In State and Society Maklakov gives quite a full account of the interview with Clemenceau.53 The meeting was rather secret, conducted in a little office apart from Clemenceau’s main office, evidently because his holding the meeting poached on the territory of the minister of foreign affairs, Léon Bourgeois, behind whose back they were meeting. Clemenceau explained right off the bat that the loan had been agreed on, so there was really no occasion to discuss its merits.54 The conversation instead turned to the Russian liberals’ general strategy. Clemenceau was astonished at their quest for universal suffrage: “Didn’t we understand,” he asked Maklakov, “that any people needs a long time to be weaned away from their prejudices and crudeness, before they can be allowed to take charge?” As an example of such crudeness, he recalled how the French, much more experienced in these matters than the Russians, had reacted like “lunatics” to a mere proposal to inventory the contents of churches (after the Separation of 1905). “You don’t know what the strength of the authorities will be under an inexperienced population.” Though Clemenceau was famous for saying that the Revolution must be accepted “en bloc,” he was aware of its weaknesses and recommended caution and moderation: “Anything can happen except what you expect.”
Maklakov raised the issue of resisting the oath to the autocracy, which was to be demanded of incoming deputies (and which his memorandum had complained about). Clemenceau “grabbed me by the arm: ‘Don’t do it. What does a vain word cost you? For the devil’s sake, don’t fight over a word. Leave them their words and titles, and take the substance yourself.’”
In a brief exchange on the loan itself, Maklakov explained how the loan would be a powerful weapon for the old regime in its struggle with the liberals. Clemenceau: “Ah, I understand you. You’d like to seize the government by the throat. You ought to have thought of it sooner.”
Maklakov closed his account of the conversation by explaining why he had made it so complete: It was “so characteristic—in it spoke the real Clemenceau.”
After the Clemenceau interview, word reached Maklakov that Raymond Poincaré, then finance minister, would like to meet the Russians.55 Nesselrode refused to go, and Kalmanovich had left town. Maklakov met with others in a café, where their conversation was overheard by an official in the Russian embassy. (While Maklakov noticed this sign of Russian intelligence operations, doubtless there were many he didn’t detect.) He was not eager to go, but Dolgorukov had arrived in Paris from the Riviera, and Maklakov proposed that they go together, which they did. Poincaré spoke of a condition that the French were proposing—that no money could be expended without consent of the Duma. Maklakov said it was completely useless, because a French condition could not amend the Russian constitution. (Presumably the French could not, after the execution of the loan, add a new, binding condition to the delivery of the loan’s tranches.)
Just before Maklakov and Dolgorukov returned to Russia, the French foes of the loan asked them whether they would join a public campaign against it, and specifically whether they would do so as representatives of their party. This proposal obviously called for consultation with the party’s central committee; in view of their imminent return they did so by telegram, which they sent “in clear.” The central committee didn’t answer, thus implicitly rejecting the idea. Maklakov chides himself for the carelessness and irresponsibility of sending an open telegram, thus giving “arms against ourselves.” The self-reproof is surely right, though one wonders if the telegram added much to the secret police’s dossier on the Kadets’ activities in Paris.56
Concluding his account, Maklakov addresses an issue he had raised at the beginning—the principle that Russia should be united in relation to foreigners.57 In justification of his conduct, he says that if he had acted in accordance with that principle, he would have brought on himself “the indignation of the whole of Russian society.” Such an idea was no part of the liberation movement as it then existed. As an example of prevailing standards, he cites Miliukov’s refusal, on the occasion of the parliamentary delegation’s visit to London, to take part in a possible collective Russian response to an article, apparently attributed to Ramsay MacDonald, that ranted not only against the Russian government but against the tsar himself. Because of Miliukov’s resistance to any rebuke by the delegation as a whole, the only Russian answer was from its chairman, Khomiakov. The refusal to defend the country, he says, wasn’t personal to Miliukov. “In 1906 I sinned not individually, but from our general sin.”
