The Reformer
Page 18
In 1907 two members of the Third Duma, A. M. Koliubakin (a Kadet) and V. E. Kosorotov (a Social Democrat), were charged with crimes arising out of their political activities. Koliubakin had given speeches tracking the ideas of the Vyborg Manifesto, that is, calling for civil disobedience to protest the tsar’s dismissal of the First Duma.5 Kosorotov had given a speech that was anodyne in content but rabble-rousing in style. He had said it was time to replace the existing government with one chosen by the people, among whom, he said, there were people much more honorable, and wiser and better than the current government. But he punctuated the speech with calls for audience reaction, and the crowd responded with loud “hurrahs.”6 Despite the hurrahs, Maklakov noted, the indictment made no claim that Kosorotov had in any way invited lawless acts.7 Though the courts convicted the two deputies, the trial judges chose not to bar them from the political process, a punishment the sentencing statutes put in their hands.
But a combination of statutes said that if a deputy was charged with a crime for which the judge had the option of imposing a loss of electoral rights and the deputy was “not acquitted,” he was automatically excluded from the Duma, regardless of whether the judge actually imposed the loss of electoral rights.8 But what did “acquitted” mean? The most obvious answer was “found not guilty.” Maklakov countered that it made more sense to read the term to mean “not subjected by the court to loss of the specified rights.” That reading preserved the long-standing Russian tradition of vesting courts with discretion over such a deprivation. Most important, he argued that his interpretation enhanced the independence of the representative branch of government by reducing Duma members’ exposure to retaliatory removal via government prosecution: “For the renewal of Russia, we do not want a system under which people [read: the government] are free to remove their opponents from participation in the process.”9
Maklakov lost this gambit, but the loss is not surprising. Context, and a vision of a wholesome polity, supported him, but his reading wasn’t linguistically obvious, perhaps not even plausible. In the end, the Duma accepted the broad reading of the statutes and voted to exclude both deputies.10
Second, the use, let alone abuse, of the extraordinary security laws of 1881 threatened the rule of law. These laws enabled officials to exile citizens for up to five years, to imprison them for up to three months, and to impose potentially ruinous fines, with no check from the judiciary or indeed from any force outside the government itself.11 And despite the principle that the executive could only act pursuant to duly adopted law, and the Duma’s having not affirmatively renewed the laws after the lapse of their one-year term, the Kadet effort to stop their application (described in chapter 5) failed. The government continued to apply them.
Although Maklakov didn’t participate in the Duma debate challenging the legality of the continued application of the extraordinary security laws, he inveighed frequently against the government’s use of them, often citing absurd applications. His specific targets were usually the ministry of internal affairs or a provincial governor. Internal affairs, he pointed out, had come to swallow up the other parts of governance, so much so that before the creation of a (moderately) centralized cabinet under a premier in 1905, periods in Russian history had generally been known by the names of the minister of internal affairs—for example, Sipiagin, Plehve, Sviatopolk-Mirskii.12 And provincial governors were the local representatives of the ministry.13 So the ministry and the governors were, for the most part, interchangeable offenders.
Maklakov gave examples of how the ministry of internal affairs used the laws to punish the press and others for innocuous statements—such as reporting the opinion of a member of the State Council on the dissolution of the First Duma, discussing a congress of zemstvos, or identifying inadequate medical supervision at a hospital.14 An especially silly action was an order by the governor general of Ekaterinoslav requiring that any building in which a bomb was found must be blown up; on top of that, in a case where the building’s owner clearly could not have known of the bomb, he was fined 3,000 rubles and sentenced to prison for three months.15 Another example was the authorities’ use of the laws to exile an Old Believer bishop, one John Kartushin, because he wanted to register with the police as a bishop rather than, as the police preferred, as a “meshchanin” (roughly, “petty bourgeois”).16 The government used the laws to close eighty-one labor unions, thus short-circuiting the natural give-and-take between labor and capital, and tending to substitute the government for employers as the natural object of the employees’ wrath.17 And the ministry of internal affairs routinely banned or closed public meetings without regard to its own March 4, 1906, rules allowing such meetings (subject to conditions). In one case, the mayor of St. Petersburg banned a meeting simply on the ground that it was public—precisely the characteristic for meetings singled out by the rules as allowed.18
In his characteristic way of trying to point a path to a more cooperative future, Maklakov argued that, while in the old days before the October Manifesto it might have been necessary for the regime to use force to preserve itself, now, with a representative body, the government could develop communications with the people—certainly with the strata represented under the modified electoral laws—and could enlist their interest in solving the country’s problems. He envisaged the country, thanks to the October Manifesto, no longer ruled by a single will from St. Petersburg but rather collectively engaged in creating a new life, with many issues resolved by voluntary agreement.19 He also suggested a practical if partial explanation for official lawlessness—the officials’ low pay.20
Maklakov often taunted the government for its vague but unfulfilled expressions that the country should be done with the extraordinary security laws, either immediately or as conditions warranted. In 1910, three years after the convulsions of the 1905 Revolution had ended, all was calm, but the government boasted that it had reduced orders of administrative exile from 10,000 a year to 2,000. If the secret police could find 2,000 to exile in such conditions, he asked rhetorically, what stopped them from finding 10,000?21 Year in and year out, no matter how calm the country was, the government somehow never found the moment apt for a repeal.22
A third subject of Maklakov’s attacks was the government’s aggressive use of undercover agents. Regimes threatened by sedition must deploy undercover agents and tsarist Russia was no exception. But there are limits. Maklakov highlighted practical absurdities and moral corruption.
