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Military Justice - Historical Perspective (Reprints)

Civilians in Russian Military Courts, 1881-1904

William C. Fuller

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1This article was previously published in the Russian Review, Vol. 41, No. 3. (Jul., 1982), pp. 288-305. It is reprinted in our journal with the Blackwell Publishing’s authorization.

2Clemenceau is supposed to have remarked once that "military justice is to justice as military music is to music." This salty analogy encapsulates the popular conception of military courts in Europe at the turn of the century. In the public mind the courts were presumed to be arbitrary tribunals in which due process was not respected, the accused had few opportunities to clear himself, and punishments were severe. For many civilians in Europe before 1914 and many civilians today, military trials could be described in Hobbesian adjectives-nasty, brutish and short.

3Almost no military judicial system has suffered as much historiographical condemnation as that of late Imperial Russia. Certainly Soviet historians have done little to disabuse us of the notion that the Russian military bench was chock-full of sadistic ignoramuses and toadies, zealously carrying out the repressive policies of the tsarist government against the civilian population. Over twenty years ago, N. N. Polianskii painted a hideous portrait of the military judiciary during the revolution of 19051. More recently, N. A. Troitskii has published a series of monographs which, inter alia, decry the villainous conduct of the Russian military jurists during trials of propagandists and revolutionaries in the 1870s, 1880s and 1890s2.

4Valuable as these works of Soviet scholarship are, however, the representation of military justice given in them is not entirely satisfactory, for it relies too heavily on crude stereotypes. To reevaluate the military trials of civilians in late Imperial Russia, this study will therefore examine them in their context-against the backdrop of legislation, traditional practice and judicial structures. Only an analysis of this kind can allow us to determine exactly how reliable the military courts were as instruments of internal repression.

I

5In early nineteenth-century Russia, the subjugation of civilians to military justice was a relatively common phenomenon, Nicholas I had characteristically expanded the list of crimes for which a civilian became liable to military justice. After 1833, all convicts serving terms of hard labor (katorga) who committed additional offenses, and all civilians who perpetrated crimes along with soldiers fell into this category, as did peasants who rioted against military cordons after 1826, and arsonists after 18423. But Russia's judicial reform of 1864 sharply reduced the number of cases in which civilian defendants were handed over to the army for trial4.

6This civilian judicial reform provoked a parallel reform of military justice in 1867, which created a new three-tier hierarchy of military courts. At the base were regimental courts, summoned at the discretion of the regimental commanders. They handled cases of such triviality that we can pass over them here. More important were the middle-level Military District Courts, one for each of the Military Districts into which the Russian Empire was divided. Military District Commanders could supplement these courts, if occasion demanded it, with temporary military courts established for a specific locality removed from District Headquarters. It was in the District courts and the temporary courts that all the principal cases were heard. At the apex of the military judicial system stood the Chief Military Court, which had numerous duties, including the review of the cases submitted by the District courts on the basis of appellate process. The Chief Military Court was in turn subordinate to the Chief Military Procurator who was at the same time the head of the entire Main Administration of Military Justice (GVSU). As conceived by War Minister D. A. Miliutin, the reformed military judicial system was clearly designed to try cases involving military personnel, not civilians5.

7All the same, the civilian judicial reform of 1864 did still allow opportunities for the prosecution of civilians in military courts. Article 1246 of the 1864 Code of Criminal Procedure declared that civilians who committed crimes in the company of soldiers which affected military discipline or military service could be tried by the army. In 1898 the Council of State amplified Article 1246: in the Military Districts of the Caucasus, Turkestan, Irkutsk, Omsk, and the Amur, civilians who abetted soldiers in the theft of arms, cartridges, or powder were to be subject to military justice without exception. In such cases, however, convicted civilians were not to receive military punishments; rather, the military court was to award them the penalties fixed by civilian law for their offense6. From 1881 to 1903 military courts tried between two hundred and one thousand civilians a year in accordance with these laws. The following table compares the number of civilian defendants charged under Article 1246 with the total number of military defendants. The military category comprises both soldiers and civilian employees of the War Ministry whom the statutes also subjected to military law.

TABLE A - Military District Court Cases7

8Military

9Civilians

10Year

11Total Number of Defendants

12Convicted

13Acquitted or released

14Convicted

15Acquitted or released

161881

1718 872

18811

199 142

20531

211 088

221882

2318 532

247 644

259 766

26564

27564

281883

2917 311

306 841

319 652

32520

33298

341884

3518 785

367 260

3710 268

38584

39673

401885

4117 240

426 746

439 279

44448

45767

461886

4716 307

485 979

499 408

50476

51448

521887

5317 076

54291

55773

561888

5715 989

585 632

599 627

60216

61514

621889

6316 104

645 390

6510 275

66111

67329

681890

6915 942

704 738

7110 904

72198

73102

741891

7515 571

7615 140 total Military

77531 total civilians

781892

7917 749

804 412

8111 852

82740

83745

841895

8515 010

864 230

8710 492

88154

89134

901899

9118 002

923 927

9313 848

9468

95159

961900

9717 197

983 661

9913 365

10056

101115

1021902

10318 833

1043 630

10514 889

10674

107240

1081903

10918 711

1103 842

11114 626

11287

113156

114With seventeen or eighteen thousand defendants appearing before Military District courts every year, the few hundred civilians included in this tally scarcely overtaxed the military judicial system. Further, most of these civilians were involved in simple cases that were susceptible to speedy resolution, such as petty larceny or the receipt of stolen goods. Such were the cases of the peasant Ivan Golikov, who bought a cabbage from two soldiers even though he knew it had been stolen from the military mess, and of the meshchanin Leiba Eidel'man, who knowingly purchased fifteen army horseshoes from Iakov Kuznetsov, senior blacksmith of the seventh battery of the twenty-fifth artillery brigade8. In both these matters, military courts convicted and punished the civilians, but did so on the basis of the statute of the civil justices of the peace. Although it might seem ridiculous to call an entire military court into session merely to stand in for the local justice of the peace or land captain, the rationale was that military courts should try cases like these as a courtesy to the army.

