trial judges in fact found him guilty but ruled that because of his age he should merely be confined in a charitable institution. Maklakov hoped the Senate would reverse the conviction, but the defendant declined to appeal.10
Another case involved villagers who had torn down a church in a religious frenzy. Moses Teodosienko, a preacher from another sect, had turned up in town telling tales that he, like his namesake, was going to lead them out of heathen Egypt. Teodosienko left, and then Grigorii Pavlenko, one of the locals, convinced the villagers that he was about to ascend into heaven, and this was going to take place in the Orthodox Church. The villagers went to the church expecting a peaceful event—mothers brought their nursing babies. When they arrived, they found the gates locked, and a “voice from heaven” told Pavlenko that they should break the lock. They did so and entered. Pavlenko and two other people sat on the communion table, which broke apart. At the sight of this, the crowd went crazy, smashing everything of value.
The authorities initially responded to these bizarre events with great anxiety, talking of shunting the case to a military court (thus making a death penalty possible). In the end they settled for a closed trial in a civilian court, charging Moses, Pavlenko, and several other villagers. The defense, allowable under Russian law, was “delirium” or “frenzy,” which seems an apt label. To pursue it would require a special inquiry, but the presiding judge cut that short. He asked Moses if he considered himself insane, and when Moses shook his head in the negative, the judge refused to order a mental examination. All defendants were convicted and sentenced to penal servitude.
At this point the case was saved, or at least ameliorated, by Ivan Shcheglovitov, who, as Maklakov says in his memoirs, “was not yet the Shcheglovitov he later became” (an arch-reactionary in his role as minister of justice). As part of his current post, either in the Senate or the ministry of justice, he wrote a report highlighting the defects in the trial, and as a result the sentences were changed to “settlement with special medical observation.”11
Quite apart from referrals by Tolstoy, Maklakov served as defense counsel in quite a number of high-profile political cases, or, as he said, cases that raised social issues but that the authorities preferred to regard as merely personal crimes. A collection of high-profile political trials in the period from 1901 through 1905 lists six with Maklakov as counsel, dealing with political demonstrations (Sormovo, May 1, 1902, and Novgorod, May 5, 1902), printing and distribution of May Day leaflets by members of the Socialist Revolutionary Party (Voronezh), a strike with the slogan “Destroy the autocracy” (Ekaterinoslav, August 7–11, 1903), an uprising on the battleship Georgii Pobedonosets (August 16–26, 1905), and armed resistance to arrest in a May Day demonstration (1905).12
A good example of Maklakov’s approach is his defense of a group of peasants in the village of Dolbenkov, who had reacted to various injustices by going on a destructive rampage. They were indisputably guilty. Maklakov’s summation was printed in full in Russkie Vedomosti, a leading liberal Moscow paper. It outlines the ways in which the peasants had been provoked by their employer’s illegal behavior and the local authorities’ indifference. He depicts the violence of the peasants’ reaction as a function of the state’s own brutality and arbitrariness.
But if you start to blame them, representatives of state authorities, then I ask you: You want to condemn them, but what have you done to remedy their boorishness [grubost]? You have worked on many projects, you have tried to make them passive, subordinate to authority, peaceful before higher-ups. But have you, state authorities, worked to soften their morals, to instill a revulsion against boorishness? And how have you tried to achieve it? In the same way . . . you handled these events, by threatening them with birch rods, that they might all be thrashed. By having Cossack whips whistling down the streets, avoiding no one, sparing not even the children and priests. There are cruel morals among us, but from on high as well as from below. We reap from them the boorishness that we’ve sown. Punish them for having finally rebelled, for having lost patience, but know that once they lost patience, once order was violated, once the crowd broke up, it was inevitable that it would do all that in fact it did. Blame them for boorishness! A bitter joke for them. They are what you have made them, and you can as little reproach them for this boorishness as you can reproach for illiteracy those who have never been taught, or reproach infantrymen assigned as oarsmen for their inability to handle the seas.13
The trial ended in the acquittal of eighteen out of sixty-three accused. Perhaps more startling, the court itself sent a petition to higher authority asking that those condemned not be deprived of freedom or even subjected to police supervision; the petition was granted.14
Maklakov regarded the court’s behavior as quite characteristic of the Russian courts before 1903. Defense counsel could argue for favorable interpretations of the statutes, and because “the judges were still judges, the defense counsel spoke a language that was understandable even by judges of an opposite political viewpoint. . . . This common language was founded on respect for the law and right, not on subordination to will, such as that of the monarchy, the majority, the ‘prevailing party,’ or ‘revolutionary spirit.’”15 But the courts became more politicized when a new criminal code reduced the ability of officials to penalize political offenders administratively, and the authorities thus relied more on the courts. The result was more abuse of the judicial process, which Maklakov experienced in his work.16 Jonathan Daly confirms Maklakov’s perceptions. Starting in 1905 the government made a special point of appointing to provincial courts of appeal senators “capable of exercising ‘leadership’ in them.”17 We may safely take “leadership” as a proxy for readiness to advance regime goals directly and by exercising pressure on other judges.
Before turning to Maklakov’s role in the broader efforts of lawyers, notice how, in all these cases, but especially in the Setkin and Dolbenkov cases, he tries to picture himself in the skin of the defendant. So it is not surprising that after his imprisonment by the Germans for several months during World War II, he expressed regret that he hadn’t been in prison earlier: “If I’d known what solitary confinement was like, I would have framed my defense summations differently.”18
The rising liberation movement naturally affected lawyers defending political cases. Some developed the practice—Maklakov dates it to a trial in 1903—of going to trial and then walking out in protest, either against a specific ruling or simply in outrage at the accusation itself. In the first use of the new tactic, some peasant defendants had been whipped by order of the provincial governor, and the court ruled that such an administrative measure was not “punishment.” Apparently (Maklakov’s account does not make it clear) the ruling thwarted some sort of double jeopardy defense. At this point defense counsel collectively walked out of the trial, leaving the defendants to their own devices. The ministry of internal affairs threatened at least one of the lawyers with administrative exile but didn’t follow through.
Maklakov recalled going to Poltava with other lawyers, not to defend but to demonstratively refrain from offering a defense. In the railway car, N. P. Karabchevskii, a very distinguished lawyer whom Maklakov describes as a lawyer of the “old tradition,” expressed his mystification at being summoned to a project where his talent would not be needed. The assembled lawyers met on the eve of the trial. Karabchevskii and another luminary of the old school, P. G. Mironov, spoke heatedly against the new tactic. They could not understand why the “sacred work of defense, their whole raison d’être,” should be cast aside. But the innovators prevailed.
On many later occasions lawyers deployed the new approach. More administrative threats followed, and some action. A few lawyers were exiled to Archangelsk or Vologda, but this only made them heroes. Although Maklakov’s account suggests he occasionally went along with the new tactic, he was plainly not an enthusiast; a fellow advocate characterizes him as a “bridge” between the old and new styles.19
Writing later as a historian, he deplores the tactic, arguing that it sharpened the warlike atmosphere
