III

★

The Liberal Reformer

POBEDONOSTSEV was known by his contemporaries and is considered by historians of all persuasions as the extreme conservative, the arch reactionary principally responsible for the repressive policies of Alexander III and of the first decade of the reign of Nicholas II. This view is fundamentally accurate, although his power and influence have been heavily exaggerated, both by his contemporaries and by scholars. Pobedonostsev was a conservative throughout his life, by philosophy, temperament, and practice, and his views simply became more dogmatic and rigid as he grew older. Throughout his life, he accepted the fundamentals of the Russian system of government and of the society in which he lived and worked almost as unthinkingly as his father had before him. He was forever a faithful believer in Orthodox Christianity and in the supremely privileged position of the Russian Orthodox Church in the Russian state. He especially exalted the family as the fundamental base of a stable society. Finally, the European state system of which Russia was a part was also an established, permanent element of his world, one which he did not question.

Like many other modern politicians and political philosophers who have emerged as extremist defenders of the status quo, however, Pobedonostsev as a young man not only clearly and consistently advocated radical reforms, but also played an important role in putting these proposals into effect in the reorganization of the Russian judicial system introduced in November, 1864. Pobedonostsev mentioned his activities as a reformer in a letter about his career which he wrote in 1892 to the Académie des Sciences Morales et Politiques in Paris, four years after he had been elected a member of that august body, but he generally tried to conceal his achievements as a reformer from his associates and from the historical record. Thus, in a letter he wrote to Alexander III in 1881, he denounced those responsible for the 1864 reform as “ignorant men” who had created a system incompatible with autocracy and with any form of government. Even more remarkable, in a letter to Alexander Shakhov on March 10, 1884, he said he had protested against extensive borrowing from the French code in the committee meetings to establish the basic principles for the new judicial system and had left St. Petersburg for Moscow in disgust in 1862 when he was unsuccessful. Finally, in an account of his life and service which he wrote for Nicholas II on March 21, 1901, he declared that he was “called to work” on the judicial reform committee, refused “to set out on an unknown sea,” but found service impossible to avoid. Thus, he clearly sought to give the impression that he had been drafted into the program for judicial reform and that he had been a most reluctant and ineffective participant.¹

Despite the conservatism and patriotism of Pobedonostsev’s upbringing, the critical attitude he developed toward the administration of the Ministry of Justice and toward the judicial system originated in the training he had received from his father. Professor Pobedonostsev, while an uncritical supporter of the autocracy and of everything Russian, introduced his son to some knowledge of Europe, created in him the assumption that an educated man had both a right and a responsibility to speak and to read other languages than Russian and to be informed concerning other cultures, and thereby established the basis upon which a critical attitude toward things Russian could be created.

The diary Pobedonostsev kept in the School of Jurisprudence between 1842 and 1846 and which he published in limited editions in 1885 and in 1901, when he was a vigorous defender of the established system, provides clear evidence of the friction which developed between the lad, accustomed to some intellectual freedom at home, and the tightly controlled school designed to train new bureaucrats for the government of Nicholas I. The young prizewinner, who considered his teachers inferior to his father and to the men he had known in Moscow, thought the school officials ridiculously petty when they confiscated some of his favorite foreign books, particularly the stories and plays of Paul de Kock. Although he did not smoke, drink, or play cards, he was critical when all cigars, cigarettes, tobacco, and cards were confiscated from the other students. He was furious and insulted when the director of the school went through all of the rooms and removed many books, including Gogol’s Dead Souls. However, his irritation was greatest when an inspector criticized him for owning a book of Lermontov poems, which he was allowed to retain only if he removed it from the dormitory. He was especially scornful of the inspector’s admission that “Lermontov was of course a poet, but he died a bad death.”

The young Pobedonostsev protested both privately and publicly against administrative actions which he considered unjust or ridiculous. In December, 1842, when seven members of the first class were expelled for pranks, he confined his criticism of the excessive severity of the punishment to his diary and to his friends. However, when friction developed between some of the students and one of the soldiers on guard at the school, he took the lead in protesting, wrote a letter to the director, and emerged triumphant. He later protested to the director about the food and about the director’s decision to restrict the entire class for two months for the actions of only two or three members.²

Relatively little information has survived concerning the actions and ideas of Pobedonostsev between 1846, when he graduated from the School of Jurisprudence and returned to Moscow to a position in the Senate, and the late 1850’s, when he began to publish extensively and when his letters, various memoirs, and official records provide significant amounts of data. However, he was a voracious reader with catholic tastes, and it is clear that his reading reflected his attitudes and at the same time affected his beliefs. During these years he was attracted by the Whig interpretation of English history, reading the essays of Macaulay as well as his History of England. In reminiscences which he published late in life, he recalled his great interest in the revolutions of 1848 and the feverish eagerness with which he met with friends to read and even to copy the latest French newspapers, and to discuss the spread of the revolution beyond Paris. He even recalled reading Louis Blanc, Proudhon, Fourier, and Lamartine’s volumes on the Girondins in those exciting days.³

However, neither the revolutions of 1848 nor the Crimean War deflected him from his major concerns, his work in the Senate and his research on Russian history and Russian law. Indeed, his labors in the bureaucracy and in the archives fed the critical sense and the human sympathies which his sympathy for 1848 had revealed. His immense dissatisfaction concerning the inequity and inefficiency of the administration of justice as he saw it and as he read about it came to flower just at the time Alexander II relaxed the firm controls Nicholas I had maintained and as he allowed a thaw to sweep over the capital cities of Russia. During this period of relaxation of control, when new newspapers and journals flourished and when intellectuals were encouraged briefly to suggest means of achieving a more noble Russia, a decade which Trotsky later called “the Russian Enlightenment,” the young Pobedonostsev joined the critics of the Old Regime and advocated important changes of fundamental institutions and of administrative procedures.

The twenty-eight articles which Pobedonostsev published in the decade after 1857 appeared in eight different journals, but the largest number and the most important were printed in Russkii vestnik (Russian Herald), which was edited from 1856 until 1862 by Michael Katkov, and in the Arkhiv istoricheskikh i prakticheskikh svedenii otnosiashchikhsiia do Rossii (Archive of Historical and Practical Information Concerning Russia), which was edited and published by Nicholas Kalachov. Both Katkov and Kalachov became close friends of Pobedonostsev and both played important roles in Russian history for thirty years, Katkov as a fervent nationalistic journalist and Kalachov as a scholar, editor, archivist, and Senator.