115But if cases founded on Article 1246 were the typical cases of civilians in military courts during the last twenty years of the nineteenth century, there were a variety of atypical cases, resulting from the application of “emergency decrees”. Of these, the most important was the notorious law of 14 August 1881. Drafted by a government driven to desperation in its attempts to extirpate the revolutionary "Peoples' Will" movement, the law prescribed rules whereby provinces and entire regions of the Empire could be placed in "exceptional" states of emergency. In that event, the police and the Ministry of the Interior had greatly enhanced authority to take steps in the defense of public order. The decree defined two degrees of emergency status: "reinforced safeguard” and "extraordinary safeguard". The Minister of the Interior could proclaim the first if agitation or conspiracy against governmental or private security seemed so ominous that the preservation of order by means of regular laws was impossible. An imperially-approved decision of the Committee of Ministers was required to introduce "extraordinary safeguard” - designed for situations in which propaganda or conspiracies had "seriously spread” among the population. "Reinforced safeguard” expired automatically after a year; "extraordinary", after six months. If the Minister of the Interior desired to prolong "safeguard” he had to make a special representation on this subject to the Committee of Ministers. The administrative powers enjoyed by governors-general, governors, and certain city governors (gradonachal’niki) in "safe-guarded areas”- powers of arrest, sequestration, fining, etc. - are well known.

116Of more relevance to our discussion are those clauses in the safeguard law which provided for the military trial of civilians. If a province were under reinforced safeguard, the governor-general or the Ministry of the Interior could transfer any case to military courts if it were "essential" to do so to preserve public order and peace. If a governor general possessed the additional authorities of extraordinary safeguard he could dispatch any case to a military court without any justification whatsoever. Trials conducted in a state of safeguard could be closed to the public. Most important, the accused were not only to be tried by military law, but by the military law of wartime, which mandated more severe punishments than the military law of peace. In addition, civilians convicted of armed resistance to or attacks on soldiers or officials in the line of duty were to receive the punishment prescribed by Article 279 of the Military Code of Punishments - that is, the death penalty9.

117All of this meant that in safeguarded areas it was possible to try civilians under laws that were harsher than those that applied to the army itself. After all, civilians were to be tried under the military laws of war, soldiers under the military laws of peace. Thus, if safeguard were in effect and a soldier murdered his commanding officer, the most he could receive from a military court was a lifetime of hard labor; however, if a civilian drew a knife on a policeman, the same military court would be constrained to put him to death.

118When enacted, the law of 1881 was intended as a temporary measure. Writing to the Ministry of the Interior in 1882, the Ministry of Justice envisioned a time when the voiding of the law would cause "the immediate reestablishment of the full force of laws valid in ordinary situations”10. Yet the government never relinquished safeguard, which, as the years passed, became more and more a regular means of administration. Indeed, the regime continuously issued decrees which either enhanced safeguard or were analogous to it. For example, in 1887 the Committee of Ministers appended a series of rules for places not under safeguard to the original law. These rules, activated anywhere in the Empire at the Committee's discretion, empowered the police to detain any person suspected of state crimes for a week. The Minister of the Interior and the Minister of Justice, moreover, could send any cases they desired to the military courts to be tried by the laws of war. Now there was no corner in the Empire in which a civilian could hide from the rigors of military justice11.

119Still later the government promulgated yet another set of laws which would lead to military trials of civilians. Laws of 29 July and 25 January 1893 prescribed military trials and death sentences for either damaging the Transcaucasian or Vladikavkaz railroads, or for armed assault on their offcials or passengers. On 13 September 1893, the same legal arrangements were instituted for tribesmen of the Caucasus and Stavropol province found guilty of banditry, murder, arson, or rebellion12. In 1882, the administration unveiled a further decree on martial law. Framed with a view to an actual future state of war, the law placed all civil powers within the theater of military operations in the hands of military officials. Those sections of the act which discussed the subordination of civilians to military justice were mere transpositions of the articles of the law of 188113. Even if foreign enemies were to invade the country, the Russian government could contrive no harsher penalties for its civilian criminals than those legislated in 1881.

120This rapid excursion through a thicket of tsarist decrees is pointless, however, without a consideration of their application in practice. How many civilians, then, found themselves at the bar of Russian military justice as a result of these "emergency laws?" Table B furnishes some information on how the laws were used.

121The original purpose of the safeguard law had been to unleash the military courts against criminals of state. This is precisely what occurred at first. Forty-two of the seventy-three "Peoples' Will" trials of the 1880s were heard in military courts. But revolutionary populism of the terrorist variety was largely handled by the military courts in the initial years of the decade. Thereafter, and up to 1903, there were in fact few state crimes tried in military courts. The archives of the Department of Police disclose that from 1885 to 1903 there were only seventeen cases of state crimes tried in this fashion. Yet the majority of even these cases did not concern the exposure of underground socialist plots. The category of state crimes naturally included treason as well as political conspiracy. A full eleven of these seventeen cases were espionage cases, and in eight of these, the chief defendants were foreigners - German or Hapsburg subjects14.

