Punishment

Russia's regime of judicial punishments was simple. For some disputes, such as insult to honour, generally fines were imposed.^[586] But for serious crime, sen­tences emphasised corporal punishment.

Crime and Punishment in the Russian Empire momentum. It could flay a man's back in a handful of blows. Less harsh beatings were by bastinadoes (a cluster of rods) or lashes (pleti). Torture was done by knouting, with the individual raised on strappado; suffering was intensified by adding weights between the bound legs and shaking the hanging body. Torture by fire was rare but practised for the most serious political crime. As noted, for torture and beatings, laws and sentences did not specify how many blows or how harsh to be, although occasionally punishment was ordered to be given ‘mercilessly' (neshchadno). Mitigation could come from the judge's discretion or from the fact that executioners were locally recruited and might have reflected community sentiment, but investigations of treason and witchcraft brought out the greatest brutality in Muscovite legal practice. Multiple torture sessions, with weights, shaking, fire and all possible enhance­ments, were common. Peter I delegated to one of his trusted regiments the investigation of a rebellion against him in 1698 and that office - the Preobrazhenskii Chancery - became the locus for intense investigations of treason for the first half of the eighteenth century.

Capital punishment was done in Muscovy primarily by beheading and hanging. As in Europe, those sentenced for witchcraft and heresy were burned, their ashes scattered to the wind to destroy any trace of evil spirit. Women who killed husbands were buried up to the neck to die (mentioned in 1649, abolished in 1689, this bizarre punishment endured several more dec­ades).

down a block for beheading or threw together a wooden cage to be stuffed with hay and tar for burning witches and heretics. Despite these simple formats, after months of trial an execution carried out immediately might well have shocked the community. The terror in Muscovite punishments was probably in their speed.

While judicial punishments were measured doses of violence, Muscovy certainly used brutal and exemplary violence in times of rebellion. When Stepan Razin's uprising of Cossacks and peasants on the Volga was put down in 1670-1, thousands were killed on the field of battle or in razed villages and hundreds of others were hanged along the Volga River or at battle scenes.

Peter I brought a new level of violence to judicial punishment. He witnessed a day-long ‘spectacle' of execution in Amsterdam in 1698 and brought the practice home to Russia. In Moscow and St Petersburg he built permanent stands for the display of body parts and staged mass executions for the 1698 musketeer rebels, for a circle around his son Aleksei found guilty of treason in 1718, and for several extremely corrupt officials. He and his immediate pre­decessors introduced some new forms of punishment, probably suggested by European officers in Russian service; Peter I was particularly close to the Scot Patrick Gordon and the Swiss Franz Lefort. Quartering was used in four cases of treason from 1653 to 1698; Peter I introduced breaking on the wheel and even ordered one man impaled and another roasted alive. Peter I's military codes, borrowing from foreign models, added such brutal punishments as running the gauntlet. As a rule, military codes were not applied in secular courts, but given the huge size of the army and its dependent employees and the application of military law in the borderlands, they had social resonance.

Judicial violence nevertheless declined in the eighteenth century as the exile system grew. From the late sixteenth century onwards men convicted of serious offences short of capital crime were sent to settle Siberia or the border­lands, taking up jobs related to their skills (farming peasants, urban artisans, even musketeers and garrison troops).

(new ports, harbours and canals, factories and mines, a new capital city at St Petersburg) and a new navy in need of galley oarsmen, the state decided to risk using even capital criminals for such ‘hard labour' (katorga). Laws extended the number of felonies required before the death sentence was invoked, and narrowed the range of crimes worthy of death; all other serious criminals went into exile and the use of capital punishment declined. Exile was brutal: many were sentenced to be knouted before being sent off, transport to places of exile was arduous and living conditions were primitive.

Because the use of capital criminals for labour in exile posed a special problem of control, the state developed cruel but effective systems of bodily marking to identify such exiles. The Ulozhenie of 1649, the Criminal Articles of 1669 and other decrees of this era prescribed bodily mutilation by severing an ear or finger for capital criminals and felons, mandating a succession of mutilations (left ear for first theft, right ear for second theft) for felony, theft and robbery so that the disfigurements became a semiotic record of the crime itself. If a man with two severed ears committed a theft, it was clearly his third, which merited the death penalty.

By the 1690s bodily mutilation was being replaced with less debilitating branding (often a form of tattooing). Capital criminals sentenced to life-long exile ‘instead of death' had the letter V (for vor, or criminal) stamped on their face. In 1705 for capital criminals the punishment of slitting nostrils (which healed grotesquely) was added to branding to identify the most dangerous criminals. Branding and slit nostrils were explicitly intended to prevent exiles from fleeing their locations; decrees noted that if an exile so branded or marked appeared in European Russia, he would be recognised as a runaway exile and punished. As in some European states, some brands specified location of exile (the Siberian city of Tobolsk, for example), but more commonly brands identified crimes.

