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World justice of imperial Russia: ideas and analogs (XVIII first half of the 19th century)



UDK 347.998

S.V. Lonskaya

WORLD JUSTICE of IMPERIAL RUSSIA:

The IDEAS AND ANALOGUES (XVIII - the FIRST HALF of the 19th CENTURY)

State legal institutions of Russia — the first half of the 19th century, similar to institute of world justice and also the idea about establishment of magistrate's court in political and legal compositions of contemporaries are considered by XVIII.

The article considers the state and law institutions analogous to the Justice of Peace in Russia in the XVIII — first half of XIX cent., as well as the ideas on magistrate court establishment in the political and legal works of that time.

In the XVIII century of the idea about establishment of magistrate's court are for the first time formulated in domestic political and legal sources. So, it found the most mass and public character in the noble orders presented to the Laid commission called by Catherine II in 1767. Noblemen suggested to found magistrates by an example of England and Holland. In an order of deputies of the dmitrovsky nobility the proposal to divide the county into four districts was made, each of which would be is at the head by the territorial judge elected annually at a noble congress. These judges, working under the leadership of the district leader of the nobility, "in the speed" would solve insignificant lawsuits verbally — punishing guilty peasants, and — "restraining landowners amicably". Besides, both the leader, and territorial judges are obliged to finish, on an order, noblemen to give to the children a good education and also to learn the diploma and serfs because "not for one plow the peasant to the state is necessary, the diploma will not prevent to plow" [1, with. 287—288]. Offers on establishment of court for analysis of small disputes expressed in orders of the Moscow, Kostroma, uglitsky, pe-reslavsky, Bohr nobility. Summing up the review of noble orders, A.D. Gradovsky wrote that "as these requirements are various, but everywhere they follow from monotonous motives — absence of close and fast court, lack of safety and burden of duties" [2, with. 106 — 107].

It is impossible to ignore also the composition of the first Russian law professor S.E. Desnitsky "Idea of establishment of the legislative, suditelny and nakazatelny power in the Russian Empire" *.

* The original spelling is hereinafter kept.

Bulletin of the Russian state university of I. Kant. 2009. Issue 9. Page 25 — 33.

This project of state and legal transformations dated 1768 is also made in connection with work of the Laid commission. In it Desnitsky suggests to found in country towns special provincial office for the solution of the "unimportant offenses" (causing damage to 25 rubles), "that were solved by landowners, one-palaces and merchants of that province" which would sit on six people four times a month. And cases have to be solved finally, without the right of the appeal to superior court. Moreover, Desnitsky suggested to charge to provincial offices "watching roads and the building decent in the city" [3, page 116 — 117]. A certain influence of the English magistrate's courts clearly is visible in Des-nitsky's ideas, and it is not surprising: he studied in University of Glasgow in Scotland. The English and Scottish legal traditions seriously influenced formation of outlook of the young scientist. But Desnitsky goes further. Having taken foreign establishment for a sample, he expands its class structure, doing it by, in fact, vsesoslovny body of local management and court.

Addressing results of provincial and judicial reforms of 1775, it is possible to draw a conclusion that the analog world institutions of classical type, but in the Russian option, especially noble, soslovno limited, then was created represented by collegiate lower territorial courts under the chairmanship of the territorial district police officer (it was called still the captain-district police officer) and two-three assessors in structure. Administrative and police officers became their main functions: protection of public order (territorial police, or deanery), reduction and performance of laws and commands of Provincial board and courts, production of inquiry upon crime (Articles 224, 231, 235, 243 Institutions for management of provinces of 1775) [4]. As the police could allow unimportant civil and criminal cases to 20 rubles (Article 72 of the Charter of deanery, or police 1782) [5], the lower territorial court had these rights too. And it besides management of roads and bridges, measures and scales, the prices and trade. The lower territorial court became basic unit of local management, the most important judicial and administrative and police body of the county. Actually in his hands there was all local management of the lowermost level (except for the district cities), despite of class accessory of subordinated faces. Complaints to actions of the lower territorial court were filed to already various class vessels working in the county.

