* The amount expended for these objects in 1897, the latest yearfor which I have statistical data, was about a million and a halfof roubles, or, roughly speaking, 150,000 pounds, distributed underthe following heads:—1. Agricultural tuition41,100 pounds.2. Experimental stations, museums, etc 19,8003. Scientific agriculturists 17,4004. Agricultural industries 26,7005. Improving breeds of horses and cattle 45,300———-150,300 pounds.
If you ask a zealous member of the Zemstvo why it has not done more he will probably tell you that it is because its activity has been constantly restricted and counteracted by the Government. The Assemblies were obliged to accept as presidents the Marshals of Noblesse, many of whom were men of antiquated ideas and retrograde principles. At every turn the more enlightened, more active members found themselves opposed, thwarted, and finally checkmated by the Imperial officials. When a laudable attempt was made to tax trade and industry more equitably the scheme was vetoed, and consequently the mercantile class, sure of being always taxed at a ridiculously low maximum, have lost all interest in the proceedings. Even with regard to the rating of landed and house property a low limit is imposed by the Government, because it is afraid that if the rates were raised much it would not be able to collect the heavy Imperial taxation. The uncontrolled publicity which was at first enjoyed by the Assemblies was afterwards curtailed by the bureaucracy. Under such restrictions all free, vigorous action became impossible, and the institutions failed to effect what was reasonably anticipated.
All this is true in a certain sense, but it is not the whole truth. If we examine some of the definite charges brought against the institution we shall understand better its real character.
The most common complaint made against it is that it has enormously increased the rates. On that point there is no possibility of dispute. At first its expenditure in the thirty-four provinces in which it existed was under six millions of roubles; in two years (1868) it had jumped up to fifteen millions; in 1875 it was nearly twenty-eight millions, in 1885 over forty-three millions, and at the end of the century it had attained the respectable figure of 95,800,000 roubles. As each province had the right of taxing itself, the increase varied greatly in different provinces. In Smolensk, for example, it was only about thirty per cent., whilst in Samara it was 436, and in Viatka, where the peasant element predominates, no less than 1,262 per cent.! In order to meet this increase, the rates on land rose from under ten millions in 1868 to over forty-seven millions in 1900. No wonder that the landowners who find it difficult to work their estates at a profit should complain!
Though this increase is disagreeable to the rate-payers, it does not follow that it is excessive. In all countries rates and local taxation are on the increase, and it is in the backward countries that they increase most rapidly. In France, for example, the average yearly increase has been 2.7 per cent., while in Austria it has been 5.59. In Russia it ought to have been more than in Austria, whereas it has been, in the provinces with Zemstvo institutions, only about 4 per cent. In comparison with the Imperial taxation the local does not seem excessive when compared with other countries. In England and Prussia, for instance, the State taxation as compared with the local is as a hundred to fifty-four and fifty-one, whilst in Russia it is as a hundred to sixteen.* A reduction in the taxation as a whole would certainly contribute to the material welfare of the rural population, but it is desirable that it should be made in the Imperial taxes rather than in the rates, because the latter may be regarded as something akin to productive investments, whilst the proceeds of the former are expended largely on objects which have little or nothing to do with the wants of the common people. In speaking thus I am assuming that the local expenditure is made judiciously, and this is a matter on which, I am bound to confess, there is by no means unanimity of opinion.
* These figures are taken from the best availableauthorities, chiefly Schwanebach and Scalon, but I am notprepared to guarantee their accuracy.
Hostile critics can point to facts which are, to say the least, strange and anomalous. Out of the total of its revenue the Zemstvo spends about twenty-eight per cent. under the heading of public health and benevolent institutions; and about fifteen per cent. for popular education, whilst it devotes only about six per cent. to roads and bridges, and until lately it neglected, as I have said above, the means for improving agriculture and directly increasing the income of the peasantry.