122TABLE B

123Civilians Tried by Military Courts on the Basis of Exceptional Legislation15

Year

N° & (if known)

types of cases

Number of defendants

Penalties imposed (if known)

1881

66: 11 state crimes

      50 pogroms

25

287

18882

40: 31 pogroms

        5 prison guard murders

        1 resistance to rural police

239

30

3

111 acquitted

4 katorga

4 exile

1883

5

40

17 katorga

4 exile

1884

10

206

2 to hang

34 acquitted

1885

9

118

7 to hang

36 acquitted

1886

7

74

4 to hang

13 acquitted

1887

9

55

2 to hang

    acquitted

1888

0

1892

12: cholera riots

638

239 acquitted

81 to hang #

1898

3: 1 espionage

    1 Fergai rebellion –Turkestan (martial law)

    1 baditry –Turkestan (martial law)

9

23 to hang

374 katorga

1899

1 Fergai rebellion

5

5 to hang ##

1902

15

13 to hang

1903

30

4 to hang

1904

18

6 to hang ##

# 78 of these commuted to hard labor

## All commuted to hard labor

124The remaining civilians tried by the army under the emergency decrees in the period before 1905 were generally common criminals-rapists, murderers, or bandits. Governors, especially governors in the Empire's more remote and unruly provinces, often stretched the phrase in the 1881 act about crimes which endangered the public order to include felonies of this ilk. In any event, governors in "safeguarded" provinces were required to send cases involving armed resistance to the police to the courts of the GVSU. And it was just as easy for a burglar to take a shot at a policeman in hot pursuit as it was for a revolutionary, working over his clandestine printing press, to reach for his revolver when the gendarmes surprised him. Thus Biaram Ogly, who robbed and then stabbed a Cossack on a road in Krasnovodsk uezd one summer day in 1891 found himself in the Turkestan Military District court16. In the same fashion when in 1899 Ivan Bonasik and Anton Patsuk ambushed some Yenesei peasants returning home from work in the goldfields, shot one, covered another with kerosene and burned him alive, and made off with sixty rubles, the Siberian Military District court sentenced them to death17. The Amur Military court likewise tried exile Ustin Sharenov and his son Dmitrii for slaughtering an entire family in the course of a 1904 robbery18. The Amur court also sat in judgment over settlers R. Skidlovskii and Ia. Steblianskii, accused of murdering a local priest and his family in an exceptionally 'bestial" fashion19.

125Yet even if the largest contingents of civilians sentenced by military courts on the basis of emergency decrees were spies, traitors, and vicious felons, as we have already seen the laws entered the statute books in order to serve as weapons against the revolutionaries. Why was the tsarist government so attracted by military justice in the struggle with revolutionary activity and public disorder? To be sure the government was rightly dubious about consigning political criminals to the public jury trials of the Ministry of Justice courts. Highly placed bureaucrats were alarmed by the "light sentences" given the Nechaevists in 1872 and were still more perturbed when a jury acquitted Vera Zasulich of the attempted murder of General Trepov in 1878, even though she had unabashedly confessed to the crime20. But the regime did have alternatives to public jury trials without resorting to military justice. In the summer of 1872, a decree made it possible to try political cases without a jury in the so-called Special Office of the Governing Senate (OPPS). Here the judges were senators chosen by the Emperor and representatives of certain estate organizations selected by the Minister of the Interior. Departures from the criminal code of 1864 were permitted in the OPPS, the closing of trials to the public among them21.

126Still, even the OPPS was not an unqualified success. In the first place, the judges occasionally displayed too much mercy for the government's taste; in the second, OPPS trials all had to occur in St. Petersburg itself, entailing delays, high costs, and excessive publicity22. In military courts, however, trials were faster than in civilian tribunals, and the decentralized military judicial system was obviously more convenient for the regime than the central OPPS. Further, it was more difficult in a military court for a revolutionary to carnavalize the proceedings or to make inflammatory speeches from the dock than it was in civilian courts or the OPPS. When Pobedonostsev wrote Alexander III about the would-be regicides apprehended in 1887 he urged that they be consigned to a military court "where the procedure is swifter and simpler" than in the OPPS23. Under civilian law defendants were either tried by juries in courts presided over by irremovable judges or tried in the OPPS where the majority of the judges were irremovable senators24. In military trials, by contrast, cases were not decided by juries but by panels of military justices who could be removed or transferred at the whim of the Chief Military Procurator. From the point of view of the administration, there was yet another reason to prefer military courts in political cases: such courts were more likely to hand down harsh sentences, including the death penalty25.

127In decrees of 1753 and 1754 Elizabeth Petrovna had abolished the death penalty in all civilian courts within the Russian Empire. Catherine the Great had resurrected it for state crimes. The code of 1832 had added that it could be used against those who violated quarantine regulations (a response to the recent epidemic of cholera in the Empire). By the terms of the third and fourth editions of the Code of Punishments (1866 and 1885) then, the only capital crimes in civilian law were breaking quarantine, conspiring against the person or rights of the Emperor, and plotting to overthrow the government26. After the new Criminal Code of 1903 was published, conspiring against Russia's fundamental laws and system of succession as well as efforts to separate any section of the Empire from the rest also became punishable by death27.

128In peacetime, military law generally recognized only two applications of the death penalty: against a criminal who attacked a sentry guarding the person of the Emperor and against a spy. But, as we have seen, civilians ushered into Military District courts on the basis of emergency legislation were tried under the military laws of war, and these prescribed some thirty capital offenses. Although civilians hardly could lose the regimental colors, surrender an army to the enemy without a fight, or desert the battlefield, they were capable of premeditated murder, banditry, robbery and rape. And the military courts were empowered to try cases on bases other than military law. The "safeguard" decree with its mandatory death sentences for armed resistance to the authorities is a case in point28. Further, the government was often willing for military rather than civilian courts to hear cases of revolutionary conspiracy punishable by death under civilian judicial statutes.

