Читать книгу The Reformer - Stephen F. Williams - Страница 13

CHAPTER 2

Trial Lawyer

MAKLAKOV’S DECADE as a trial lawyer developed his analytical and rhetorical skills, exposed him to facets of Russian life rarely brought home to a Russian intellectual, and gave him the opportunity to hone his powers of persuasion on countless juries of ordinary Russians. The simplest way to describe this period and highlight the features of Maklakov’s character that it reveals is through a series of vignettes and anecdotes. I postpone to later chapters discussion of his two most famous trials, which occurred after he had turned almost entirely to politics. One was the Vyborg Manifesto trial, where Kadet Duma members were charged with distribution of offensive material in a call for civil resistance to the tsar’s proroguing of the First Duma in July 1906 (see chapter 6). The other was the defense of Menahem Beilis, whose prosecution arose entirely out of Beilis’s being Jewish (see chapter 9).

In principle a Russian could become a full-fledged lawyer—could move from “assistant” to “sworn attorney” (from pomoshchnik to prisiazhnyi poverennyi)—only after serving a five-year apprenticeship. Happily the apprenticeship rules allowed an apprentice to engage in independent representation of a client without reaching the position of sworn attorney. For the many talented Jews hoping to become lawyers, the rules had a more serious impact, often preventing them from even securing status as an apprentice. If they overcame that hurdle, however, the barriers to their becoming sworn attorneys were of largely symbolic effect—the regime’s way of expressing its attitude toward Jews.¹ Apart from these pointless obstructions, the apprentice rules did little to achieve their nominal training goals; in the words of one observer of patrons and their apprentices, “the first did not supervise, the second did not help.”²

Maklakov’s apprenticeship was especially odd. In one sense, he had two apprenticeships; in another sense, none. A friend of his father, the very distinguished lawyer Fyodor Plevako, asked him to apprentice with him and even seemed to assume he would do so. But Maklakov declined because he thought that Plevako, awash in clients, had accumulated so many assistants that they included quite a few of “deservedly questionable reputation.” Consultation with his mentor L. V. Liubenkov, an elderly justice of the peace, confirmed his intuition and added an additional reason for avoidance. In choosing a patron, Liubenkov advised him, “Don’t go with a famous one; there you won’t learn anything. Don’t go with an unknown; there you won’t find enough work. Go with one who isn’t famous, but soon will be.” Liubenkov believed Alexander Robertovich Lednitskii met that standard, and Maklakov signed on with him. Events, in fact, made that apprenticeship a dead letter, but the two became good friends. When Maklakov set off from Russia for Paris in October 1917 to take up his post as ambassador, the Provisional Government’s wartime security measures kept his travel information largely secret; among those in the know, only Lednitskii came to see him off at the Finland Station.³

Though Maklakov turned up at Lednitskii’s at the appointed time to start his apprenticeship, he never worked with him. Because of a chance case-scheduling shift, Maklakov stepped into the shoes of Plevako at the last minute as counsel for one of the defendants in a major trial. The client was acquitted. As Maklakov later recounted, “The defense went so well that it made my name. I became an independent lawyer.”⁴

The trial involved a set of rather sensational swindles at the Northern Insurance Company. The newly appointed procurator for Moscow, Alexander Makarov, later to be Russia’s minister of internal affairs (indeed, the immediate predecessor of Maklakov’s brother Nikolai), handled the case himself rather than assigning it to a deputy. Just before the trial Plevako was called to the Caucasus to fulfill a prior obligation in another case. Talking up Maklakov with what Maklakov calls “typical Plevako hyperbole,” he urged his client to enlist Maklakov as his substitute. Because time was short, the client had little choice and acquiesced in the substitution.

In the ensuing high-profile trial, Maklakov’s client, one Setkin, was only small-fry. He had used clients’ funds to gamble on the stock exchange and had lost. Maklakov’s strategy turned on an important idiosyncrasy of Russian law. It gave the jury the task of finding not only the elements of the crime, including “intent,” but also whether the defendant deserved to be held criminally responsible on a moral basis. Perhaps the most famous application of the principle had been in the trial of Vera Zasulich, who had indisputably attempted to assassinate General F. F. Trepov, governor of St. Petersburg. The defense was that years of deprivation and political oppression had developed in her “an acutely sensitive nature”; this provided enough of an opening to allow the jurors to acquit.⁵ Under Maklakov’s guidance, Setkin openly confessed his guilt, but to explain it he testified that he’d been led down that path by the atmosphere of easy profit on the stock exchange. He also undertook to compensate the injured.

