds of its legal authority, the injured party may
make an application to have the case revised and tried again.* This is
not, according to French juridical conceptions, an appeal. The Court of
Revision** (Cour de Cassation) does not enter into the material facts
of the case, but merely decides the question as to whether the essential
formalities have been duly observed, and as to whether the law has been
properly interpreted and applied; and if it be found on examination that
there is some ground for invalidating the decision, it does not decide
the case. According to the new Russian system, the sole Court of
Revision is the Senate.
* This is the procedure referred to by Karl Karl'itch, vide
supra, p 37.
** I am quite aware that the term "Court of Revision" is
equivocal, but I have no better term to propose, and I hope
the above explanations will prevent confusion.
The Senate thus forms the regulator of the whole judicial system, but
its action is merely regulative. It takes cognisance only of what is
presented to it, and supplies to the machine no motive power. If any
of the lower courts should work slowly or cease to work altogether, the
Senate might remain ignorant of the fact, and certainly could take
no official notice of it. It was considered necessary, therefore, to
supplement the spontaneous vitality of the lower courts, and for this
purpose was created a special centralised judicial administration, at
the head of which was placed the Minister of Justice. The Minister is
"Procureur-General," and has subordinates in all the courts. The primary
function of this administration is to preserve the force of the law,
to detect and repair all infractions of judicial order, to defend
the interests of the State and of those persons who are officially
recognised as incapable of taking charge of their own affairs, and to
act in criminal matters as Public Prosecutor.
Viewed as a whole, and from a little distance, this grand judicial
edifice seems perfectly symmetrical, but a closer and more minute
inspection brings to light unmistakable indications of a change of plan
during the process of construction. Though the work lasted only about
half-a-dozen years, the style of the upper differs from the style of
the lower parts, precisely as in those Gothic cathedrals which grew up
slowly during the course of centuries. And there is nothing here that
need surprise us, for a considerable change took place in the opinions
of the official world during that short period. The reform was conceived
at a time of uncritical enthusiasm for advanced liberal ideas, of
boundless faith in the dictates of science, of unquestioning reliance
on public spirit, public control, and public honesty--a time in which it
was believed that the public would spontaneously do everything necessary
for the common weal, if it were only freed from the administrative
swaddling-clothes in which it had been hitherto bound. Still smarting
from the severe regime of Nicholas, men thought more about protecting
the rights of the individual than about preserving public order, and
under the influence of the socialistic ideas in vogue malefactors were
regarded as the unfortunate, involuntary victims of social inequality
and injustice.
Towards the end of the period in question all this had begun to change.
Many were beginning to perceive that liberty might easily turn to
license, that the spontaneous public energy was largely expended in
empty words, and that a certain amount of hierarchical discipline was
necessary in order to keep the public administration in motion. It was
found, therefore, in 1864, that it was impossible to carry out to their
ultimate consequences the general principles laid down and published in
1862. Even in those parts of the legislation which were actually put
in force, it was found necessary to make modifications in an indirect,
covert way. Of these, one may be cited by way of illustration. In
1860 criminal inquiries were taken out of the hands of the police and
transferred to Juges d'instruction (Sudebniye Sledovateli), who were
almost entirely independent of the Public Prosecutor, and could not
be removed unless condemned for some legal transgression by a Regular
Tribunal. This reform created at first much rejoicing and great
expectations, because it raised a barrier against the tyranny of the
police and against the arbitrary power of the higher officials. But
very soon the defects of the system became apparent. Many Juges
d'instruction, feeling themselves independent, and knowing that they
would not be prosecuted except for some flagrantly illegal act, gave way
to indolence, and spent their time in inactivity.* In such cases it
was always difficult, and sometimes impossible, to procure a
condemnation--for indolence must assume gigantic proportions in order
to become a crime--and the minister had to adopt the practice of
appointing, without Imperial confirmation, temporary Juges d'instruction
whom he could remove at pleasure.
* A flagrant case of this kind came under my own
observation.
