The Reformer
Page 7
On many later occasions lawyers deployed the new approach. More administrative threats followed, and some action. A few lawyers were exiled to Archangelsk or Vologda, but this only made them heroes. Although Maklakov’s account suggests he occasionally went along with the new tactic, he was plainly not an enthusiast; a fellow advocate characterizes him as a “bridge” between the old and new styles.19
Writing later as a historian, he deplores the tactic, arguing that it sharpened the warlike atmosphere between state and society and distorted the nature of a liberal profession.20 He saw it as part of a fateful move by the liberation movement toward alliance with the revolutionaries, an “anti-state” movement—meaning a movement that saw no value in government institutions designed, however imperfectly, for the resolution and compromise of conflicting interests. He calls this anti-state element the “Acheron,” invoking Juno’s declaration in the Aeneid,
flectere si nequeo superos, Acheronta movebo
(If I cannot deflect the will of Heaven, I shall move Hell.)
While the defense lawyers’ new tactic might isolate the autocracy, it would do so at a cost, creating a liberalism of a new type, one that “after victory could not manage the state.”21 By scorning state procedures for justly resolving cases, the lawyers were undermining the tools needed for a liberal state and denigrating the sort of self-discipline and realism needed to shift the Russian state from autocracy to constitutionalism.
For virtually all the clients discussed above, Maklakov plainly worked without compensation. To support his fairly comfortable lifestyle—hunting and fishing in Zvenigorod and vacations in France, for example—he clearly needed paying clients. He appears to have had them in abundance. He had a preference for criminal over civil cases because, he said, he didn’t like to work through the sort of large organized apparatus needed for full-scale participation in civil litigation. Rather, he operated as a “strolling player.” Thus he liked to participate in such cases only to address some basic issue of principle or to speak in court. His records show involvement in major libel cases involving newspapers and in a large group of high-stakes commercial cases involving major Russian enterprises.22
Maklakov found setting fees a troubling activity. It embarrassed him to recall from childhood how little his father—a distinguished doctor and professor—had been paid compared to what he earned as a young and inexperienced lawyer. In civil cases fees were set by law and custom, and they varied with the amount at stake. Not so for criminal cases, and there the comparison with his father made him propose rather low fees. This led to some curiosities. In one case at an early stage of his career, he suggested 500 rubles, which he thought was suitable; the potential client said he needed to think about it. Maklakov assumed the client thought it too high. Then he learned that the client had hired someone else for 5,000 rubles; he evidently took Maklakov’s proposal as a signal that he was a lawyer of low quality. Occasionally fellow lawyers protested that he was undercutting them by applying what they saw as his unsuitable comparison with his father. He sometimes tried asking the client to name a fee, but this too presented problems. If it was too low, Maklakov would just decline, as he didn’t like to bargain, but that would irritate the potential client.23
In one case—one that his memoirs don’t mention—his fee elicited public criticism. In 1912 he defended one G. E. Tagiev, an entrepreneur in Baku involved in oil, textiles, and fish, who was accused of mistreating an employee. An article by Trotsky made a snide suggestion that the case showed that Maklakov’s integrity was for sale, and the editors of Trotsky’s collected works say that the fee took a toll on his reputation.24 Perhaps not a heavy toll, as he was soon reelected to the Duma (the Fourth) with a still higher majority than in his election to the Third.25
Maklakov plainly earned a good living, as shown by his frequent vacations in France. But at least in some respects he exercised considerable thrift, perhaps recognizing that the excess of his earnings over those of his intelligent and hardworking father was partly due to pure luck. We learn that later, in Paris, he always rode the subway second class; he explained it to a friend as part of a desire to avoid arrangements in his private life that might foster “closed compartments and categories in society which would forever separate one man from another.”26
As we saw, Maklakov’s association with Plevako launched his career, and the two remained close, very often serving together as joint defense counsel. (In Russia, contrary to British practice, private lawyers did not serve as prosecutors, so there seems never to have been a case where Plevako and Maklakov opposed each other.27) While he had good reasons for not apprenticing with Plevako, he regarded him as “the first lawyer in Russia” and noted that his name had become in popular speech a generic word for a master of eloquence and law, as in, “Find another plevako.”28 As both were famous orators of the era, the St. Petersburg Society of Lovers of the Oratorical Arts naturally sought out Maklakov to speak at a gathering in honor of Plevako after his death in 1908.