Although all the defendants were acquitted, Setkin’s case was special because he had confessed his guilt. Maklakov’s closing speech turned that seeming liability into a strength, arguing that in the circumstances a verdict of acquittal “would not whitewash Setkin’s acts.” A reporter covering the trial quoted that passage and wrote, “I congratulate the young advocate on his choice of words that were direct, truthful, honorable, and worthy of the highest justice.” Favorable publicity of this sort solved the standard problem of a young lawyer—how to find clients—and at least in that sense mooted Maklakov’s need to serve an apprenticeship.⁶

Though the Setkin defense may have made Maklakov’s name, it was not his first case. That came to him through his friendship with Tolstoy and his family. Maklakov lived with his brother and sister in a small apartment on Zubovskii Boulevard, a few steps from where Tolstoy lived, on Khamovnicheskii Alley (since renamed Lev Tolstoy Street), and they were constantly over at the Tolstoys’. One day Tolstoy asked him if he would represent a member of a sect who had been found guilty of the crime of “inducement to schism” in the circuit court in Kaluga and had been immediately locked up.

According to the client, all that had happened was that he had passed by a factory as the workers were leaving, and they, knowing him, started to make fun of him. He had evidently overdone his response, but he firmly denied any intent to stir up a religious schism. By providing bail for the defendant, Maklakov made it possible to get an immediate appeal to a Moscow court rather than a delayed appeal in Kaluga. “Appeal” here meant an opportunity for retrial in a higher court.

The defendant had not testified at the trial, so the conviction was based simply on the evidence set out in the accusation. Maklakov was sure that if he testified the court would acquit him. But the defendant didn’t appear for the retrial, so Maklakov could only argue that even if the defendant said the words charged by the prosecutor, they showed merely a squabble, not advocacy. The court split two-to-one against the defendant. Thus, as Maklakov later said, his “first pancake was lumpy,” which quite irritated him. It turned out that the defendant had been in the courthouse all along but was too scared to enter the courtroom. Maklakov appealed yet another level up, on Plevako’s urging that the Senate (actually a court, not a legislative body) was more liberal on religious matters than the lower court. Here there was no retrial, just a review of the existing record. Maklakov notes that Tolstoy wrote to a friend on the court, asking that the matter be given real attention; he doesn’t say whether such a letter was proper under the prevailing standards.

At this stage the prosecutor conceded that there was no inducement to schism; rather he claimed that the defendant had blasphemed by labeling the church “vegetable keeper.” But the defendant showed that some sort of Orthodox missal used that very phrase to describe the church. This brought smiles to the judges, and they acquitted.⁷

Maklakov took quite a number of other cases revolving around religious conflict and idiosyncrasy, some (perhaps all) sent to him by Tolstoy.⁸ Maklakov’s accounts paint a picture of Russian life far outside the high culture of his upbringing. One involved beguny, a subset of the Old Believers—Orthodox Christians who rejected Patriarch Nikon’s reforms, of which the most controversial one involved the exact configuration of the fingers and thumb while making the sign of the cross. Beguny is derived from the Russian verb for “run” or “flight,” and the name seems to have been attached to this group because their rules of noninvolvement with the state, or even money, made life in regular society impossible; they lived apart in the forests of the northern provinces. This separate life made it possible for people unknown to anyone to take refuge among them; ill-wishers claimed that they harbored buyers of stolen goods.

The beguny Maklakov represented were a couple accused of ritual murder, supposedly killing an old man by suffocating him with a red pillow. The “victim” had disappeared after “unknowns” had visited him, but his body was later found in the forest. The procurator argued that analysis of his corpse showed suffocation by a red pillow and offered “expert” opinions in support. On examination by Maklakov, one of the experts explained that the supposedly suffocating pillow must have been red because the sect itself called this sort of death krasnaia smert, literally “red death.” Maklakov guessed that the phrase was probably a shortening of prekrasnaia, meaning “wonderful.” It appeared that the community had a practice of removing from its midst people who seemed on the verge of death, which the procurator claimed was for the purpose of suffocating them. Maklakov got the help of experts in Moscow to confirm his view, and although the local court wouldn’t allow him to call them, he used their information to frame arguments attacking the local “experts”—one of whom was a theologian who relied entirely on the other expert.