It is unnecessary, however, to enter into these theoretical defects. The
important question for the general public is: How do the institutions
work in the local conditions in which they are placed?
This is a question which has an interest not only for Russians, but
for all students of social science, for it tends to throw light on
the difficult subject as to how far institutions may be successfully
transplanted to a foreign soil. Many thinkers hold, and not without
reason, that no institution can work well unless it is the natural
product of previous historical development. Now we have here an
opportunity of testing this theory by experience; we have even what
Bacon terms an experimentum crucis. This new judicial system is an
artificial creation constructed in accordance with principles laid down
by foreign jurists. All that the elaborators of the project said about
developing old institutions was mere talk. In reality they made a tabula
rasa of the existing organisation. If the introduction of public oral
procedure and trial by jury was a return to ancient customs, it was a
return to what had been long since forgotten by all except antiquarian
specialists, and no serious attempt was made to develop what actually
existed. One form, indeed, of oral procedure had been preserved in the
Code, but it had fallen completely into disuse, and seems to have been
overlooked by the elaborators of the new system.*
* I refer to the so-called Sud po forme established by an
ukaz of Peter the Great, in 1723. I was much astonished
when I accidentally stumbled upon it in the Code.
Having in general little confidence in institutions which spring
ready-made from the brains of autocratic legislators, I expected to find
that this new judicial organisation, which looks so well on paper, was
well-nigh worthless in reality. Observation, however, has not confirmed
my pessimistic expectations. On the contrary, I have found that these
new institutions, though they have not yet had time to strike deep root,
and are very far from being perfect even in the human sense of the term,
work on the whole remarkably well, and have already conferred immense
benefit on the country.
In the course of a few years the Justice of Peace Courts, which may
perhaps be called the newest part of the new institutions, became
thoroughly acclimatised, as if they had existed for generations. As
soon as they were opened they became extremely popular. In Moscow the
authorities had calculated that under the new system the number of cases
would be more than doubled, and that on an average each justice would
have nearly a thousand cases brought before him in the course of the
year. The reality far exceeded their expectations: each justice had on
an average 2,800 cases. In St. Petersburg and the other large towns the
amount of work which the justices had to get through was equally great.
To understand the popularity of the Justice of Peace Courts, we must
know something of the old police courts which they supplanted. The
nobles, the military, and the small officials had always looked on
the police with contempt, because their position secured them against
interference, and the merchants acquired a similar immunity by
submitting to blackmail, which often took the form of a fixed subsidy;
but the lower classes in town and country stood, in fear of the humblest
policeman, and did not dare to complain of him to his superiors. If
two workmen brought their differences before a police court, instead of
getting their case decided on grounds of equity, they were pretty sure
to get scolded in language unfit for ears polite, or to receive still
worse treatment. Even among the higher officers of the force many became
famous for their brutality. A Gorodnitchi of the town of Tcherkassy, for
example, made for himself in this respect a considerable reputation. If
any humble individual ventured to offer an objection to him, he had at
once recourse to his fists, and any reference to the law put him into a
state of frenzy. "The town," he was wont to say on such occasions, "has
been entrusted to me by his Majesty, and you dare to talk to me of the
law? There is the law for you!"--the remark being accompanied with a
blow. Another officer of the same type, long resident in Kief, had a
somewhat different method of maintaining order. He habitually drove
about the town with a Cossack escort, and when any one of the lower
classes had the misfortune to displease him, he ordered one of his
Cossacks to apply a little corporal punishment on the spot without any
legal formalities.