The captain-district police officer and assessors were elected by the local nobility for three years and confirmed to the post by the governor. Thus, the lower territorial courts, we will repeat, were especially noble institutions in spite of the fact that their activity concerned all persons living in the county. There is no doubt that the lower territorial courts played in Russia the same role, as magistrate's courts in England, being the main local judicial and administrative and police bodies.

However the territorial district police officer in Russia could never receive that values what he, for example, in the next Prussia had landrat. As from -

A.D. Gradovsky mechat, the territorial court was put into such hierarchical dependence on the provincial administration at which independent departure and development of the police power would be extremely difficult [2, page 41].

Already in the 19th century, in connection with establishment in 1837 positions of stanovy police officers, a role of territorial court decreased.

Influence of classical model of world justice and S.E. Desnitsky's proposals can be observed also in the conscientious courts founded by reform of 1775: jurisdiction, the simplified order of hearing of cases, participation of class representatives indicate it. The conscientious court became the peculiar judicial authority of the province standing from others alone. Very in detail also its purposes and an essence in Articles 395 — 397 Institutions for management of provinces are eloquently expressed: "Ponezhe personal security of each loyal is very precious is to philanthropic monarchical heart, and for this purpose to give a helping hand the sufferer sometimes more on unhappy to what ninayest to an adventure, or on confluence of various circumstances burdening destiny it above measures to them deeds for the benefit is argued to found most gracious. The conscientious court in general judges as also all other courts under laws, but as the conscientious court ustanovlyatsya to be a barrier of private or personal security, and for that rule sovest-nudely vessels in all cases have to be: 1. philanthrophy in general, 2. respect for the person blizhnyago, yak to the person, 3. disgust from oppression or oppression of mankind, and for this purpose the conscientious court never yes will burden the fate of a draw, but conscientious analysis and the careful and merciful end of affairs, charged" [4] to it is entrusted to it.

Chapter XXVI of Institutions for management of provinces is devoted to conscientious courts. They considered criminal cases on the crimes committed by juvenile, crippled, feeble-minded people, cases of sorcery, complaints to illegal keeping in prison. The conscientious court released the persons who are in custody to whom within three days the charge was not brought on bails. On civil cases the competence of conscientious court was limited to those disputes which the parties to it handled, and in this case reconciliation of the parties was the main function of conscientious court. At the same time A.D. Gradovsky drew an analogy of conscientious court with arbitration, absolutely fairly doing the reservation that "it is kind of as the arbitration court", without identifying these institutes [2, page 116].

The conscientious court was collegial body. The judge of conscientious court appointed the Senate sat together with two elective class representatives: on noble affairs — from noblemen, on city — from citizens, on "raspravny" — from free peasants ("poselyan"). All assessors were elected by the corresponding estates for three years.

N.N. Efremova a prototype of conscientious court called at the time the English Court of Chancery, specifying that it was meant by Desnitsky, working on "Representation" [6, page 114]. It is thought, sources of the project of Desnitsky were more various. Nevertheless

Court of Chancery of England — the instance presented by one of the highest officials of the state, the Lord Chancellor, but not court of local value. Really, it is the court allowing affairs "on conscience and internal belief" as opposed to "common law", but its jurisdiction was more extensive, than at the Russian conscientious courts.

One more analog of magistrate's courts which we can find during this period in the cities — verbal courts. In modern literature on stories of world justice the due attention in vain was not paid to them.

Verbal courts were created in 1726 for consideration in the simplified order of small trade disputes between merchants [7; 8]. Originally these courts worked at internal customs, but with abolition of the last in 1753 — 1754 since May, 1754 turned into submission to magistrates (higher instance) [9]. In spite of the fact that verbal courts had to consider cases orally and as soon as possible, red tape was observed also in them: detainees contained in blocks for three years and more (in Moscow — 10 years and more). In August, 1766. The main magistrate approved special "Instruction" to verbal vessels [10] which for the period of the edition of "Institutions about provinces" still continued to work and to which the last actually refers in Article 277.

