IN ELECTIONS to the First Duma the Kadets captured a strong plurality—185 out of 478 seats. Three parties to the right won a total of 70 seats (the extreme right—zero). The remaining 223 seats went to leftists, many elected as “non-party,” including a substantial group of peasants and intellectuals who later assumed the label Trudovik (from trud, for work). (The leftist victory would likely have been greater if the Social Democrats and the Socialist Revolutionaries had not boycotted the vote; of course they would have taken votes from “non-party” leftists.) The Kadets were exuberant, or, as Maklakov said later, borrowing a phrase of Stalin’s, “dizzy with success.” Said Alexander Kizevetter, who a year later would join Maklakov as a member of the Second Duma, “[If] the Duma is dissolved, that will be the government’s last act, after which it will cease to exist.”1 This proved to be pure hubris.
On issues of substantive reform, there were major gaps between the Kadets and the regime. But the gaps did not add up to the sort of chasm that the brief story of the First Duma makes them appear. The regime—belatedly—announced policy goals of reforming peasant rights with a view to ending peasant isolation, equalizing their rights with those of other estates, and removing restrictions on their rights in the lands allotted to them in the emancipation.2 (Thwarted in the First Duma, the government in fact adopted many of these reforms under Article 87 in the “inter-Duma” period between the First and Second Dumas.)
In the election campaign Maklakov had not been a candidate, but he had been in charge of a “school” for Kadet orators and had spent a lot of time out on the hustings. He read the voters as seeing in the Kadets an embodiment of Kizevetter’s slogan “political freedom and social justice”—which Maklakov understood as an ability to improve life without revolution. He didn’t see their support for the Kadets as based on love for, or even interest in, the structural changes championed by the Kadets: four-tailed suffrage (universal, direct, equal, and secret), deletion of the State Council’s power to withhold consent from legislation, and Duma power to remove the cabinet. Paul Miliukov regularly called these issues the “three locks,” which he saw as obstructions to a true constitutionalism. As for the general mood, Maklakov perceived the ordinary citizen as strongly disfavoring revolution, mainly because the citizen rightly sensed that he would be the victim of its violence.3 This, of course, was the antithesis of the assumptions about popular feeling that seemed to underlie Kizevetter’s idea that a Duma dissolution would trigger the regime’s collapse.
What went wrong? Both sides plainly suffered from lack of experience: the government from never having had to deal with an elected legislative body, the Kadets from never having had to operate in a legislative body, much less to dominate one. Neither side had ever seen a Russian legislature at work. The educated on both sides were of course familiar with the French Revolution and the roles of the estates general and national assembly, but that vicarious experience didn’t provide much of a model for revolutionary ferment with a happy ending.
Also important (again on both sides) was a “moralization gap,” the ubiquitous human tendency to view the rights and wrongs of any clash in a way favorable to one’s own side.4 These two factors, inexperience and the moralization gap, surely helped generate, on each side, rhetorical sloppiness and a tendency to turn manageable disputes into hopeless gaps.