In the Justice of Peace Courts things were conducted in a very different
style. The justice, always scrupulously polite without distinction
of persons, listened patiently to the complaint, tried to arrange the
affairs amicably, and when his efforts failed, gave his decision at
once according to law and common-sense. No attention was paid to rank
or social position. A general who would not attend to the police
regulations was fined like an ordinary workingman, and in a dispute
between a great dignitary and a man of the people the two were treated
in precisely the same way. No wonder such courts became popular among
the masses; and their popularity was increased when it became known
that the affairs were disposed of expeditiously, without unnecessary
formalities and without any bribes or blackmail. Many peasants regarded
the justice as they had been wont to regard kindly proprietors of the
old patriarchal type, and brought their griefs and sorrows to him in
the hope that he would somehow alleviate them. Often they submitted
most intimate domestic and matrimonial concerns of which no court could
possibly take cognisance, and sometimes they demanded the fulfilment of
contracts which were in flagrant contradiction not only with the written
law, but also with ordinary morality.*
* Many curious instances of this have come to my knowledge,
but they are of such a kind that they cannot be quoted in a
work intended for the general public.
Of course, the courts were not entirely without blemishes. In the
matter, for example, of making no distinction of persons some of the
early justices, in seeking to avoid Scylla, came dangerously near to
Charybdis. Imagining that their mission was to eradicate the conceptions
and habits which had been created and fostered by serfage, they
sometimes used their authority for giving lessons in philanthropic
liberalism, and took a malicious delight in wounding the
susceptibilities, and occasionally even the material interests, of those
whom they regarded as enemies to the good cause. In disputes between
master and servant, or between employer and workmen, the justice of this
type considered it his duty to resist the tyranny of capital, and was
apt to forget his official character of judge in his assumed character
of social reformer. Happily these aberrations on the part of the
justices are already things of the past, but they helped to bring about
a reaction, as we shall see presently.
The extreme popularity of the Justice of Peace Courts did not last very
long. Their history resembled that of the Zemstvo and many other
new institutions in Russia--at first, enthusiasm and inordinate
expectations; then consciousness of defects and practical
inconveniences; and, lastly, in an influential section of the public,
the pessimism of shattered illusions, accompanied by the adoption of
a reactionary policy on the part of the Government. The discontent
appeared first among the so-called privileged classes. To people who had
all their lives enjoyed great social consideration it seemed monstrous
that they should be treated exactly in the same way as the muzhik; and
when a general who was accustomed to be addressed as "Your Excellency,"
was accused of using abusive language to his cook, and found himself
seated on the same bench with the menial, he naturally supposed that the
end of all things was at hand; or perhaps a great civil official, who
was accustomed to regard the police as created merely for the lower
classes, suddenly found himself, to his inexpressible astonishment,
fined for a contravention of police regulations! Naturally the justices
were accused of dangerous revolutionary tendencies, and when they
happened to bring to light some injustice on the part of the tchinovnik
they were severely condemned for undermining the prestige of the
Imperial authority.
For a time the accusations provoked merely a smile or a caustic remark
among the Liberals, but about the middle of the eighties criticisms
began to appear even in the Liberal Press. No very grave allegations
were made, but defects in the system and miscarriages of justice were
put forward and severely commented upon. Occasionally it happened that a
justice was indolent, or that at the Sessions in a small country town
it was impossible to form a quorum on the appointed day. Overlooking the
good features of the institution and the good services rendered by it,
the critics began to propose partial reorganisation in the sense of
greater control by central authorities. It was suggested, for example,
that the President of Sessions should be appointed by the Government,
that the justices should be subordinated to the Regular Tribunals, and
that the principle of election by the Zemstvo should be abolished.
These complaints were not at all unwelcome to the Government, because it
had embarked on a reactionary policy, and in 1889 it suddenly granted to
the critics a great deal more than they desired. In the rural districts
of Central Russia the justices were replaced by the rural supervisors,
of whom I have spoken in a previous chapter, and the part of their
functions which could not well be entrusted to those new officials was
transferred to judges of the Regular Courts. In some of the larger
towns and in the rural districts of outlying provinces the justices
were preserved, but instead of being elected by the Zemstvo they were
nominated by the Government.