Luckily for Maklakov and the defendant, an ancient begun approached him at his inn the night before the trial’s last day and told him that when death approached a member of the sect, the dying person was taken away from people and earthly activity so that he would die a “clean” death. But this potential witness was infuriated at the thought that Maklakov might ask him to say this in court. So Maklakov used the explanation in his summation, weaving rhetorical questions into discussion of the supposed experts’ testimony (“Why could there not be another, much more simple explanation?”).

The jury acquitted, and Maklakov talked with several of the jurors at the train station just before he left the town. They said they believed that the death was caused by suffocation but weren’t convinced that “these people [the accused] did it.”⁹ The jurors seem to have done their job right, focusing on whether the accused actually committed the crime charged; only on a subsidiary issue did they go off the rails.

Two other “religious” cases deserve brief mention. The old man who had helpfully explained the “red death” to Maklakov was later arrested for refusal to give his name. The state required identification upon request as a protection against convicted criminals wandering about. The normal penalty was to send the refuser into exile. Maklakov tried to build a record that the defendant had a perfectly innocent reason for his refusal, and he hoped to persuade the Senate that applying the law to such a person would be invalid. The old man’s explanation was that, since the reforms of Nikon, the church had taken the mark of the Antichrist, so he must not disclose his name. The logic of this is not at all clear, to be sure, but Maklakov hoped the reason might prove compelling if described by the defendant in a manner expressing full respect for the judges’ good faith. The 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 between state and society and distorted the nature of a liberal profession.²⁰ He saw it as part of a fateful move by the liberation movement toward alliance with the revolutionaries, an “anti-state” movement—meaning a movement that saw no value in government institutions designed, however imperfectly, for the resolution and compromise of conflicting interests. He calls this anti-state element the “Acheron,” invoking Juno’s declaration in the Aeneid,

flectere si nequeo superos, Acheronta movebo

(If I cannot deflect the will of Heaven, I shall move Hell.)

While the defense lawyers’ new tactic might isolate the autocracy, it would do so at a cost, creating a liberalism of a new type, one that “after victory could not manage the state.”²¹ By scorning state procedures for justly resolving cases, the lawyers were undermining the tools needed for a liberal state and denigrating the sort of self-discipline and realism needed to shift the Russian state from autocracy to constitutionalism.

For virtually all the clients discussed above, Maklakov plainly worked without compensation. To support his fairly comfortable lifestyle—hunting and fishing in Zvenigorod and vacations in France, for example—he clearly needed paying clients. He appears to have had them in abundance. He had a preference for criminal over civil cases because, he said, he didn’t like to work through the sort of large organized apparatus needed for full-scale participation in civil litigation. Rather, he operated as a “strolling player.” Thus he liked to participate in such cases only to address some basic issue of principle or to speak in court. His records show involvement in major libel cases involving newspapers and in a large group of high-stakes commercial cases involving major Russian enterprises.²²

Maklakov found setting fees a troubling activity. It embarrassed him to recall from childhood how little his father—a distinguished doctor and professor—had been paid compared to what he earned as a young and inexperienced lawyer. In civil cases fees were set by law and custom, and they varied with the amount at stake. Not so for criminal cases, and there the comparison with his father made him propose rather low fees. This led to some curiosities. In one case at an early stage of his career, he suggested 500 rubles, which he thought was suitable; the potential client said he needed to think about it. Maklakov assumed the client thought it too high. Then he learned that the client had hired someone else for 5,000 rubles; he evidently took Maklakov’s proposal as a signal that he was a lawyer of low quality. Occasionally fellow lawyers protested that he was undercutting them by applying what they saw as his unsuitable comparison with his father. He sometimes tried asking the client to name a fee, but this too presented problems. If it was too low, Maklakov would just decline, as he didn’t like to bargain, but that would irritate the potential client.²³

In one case—one that his memoirs don’t mention—his fee elicited public criticism. In 1912 he defended one G. E. Tagiev, an entrepreneur in Baku involved in oil, textiles, and fish, who was accused of mistreating an employee. An article by Trotsky made a snide suggestion that the case showed that Maklakov’s integrity was for sale, and the editors of Trotsky’s collected works say that the fee took a toll on his reputation.²⁴ Perhaps not a heavy toll, as he was soon reelected to the Duma (the Fourth) with a still higher majority than in his election to the Third.²⁵