129From the foregoing, one might entertain the misconception that military judges in Imperial Russia were the servile and bloodthirsty Slavic equivalents of such hanging judges as George Jeffreys or Isaac C. Parker. It is true that the military laws of war required executions for a whole range of offenses. It is also true that the military judiciary was less independent and more susceptible to outside pressure than the civilian. Indictments were also more easily obtained in military courts where they were frequently granted on the flimsy basis of police inquest rather than preliminary judicial investigation. Procedural irregularities did occur: N. A. Troitskii has collected numerous examples of them from the trials of the members of the Peoples' Will in the early 1880s29. But military courts were not merely kangaroo tribunals from which the government could always squeeze any sentence it desired. The structure of Russian military justice, the legal education of military judicial personnel, and the attitudes and practices of that personnel all buttressed due process of law.

II

130After the military-judicial reform of 1867 the majority of military trials were public and the adversary system obtained in military as well as civilian courtrooms30. In fact, save for the absence of jurors, military and civilian criminal procedure were identical; the procedural articles of the military judicial code were copied word for word from the corresponding articles of the civilian legal stattes31.When a soldier was prosecuted, the court appointed a defense attorney from among the young military jurists (called candidates) attached to it. This was disadvantageous to the accused, since the military prosecutor often had more service seniority than the president of the court himself. A contest between an experienced prosecutor with the rank of major general, and a fledgling defense attorney who was a captain besides might well be unequal. Pobedonostsev obviously supposed that this system of assigning court-appointed attorneys was retained when civilians were in the dock. Writing of the assassination conspiracy of 1887 in the letter quoted above, he declared that:

It is difficult to prevent the participation of defense attorneys, as they are required by law in military courts too and also, an interdiction of defense attorneys would require a special Imperial order which in the present case is undesirable. But in this regard the military court is more convenient, for it itself appoints a defense attorney for the accused from its candidates, while in the OPPS the accused may choose anyone they wish from the outside32.

131Pobedonostsev was mistaken, however. Military courts often permitted civilians to select the civilian attorneys of their choice, and in prerevolutionary Russian gifted radical lawyers willing to represent clients in military as well as any other courts were not lacking, even though in military courts legal erudition and guile counted for more than the mealy-mouthed eloquence so notoriously effective with Russian juries. A War Ministry circular of 1882 had forbidden both prosecutor and defense attorneys in military courts to employ “insulting remarks, inappropriate criticism, metaphor, allegory or any other oratorical tricks”33. A further right all defendants in District military courts enjoyed was that of appeal to the Supreme Military Court in St. Petersburg. This right was not inviolate since governors-general, or Military District commanders who confirmed sentences in their absence also had the power to quash appeals. Yet in significant numbers of cases, and especially in those where civilians had been tried for their lives, appeals were allowed to go through. Frunze, among other noted revolutionaries, was to owe his life to this right of appeal34.

132The caliber of the officials of the Military Judicial Administration was in itself a guarantee of due process. In 1900 there were eleven District military courts of the empire (eight in European Russia, plus those of Turkestan, Siberia and the Amur). Each of these courts had a chief justice or president, in addition to a prosecutor and directorate of prosecutions, which included a team of military investigators. Fifty-one officers held the position of military judge in Europe and fourteen in the Asiatic territories of the Empire35. To be sure both the regular Military District courts and the special temporary courts had so-called temporary as well as permanent members. The District commander appointed certain field officers from District headquarters to six-month terms as temporary members. Although these temporary members were theoretically the equal of permanent members, it was in fact the latter - the court president, and the military judges - who dominated the Courts36. And, after 1883 all permanent members had received advanced juridical education, in most cases at the Military-Judicial Academy, in 1898 renamed the Alexander Military-Judicial Academy.

133The Alexander Academy, as we shall anachronistically style it, was founded shortly after Miliutin's comprehensive military-judicial reform of 1867, but it was Lieutenant General P. 0. Bobrovskii's reform of the Academy itself which stamped it with its final character37. As was true of the Nicholas Academy of the General Staff, admissions were highly competitive38In 1884, for instance, eighty officers applied for fifteen places at the school39. The difficult entrance examination stressed literature (familiarity with the works of Nekrasov, Dostoevskii, and Tolstoi was required as early as 1886), history, physics, chemistry, military administration, French, and German40. Again, just as the Staff Academy, only students who had most distinguished themselves in the first two years of study were permitted to enroll in the third and final year of the course. Students in the first and second year attended lectures which were exclusively devoted to legal theory, languages, and civilian legal practice41. The study of military law did not begin until the third year.

134There are three salient points about the training and atmosphere provided by the Alexander Academy from 1880 to 1914. Like any modern American law school, the Academy was more interested in inculcating abstract principles of legal reasoning ("learning how to think like a lawyer") than it was in rearing unimaginative legal technicians who had learned the statutes by rote. But in teaching abstract principles, the Academy placed considerable emphasis upon the comparative approach, and more specifically, the study of Western law. Students in the first and second years sat through lectures on the laws of constitutional states. Volodimirov's course on criminal procedure, taught from 1881 until the mid-nineties, devoted as much attention to France and Britain as it did to Russia, at least to judge by his lecture outline. Even the course on police law offered at the Academy included frequent references to what was happening abroad-in this case, Western governments' solicitude for public health and disease prevention42. The bias toward Europe was also evident in the holdings of the Academy's library. In 1899 the library contained 1,313 titles in Russian on general law, including treatments of the law of Russia. Yet it possessed 1,044 copies of books on the laws of foreign countries43.