The regular Tribunals likewise became acclimatised in an incredibly
short space of time. The first judges were not by any means profound
jurists, and were too often deficient in that dispassionate calmness
which we are accustomed to associate with the Bench; but they were at
least honest, educated men, and generally possessed a fair knowledge of
the law. Their defects were due to the fact that the demand for trained
jurists far exceeded the supply, and the Government was forced to
nominate men who under ordinary circumstances would never have thought
of presenting themselves as candidates. At the beginning of 1870, in
the 32 "Tribunaux d'Arrondissement" which then existed, there were 227
judges, of whom 44 had never received a juridical education. Even the
presidents had not all passed through a school of law. Of course the
courts could not become thoroughly effective until all the judges
were men who had received a good special education and had a practical
acquaintance with judicial matters. This has now been effected, and the
present generation of judges are better prepared and more capable than
their predecessors. On the score of probity I have never heard any
complaints.
Of all the judicial innovations, perhaps the most interesting is the
jury.
At the time of the reforms the introduction of the jury into the
judicial organisation awakened among the educated classes a great amount
of sentimental enthusiasm. The institution had the reputation of being
"liberal," and was known to be approved of by the latest authorities in
criminal jurisprudence. This was sufficient to insure it a favourable
reception, and to excite most exaggerated expectations as to its
beneficent influence. Ten years of experience somewhat cooled this
enthusiasm, and voices might be heard declaring that the introduction
of the jury was a mistake. The Russian people, it was held, was not yet
ripe for such an institution, and numerous anecdotes were related
in support of this opinion. One jury, for instance, was said to have
returned a verdict of "NOT guilty with extenuating circumstances"; and
another, being unable to come to a decision, was reported to have cast
lots before an Icon, and to have given a verdict in accordance with the
result! Besides this, juries often gave a verdict of "not guilty" when
the accused made a full and formal confession to the court.
How far the comic anecdotes are true I do not undertake to decide, but I
venture to assert that such incidents, if they really occur, are too
few to form the basis of a serious indictment. The fact, however, that
juries often acquit prisoners who openly confess their crime is beyond
all possibility of doubt.
To most Englishmen this fact will probably seem sufficient to prove that
the introduction of the institution was at least premature, but before
adopting this sweeping conclusion it will be well to examine the
phenomenon a little more closely in connection with Russian criminal
procedure as a whole.
In England the Bench is allowed very great latitude in fixing the amount
of punishment. The jury can therefore confine themselves to the
question of fact and leave to the judge the appreciation of extenuating
circumstances. In Russia the position of the jury is different. The
Russian criminal law fixes minutely the punishment for each category of
crimes, and leaves almost no latitude to the judge. The jury know
that if they give a verdict of guilty, the prisoner will inevitably be
punished according to the Code. Now the Code, borrowed in great part
from foreign legislation, is founded on conceptions very different
from those of the Russian people, and in many cases it attaches heavy
penalties to acts which the ordinary Russian is wont to regard as mere
peccadilloes, or positively justifiable. Even in those matters in
which the Code is in harmony with the popular morality, there are many
exceptional cases in which summum jus is really summa injuria. Suppose,
for instance--as actually happened in a case which came under my
notice--that a fire breaks out in a village, and that the Village Elder,
driven out of patience by the apathy and laziness of some of his young
fellow-villagers, oversteps the limits of his authority as defined by
law, and accompanies his reproaches and exhortations with a few
lusty blows. Surely such a man is not guilty of a very heinous
crime--certainly he is not in the opinion of the peasantry--and yet if
he be prosecuted and convicted he inevitably falls into the jaws of an
article of the Code which condemns to transportation for a long term of
years.
In such cases what is the jury to do? In England they might safely give
a verdict of guilty, and leave the judge to take into consideration all
the extenuating circumstances; but in Russia they cannot act in this
way, for they know that the judge must condemn the prisoner according
to the Criminal Code. There remains, therefore, but one issue out of the
difficulty--a verdict of acquittal; and Russian juries--to their honour
be it said--generally adopt this alternative. Thus the jury, in those
cases in which it is most severely condemned, provides a corrective for
the injustice of the criminal legislation. Occasionally, it is true,
they go a little too far in this direction and arrogate to themselves
a right of pardon, but cases of that kind are, I believe, very rare.