On the practical level, he pointed to what seemed to be innumerable cases where the seditious activity depended entirely, or almost entirely, on activities of the secret agents of the secret police. In a trial for bank robbery, it came out that the secret police had supplied the weapons. A military court found that a group of secret agents had shipped a vast supply of subversive literature across the border by bribing border guards, turning them into criminals. The investigating judges found that the agents’ purpose was to press the contraband into the hands of naïve radicals and thus incriminate them.23 His Duma speeches are chock full of episodes of this sort.
Maklakov of course recognized the need for some undercover work, as did Stolypin. At least for public consumption, Stolypin drew a line between initiating a crime, which he saw as excessive, and merely reporting or helping a crime’s commission, which he regarded as permissible. Maklakov took a more restrictive view, arguing that even helping the commission of a crime was wrong.24 I’ve found no place where he specified just how much help would qualify (surely not merely giving a perpetrator an easily ascertainable address or handing him a pencil for which the perpetrator could easily find substitutes?), but in the accounts of government behavior that he gave on the Duma floor, the help in question seems to have been robust, energetic, and almost certainly essential. That said, it would be nice to see an astute lawyer such as Maklakov drawing careful lines and more emphatically acknowledging the need for protection from subversion.
On the ethical issue, Maklakov argued that,
in reality, revolution and provocation shared a similar contempt for morality and ethics: They are “both born of one faith, one outlook, one cult of force, one spirit of legal and moral abandon. On one side the government’s lack of principle is manifested in provocation, on the other the revolutionary lack of discrimination is manifested in revolutionary terror. It is like the government in the way that a negative matches a photograph. The revolutionary terrorists laugh at the stories of peaceful struggle, of using cultured methods, at respect for the law.” The revolutionaries’ laughter, he thought, was echoed on the government side in a phrase coined by arch-reactionary Markov II for any kind of ethical restraint on the government’s part: “sniveling humanism.”25
Nor was Maklakov ready to accept the government position that most or all of the agents’ excesses were just the activity of rogue subordinates. What was crucial was the attitude at the top: in practice, those at the top rewarded or winked at those involved in committing excesses of entrapment and punished those who exposed the wrongdoing. The most notorious case was that of Alexei Lopukhin, a police official (for a time head of the department) who publicly exposed Evgenii Azef, a secret police double agent. Azef had played a lead role in two of the era’s most extreme acts of terrorism, the assassinations of Minister of Internal Affairs V. K. Plehve and of Grand Duke Sergei Alexandrovich. Lopukhin’s reward was to be himself charged with treason for giving up state secrets, and to be found guilty of a different crime—participation in a terrorist society—in a trial that Maklakov viewed as rife with procedural violations.26
Maklakov also argued that the government’s overuse of undercover agents and their entrapping practices fomented sedition, or at least the appearance of sedition, and thus created excuses for further delay in reforms. “When we hear that the government will support reform when sedition comes to an end, and yet the government is stirring up and sowing sedition, the contradiction forces us to doubt its claims.”27 Again, he linked the abuse of undercover agents to the government’s failure to seek popular support:
Our government, which grew up in the struggle with sedition, now cannot live without sedition; without it, it doesn’t know what to do, how to use its army of functionaries. It occupied itself with suppression of sedition, when there was none; it seeks it out where it cannot be found; it creates it, it revolutionizes whole regions hitherto quiet; it turns loyal citizens into enemies; and it does this because it justifies not only its conduct but its existence. In the struggle with this imaginary danger it doesn’t notice the real danger, the great danger of our time, which consists of the collapse of the popular spirit and the universal dissatisfaction in the country.28
It cannot be said that this despairing cry produced any change in government conduct.
Did the replacement of Alexander Makarov with Nikolai Maklakov as minister of internal affairs in late 1912, soon after the start of the Fourth Duma, have any effect on Vasily Maklakov’s barrage of attacks on the ministry’s lawlessness? Nikolai had been considered for the position after the 1911 assassination of Stolypin, who had been both premier and minister of internal affairs. The appointment in fact went to Makarov, largely, it appears, through the intervention of Count Kokovtsov, the new premier. But in little more than a year Makarov lost the tsarina’s favor, evidently because of his decision to forward her letters to Rasputin to the tsar, or his inability or unwillingness to stifle criticism of Rasputin. Nicholas II had previously formed a favorable impression of Nikolai Maklakov, apparently based on his enthusiasm for the idea of a “strong tsar.” Makarov’s fall opened the way for Nikolai’s rise.29 So far as I can make out, the change produced no slackening in Vasily Maklakov’s attacks on the ministry’s arbitrariness.