Thus, Russia moved away from capital punishment to the violence of the exile system in the eighteenth century. The utilitarian requirement for labour power certainly was a prime motive, but moral considerations should not be discounted. Even Peter I, who did not hesitate to use violence, mandated that death sentences be referred to higher authorities for affirmation, ‘lest inno­cents be harmed from ignorance'. Concern about inaccurate death sentences was repeated in similar laws of the 1740s. Not only did political legitimacy depend in part upon Russian rulers protecting their people from injustice and providing mercy; the dominant moral code of the empire's elite - Russian Orthodoxy - also preached mercy and charity. Elise Wirtschafter and Cynthia Whittaker have shown that Russian intellectuals and educated nobles of the eighteenth century framed public problems within private morality. They saw their relationship with the tsar, their serfs and the public sphere in personal terms; they argued for moral self-improvement to solve political problems. Over the century church hierarchies, at least in court circles for the elite, were integrating German and later French Enlightenment thinking into Orthodox moral philosophy.^[587] Thus, stepping back from capital punishment, despite the rigours of exile, might have seemed benevolent.

Peter I's daughter Elizabeth, who took to the throne in 1741, was clearly motivated by humanitarian concerns when she ordered the Senate to end the death penalty in 1743. The way in which her order was implemented, how­ever, created legal ambiguity that was not resolved for another century. Perhaps reflecting opposition among the elite, the Senate in the 1740s initially responded by reiterating the call to refer death sentences to higher autho­rities.

By the turn into the nineteenth century Russia openly acknowledged that it had abolished the death sentence and judicial torture and was applying this standard to criminal courts across the empire. Executions for common crime virtually stopped: one scholar estimates only about a dozen executions from the 1760s to 1845.^[588] Nevertheless, Russia's situation with regards capital punishment remained ambiguous. On the one hand, laws continued to threaten the death penalty, knowing that this meant in reality exile; on the other hand, the state never stopped executing for political crimes. Catherine II executed the traitor Vasilii Mirovich in 1764, plague rioters in 1771 and Cossack rebel Emelian Pugachev in 1775; Nicholas I executed the revolu­tionary Decembrists in 1826. The Criminal Code of 1845 resolved the ambi­guity around the death penalty and in doing so demonstrated the underlying patrimonial assumptions in Russian law. This code allowed the death penalty only for ‘two points' - intent and action against the tsar and his family, and treason and rebellion (extreme breaches of quarantine were also called capital crimes in a special quarantine law). Otherwise, sentences of exile and cor­poral punishment were assigned to previous capital crimes, including blas­phemy, sacrilege, parricide, murder, arson and recidivist felony.

At the same time humanist values were contributing to some moderation of the brutality of Russian criminal law. In her Instruction to the Legislative Commission of 1767, borrowing heavily from European thought (408 of 526 of its articles were taken from Beccaria, Montesquieu and others), Catherine II argued against torture and the death penalty, allowing the latter only for extreme threats to the state. She argued that prison, by depriving people of ‘liberty', was the highest punishment. Russia did not develop a prison system until much later, leaving the exile system to endure into the Soviet Gulag system. In addition to the abolition of torture in 1782, Catherine abolished corporal punishment for the nobility and highest merchant ranks in 1785; clerics and other high social groups were included by the end of her reign.^[589] Eighteenth- and early nineteenth-century laws ended branding and nostril slitting for women (1757); lessened the brutality of judicial beatings and called for medical care after punishment (1801, 1809); and abolished slitting of nostrils as ‘inhumane' in 1817. But knouting continued until 1845 and other corporal punishment to the 1860s.

Thus Russia went into the nineteenth century with a combination of violence and mercy in the criminal law that seemed out of step in a century when European states were shifting to prisons and in some places crime rates were falling. The reign of Nicholas I (1825-55) provides a stark contrast of brutality and sovereign mercy and also the key to understanding the contra­dictions in Russian criminal justice. Nicholas I did not let the abolition of the death penalty deter him. In the face of peasant rebellions, political unrest and endemic criminality in the borderlands, his regime simply declared military law against civilians where needed. Harsh military codes were applied to horse theft and slave raiding by Bashkirs and Kirgiz, highway robbery in Transcaucasia and political unrest in the western provinces and Poland. Siberian governors received secret permission in the 1830s and 1840s to use the death penalty against unruly exiles. Military tribunals readily rendered death sentences, most of which Nicholas I just as readily mitigated in a show of benevolence. But the punishment to which such sentences were often commuted was the near fatal running of the gauntlet, administered before large crowds to deter the public in a throwback to early modern ‘spectacles of suffering’.^{[590] [591]} How can these countervailing trends in punishment be consistent?

Jonathan Daly directs our attention to the ideological underpinnings of the 1845 Criminal Code regarding the death penalty - only threats to the ruling family and treason to the state merited death.11 Daly contrasts Russia’s patrimonial political philosophy to the increasingly legal and rational theories of government in post-French Revolution Europe. In a country with a legal, ‘rational’ expectation that crime must be punished to protect the sovereign citizen, the letter of the law should be applied. In Russia, by contrast, the tsar was supposed to protect his people from injustice, not to kill them, so sovereigns staked a subjective position that protected their subjects from the ultimate punishment and reserved capital punishment for threats against themselves, thereby exalting their own stature. Such a stance accorded them autonomy to deploy violence as they saw fit; theoretically there was no contradiction between aversion to capital punishment for common crime, on the one hand, and the brutality of the exile system and the violence of military law used against revolutionaries and unruly imperial subjects, on the other. Such an approach raised tensions as Russia contended with liberal jurists and elites trained to European standards, tensions exemplified by the progress towards rule of law in the 1860s judicial reforms and subsequent decades’ brutal application of tsar-centred criminal law.