The first major misstep was the government’s. At the outset, it appeared before the First Duma with trivial and absurd facsimiles of legislative projects, implying that it found the Duma itself a triviality. This failing was a side effect of the tsar’s abrupt decisions to dismiss Witte on the eve of the First Duma and to have no holdovers in the new cabinet. Witte had in fact prepared a slew of proposals,5 but Goremykin, the new prime minister, had so little sense of the moment that he failed either to seek them out, or to create substitutes, or to explain the deficiency. Witte had seen the prospect of reform work in the Duma as a sign of health. He had argued at the Council of Ministers’ meeting of March 5 that “it is essential to immediately direct the activity of the State Duma to definite and broad but sober and businesslike work and thus make sure its work is productive.”6 And according to the memoirs of Count Kokovtsov, who had just concluded the successful negotiations for the French loan and had a long conversation with the tsar on the eve of becoming minister of finance, Nicholas II had obliquely echoed Witte’s thought, saying (as paraphrased by Kokovtsov) that “the Duma, occupied with the responsibility of legislative work, might prove less revolutionary than I [Kokovtsov] feared,” and that zemstvo circles “would not wish to take the lead in a new struggle between the government and the representatives of the people.”7
Not to be outdone by the government’s blunder, the Duma focused not on policy initiatives but on pursuit of constitutional change. The changes it proposed, stated in a formal address to the tsar, were not only improbable as a matter of politics (the bureaucracy had only barely extracted the tsar’s consent to go as far as he did) but also were framed in terms that violated the Fundamental Laws’ ban on Duma initiative for such changes (Article 107). The proposed changes were all the regular Kadet staples—extinction of the State Council’s vote as a necessity for legislation, the four-tailed franchise, and ministerial responsibility to the Duma.8
The oddity is that the Kadets and their Trudovik allies passed up the opportunity to frame these changes in non-constitutional terms. The toughest needle to thread was the status of the State Council, which was fixed in the Fundamental Laws (see, e.g., Article 86, making the Council’s approval necessary for the adoption of a new law). But, as the Kadets said in their address to the tsar, what concerned them about the Council was the way its members were chosen—half by the tsar, half by a franchise even narrower than that for the Duma. For changing both composition and franchise, the Fundamental Laws were no problem. Their only rule on those subjects was that the number of appointed members could not exceed the number of elected ones (Article 100). In other words, the Duma could change anything about the State Council’s composition so long as it didn’t reduce the relative weight of the representative interest, which of course was the last thing it wanted to do. As for suffrage, it was not defined in the Fundamental Laws but in the electoral laws of December 11, 1905; again Article 107 was no obstacle. Thus the Duma could readily vote for four-tailed suffrage and complete democratization of the State Council. Of course these changes, despite the legitimacy of Duma initiation, would have to secure approval of the State Council and tsar, clearly an impossibility. But a vote could have put the Duma on record, and perhaps over time developed support for its ideas, without an in-your-face defiance of the Fundamental Laws—defiance that came back to haunt the Duma (at least rhetorically) when the government invoked it to justify its decision to dissolve the Duma.
As for a requirement that the government be responsible to the Duma, nothing in the Fundamental Laws barred such a relationship. Maklakov argued that the practice would have been automatically “introduced to the degree that the Duma’s prestige grew in the eyes of both the country and the tsar”; with a highly prestigious Duma in place, the tsar would find it politically impossible to appoint or retain a government that the Duma rejected.9 All told, despite Kadet laments that the Fundamental Laws’ formal limit on the Duma’s ability to initiate an amendment was an outrageous violation of the rights of the people,10 it was in fact a minor barrier to their ideas for transforming the government’s structure.
Besides their gratuitous attempted breach of the Fundamental Laws, the Kadets formulated at least some of their constitutional goals—notably elimination of the State Council as an obstacle to legislation—as predicates to “fruitful activity in the Duma.”11 It must have been obvious that, for the time being at least, the Fundamental Laws went as far as the tsar was willing to go. To tell him that complete transformation of what he had just wrought was a prerequisite to substantive action was to demand surrender—yet again—from a figure who clearly felt no need to surrender. And at least on Maklakov’s reading, the Kadets’ electoral victory reflected no great popular zest for the sort of constitutional issues that obsessed the Kadet leadership.
The Kadets matched their zeal on constitutionalism with a skewed vision of its content. They appeared to believe that the Duma, or at any rate its majority, represented “the people’s will,” with a corollary that its sole word was law, no matter what the costs in eliminating communication between government and Duma and in disregarding the constitutional provisions essential to the Duma’s own existence. Thus when the War Minister, V. P. Pavlov, tried to voice the government’s position on the death penalty, Kadets and other deputies hounded him out. One deputy, an “almost completely white old man [of the Kadet party] . . . banged his desk violently, jumped up, shook his fist and shouted: ‘Get out, murderer, executioner, out.’”12 When another deputy, Count P. A. Heiden, rose to insist on the value of some minimal decorum (suggesting that the scheme of government required “the deepest respect for the law and even for the person of one’s foe”), a leading Kadet, Maxim Vinaver, rose to say, “All persons who openly defy the wishes expressed by the State Duma should not appear here on the instructions of ministers.”13
The Kadets also insisted on identifying constitutionalism with purely parliamentary government. Thus V. D. Nabokov (a distinguished lawyer, son of a former minister of justice, and father of the famous Russian-American author), after encountering government resistance to Duma proposals, declared, “From the point of view of the principle of popular representation, we can say only one thing: ‘the executive authority must submit to the legislative authority.’” While it’s true that under a rule-of-law regime the executive can generally act only in accordance with legislatively approved law, the rule of law obviously does not require that the executive bend to legislative preferences that have not yet wended their way into law, as Nabokov assumed. Maklakov points out that Nabokov’s statement pretended that the Duma was the sole legislative authority, while in fact, under the Fundamental Laws, the tsar (plus the State Council) shared that power,14 as in many non-parliamentary constitutional regimes.
