The Reformer

by Stephen F. Williams

  The Kadets matched their zeal on constitutionalism with a skewed vision of its content. They appeared to believe that the Duma, or at any rate its majority, represented “the people’s will,” with a corollary that its sole word was law, no matter what the costs in eliminating communication between government and Duma and in disregarding the constitutional provisions essential to the Duma’s own existence. Thus when the War Minister, V. P. Pavlov, tried to voice the government’s position on the death penalty, Kadets and other deputies hounded him out. One deputy, an “almost completely white old man [of the Kadet party] . . . banged his desk violently, jumped up, shook his fist and shouted: ‘Get out, murderer, executioner, out.’”12 When another deputy, Count P. A. Heiden, rose to insist on the value of some minimal decorum (suggesting that the scheme of government required “the deepest respect for the law and even for the person of one’s foe”), a leading Kadet, Maxim Vinaver, rose to say, “All persons who openly defy the wishes expressed by the State Duma should not appear here on the instructions of ministers.”13

  The Kadets also insisted on identifying constitutionalism with purely parliamentary government. Thus V. D. Nabokov (a distinguished lawyer, son of a former minister of justice, and father of the famous Russian-American author), after encountering government resistance to Duma proposals, declared, “From the point of view of the principle of popular representation, we can say only one thing: ‘the executive authority must submit to the legislative authority.’” While it’s true that under a rule-of-law regime the executive can generally act only in accordance with legislatively approved law, the rule of law obviously does not require that the executive bend to legislative preferences that have not yet wended their way into law, as Nabokov assumed. Maklakov points out that Nabokov’s statement pretended that the Duma was the sole legislative authority, while in fact, under the Fundamental Laws, the tsar (plus the State Council) shared that power,14 as in many non-parliamentary constitutional regimes.

  Even a very sophisticated lawyer such as Sergei Muromtsev could be blinded by a tendency to think of abstractions as categories whose nature compelled specific outcomes rather than merely as useful tools for organizing thought. On taking office as speaker of the Duma, he said: “Let our work proceed on the basis of the respect befitting a constitutional monarch [roar of applause] and complete realization of the rights of the State Duma flowing from the very nature of popular representation.”15 But the nature of popular representation does not in itself give any “rights” to a legislature. The rights flow from political settlements, forged in conflict between contending forces. Some such settlements may lay better claim than others to the label “popular representation,” but it is the settlement that defines the legislature’s rights, not the Platonic concept.

  Whatever the Kadets’ zeal for immediate constitutional reform, they could not in the end cleave to the notion that it must be a predicate to substantive legislation. In fact, the Duma did pass one piece of legislation—abolition of the death penalty. But here again rhetorical sloppiness sabotaged legislative accomplishment. The death penalty applied to civilians in Russia primarily because the extraordinary security laws (in the regions where they were in effect) gave provincial governors and the ministry of internal affairs authority to transfer cases to military tribunals, which, unlike civilian ones, had the power to impose capital punishment.16 The Fundamental Laws were no obstacle to changes in this relationship: Article 15 said the tsar had authority to decree where the extraordinary security laws applied, but left authority to amend the extraordinary security laws themselves to the usual legislative processes. So the Duma could have attempted a neat surgical cut, excising the government’s power to shift cases into the military courts. Instead it enacted language that seemed to ban the death penalty in all circumstances.17 Of course the breadth of the Duma’s bill ensured that it would not receive State Council endorsement. The State Council in fact referred the bill to a committee, which produced a bill that left intact the power of governors to transfer cases to the military courts. This denouement suggests that Maklakov was likely wrong to have suggested that the government would have agreed to a major cut in transfers from civil authorities to the military courts, although perhaps a more realistic bill from the Duma would have received more benign treatment from the government. In any event, his basic criticism stands: the Duma’s bill—adopted unanimously and to loud applause—guaranteed continuation of what it sought to end.18

  Even though they performed some substantive work, the Duma majority seemed little interested in such accomplishments. For example, in evaluating issues for possible legislative activity, some Kadets counted the prospect of government agreement and cooperation as a ground not to raise the issue. When a deputy suggested that the Duma’s address in response to the tsar’s include a proposal for expanded public education, a Kadet objected “that this subject would be accepted with delight by the government, which would add similar, politically inoffensive objectives for harmonious work with the popular representatives.”19

  Of course the Duma majority and the regime were hardly in agreement on policy issues such as the so-called agrarian question. But true to form, apart from substantive disagreement, both sides framed their positions in a style that managed to be both inflammatory and muddled. Very broadly speaking, the Duma majority favored the redistribution of land (taking from the gentry, giving to the peasants), whereas the government favored enhancing peasant ownership, so that an enterprising peasant could forge ahead without the approval of the “society” or “commune” to which he belonged, and with entitlement to the full benefit of his enterprise. Within the left, the Kadet party favored redistribution with compensation, though it objected to compensation at market value and left utterly mysterious what principle should govern compensation. Yet in the address to the tsar, the Duma spoke of “obligatory confiscation of private lands,” not mentioning compensation at all. It thus seemed to adopt the view held by parties to the Kadets’ left.20