I know of only one well-authenticated instance. The prisoner had been
proved guilty of a serious crime, but it happened to be the eve of a
great religious festival, and the jury thought that in pardoning the
prisoner and giving a verdict of acquittal they would be acting as good
Christians!
The legislation regards, of course, this practice as an abuse, and has
tried to prevent it by concealing as far as possible from the jury the
punishment that awaits the accused if he be condemned. For this
purpose it forbids the counsel for the prisoner to inform the jury what
punishment is prescribed by the Code for the crime in question. This
ingenious device not only fails in its object, but has sometimes a
directly opposite effect. Not knowing what the punishment will be, and
fearing that it may be out of all proportion to the crime, the jury
sometimes acquit a criminal whom they would condemn if they knew
what punishment would be inflicted. And when a jury is, as it were,
entrapped, and finds that the punishment is more severe than it
supposed, it can take its revenge in the succeeding cases. I know at
least of one instance of this kind. A jury convicted a prisoner of
an offence which it regarded as very trivial, but which in reality
entailed, according to the Code, seven years of penal servitude! So
surprised and frightened were the jurymen by this unexpected consequence
of their verdict, that they obstinately acquitted, in the face of the
most convincing evidence, all the other prisoners brought before them.
The most famous case of acquital when there was no conceivable doubt as
to the guilt of the accused was that of Vera Zasulitch, who shot
General Trepof, Prefect of St. Petersburg; but the circumstances were
so peculiar that they will hardly support any general conclusion.
I happened to be present, and watched the proceedings closely. Vera
Zasulitch, a young woman who had for some time taken part in the
revolutionary movement, heard that a young revolutionist called
Bogoliubof, imprisoned in St. Petersburg, had been flogged by orders of
General Trepof,* and though she did not know the victim personally she
determined to avenge the indignity to which he had been subjected.
With this intention she appeared at the Prefecture, ostensibly for the
purpose of presenting a petition, and when she found herself in the
presence of the Prefect she fired a revolver at him, wounding him
seriously, but not mortally. At the trial the main facts were not
disputed, and yet the jury brought in a verdict of not guilty. This
unexpected result was due, I believe, partly to a desire to make a
little political demonstration, and partly to a strong suspicion that
the prison authorities, in carrying out the Prefect's orders, had acted
in summary fashion without observing the tedious formalities prescribed
by the law. Certainly one of the prison officials, when under
cross-examination, made on me, and on the public generally, the
impression that he was prevaricating in order to shield his superiors.
* The reason alleged by General Trepof for giving these
orders was that, during a visit of inspection, Bogoliubof
had behaved disrespectfully towards him, and had thereby
committed an infraction of prison discipline, for which the
law prescribes the use of corporal punishment.
At the close of the proceedings, which were dexterously conducted by
Counsel in such a way that, as the Emperor is reported to have said,
it was not Vera Zasulitch but General Trepof who was being tried,
an eminent Russian journalist rushed up to me in a state of intense
excitement and said: "Is not this a great day for the cause of political
freedom in Russia?" I could not agree with him and I ventured to predict
that neither of us would ever again see a political case tried publicly
by jury in an ordinary court. The prediction has proved true. Since that
time political offenders have been tried by special tribunals without
a jury or dealt with "by administrative procedure," that is to say,
inquisitorially, without any regular trial.
The defects, real and supposed, of the present system are commonly
attributed to the predominance of the peasant element in the juries; and
this opinion, founded on a priori reasoning, seems to many too evident
to require verification. The peasantry are in many respects the most
ignorant class, and therefore, it is assumed, they are least capable of
weighing conflicting evidence. Plain and conclusive as this reasoning
seems, it is in my opinion erroneous. The peasants have, indeed,
little education, but they have a large fund of plain common-sense; and
experience proves--so at least I have been informed by many judges and
Public Prosecutors--that, as a general rule, a peasant jury is more to
be relied on than a jury drawn from the educated classes. It must be
admitted, however, that a peasant jury has certain peculiarities, and it
is not a little interesting to observe what those peculiarities are.