Even a very sophisticated lawyer such as Sergei Muromtsev could be blinded by a tendency to think of abstractions as categories whose nature compelled specific outcomes rather than merely as useful tools for organizing thought. On taking office as speaker of the Duma, he said: “Let our work proceed on the basis of the respect befitting a constitutional monarch [roar of applause] and complete realization of the rights of the State Duma flowing from the very nature of popular representation.”15 But the nature of popular representation does not in itself give any “rights” to a legislature. The rights flow from political settlements, forged in conflict between contending forces. Some such settlements may lay better claim than others to the label “popular representation,” but it is the settlement that defines the legislature’s rights, not the Platonic concept.
Whatever the Kadets’ zeal for immediate constitutional reform, they could not in the end cleave to the notion that it must be a predicate to substantive legislation. In fact, the Duma did pass one piece of legislation—abolition of the death penalty. But here again rhetorical sloppiness sabotaged legislative accomplishment. The death penalty applied to civilians in Russia primarily because the extraordinary security laws (in the regions where they were in effect) gave provincial governors and the ministry of internal affairs authority to transfer cases to military tribunals, which, unlike civilian ones, had the power to impose capital punishment.16 The Fundamental Laws were no obstacle to changes in this relationship: Article 15 said the tsar had authority to decree where the extraordinary security laws applied, but left authority to amend the extraordinary security laws themselves to the usual legislative processes. So the Duma could have attempted a neat surgical cut, excising the government’s power to shift cases into the military courts. Instead it enacted language that seemed to ban the death penalty in all circumstances.17 Of course the breadth of the Duma’s bill ensured that it would not receive State Council endorsement. The State Council in fact referred the bill to a committee, which produced a bill that left intact the power of governors to transfer cases to the military courts. This denouement suggests that Maklakov was likely wrong to have suggested that the government would have agreed to a major cut in transfers from civil authorities to the military courts, although perhaps a more realistic bill from the Duma would have received more benign treatment from the government. In any event, his basic criticism stands: the Duma’s bill—adopted unanimously and to loud applause—guaranteed continuation of what it sought to end.18
Even though they performed some substantive work, the Duma majority seemed little interested in such accomplishments. For example, in evaluating issues for possible legislative activity, some Kadets counted the prospect of government agreement and cooperation as a ground not to raise the issue. When a deputy suggested that the Duma’s address in response to the tsar’s include a proposal for expanded public education, a Kadet objected “that this subject would be accepted with delight by the government, which would add similar, politically inoffensive objectives for harmonious work with the popular representatives.”19
Of course the Duma majority and the regime were hardly in agreement on policy issues such as the so-called agrarian question. But true to form, apart from substantive disagreement, both sides framed their positions in a style that managed to be both inflammatory and muddled. Very broadly speaking, the Duma majority favored the redistribution of land (taking from the gentry, giving to the peasants), whereas the government favored enhancing peasant ownership, so that an enterprising peasant could forge ahead without the approval of the “society” or “commune” to which he belonged, and with entitlement to the full benefit of his enterprise. Within the left, the Kadet party favored redistribution with compensation, though it objected to compensation at market value and left utterly mysterious what principle should govern compensation. Yet in the address to the tsar, the Duma spoke of “obligatory confiscation of private lands,” not mentioning compensation at all. It thus seemed to adopt the view held by parties to the Kadets’ left.20
The government responded on May 13—the very speech in which it sketched out the reform program mentioned at the beginning of this chapter. But the government also overstated its position, saying that a solution to the agrarian question “on the basis of the Duma’s proposals is absolutely inadmissible.”21 Nothing in the Fundamental Laws, however, seemed to bar the Duma’s ideas, so it is hard to see just what made them “inadmissible.” (If a court treated the October Manifesto as being of constitutional weight, it might have found its reference to “the unshakable foundations of civic freedom” to be a basis for invalidating uncompensated takings of land. But no one—least of all the government—was thinking of a court exercising that sort of freewheeling power.) The government could have contented itself with saying that it would oppose these ideas and, if they passed, with urging the State Council to reject them. Instead, it chose an inapt word that pointlessly infuriated the Duma members.