Maklakov plainly earned a good living, as shown by his frequent vacations in France. But at least in some respects he exercised considerable thrift, perhaps recognizing that the excess of his earnings over those of his intelligent and hardworking father was partly due to pure luck. We learn that later, in Paris, he always rode the subway second class; he explained it to a friend as part of a desire to avoid arrangements in his private life that might foster “closed compartments and categories in society which would forever separate one man from another.”²⁶

As we saw, Maklakov’s association with Plevako launched his career, and the two remained close, very often serving together as joint defense counsel. (In Russia, contrary to British practice, private lawyers did not serve as prosecutors, so there seems never to have been a case where Plevako and Maklakov opposed each other.²⁷) While he had good reasons for not apprenticing with Plevako, he regarded him as “the first lawyer in Russia” and noted that his name had become in popular speech a generic word for a master of eloquence and law, as in, “Find another plevako.”²⁸ As both were famous orators of the era, the St. Petersburg Society of Lovers of the Oratorical Arts naturally sought out Maklakov to speak at a gathering in honor of Plevako after his death in 1908.

Maklakov speaks with some awe of Plevako’s “ability to fluently find the necessary words and form them into correct and flowing phrases.” “He never had to search for words or think over phrases. The words in an obedient crowd poured into perfect sentences, perfectly expressed thoughts.” In one case a prosecutor in summation made a stupid statement, and Plevako wrote on his scratch pad the single word “Fireworks.” When Plevako reached the issue in his response, he addressed it with a true fireworks of thoughts and words, including “quotes from the Gospel, reliance on statutes, examples from the West, a summons to the memory of Alexander II.”

Plevako prepared drafts ranging from a complete speech to notes of a few words, but wherever his preparation fell on that spectrum, his final words bore only a slight relation to what he had written. Often the whole structure of the speech changed. He might use a successful expression or a pointed phrase from the preparations, but those were the exceptions, which only underscored the general rule.

After a case on which they had cooperated, Plevako was preparing an appellate brief, and Maklakov asked him to send him drafts. He did so—a whole slew of drafts (five or six) successively typed out by Plevako on his Remington. All were without strikeovers or revisions, yet all were quite different and had plainly been started afresh. When Maklakov spoke to him about it, Plevako said it was always easier for him to start from the beginning. He acted with words, says Maklakov, “the way a rich man might casually throw money to the wind.”

As Plevako had no need for advance preparation to find the necessary words, what purpose did his notes serve? Only, says Maklakov, to assure himself that he had an abundance of material. As a result, if a new topic struck him during a speech, he could leave his plan without fear or regret.

When Plevako lapsed from spontaneity his oratory paid a price. Maklakov cites his summation in M. A. Stakhovich’s suit against Prince Meshcherskii, a high-profile, politically sensitive libel case on which the two cooperated. Evidently nervous about the political implications, Plevako hewed fairly closely to his text, and in Maklakov’s view the speech suffered from length and ornateness, drawbacks in Plevako’s writing. Though very good, it fell short of his usual work. In another situation, Plevako sent a reporter a segment of a speech that had been written (or at least polished) after the speech was delivered; Maklakov thought it “a cold-blooded creation of the office, which lay like a pale patch on the brilliant background of improvisation.”²⁹

Maklakov seems never to have described his own methods. Apart from his awe of Plevako’s spontaneity, there are other clues to Maklakov’s approach—a preference for knowing in advance fairly exactly what he would say. His friend and fellow Kadet deputy in the Duma, Mikhail Chelnokov, told a mutual friend that on the eve of his speeches Maklakov would often go to him and deliver the next day’s speech with the same voice and urgency as he would later use from the Duma tribune.³⁰ This suggests preparation down to the finest detail. Georgii Adamovich, who was Maklakov’s first Russian biographer and had known him and many of his contemporaries, reports that listeners were divided, some believing Maklakov memorized every word and every detail, such as pauses for thought, and others believing that he could deliver a lengthy speech with advance preparation of only its general content.³¹ Whatever the method (likely a combination of the two), the effect was one of conversational spontaneity. Vaclav Lednitskii, son of the Lednitskii for whom Maklakov almost apprenticed, affirms that Maklakov could write and deliver a speech so that it sounded like the spoken, rather than the written, word.³²