In the first place, a jury composed of peasants generally acts in a
somewhat patriarchal fashion, and does not always confine its attention
to the evidence and the arguments adduced at the trial. The members form
their judgment as men do in the affairs of ordinary life, and are sure
to be greatly influenced by any jurors who happen to be personally
acquainted with the prisoner. If several of the jurors know him to be a
bad character, he has little chance of being acquitted, even though
the chain of evidence against him should not be quite perfect. Peasants
cannot understand why a notorious scoundrel should be allowed to escape
because a little link in the evidence is wanting, or because some little
judicial formality has not been duly observed. Indeed, their ideas of
criminal procedure in general are extremely primitive. The Communal
method of dealing with malefactors is best in accordance with their
conceptions of well-regulated society. The Mir may, by a Communal decree
and without a formal trial, have any of its unruly members transported
to Siberia! This summary, informal mode of procedure seems to the
peasants very satisfactory. They are at a loss to understand how a
notorious culprit is allowed to "buy" an advocate to defend him, and are
very insensible to the bought advocate's eloquence. To many of them,
if I may trust to conversations which I have casually overheard in and
around the courts, "buying an advocate" seems to be very much the same
kind of operation as bribing a judge.
In the second place, the peasants, when acting as jurors, are very
severe with regard to crimes against property. In this they are
instigated by the simple instinct of self-defence. They are, in fact,
continually at the mercy of thieves and malefactors. They live in wooden
houses easily set on fire; their stables might be broken into by a
child; at night the village is guarded merely by an old man, who cannot
be in more than one place at a time, and in the one place he is apt to
go to sleep; a police officer is rarely seen, except when a crime has
actually been committed. A few clever horse-stealers may ruin many
families, and a fire-raiser, in his desire to avenge himself on an
enemy, may reduce a whole village to destitution. These and similar
considerations tend to make the peasants very severe against theft,
robbery, and arson; and a Public Prosecutor who desires to obtain a
conviction against a man charged with one of these crimes endeavours to
have a jury in which the peasant class is largely represented.
With regard to fraud in its various forms, the peasants are much more
lenient, probably because the line of demarcation between honest and
dishonest dealing in commercial affairs is not very clearly drawn in
their minds. Many, for instance, are convinced that trade cannot be
successfully carried on without a little clever cheating; and hence
cheating is regarded as a venial offence. If the money fraudulently
acquired be restored to the owner, the crime is supposed to be
completely condoned. Thus when a Volost Elder appropriates the public
money, and succeeds in repaying it before the case comes on for trial,
he is invariably acquitted--and sometimes even re-elected!
An equal leniency is generally shown by peasants towards crimes against
the person, such as assaults, cruelty, and the like. This fact is easily
explained. Refined sensitiveness and a keen sympathy with physical
suffering are the result of a certain amount of material well-being,
together with a certain degree of intellectual and moral culture, and
neither of these is yet possessed by the Russian peasantry. Any one who
has had opportunities of frequently observing the peasants must have
been often astonished by their indifference to suffering, both in their
own persons and in the person of others. In a drunken brawl heads may be
broken and wounds inflicted without any interference on the part of the
spectators. If no fatal consequences ensue, the peasant does not think
it necessary that official notice should be taken of the incident,
and certainly does not consider that any of the combatants should be
transported to Siberia. Slight wounds heal of their own accord without
any serious loss to the sufferer, and therefore the man who inflicts
them is not to be put on the same level as the criminal who reduces
a family to beggary. This reasoning may, perhaps, shock people of
sensitive nerves, but it undeniably contains a certain amount of plain,
homely wisdom.
