The Jury’s Out on Juries in Russia. Part 4
The lawyers, courts and juries of late-Tsarist Russia had two opponents of their ideal of the rule of law. One was the autocracy, which wanted to rule by decree, and the other was the revolutionaries, who wanted to abolish “bourgeois” justice and rule by diktat. The party of law, though, was supported by the new class of increasingly wealthy industrialists who wanted a society based on law. But is this a feasible aspiration when the government is under constant attack by terrorists?
The introduction of juries to Russia in 1866 had been part of an attempt to democratise the administration of justice. But this was in perpetual tension with the fact that the other two branches of government, the legislative and the executive, had remained completely under the control of the autocracy. This was a situation which could not continue indefinitely. The outbreak of terrorism in the late 1860s forced the government to act. The “Tsar-liberator” turned reactionary.
painted by Ilya Repin
The first response of the autocracy to terrorism was to remove political cases from jury courts, and give them to military courts, which sat in camera. But that did not stop the terrorists. On 1 March 1881 (old style calendar) they succeeded in killing Alexander II, at the sixth attempt. The man who who had introduced juries to Russia, reformed the law and freed the serfs had his feet blown off by a bomb thrown at him in the street at the spot where the Church of the Spilt Blood stands today, in memoriam, on the Griboyedov Canal in St Petersburg.
The murdered Tsar was succeeded by his son, Alexander III, an unintelligent reactionary of massive physical strength, a certain amount of earthy charm, but precious little else. His most trusted advisor was the arch-conservative Ober-Procurator of the Orthodox Church, Konstantin Pobedonostsev (see Part 2). Pobedonostsev’s view of law was as sophisticated as you might expect of a former professor of the subject at Moscow University who had written the standard work on Russian civil law.
Though an inspiring teacher who had fired the legal imagination of many students, including Anatoli Koni, the judge in the Vera Zasulich case (see part 3), Pobedonostsev was a gloomy character who believed that only the unremitting use of force could preserve Tsarism in a changing and uncertain world. Reform was implicit treason against the tripod on which the state rested: autocracy, orthodoxy and nationalism. “It is impossible to live and work in Russia without knowing her,” he once said. “But are there many of us who know her? Russia is an infinite world of diversity, a world homeless and patient, completely dark: and in this darkness wolves howl.”
Pobedonostsev would have agreed with Count von Benckendorff’s prescription (see part 2) that laws are made for subordinates and not the authorities. The rule of law was an alien concept. At his prompting, Alexander ordered a brutal crack-down on the revolutionaries. For twenty years, Russia was largely free of terrorism, but at the price of making it even more lethal, and more widely accepted as the only feasible response to autocracy, when it resurfaced in the reign of Alexander’s honest but weak son, Nicholas II.
But despite Pobedonostsev, Russia was changing. Between 1881 and 1914, the country’s economy grew almost as fast as that of the United States. Literacy spread rapidly, and the legal profession expanded exponentially. Juries were central to this.
The best account we have of the postreform courts from a Western observer is by Sir Donald Mackenzie Wallace, a Scot with a wide legal education, including a Doctorate of Laws from Heidelberg University, who alternated the Foreign Editor’s chair at The Times with extensive travel in Russia. He studied the new court system in depth—he sat through the Vera Zasulich trial, for example— and concluded that it “works remarkably well” and was “extremely popular”.
Ordinary criminal juries were genuinely free. “The peasants have little education, but they have a large fund of common sense,” Wallace wrote. “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.” They tended to judge property crimes harshly, like theft and arson, the latter possibly because most of them lived in wooden houses. But they treated fraud leniently because “many are convinced that trade cannot be successfully carried on without a little clever cheating.”
Merchant juries in the larger towns took a similar view of fraud, but they differed from peasant ones on crimes of violence, being unwilling to tolerate the rough ways of the mass of the people, who saw little wrong in the physical resolution of disputes, including those between husband and wife. The opposite was the case with crimes of sacrilege and blasphemy, which peasant juries took seriously, while those composed of educated people treated as trivial. Though there were problems, in general the pessimists had been confounded by the new system.
International comparisons were not unfavourable either. Corruption was rife in the American courts the late nineteenth century, and racial segregation was the law there. Legal England was only half-way out of the Dickensian torpor and absurdity which was so effectively satirised in Bleak House. Continental justice was more bureaucratic than Russian, though their courts did have better trained staff. Overall, Russia had little to be ashamed of.
But there was one major gap in the Russian system. This was where executive autocracy collided with legal democratism (if I may put it like that): namely in political cases.
Within six months of coming to the throne, Alexander III signed a law entitled “Measurers for the Preservation of State Order and Public Tranquillity” which went much further than the ad hoc measures introduced in the wake of the Zasulich verdict.
The new law provided for any crimes that the authorities chose to be tried by courts martial, or in camera, and for people to be arrested merely on suspicion of belonging to unlawful associations. It allowed searches of dwellings without any specific suspicion. The law was supposed to be in force for three years, while the country quietened down politically after the assassination of Alexander II, but these measures remained in force until the fall of the House of Romanov. The general approach of the autocracy can be inferred from the fact that until 1905 the public use the word “constitution” was a punishable offence.
That said, there were two aspects of the reformed legal system which gave the regime reasonable cause for complaint— at least, they are not tolerated in modern legal systems. The first was that Defence advocates were at liberty to adduce any argument in support of their clients, however far from the facts of the alleged crime. The result was a tremendous amount of political speechifying in court. Things were said there which would have landed the speaker in Siberia if uttered outside. Not only did the judge have no power to curtail this, newspapers were free to publish a full record of everything said in court, enabling them to by-pass the otherwise strict censorship.