Before passing sentence with regard to these charges we must remember the circumstances in which the Zemstvo was founded and has grown up. In the early times its members were well-meaning men who had had very little experience in administration or in practical life of any sort except the old routine in which they had previously vegetated. Most of them had lived enough in the country to know how much the peasants were in need of medical assistance of the most elementary kind, and to this matter they at once turned their attention. They tried to organise a system of doctors, hospital assistants, and dispensaries by which the peasant would not have to go more than fifteen or twenty miles to get a wound dressed or to have a consultation or to obtain a simple remedy for ordinary ailments. They felt the necessity, too, of thoroughly reorganising the hospitals and the lunatic asylums, which were in a very unsatisfactory condition. Plainly enough, there was here good work to be done. Then there were the higher aims. In the absence of practical experience there were enthusiasms and theories. Amongst these was the enthusiasm for education, and the theory that the want of it was the chief reason why Russia had remained so far behind the nations of Western Europe. Give us education, it was said, and all other good things will be added thereto. Liberate the Russian people from the bonds of ignorance as you have liberated it from the bonds of serfage, and its wonderful natural capacities will then be able to create everything that is required for its material, intellectual, and moral welfare.
If there was any one among the leaders who took a more sober, prosaic view of things he was denounced as an ignoramus and a reactionary. Willingly or unwillingly, everybody had to swim with the current. Roads and bridges were not entirely neglected, but the efforts in that direction were confined to the absolutely indispensable. For such prosaic concerns there was no enthusiasm, and it was universally recognised that in Russia the construction of good roads, as the term is understood in Western Europe, was far beyond the resources of any Administration. Of the necessity for such roads few were conscious. All that was required was to make it possible to get from one place to another in ordinary weather and ordinary circumstances. If a stream was too deep to be forded, a bridge had to be built or a ferry had to be established; and if the approach to a bridge was so marshy or muddy that vehicles often sank quite up to the axles and had to be dragged out by ropes, with the assistance of the neighbouring villagers, repairs had to be made. Beyond this the efforts of the Zemstvo rarely went. Its road-building ambition remained within very modest bounds.
As for the impoverishment of the peasantry and the necessity of improving their system of agriculture, that question had hardly appeared above the horizon. It might have to be dealt with in the future, but there was no need for hurry. Once the rural population were educated, the question would solve itself. It was not till about the year 1885 that it was recognised to be more urgent than had been supposed, and some Zemstvos perceived that the people might starve before its preparatory education was completed. Repeated famines pushed the lesson home, and the landed proprietors found their revenues diminished by the fall in the price of grain on the European markets. Thus was raised the cry: "Agriculture in Russia is on the decline! The country has entered on an acute economic crisis! If energetic measures be not taken promptly the people will soon find themselves confronted by starvation!"
To this cry of alarm the Zemstvo was neither deaf nor indifferent. Recognising that the danger could be averted only by inducing the peasantry to adopt a more intensive system of agriculture, it directed more and more of its attention to agricultural improvements, and tried to get them adopted.* It did, in short, all it could, according to its lights and within the limits of its moderate resources. Its available resources were small, unfortunately, for it was forbidden by the Government to increase the rates, and it could not well dismiss doctors and close dispensaries and schools when the people were clamouring for more. So at least the defenders of the Zemstvo maintain, and they go so far as to contend that it did well not to grapple with the impoverishment of the peasantry at an earlier period, when the real conditions of the problem and the means of solving it were only very imperfectly known: if it had begun at that time it would have made great blunders and spent much money to little purpose.
* Vide supra, p. 489.
However this may be, it would certainly be unfair to condemn the Zemstvo for not being greatly in advance of public opinion. If it endeavours strenuously to supply all clearly recognised wants, that is all that can reasonably be expected of it. What it may be more justly reproached with is, in my opinion, that it is, to a certain extent, imbued with that unpractical, pedantic spirit which is commonly supposed to reside exclusively in the Imperial Administration. But here again it simply reflects public opinion and certain intellectual peculiarities of the educated classes. When a Russian begins to write on a simple everyday subject, he likes to connect it with general principles, philosophy, or history, and begins, perhaps, by expounding his views on the intellectual and social developments of humanity in general and of Russia in particular. If he has sufficient space at his disposal he may even tell you something about the early period of Russian history previous to the Mongol invasion before he gets to the simple matter in hand. In a previous chapter I have described the process of "shedding on a subject the light of science" in Imperial legislation.* In Zemstvo activity we often meet with pedantry of a similar kind.
* Vide supra, p. 343.
