by Oleg OMELCHENKO, Dr. Sc. (Law), Moscow Industrial University

The Russian Academy of Sciences (RAS) has always prized the historic role of Empress Catherine II (1729 - 1796)-it has been publishing her works, including those on state governance. Speaking of that, we should make special mention of Alexander Lappo-Danilevsky, full member of the St. Petersburg Academy of Sciences. An outstanding organizer, he enlisted the aid of a cohort of prominent historians and legal experts of the day (early 20th century), such as F. Taranovsky, P. Lyublinsky and Ya. Barskov, in the job of publishing materials penned by Catherine II. This publication was to see print in 1917 to 1919, but the revolutionary events of 1917 interfered with the project. In the Soviet years, however, Catherine II became a target of social critique, quite in keeping with the "social class approach". Meanwhile her manuscripts, sorted out and systemized, are priceless documents in the legal sense above all. They offer a new dimension of Catherine the Great and her lifework for Russia's benefit.

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Unlike other Russian czars and czarinas, Catherine II wrote or edited with her own hand the greater part of legal documents issued during her reign. The Russian State Archives of Old Acts have a special section with her personal files ("Catherine II's Study"), with scores of MS folders and volumes.

Count Friedrich Grim, an eminent French writer, critic and diplomat who corresponded with the Russian sovereign, asked her how she was going to celebrate the 12th anniversary of her reign (1782); and her reply was: "When I issue some good law, that will be a proper occasion for my celebration." It was not an empty, hollow phrase. The czarina was awake to the utmost importance of lawmaking, she had a zest for this job.

The age of Catherine II saw a good many administrative reforms most of which were carried out along essentially new legal lines. As a matter of fact, legislation had a special role to play in erecting the edifice of "enlightened absolutism". If "run properly", it-in keeping with the "spirit of the times" (philosophy of the Enlightenment)-was viewed as the sole way toward social progress, universal "bliss of each and all". And so Her Majesty's government promulgated a vast number of important laws which stayed in force for more than a century. The latest two-volume edition, Catherine II's Legislation (Yuridicheskaya Literatura Publishers, Moscow, 2001), prepared by a collective of present-day scholars, comprises only most significant documents. But they are eloquent enough to show how the judicial and administrative systems as well as criminal law and relative enactments regulated all the various facets of societal and cultural life of the Russian body politic.

In 1767 the Empress convened a representative assembly of the estates which instituted a commission for filing an utterly new legal code of the Russian Empire. Her Majesty wrote an Election Manifesto, Russia's first legal act on electoral procedures. The empress drew up standing orders for the commission's work ("Ceremony of Regulations") and an orderly plan, or "Outline" for the entire code of laws. In 1775, Catherine II worked out a major act of the administrative reform, "Establishment for Government of the Provinces" supplemented in 1780 by copious addenda; all in all, this code makes up a big volume with more than 500 articles. In 1781 and 1782 Catherine II promulgated a series of fundamental rules and regulations for new trade legislation ("Rules of Merchandise on Water"), fiscal administration ("Rules of the Revenue Department"), and land and forest use. Seeking to enforce equality of citizens before the law, Catherine II paid particular attention to criminal law and a progressive system of police administration, as evidenced by the "Rules of Decency" she filed in 1782; this legal enactment came into force then and there. And last, in 1785 Her Majesty published the famous "Charters" for the nobility and towns- a code she conceptualized and edited and re-edited with her own hand. This list could be continued.

Catherine II's legislation bore an impress of her personality: she did not draw a clear line between law-making and literary occupations. Following certain traditional canons of her day, the empress borrowed a good deal from philosophical, legal and political works of West European men of letters, and she also drew upon the famed French Encyclopedia published by the philosophers and enlighteners Denis Diderot and Jean D'Alambert, both elected honorary members of the St. Petersburg Academy of Sciences.

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In her legislation (both materialized and not) Catherine II sought to accomplish the impossible-that is within a few decades reform the legal and government edifice of a vast "disorderly" nation into a "legal monarchy" ruled by "enlightened law" for the universal "bliss of all and sundry". Her Majesty strove to ensure a stable state and social framework for centuries ahead.

She set forth her ideas in a bulky writing, "Instructions of the Commission for the Drafting of a New Code" promulgated in 1767. This work was conceived as a guideline for the law-making activities of elected deputies. Writing the text, Catherine the Great drew heavily on articles of the French Encyclopedia and on two others works: the famous treatise De I'Esprit de loix ("On the Spirit of Laws") by Montesquieu, and the pamphlet of the Italian jurist Cesare Beccharia Di Delitti e Punizioni ("On Crimes and Punishments"). And yet the Instructions (Nakoz) are an independent document on its own merit in terms of its political and lawgiving conception. Russian historiographers did not go deep into this matter even before the overthrow of monarchy in 1917. Some scholars said Catherine II had delved into books she had never read, but they failed to see those she had obviously used; while other historians, carried away by their rhetoric, would not see the main political and legislative idea of the empress.