Even if we assume that the MacDonald episode was parallel, the exculpation seems dubious—at least by the standards that Maklakov developed later. First, his post-1917 account of Russian politics is replete with broad criticisms of “society” and its militancy; so how could the assumptions and predilections of society justify his conduct? Second, he could have just kept quiet in Paris, or at any rate not ventured beyond conversations with his Russian and French friends.
Though Maklakov’s writings and Duma speeches are filled with criticism of the regime, none appears as vehement as that of the anti-loan memo. In State and Society, as we’ll see, Maklakov gives a reasoned defense of the new Fundamental Laws—which had not been issued at the time of his memo. To be sure, I’ve found no Maklakov defense of the Fundamental Laws contemporaneous with their issuance. Despite that gap, it seems quite possible that the newly revised Fundamental Laws may have led him to appraise the regime more generously than he did at the time of his memo to the French and to believe that the powers granted the Duma gave it a decent chance at fulfilling the promise of the October Manifesto.
CHAPTER 5
A Constitution for Russia?
ON APRIL 23, 1906, shortly after the failure of Maklakov’s efforts to defeat the French loan and four days before the opening of the First Duma, the regime issued a revised set of “Fundamental Laws.” These were the product of a committee, chaired by the tsar, in which officials of varying predilections pressed their views on Nicholas.
Once the Fundamental Laws were issued, the tsar and his supporters, on the one hand, and the liberals, on the other, had motives to deny that the new laws and the October Manifesto amounted to a “constitution.” The tsar resisted the thought that his commitments deserved that label (which would imply a real shift of authority), clinging to the notion that the autocracy had been a good thing for Russia and that he must pass it on to his son intact—or at least as intact as possible. Many of the liberals, who fervently sought a constitution, tended to deny that one had been granted; to acknowledge that this had happened would weaken their claim to more limitations on the tsar’s power. They called it a “pseudo-constitution.”
Clearly the Fundamental Laws fell short of the Kadet leadership’s hopes. They did not sweep aside the property-weighted “curias” of the December 11, 1905, electoral law, which made citizens’ votes indirect and unequal. They kept the State Council as a legislative body; because a bill could become law only with its consent as well as the Duma’s, its authority qualified the Duma’s, even though leaving the Duma a veto over new legislation. And the new laws did not make the government responsible to the Duma, that is, they did not require a cabinet resignation on the loss of a key vote, as under British practice. Thus the system they created was neither purely parliamentary nor politically egalitarian. But this outcome, and the disappointment of the Kadet leadership’s hopes, is quite understandable in light of the tsar’s apparent power to endure. Despite those drawbacks, the October Manifesto and Fundamental Laws imposed serious constraints on Russia’s executive.
Writing about the Fundamental Laws after the revolution, Maklakov focuses on the degree of constraint on government: first, the extent to which the Fundamental Laws advanced Russia toward the rule of law or, more broadly, liberal democracy, and, second, their possible service as a platform for future liberalization, democratization, and reform. These criteria tend to converge; the difference is between their actual and potential results. By those criteria, he found the Fundamental Laws p
retty good, and thus found the Kadets’ intransigence in the First Duma—based on the gap between the Fundamental Laws and Kadet goals—self-defeating.
Maklakov’s post-revolutionary assessment of the Fundamental Laws, stated most systematically in his 1936 history-memoir, State and Society,1 gave them a high grade. (In chapter 7 we consider claims that the grade was inconsistent with his positions in 1906–7.) But his 1936 analysis omits their most glaring deficiency for purposes of the rule of law—their failure to cabin the lawlessness authorized by the extraordinary security laws. The executive authority, wielded largely by the ministry of internal affairs and its satraps (such as the provincial governors and the land captains), retained the authority to exile, imprison, and fine citizens without check or review by any independent institution. So long as the executive retained its powers under those preexisting provisions, the principle that it could (usually) act only in fulfillment of a duly enacted law was technically fulfilled—the extraordinary security laws had been duly enacted under the laws governing at the time of their enactment. But the Fundamental Laws appeared to allow the extraordinary security laws to continue in effect indefinitely.
