The Russian people, it was held, was not yet ripe for such an institution, and numerous anecdotes were related in support of this opinion. One jury, for instance, was said to have returned a verdict of "NOT guilty with extenuating circumstances"; and another, being unable to come to a decision, was reported to have cast lots before an Icon, and to have given a verdict in accordance with the result! Besides this, juries often gave a verdict of "not guilty" when the accused made a full and formal confession to the court.
How far the comic anecdotes are true I do not undertake to decide, but I venture to assert that such incidents, if they really occur, are too few to form the basis of a serious indictment. The fact, however, that juries often acquit prisoners who openly confess their crime is beyond all possibility of doubt.
To most Englishmen this fact will probably seem sufficient to prove that the introduction of the institution was at least premature, but before adopting this sweeping conclusion it will be well to examine the phenomenon a little more closely in connection with Russian criminal procedure as a whole.
In England the Bench is allowed very great latitude in fixing the amount of punishment. The jury can therefore confine themselves to the question of fact and leave to the judge the appreciation of extenuating circumstances. In Russia the position of the jury is different. The Russian criminal law fixes minutely the punishment for each category of crimes, and leaves almost no latitude to the judge. The jury know that if they give a verdict of guilty, the prisoner will inevitably be punished according to the Code. Now the Code, borrowed in great part from foreign legislation, is founded on conceptions very different from those of the Russian people, and in many cases it attaches heavy penalties to acts which the ordinary Russian is wont to regard as mere peccadilloes, or positively justifiable. Even in those matters in which the Code is in harmony with the popular morality, there are many exceptional cases in which summum jus is really summa injuria. Suppose, for instance--as actually happened in a case which came under my notice--that a fire breaks out in a village, and that the Village Elder, driven out of patience by the apathy and laziness of some of his young fellow-villagers, oversteps the limits of his authority as defined by law, and accompanies his reproaches and exhortations with a few lusty blows. Surely such a man is not guilty of a very heinous crime--certainly he is not in the opinion of the peasantry--
and yet if he be prosecuted and convicted he inevitably falls into the jaws of an article of the Code which condemns to transportation for a long term of years.
In such cases what is the jury to do? In England they might safely give a verdict of guilty, and leave the judge to take into consideration all the extenuating circumstances; but in Russia they cannot act in this way, for they know that the judge must condemn the prisoner according to the Criminal Code. There remains, therefore, but one issue out of the difficulty--a verdict of acquittal; and Russian juries--to their honour be it said--
generally adopt this alternative. Thus the jury, in those cases in which it is most severely condemned, provides a corrective for the injustice of the criminal legislation. Occasionally, it is true, they go a little too far in this direction and arrogate to themselves a right of pardon, but cases of that kind are, I
believe, very rare. I know of only one well-authenticated instance. The prisoner had been proved guilty of a serious crime, but it happened to be the eve of a great religious festival, and the jury thought that in pardoning the prisoner and giving a verdict of acquittal they would be acting as good Christians!
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.