The Instructions made it abundantly clear that the autocratic and unrestricted monarchical rule had to be preserved as the only power structure suitable for a vast country like Russia. The document legalized the status of different estates-nobles, peasants and townspeople as a "natural" thing- and their different "rights and privileges", too. At the same time, it invoked a law for cultural, legal and administrative intercourse between the authorities and society, where the law should override. To accomplish this objective, Her Majesty suggested a package of reforms for the judiciary and criminal law (its liberalization); she opted for a lifting of groundless legal restrictions. Citizens should not be persecuted because of their thoughts or faith ("Persecution of human minds is exasperating", reads Article 496), and their free economic and sociocultural activity should be encouraged.

Catherine II had a romantic view of the situation-she thought the deputies would turn to the job at hand and do it quickly. Convened in 1767, the commission produced reams of draft laws (many were good enough and quite in keeping with the Instructions) but then, by the year 1774, its activities actually ceased. Thereupon the empress decided to act on her own and realize her monumental project. On one of her manuscripts dated the same year, 1774, she drew in block capitals, "CIVIL LAWS OF CATHERINE THE SECOND".

Her Majesty outlined several versions of the plans for proposed legislation. The MS available to us show quite remarkable schemes and diagrams which the empress sketched and supplied with copious notes, including references to the old Nakaz (Instructions). The sovereign attempted to find the only proper system of government institutions and define their powers, the pattern of economic management, and safeguards for "external and internal security". This approach allowed to draft a concrete lawmaking program: legislation was to be divided into "mandatory laws" (never to be altered), "provisional enactments" (related to the government administration by and large) and ukases

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(decrees, edicts issued by H.M. government).

To begin with, the system of provincial government was reorganized. This applied to all local government bodies both in gubernias (provinces) and uyezds (lowest administrative division akin to districts; all Russian territories were divided accordingly). Catherine II drafted the statutes of criminal proceedings in courts of law; she defined new crime investigation and inquest procedures. Tortures (condemned in the Instructions) were prohibited-inmates were to be "treated humanely".

A few years later, in 1777 - 1780, Her Majesty filed "Statute of Gaols", the very first in Russia's penitentiary practice. This document enforced humane treatment of people in custody and prescribed separate confinement of inmates under investigation and convicts, men and women, the healthy and the sick. This was an innovative stance indeed: even in England of the mid-19th century prisoners of both sexes were kept under arrest in the same cells. Although the Catherinian idea was not materialized legally, it had a significant impact on the penitentiary system: Russia started building new-type penitentiaries.

In those years the Bern-based Economic Society announced a competition for a draft of the best criminal code. The initiative came from Catherine II, with the mediation of Voltaire, the French philosopher and writer, elected to the St. Petersburg Academy of Sciences honoris causa. Acting "incognito", the Russian sovereign drew up an extensive version of her own in compliance with the ideological mainstream of the 18th - mid-19th century: cruel punishments were to be abolished, for one. The definition of liability was to be revised, even though the interests of society and of its government overrode personal rights of the individual (which was quite in keeping with the spirit of that time). Related to this project, left incomplete, was the criminal code contained in the 1782-published "Statute of Decency", a document that laid the groundwork of Russia's police and law enforcement for nearly a century ahead.

In drafting her "civil laws", Catherine the Great did not bypass social problems either. The first wording of her "Charters to the Nobility and Towns" (1785) had an enormous impact on the status of Russia's estates. Inasmuch as it was possible in an absolutist state, citizens were granted certain inalienable, though not equal, civil rights. The same year, 1785, the empress completed the draft of yet another "charter"- what she termed "Rural Statute", which laid down analogous civil rights (in a smaller scope though) for state-owned peasants (serfs), or half of the country's population. Judging by archival documents, she laid aside the nearly completed draft with the aim of including it into a comprehensive package, "Instructions (Nakaz) to the Director of the Economy", conceived as a code of rules for state economic management-also in such areas as land cultivation, forestry, taxation and local administration. Working on it, Her Majesty sought to systematize (though with amusing slips now and then) rules of management both in farming and in the timber industry; she detailed every trifle and went as far as trying to put a legal construction on the very notion of "geography" by an agricultural zoning of the Russian gubernias.

Catherine II was concerned with working out fundamentals for legislation-to-be in all its scope. This became her overriding idea in time. Personally, she was anxious about the durability of her labors "for the good of the empire". In her quests and searchings, the Russian empress turned to West European authorities in the political and legal sciences. In the mid-1780s, she perused for months Sir William

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Blackstone's treatise (commentaries) on English laws, taking copious notes. Sir William was a major jurist and father of the British science of law. This treatise inspired a legal project-perhaps the most unexpected one for the Catherinian age-in which the sovereign, after the model of the English Constitution, attempted to circumscribe certain universal rules for "fundamental laws".

This document contains a remarkable collection of articles which the empress entitled "Basic Law". In fact, it was Russia's first code of civil rights set forth in seventeen articles. It enforced rule (supremacy) of law and stipulated that only legally established courts of law could secure a defendant's rights. H.M. subjects were allowed to have and carry arms, they were guaranteed equality before the court as well as inviolability of a person and property. Furthermore, this code legalized freedom of worship ("free and placid worshiping for different faiths"); punishment applied only to "deeds, not thoughts or spoken words". The articles of the "Basic Law" were to have overriding significance, and he who violated even one of its constitutional principles (as we would have said today) was to forfeit his freedom for the term of his natural life.

