Judicial Procedure and Violence

Early modern Russian courts used an accusatory framework for disputes over property, honour and other lesser issues. Here interested parties initiated a case, brought their own witnesses and had the right to reject their rival's witnesses, speak in their own defence and reach a settlement; the judge's role was relegated to assessing the evidence if a settlement was not reached.

For criminal cases the more intense inquisitorial framework was used. Inquisitorial trial procedure expanded across Europe with a revival of Roman law in the sixteenth century; Russia probably encountered it through contacts with the Polish-Lithuanian state. In its classic form, embodied in the Holy Roman Empire's Constitutio Criminalis Carolina of 1532 and the French Criminal Code of 1539, an inquisitorial trial took place in a closed court; its proceedings were recorded in a written dossier by a legal expert, the prosecutor, who conducted interrogations, sometimes with the aid of torture. A judge or panel of judges rendered a verdict on the basis of the dossier. Torture was regulated: ‘probable cause' was required for its use, a maximum number of sessions was prescribed, witnesses and medical personnel were present and the tortured person had to sign the testimony the next day.

Russian law adopted aspects of the inquisitorial framework: the judge took a decisive role in interrogation (obysk) and verdict; reputation was included as evidence; judicial torture was allowed, with ‘probable cause' defined as accusation by another criminal, being caught in the act or with material evidence, or being considered a ‘known criminal'; settling capital cases was forbidden. But there were also significant relaxations of the rigour of the European inquisitorial process: witness depositions took place in an open courtroom, torture sessions in an alcove (the zastenok) at the governor's offices, no safeguards were prescribed for torture sessions.

Judicial practice suggests a limit of three torture sessions for common crime, but for the highest religious and state crime that tacit limit was ignored.^{^[584]} Case law does not record witnesses to torture or even the number of blows in a session until a few citations in the early eighteenth century. No learned prosecutor compiled a closed dossier; rather, through the process judicially knowledgeable scribes assembled all relevant documents, including transcripts of interrogations and torture sessions and citations from relevant laws, and read the material aloud to the judge for directives. Ultimately a scribe read the entire text to the judge for sentencing (as military men, at least before the eighteenth century judges were generally illiterate).

The relative simplicity of the Russian inquisitorial courtroom corresponds to available resources. While the Carolina advised German judges to confer with the faculty of the nearby university on difficult cases, Russia had no such recourse (its first university was founded in 1755 in Moscow). The judiciary was not separated from the administrative and executive until the reforms of 1775 (and for less than a decade in the late 1710s). In addition to being judge, the governor was garrison commander, tax collector, overseer of customs and trade, diplomat in border posts and general jack of all trades. Judicial expertise resided in the scribes, trained in law and procedure in the Moscow Felony Chancery, which in turn deployed trained scribes to local offices to maintain standards.

Chancery scribes went through years of apprenticeship, their training reinforced by the bureaucracy's system of document composition. Intentionally repetitive, the format required that prior documents be copied verbatim before a response was added. Cases involving months of correspondence and trial process (interrogations, summons, torture sessions, surety bonds) grew into thick, fat scrolls. Such redundancy not only preserved the history of a case (helpful since governors were reassigned every few years), but also by sheer repetition taught procedure and legal norms to local scribes and judges forced to sit through oral readings.

Local courts could appeal to the Moscow chancery on difficult or very important cases; judges routinely did so for capital cases even before such referral was required in the early eighteenth century. Despite the lack of formal legal training, early modern Russian criminal legal practice was remarkably consistent. In cases from Ukraine to Siberia, the same document forms and legal terminology were used and the same legal procedure and sentencing norms were applied. All the tsar's subjects, regardless of ethnicity, gender or religion, from Estonian peasants to Iakut nomads, were subject to the criminal court and served as plaintiffs and defendants, witnesses and sureties. The consistency of criminal legal practice across the empire is a striking demonstration of Russia's commitment to centralisation.

