第250章 CHAPTER XXXIII(5)

(Cour de Cassation) does not enter into the material facts of the case, but merely decides the question as to whether the essential formalities have been duly observed, and as to whether the law has been properly interpreted and applied; and if it be found on examination that there is some ground for invalidating the decision, it does not decide the case. According to the new Russian system, the sole Court of Revision is the Senate.

This is the procedure referred to by Karl Karl'itch, vide supra, p 37.

*I am quite aware that the term "Court of Revision" is equivocal, but I have no better term to propose, and I hope the above explanations will prevent confusion.

The Senate thus forms the regulator of the whole judicial system, but its action is merely regulative. It takes cognisance only of what is presented to it, and supplies to the machine no motive power. If any of the lower courts should work slowly or cease to work altogether, the Senate might remain ignorant of the fact, and certainly could take no official notice of it. It was considered necessary, therefore, to supplement the spontaneous vitality of the lower courts, and for this purpose was created a special centralised judicial administration, at the head of which was placed the Minister of Justice. The Minister is "Procureur-

General," and has subordinates in all the courts. The primary function of this administration is to preserve the force of the law, to detect and repair all infractions of judicial order, to defend the interests of the State and of those persons who are officially recognised as incapable of taking charge of their own affairs, and to act in criminal matters as Public Prosecutor.

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?