Maklakov speaks with some awe of Plevako’s “ability to fluently find the necessary words and form them into correct and flowing phrases.” “He never had to search for words or think over phrases. The words in an obedient crowd poured into perfect sentences, perfectly expressed thoughts.” In one case a prosecutor in summation made a stupid statement, and Plevako wrote on his scratch pad the single word “Fireworks.” When Plevako reached the issue in his response, he addressed it with a true fireworks of thoughts and words, including “quotes from the Gospel, reliance on statutes, examples from the West, a summons to the memory of Alexander II.”
Plevako prepared drafts ranging from a complete speech to notes of a few words, but wherever his preparation fell on that spectrum, his final words bore only a slight relation to what he had written. Often the whole structure of the speech changed. He might use a successful expression or a pointed phrase from the preparations, but those were the exceptions, which only underscored the general rule.
After a case on which they had cooperated, Plevako was preparing an appellate brief, and Maklakov asked him to send him drafts. He did so—a whole slew of drafts (five or six) successively typed out by Plevako on his Remington. All were without strikeovers or revisions, yet all were quite different and had plainly been started afresh. When Maklakov spoke to him about it, Plevako said it was always easier for him to start from the beginning. He acted with words, says Maklakov, “the way a rich man might casually throw money to the wind.”
As Plevako had no need for advance preparation to find the necessary words, what purpose did his notes serve? Only, says Maklakov, to assure himself that he had an abundance of material. As a result, if a new topic struck him during a speech, he could leave his plan without fear or regret.
When Plevako lapsed from spontaneity his oratory paid a price. Maklakov cites his summation in M. A. Stakhovich’s suit against Prince Meshcherskii, a high-profile, politically sensitive libel case on which the two cooperated. Evidently nervous about the political implications, Plevako hewed fairly closely to his text, and in Maklakov’s view the speech suffered from length and ornateness, drawbacks in Plevako’s writing. Though very good, it fell short of his usual work. In another situation, Plevako sent a reporter a segment of a speech that had been written (or at least polished) after the speech was delivered; Maklakov thought it “a cold-blooded creation of the office, which lay like a pale patch on the brilliant background of improvisation.”29
Maklakov seems never to have described his own methods. Apart from his awe of Plevako’s spontaneity, there are other clues to Maklakov’s approach—a preference for knowing in advance fairly exactly what he would say. His friend and fellow Kadet deputy in the Duma, Mikhail Chelnokov, told a mutual friend that on the eve of his speeches Maklakov would often go to him and deliver the next day’s speech with the same voice and urgency as he would later use from the Duma tribune.30 This suggests preparation down to the finest detail. Georgii Adamovich, who was Maklakov’s first
Russian biographer and had known him and many of his contemporaries, reports that listeners were divided, some believing Maklakov memorized every word and every detail, such as pauses for thought, and others believing that he could deliver a lengthy speech with advance preparation of only its general content.31 Whatever the method (likely a combination of the two), the effect was one of conversational spontaneity. Vaclav Lednitskii, son of the Lednitskii for whom Maklakov almost apprenticed, affirms that Maklakov could write and deliver a speech so that it sounded like the spoken, rather than the written, word.32