Verbal courts consisted of two judges, elective from merchants. The term of election was one year. During the fairs to elective members the magistrate in addition appointed on one person from own structure. Clerks of vessels were appointed by magistrates.

In 1781 Catherine II decrees of February 16 and will reorganize on April 2 the system of verbal vessels, having approved "A position of verbal vessels, in parts the cities established" [11; 12]. The big section on verbal vessels contains the Charter of deanery of 1782 (Articles 161 — 178). They turn into courts on insignificant civil cases (up to 25 rubles).

The structure of courts became more original, than earlier. Business was jointly allowed by three judges (the verbal judge and two elective), but besides when considering the case there were some more "jury conscientious witnesses" who "when will be called, are forced to demonstrate, that in business found that was seen or what was heard". Both the verbal judge, and elective, and jury witnesses were elected by annually city narrow-mindedness and merchants from the ranks by means of vote. Courts analyzed "in words" unimportant disputes and reconciled arguing.

Verbal courts were established in each part of the city. They had no higher instance. If the parties were dissatisfied with their decision, they could withdraw and appeal simply it to other court suitable for this case.

Judicial reform of Catherine II significantly updated also the procedural legislation. At the same time the simplified order of hearing of cases of verbal and conscientious courts was provided (Articles 161 — 178

Charter of deanery; Articles 395 — 403 "Institutions..."). Thus, we see not only formation of limited insignificant jurisdiction, but also special order of legal proceedings on such affairs that gives the grounds to speak about formation not of separate fragments, but rather complete classical model of world justice.

So, verbal courts considered only insignificant (to 25 rubles) civil cases. Appeal to the court could be only oral. For fixing of verbal requests and decisions in each court there was a special book ("note").

Cases were recommended to be considered no later than the very next day after adoption of the claim. The defendant was subpoenaed through the private police officer. Strictly was established that case has to be considered in one day. If on business any additional references were required, the term of consideration lasted a maximum up to three days. The judges tightening business over the specified term lost a monthly salary in favor of the order of public contempt.

To conscientious court as it was already told, civil and criminal cases were subject. If criminal cases were solved by the general rules, then civil lawsuits were considered as conciliatory production (Article 400 "Institutions."). If the parties at the first stage of consideration of the case did not wish to be reconciled, the court demanded from them to appoint for itself one-two intermediaries from locals. Then the second stage when case was considered by conscientious court together with intermediaries began. Intermediaries had to develop the settlement agreement which was offered for a statement to conscientious court. The approved agreement deprived of the party in the future to resume the dispute in any court. If intermediaries could not find a way to the agreement, the conscientious court offered them the option "how to reconcile without ruin, without lawsuit, without dispute, a quarrel or the informer of the claimant and the defendant". At disagreement of intermediaries and with this option their mission came to the end. The conscientious court caused the parties again, again offered them various conciliatory ways. In case of failure the court announced to the claimant and the defendant, "that the conscientious court prior to that their conflict does not have business any more, and would go where under laws it is necessary".

In vain her French correspondents admired Catherine's wisdom: the conscientious court had not to leave a noticeable mark in judicial practice. V.O. Klyuchevsky cites as an example recognition of the Ufa conscientious judge that in 12 years of his refereeing to it also 12 cases because his valet at requests of guilty persons from tyazhushchikhsya the parties ordinary sent all chelobitchik did not arrive. In the same way, according to contemporaries, was also in other conscientious courts: for all reign of Catherine not to count also ten cases solved in them [1, page 305]. Klyuchevsky believed that this practice was result of the fact that the case was submitted to conscientious court under the agreement both tyazhushchikhsya the parties. But if right was located to transfer business to court on conscience, then the wrong party in every way counteracted it. Really: if the parties want to be reconciled, then who prevents them to make it extrajudicially? Possibly, creation of vessels spe-

tsialno for reconciliation it is doomed to failure. It is far more effective to use the right of reconciliation by regular vessels by consideration of a dispute regularly.