In his reminiscence, the younger Lednitskii shares with us an eccentric detail of Maklakov’s life. Summer and winter, he reports, Maklakov used to wear a Russian cap, which, with his beard, gave him the appearance of a sixteenth- or seventeenth-century Russian—hardly the convention for an up-and-coming member of the bar in the twentieth century. When he came to Paris in 1917 as ambassador-designate of the Russian Provisional Government, he replaced the cap with a beret.³³

Maklakov’s memorial address on Plevako ranged far beyond his oratory. Painting a picture of a fellow lawyer, a deeply patriotic Russian, a public figure, and a friend, the talk also portrays the portraitist himself and his time. As a foil for describing Plevako, Maklakov uses Vekhi (Landmarks, or Signposts), a famous book published the same year as his address, which skewered (or sought to skewer) the Russian intelligentsia. Without endorsing the book’s accuracy, Maklakov notes a number of attributes that it ascribed to the intelligentsia, most notably irreligion and lack of national feeling. He argues that Plevako lay at the antipodes from Vekhi’s characterizations. Plevako was, in fact, highly religious and dedicated to the Orthodox Church, giving it large sums of money. But at the same time he was an ardent defender of the Old Believers in the face of their persecution by the church and the regime, and was reverent toward Tolstoy’s theological works. For him, defense of religious freedom did not grow out of indifference to religion. Maklakov suggests he had a loose affinity for Tolstoy’s view of the state: “By instinct [Plevako] was an anarchist, though intellectually he understood the need for the state.”³⁴

Besides the implicit anarchism, Maklakov depicts Plevako’s ability to form a bond with the sinner, who, in his profession, was often the defendant. “He could penetrate the interest, the grief, the suffering of whoever he was defending. . . . He immediately saw what was best in a person, what to others might be invisible.” And more broadly, in terms echoing the “Grand Inquisitor” passage in Dostoevsky’s The Brothers Karamazov, Maklakov writes, “There was nothing that could make him sacrifice a person: no belief in the saving character of any specific form of government, no devotion to doctrine, none of the intolerance arising out of such devotion.” Adamovich remarked that in Maklakov’s summation for Setkin, pleading that even a verdict of acquittal could not whitewash him, his spirit and tone were Plevako’s.³⁵

In addressing Plevako’s sense of national feeling, Maklakov tells the story of a winter trip the two took to defend a case.

The harness came undone. I was angry not only that we were going to be forced to freeze in the field, but because all this happened close to the station, where there had been time to check how well the horse was harnessed. Plevako began to comically describe how the muzhik [peasant] got up in the morning, saw that the harness was bad, but hoped to get to the station; but when he got to the station he noticed that it nearly held, and hoped that he could make it to the farrier, and so forth. He preferred Russian thoughtlessness to American enterprise or German precision.³⁶

While Maklakov may have felt more irritation than Plevako at the peasant’s haphazard ways, he clearly shared Plevako’s affection for the Russian people and their way of life. This was part of what it meant, for both of them, to love Russia.

In Plevako’s case, sympathy for casual peasant ways may have arisen partly from identification. “His vagueness was legendary.” Once, having asked people to his home, he found it necessary to change the time and place and then arranged meetings with them for another time, but in three different places. “At the named hour he was at still a fourth place. This sort of thing made him enemies, and led to unflattering legends, but only among those who didn’t understand him. Many could not, and paid for it [in loss of the rewards of his company].”³⁷

Maklakov’s talk conjures up a Plevako who, far more than a brilliant lawyer, was a great soul.

You can teach yourself much—logic, and rhetoric and real eloquence. But it’s impossible to teach yourself such an understanding of life, such an attitude to people. To be an orator such as Plevako was, you need to be a person such as he was—not by talent, not by a gift of words, all that is secondary, but in his spiritual cast of mind, love of man, inability to indulge righteous or even justifiable hatred, in the ability to look at things not through the eyes of this world, which made him so unlike others.³⁸

As the relationship with Plevako suggests, Maklakov was by no means a solitary lawyer. He became deeply involved in lawyers’ voluntary associations. During the reactionary reign of Alexander III, the government generally tried to limit the rights of lawyers’ assistants, but there had been a revival of the bar in the second half of the 1890s, when Maklakov was starting his career. Young lawyers started “wandering clubs,” so-called because their meetings migrated from one member’s apartment to another’s. They talked about mutual problems and current affairs, but they also arranged for free advice to workers and peasants. Maklakov saw the wandering clubs as “breathing life” into the bar, trying to turn it from a group simply enhancing the members’ professional skills and prosperity to one that served society.³⁹