Of all kinds of cruelty, that which is perhaps most revolting to
civilised mankind is the cruelty of the husband towards his wife; but
to this crime the Russian peasant shows especial leniency. He is still
influenced by the old conceptions of the husband's rights, and by that
low estimate of the weaker sex which finds expression in many popular
proverbs.
The peculiar moral conceptions reflected in these facts are
evidently the result of external conditions, and not of any recondite
ethnographical peculiarities, for they are not found among the
merchants, who are nearly all of peasant origin. On the contrary, the
merchants are more severe with regard to crimes against the person
than with regard to crimes against property. The explanation of this
is simple. The merchant has means of protecting his property, and if
he should happen to suffer by theft, his fortune is not likely to
be seriously affected by it. On the other hand, he has a certain
sensitiveness with regard to such crimes as assault; for though he has
commonly not much more intellectual and moral culture than the peasant,
he is accustomed to comfort and material well-being, which naturally
develop sensitiveness regarding physical pain.
Towards fraud the merchants are quite as lenient as the peasantry. This
may, perhaps, seem strange, for fraudulent practices are sure in the
long run to undermine trade. The Russian merchants, however, have not
yet arrived at this conception, and can point to many of the richest
members of their class as a proof that fraudulent practices often create
enormous fortunes. Long ago Samuel Butler justly remarked that we damn
the sins we have no mind to.
As the external conditions have little or no influence on the religious
conceptions of the merchants and the peasantry, the two classes are
equally severe with regard to those acts which are regarded as crimes
against the Deity. Hence acquittals in cases of sacrilege, blasphemy,
and the like never occur unless the jury is in part composed of educated
men.
In their decisions, as in their ordinary modes of thought, the jurors
drawn from the educated classes are little, if at all, affected by
theological conceptions, but they are sometimes influenced in a not less
unfortunate way by conceptions of a different order. It may happen,
for instance, that a juror who had passed through one of the higher
educational establishments has his own peculiar theory about the value
of evidence, or he is profoundly impressed with the idea that it is
better that a thousand guilty men should escape than that one
innocent man should be punished, or he is imbued with sentimental
pseudo-philanthropy, or he is convinced that punishments are useless
because they neither cure the delinquent nor deter others from crime; in
a word, he may have in some way or other lost his mental balance in
that moral chaos through which Russia is at present passing. In England,
France, or Germany such an individual would have little influence on
his fellow-jurymen, for in these countries there are very few people who
allow new paradoxical ideas to overturn their traditional notions and
obscure their common-sense; but in Russia, where even the elementary
moral conceptions are singularly unstable and pliable, a man of this
type may succeed in leading a jury. More than once I have heard men
boast of having induced their fellow-jurymen to acquit every prisoner
brought before them, not because they believed the prisoners to be
innocent or the evidence to be insufficient, but because all punishments
are useless and barbarous.
One word in conclusion regarding the independence and political
significance of the new courts. When the question of judicial reform
was first publicly raised many people hoped that the new courts would
receive complete autonomy and real independence, and would thus form a
foundation for political liberty. These hopes, like so many illusions of
that strange time, have not been realised. A large measure of autonomy
and independence was indeed granted in theory. The law laid down the
principle that no judge could be removed unless convicted of a definite
crime, and that the courts should present candidates for all the vacant
places on the Bench; but these and similar rights have little practical
significance. If the Minister cannot depose a judge, he can deprive him
of all possibility of receiving promotion, and he can easily force him
in an indirect way to send in his resignation; and if the courts have
still the right to present candidates for vacant places, the Minister
has also this right, and can, of course, always secure the nomination
of his own candidate. By the influence of that centripetal force which
exists in all centralised bureaucracies, the Procureurs have become more
important personages than the Presidents of the courts.
From the political point of view the question of the independence of
the Courts has not yet acquired much practical importance, because
the Government can always have political offenders tried by a special
tribunal or can send them to Siberia for an indefinite term of years
without regular trial by the "administrative procedure" to which I have
above referred.