In the period of Paul I's government the decree on hearing of cases on unimportant offenses in courts which, as well as verbal, were established in parts the cities [13] is issued on July 18, 1797. On structure they differed from verbal: the private police officer, the member of magistrate and the officer of that quarter, where offense was found. The offenses disturbing the public peace which did not attract public corporal punishment belonged to unimportant, and were fined.

In "A note about the structure of legal and government agencies in Russia" (1803) and "Introduction to the Code of the state laws" (1809) of the outstanding statesman M. M. Speranskogo [14] the institutions similar to magistrate's court are offered.

Speransky determined by subordinate judicial authority volost court. The being of volost court, according to Speransky, consists more in peaceful trial of civil cases through intermediaries and in collecting for unimportant police offenses of the penalty fee marked in the law and punishments, than in formal and their written production. The volost court in the project consists of the chief volost judge, his companion (deputy) and volost judges. However by the law some affairs, especially criminal which the chief volost judge cannot consider differently as having invited in court of two deputies from volost council who in this case are, according to Speransky, jurors have to be defined, and the judge will be their chairman (directeur de jury). Deputies, both or at least one, are elected from that estate to which the defendant belongs; if there are no those, then the defendant is sent in district court.

Other government constitutional project, "The state authorized diploma of the Russian Empire" of N.N. Novosiltsev (1818 — 1819) [15], contains in Article 188 transfer of Courts of Appeal, courts of first instance on criminal and civil cases (district courts and policemen magistrates) and continues a row by transfer of commercial, conscientious and magistrate's courts, carrying them, as it appears from a context, to the inferior courts. In article it is said that all listed courts, as well as other courts in which there will be a need will be arranged with special resolutions. In more detail "The authorized diploma" tells nothing about world justice, however differentiation of conscientious and magistrate's courts is represented to us remarkable as demonstrates various sense which, obviously, invested authors of the project in the maintenance of these institutions.

From non-governmental constitutional projects it is worth mentioning the curious project of the judicial system offered in "Constitution" of the Decembrist N.M. Muravyev [15]. As the inferior courts the sole conscientious judges elected by citizens in each county to four thousand male souls were provided in it. Once in three months (or four times a year, as well as at the English magistrates) in the district city or the major places would have to -

whether to be held congresses of conscientious judges which played a role of the court of appeal. Here, as we see, most likely, the English quarter sessions and the French elective magistrates are imitated (not a secret that state: the system of republican France was perceived at that time in Russia by progressively conceiving people as a certain ideal, and the participant of foreign campaigns Muravyev had an opportunity to get acquainted with it in details). Calling judges "conscientious", Muravyev, it appears, emphasized not so much their origin from conscientious court of an Ekaterina's era how many compliance to their concepts "justice", "tranquility", "world". At least, so sees from a context.

The Russian historian G.A. Gian-shiyev carried the first mention of "peace judges" to 1826 [16, page 450]. The offer on their establishment contained in the note of the chairman of the State Council V.P. Kochubey given to the emperor Nicholas I in connection with the projects of reform of the existing political system discussed in the corridors of power including in the field of judicial (so-called "Committee on December 6, 1826"). The note contained offers from which followed that such courts have to consider receivership proceeding, being guided by conscience and sensible mind, but not exclusively legal proceedings forms. Solutions of these vessels, however, have to be obligatory [17, page 66 — 67]. M.M. Speransky supported expansion of a field of activity of conscientious court in the next treatise "The Project of Establishment for Management of Provinces", and "The committee on December 6, 1826" supported him [18, page 180 — 182]. It is known that projects were not implemented. However emergence of the ideas and offers on introduction of magistrates as local bodies of limited jurisdiction should be referred not to 1826 as Dzhanshiyev believed, and at least as we made sure, for 60 years earlier.