Legal practice, however, exhibited a flexibility in procedure and sentencing that might seem at odds with the state's dogged pursuit of control but which is characteristic of most well-functioning judicial systems; settlement, mediation and mitigation of sentences were common across early modern European judicial venues, primarily because trials were expensive and socially divisive. In Russia, other factors told as well. First, the dearth of manpower that plagued the state meant that local judicial offices - bailiffs, jail guards, executioners and posses - were staffed by residents fulfilling their mandatory service to the tsar,

Crime and Punishment in the Russian Empire generally with minimal salary. Only the scribes were full-time salaried employees of the state. Thus, when it came to chasing down a suspect or inflicting blows of the knout in torture and punishment, neighbours were facing neighbours. This could predispose the judge to go lightly (or harshly for criminals the community despised).

Second, subjective judgement was written into the inquisitorial system in the provision of reputation as evidence and in the granting of mercy. Surveys of community opinion of an accused were done to gain information on collaborators, prior intent, eyewitness evidence and also reputation.

If the community considered a defendant a known criminal, or ifhe were a stranger, this was cause for torture and harsher punishment. Alternatively, such surveys could inspire judges to mitigate sentences for defendants about whom the community spoke favourably. In 1646, for example, community members interceded for a woman who had admitted intentional murder. The husband she killed, they said, was an evil man, and she was a ‘good woman'. The judge reduced her death sentence to a knouting in the interest of social equilibrium. Adding to the moral basis of legal proceedings, in almost all cases where the defendant was not sent to exile, the community (neighbours, kin, village elders) was required to sign a guarantee bond, accepting collective responsibility for a high fine should the defendant commit a crime again.

The judge's mercy fulfilled more than the laudable desire of maintaining social equilibrium. It also responded to Russian political ideology. Typically for early modern monarchies, Russian ideology depicted the tsar as a just judge, whom his people could personally petition for mercy and favour. Enacting this role, rulers regularly dispensed amnesties on holy days and other celebrations and regularly mitigated sentences themselves or in the person of local judges reducing sentences in the sovereign's name. Offering mercy regularly, particularly at the local level, enhanced the tsar's and the court's legitimacy and contributed, however minimally, to social cohesion. Mercy also stemmed from litigants themselves. Victorious plaintiffs sometimes protested an overly harsh sentence and asked the judge for mercy on the defendants. Furthermore, despite a law against this, litigants (with the judge's approval) occasionally settled even capital cases, usually to compel the survivor to provide material support to the victim's family.

Some structural aspects of this system weakened the provision of justice. Governors were supported by their communities with housing, transport, food and services, which could in the extreme lead to abuses by greedy officials and at the least created what Brian Davies calls a ‘gift economy' in which the community expected officials to reciprocate with cooperative

policy in proportion to the gifts given.^{^[585]} A community's local moral economy set the line between gift and bribe, appropriate service and abusive demands.

Like judges, scribes were also susceptible to corruption because of poor compensation. Throughout the seventeenth century scribes were paid both a salary and fees for services, but for most of the eighteenth century salaries were eliminated and clerks lived only from fees, also opening the door to corruption and abuse.

The state tried to combat corruption by threatening fines or corporal punishment on corrupt officials and bribe-givers alike: instances are frequent in which governors urgently defend themselves from such accusations, desperate to maintain their honour and their job. Governors served only brief terms of one or two years (up to four in Siberia) to prevent them from building up local power or inflicting excessive corruption. Peter I was particularly incensed by graft of state funds and some of his most spectacular public executions were of venal officials. But the infrastructure was weak: the state never devoted the resources to audit and investigate or to pay staff adequately. Complaints that justice was slow or venal abounded. Catherine II worked to create a more effective officialdom by restoring salaries for officials and eliminating community upkeep in 1764. In 1775 she reformed local government with a denser and more professional network. She doubled the number of provinces (gubernii) from twenty-nine to fifty with a total of 585 districts across the empire, and introduced in all gubernii and districts the same three offices (Treasury, an administrative ‘Land Court' and a judicial hierarchy of lower and gubernia-level courts). The reform's judicial organisation provided a hierarchy for appeal; lower courts included representatives of the local population, including native peoples and native law. But some of the same problems endured into the nineteenth century - insufficient bureaucratic personnel, inadequate funding and a dearth of judicial expertise.

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Source: Antony Robert, Carroll Stuart, Pennock Caroline D. (eds.). The Cambridge World History of Violence. Volume 3: AD 1500-AD 1800. Cambridge University Press,2020. — 710 p.. 2020

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