  The government responded on May 13—the very speech in which it sketched out the reform program mentioned at the beginning of this chapter. But the government also overstated its position, saying that a solution to the agrarian question “on the basis of the Duma’s proposals is absolutely inadmissible.”21 Nothing in the Fundamental Laws, however, seemed to bar the Duma’s ideas, so it is hard to see just what made them “inadmissible.” (If a court treated the October Manifesto as being of constitutional weight, it might have found its reference to “the unshakable foundations of civic freedom” to be a basis for invalidating uncompensated takings of land. But no one—least of all the government—was thinking of a court exercising that sort of freewheeling power.) The government could have contented itself with saying that it would oppose these ideas and, if they passed, with urging the State Council to reject them. Instead, it chose an inapt word that pointlessly infuriated the Duma members.

  As the Duma’s committee on agrarian matters hadn’t reached agreement on any bill, and seemed not to be on the verge of any agreement, the Kadets had the idea of responding to the government’s statement with an appeal to the people on the subject. But the absence of any Duma consensus meant that the appeal itself would lack any clear policy content. It stuck to vague phrases about compulsory confiscation and ended by saying that the Duma would not retreat from this position, “that any proposals not in agreement with it would be rejected.” Again the language was pointlessly provocative. Many of the government’s ideas were not mutually exclusive with the Duma’s; if the Duma meant that only carbon copies of its ideas were acceptable (a quite plausible reading), then it was vetoing in advance any deal that would satisfy some of each side’s priorities.22

  Not to be outdone, the government gratuitously provoked the Duma with its reaction to a rightist campaign of telegrams to the tsar. The telegrams made a number of fantastic claims—for example, accusations that the Duma was plotting to seize the government and was working for dismemberment of the empi
re. Many attacked ethnic minorities, especially Jews, and some called for the Duma’s abolition. Instead of either remaining silent or disassociating itself from the campaign, the government published the telegrams in the Government Gazette (Pravitelstvennyi Vestnik), thus seeming to express the tsar’s solidarity with a party position—a solidarity plainly at odds with the position of a constitutional monarch. This led to a formal questioning of Goremykin by the Duma (an “interpellation”) and a frosty but pointless exchange.23

  One last substantive issue deserves mention: amnesty. The very first speech delivered in the Duma was a dramatic call for amnesty by a Kadet, I. I. Petrunkevich. The address to the tsar, while perhaps in form respecting the Fundamental Laws’ allocation of the power of amnesty to the tsar (Article 23), nonetheless identified amnesty, for all crimes committed out of religious or political conviction, as a “demand of the popular conscience.” The “demand,” issued in a period when assassinations of government employees were averaging three hundred per month, and coupled with staunch Kadet refusal to condemn terror, seems highly provocative. A reader of a right-wing newspaper sent a letter to the editor that was nominally addressed to a Kadet Duma member, F. I. Rodichev: “Dear Mr. Rodichev, I am going to kill you for political reasons; please will you ask an amnesty for me in advance?” Maklakov in his history of the First Duma argued that an amnesty would make sense as a gesture of reconciliation celebrating the end of hostilities—a happy moment that plainly had not arrived. The Duma’s position seemed to align it with the revolutionaries.24

  On the night of July 8–9, 1906, little more than two months after it had assembled, the tsar dissolved the Duma under Article 105 of the Fundamental Laws. The tsar also issued a manifesto offering three reasons for the dissolution: (1) the Duma’s supposed violation of Article 107, which denied it power to initiate changes in the Fundamental Laws; (2) the Duma’s sending a mission to investigate the Bialystok pogrom, a pogrom the government had probably instigated and had undoubtedly failed to promptly quell; and (3) the Duma’s appeal on agrarian policy. (The phrasing was somewhat more veiled, but these were clearly the sins the government had in mind.)25 As legal matters, all three seem very weak. As we’ve seen, Article 107 didn’t stand in the way of the substance of the structural changes that the Duma majority would have liked to make. While the Fundamental Laws didn’t give the Duma the power to send investigative teams, neither did they withhold such a power. And the appeal on agrarian matters also violated no law.

  What seems most surprising is that the government bothered with the explanatory manifesto at all. Article 105 didn’t require an explanation, and the nature of the action suggests that the power was entirely discretionary. (Article 105 said the decree must provide for new elections and name the date when the next Duma would convene, but the inclusion of those details only supports the natural reading that the laws left the decision to dissolve entirely to the tsar, subject obviously to political constraints.)

  The actual reasoning of the cabinet curiously did include the inquiry mission to Bialystok. But it also rested on the ultimate conclusion made by most of the ministers—and this seems to have been far more important—that the only alternative to dissolution was to name either a Kadet ministry or a government of public activists. “In either case, the result would be the same: the new government would be unable to stem the revolutionary tide.”26 These conclusions presumably came from the whole tenor of Kadet behavior in the Duma: failing to act as a serious negotiating partner for substantive reform, regarding emissaries of the government as ipso facto illegitimate and unworthy of being heard, treating the Fundamental Laws as illegitimate simply because they didn’t establish a parliamentary regime, endorsing amnesty but refusing to condemn revolutionary terror, and doing little to staunch the flow of revolutionary rhetoric from Duma members on the Kadets’ left.