There is no evidence that Pobedonostsev and Katkov were acquainted before 1862, although Katkov published Pobedonostsev’s first article, his 125-page “Zametki dlia istorii krepostnago prava v Rossii” (Notes on the History of Serfdom in Russia), in the summer of 1858. Pobedonostsev was not listed by Katkov as one of the proposed contributors to the new journal when he sought permission for publication in 1855, and the first letter or evidence of any personal relationship between the two men dates from 1862. Nevertheless, over a period of five years, the Katkov journal published eight articles by Pobedonostsev, almost all of considerable length and some of importance in the intellectual history of the period. For example, Russkii vestnik in June and July, 1859, published Pobedonostsev’s Master’s thesis at Moscow University, his stirring attack on the judicial system, “O reformakh v grazhdanskom sudoproizvodstve” (On Reforms in Civil Law Procedure). The same journal in December, 1860, published a case study describing the remarkable delays and inefficiency shown by the Russian courts in a particularly brutal murder case, and in 1861 it published his final essay on serfdom, “Utverzhdenie krepostnago prava v Rossii v XVIII stoletii” (The Consolidation of Serfdom in Russia in the Eighteenth Century).⁴

Katkov is best known, of course, for the nationalistic and often irresponsible journalism that he published from the middle of the 1860’s until his death in 1887. However, the Katkov of the first decade of the reign of Alexander II, of the thaw which lasted until the Polish rebellion in 1863 in particular, was quite a different person and worked effectively for reform. Born in Moscow, nine years before Pobedonostsev, to the family of a minor noble and bureaucrat, Katkov graduated from Moscow University in 1839. In 1840, he was a collaborator of Belinsky on the Westerner journal, Otechestvennyia zapiski (Notes of the Fatherland). He was not only quite critical then, and later, of the Slavophils, but he was also deeply influenced by study in Berlin and by his analysis of Hegel, about whom at that time he planned to write a book. However, he returned to Moscow, obtained a doctorate from Moscow University in 1845, and was a member of the philosophy faculty of the university from 1845 until 1850, when Nicholas I discouraged all instruction in philosophy. He then edited an important newspaper, Moskovskiia Vedomosti (Moscow News) until 1856, when he founded Russkii vestnik, which quickly attained national significance, with a circulation of 5700 in 1861.⁵

Katkov and Pobedonostsev shared ideas and attitudes during these crucial years. Both, for example, were in favor of emancipation of the serfs, although neither was particularly active in the public campaign against serfdom nor did either participate in the work of any of the committees which helped prepare the enormous change. Both were earnest advocates of drastic revision of the judicial system. Katkov’s journal published a number of critiques of established procedures as well as reform proposals, while Pobedonostsev not only provided some of the most trenchant attacks on the old system and suggested some of the fundamental bases of the new reform but also participated actively for five years in preparing the November, 1864, decree. Katkov remained a defender of the new courts for some years after they had been established, when many other proponents of that change had become disillusioned and when Katkov himself had become a violent opponent of most of the other changes introduced.⁶

Katkov and Pobedonostsev were probably also drawn together by their common admiration for England, especially pre-reform England, and by their hopes that Russia would develop institutions and social attitudes similar to those of England. Pobedonostsev, who had not travelled outside Russia until he was forty-one years old, spent three summers in England within five years. He was especially fond of English literature, particularly the poets Shelley, Browning, and Swinburne and the historians Macaulay, Carlyle, and Froude. He was always eager to become acquainted with Englishmen in Russia, from observers such as Mackenzie Wallace to visitors such as Bishop Mandell Creighton. Above all, he admired English institutions, English national unity, and the blend of conservatism and change which the English managed to achieve.

Katkov was perhaps even more an Anglophile than Pobedonostsev. He learned to read and speak English while young, travelled to England, translated some of Shakespeare into Russian, and had an obvious and deep admiration for English style, institutions, and customs. He was especially impressed by the respect shown by the English for their political and social institutions, by the power of prescription, by land reform and the modernization of agriculture, and by the extreme skill with which the English combined political stability, social mobility, and a kind of rugged individualism in economic development.⁷

The other main publisher of Pobedonostsev’s research efforts, Nicholas Kalachov, was quite a different kind of person from Katkov, and the relationship Pobedonostsev established with him was dissimilar also. Kalachov was born in 1818 on the same lane in Moscow as Pobedonostsev, and apparently the two were acquainted from their early years. As a youth, Kalachov was especially interested in Russian literature, but he yielded to parental pressure and studied law at Moscow University, from which he graduated in 1840 and from which he received a Master’s degree in law in 1846. Through friendship with the Minister of Education, Uvarov, his father obtained him a position in the Ministry’s Archeological Commission, where the young Kalachov used the opportunity to increase his knowledge of Russian history and law, as Pobedonostsev did in the Senate. The learning he acquired and his publications led to his appointment as Professor of Russian Law at Moscow University in 1848. However, his main interests were in archives and in archeology. After serving as librarian of the archives of the Ministry of Foreign Affairs for a number of years, he was named Director of Archives in the Ministry of Justice in 1865. His services as an archivist were most important, for he not only collected and organized significant materials, but also was a member of the Archeological Commission after 1851, founded the Archeological Institute in 1877, and established a commission for provincial archives in 1884.⁸

Kalachov played an important role in the life of Pobedonostsev, who considered him a splendid representative of the best type of old Muscovite. As an older friend and neighbor, Kalachov helped his young colleague by identifying important collections of interesting materials. He almost certainly strengthened Pobedonostsev’s views concerning Russian history and traditions and his interest in affairs Russian, compared to Western ideas and institutions. In their reviews of old chronicles and in their leisurely visits to old monasteries and cemeteries, the two men rediscovered the attractions of Russian history and their affection for the Russian land and people. It is quite likely that the pious and learned scholar and archivist, the unsung hero who devoted his life to the service of others, more than balanced the impact upon Pobedonostsev of the polemicist Katkov.

Kalachov had a powerful influence upon many young scholars. He not only helped them to find materials and thereby affected the main outlines of their work, but he also encouraged them and prodded them to publish. Convinced by 1848 or 1850 that the educated public should know more about the basic institutions and traditions which had shaped Russian life, and that the shortcomings of Russian institutions should be laid bare if effective changes were to be made, Kalachov in 1850 began a series of publications which helped to achieve these goals. Thus, in the 1850’s he published a three-volume series of documents on Russian history and legal institutions. As the thaw progressed and as it became clear that great changes were to be made, in 1859 he launched a journal designed to publish the principal historical facts he thought important concerning serfdom and the judicial system; the twelve volumes he published over the next five years not only provided Pobedonostsev and other young scholars an opportunity to publish the products of their research, but also contributed to the drive for reforms, for many of the articles revealed gross shortcomings and suggested improvements. Finally, in 1867 Kalachov began publication of a journal, Iuridicheskii vestnik (Juridical Herald), to assist judges, lawyers, and administrators to keep abreast of the changes introduced by the reform of 1864.⁹

Kalachov’s contribution to the abolition of serfdom and to the judicial reform of 1864 reflects the intellectual climate in which the young Pobedonostsev was working. First of all, the journals Kalachov edited were designed to “acquaint the public both with the ancient life of our nation and with those current developments which may reveal to the state and to various individuals some of the means available for resolving our present problems.” Thus, the journal published an extended series of articles on serfdom as well as a number by men deeply engaged in the judicial reform, such as Sergei I. Zarudnyi. The moderate and limited aims of Kalachov and his contributors were demonstrated by the attention he paid to Count Michael Speransky; the first article Kalachov published in the principal journal he edited was devoted to the man who had tried to make the Russian administrative machinery efficient in the first decade of the nineteenth century, and two other essays on Speransky appeared within that same year.