In his reminiscence, the younger Lednitskii shares with us an eccentric detail of Maklakov’s life. Summer and winter, he reports, Maklakov used to wear a Russian cap, which, with his beard, gave him the appearance of a sixteenth- or seventeenth-century Russian—hardly the convention for an up-and-coming member of the bar in the twentieth century. When he came to Paris in 1917 as ambassador-designate of the Russian Provisional Government, he replaced the cap with a beret.33
Maklakov’s memorial address on Plevako ranged far beyond his oratory. Painting a picture of a fellow lawyer, a deeply patriotic Russian, a public figure, and a friend, the talk also portrays the portraitist himself and his time. As a foil for describing Plevako, Maklakov uses Vekhi (Landmarks, or Signposts), a famous book published the same year as his address, which skewered (or sought to skewer) the Russian intelligentsia. Without endorsing the book’s accuracy, Maklakov notes a number of attributes that it ascribed to the intelligentsia, most notably irreligion and lack of national feeling. He argues that Plevako lay at the antipodes from Vekhi’s characterizations. Plevako was, in fact, highly religious and dedicated to the Orthodox Church, giving it large sums of money. But at the same time he was an ardent defender of the Old Believers in the face of their persecution by the church and the regime, and was reverent toward Tolstoy’s theological works. For him, defense of religious freedom did not grow out of indifference to religion. Maklakov suggests he had a loose affinity for Tolstoy’s view of the state: “By instinct [Plevako] was an anarchist, though intellectually he understood the need for the state.”34
Besides the implicit anarchism, Maklakov depicts Plevako’s ability to form a bond with the sinner, who, in his profession, was often the defendant. “He could penetrate the interest, the grief, the suffering of whoever he was defending. . . . He immediately saw what was best in a person, what to others might be invisible.” And more broadly, in terms echoing the “Grand Inquisitor” passage in Dostoevsky’s The Brothers Karamazov, Maklakov writes, “There was nothing that could make him sacrifice a person: no belief in the saving character of any specific form of government, no devotion to doctrine, none of the intolerance arising out of such devotion.” Adamovich remarked that in Maklakov’s summation for Setkin, pleading that even a verdict of acquittal could not whitewash him, his spirit and tone were Plevako’s.35
In addressing Plevako’s sense of national feeling, Maklakov tells the story of a winter trip the two took to defend a case.
The harness came undone. I was angry not only that we were going to be forced to freeze in the field, but because all this happened close to the station, where there had been time to check how well the horse was harnessed. Plevako began to comically describe how the muzhik [peasant] got up in the morning, saw that the harness was bad, but hoped to get to the station; but when he got to the station he noticed that it nearly held, and hoped that he could make it to the farrier, and so forth. He preferred Russian thoughtlessness to American enterprise or German precision.36
While Maklakov may have felt more irritation than Plevako at the peasant’s haphazard ways, he clearly shared Plevako’s affection for the Russian people and their way of life. This was part of what it meant, for both of them, to love Russia.
In Plevako’s case, sympathy for casual peasant ways may have arisen partly from identification. “His vagueness was legendary.” Once, having asked people to his home, he found it necessary to change the time and place and then arranged meetings with them for another time, but in three different places. “At the named hour he was at still a fourth place. This sort of thing made him enemies, and led to unflattering legends, but only among those who didn’t understand him. Many could not, and paid for it [in loss of the rewards of his company].”37
Maklakov’s talk conjures up a Plevako who, far more than a brilliant lawyer, was a great soul.