135If the first two years of study concentrated on abstract thinking, then, the third year was given over to the practical aspects of military justice. Lectures on military criminal procedure, forensic medicine, military administrative law and the rest were supplemented by frequent field trips to prisons, courtrooms and, interestingly, by the constant reenactment of actual military judicial cases in moot courts. These cases, selected from the archives of the St. Petersburg Military District court, were retried by teams of five or six officers who worked together throughout the year44. The Academy organized the moot courts in such a fashion that every officer had the opportunity to play each of the important court functionaries at least once in the year. Every officer consequently served as prosecutor, defense attorney, chairman of the court, clerk, and military judge45. This system of training had obvious heuristic advantages of which the most important was its precise correspondence to the reality of the military judicial administration. Any jurist who put in thirty years of service would at one time or another occupy all of these posts in real courts.

136The last significant feature of the Alexander Academy was that it boasted a faculty of famous and highly respected scholars, many of them with reputations for "liberalism." P. S. Vannovskii's counterreform of military education in the 1880s had resulted in the expulsion of civilian teachers from military classrooms. The Alexander Academy represented a vivid exception to this trend, and indeed, in the nineties and in the early years of the twentieth century, the majority of the instructors at the Academy were civilians. Thirteen of the eighteen professors and lecturers at the Academy in 1890 were civilians, as were thirteen of the nineteen in 190246. Such learned and revered civilian jurists as I. D. Kavelin, N. M. Korkunov, S. A. Bershadskii, N. D. Sergeevskii and N. A. Nekliudov held Academy professorship47.

137Thus in terms of its curriculum, educational philosophy and faculty, the Alexander Academy of Military Justice closely resembled a civilian law school48. Since the civilian law schools and the lawyers who graduated from them were among the strongest supporters of the Rechtsstaat concept in late nineteenth-century Russia, it is not surprising that military jurists, like their civilian colleagues, were unhappy with extra-legal problem-solving on the part of the government, including the subjection of civilians to miltary courts on the basis of "emergency" legislation. Volodimirov, among other Academy professors, publically condemned the military trial of civilians under the "safeguard" decree49.

138Some military jurists trod the path of liberalism still farther. V. D. Kuz'min-Karavaev, first in his class at the Academy in 1883, taught all of the courses in military criminal procedure at the Academy in the nineties. In 1901, as a major general and professor, he was placed in charge of the Academy's entire moot court program50. Yet he was one of the most implacable foes of capital punishment in the Russian Empire. In 1900, for instance, he authored a piece for the Brockhaus/Efron encyclopedia which denounced the death penalty even under martial law51. And as a deputy in both of the first two Dumas, he was a sponsor of the bills to abolish capital punishment52.

139To state that the Academy enjoyed a modest success in teaching respect for the law and abhorrence of administrative arbitrariness (proizvol) is not the same as arguing that all Academy graduates were bubbling over in enthusiasm for these ideals. Legal-mindedness could be compared to a vaccination performed by the Academy and in some rather spectacular cases the vaccination did not "take." For example, the odius P. G. Kurlov, governor of Kursk, assistant head of the Police Department, head of the Chief Prison Administration, was third in his Academy class in 1888. One of his instructors in that year praised his talent, his intellect, and his legal oratory53. Still, the Academy embodied the idea of a professional, military-legal ethos. However respectful of the powers of the state they may have been, the Academy's professors were all deeply devoted to the concept of legality (zakonnost'). When Nicholas II in 1910 called three of the Academy's professors leftists, this presumably is what he had in mind54.

140The majority of the 902 military jurists who graduated from the Academy from 1878 to 1910 took away with them a highly developed legal ethos. This ethos found expression both in regular cases and in those cases in which civilian defendants were indicted under exceptional legislation. Absolute scrupulousness and fairness in these latter cases was the avowed policy of the Military Judicial Administration. As the Supreme Military Court declared in March 1903:

The handing over to military courts of persons who are not indicted under the ordinary order of procedure with the application to the convicted of punishments established by the laws of war is an extreme measure and is obviously called for by extreme necessity. Therefore military courts are obligated to take appropriate pains to establish those circumstances which mitigate the guilt of the accused55.

141Of course, in specific cases governmental pressure could and did influence military court decisions. But in bending to the wishes of civilian authorities, subverting the law in the interests of repression, military judges were acting against their training and their instincts.

142Generally, military courts strove to respect due process in the trials of civilians. Thus, improperly prepared indictments were frequently dismissed56. Further, on occasion military courts handed down sentences in strict accord with the law regardless of whether this was vexatious to the civilian government or the Emperor himself. High-ranking officials were stunned, for instance, by the "leniency" of the Kiev District court in the trial of the twelve in 1884. And Alexander III was appalled in 1886 when the military court of the Caucasus failed to impose the death penalty on the underage murderer of rector Chudetskii57. G. Filat'ev, reviewing the history of civilian crimes of state in military courts for the period 1902-1912, observed that the courts acquitted a larger proportion of defendants in such cases than in any other variety of case58. This evidence might imply that at least some military judges sought to shirk the responsibility of passing harsh sentences, including the sentence of death. In any event, there can be no doubt that the Military Judicial Administration regarded the presence of civilians in military courtrooms as a heavy drain on its judicial resources and the trying of such persons as extraneous to its primary responsibilities59. The annual military judicial reports always listed cases tried on the basis of exceptional legislation separate from those cases which justly came within miltary judicial provenance. Statistics on the exceptional trials of civilians were never included in calculations of total numbers of cases or defendants. The rough draft of an internal memorandum prepared within the GVSU in September 1907 pointed out that military courts had originally been created with the interests of the army in mind. Now, however, the courts had assumed the "honorable burden and heavy duty" of trying civilians. A GVSU official, perhaps even the recipient of the memo, Chief Military Procurator Ryl'ke, crossed out the word "honorable"60.