Kalachov himself served on the editorial committee which helped prepare the final drafts of the decrees which emancipated the serfs and established the new judicial system. His service on the first committee was particularly crucial, for he helped define the rights and responsibilities of the peasants and the landlords after emancipation. Moreover, it is clear from his own essays that he had considerable knowledge of the conditions in which the workers lived and labored, derived largely from visits to factories and workers’ dormitories, and that he believed that the reform movement should also seek to assist the worker.¹⁰

Pobedonostsev’s main concern in the wave of changes which swept over Russia after 1856 was in the administration of justice, about which he wrote scathing attacks and made proposals for reform. His writings on the history of serfdom and his other publications during this period reveal that he was aware of some of the shortcomings afflicting Russian government and society, but that he believed improvements inevitably had to develop slowly and that governments had limited powers in effecting changes in institutions and in people because of the nature of man and of his institutions. Thus, in his preface to his translation in 1861 of Heinrich Thiersch’s Uber christliches Familienleben, he gave vague and general approval to the current efforts to reform the social order. However, he declared that careful study of the principles on which the social order should be established must precede change and that man himself must not be neglected in the reconstruction programs. Thiersch himself had a deep concern for the welfare of the working class, whose plight he began to recognize, and was not opposed to constitutional government, but both he and his translator were conservatives.¹¹

Pobedonostsev’s position concerning serfdom reveals also that he was by no means a crusader. There is no evidence that he had any personal knowledge of life on the Russian land, as he did have information concerning the operation of the bureaucracy. Moreover, he did not denounce serfdom as he did judicial abuses, and he did not identify the basic principles which should guide reformers, as he did for the 1864 change. Indeed, his first long article was basically a description of serfdom and of the various kinds of relations between landowners and serfs in the seventeenth century, while the second half of his study was devoted to the changes which had occurred in the eighteenth century. The main thesis was that neither one man nor one particular document was responsible for the establishment of serfdom, “which was formed little by little.” Indeed, he argued that Peter the Great, for example, had had little impact on the institution. Peter used it as an instrument of rule, and he tried to eliminate the most flagrant abuses, particularly when changes would not affect the power of the state. Just as Peter had the good sense to realize that serfdom “reflected the inner law of history and of political necessity” in the conditions which prevailed then, so “that same law of historical and political necessity under which serfdom was formed has led to its change.” In other words, Pobedonostsev believed that the economic and intellectual changes which had struck Russia since the last quarter of the eighteenth century indicated serfdom should be abolished.¹²

Pobedonostsev’s discussions of Count V. N. Panin’s administration of the Ministry of Justice, his studies of the judicial system, and his proposals for court reform reveal both more detailed knowledge and far more personal interest than his papers on serfdom. The bitter attack on Count Panin was published anonymously in London in Herzen’s Golosa iz Rossii (Voices from Russia), and is a most remarkable document in every way. The manuscript must have been written in 1857 or 1858 because the January, 1859, issue of the journal announced its forthcoming appearance. It was probably taken to London by one of Pobedonostsev’s friends, Chicherin, Iurii Samarin, Professor Ivan K. Babst (who also submitted an article to Herzen), Constantine Aksakov, or, most likely, Ivan Aksakov, who visited Herzen in 1857. Herzen’s influence in Russia at that time was considerable (he published half as many copies of Kolokol [The Bell] then as Katkov did of Russkii vestnik), and Pobedonostsev’s brilliant and direct assault on the Minister of Justice must have had a significant impact upon those seeking to reorganize the central administration. Panin was furious, but apparently neither he nor anyone else in high court circles discovered the identity of the author, although the details provided would indicate that the man responsible almost certainly was a member of the small Senate staff in Moscow.¹³

Panin, who earlier had been considered a liberal, was not highly regarded by his contemporaries. Indeed, Alexander II told Grand Duchess Helen Pavlovna that “Panin’s convictions are limited to the exact execution of his orders.” However, Pobedonostsev’s critique was as much of the system as of the man. The first quarter of the long essay was an attack upon the central administration of Russia, and Panin was described as a representative of the rule of Nicholas I who had retained influence and power in the new reign. Pobedonostsev admitted that the history of Russia had been marked by incompetent administration, but said that there had been some improvement from the seventeenth century until the second quarter of the nineteenth century. Then, however, the reign of Nicholas I abandoned the principles of earlier monarchs, ended Russian progress, isolated the government from the people (narod), crippled education, and adopted a system of “unconditional and irresponsible power.” Nicholas “openly sought to convert the concept of patriotism into that of service to the government” and created a state bureaucracy of servile men. Unfortunately, according to Pobedonostsev, Alexander II, though a man of good will, was surrounded by the same men who had advised Nicholas I. The result was “organized anarchy.” The ministerial system had deteriorated to the seventeenth century level, with no clear definition of authority or responsibility, and continued disasters, such as the Crimean War, lay ahead.

Panin was the perfect example of the system, “devoid of any intelligence, humanity, or sense of justice.” Ignorant, incompetent, vicious, authoritarian, isolated from the people of Russia and even from those who worked in the Ministry, and surrounded by sycophants, Panin of all people was Minister of Justice. Pobedonostsev admitted Panin was not corrupt—“he had no need to be”—but he declared that he tolerated corruption in the very center of the judicial system. He delayed the administration enormously by his foolish demands for written reports and the forms and ridiculous regulations he issued. He drove able and independent men from the service and after 1848 had refused to appoint any well-educated young men. Above all, he was weakening and destroying the Senate, one of the principal and most beloved parts of the state. On one two-month visit to Moscow, he did not even meet the heads of the Senate departments until the day before he was to return to St. Petersburg. Finally, he used the censorship to prevent criticism and to silence suggestions for reform.

The bulk of the article on the Ministry of Justice and on Panin was a scathing indictment, but Pobedonostsev also introduced a modest proposal for reform. Arguing that the institutions available were perfectly satisfactory and that the main problems reflected incompetence and a kind of deliberate anarchy, he proposed that Panin be replaced, that the Senate be refurbished, and that each member of the bureaucracy be made clearly responsible for his own work. Above all, he suggested the creation of an organ in government separate from the rest of the administration, staffed by independent and able individuals, with the authority to see that the laws were observed and to punish any member of the bureaucracy responsible for violating the law. “Thus teaches the science of statecraft, on the basis of centuries’ experience; so judged the wise legislators of Russia, Peter and Catherine.” Such a “high college,” in a position of “material and moral independence and to which every single person in the Empire except the Tsar was subject” would restore law and establish the conditions in which economic and moral strength would revive. In fact, Pobedonostsev suggested that the Senate, cleansed and exalted, could undertake this central task, using existing institutions and laws.¹⁴

Pobedonostsev probably realized that his proposed Inspectorate General, an institution which resembles supervisory or review agencies which have appeared in Russian history both before and since, was not practical at that time. Moreover, he surely knew that criticisms published abroad might have considerable influence within Russia, but that suggestions of reforms or new institutions made in the Herzen journal could hardly be adopted.

His special interest, of course, was the judicial system. He published at least eighteen articles within a decade, in which he commented in detail on particular aspects of Russian civil law, made intensive and extensive criticisms of the judicial system, and suggested principles on which reform should be based as well as specific proposals for change. His long study of the position the bar should have and his Moscow University Master’s thesis reveal that his ideas concerning radical change in the judicial system were clearly established by this time and that his contribution to the judicial reform of 1864 was very significant.

