Viewed as a whole, and from a little distance, this grand judicial edifice seems perfectly symmetrical, but a closer and more minute inspection brings to light unmistakable indications of a change of plan during the process of construction. Though the work lasted only about half-a-dozen years, the style of the upper differs from the style of the lower parts, precisely as in those Gothic cathedrals which grew up slowly during the course of centuries. And there is nothing here that need surprise us, for a considerable change took place in the opinions of the official world during that short period. The reform was conceived at a time of uncritical enthusiasm for advanced liberal ideas, of boundless faith in the dictates of science, of unquestioning reliance on public spirit, public control, and public honesty—a time in which it was believed that the public would spontaneously do everything necessary for the common weal, if it were only freed from the administrative swaddling-clothes in which it had been hitherto bound. Still smarting from the severe regime of Nicholas, men thought more about protecting the rights of the individual than about preserving public order, and under the influence of the socialistic ideas in vogue malefactors were regarded as the unfortunate, involuntary victims of social inequality and injustice.
Towards the end of the period in question all this had begun to change. Many were beginning to perceive that liberty might easily turn to license, that the spontaneous public energy was largely expended in empty words, and that a certain amount of hierarchical discipline was necessary in order to keep the public administration in motion. It was found, therefore, in 1864, that it was impossible to carry out to their ultimate consequences the general principles laid down and published in 1862. Even in those parts of the legislation which were actually put in force, it was found necessary to make modifications in an indirect, covert way. Of these, one may be cited by way of illustration. In 1860 criminal inquiries were taken out of the hands of the police and transferred to Juges d'instruction (Sudebniye Sledovateli), who were almost entirely independent of the Public Prosecutor, and could not be removed unless condemned for some legal transgression by a Regular Tribunal. This reform created at first much rejoicing and great expectations, because it raised a barrier against the tyranny of the police and against the arbitrary power of the higher officials. But very soon the defects of the system became apparent. Many Juges d'instruction, feeling themselves independent, and knowing that they would not be prosecuted except for some flagrantly illegal act, gave way to indolence, and spent their time in inactivity.* In such cases it was always difficult, and sometimes impossible, to procure a condemnation—for indolence must assume gigantic proportions in order to become a crime—and the minister had to adopt the practice of appointing, without Imperial confirmation, temporary Juges d'instruction whom he could remove at pleasure.
* A flagrant case of this kind came under my own
observation.
It is unnecessary, however, to enter into these theoretical defects. The important question for the general public is: How do the institutions work in the local conditions in which they are placed?
This is a question which has an interest not only for Russians, but for all students of social science, for it tends to throw light on the difficult subject as to how far institutions may be successfully transplanted to a foreign soil. Many thinkers hold, and not without reason, that no institution can work well unless it is the natural product of previous historical development. Now we have here an opportunity of testing this theory by experience; we have even what Bacon terms an experimentum crucis. This new judicial system is an artificial creation constructed in accordance with principles laid down by foreign jurists. All that the elaborators of the project said about developing old institutions was mere talk. In reality they made a tabula rasa of the existing organisation. If the introduction of public oral procedure and trial by jury was a return to ancient customs, it was a return to what had been long since forgotten by all except antiquarian specialists, and no serious attempt was made to develop what actually existed. One form, indeed, of oral procedure had been preserved in the Code, but it had fallen completely into disuse, and seems to have been overlooked by the elaborators of the new system.*
* I refer to the so-called Sud po forme established by an
ukaz of Peter the Great, in 1723. I was much astonished
when I accidentally stumbled upon it in the Code.