143Almost as if embarrassed by the role of hangman to the autocracy, the Military Judicial Administration ignored the problems created by its trials of civilians. No special educational efforts were ever made to train officers to deal with them. At no time from 1880 to 1914 did any of the moot court cases studied at the Alexander Academy feature a civilian defendant indicted as a result of the law of 1881, martial law, or the law on banditry in the Caucasus. Such cases were not even included in the Academy curriculum during the years 1906-1908 when a full one-third to one-half of all cases the army tried were exactly of this type, when the newly-graduated military jurist was confronting cases like this as soon as he took up his duties in any military court of the Empire from the Far East to Poland61.

144The pressure on the Military Judicial Administration was to increase geometrically with the monstrous influx of civilian cases during the revolution of 1905-1907. Military judges severally adapted to the conditions of the revolution. Some stepped into the forefront of reaction, eagerly participating in the counterrevolutionary bloodbath. Others, probably the majority, continued to observe the traditions of legality and fairness62. At least a few did everything in their power, including twisting the law, to avoid handing down sentences of death63. When Ministry of Justice official Krulev urged the abolition of the trials of civilians in military courts in 1905, he did so not because he regarded them as inhumane, but because he deemed them a failure as a deterrent. Since in a significant number of cases, persons who were obviously guilty were eluding capital punishment in these courts, the prospective criminal might hope that he might be equally lucky. And this hope undercut the deterrent emotions of fear and terror, which the military courts were supposed to inspire64.

145The picture of military justice that emerges from this study is therefore somewhat more complex than that often given in the historiography. The "exceptional" laws may well have been harsh, but for most of the period we have discussed, they were commonly employed in the defense of order in the turbulent borderlands, rather than as weapons against the politically disaffected. Even when the military courts did try political cases, the government could not always rely on the courts to chastise the "guilty" regardless of due process of law. That this was so was in large measure the consequence of the professionalism of the Russian military judiciary. If by the early 1860s a Russian legal consciousness had emerged, as Richard Wortman tells us, a later but parallel process was the formation of a Russian military-legal consciousness. The military-legal ethos was thus a liability to the Russian government, for if the government could not depend on the repression of the military courts, what could it depend on?