By the middle of the nineteenth century, the judicial system in Russia was under almost as heavy popular attack as was serfdom. Most Russians at all levels of society were aware of the courts’ glaring deficiencies and vices. Even Nicholas I was concerned, particularly when he learned in 1842 that 3,300,000 undecided cases were before the courts in that year, compared to 2 million in 1825. He had therefore ordered Count Dmitrii N. Bludov to undertake a study of the courts, to complete new codes for civil and criminal law procedure, and to make proposals for improvement. In fact, Bludov and his colleagues before the end of the reign had reached many of the conclusions concerning the shortcomings of the judicial system and the principles of the reforms needed which were incorporated in the 1864 change.

In 1858, the new tsar sent Zarudnyi, educated as a mathematician but a self-trained lawyer who had worked in the Ministry of Justice and who was a key member of Bludov’s committee, to Europe to observe judicial institutions. This kind of review sponsored by the tsars themselves occurred at the same time that officials and scholars such as Pobedonostsev were independently completing their research and taking advantage of the thaw to publish recommendations. Many of those who participated in this campaign had studied in Germany, often with Savigny, the great founder of the historical school of law, or with Russian professors strongly influenced by Savigny or by other Western scholars. Thus, the movement for reform had a number of sources: high government interest and support, the work of jurists familiar with the machinery then in operation, and European influence purveyed in one of several ways. Moreover, the great effort to abolish serfdom inevitably put other institutions under searching analysis. Finally, of course, emancipation so clearly affected the judicial system in the countryside that revision of the entire philosophy and structure of the courts was necessary after 1861.¹⁵

In the research he published late in the 1850’s, Pobedonostsev asserted that a radical reorganization of the Russian judicial system was clearly necessary. He argued that no society could survive unless it were dedicated to truth and to justice. He recognized that these goals, by their nature and because of the nature of man, could never be attained, but he was also certain that the aims themselves and a consistent effort to reach them were indispensable. Courts dedicated to law and justice were especially important in any state because justice was the true goal of the state and the courts were the public conscience. It is interesting to note that Pobedonostsev then quoted Peter the Great and cited his efforts in proof of his contention.

Some, dismayed by the slowness, venality, and injustice of Russian legal procedures, were led to believe that courts were not vital, that trials were unnatural and a stimulant to crime and disorder, and that some kind of patriarchal mediation system would be infinitely preferable. Pobedonostsev demolished this view in a systematic way, urging that every society, even primitive societies, had a judicial system and courts, and that law became both more vital and more complicated as society became more advanced. Russians must therefore come to understand thoroughly Russian law and the operation of the legal system and, second, study closely superior foreign judicial systems. “All law must conform to the basic needs of a given society” and flow from particular historical conditions. Judicial regulations and forms are just as difficult to borrow and use as languages, and any adoption of foreign institutions must be gradual and free to be effective. Indeed, Pobedonostsev suggested that Russia needed a Supreme Court whose high authority was recognized, supported by a research institute to make certain that its decisions reflected an accurate understanding of the law.¹⁶

He believed that the Russian judicial system was marred by serious faults which must be removed if the state and people were to make material and moral progress. The evidence he cited from the previous century and a half was impressive and was presented in such a way as to combine a rational and an emotional appeal. Thus, he concentrated on bureaucratic red tape, the use of torture, the assessment of barbaric penalties, and cases in which obviously innocent people had been judged guilty and punished, as well as cases in which powerful men, even when clearly guilty, went unpunished. For example, he provided details on one assault case which had been stalled in court for thirty-four years, when the family of the plaintiff, five years after his death, finally abandoned their charge. The cases of torture which he described in detail were all the more impressive because he demonstrated, first, that the state had used torture to cause terror and as a substitute for legal workmanship and, second, that torture was often used to obtain confessions when the charges were particularly ridiculous and the defendants obviously innocent. Use of the knout, cutting the nostrils, and similar penalties he thought beyond discussion in civilized society.

The reasons for these disgraceful actions and judicial failures were clear, according to the young scholar. The basic weakness was the role played in the courts by the chancery clerks, who prevented the creation and development of a bar, undermined and usurped the position of the judge by making him dependent on them for the facts of cases and for interpretations of the law, and established a complicated system in which papers superseded and crowded out oral discussion, thus making complication, red tape, delay, and corruption inevitable. These ignorant, untutored, small-minded men had successfully separated the science of law from juristic practice. The law in their hands had become a meaningless ritual.

Proceeding from this analysis of the court system, Pobedonostsev suggested that the state, its leaders, and all Russians must first recognize that understanding and respect for law and justice must stand at the center of society because the rule of law is the essence of the good society. Under law, and with respect for civil rights, confidence and energy would return to the state and make possible economic and spiritual progress.

Four major changes were necessary to ensure effective judicial procedures. First, Russia needed a large number of highly skilled and trained lawyers, willing to undertake any case and eager to find and to defend the truth. Lawyers, and an organized bar, would ensure the vigorous search for truth and justice which any judicial system requires. Competing against each other, lawyers would stimulate the entire structure of the judiciary and educate the judges. Indeed, he called the bar “a garden” for the judiciary, suggesting that the kind of learned, humane, and wise judges Russia needed would be provided by the eager lawyers who compete before the judges.

Only with the help of lawyers can you have pleading in court of such plenitude and liveliness as to enable the judge to consider the case from all sides, to penetrate into its essence and form a definite opinion. . . . When the vivid speech of the lawyers is heard in court . . . when the court and all the participants are not confined behind closed doors, when the public is present and taking a lively part in all events in court, the procedure will take the shape of a real, vivid, and rational contest. Then no judge will be able to remain indifferent and inattentive. Only under such conditions, i.e., with the participation of the lawyer in public session, will the court become the best school of education for judges and lawyers. . . . The struggle of the poor against the rich, of the weak against the strong, of the dependent against the one on whom he depends, is difficult and dangerous everywhere and at all times. In some cases, a struggle is impossible without a lawyer. If a lawyer is in a position independent of the government and court, as he ought to be; if he relies on the moral force of the case which he defends, and, at the same time, upon the moral force of a whole corporation to which he belongs and also upon the consciousness of the public present at the struggle; then the lawyer—and, let us add, the lawyer alone—is able to enter the fight against the personal interest of material force and to oppose to it the weapon of spiritual force. . . . The lawyer’s guild . . . can reach its goal only if it is a closed guild placed beside the judiciary and independent of it. . . . As soon as the guild is organized, it will become necessary to grant to it permission for free and independent activity.¹⁷

Second, the entire legal system must be completely separated from the government and the administration. Pobedonostsev demonstrated in principle and by the use of illustrations that the failure to separate police or administrative functions from judicial functions had been disastrous throughout Russian history. Judges were to be free from administrative pressure, independent of the government, and granted tenure.

Third, all judicial procedures should rely more on oral than on written material. Perhaps the basic facts involved in any trial should be in writing, but all arguments before the judge or jury should be oral, reducing red tape and delay and providing lawyers skilled in their craft and in presenting evidence an opportunity to compete in a vigorous way before a judge, attentive to all materials and proposals made because of devotion to law and because the lawyer’s own competence and integrity were being tested before ambitious advocates.