If this pedantry were confined to the writing of Reports it might not do much harm. Unfortunately, it often appears in the sphere of action. To illustrate this I take a recent instance from the province of Nizhni-Novgorod. The Zemstvo of that province received from the Central Government in 1895 a certain amount of capital for road-improvement, with instructions from the Ministry of Interior that it should classify the roads according to their relative importance and improve them accordingly. Any intelligent person well acquainted with the region might have made, in the course of a week or two, the required classification accurately enough for all practical purposes. Instead of adopting this simple procedure, what does the Zemstvo do? It chooses one of the eleven districts of which the province is composed and instructs its statistical department to describe all the villages with a view of determining the amount of traffic which each will probably contribute to the general movement, and then it verifies its a priori conclusions by means of a detachment of specially selected "registrars," posted at all the crossways during six days of each month. These registrars doubtless inscribed every peasant cart as it passed and made a rough estimate of the weight of its load. When this complicated and expensive procedure was completed for one district it was applied to another; but at the end of three years, before all the villages of this second district had been described and the traffic estimated, the energy of the statistical department seems to have flagged, and, like a young author impatient to see himself in print, it published a volume at the public expense which no one will ever read.
The cost entailed by this procedure is not known, but we may form some idea of the amount of time required for the whole operation. It is a simple rule-of-three sum. If it took three years for the preparatory investigation of a district and a half, how many years will be required for eleven districts? More than twenty years! During that period it would seem that the roads are to remain as they are, and when the moment comes for improving them it will be found that, unless the province is condemned to economic stagnation, the "valuable statistical material" collected at such an expenditure of time and money is in great part antiquated and useless. The statistical department will be compelled, therefore, like another unfortunate Sisyphus, to begin the work anew, and it is difficult to see how the Zemstvo, unless it becomes a little more practical, is ever to get out of the vicious circle.
In this case the evil result of pedantry was simply unnecessary delay, and in the meantime the capital was accumulating, unless the interest was entirely swallowed up by the statistical researches; but there are cases in which the consequences are more serious. Let me take an illustration from the enlightened province of Moscow. It was observed that certain villages were particularly unhealthy, and it was pointed out by a local doctor that the inhabitants were in the habit of using for domestic purposes the water of ponds which were in a filthy condition. What was evidently wanted was good wells, and a practical man would at once have taken measures to have them dug. Not so the District Zemstvo. It at once transformed the simple fact into a "question" requiring scientific investigation. A commission was appointed to study the problem, and after much deliberation it was decided to make a geological survey in order to ascertain the depth of good water throughout the district as a preparatory step towards preparing a project which will some day be discussed in the District Assembly, and perhaps in the Assembly of the province. Whilst all this is being done according to the strict principles of bureaucratic procedure, the unfortunate peasants for whose benefit the investigation was undertaken continue to drink the muddy water of the dirty ponds.
Incidents of that kind, which I might multiply almost to any extent, remind one of the proverbial formalism of the Chinese; but between Chinese and Russian pedantry there is an essential difference. In the Middle Kingdom the sacrifice of practical considerations proceeds from an exaggerated veneration of the wisdom of ancestors; in the Empire of the Tsars it is due to an exaggerated adoration of the goddess Nauka (Science) and a habit of appealing to abstract principles and scientific methods when only a little plain common-sense is required.
On one occasion, I remember, in a District Assembly of the province of Riazan, when the subject of primary schools was being discussed, an influential member started up, and proposed that an obligatory system of education should at once be introduced throughout the whole district. Strange to say, the motion was very nearly carried, though all the members present knew—or at least might have known if they had taken the trouble to inquire—that the actual number of schools would have to be multiplied twenty-fold, and all were agreed that the local rates must not be increased. To preserve his reputation for liberalism, the honourable member further proposed that, though the system should be obligatory, no fines, punishments, or other means of compulsion should be employed. How a system could be obligatory without using some means of compulsion, he did not condescend to explain. To get out of the difficulty one of his supporters suggested that the peasants who did not send their children to school should be excluded from serving as office-bearers in the Communes; but this proposition merely created a laugh, for many deputies knew that the peasants would regard this supposed punishment as a valuable privilege. And whilst this discussion about the necessity of introducing an ideal system of obligatory education was being carried on, the street before the windows of the room was covered with a stratum of mud nearly two feet in depth! The other streets were in a similar condition; and a large number of the members always arrived late, because it was almost impossible to come on foot, and there was only one public conveyance in the town. Many members had, fortunately, their private conveyances, but even in these locomotion was by no means easy. One day, in the principal thoroughfare, a member had his tarantass overturned, and he himself was thrown into the mud!