In fact it isn’t clear that continued enforcement of the extraordinary security laws was lawful under the October Manifesto and the Fundamental Laws. The security laws had been originally promulgated as “temporary,” lasting only three years unless renewed (the three-year term was changed to one year in 1903). After the October Manifesto and the Fundamental Laws of April 23, 1906, the tsar annually purported to renew the laws himself, without a word of Duma approval. The provision for renewal might, on one plausible reading, be regarded as a lawful authorization to the executive to take future steps, as many laws do.2 In the pre-Duma era, when the tsar was in substance both legislature and executive, the question had been rather metaphysical. On the sixth anniversary of the October Manifesto (October 17, 1911), a Kadet, Nikolai Teslenko, challenged the renewals of 1906 through 1910 as unlawful by asking the prime minister on the Duma floor what measures he was taking to bring action under the laws to a stop. The challenge passed handily (168–123), but had no legal effect. Arbitrary executive action under the laws continued unabated.3 The episode exposed another gap in lawfulness under the new regime—the lack of any institution to resolve disputes between the government and the Duma on the meaning of the Fundamental Laws.
That said, we should be clear that the Fundamental Laws did create a real balance between the popular representative body and the tsar, barring the latter from acting without legislative authority and from generating new legislation without Duma consent. Two provisions addressed these limits, one explicitly, the other rhetorically. Both emerged from hard-fought battles in the special committee drafting the laws. The explicit provision was Article 11, which authorized the tsar to issue decrees, ukases, and so on, “in conformity to the laws.”4 If we put aside foreign affairs, some special provisions such as Article 87, and preexisting provisions such as the extraordinary security laws, those two simple prepositional phrases, if adhered to, would limit the tsar’s executive powers to carrying out legislation enacted with the assent of the Duma. Article 11 was reinforced by Article 108, which allowed the Duma and State Council to question ministers (and heads of separate agencies) “in connection with apparently illegal actions committed on their part or on that of persons and institutions under their departmental authority,”5 and thus to monitor the executive’s compliance with the limits on its power. (Article 108 was the basis for Teslenko’s challenge to the prime minister on the extraordinary security laws.) Oddly, Maklakov didn’t mention an independent judiciary as another vehicle for making Article 11 effective. In any event, Article 11’s restriction of tsarist decrees to rules “in conformity to the laws,” and the provision for parliamentary power to interrogate the government on its possibly illegal acts, provided at least a scaffolding for the rule of law.
The atmospheric change took the form of deleting the word “unlimited” from Article 4’s description of the tsar’s power, so that it would now read “Supreme Autocratic Power” rather than, as it had since the promulgation of the original fundamental laws in 1833, “Supreme Unlimited Autocratic Power.”6 Maklakov lamented that in the special committee that resolved final disputes in the drafting of the Fundamental Laws, none of those favoring deletion of “unlimited” argued for it on the merits, as being beneficial for Russia and even for the tsar himself. Rather, they argued only that the October Manifesto in effect promised removal of the adjective (by requiring that enactment of law be contingent on Duma approval), so that to keep his promise the tsar must remove it. As a result, Maklakov argues, the tsar ever after regarded himself as having fallen into a trap on October 17, clearly an unhealthy attitude if he was to function as a constitutional monarch.7 Certainly much of Nicholas II’s later behavior shows that he never committed himself to the spirit of a limited monarchy.
If these were the key strengths of the Fundamental Laws, what were the vulnerabilities, the weaknesses that Maklakov’s Kadet colleagues had denounced? The outstanding ones were first, Article 87’s authorization of executive actions as temporary substitutes for true legislation, which required approval of the Duma, the State Council, and the tsar; second, the power of the State Council and the tsar to block legislation; and, third, special rules on the budget and the control of the military.