Finally, all trials must be open to the public. He recognized that ordinarily few people would be interested in observing the working of the courts, but asserted that the right to attend a trial was a critical one and that justice could not be reached in the dark. In fact, secrecy and seclusion bore a heavy responsibility for the flaws and failures of the judicial system.¹⁸

Many of the changes Pobedonostsev advocated in the late 1850’s were put into effect in the great judicial reform of 1864. He was inventive and forthright in his advocacy of the main principles on which the new system was to rest: irremovable judges, public sessions, oral procedures, and a well-trained, independent bar of lawyers who had a social obligation to undertake the defense of anyone charged with violating the law. He was not an ardent advocate of some elements of the 1864 reform, elected justices of the peace, jury trials in criminal cases, and equality of all classes before the courts, and he was not an enthusiastic or consistent supporter of the jury system. However, he was neither for nor against elected justices of the peace in the years before the government itself established committees to prepare the reform, probably because the proposal had not been made or had not occurred to him. Equality before the courts, similarly, was not an issue which he discussed, perhaps because he simply assumed it. Moreover, of course, the 1864 reform, for all the progress it made, did not provide for full equality before the law.¹⁹

Pobedonostsev was more than a proponent of radical reform of the Russian judicial system. He was also a virulent critic of Panin and all others who defended the established system. Thus, he denounced those who resisted change as “legal Old Believers” who did not see “history as a movement forward from dead ritualism to the soul of life.” He ridiculed those who thought that the progress of history must stop in the seventeenth century. The lectures which he gave in the law school of Moscow University between January 15 and March 25, 1863, and the notes of his students reveal that Pobedonostsev carried his campaign against the old system and for radical reform directly into his classes. The lectures provided a simple, clear, and critical description of the principles which underlay the legal systems of western Europe and of those which should be fundamental in Russia. Anatole Koni, one of the great Russian judges in the last quarter of the nineteenth century, later described his “clear, compact, accurate, and instructive course” in 1863 and 1864. Pobedonostsev spoke “with lively sympathy” of the public trial with competing lawyers, of the new courts of review, of the justices of the peace, of the oral courts, and, above all, of the fact that courts were to operate in the open. “That which is hidden from the light and is conducted in secret is surely a falsehood,” he told his class. “If justice reflects the truth, corrects and exposes falsehood, and observes the law, then it cannot fear light, and all its actions must be completed openly, because the exposure of injustice in the dark is not exposure, and the declaration of the truth under the cover of an official secret is not a declaration. When justice selects secret paths for itself and carefully conceals its actions from the public view, then it itself demonstrates that there is crookedness in its paths which it is dangerous to reveal to all.”²⁰

Pobedonostsev’s writings and lectures on behalf of judicial reform in the exciting years after 1858 naturally attracted the attention of the tsar and of those responsible for the reorganization of the judicial system. Moreover, his other actions as an intellectual and as a professor indicated that he was among those who advocated a generous degree of change in Russia. In 1861, he was a contributor to the short-lived St. Petersburg weekly, Vek (Century), to which a number of radicals, such as Nekrasov and Lavrov, and a number of men prominent in the literary scene, such as Goncharov, Turgenev, and Ostrovsky also contributed. In the same year, he was one of those who signed a letter published in Katkov’s newspaper, Moskovskiia Vedomosti, which defended a member of the Moscow University faculty, an Orthodox priest named Father N. A. Sergievskii, who in a sermon on April 12, 1861, had argued that Christian faith and philosophy were not opposed to reform or to freedom. In the fall of 1861, he agreed to give a series of public lectures in a campaign to collect funds for University students who had been arrested for disorders, withdrawing only when he learned that Chernyshevsky was to be one of the participants. However, he withdrew not because of Chernyshevsky’s political or social views, but because he considered Chernyshevsky a charlatan. Later, when one of his students, Alexander K. Malikov, was imprisoned for his political views, Pobedonostsev helped to obtain his release and corresponded with him. Finally, his advocacy of change expanded also into the economic and social fields. In letters which he and Professor Ivan K. Babst published in Katkov’s paper in 1863 and published in book form in 1864, he advocated higher wages and old-age pensions for industrial workers.²¹

Curiously, the judicial reform of 1864, which gave Russia a judicial system then considered the most equitable and efficient in the world, on paper, has not attracted systematic study on the part of Russians or of foreigners for more than sixty years, even though this is one of the landmarks of Russian history in the nineteenth century and although enormous quantities of materials are available. Consequently, while Pobedonostsev obviously played a very important role in this change, it is not yet possible to define his contribution exactly.

Some of the groundwork for the reform of the judicial system was laid during the reign of Nicholas I, when Count D. N. Bludov, head of the second division of His Majesty’s Own Chancery, in 1839 began a review of the courts and, late in the reign, drafted both a civil and a criminal code. Under the new reign, however, Bludov became more liberal than he had been under Nicholas I, and his committee prepared new draft codes which incorporated suggestions received from provincial committees that class distinctions within and among courts be abolished, that the judiciary be made independent, and that the courts conduct their affairs openly. However, Bludov, who was seventy-five years old in 1860, was gradually superseded in this work by younger and livelier men placed on his committee by Alexander II. V. P. Butkov assumed the real leadership, although Bludov remained chairman of the committee until he died in 1862. Moreover, Zarudnyi, another energetic younger jurist, became the principal driving force after he joined Bludov in 1857 and was sent to Europe in 1858 to study judicial institutions. It was Zarudnyi who distributed draft proposals to jurists such as Pobedonostsev as early as 1859. It was principally he who identified the liberal jurists and who invited them to work with the various committees in drafting the principles on which the reform was to be based and to help with the final reform.²²

The emancipation of the serfs gave great impetus to the judicial reform. When the tsar returned to St. Petersburg from vacation in the fall of 1861, full of enthusiasm because of the great change launched, he asked Bludov and his committee for a progress report and, later, for a detailed proposal concerning the next steps to be taken. On October 23, 1861, he agreed that Butkov and a committee of ten jurists attached to the State Chancery should prepare a report describing the main principles on which the new judicial system should be based. These principles, prepared by January 22, 1862, were reviewed by the various departments of the Council of State and by its General Assembly from April until July, and by the Senate in August and September. Approved unanimously by the Senate, they were accepted by the tsar, who had them published and asked for comments from government officials, law professors, and jurists.

In September, 1862, Alexander II named a special committee of thirty-seven men, attached to the State Chancery, to design new judicial procedures and to draft new civil and criminal codes of procedure. This committee was headed by Butkov, with Zarudnyi his deputy. It consisted of the Chancery of the Council of State, seven men selected from the second division of His Majesty’s Own Chancery and from the Ministry of Justice, and other jurists named by the tsar from universities and from other state institutions, such as the Senate. This learned group completed its grueling technical work in eleven months, between November 30, 1862, and October 24, 1863. The group on the civil code, of which Pobedonostsev was one of thirteen members, had ninety-one meetings. Each member of this and of the other subcommittees also attended sessions of the full committee, contributed drafts and comments on proposals made in these committees, and produced new versions of critical sections after the long discussions.