It is hardly fair to compare the Zemstvo with the older institutions of a similar kind in Western Europe, and especially with our own local self-government. Our institutions have all grown out of real, practical wants keenly felt by a large section of the population. Cautious and conservative in all that concerns the public welfare, we regard change as a necessary evil, and put off the evil day as long as possible, even when convinced that it must inevitably come. Thus our administrative wants are always in advance of our means of satisfying them, and we use vigorously those means as soon as they are supplied. Our method of supplying the means, too, is peculiar. Instead of making a tabula rasa, and beginning from the foundations, we utilise to the utmost what we happen to possess, and add merely what is absolutely indispensable. Metaphorically speaking, we repair and extend our political edifice according to the changing necessities of our mode of life, without paying much attention to abstract principles or the contingencies of the distant future. The building may be an aesthetic monstrosity, belonging to no recognised style of architecture, and built in defiance of the principles laid down by philosophical art critics, but it is well adapted to our requirements, and every hole and corner of it is sure to be utilised.
Very different has been the political history of Russia during the last two centuries. It may be briefly described as a series of revolutions effected peaceably by the Autocratic Power. Each young energetic sovereign has attempted to inaugurate a new epoch by thoroughly remodelling the Administration according to the most approved foreign political philosophy of the time. Institutions have not been allowed to grow spontaneously out of popular wants, but have been invented by bureaucratic theorists to satisfy wants of which the people were still unconscious. The administrative machine has therefore derived little or no motive force from the people, and has always been kept in motion by the unaided energy of the Central Government. Under these circumstances it is not surprising that the repeated attempts of the Government to lighten the burdens of centralised administration by creating organs of local self-government should not have been very successful.
The Zemstvo, it is true, offered better chances of success than any of its predecessors. A large portion of the nobles had become alive to the necessity of improving the administration, and the popular interest in public affairs was much greater than at any former period. Hence there was at first a period of enthusiasm, during which great preparations were made for future activity, and not a little was actually effected. The institution had all the charm of novelty, and the members felt that the eyes of the public were upon them. For a time all went well, and the Zemstvo was so well pleased with its own activity that the satirical journals compared it to Narcissus admiring his image reflected in the pool. But when the charm of novelty had passed and the public turned its attention to other matters, the spasmodic energy evaporated, and many of the most active members looked about for more lucrative employment. Such employment was easily found, for at that time there was an unusual demand for able, energetic, educated men. Several branches of the civil service were being reorganised, and railways, banks, and joint-stock companies were being rapidly multiplied. With these the Zemstvo had great difficulty in competing. It could not, like the Imperial service, offer pensions, decorations, and prospects of promotion, nor could it pay such large salaries as the commercial and industrial enterprises. In consequence of all this, the quality of the executive bureaux deteriorated at the same time as the public interest in the institution diminished.
To be just to the Zemstvo, I must add that, with all its defects and errors, it is infinitely better than the institutions which it replaced. If we compare it with previous attempts to create local self-government, we must admit that the Russians have made great progress in their political education. What its future may be I do not venture to predict. From its infancy it has had, as we have seen, the ambition to play a great political part, and at the beginning of the recent stirring times in St. Petersburg its leading representatives in conclave assembled took upon themselves to express what they considered the national demand for liberal representative institutions. The desire, which had previously from time to time been expressed timidly and vaguely in loyal addresses to the Tsar, that a central Zemstvo Assembly, bearing the ancient title of Zemski Sobor, should be convoked in the capital and endowed with political functions, was now put forward by the representatives in plain unvarnished form. Whether this desire is destined to be realised time will show.
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 thesignificant title, "The Unheard-of Wonder; or, The HonestSecretary" (Neslykhannoe Dyelo ili Tchestny Sekretar). Ihave never seen this curious production, but I have no doubtthat it referred to the peculiarities of the old judicialprocedure.
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.