The second problem was that juries were never told, and due to the complexity of the Criminal Code rarely knew, the level of punishment applicable to the crime they were trying. But everyone was aware that Russia had draconian laws. So, unless the offence was a particularly flagrant one, most juries preferred to acquit rather than see a person dealt with brutally for a minor offence, or for one committed in strongly mitigating circumstances.
Taken together, these problems enabled Pobedonostsev to echo widespread conservative sentiment when he said, “Russia was strong thanks to autocracy… Then new judicial institutions were opened, new talkingshops of lawyers, thanks to whom the most frightful crimes, unquestioned murders and other grave evil deeds, remain unpunished. Finally freedom was granted to the press, the worst talking-shop of all, [which] sows the seeds of discord and dissatisfaction among peaceful and honest people, enflaming passions and inciting people to the most frightful forms of lawlessness.”
But the popularity of the new legal system amongst the mass of the people prevented the authorities from tampering with it in non-political cases. There the law was developing strongly, and Russian jurists began to acquire a high reputation internationally. The Bar Associations which were provided for in the 1864 Act proved a successful innovation as they created a real esprit de corps amongst lawyers, as well as providing a focus for pressure on the authorities in matters of legal administration.
The law attracted a high calibre of entrant, possibly because it was one arena where the middle class could make its views heard publicly without risking exile, or worse. In the universities, academic lawyers achieved considerable eminence, the best-known of them in the West being Sir Paul Vinogradoff who resigned his Chair at Moscow University in 1901 rather than accept police spies in his lecture theatres. He moved to Oxford where he became a celebrated scholar of medieval English law.
Finally, it should not be forgotten that the first attempt to formulate the Laws of War was on a Russian initiative. The original Hague conference (predecessor to the Geneva Conventions) was called by Tsar Nicholas II at the suggestion of his Foreign Minister, Count Muravyov, in 1899 and resulted in a general prohibition against, among other things, dum-dum bullets, chemical warfare and bombing from balloons.
As Europe marched towards the war which was to destroy the Romanov dynasty, Russian law, with juries at its heart, could be proud of the progress it had made in a comparatively short time. 1914 was only the 50th anniversary of the great reform. Half a century is not, in any society, a long time in which to establish a completely new legal tradition, especially amongst a people as diverse, scattered, poorly educated and culturally isolated as the Russians largely were in the mid-nineteenth century. Not only that, much of this progress had been made in the face of resolute opposition from the state.
On one major issue, the views of the autocracy coincided with an important strand of populist opinion: anti- Semitism. The first anti-Jewish pogroms erupted in April 1881, when extreme right-wing groups blamed the murder of Alexander II (ironically a liberal they despised) on the Jews—quite erroneously, in fact. A year later, the first of a series of ever-tightening restrictions on Jews was imposed. They were banned from living in the countryside or small towns, even within the pale of settlement. Quotas were placed in universities, within institutions like the Army medical services, and in cities like Moscow and Kiev. In 1893 criminal sanctions were imposed on Jews who tried to “Christianise” their names. By the early twentieth century pogroms carried out by the Black Hundreds were a regular feature of life in the Ukraine, provoking mass emigration to Germany and the United States.
Both Alexander III and Nicholas II were openly anti-Semitic, as were many of their senior ministers, like Pobedonostsev. In 1913, a Ukrainian Jew called Menachem Beillis was accused of the ritual murder of a Christian child in a case that caused a world-wide scandal. The best advocates of the Russian Bar, most of them non-Jews, defended Beillis. An all-Christian jury acquitted him of the patently trumped-up charges, but not before the Tsar had sent the judge a gold watch, hoping he could arrange a guilty verdict.
As in apartheid South Africa, Russia’s majority of unprejudiced jurists had to face the problem of enforcing laws they detested. Worse was the fact that, starting in the late 1880s, Jews were prevented from becoming judges, prosecutors, investigating magistrates and officials of the Ministry of Justice. Later on, admission to the Bar was restricted. Finally, in 1912 entry to the legal profession was completely closed to Jews, even those who had changed their names.
The forces of reason and toleration could not survive in an atmosphere as polarised as Tsarist Russia was becoming. In spite of all this, pre-Revolutionary Russia had an excellent court system which was quickly putting roots down deep into society in large part due to the popularity and perceived fairness of the jury system. But this excluded political cases and in Russia politics was increasingly polarised.
It was partly for that reason that so many of the men who made the February revolution were lawyers—Kerensky being only the best known. One of their first acts of the Provisional Government, in March 1917 was to abolish all racial and religious discrimination.
But this honourable tradition, of which Russia can be justifiably proud, was destroyed by the Bolsheviks. On 24 November 1917 Decree No 1 on the Courts of the Council of Peoples Commissars abolished all existing judicial institutions and independent bodies.
We have an account by the eminent lawyer, Boris Gerschun, of the meeting at which the most important of these independent bodies, the General Assembly of the Petrograd Bar, debated whether to accept the Bolsheviks’ offer of entry into a new organisation under Soviet control, or to disband. Troops had already taken control of their building, and were poised to evict them from it if they did not decide as the Bolshevik demanded.
“When, in the General Assembly, which was attended by all the lawyers present in Petrograd at that time, I pronounced the words, ‘The last hour of the guild has arrived’, I saw many colleagues, especially the older ones, were sobbing silently. But we could not commit an act of treason against the principles of the Russian guild of lawyers by giving up the most holy traditions of independence and freedom of the guild. It was better to dissolve the guild. An honest death is preferable to a disgraceful life.”
The terrorists had won.
The final part of this series will tell the story of public involvement with justice in Soviet times, and then describe how juries were resurrected after 1991.