The Butkov committee submitted its final report in the fall of 1863 to the second division of His Majesty’s Own Chancery, the Ministry of Justice, the Council of State, and the Senate for discussion. The deliberations of these bodies were reviewed finally by the Council of State, which recommended the new system in all its detail to the tsar on October 2, 1864. The tsar then announced the reform in a ukase on November 20, 1864.

In other words, the judicial reform of 1864 was the result of a long and harrowing process involving a great many government institutions and officials. The draft submitted by the Butkov committee in the fall of 1863 reflected the work of thirty-seven eminent jurists and statesmen; in fact, it was accompanied by more than 1,750 pages of explanation from these participants. The tsar himself and the various state institutions invited comments from other jurists and officials. The Minister of Justice, D. N. Zamiatin, alone provided five hundred pages of comment on the draft Butkov’s committee submitted.²³

Pobedonostsev was drawn into this great process because his articles in Russkii vestnik and in Kalachov’s journal attracted the attention of Zarudnyi, who in 1859 began to send draft reform proposals to him for comment. Zarudnyi was especially impressed by his critique in December, 1859, of a proposal for new civil law procedures which had been prepared in the Council of State. In this critique, Pobedonostsev was eloquent in his denunciation of the chancery courts, in which the clerk was so powerful, and in his advocacy of oral courts. By early 1861, Pobedonostsev and Zarudnyi were together studying the civil codes used in Hannover and in Italy. In the fall of 1861, Zarudnyi in St. Petersburg and Pobedonostsev in Moscow were in frequent communication. When Zarudnyi proposed his name to the tsar as a member of the small committee in the State Chancery to identify the basic principles on which the reform should be based, Pobedonostsev was delighted. The announcement of his appointment was made on November 3, 1861; Pobedonostsev moved to St. Petersburg five days later “for temporary work on the reform of judicial institutions.” He wrote forty years later that he refused to “set out on an unknown sea,” but it is clear he was an avid and excited participant. In fact, some government leaders then thought him a leader of the radicals, carrying too far the work “sensible conservatives” such as Bludov had launched. In the early 1860’s, he was particularly envious of foreign judicial systems, especially that of England, where the courts were open to public view, skilled lawyers represented the two sides in a civil case, and judges were competent and respected. He hoped then that Russia would develop a system equal to others and would use all of its energies toward that goal, “when the business of reforming the entire structure of our administrative system and of our judicial system is in progress.”²⁴

The written records concerning the preparation of the 1864 reform are voluminous, but it is often impossible to determine precisely the significance of Pobedonostsev’s role, largely because so many changes were made during and after meetings in which a large number of men participated and concerning which there is often no accurate record. However, a number of his proposals have survived, and other evidence also indicates that Pobedonostsev participated in an important way in every stage of the reform. Thus, he was in close correspondence with Zarudnyi and reviewed preliminary proposals for more than two years before Alexander II named the committee to determine the fundamental principles on which the new system should be based. He was a member of this critical ten-man committee, writing memoranda for it within a month of his joining it, and he moved to St. Petersburg to share in its work and then to discuss it with various departments of the Council of State and with the general meeting of the Council. After the tsar had approved and published the basic principles, he placed Pobedonostsev on the large committee to draft the final program and on the subcommittee which drafted the new code of civil law procedure. Pobedonostsev participated in the last twelve months of discussion of this draft with the various state agencies listed above, in his capacity as a member of the committee named by the tsar and also as the executive secretary of the eighth department of the Senate, which reviewed the proposals throughout the first nine months of 1864. The committee notebooks which have survived indicate that he participated in all of the meetings of the subcommittee which drafted the new code of procedures and that he prepared many draft proposals and was active in the discussions. He must naturally have played an important role within the Senate when its various departments studied the digest. However, he did not attend many of the sessions in the spring and summer of 1863 in which the full committee discussed the proposals by itself or with officials from the Council of State, the Ministry of Justice, or other government institutions. He was prevented from attending the spring meetings by his classes in law at Moscow University and by his work in the eighth department of the Senate. The summer and early fall he spent on a tour of European Russia with the heir to the throne, which he almost certainly considered a command appointment.

The importance of his work is reflected in his appointment as tutor in law to the future Alexander III and as head of the first department of the Senate in 1865. He became a member of the Council of State in 1868 (only six other participants in the reform of 1864 were so recognized) and a Senator in 1872. Moreover, after the new judicial system was announced, he was awarded two thousand rubles per year for the rest of his life for his work. His annual salary then was two thousand rubles, and no participant in the reform except Butkov and Zarudnyi received a higher award.²⁵

Pobedonostsev was especially interested in the new civil law procedures and in those parts of the reform which affected civil law. He devoted a great deal of time and energy to details which do not have great historical significance, such as whether law students or illiterates could serve as lawyers in civil cases, the responsibilities and rights of a lawyer when his client died, the allocation of court costs, and the arrangements under which an inquest could and should be conducted. Some of the sixty-one draft articles he prepared on issues such as these were accepted without change, or with little revision. Others were discussed at length in the committees and then by the various state organizations.

In general, he supported the major changes, including the introduction of ideas and institutions which had proved effective in other countries, but he urged always that the new principles and institutions reflect “the economy of our life” and not be introduced simply because they had worked in other countries, where the customs and traditions were quite different. In addition, he consistently argued that a perfect judicial system was impossible of attainment, that the committees should seek only the best possible, and that compromise agreements should be accepted by all until experience showed which was the best procedure.²⁶

For most of those engaged deeply in the judicial reform, separation of the courts from administrative influence or control was the keystone of any improved system. From the very beginning of the drafting process, Pobedonostsev supported the establishment of a judicial system independent of the state administration, stating that administrative rule and dispensing justice were very different activities, that any judicial system required specially trained staff, and that blending political rule and justice could only cause confusion and harm. He wrote in 1861 that the judge at the provincial level should have “a position fully independent of that of the governor. He should stand beside the governor, not under him, and neither should interfere in the other’s activity.” Pobedonostsev therefore argued that judicial power in the Empire “belongs exclusively to the positions and people invested with that power. . . . In everything concerned with the administration, execution, and decisions of legal issue, no state position or person should interfere or give orders or instructions.”²⁷

Apparently, the only officials of any significance who opposed the separation of judicial and executive powers were Prince Oldenburg, the founder and director of the School of Jurisprudence from which Pobedonostsev had graduated in 1846, and Pobedonostsev’s old superior, Count Panin. However, when those preparing the new judicial system descended from the great abstract heights of judicial independence to concrete problems, the resolution of Pobedonostsev and others like him wavered. For example, Zarudnyi, Pobedonostsev, and most of the other participants in this work supported the principle of irremovability of judges only after considerable analysis and hesitation. Thus, in December, 1861, Pobedonostsev suggested that Russia might not possess sufficient trained and honorable people for the institutions they envisaged.

