The legislation regards, of course, this practice as an abuse, and has tried to prevent it by concealing as far as possible from the jury the punishment that awaits the accused if he be condemned. For this purpose it forbids the counsel for the prisoner to inform the jury what punishment is prescribed by the Code for the crime in question. This ingenious device not only fails in its object, but has sometimes a directly opposite effect. Not knowing what the punishment will be, and fearing that it may be out of all proportion to the crime, the jury sometimes acquit a criminal whom they would condemn if they knew what punishment would be inflicted. And when a jury is, as it were, entrapped, and finds that the punishment is more severe than it supposed, it can take its revenge in the succeeding cases. I know at least of one instance of this kind. A jury convicted a prisoner of an offence which it regarded as very trivial, but which in reality entailed, according to the Code, seven years of penal servitude! So surprised and frightened were the jurymen by this unexpected consequence of their verdict, that they obstinately acquitted, in the face of the most convincing evidence, all the other prisoners brought before them.
The most famous case of acquital when there was no conceivable doubt as to the guilt of the accused was that of Vera Zasulitch, who shot General Trepof, Prefect of St. Petersburg; but the circumstances were so peculiar that they will hardly support any general conclusion. I happened to be present, and watched the proceedings closely. Vera Zasulitch, a young woman who had for some time taken part in the revolutionary movement, heard that a young revolutionist called Bogoliubof, imprisoned in St. Petersburg, had been flogged by orders of General Trepof,* and though she did not know the victim personally she determined to avenge the indignity to which he had been subjected. With this intention she appeared at the Prefecture, ostensibly for the purpose of presenting a petition, and when she found herself in the presence of the Prefect she fired a revolver at him, wounding him seriously, but not mortally. At the trial the main facts were not disputed, and yet the jury brought in a verdict of not guilty. This unexpected result was due, I believe, partly to a desire to make a little political demonstration, and partly to a strong suspicion that the prison authorities, in carrying out the Prefect's orders, had acted in summary fashion without observing the tedious formalities prescribed by the law. Certainly one of the prison officials, when under cross-examination, made on me, and on the public generally, the impression that he was prevaricating in order to shield his superiors.
* The reason alleged by General Trepof for giving these
orders was that, during a visit of inspection, Bogoliubof
had behaved disrespectfully towards him, and had thereby
committed an infraction of prison discipline, for which the
law prescribes the use of corporal punishment.
At the close of the proceedings, which were dexterously conducted by Counsel in such a way that, as the Emperor is reported to have said, it was not Vera Zasulitch but General Trepof who was being tried, an eminent Russian journalist rushed up to me in a state of intense excitement and said: "Is not this a great day for the cause of political freedom in Russia?" I could not agree with him and I ventured to predict that neither of us would ever again see a political case tried publicly by jury in an ordinary court. The prediction has proved true. Since that time political offenders have been tried by special tribunals without a jury or dealt with "by administrative procedure," that is to say, inquisitorially, without any regular trial.
The defects, real and supposed, of the present system are commonly attributed to the predominance of the peasant element in the juries; and this opinion, founded on a priori reasoning, seems to many too evident to require verification. The peasantry are in many respects the most ignorant class, and therefore, it is assumed, they are least capable of weighing conflicting evidence. Plain and conclusive as this reasoning seems, it is in my opinion erroneous. The peasants have, indeed, little education, but they have a large fund of plain common-sense; and experience proves—so at least I have been informed by many judges and Public Prosecutors—that, as a general rule, a peasant jury is more to be relied on than a jury drawn from the educated classes. It must be admitted, however, that a peasant jury has certain peculiarities, and it is not a little interesting to observe what those peculiarities are.
In the first place, a jury composed of peasants generally acts in a somewhat patriarchal fashion, and does not always confine its attention to the evidence and the arguments adduced at the trial. The members form their judgment as men do in the affairs of ordinary life, and are sure to be greatly influenced by any jurors who happen to be personally acquainted with the prisoner. If several of the jurors know him to be a bad character, he has little chance of being acquitted, even though the chain of evidence against him should not be quite perfect. Peasants cannot understand why a notorious scoundrel should be allowed to escape because a little link in the evidence is wanting, or because some little judicial formality has not been duly observed. Indeed, their ideas of criminal procedure in general are extremely primitive. The Communal method of dealing with malefactors is best in accordance with their conceptions of well-regulated society. The Mir may, by a Communal decree and without a formal trial, have any of its unruly members transported to Siberia! This summary, informal mode of procedure seems to the peasants very satisfactory. They are at a loss to understand how a notorious culprit is allowed to "buy" an advocate to defend him, and are very insensible to the bought advocate's eloquence. To many of them, if I may trust to conversations which I have casually overheard in and around the courts, "buying an advocate" seems to be very much the same kind of operation as bribing a judge.
In the second place, the peasants, when acting as jurors, are very severe with regard to crimes against property. In this they are instigated by the simple instinct of self-defence. They are, in fact, continually at the mercy of thieves and malefactors. They live in wooden houses easily set on fire; their stables might be broken into by a child; at night the village is guarded merely by an old man, who cannot be in more than one place at a time, and in the one place he is apt to go to sleep; a police officer is rarely seen, except when a crime has actually been committed. A few clever horse-stealers may ruin many families, and a fire-raiser, in his desire to avenge himself on an enemy, may reduce a whole village to destitution. These and similar considerations tend to make the peasants very severe against theft, robbery, and arson; and a Public Prosecutor who desires to obtain a conviction against a man charged with one of these crimes endeavours to have a jury in which the peasant class is largely represented.
With regard to fraud in its various forms, the peasants are much more lenient, probably because the line of demarcation between honest and dishonest dealing in commercial affairs is not very clearly drawn in their minds. Many, for instance, are convinced that trade cannot be successfully carried on without a little clever cheating; and hence cheating is regarded as a venial offence. If the money fraudulently acquired be restored to the owner, the crime is supposed to be completely condoned. Thus when a Volost Elder appropriates the public money, and succeeds in repaying it before the case comes on for trial, he is invariably acquitted—and sometimes even re-elected!
An equal leniency is generally shown by peasants towards crimes against the person, such as assaults, cruelty, and the like. This fact is easily explained. Refined sensitiveness and a keen sympathy with physical suffering are the result of a certain amount of material well-being, together with a certain degree of intellectual and moral culture, and neither of these is yet possessed by the Russian peasantry. Any one who has had opportunities of frequently observing the peasants must have been often astonished by their indifference to suffering, both in their own persons and in the person of others. In a drunken brawl heads may be broken and wounds inflicted without any interference on the part of the spectators. If no fatal consequences ensue, the peasant does not think it necessary that official notice should be taken of the incident, and certainly does not consider that any of the combatants should be transported to Siberia. Slight wounds heal of their own accord without any serious loss to the sufferer, and therefore the man who inflicts them is not to be put on the same level as the criminal who reduces a family to beggary. This reasoning may, perhaps, shock people of sensitive nerves, but it undeniably contains a certain amount of plain, homely wisdom.