LITMIR.BIZ

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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

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