Article 87 certainly gave the executive the power to trump the legislative process temporarily. Its language framed many of the disputes that dominated politics from 1906 to 1917:
[1] When the State Duma is in recess and extraordinary circumstances create the necessity of a measure requiring a legislative deliberation, the Council of Ministers submits it directly to the Emperor. [2] Such a measure, however, may not introduce changes in either the Fundamental State Laws or in the Organic Laws of the State Council or the State Duma or in the provisions on elections to the State Council or to the Duma. [3] The operation of this measure comes to an end if a bill corresponding to the adopted measure is not introduced by the qualified Minister or the Chief Administrator of a separate agency into the State Duma within the first two months after the resumption of the Duma’s business, or if the State Duma or the State Council does not adopt the bill.8
The key sentence for most purposes is the third. It gave the government two options once it issued a decree under Article 87. First, it could introduce a bill in the Duma with the same provisions as the Article 87 decree; but in that case the law would die the minute that the Duma or the State Council voted it down. Under that condition, a simple majority of the Duma could easily kill an Article 87 decree it didn’t like. Alternatively, the government could offer no such bill, in which case the decree would expire automatically two months after Duma sessions resumed.
Maklakov argued for Article 87 on the practical ground that in a country so huge it was essential to have some means for legislation to address urgent problems arising while the Duma was out of session.9 He was quick to recognize that, as it proved, the government’s applications of Article 87 went way beyond that. In fact, the government at least once exercised its power to recess the Duma solely to create the preconditions for exercising Article 87 (i.e., having the Duma out of session).10 But Maklakov offered a qualified excuse for such excesses by pointing to the Duma’s scant attention to legislation, its accumulation of unconsidered bills, and its obsession with trivial bills, known as “vermicelli.”11
His more compelling defense of Article 87 was that a decree resting on the Article could not long endure in the face of Duma resistance. A simple vote of the Duma, without the agreement of the State Council or the tsar, would repeal an Article 87 decree (unless it simply died of its own weight through the government’s failure to introduce a corresponding bill).
Of course the fear of being dissolved (and thus having to face new elections) might lead the Duma to refrain from voting down a bill supporting an Article 87 decree, and Maklakov acknowledges that that very fear expl
ained the Second Duma’s not voting down Stolypin’s agrarian reform, which the Kadets vehemently opposed.12 If fear of being dissolved drove the Duma’s inaction, does such fear expose a major gap in the Duma’s power (and thus in Maklakov’s reasoning)? Superficially it might seem to, but Maklakov doesn’t address the argument. He might have responded that dissolution was, for the government, a two-edged sword: it might lead to the election of an even more hostile Duma, as we’ll see happened after the government dissolved the First Duma.
Maklakov also neglects the damage that a provision adopted under Article 87 could do between adoption and Duma reversal. The most obvious instance is the decree on field courts martial (discussed in chapter 7). It provided super-swift trials for people accused of revolutionary terror; the resulting hangings earned the epithet “Stolypin’s neckties.” Because the government never introduced a corresponding bill in the Second Duma, this decree expired after the first sixty days of that Duma; but its expiration obviously didn’t resurrect the dead. Maklakov’s omission is odd in view of his ardent attack on the field courts martial decree in the Second Duma. Nonetheless, the temporary character of decrees under Article 87 at least limited the government’s use and abuse of them.
In another post-revolutionary book, Maklakov argued that where the Duma wanted to improve a decree in the process of converting it into a statute, it had an advantage: clearly the government favored the bill (it had introduced it), and the State Council (assuming it to be usually aligned with the government) would be reluctant to reject the amended law and thereby shoulder responsibility for destruction of the benefits provided by the Article 87 decree.13 But as Maklakov’s own experience in the Duma showed, the State Council could escape the bind by using a simple device: inaction—if it neither accepted nor rejected the amended bill, the decree would continue in effect without the Duma’s changes. This is exactly what happened to one of Maklakov’s most significant reform bills.14
The Reformer Page 12