  Analyzing the matter in retrospect, Maklakov perceived himself and Miliukov as each seeing dichotomies—but fundamentally different ones. Miliukov tended to see Russia’s great division as lying between autocracy and the constitution for which he longed, whereas Maklakov saw it as between the constitution, already achieved, and continuing revolution.27 On the first premise, the Kadets must line up with the revolutionaries (or at least refrain from efforts to curb them); on the second, obviously not. Maklakov saw the first premise as a residue of the pre–October Manifesto alliance between the “liberation movement” and the revolutionaries, an alliance that made sense to Maklakov only until the October Manifesto and the revised Fundamental Laws opened the door to reform through peaceful political action.28

  Maklakov argued that the Kadets’ stance had two unfortunate consequences: first, a direct sharpening of the social and political divide; and second, the loss of a vital opportunity for political experience. He invokes Stolypin’s observation, “In politics there is no revenge, but there are consequences.”29 As he viewed them, the obvious consequences were a shift to the right by the tsar and the forces around him, and by the Octobrist party, with a concomitant emboldening of the extreme right.30 These consequences seem altogether natural. An insistence on the tsar’s capitulation by a group that the regime had hoped were nonrevolutionary moderates plainly tended—from the tsar’s point of view—to undermine the advantages of constitutionalism and cooperation. It strengthened a key argument of those who disliked constitutionalism and the rule of law, namely, that regime concessions along these lines would encourage revolution, not abate the risk.

  The other general consequence was, in a sense, simply the converse of the first. Russia had no prior experience with the combination of the old regime and a popularly elected legislature. If that combination was to lead peacefully to a constitutional regime embodying the rule of law, it obviously required a degree of cooperation. Although I don’t believe Maklakov ever quotes Aristotle, he clearly shared his view as to how humans acquire capacities for particular conduct: “Men acquire a particular quality by constantly acting a particular way . . . you become just by performing just actions, temperate by performing temperate actions, brave by performing brave actions.” In their conduct in the First Duma, the Kadets, not for the first time nor for the last, passed up a chance to learn constitutional behavior.

  In evaluating the Kadet and regime strategies, one is tempted to assign them ratings for their willingness to cooperate. Let us assume that the regime deserves to be rated lower than the Kadets. That lower rating doesn’t mean that a different Kadet strategy might not have altered the outcome. If we hypothesize a replay of the game with a different Kadet approach, we can’t casually assume that the government would not have altered its behavior.31

  Though the dissolution violated no legal rule, it enraged the Kadets and their allies to the left. Members of those groups (most but not all of them Duma members) repaired to the town of Vyborg, which, because it was located in the Finnish part of the Russian empire, offered a legal regime more favorable to protest. There they adopted what became known as the Vyborg Manifesto. There were two competing drafts, a Trudovik version seeming to call for revolution by the army and navy, and a Kadet version calling for civil disobedience in the form of refusal to pay taxes or appear for compulsory military service. They chose the milder one; it could thus be said later that the Kadets had held their leftist friends back from repeating the error of the October-December uprising in 1905. The Manifesto brought forth virtually no response from the people summoned to resistance: Kizevetter later observed that critics called it a case of “shooting a blank.”32

  But the manifesto was not such a blank from the legal perspective. The signers were promptly charged with distributing offensive material, and thus were subject to a possible ban on seeking election to the Duma. A charge of merely writing the manifesto would have been far more accurate but would not have had this effect. When the case came to trial (only in December 1907, after the end of the Second Duma), the evidence linking the defendants to the distribution appears to have been too weak for a finding of gu
ilt under Russian principles of aiding and abetting.33

  In the central committee meeting just after the dismissal of the Duma, Maklakov had spoken very sharply against issuing the Vyborg proclamation. For that reason he didn’t want to participate in the defense at the trial. But he did so, at the defendants’ request; of the three defense lawyers, he gave his summation last. (Sixteen of the defendants also exercised their right to speak on their own behalf, emphasizing their political justifications.)

  He reviewed the legal frailty of the prosecution’s case, and the obvious reason why the government had chosen a crime for which the evidence was inadequate but the political consequences desirable (for the government). “Thus the criminal court becomes a weapon of political struggle, and its goal is to drive the opponents from the political arena.” He then launched into a celebration of the rule of law, what he called his “confession of faith”:

  I’m not speaking as a political comrade in arms of the accused . . . , nor as a lawyer who must painfully watch indifferently as the law is tortured before his eyes. I’m speaking as a person who has the weakness to think that the court is the highest organ of state power, as the law is the soul of the state system. A country suffers harm not so much from erroneous or imperfect laws, as from lawlessness going unpunished. However good the published laws may be, however good the legislative machinery, if there is no one to protect the laws, then no good will come of them for Russia. The preservation of the law from any violation, whether from above or below, is the task of the court. People may be dissatisfied with the courts, they may drag them into the struggle of political parties, they may threaten their tenure, but so long as the courts—independent even though much changed—stand guard over the law, so long will the state live.