One of Vasily Maklakov’s first attacks on the new ministry had a nice irony. His immediate target was an edict stretching the extraordinary security laws beyond their supposed goal of controlling sedition; this one would allow internal affairs officials to imprison “hooligans” for up to three months. By coincidence, Maklakov had been mugged shortly before on the streets of St. Petersburg, where the new program was being launched; Pyotr Novitskii, a rightist defender of the new approach, seemed to think that as a victim Maklakov should be the first to embrace the new policy. Maklakov answered that opponents of the rule were perfectly happy with strong measures against hooliganism; they were just against ones that violated the principles of the October Manifesto. He compared the policy to the provision allowing land captains to jail a peasant for hooliganism for three days, saying that the new policy extended that approach to any citizen, and for three months. Novitskii interrupted, “Not citizens, hooligans,” reflecting the regime’s characteristic assumption that officials would never err in labeling someone a malefactor.30
A fourth target of Maklakov’s attention was Article 87, which as we’ve seen allowed the government, while the Duma was not in session, to issue a law on its own—though only with temporary effect. Maklakov attacked Stolypin’s use of the article to give Russia’s western provinces the institution of the zemstvo (local self-government in rural areas). The episode is usually seen as a case of Stolypin’s overreaching against the tsar and the latter’s right-wing allies. But for Maklakov, the key issue was Stolypin’s abuse of Article 87, and more specifically a lack of the good faith that he saw as required for a constitution’s proper functioning.
Stolypin’s proposal was to bring the zemstvo to Russia’s nine western provinces. But to counteract the electoral influence of the many aristocratic Polish landowners there, the bill would give a stronger voice in zemstvo elections to local peasants (of whom a majority were Ukrainian or Belorussian, but Orthodox and viewed by Russian nationalists as Russian and reliable) than the zemstvo laws gave peasants in the other regions of Russia. Three of the original nine provinces were soon dropped, essentially because the Russian landowners there were too outnumbered to secure control under any plausible scheme.31
The measure passed the Duma but was then rejected by the State Council; Stolypin saw in the rejection the treacherous hand of the tsar. Two members of the Council, Pyotr N. Durnovo and Vladimir Trepov, appeared to have acted as the tsar’s cat’s-paws. In tumultuous exchanges involving threats of resignation and interventions by the dowager empress, Stolypin demanded of the tsar, and got, an order temporarily banishing them from the capital and a grant of authority to issue his bill on the zemstvos by a decree under Article 87. To meet Article 87’s threshold condition that the Duma be out of session, Stolypin prorogued both legislatures for a three-day recess and then adopted the law as a decree.
Article 87, of course, gave the government the choice of letting the “emergency” measure expire after two months from the opening of the legislature (by not introducing it as proposed legislation), or of introducing equivalent legislation in the Duma, with the risk of its being killed by either the Duma or State Council. But before the two months ran out, State Council and Duma members launched an array of “interpellations” assailing the premier. In his speech Maklakov expressed indifference as to whether the use of Article 87 was technically legal. It seems reasonable to assume that Stolypin’s move presented no such illegality. In failing to define the “extraordinary circumstances” that entitled the government to action, the article seemed to leave the existence of such circumstances to the government’s political discretion. This is not to say that the article lacked any legal constraint on its exercise: its limits on how long such a decree could remain in effect seem to offer the kind of clarity needed for legal enforcement.32 But Maklakov disputed the political propriety of the regime’s actions. He quoted Bismarck, this time for the idea that good will and loyalty were necessary in the application of law.33 He saw neither in this case. The claim of emergency was laughable, especially in light of Stolypin’s casual dropping of three of the affected provinces. And could it be seriously argued that the few weeks between Stolypin’s chosen proroguing date and the legislature’s regular vacation were of any consequence?34
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sp; Maklakov also rejected Stolypin’s claim that failure to use Article 87 would increase the State Council’s readiness to veto Duma-approved bills, which Stolypin argued would confirm the public perception of the legislative bodies’ stagnation and triviality.35 Again he quoted Bismarck, this time for the thought that the essence of constitutionalism is compromise. Applying that concept, he said that a brief retreat in the face of the State Council’s rejection would have been sure to work; with a little patience on the premier’s part, the upper house could be mollified. He reasoned, as he was later to write when analyzing the Fundamental Laws in his historical writings, that in all countries the upper house must ultimately retreat before the opinion of the country and the lower house. But for Stolypin, he said, a defeat was so extraordinary that he took it as a social calamity.36
Maklakov closed by noting that, although the premier had finally won a great victory in the State Council, it would likely cost him dearly:
For government officials of this type, who with excessive faith in their own infallibility and excessive disdain for the opinions of others place their own will above the law, the Russian language has a characteristically expressive term, “minion” (vremenchik). Their time has come and gone. The premier may yet remain in power: fear of a revolution that his own agents are creating preserves him (Count V. A. Bobrinskii, from his seat: “Shameful!” Uproar), as does the danger of creating a precedent.37 You may look on his agony with varying feelings, but I will say in the words of the premier himself, “In politics there is no revenge, but there are consequences.” They have come, and you cannot now escape them. (Applause from the left and cries of “bravo”; rustling from the right.)38