Among their activities were confronting and overcoming technical legal restrictions on service in the provinces by lawyers from the capital cities who had not advanced from “assistant” to “sworn attorney.” The young lawyers largely succeeded, aided by the cooperation of judges who responded conscientiously, even though the presence of better representation for defendants increased their work. These trials in the provinces (Maklakov uses the term uezd, or “district”) were not only helpful for the accused but “the most outstanding school” for the young lawyers. Defense was not a matter of rhetorical razzle-dazzle but was aimed at ordinary jurors; the jurors created a businesslike mood that the lawyers had to echo. Later, on the stump in Duma elections, he was impressed by the voters’ similar seriousness of purpose.⁴⁰

Lawyers involved in defense of political cases formed an association, and Maklakov naturally played a leadership role. On November 20, 1904, the association called for a constitution for Russia, and, according to fellow lawyer Iosif Gessen, Maklakov was quite proud of the lawyers for doing so.⁴¹ But the association took a new turn as a result of the tsar’s decree of February 18, 1905, which invited Russians to express their concerns about the state and its direction. The Union of Liberation responded with efforts to encourage the creation of other “unions” revolving around particular professions or concerns: there were unions for “agronomists and statisticians,” for “pharmaceutical assistants,” for “equal rights for Jews,” and so on. Galai lists fourteen such unions, to which others were added. The association of lawyers providing defense in political trials now embraced the spirit of the Liberation Movement.⁴²

It isn’t clear whether Maklakov was very active in the lawyers’ association after it was enveloped by the Liberation Movement’s unions. Certainly in retrospect, Maklakov criticized it as having only one activity—the adoption of political resolutions, specifically what he called the “cliché template.” The cliché consisted of a call for a constitution drafted by a constituent assembly, in turn to be chosen by “four-tailed suffrage” (“four-tailed” was the liberals’ phrase for a universal, direct, equal, and secret franchise). He argued that the resolutions didn’t arise from any professional skill or expertise, but only from the fact of the intelligentsia’s having settled on the package. The peasant’s union⁴³ had joined the cliché template, though, as Maklakov joked, they really wanted the landowners’ land and regarded calling for a constituent assembly with four-tailed suffrage as “a cheap price to pay for land.” In later chapters I’ll consider his affirmative objections to the cry for a constituent assembly and the liberals’ favored franchise, but for now it’s enough to say that Maklakov saw the outburst of these preprogrammed platforms from synthetic organizations as a natural result of the autocracy’s having so long stifled genuine expression of opinion.

People close to the process knew that they represented only themselves. But the ease with which the inexperienced and disturbed society submitted to the intelligentsia’s propaganda, and accepted any position, justified this imposture. Where there is not a true representative system, it’s easy not only to speak for others, but to be convinced that you’re expressing public opinion. The authorities’ long policy of preventing the organization of society yielded its fruit. Through the decree of February 18 [1905], they turned the intelligentsia leaders into spokesmen of the people’s will.⁴⁴

In May 1899 Maklakov played a role at the Moscow Juridical Society’s celebration of the one hundredth anniversary of Alexander Pushkin’s birth. Unlike many ceremonial occasions, this one became famous in its own right. Sergei Muromtsev, a very distinguished older lawyer, later to be chairman of the First Duma, gave the main speech and used it to celebrate Pushkin as a seeker of freedom and independence. “Together with the memory of the poet we celebrate the victory won by Russian individuality over routine life and government tutelage.” This brought the wrath of God down on the society, or, more precisely, the wrath of Maklakov’s old foe N. P. Bogolepov, then minister of education, who closed the society, which was institutionally part of Moscow University. Before Muromtsev’s fateful speech, there had been a preliminary round of brief welcoming talks, including one by Maklakov. One of the preceding welcomers had argued that the society should not involve itself in politics. Maklakov used his time by responding to this, arguing that law always posed the question of its relationship to right. In recognizing that law doesn’t necessarily correspond to right, members of the society would have to discuss political values.⁴⁵

It would be convenient to argue that Maklakov’s life as a practicing lawyer gave him a good understanding of the thinking of Russia’s people and of their true needs. Indeed, I think that is so. But we must be cautious: many of the other liberals were lawyers by trade but nevertheless prone to a doctrinaire utopianism quite alien to Maklakov.