Catherine II wished to compile a single code to interpret the body of Russian laws for courts of law and administrative organs. But seeing she could not cope with this formidable project, she concentrated on the most important articles; one provided for a Chief Punitive Chamber to be set up for the dispensation of justice and for supervision of lower-level judicial bodies. This chamber was visualized as a Supreme Court, to be headed by "one versed in law", i.e. a supreme justice and attorney general, all in one-a post akin to Lord Chancellor's in Britain. Here a good deal was taken from the British House of Lords, except administrative red tape.

The empress aimed to incorporate the greater part of her law-making ideas within an extensive "Statute of the Senate" on which she worked up until her death (1796). But in the summer of 1787, on her famous journey in Russia's south ^* she rehashed some chapters of the proposed "Statute" (Ustanovlenie) and made a fair copy of it in August. So H.M. could well mark the twenty-fifth jubilee of her reign with some legislative "trifle", as she put it.

But this very draft legislation, which has come down to us in manuscripts, was a significant phenomenon as such-in actual fact, it was a draft constitution of the Russian Empire. It comprised seven chapters and dozens of articles. The "Statute" proclaimed the integrity of the country, its geographical and political unity, and "autocratic and legislative power exercised by H.M." in perpetuiry.

The first chapter (on H.M. autocratic and legislative rule) was based on provisions as set forth by the "Instructions" of 1767. It stated the legitimacy of monarchy as the only system of government in Russia. A monarch reigned supreme-as a lawgiver too.

The second chapter ("On Ranks") legitimized the "great title" of the sovereign and listed all the "lands and principalities" under the power of the Russian crown. The third chapter "("On Advantages") considered the juridical "benefits" of imperial rule. A monarch was the supreme vehicle of government unaccountable to anyone in policy-making. The autocrat's prerogatives included lawmaking, foreign policy, the dispensation of ranks and titles, and the right of pardon.

Chapter Four ("on Birthright and Succession") put a legal seal on the standing order of succession to the throne. It defined the status of royal family and its members, and

^* See: V. Lopatin, "Potyomkin Villages", Science in Russia, No. 6, 2OO1. - Ed .

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enforced the principle of succession for men by seniority. In a surprising move, the empress listed reasons for the discharge of a putative successor to the throne (heir apparent)-she followed the model of the English legislation of the early 18th century. The Senate, or "constitutional court", was to act as a guarantor; it was to make decisions in the event of a successor's minority and appoint a ruling regent, and interpret factual matters related to succession to the throne.

The fifth chapter ("On the Council") legalized the top government status of Her Majesty's Council established in 1769, i.e. under Catherine II. High-ranking officials were to sit there and discuss proposed legislation, and exercise control over government institutions. Their rights were determined after the model of Britain's Royal Privy Council.

Chapter Six ("On Office") endorsed a special government status and rights for top officials of the three highest ranks, kind of safeguarding their singular role in government... And the short concluding seventh article ("On Revenues") vested the monarch with powers in the office of coinage, weights and measures as hallmark of sovereign power.

Like some of the previous draft laws, "Instructions for the Senate" were shelved by Her Majesty. Why? We cannot tell. There is a chit she scripted to this effect: "Instructions" had to be laid aside and "put on the shelf because, as she said, "I cannot make my frame of mind hereditary..." This upshot is natural: a sovereign was the sole guarantor of all state institutions and principles codified in the "Basic Law", no matter how humane and liberal they might be; and she wanted in no way to restrict autocracy, she did not deem that to be useful for the country and "commonweal"...

Be that as it may, the "Instructions for the Senate", which Catherine II drafted in 1787, were actually Russia's first draft constitution and the headsource of Russian constitutionalism-not the plans of the reformer Mikhail Speransky (early 19th century), not the projects of the Decembrists (who staged the abortive coup of December 1825 in a bid to topple monarchy), and even not the "State Statuatory Deed."

"Instructions to the Senate" could have evolved into a constitution of the conservative stripe, for it did not envisage the institution of representative assemblies. This draft legislation provided for law and order, and civil rights only in a monarch's authority; it enforced

law and detailed legal prescriptions for every eventuality-the slim guarantees under absolutism, as we see it now, in the 21 st century. But it was a new trend at Catherine's age. And such were the first constitutional acts of the early 19th century, in German States for one.

Catherine IFs law-making works-now open to scholars but not studied in full-give an insight into the origins and progress of political and legal thought in Russia. And here we see the empress as the protagonist. Her manuscripts exhibit high professionalism and competence in lawmaking, broad erudition and knowledge of the greatest jurists of the West, and a good practical sense. In this regard Catherine II is beyond compare if we take Russian legal experts of the 18th and early 19th centuries (except Mikhail Speransky perhaps) or philosophers concerned with legal matters.

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