Russia

by Donald Mackenzie Wallace

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dispensation of justice was accordingly appropriated by the central authority, absorbed into the Administration, and withdrawn from public control.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.