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Notes

 The author would like to thank IREX and the Fulbright/Hays Commission for supporting the research for this article.
1 N. N. Polianskii, Tsarskie voennye sudy u bor'be s revoliutsiei 1905-1907 gg. (Moscow, 1958).
2 Among these books are: "Narodnaia volia" pered tsa~slcim sudom 1880-1891gg. (Saratov, 1971); Tsarskie sudy protiu revoliutsionnoi Rossii: Politicheskie protsessy 1871-80 gg. ( Saratov, 1976 ); Bezumstvo khrabykh: Russkie revoliutsionery i karatel'naia politika tsarisma 1866-1882 gg. ( Moscow, 1978); Tsarizm pod sudom progressivnoi obshchestvennosti 1866-1 895 gg. (Moscow, 1979).
3 John P. LeDonne, "Civilians under Military Justice during the Reign of Nicholas I," Canadian American Slavic Studies 7, no. 2 ( Summer 1973) : passim.
4 D. F. Ognev, Voennaia podsudnost': sravnitel’nyi ocherk (St. Petersburg, 1896), p. 177.
5 P. A. Zaionchkovskii, Voennye reformy 1860-1870 gg. u Rossii (Moscow, 1952),pp. 108-115.
6 Ustav ugolovnogo sudoproizvodstva, prodolzhenie svoda zakonov . . . 1906 g. vol. 16, pt. 1,arts. 1246, 1248.
7 Sources for chart: Otchet po glavnomu voenno-sudnomu uprauleniiu za 1881 (St. Petersburg, 1883), p. 10; . . . za 1882 (St. Petersburg, 1884) pp. 10-11; za 1883 (St. Petersburg, 1885), p. 11; . . . za 1884 (St. Petersburg, 1886), pp. 10-11; za 1885 (St. Petersburg, 1887), . 11; . . . za 1886 (St. Petersburg, 1888), p. 11; ...za 1887 (St. Petersburg, 18897, p. 10; .. .ur 1888 (St. Petersburt 1890), p. 10; . . . za 1889 (St. Petersburg, 1891), . 12; . . . za 1890 (St. Petersburg, 1892), p. 11; . . . za 2891 (St. Petersburg, 1898, p. 14; . . . za 1892 (St. Petersburg, 1895), p. 11;...xa1895 (St. Petersburg, 1897), p. 11; ...za 1899 (St. Petersburg, 1901), p. 11;. . .za 1900 (St. Petersburg, 1902), p. 11;. . . za 1901 (St. Petersburg, 1903), pp. 10-11; . . . za 1902 (St. Petersburg, 1904), p. 11; . . . za 1903 (St. Petersburg, 1905), p. 11.
8 Resheniia glavnogo voennogo suda 1903-1908 gg. (St. Petersburg, 1903-1908), pp. 94, 145-36.
9 Prilozhenie 1 k st. I (prim. 2) woda ustauou o preduprazhdenii .I presechenii prestuplenii: Polozhenie o merakh k okhraneniiu gosudarstuennago poriadka i obshchestuennogo spolcoistuiia 14 avg. 1881 g. (St. Petersburg, n.d.), arts. 4, 6, 9, 12, 14, 15, 16, 17, 18, 19, 24, 25, 26.
10 Tsentral'nyi Gosudarstvennyi Arkhiv Oktiabrskoi Revoliutsii (hereafter TsGAOR), f. 102, op. 136, d. 27 153, 1881 g., 1.20.
11 Polozhenie, art. 31.
12 [V. D.] K[uz'min] K[aravaev], "Smertnaia kazn' po voenno-ugolovnym zakonam," Entsiklopedicheskii slovar’, pub. F. A. Brokgauz and I. A. Efron, vol. 30a, p. 500 (hereafter, BE ).
13 Obshchee uchrezhdenle gubernskoe, Svod zakonov … ,vol. 2 (St. Petersburg, 1892), art. 2, prilozhenie.
14 Troitskii, Tsarskie sudy, p. 335-36; Troitskii, "Narodnaia uolia", pp. 106-107; TsGAOR, f. DP, 7-e deloproizvodstvo, d. 459, t. 3, 1882 g., 11.17-22.
15 Sources for table: Vsepoddanneishii doklad po voennomu ministerstvu 1882 goda (St. Petersburg, 1882), p. 65; .. . 1883 goda (St. Petersburg, 1883), pp. 99-100; ... 1884 goda (St. Petersburg, 1884), p. 105; . . .1885 goda (St. Petersburg, 1885), p. 111; ...za 1886 (St. Petersburg, 1886), p. 100; ...za 1887 (St. Petersburg, 1887), pp. 69-70; . . . za 1888 (St. Petersburg, 1888), p. 76; .. . za 1889 (St. Petersburg, 1889), pp. 76-77; . .. za 1892 (St. Petersburg, 1892), p. 65; ...za 1893 (St. Petersburg, 1893), p. 83; Tsentral'nyi Gosudarstvennyi Voenno-Istoricheskii Arkhiv (hereafter TsGVIA), f. 1, op. 2, d. 158, 1.18; TsGVIA, f. 1, op. 2, d. 159, 1.19; TsGVIA, f. 801, op. 56/79, d. 27, 11.184-185.
16 Otchet po glavnomu voenno-sudnomu upravleniiu za 1891 (St. Petersburg, 1893), p. 25.
17 TsGAOR, f. 102, op. 136, d. 27, 1. 153, 1881 g., 11. 36, 42.
18 TsGVIA, f. 801, op. 56/49, d. 26, 1905 g., 1. 14.
19 "Khronika," Pravo, 1903, no. 11,pp. 803-804.
20 Troitskii, Tsarskie sudy, pp. 101-104.
21 Ibid., p. 207.
22 Ibid.
23 Pis'ma Pobedonostseva k Aleksandru III, vol. 2 (Moscow, 1926), p. 140.
24 Samuel Kucherov, Courts, Trials and Lawyers under the Last Three Tsars (New York, 1953), pp. 93-94.
25 Troitskii, Tsarizm pod sudom, p. 60.
26 Mikhail Gubskii, "Smertnaia kazn,' "BE, vol. 30a, p. 497.
27 TsGVIA, f. 801, op. 39/45, d. 31, 1. 5; Ugolovnoe ulozhenie 22 marta 1903 g., ed. N. S. Tagantsev (St. Petersburg, 1904),pp. 181, 188, 195.
28 TsGVIA,f. 801, op. 39/45, d. 31,ll. 3-5.
29 Troitskii, Tsarizm pod sudom, pp. 66-67; Troitskii, Bezumstvo lchrabylch . . ., pp. 189-90.
30 Kucherov, p. 50; see also Svod voennykh postanovlenii 1868 gg., books 22 and 24.
31 M. V. Dukhovskii, Russkii ugolovnyi protsess (Moscow, 1910), pp. 426-428.
32 Pis'ma Pobedonostseva, p. 140.
33 "Voennye sudy," BE, vol. 6a, p. 858; "Iz obshchestvennoi khroniky," Vestnik Evropy 17, no. 6 (June 1882): 901-903. For examples of the "eloquence" of civilian lawyers see A. B. Bobrishchev-Pushkin, Sudebnye rechi, vol. 1 (St . Petersburg, 1909), passim.
34 TsGVIA, f. 801, op. 7, d. 10/28, 1909 g., 1. 100; see also A. Skobennikov, "M. V. Frunze (Arsenii) na katorge i v ssylke”, Katorga i ssylka, vol. 20 (Moscow, 1925), pp. 250-54.