We lack the judicial estate, with its professional spirit and its inner discipline of honor and public service, and we have an inadequate number of people to meet the demands. We can only conjecture, we cannot be certain now concerning the ability and worth of the people who should fulfill the demands. Finally, the almost universal custom of accepting tokens of gratitude from petitioners is divided from bribery only by an equivocal line, so that it is rarely possible to distinguish where custom ends and abuse begins. We lack judges. There is no reason to hope that the introduction of new regulations will make rare either misuse or laziness and simple inefficiency in our judicial system. In such circumstances, to establish the irremovability of judges would simply remove from the government’s hands its means of correcting errors in the appointment of judges, errors which are sometimes unavoidable, and to substitute a new and superior judge for a worthless one, and to end or lessen bribery.²⁸

Pobedonostsev thus recognized, as did many of his colleagues, that Russia almost certainly lacked “the storehouse of legal custom and doctrine” and the necessary class or estate which would “give durability to knowledge, foundation to thought, and order to discussion” and would form statesmen and scholars from those newly entering the profession. However, after reviewing this serious issue, he asserted that “even the best and most perfect institutions” would not by themselves bring the goals they sought because of the handicaps of “an insufficiency of people and carelessness and poor luck in the selection of those we have.” The legislator, he continued, cannot stop with this observation, or he will never reform fundamental institutions. The effectiveness of institutions depends on those who work with them, but institutions also form people. In other words, he ultimately and reluctantly supported the irremovability of judges and of elected justices of the peace. However, his position and that of many of his colleagues was so troubled and indecisive that the Ministry of Justice decided to introduce the new courts only gradually. Elected justices of the peace, for example, first appeared in Moscow and St. Petersburg only in 1866 and were then introduced very slowly in European Russia.²⁹

One of the thorniest and most delicate problems facing those engaged in preparing the reforms involved the procedure for civil suits against government officials. Many Russian statesmen and bureaucrats thought that neither the state itself nor its agents could be brought into court by a suit of a private citizen. Others agreed that some state actions had to be above the authority and judgment of the courts, but asserted also that the courts were the guardians of civil rights and that the executive and its officials should submit to the authority of the court in all instances affecting the rights of private citizens.

In this swirling, confused, and prolonged controversy, Pobedonostsev saw all sides of the issue, because he was both a bureaucrat and a juridical reformer. His draft articles and comments in the discussions were therefore quite carefully balanced, as were his university lectures on this subject. However, he did not join the group which insisted that the courts should define the law of the land and that the courts alone should determine which instances were a part of their jurisdiction and which were not. Indeed, it was his masterly fifteen-page memorandum in 1864 which led to the compromise agreement which preserved the principle the reformers thought vital and yet won the support of those who feared that any new definition of authority would weaken the power of the state and hamper the work of responsible officials. Pobedonostsev argued in this important paper that Russia required a strong, centralized government because conditions were different from those of countries in western Europe and that administration would be impossible and the economy would decline if every office and official were responsible to a court. He agreed that a private individual must be able to obtain redress from the improper actions of a state official, but asserted that the state’s interests had priority. His compromise proposal, which was adopted, suggested that a committee composed of an equal number of representatives of the state administration and of the courts, but chaired by a member of the judiciary, should determine which disputes were subject to judicial decision.³⁰

The new institution that most attracted popular attention after 1864 was the jury, which was introduced into the Russian judicial system at that time. Some of Pobedonostsev’s colleagues balked at establishment of the jury, even though the requirements for service were set rather high. However, even Count Panin supported the jury system in the discussions in the Council of State, arguing that this constituted the best way to attain independent courts, if this was the government’s goal. Pobedonostsev accepted the jury because he believed that the institution would operate effectively and that it would “shape” the people who used it, as they “shaped” the institutions they developed.³¹

Pobedonostsev’s principal target before 1864 was the pre-reform chancery court, and the most deeply felt and effective paper that he wrote for the reform committees was a thirty-one page memorandum he prepared for the committee on basic principles in December, 1861. Here he admitted that Russia lacked legal authorities and “storehouses of legal doctrines and customs,” but was savagely critical of the half-educated chancery clerks responsible for the “soulless, heartless formalism” of Russian judicial procedures, “the secret and inquisitorial proceedings with their doctrine of formal evidence,” and the prolonged delays, injustice, and cruelty the system produced. His solution was simple: to limit the significance of written briefs, especially in simple cases, increase the importance of oral evidence produced under oath, and emphasize a verbal contest or oral competition between the plaintiff and the correspondent, or between their lawyers, before the judge, who could thereby see the issues clearly and render quick and just decisions. He was unsuccessful in his effort to insert a clear statement reflecting his views into the 1862 definition of the basic principles upon which the reform should be based, but the final code not only elevated the significance of oral debate before the court but also simplified the forms and emphasized the role skilled lawyers were to play, which he thought essential for the efficient administration of justice. By the time these proposals were in the final stages of review in 1864, Pobedonostsev had modified them so that the amount of written material involved varied according to the complexity of the case. Indeed, the majority of the committee in 1864 ultimately approved a greater emphasis on oral proceedings than did Pobedonostsev himself.³²

Just as the chancery clerk and the old court were Pobedonostsev’s favorite targets, so the Ruling Senate was his central institution. In the long effort to reform the judicial system, he resisted the effort to make the Senate a cassation court or kind of court-of-last-resort for all civil and criminal cases. Arguing that the narod (people) had become accustomed to the title of Ruling Senate and that the idea of a superior court of appeal was a Western one which had no roots in Russian tradition and was the cause of deep quarrels even in the West, he asserted instead that Russia should make the Senate the institution responsible for regularity of procedure and uniform interpretation of the law. Moreover, he insisted that the chairman of the Senate should have direct access to the tsar in order to ensure that the Senate would have full power in its functions. In fact, as clearly as one can determine from his imprecise language, the Senate was to be an instrument of the state, working closely with the Ministry of Justice. The Ministry was to be responsible for the maintenance of the law, and the Senate was to ensure that the courts be consistent and accurate in their judgments. Indeed, in order to enable the Senate to concentrate its efforts upon what Pobedonostsev considered its most significant functions, he suggested that some of its judicial review and inspection functions be transferred to the new district courts.³³

Even during the years when he was a most exuberant and vigorous proponent of a new judicial system, Pobedonostsev on occasion was troubled by doubts concerning Russia’s readiness to master and assimilate the splendid system he and his colleagues were preparing. These doubts were greatest when he considered the size of Russia, the severe shortage of well-trained lawyers and judges, and the varieties of peoples and traditions with which the judicial system had to deal, or when he was on one of his rare excursions outside his study and conference rooms in the capital cities. He wrote to a friend in June, 1862, just after he had returned from six months in St. Petersburg, that he felt like a Jew returning from Babylonian captivity. While travelling through the Don country with the heir apparent in the late summer of 1863, he was impressed by the ways in which the economic and social structure and the traditions and attitudes of Cossack society differed from those elsewhere in Russia. He reflected that it was certainly impossible to apply the same changes in the Don area as in the sections with which he had been more familiar. By the fall of 1864, when his work had been completed, he began to rail at the popularity of abstractions, at the personal ambition he saw everywhere, and at the evidence of “decomposition and weakness and untruth.” On December 14, 1864, less than a month after the reform had been announced, he wrote Anna Tiutchev that he was sick and tired of reform, that he had lost faith in reform programs, and that he hoped somewhere to find some firm ground on which to stand with some confidence.³⁴