As the Duma’s committee on agrarian matters hadn’t reached agreement on any bill, and seemed not to be on the verge of any agreement, the Kadets had the idea of responding to the government’s statement with an appeal to the people on the subject. But the absence of any Duma consensus meant that the appeal itself would lack any clear policy content. It stuck to vague phrases about compulsory confiscation and ended by saying that the Duma would not retreat from this position, “that any proposals not in agreement with it would be rejected.” Again the language was pointlessly provocative. Many of the government’s ideas were not mutually exclusive with the Duma’s; if the Duma meant that only carbon copies of its ideas were acceptable (a quite plausible reading), then it was vetoing in advance any deal that would satisfy some of each side’s priorities.22
Not to be outdone, the government gratuitously provoked the Duma with its reaction to a rightist campaign of telegrams to the tsar. The telegrams made a number of fantastic claims—for example, accusations that the Duma was plotting to seize the government and was working for dismemberment of the empire. Many attacked ethnic minorities, especially Jews, and some called for the Duma’s abolition. Instead of either remaining silent or disassociating itself from the campaign, the government published the telegrams in the Government Gazette (Pravitelstvennyi Vestnik), thus seeming to express the tsar’s solidarity with a party position—a solidarity plainly at odds with the position of a constitutional monarch. This led to a formal questioning of Goremykin by the Duma (an “interpellation”) and a frosty but pointless exchange.23
One last substantive issue deserves mention: amnesty. The very first speech delivered in the Duma was a dramatic call for amnesty by a Kadet, I. I. Petrunkevich. The address to the tsar, while perhaps in form respecting the Fundamental Laws’ allocation of the power of amnesty to the tsar (Article 23), nonetheless identified amnesty, for all crimes committed out of religious or political conviction, as a “demand of the popular conscience.” The “demand,” issued in a period when assassinations of government employees were averaging three hundred per month, and coupled with staunch Kadet refusal to condemn terror, seems highly provocative. A reader of a right-wing newspaper sent a letter to the editor that was nominally addressed to a Kadet Duma member, F. I. Rodichev: “Dear Mr. Rodichev, I am going to kill you for political reasons; please will you ask an amnesty for me in advance?” Maklakov in his history of the First Duma argued that an amnesty would make sense as a gesture of reconciliation celebrating the end of hostilities—a happy moment that plainly had not arrived. The Duma’s position seemed to align it with the revolutionaries.24
On the night of July 8–9, 1906, little more than two months after it had assembled, the tsar dissolved the Duma under Article 105 of the Fundamental Laws. The tsar also issued a manifesto offering three reasons for the dissolution: (1) the Duma’s supposed violation of Article 107, which denied it power to initiate changes in the Fundamental Laws; (2) the Duma’s sending a mission to investigate the Bialystok pogrom, a pogrom the government had probably instigated and had undoubtedly failed to promptly quell; and (3) the Duma’s appeal on agrarian policy. (The phrasing was somewhat more veiled, but these were clearly the sins the government had in mind.)25 As legal matters, all three seem very weak. As we’ve seen, Article 107 didn’t stand in the way of the substance of the structural changes that the Duma majority would have liked to make. While the Fundamental Laws didn’t give the Duma the power to send investigative teams, neither did they withhold such a power. And the appeal on agrarian matters also violated no law.