You can teach yourself much—logic, and rhetoric and real eloquence. But it’s impossible to teach yourself such an understanding of life, such an attitude to people. To be an orator such as Plevako was, you need to be a person such as he was—not by talent, not by a gift of words, all that is secondary, but in his spiritual cast of mind, love of man, inability to indulge righteous or even justifiable hatred, in the ability to look at things not through the eyes of this world, which made him so unlike others.38
As the relationship with Plevako suggests, Maklakov was by no means a solitary lawyer. He became deeply involved in lawyers’ voluntary associations. During the reactionary reign of Alexander III, the government generally tried to limit the rights of lawyers’ assistants, but there had been a revival of the bar in the second half of the 1890s, when Maklakov was starting his career. Young lawyers started “wandering clubs,” so-called because their meetings migrated from one member’s apartment to another’s. They talked about mutual problems and current affairs, but they also arranged for free advice to workers and peasants. Maklakov saw the wandering clubs as “breathing life” into the bar, trying to turn it from a group simply enhancing the members’ professional skills and prosperity to one that served society.39
Among their activities were confronting and overcoming technical legal restrictions on service in the provinces by lawyers from the capital cities who had not advanced from “assistant” to “sworn attorney.” The young lawyers largely succeeded, aided by the cooperation of judges who responded conscientiously, even though the presence of better representation for defendants increased their work. These trials in the provinces (Maklakov uses the term uezd, or “district”) were not only helpful for the accused but “the most outstanding school” for the young lawyers. Defense was not a matter of rhetorical razzle-dazzle but was aimed at ordinary jurors; the jurors created a businesslike mood that the lawyers had to echo. Later, on the stump in Duma elections, he was impressed by the voters’ similar seriousness of purpose.40
Lawyers involved in defense of political cases formed an association, and Maklakov naturally played a leadership role. On November 20, 1904, the association called for a constitution for Russia, and, according to fellow lawyer Iosif Gessen, Maklakov was quite proud of the lawyers for doing so.41 But the association took a new turn as a result of the tsar’s decree of February 18, 1905, which invited Russians to express their concerns about the state and its direction. The Union of Liberation responded with efforts to encourage the creation of other “unions” revolving around particular professions or concerns: there were unions for “agronomists and statisticians,” for “pharmaceutical assistants,” for “equal rights for Jews,” and so on. Galai lists fourteen such unions, to which others were added. The association of lawyers providing defense in political trials now embraced the spirit of the Liberation Movement.42
It isn’t clear whether Maklakov was very active in the lawyers’ association after it was enveloped by the Liberation Movement’s unions. Certainly in retrospect, Maklakov criticized it as having only one activity—the adoption of political resolutions, specifically what he called the “cliché template.” The cliché consisted of a call for a constitution drafted by a constituent assembly, in turn to be chosen by “four-tailed suffrage” (“four-tailed” was the liberals’ phrase for a universal, direct, equal, and secret franchise). He argued that the resolutions didn’t arise from any professional skill or expertise, but only from the fact of the intelligentsia’s having settled on the package. The peasant’s union43 had joined the cliché template, though, as Maklakov joked, they re
ally wanted the landowners’ land and regarded calling for a constituent assembly with four-tailed suffrage as “a cheap price to pay for land.” In later chapters I’ll consider his affirmative objections to the cry for a constituent assembly and the liberals’ favored franchise, but for now it’s enough to say that Maklakov saw the outburst of these preprogrammed platforms from synthetic organizations as a natural result of the autocracy’s having so long stifled genuine expression of opinion.
People close to the process knew that they represented only themselves. But the ease with which the inexperienced and disturbed society submitted to the intelligentsia’s propaganda, and accepted any position, justified this imposture. Where there is not a true representative system, it’s easy not only to speak for others, but to be convinced that you’re expressing public opinion. The authorities’ long policy of preventing the organization of society yielded its fruit. Through the decree of February 18 [1905], they turned the intelligentsia leaders into spokesmen of the people’s will.44
In May 1899 Maklakov played a role at the Moscow Juridical Society’s celebration of the one hundredth anniversary of Alexander Pushkin’s birth. Unlike many ceremonial occasions, this one became famous in its own right. Sergei Muromtsev, a very distinguished older lawyer, later to be chairman of the First Duma, gave the main speech and used it to celebrate Pushkin as a seeker of freedom and independence. “Together with the memory of the poet we celebrate the victory won by Russian individuality over routine life and government tutelage.” This brought the wrath of God down on the society, or, more precisely, the wrath of Maklakov’s old foe N. P. Bogolepov, then minister of education, who closed the society, which was institutionally part of Moscow University. Before Muromtsev’s fateful speech, there had been a preliminary round of brief welcoming talks, including one by Maklakov. One of the preceding welcomers had argued that the society should not involve itself in politics. Maklakov used his time by responding to this, arguing that law always posed the question of its relationship to right. In recognizing that law doesn’t necessarily correspond to right, members of the society would have to discuss political values.45