Thus, throughout XVIII — the first half of the 19th century in Russia not only the idea, but also practice of world justice was formed. This movement paved the way for emergence of complete institute of world justice in the 1860th. It is represented that already at this time two main approaches to the concept of world justice on the Russian soil were formed. On the one hand, a view of the magistrate as on the judge of conscience and the conciliator (we will call this approach patriarchal), with another — a view of the magistrate as on the judge of limited jurisdiction using the simplified legal proceedings order (we will call this approach pragmatical). At the same time, as it is thought, neither in the theory, nor in practice of overweight of any given approach did not exist: the concept of world justice was in equilibrium state, and only the future could incline a scale in any given party.

List of references

1. V.O. Klyuchevsky. Russian history: a full course of lectures in 3 books by the Prince 3. M, 1995.
2. A.D. Gradovsky. Beginnings of the Russian state law. Part 3: Local authorities//A.D. Gradovsky. Compositions: in 9 t. T. 9. SPb., 1904.
3. S.E. Desnitsky. Idea of establishment of legislative, judge-telnoy also the nakazatelny power in the Russian Empire//Legal works by progressive Russian thinkers. The second half of the 18th century / under the editorship of S.A. Pokrovsky. M, 1959.
4. Institutions for management of provinces of the All-Russian empire of 7.11.1775//Complete collection of laws of the Russian Empire. Meeting 1. T. 20. No. 14392.
5. The charter of deanery, or the police officer of 8.04.1782//Complete collection of laws of the Russian Empire. Meeting 1. T. 21. No. 15379.
6. N.N. Efremova. Judicial system of Russia in XVIII — the first half of the 19th century (historical and legal research). M, 1993.
7. Decree of the Senate of 1.02.1726. "About trial of merchants between on all affairs which are subject to merchants, still merchant usage, Customs court"//Complete collection of laws of the Russian Empire. Meeting 1. T. 7. No. 4828.
8. Personalized decree of 5.10.1727. "About collection of duties from claim affairs on the Code, about trial of merchants between in all affairs by still customs court..."//Complete collection of laws of the Russian Empire. Meeting 1. T. 7. No. 5177.
9. Decree of the Senate of 5.05.1754. "About life to Verbal court between merchants in Moscow and in the other cities under department of Magistrates and Town halls."//Complete collection of laws of the Russian Empire. Meeting 1. T. 14. No. 10222.
10. The decree of the Main magistrate of 10.08.1766 with the application of the instruction to Verbal vessels / / Complete collection of laws of the Russian Empire. Meeting 1. T. 17. No. 12721.
11. Personalized decree of 16.02.1781 ". About establishment in each part of the city of Verbal vessels" / / Complete collection of laws of the Russian Empire. Meeting 1. T. 21. No. 15121.
12. Personalized decree of 2.04.1781. "About a position of Verbal vessels."//Complete collection of laws of the Russian Empire. Meeting 1. T. 21. No. 15146.
13. Personalized decree of 18.07.1797. "About hearing of cases about offenses unimportant in courts, in parts the cities founded"//Complete collection of laws of the Russian Empire. Meeting 1. T. 24. No. 18053.
14. M.M. Speransky. Projects and notes. M.; L., 1961.
15. Constitutionalism: historical way of Russia to the liberal democracy: collection of documents. M, 2000.
16. G.A. Dzhanshiyev. From an era of great reforms. 4 prod. M, 1893.
17. B.V. Vilensky. Preparation of judicial reform on November 20, 1864 in Russia. Saratov, 1963.
18. L.E. Shepelev the office of the power in Russia. Alexander I and Nicholas I's era. SPb., 2007.

About the author

S.V. Lonskaya — an edging. yur. sciences, dots., RGU of I. Kant; e-mail: swlon@albertina.ru

Author

Dr. S. Lonskaya — Associate Professor, IKSUR; e-mail: swlon@alber-tina.ru

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