What seems most surprising is that the government bothered with the explanatory manifesto at all. Article 105 didn’t require an explanation, and the nature of the action suggests that the power was entirely discretionary. (Article 105 said the decree must provide for new elections and name the date when the next Duma would convene, but the inclusion of those details only supports the natural reading that the laws left the decision to dissolve entirely to the tsar, subject obviously to political constraints.)
The actual reasoning of the cabinet curiously did include the inquiry mission to Bialystok. But it also rested on the ultimate conclusion made by most of the ministers—and this seems to have been far more important—that the only alternative to dissolution was to name either a Kadet ministry or a government of public activists. “In either case, the result would be the same: the new government would be unable to stem the revolutionary tide.”26 These conclusions presumably came from the whole tenor of Kadet behavior in the Duma: failing to act as a serious negotiating partner for substantive reform, regarding emissaries of the government as ipso facto illegitimate and unworthy of being heard, treating the Fundamental Laws as illegitimate simply because they didn’t establish a parliamentary regime, endorsing amnesty but refusing to condemn revolutionary terror, and doing little to staunch the flow of revolutionary rhetoric from Duma members on the Kadets’ left.
Analyzing the matter in retrospect, Maklakov perceived himself and Miliukov as each seeing dichotomies—but fundamentally different ones. Miliukov tended to see Russia’s great division as lying between autocracy and the constitution for which he longed, whereas Maklakov saw it as between the constitution, already achieved, and continuing revolution.27 On the first premise, the Kadets must line up with the revolutionaries (or at least refrain from efforts to curb them); on the second, obviously not. Maklakov saw the first premise as a residue of the pre–October Manifesto alliance between the “liberation movement” and the revolutionaries, an alliance that made sense to Maklakov only until the October Manifesto and the revised Fundamental Laws opened the door to reform through peaceful political action.28
Maklakov argued that the Kadets’ stance had two unfortunate consequences: first, a direct sharpening of the social and political divide; and second, the loss of a vital opportunity for political experience. He invokes Stolypin’s observation, “In politics there is no revenge, but there are consequences.”29 As he viewed them, the obvious consequences were a shift to the right by the tsar and the forces around him, and by the Octobrist party, with a concomitant emboldening of the extreme right.30 These consequences seem altogether natural. An insistence on the tsar’s capitulation by a group that the regime had hoped were nonrevolutionary moderates plainly tended—from the tsar’s point of view—to undermine the advantages of constitutionalism and cooperation. It strengthened a key argument of those who disliked constitutionalism and the rule of law, namely, that regime concessions along these lines would encourage revolution, not abate the risk.
The other general consequence was, in a sense, simply the converse of the first. Russia had no prior experience with the combination of the old regime and a popularly elected legislature. If that combination was to lead peacefully to a constitutional regime embodying the rule of law, it obviously required a degree of cooperation. Although I don’t believe Maklakov ever quotes Aristotle, he clearly shared his view as to how humans acquire capacities for particular conduct: “Men acquire a particular quality by constantly acting a particular way . . . you become just by performing just actions, temperate by performing temperate actions, brave by performing brave actions.” In their conduct in the First Duma, the Kadets, not for the first time nor for the last, passed up a chance to learn constitutional behavior.