His early disillusion became more profound after a decade, and he later became a virulent critic of the new court system. However, there is substantial evidence that he remained a resolute defender of the reformed courts for a number of years and that he sought to assist the hundreds of judges trying to improve the administration of justice. There is no evidence that he criticized the new judicial system between 1865 and 1872. In an article published in 1866, he asserted that there was little partiality or deliberate injustice in the new courts and that explainable ignorance and confusion in the new system were responsible for delay and absurd decisions. He was hopeful then that the new courts would be able to master the labyrinth bequeathed them. In the winter of 1871–72, in the Council of State, he opposed the efforts of Minister of Justice Palen to tinker with the judicial review procedure established in 1864. In the third volume of his Kurs grazhdanskago prava, he lamented the lack of confidence the higher courts had demonstrated in the new justices, especially in the elected justices of the peace, and reiterated his belief that the courts should rely more on oral evidence and discussion than on written material, which had been responsible for many of the faults of the old system.³⁵

More important, in 1872, when Pobedonostsev was both a Senator and a member of the Council of State, he published Sudebnoe rukovodstvo (Guide to Court Procedure) as a handbook for judges, especially justices of the peace, who were bewildered and confused by the new requisitions. Noting the absence of a general explanation of the theory of Russian civil law and of the connection between general concepts and practice, he declared that these shortcomings had contributed to the conflicts and contradictions which were confusing even the most seasoned judges. He asserted that the difficulties Russia’s jurists were undergoing were not remarkable, because the new judges were inevitably inexperienced and unprepared and Russia simply lacked the knowledge and wisdom concerning civil law procedure which only experience could provide. He therefore published five thousand copies of a 575-page guide to provide the new jurists information on the principles of civil law procedure, or “a short and clear account of the general rules” concerning the main problems. Of the 1,540 theses which Pobedonostsev discussed or for which he gave “sample” decisions, he had participated in the Senate discussions of about four hundred.

Sudebnoe rukovodstvo was criticized by some reviewers because it contained too many examples and confused the simple jurist seeking assistance rather than aiding him. Others noted that the volume may even have been harmful because it lacked any apparent system of selection and because Pobedonostsev sometimes was not aware of important Senate decisions which deeply affected or even reversed his theses. Yet, although he did not publish supplements to the book, or a revised edition, as he promised, his guide was clearly of considerable assistance to those who wanted to make the new judicial system effective.³⁶

The suspicion and hostility toward the 1864 court reform which Pobedonostsev had harbored must have grown gradually until it burst forth in two bitter anonymous articles which he wrote in 1873 for a weekly, Grazhdanin (The Citizen), which Prince Meshcherskii founded and published and which Dostoevsky edited at that time. One of his articles was a direct attack upon the jury system. In 1859, he had written that the English and the Scandinavians had succeeded in changing the system of formal proof and in eliminating torture from the judicial process because of the jury and that this institution would also help remove the use of torture from Russia. However, in 1873 he argued that the jury was effective only in England, where it had well-established popular national roots and where it had long been used to decide issues other than political ones. It was based on custom, not law, and it was not effective, and could not be effective, in countries such as Italy and Russia, where the traditions simply differed from those in England.³⁷

After 1873, he was a consistent and bitter critic of the jury in Russia. He ignored those studies which demonstrated that jury courts had been even more repressive than those without juries and that the jury as a whole had had “an ennobling influence on the people’s sense of equity.” In 1876 and 1878, he urged that cases involving violent attacks on government officials be transferred to special courts staffed by officials of the Ministry of Justice who were strong, reliable, devout defenders of the state and who could “distinguish clearly between truth and untruth.” He helped raise the requirements for jury duty in 1877 and to remove some kinds of cases from jury courts in 1889. In his principal statement of his political philosophy late in life, he took malicious pleasure in quoting the celebrated conservative English scholar, Sir Henry Maine, in his final outburst against this judicial institution.³⁸

Pobedonostsev also used his anonymous platform in Dostoevsky’s Grazhdanin to attack Russian law professors and Russian jurists in general. His old friend and his colleague, Kalachov, now also a member of the Senate, and a number of law professors at Moscow University planned a congress of jurists on the model of congresses held in Austria and Germany since 1860, which more than 220 professors and other jurists attended in Moscow in 1875. Meanwhile, Pobedonostsev loosed a vicious attack on the Moscow law faculty, naming individuals and identifying what he considered their shortcomings. He went on to denounce the products of the law schools as shallow charlatans who had studied law only to obtain comfortable positions created by the 1864 legislation. Although unsuccessful in preventing the 1875 congress of jurists by these attacks, Pobedonostsev did persuade Alexander II and the Minister of Justice to refuse permission for a later meeting.³⁹

In 1873, he astounded even his associates in the Council of State with his attack on the final stages of the reform of the army which Count Dmitrii A. Miliutin was just then bringing to a conclusion. In a long and spirited speech, he unsuccessfully attacked Miliutin’s proposal that officers be chosen by ability and urged instead that only members of the gentry class be eligible to serve as officers. His defeat on this issue was so crushing that he reversed his position before the final vote.⁴⁰

The Balkan crisis and war in 1877–78 and the celebrated public trial of Vera Zasulich helped to turn Pobedonostsev against every aspect of the reform of 1864. Indeed, he was opposed to any trials for the revolutionaries and said he would “stand this flock of stray sheep against the wall.” His correspondence during the last years of the reign of Alexander II and the first years of the reign of Alexander III is filled with denunciations of the Russian judicial system as one of the prime causes of the political and moral crisis.⁴¹

This full revulsion and the development of a political philosophy which reflected this change and Pobedonostsev’s turn toward repression will be described later. The process of the change between 1859 and 1874 is still impossible to decipher. It is significant that the available materials contain no reference to the Polish revolt in 1863, which many believe was a turning point in Russian political development similar to the revolution of 1848 in Prussia and Austria. None of his publications or private letters refers to the nihilists or to the radical and revolutionary movement of the 1860’s, although he must have known and opposed them. Moreover, until he wrote another anonymous article in Grazhdanin in 1873, he did not refer to the zemstvos or the municipal dumas, the local selfgovernment institutions established during the great reform wave.

In other words, the principal developments of the 1860’s must have influenced Pobedonostsev considerably, but we have no direct evidence and the effect of the entire period must have been cumulative. However, he was probably influenced just as much, or even more, by other factors. For example, his interest in change was clearly restricted to his own field of special and technical interest, the judicial system. He was not a reformer; in fact, he was always quite conservative. He simply wanted a more efficient and equitable system of law. Moreover, it is quite likely that the process through which Pobedonostsev and others labored to bring forth the 1864 legislation had the impact which long campaigns for radical change often have upon those involved. Thus, his zeal to attain a clearly defined change may have been exhausted by the struggle, particularly when the program had to be squeezed through one of the most inefficient and obdurate of contemporary bureaucracies. It is interesting to note that his scorn for bureaucrats developed at the same time he became opposed to all change, and that he returned in disgust to the placid and quiet life from which his reform activities had yanked him. Finally, of course, he was never an independent or original thinker, and the development through which he proceeded during these years may simply reflect the process through which the society he knew advanced.⁴²