35 TsGVIA,f. 970, op. 3, d. 600, ll. 149-150.
36 Zaionchkovskii, pp. 103-115: F. Kon, "Voennye sudy v Tsarstve Pol'skom," Katorga i ssylka, vol. 19 (Moscow, 1925), p. 148.
37 Tret'e dopolnenie k zhurnulam konferentsii uoenno-iuridicheskoi Akademii gody 1893-1896 (St. Petersburg, 1896), p. 53.
38 On the Staff Academy see Matitiahu Mayzel, "The Formation of the Russian General Staff, 1880-1917: A Social Study," Cahiers du monde russe et soviétique 16, no. 3-4 ( July/December, 1975) : 294-321.
39 TsGVIA, f. 348, op. 1, d. 375, ll. 18-42.
40 TsGVIA, f. 1, op. 2, d. 1140, l. 60.
41 On the course of study before the 1878 reform see TsGVIA, f. 348, op. 1, d. 202; TsGVIA, f. 348, op. 1, d. 200; for the course introduced after the reform see: TsGVIA, f. 348, op. 1, d. 236, ll. 28-29; TsGVIA, f. 348, op. 1, d. 241, 360, 332 ( 11.6.13-14), 345, 283, 260.
42 TsGVIA, f. 348, op. 1, d. 220, ll. 8, 64-71.
43 Calculated on the basis of Biblioteka Aleksandrouskoi uoenno-iuridicheskoi akademii: Sistematicheskii katalog, pts. 1-3 (St. Petersburg, 1889). I have subtracted from the total of books on Russian law: 369 copies of Russian statutes, 46 books on Roman law and 46 books on international law.
44 TsGVIA, f. 348, op. 1, d. 345,l. 24; TsGVIA, f. 348, op. 1, d. 715, 1.2.
45 On rules for moot courts see Pervoe dopolnenie k zhurnalam lconfarentsii uoenno-iuridicheskoi akademii (gody 1889-1891) ( St. Petersburg, 1891), pp. 85-88.
46 TsGVIA, f. 348, op. 1,d. 360, 11.15-16; TsGVIA, f. 348, op. 1,d. 505, 11. 1-2.
47 Pervoe dopolnenie, pp. 14445.
48 "Aleksandrovskaia voenno-iuridicheskaia akademiia," BE, vol. 1, p. 251.
49 K. Shavrov, "Predanie voennomu sudu grazhdanskikh lits dlia suzhdeniia 'po zakonam voennogo vremeni'," Pravo, 1901, no. 10, pp. 524-25; Ognev, p. 189-90. On civilian lawyers and the Rechtsstaat idea see Richard Wortman, The Development of a Russian Legal Consciousness (Chicago, 1976), pp. 279-81, 288.
50 TsGVIA, f. 348, op. 1,d. 360, 1.5; TsGVIA, f. 348, op. 1,d. 505,l. 64.
51 BE, voI. 30a, p. 500.
52 TsGVIA, f. 801, op. 39/45, d. 31,ll. 4,84-88, 111.
53 TsGVIA, f. 348, op. 1,d. 320, 1.105.
54 A. A. Polivanov, Iz dnevnikov i vospominanii po dolzhnosti voennogo ministra i ego pomoshchnika 1907-1916 gg. (Moscow, 1924),p. 100.
55 Resheniia, p. 66.
56 TsGVIA, f. 801, op. 56/79, d. 26, 1. 14 provides a typical example from Vilna Military District court in 1904.
57 Troitskii, Tsarizm, p. 70; Pis'ma Pobedonostseva… ,p. 114.
58 G. Filat'ev, "Dorevoliutsionnye voennye sudy v tsifrakh," Katorga i ssylka, vol. 7(68) (Moscow, 1930), pp. 1,551.
59 For an example see the re ort for 1898: TsGVIA, f. 1, op. 2, d. 158, 1. 18 where the author is careful to distinguish between cases undertaken as a result of "primary responsibilities" of the military-judicial administration and those "exceptional" cases which were not.
60 TsGVIA, f. 1, op. 1, d. 7087, 1. 44. I make the assumption that the crossing out was done at the time the memorandum was received based on the similarity of pencilled marginalia with the lines drawn through the word "honorable."
61 See TsGVIA, f. 348, op. 1, d. 360, 11.35-37; d. 505, 11.3-63; d. 320, passim; d. 332, passim; d. 345, 1.40; d. 587, ll. 48-49; d. 683, ll. 13-14; d. 715, 1.2.
62 There are numerous examples of Military District Courts rigidly adhering to legality in the trials of civilians during the revolution of 1905-1907. See: TsGVIA, f. 801, op. 5/65, d. 18/3, passim; TsGVIA, f. 801, op. 6/60, d. 4/9, 1908, 1. 295; TsGVIA, f. 801, op. 5/65, d. 13/3, 1.69; TsGVIA, f. 801, op. 56/79, d. 26, 1905 g., ll. 39-40; TsGVIA, f. 801, op. 6, d. 4118, 1908 g., l. 181;TsGVIA, f. 801, op. 5, d. 12/3, 1907 g.,ll. 24, 295, 468; TsGVIA, f. 801, op. 5/65, d. 579, 1906 g., ll. 213, 225, 303, 314; TsGVIA f. 801, op. 5, d. 22/35 otdel 1907, ll. 25-26,47-48, 69-71.
63 Less than one-third of the civilians sentenced to death by Military District courts from 1January 1905 to 20 April 1907 were in fact executed. In over 80 percent of the cases, the reason these sentences were not carried out was that the District Courts direct1 appealed for clemency on the behalf of the convicted. One District Court, that orgaran, never handed down a single death sentence in this period without attaching such an appeal: see TsGVIA, f. 801, op. 5/65, d. 8, 1907 g., 11. 1-110. For more information on the behavior of the District courts during the revolution see: William C. Fuller, Jr., "Civil-Military Conflict in Imperial Russia, 1881-1914," Ph.D. diss., Harvard University, 1980, pp. 267-303.
64 Materialy po peresmotru ustanovlennykh dlia okhrany gosudarstvennogo poriadka iskiuchitel'nykh zalconopolozhenii, vol. l1, Zapiska Prokurora khar'khovskoi sudebnoi palaty S. S. Khruleua ob iskliuchitel'nykh zakonopolozheniiakh (St. Petersburg, 1906),p. 8.
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William C. Fuller, « Civilians in Russian Military Courts, 1881-1904 », The Journal of Power Institutions in Post-Soviet Societies [Online], Issue 8 | 2008, Online since 14 July 2008, connection on 10 December 2017. URL : http://journals.openedition.org/pipss/1433

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