In evaluating the Kadet and regime strategies, one is tempted to assign them ratings for their willingness to cooperate. Let us assume that the regime deserves to be rated lower than the Kadets. That lower rating doesn’t mean that a different Kadet strategy might not have altered the outcome. If we hypothesize a replay of the game with a different Kadet approach, we can’t casually assume that the government would not have altered its behavior.31
Though the dissolution violated no legal rule, it enraged the Kadets and their allies to the left. Members of those groups (most but not all of them Duma members) repaired to the town of Vyborg, which, because it was located in the Finnish part of the Russian empire, offered a legal regime more favorable to protest. There they adopted what became known as the Vyborg Manifesto. There were two competing drafts, a Trudovik version seeming to call for revolution by the army and navy, and a Kadet version calling for civil disobedience in the form of refusal to pay taxes or appear for compulsory military service. They chose the milder one; it could thus be said later that the Kadets had held their leftist friends back from repeating the error of the October-December uprising in 1905. The Manifesto brought forth virtually no response from the people summoned to resistance: Kizevetter later observed that critics called it a case of “shooting a blank.”32
But the manifesto was not such a blank from the legal perspective. The signers were promptly charged with distributing offensive material, and thus were subject to a possible ban on seeking election to the Duma. A charge of merely writing the manifesto would have been far more accurate but would not have had this effect. When the case came to trial (only in December 1907, after the end of the Second Duma), the evidence linking the defendants to the distribution appears to have been too weak for a finding of guilt under Russian principles of aiding and abetting.33
In the central committee meeting just after the dismissal of the Duma, Maklakov had spoken very sharply against issuing the Vyborg proclamation. For that reason he didn’t want to participate in the defense at the trial. But he did so, at the defendants’ request; of the three defense lawyers, he gave his summation last. (Sixteen of the defendants also exercised their right to speak on their own behalf, emphasizing their political justifications.)
He reviewed the legal frailty of the prosecution’s case, and the obvious reason why the government had chosen a crime for which the evidence was inadequate but the political consequences desirable (for the government). “Thus the criminal court becomes a weapon of political struggle, and its goal is to drive the opponents from the political arena.” He then launched into a celebration of the rule of law, what he called his “confession of faith”:
I’m not speaking as a political comrade in arms of the accused . . . , nor as a lawyer who must painfully watch indifferently as the law is tortured before his eyes. I’m speaking as a person who has the weakness to think that the court is the highest organ of state power, as the law is the soul of the state system. A country suffers harm not so much from erroneous or imperfect laws, as from lawlessness going unpunished. However good the published laws may be, however good the legislative machinery, if there is no one to protect the laws, then no good will come of them for Russia. The preservation of the law from any violation, whether from above or below, is the task of the court. People may be dissatisfied with the courts, they may drag them into the struggle of political parties, they may threaten their tenure, but so long as the courts—independent even though much changed—stand guard over the law, so long will the state live.
Maklakov went on to express dismay at seeing the procurator (the Russian equivalent of a prosecutor, but also playing a role similar to an ombudsman’s), “the guardian of the law,” “publicly seek[ing] to violate it, [and] for the sake of political ends asking that a statute be applied that cannot be [properly] applied. . . .” Then he wound up:
It is not of the fate of these people [the defendants], however close or dear they may be to me, that I’m thinking of now. For them your verdict cannot do a great deal [they had already been excluded from the Second Duma], but from it [the verdict] I await an answer to the tormenting question, with which many Russian people are watching this trial, “are defenders of our law to be found?”34
Another distinguished lawyer of the time wrote of the speech and Maklakov:
Maklakov made a special impression with his speech. It was purely juridical, and in that lay the special quality of this orator of talent, who burned as no one else with passion for the law. Psychological experience, scenes of everyday life—all that touched Maklakov little, slid by his temperament, and in such matters he barely rose above the level of a good orator. But it took only some kind of violation of rights to strike his sensitive ears for Maklakov to be transformed. His speech then reached surging heights of power, he captivated and mastered his listeners.
I’ve had to appear in defense with the best orators of Russia, but if I were asked what speech made the strongest impression on me, I would answer without hesitation: the speech of Maklakov in the Vyborg trial.
When he finished speaking, the whole room was stockstill, then in a minute burst forth in thunderous applause.35
The court acquitted only two of the 169 defendants and sentenced the remainder to three months in prison and a ban on electoral candidacy. Russia’s highest judicial body, the Criminal Cassation Department of the Senate, affirmed the conviction, over the dissent of three out of nineteen senators.36
Even before the trial, the existence of the charge itself had excluded most of the Kadet members of the Duma from eligibility for election. As Maklakov wrote later: “This affected my personal fate. When there were elections for the Second Duma, the majority of the well-known Kadets were ineligible, and in Moscow the party presented other candidates, of the second order, known to it from the electoral campaign for the First Duma. They were Kizevetter, Teslenko and I.”37