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.